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Nunez v. Commissioner of Social Security

United States District Court, E.D. California

May 2, 2018

ATHENA M. NUNEZ, Plaintiff,



         Plaintiff, who is proceeding with retained counsel, brings this action under 42 U.S.C. § 405(g) for judicial review of a final decision of the Commissioner of Social Security. Pursuant to the written consent of all parties, this case is before the undersigned as the presiding judge for all purposes, including entry of final judgment. See 28 U.S.C. § 636(c). Pending before the court are plaintiff's motion for summary judgment (Doc. 16) and defendant's cross-motion for summary judgment (Doc. 19).


         Plaintiff applied for social security benefits on October 5, 2010. In the application, plaintiff claims that disability began on April 30, 2010. Plaintiff's claim was initially denied. Following denial of reconsideration, plaintiff requested an administrative hearing, which was held on July 9, 2012, before Administrative Law Judge (“ALJ”) Mark C. Ramsey. In an August 13, 2012, decision, the ALJ concluded that plaintiff is not disabled. The Appeals Council declined review on September 12, 2013, and plaintiff sought judicial review. See Nunez v. Colvin, E. Dist. Cal. No. 2:13-CV-2328-DAD.

         In a March 16, 2015, opinion, the District Court reversed and remanded for further proceedings. The court concluded that the ALJ failed to properly evaluate the January 7, 2011, opinion of Dr. Sid Cormier. As to the ALJ's discussion of Dr. Cormier, the court stated:

Based on his examination, Dr. Cormier opined, in part, that plaintiff's impairments would moderately impair her ability to maintain regular attendance and perform even simple work activities on a consistent basis. (Tr. at 223). Moreover, Dr. Cormier found that plaintiff's ability to complete a normal workday or workweek “without interruptions resulting from the ramifications of her mild mental retardation and apparently well-managed bipolar disorder and panic attacks, ” was “moderately to seriously impaired even for a simplistic job.” (Id.). Dr. Cormier also opined that plaintiff was moderately impaired with respect to her ability to: accept and remember instructions; to interact with coworkers and the general public; to concentrate; to maintain pace; and to adjust to routine changes in a work situation. (Id.). With respect to her ability to deal with typical work stresses, Dr. Cormier found that plaintiff was moderately to severely impaired. (Id.).
Nonetheless, the ALJ failed to assign any specific weight to Dr Cormier's opinion. Instead, the ALJ found that the limitations noted above were “not consistent with the evidence” and, therefore, Dr. Cormier's opinion with respect to those limitations was “not credited.” (Tr. at 19). In this regard, the ALJ found that Dr. Cormier's opinion was “inconsistent with the prior evaluation by Dr. Anita Kemp in April 2008.”

         In footnote 3, the court made the following observation:

It does not appear that Dr. Kemp's opinion is part of the administrative record before this court in connection with this action. An April 29, 2010, denial of plaintiff's prior claim is part of the administrative record and in that decision Dr. Kemp's opinion is discussed. Moreover, the parties here do cite to an April 29, 2010, ALJ decision when discussing Dr. Kemp's opinion. (Tr. at 60). However, it is unclear whether in drafting the August 13, 2012, opinion at issue in this action the ALJ had a copy of Dr. Kemp's actual medical opinion or merely had the prior April 29, 2010, ALJ decision in which Dr. Kemp's opinion was discussed. In either event, this court has not had the opportunity to review Dr. Kemp's opinion.

         Regarding the ALJ's analysis of Dr. Cormier's opinion, the court continued:

. . .The ALJ proceeded to discuss Dr. Kemp's opinion, which included findings that plaintiff's full scale IQ was 72 and that plaintiff could maintain regular attendance and perform simple, repetitive tasks, before ultimately affording Dr. Kemp's opinion “great weight.” (footnote omitted). (Id.).
However, Dr. Cormier's examination of plaintiff, and the medical opinion he rendered based upon that examination, was far more recent than that of Dr. Kemp's. Dr. Cormier examined plaintiff in January of 2011, nearly three years after Dr. Kemp's April 2008 opinion was issued. Indeed, Dr. Kemp's opinion was rendered over two year[s] prior to the application for disability at issue in this action, and two years prior to the time plaintiff alleges that she became disabled.
Moreover, the ALJ notes no significant conflict between examining psychologist Dr. Cormier's opinion and plaintiff's treatment records. Indeed, plaintiff's treatment records reveal that during the time period at issue in this action she frequently received treatment for bipolar, panic and schizoaffective disorders, experienced manic and depressed symptoms, including panic attacks, racing thoughts, difficulty concentrating and difficulty leaving home, and that her GAF ranged from 50 to 55. (footnote omitted). (Id.).
Under these circumstances, the court cannot find that the ALJ offered specific and legitimate reasons supported by substantial evidence in the record to support the rejection of examining psychologist Dr. Cormier's opinion. . . .

         The court also concluded that the ALJ had improperly applied the doctrine of res judicata in the August 13, 2012, decision. Specifically, the court held:

In light of the evidence provided by examining psychologist Dr. Cormier's opinion, plaintiff did present proof of changed circumstances sufficient to overcome the presumption, based on the earlier decision, that she was not disabled. See Schnieder v. Commissioner of the Social Sec. Admin., 223 F.3d 968, 974 (9th Cir. 2000) (a psychological report noting changed test scores and diagnosis was sufficient proof of changed circumstances).

         On remand, the matter was assigned to the same ALJ, and a second hearing was held on April 27, 2016. In a June 16, 2016, decision, the ALJ concluded that plaintiff is not disabled based on the following relevant findings:

1. The claimant has the following severe impairment(s): bipolar disorder, anxiety, attention deficit hyperactivity disorder, panic disorder with agoraphobia, borderline intellectual functioning, mood disorder, and schizoaffective disorder;
2. The claimant does not have an impairment or combination of impairments that meets or medically equals an impairment listed in the regulations;
3. The claimant has the following residual functional capacity: she can perform a full range of work at all exertional levels with the following non-exertional limitations: the claimant can perform simple unskilled work requiring no interactions with the public; she can occasionally interact with fellow employees; she can perform work that requires little or no change in routine work settings; and
4. Considering the claimant's age, education, work experience, residual functional capacity, and vocational expert testimony, plaintiff can perform her past relevant work as an automatic [film] developer.

         The ALJ's decision became final with the expiration of the time to seek review by the Appeals Council on August 15, 2016, and this second action for judicial review followed.


         The court reviews the Commissioner's final decision to determine whether it is: (1) based on proper legal standards; and (2) supported by substantial evidence in the record as a whole. See Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). “Substantial evidence” is more than a mere scintilla, but less than a preponderance. See Saelee v. Chater, 94 F.3d 520, 521 (9th Cir. 1996). It is “. . . such evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 402 (1971). The record as a whole, including both the evidence that supports and detracts from the Commissioner's conclusion, must be considered and weighed. See Howard v. Heckler, 782 F.2d 1484, 1487 (9th Cir. 1986); Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). The court may not affirm the Commissioner's decision simply by isolating a specific quantum of supporting evidence. See Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). If substantial evidence supports the administrative findings, or if there is conflicting evidence supporting a particular finding, the finding of the Commissioner is conclusive. See Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987). Therefore, where the evidence is susceptible to more than one rational interpretation, one of which supports the Commissioner's decision, the decision must be affirmed, see Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002), and may be set aside only if an improper legal standard was applied in weighing the evidence, see Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988).


         In her motion for summary judgment, plaintiff argues: (1) the ALJ erred in relying on a medical report not in the record at the time of the hearing; (2) the ALJ violated the doctrine of Law of the Case doctrine and the Rule of Mandate; and (3) the ALJ failed to state sufficient reasons for rejecting the opinions of Drs. Cormier, White, and Addonizio.

         A. Dr. Kemp's Report

         As the court observed in the earlier action for judicial review, Dr. Kemp's April 2008 report was not part of the prior administrative record and was not available for the court's review. Dr. Kemp's report is, however, part of the current administrative record, see CAR at Exhibit B21F.[1] Plaintiff argues: “Because the ALJ did not refer to Dr. Kemp's report during the administrative hearing, did not facially admit the report of Dr. Kemp into the record during the administrative hearing, the court cannot confidently conclude that Nunez had the opportunity to compare the opinions and report ...

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