United States District Court, E.D. California
ATHENA M. NUNEZ, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
MEMORANDUM OPINION AND ORDER
M. KELLISON, UNITED STATES MAGISTRATE JUDGE.
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).
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.
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.”
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.
the ALJ's analysis of Dr. Cormier's opinion, the
. . .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
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).
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. . . .
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).
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
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
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.
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.
STANDARD OF REVIEW
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).
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.
Dr. Kemp's Report
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. 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 ...