Zaman Kabeer Shirazi v. Carolyn W. Colvin

Filing 26

MEMORANDUM OPINION AND ORDER OF REMAND by Magistrate Judge Alka Sagar. The decision of the Commissioner is REMANDED. (See Order for complete details) (afe)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA – WESTERN DIVISION

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) No. CV 16-08037-AS
)
) MEMORANDUM OPINION AND ORDER OF
)
) REMAND
)
)
)
)
)
)
)

ZAMAN KABEER SHIRAZI,

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Plaintiff,
v.

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NANCY A. BERRYHILL,1
Acting Commissioner of Social
Security,
Defendant.

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PROCEEDINGS

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On October 28, 2016, Zaman Kabeer Shirazi (“Plaintiff”) filed a

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Complaint seeking review of the Commissioner’s denial of Plaintiff’s

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application for Supplemental Security Income (“SSI”).

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No.

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Complaint and the Certified Administrative Record (“AR”).

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Entry Nos. 23-24).

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1).

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On

March

27,

2017,

Defendant

filed

an

(Docket Entry
Answer

to

the

(Docket

The parties have consented to proceed before a

Nancy A. Berryhill is now the Acting Commissioner of Social
Security and is substituted for Acting Commissioner Carolyn W.
Colvin in this case. See 42 U.S.C. § 205(g).
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United States Magistrate Judge.

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June 19, 2017, the parties filed a Joint Stipulation (“Joint Stip.”)

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setting forth their respective positions on Plaintiff’s sole claim.

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(Docket Entry No. 25).

(Docket Entry Nos. 17, 18).

On

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SUMMARY OF ADMINISTRATIVE DECISION

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On October 3, 2013, an application for SSI was filed on behalf

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of Plaintiff, a child under age 18,2 alleging disability beginning on

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June 19, 2013.

(AR 161-70).

On March 19, 2015, the ALJ examined

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the record and heard testimony from Plaintiff’s father.

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On April 16, 2015, the ALJ denied Plaintiff benefits in a written

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decision.

(AR 35-47).

(AR 11-27).

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The

ALJ

applied

the

three-step

sequential

evaluation

in

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determining whether Plaintiff, as an individual under the age of 18,

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was disabled.

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whether the Plaintiff has engaged in substantial gainful activity

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since the date of application; at step two the ALJ must determine

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whether Plaintiff had a medically determinable severe impairment or

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combination

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determine

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impairments

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Listing, or that functionally equals a Listing.

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416.924.

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engaged in substantial gainful activity after the alleged onset date

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2

of

(AR 12-16).

severe

whether
that

At step one the ALJ must determine

impairments;

Plaintiff

had

meets

medically

or

an

at

step

three

impairment
equals

or
the

the

ALJ

must

combination
severity

of

of
a

See 20 C.F.R. §

At step one, the ALJ determined that Plaintiff had not

Plaintiff was sixteen years old in October 2013 when the
application was filed and seventeen years old at the time the
decision was issued.
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of October 3, 2013.

(AR 14).

At step two, the ALJ found that

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Plaintiff

following

impairments:

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hyperactivity disorder, depression, spina bifida and was overweight.

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(AR

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impairments or combination of impairments did not meet, medically

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equal or functionally equal the severity of a Listed Impairment as

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found in 20 C.F.R. Part 404, Subpart P, Appendix 1.

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This determination was based on the ALJ’s finding that Plaintiff did

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not have a marked or extreme limitation in any of the applicable six

had

14).

At

the

step

three,

the

ALJ

attention

determined

that

deficit

Plaintiff’s

(AR 14-26).

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functional domains.

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(1) moderate or less than marked limitation in acquiring and using

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information;

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attending and completing tasks; (3) mild to moderate or less than

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marked limitation in interacting and relating with others; (4) no

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limitation in moving and manipulating objects; (5) mild or less than

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marked limitation in the ability to care for himself; and (6) mild

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or less than marked limitation in health and physical well-being.

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(AR 20-26).

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been disabled, as defined in the Social Security Act, since October

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3, 2013, the application date.

(2)

Specifically, the ALJ found that Plaintiff had

moderate

or

less

than

marked

limitation

in

Accordingly, the ALJ concluded that Plaintiff had not

(AR 27).

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The ALJ noted that Plaintiff had regularly been seeing his

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treating psychiatrist, Elsa Cruz, M.D., from June 2013 through 2015.

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(See AR 303-19, 322-28, 406-15, 453-58, 467-71, 525-533).

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initial

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Plaintiff had difficulty concentrating and poor focus and diagnosed

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him

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Hyperactivity Disorder (“ADHD”).

assessment

with

Major

dated

June

Depressive

25,

2013,

Disorder

Dr.

and

(AR 303-11).
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Cruz

During an
found

Attention

that

Deficit

In a letter dated

1

March

2

improvement with medications,” “his overall clinical presentation

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demonstrate[d]

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focus, and concentration,” (AR 533) and opined that Plaintiff had

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“marked and severe limitations in his ability to acquire and use

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information and in attending and completing tasks.”

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rejected this opinion finding it to be inconsistent with Dr. Cruz’s

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own treatment notes.3

11,

2015,

Dr.

Cruz

found

significant

that

problems

in

while

the

Plaintiff

area

of

had

“some

inattention,

(Id.).

The ALJ

(See AR 15-18).

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In determining the severity of Plaintiff’s limitations, the ALJ

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gave substantial weight to the opinion of Ashak Khushalani, M.D., an

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impartial medical expert.

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dated January 1, 2015, Dr. Khushalani found Plaintiff had (1) a

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severe limitation in the ability to do complex cognitive activity;

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(2) a mild limitation in responding appropriately to supervision and

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authority and in responding appropriately to others; and (3) no

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limitation

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carrying

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decisions, responding to usual situations and handling changes in

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routine

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Khushalani

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involving occasional contact with the general public[.]”

in
out

daily

(AR 18).

understanding
simple

activity

found

simple

In response to an interrogatory

instructions,

instructions,

settings.

Plaintiff

making

(AR

“capable

remembering

simple

516-24).
of

handling

age

related

Therefore,
simple

and

Dr.

tasks

(AR 18)

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On June 1, 2015, Plaintiff requested the Appeals Council to

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review the ALJ’s Decision.

The Appeals Council denied Plaintiff’s

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request on August 24, 2016.

(AR 1).

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“Because

The ALJ’s decision then became

of the inconsistencies noted between the most
recent opinion and the previous progress/treating notes from the
same medical source, I reject the opinion of Dr. Cruz.” (AR. 18).
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the

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review the Decision.

final

Decision

of

the

Commissioner,

allowing

this

Court

to

See 42 U.S.C. §§ 405(g), 1383(c).

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STANDARD OF REVIEW

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This court reviews the Administration’s decision to determine

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if it is free of legal error and supported by substantial evidence.

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See Brewes v. Comm’r of Soc. Sec. Admin., 682 F.3d 1157, 1161 (9th

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Cir. 2012).

“Substantial evidence” is more than a mere scintilla,

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but less than a preponderance.

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1009 (9th Cir. 2014).

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supports a finding, “a court must consider the record as a whole,

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weighing both evidence that supports and evidence that detracts from

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the [Commissioner’s] conclusion.”

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1033, 1035 (9th Cir. 2001).

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reasonably

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conclusion, [a court] may not substitute [its] judgment for that of

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the ALJ.”

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2006).

support

Garrison v. Colvin, 759 F.3d 995,

To determine whether substantial evidence

either

Aukland v. Massanari, 257 F.3d

As a result, “[i]f the evidence can
affirming

or

reversing

the

ALJ’s

Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir.

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PLAINTIFF’S CONTENTION

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Plaintiff asserts that the ALJ improperly rejected the opinion

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of the treating physician, Dr. Cruz.

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(See Joint Stip. at 4-9, 17).

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DISCUSSION

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After reviewing the record, the Court finds that the ALJ’s

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reason for rejecting the opinion of Dr. Cruz, Plaintiff’s treating

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physician, was not specific and legitimate.

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REMANDS this matter for further consideration.

Accordingly, the Court

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A.

The

ALJ’s

Reason

for

Rejecting

The

Opinion

Of

the

Treating

Physician, Dr. Cruz, Was Not Specific and Legitimate

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Plaintiff contends that the ALJ did not provide sufficiently

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specific and legitimate reasons to reject the opinion of Dr. Cruz

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for the following reasons: (1) substantial evidence did not support

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the ALJ’s conclusion that Dr. Cruz’s opinion conflicts with the

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evidence;

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(2)

the

ALJ

erroneously

considered

statements

in

the

treating notes suggestive of improvement when such statements did
not

indicate

that

Plaintiff

could

function

effectively;

(3)

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Plaintiff’s actual level of academic improvement was clouded by the
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academic accommodations Plaintiff was receiving, which the ALJ did
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not take into consideration; (4) the ALJ erred in finding that Dr.
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Cruz’s treatment notes reflected mild to moderate limitations in all
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areas of mental functioning when the cited records covered only
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daily functioning and academic functioning; and (5) the record as a
whole did not contain significant evidence which justified giving

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more weight to Dr. Khushalani than to Dr. Cruz.

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9).

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6

(Joint Stip. at 6-

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Defendant asserts that the ALJ properly rejected Dr. Cruz’s

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opinion for the following reasons: (1) her opinion conflicted with

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other

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opinion that suggested such severe limitations; (2) her opinion was

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medical

opinions

in

the

record

and

was

the

only

medical

unsupported by the record as a whole; and (3) her opinion was not
supported by her own treatment records.

(Joint Stip. at 10-15).4

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Social

Security

regulations

require

the

Agency

to

“evaluate

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every medical opinion we receive,” giving more weight to evidence
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from a claimant’s treating physician.

20 C.F.R. § 404.1527(c).

If

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the treating or examining physician’s opinions are not contradicted,
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they can only be rejected with clear and convincing reasons.

Lester

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v. Chater, 81 F.3d 821, 830 (9th Cir. 1995).

Where a treating or

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examining physician's opinion is contradicted by another doctor, an
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ALJ may only reject it by providing specific and legitimate reasons
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that are supported by substantial evidence.

Id. at 830-831.

While

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the opinion of a non-examining physician cannot by itself constitute
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substantial

evidence

that

justifies

rejecting

the

opinion

of

a

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treating physician, id. at 831, it may serve as substantial evidence
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when it is consistent with “independent clinical findings or other
evidence in the record.”

Thomas v. Barnhart, 278 F.3d 947, 957 (9th

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Although Defendant asserts multiple reasons the ALJ’s
rejection of Dr. Cruz’s opinion (see Joint Stip. at 10-15), the only
reason that the ALJ provided for rejecting Dr. Cruz’s opinion was
the “inconsistencies” between Dr. Cruz’s treatment notes and her
opinion. Therefore, in determining whether the ALJ erred in failing
to provide a specific and legitimate reason for rejecting the
opinion of Dr. Cruz, the Court will only consider the ALJ’s stated
basis for rejecting Dr. Cruz’s opinion.
See Stout v. Comm’r Soc.
Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006) (citing Pinto v.
Massanari, 249 F.3d 840, 847 (9th Cir. 2001)); Trevizo v. Berryhill,
No. 15-16277, 2017 WL 2925434, at *6, *n.4 (9th Cir. July 10, 2017).
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Cir. 2002).

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by “setting out a detailed and thorough summary of the facts and

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conflicting evidence, stating his interpretation thereof and making

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findings.”

An ALJ satisfies the “substantial evidence” requirement

Garrison, 759 F.3d at 1012 (citations omitted).

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Since Dr. Cruz’s opinion was contradicted by the opinion of Dr.

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Khushalani, the ALJ was required to provide specific and legitimate

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reasons to reject Dr. Cruz’s opinion.

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F.3d 1154, 1161 (9th Cir. 2014).

See Ghanim v. Colvin, 763

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The ALJ erred in rejecting Dr. Cruz’s opinion on the grounds

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that it was inconsistent with her own treatment notes.

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below, the treatment notes cited by the ALJ (see AR 16-18, citing AR

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303-19, 322-28, 406-15, 453-58, 467-71, 525-533) did not contradict

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As set forth

Dr. Cruz’s opinion that Plaintiff had marked and severe limitations
in the ability to acquire and use information and in attending and

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completing tasks.

Dr. Cruz’s initial assessment of Plaintiff on

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June 25, 2013 was that Plaintiff had difficulty concentrating and
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focusing, did not understand the questions posed to him, and was
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receiving school counseling for his academic impairments.

(AR 303-

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11).

A treatment note from July 22, 2013 concluded that Plaintiff

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had difficulty concentrating, was hyperactive, highly distractible
and anxious.
that

(AR 312-13).
Plaintiff

A September 10, 2013 treatment note

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found

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fidgety, anxious, depressed and that his symptoms mild to moderately

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interfered

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treatment

with
note

his
from

appeared

daily

disinterested,

social

November

6,
8

poorly

functioning.
2013

noted

that

(AR

focused,

319).

A

Plaintiff

was

1

anxious, fidgety, giggling and could not focus or concentrate.

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324-28).

A

3

Plaintiff

had

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better, and that he was fidgety, anxious and needed encouragement to

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treatment

note

from

reported

that

his

talk about his symptoms.
2014

noted

that

December
grades

(AR 468).

Plaintiff

acted

interest and low motivation.

3,

in

2013

school

(AR

stated
were

that

getting

A treatment note from April 1,
silly,

giggled

(AR 408-09).

often,

had

low

A treatment note from

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April

22,

2014

described

Plaintiff

as

poorly

focused,

easily

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distracted, and giggling with rapid and pressured speech.

(AR 410-

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11).

A treatment note from October 30, 2014 stated that Plaintiff

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was more interested in academics, was focusing poorly with poor
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concentration and was fidgety.

(AR 529-30).

A treatment note from

December 1, 2014 found that Plaintiff was noticeably less giggly,

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less

anxious,

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symptoms

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functioning.

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note showed that Plaintiff’s grades were improving, he had fair eye

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contact, was fidgety and restless, had poor focus and concentration

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and a good response to medication.

mild

had

poor

focus

to

moderately

(AR 527-28).

and

attention

interfered

with

and
his

that

his

daily

ADHD

social

Finally, a January 1, 2015 treatment

(AR 525-26).

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These treatment notes did not reflect Plaintiff’s ability to
acquire and use information and attend and complete tasks.
the

ALJ

provided

an

extensive

history

of

Although

Plaintiff’s

medical

records, the ALJ failed to specify in what respect Dr. Cruz’s notes
were

inconsistent

with

her

opinion

about

Plaintiff’s

ability

to

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acquire and use information and attend and complete tasks.

Thus,

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the ALJ failed to set out “a detailed and thorough summary of the
9

1

facts and conflicting clinical evidence, stating his interpretation

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thereof, and making findings.”

3

751 (9th Cir. 1989) (quoting Cotton v. Bowen, 799 F.2d 1403, 1408

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(9th Cir. 1986)).

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Magallanes v. Bowen, 881 F.2d 747,

See Reddick v. Chater, 157 F.3d 715, 725 (9th

Cir. 1998) (“The ALJ must do more than offer his conclusions. He
must set forth his own interpretations and explain why they, rather
than the doctor’s, are correct”) (quoting Embrey v. Bowen, 849 F.2d

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418, 421-22 (9th Cir. 1988)).

Therefore, the ALJ erred in failing

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to

provide

a

specific

and

legitimate

reason

for

rejecting

the

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opinion of Dr. Cruz.
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To the extent that the ALJ relied on treatment notes reflecting

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occasional

periods

of

improvement

and

positive

response

to

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medication (see AR 16-17, citing AR 321-29, 525-531), these must be

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“read in context of the overall diagnostic picture” the treating

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physician describes.

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Cir.

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improvement

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revealed that Plaintiff had difficulties concentrating, focusing and

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maintaining attention.

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notes that consistently reflected recurring symptoms did not support

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the

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2001).

ALJ’s

Holohan v. Massanari, 246 F.3d 1195, 1205 (9th

Although
in

those

Plaintiff’s

conclusion

treatment

condition,

notes
they

indicated

also

some

consistently

See Ghanim, 763 F.3d at 1161 (treatment

that

the

treating

physician’s

opinion

was

inconsistent with treatment notes); Trevizo, 2017 WL 2925434, at *8
(the

ALJ’s

rejection

inconsistencies

between

of

treating

treatment

physician’s

notes

and

opinion

opinion
was

for

not

a

27

specific

and

legitimate

reason

28

inconsistencies was proffered).
10

where

no

interpretation

of

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B.

The Court Cannot Conclude That The ALJ’s Error Was Harmless

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3

“[H]armless error principles apply in the Social Security . . .

4

context.”

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(citing Stout, 454 F.3d at 1054).

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harmless where it is “inconsequential to the ultimate nondisability

7

determination.”

Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012)
Generally, an ALJ’s error is

Stout, 454 F.3d at 1055.

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The Court cannot conclude that the ALJ’s error was harmless.

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The ALJ’s rejection of Dr. Cruz’s opinion was integral to the ALJ’s

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determination that Plaintiff did not functionally equal a Listed

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Impairment.

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was “inconsequential to the ultimate nondisability determination,”

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the error cannot be deemed harmless.

Because the Court cannot determine that the ALJ’s error

See id.

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C.

Remand Is Warranted

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The decision whether to remand for further proceedings or order

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an

immediate

award

of

benefits

Harman

v.

Apfel,

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discretion.

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2000).

22

administrative

23

developed, it is appropriate to exercise this discretion to direct

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an immediate award of benefits.

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whether to remand for further proceedings turns upon the likely

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utility of such proceedings.”).

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the case suggest that further administrative review could remedy the

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Commissioner’s errors, remand is appropriate.

Where

no

useful

proceedings,

is

211

purpose
or

within
F.3d

the

1172,

would

where

the

be

district
1175-78

served

record

has

court’s

(9th
by

Cir.

further

been

fully

Id. at 1179 (“[T]he decision of

However, where the circumstances of

11

McLeod v. Astrue, 640

1

F.3d 881, 888 (9th Cir. 2011); Harman, 211 F.3d at 1179-81.

2
3

Here, the Court remands because the ALJ failed to support his

4

stated reason for rejecting Dr. Cruz opinion – that the opinion was

5

inconsistent

6

record.

7

ALJ was required to Dr. Cruz’s opinion, nor does it establish that

8

the ALJ would necessarily be required to find Plaintiff disabled if

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these deficiencies were remedied.

with

the

treatment

notes

–

with

citations

to

the

The record does not affirmatively establish what weight the

Remand is therefore appropriate.

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11

CONCLUSION

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13
14

For the foregoing reasons, the decision of the Commissioner is
REMANDED.

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LET JUDGMENT BE ENTERED ACCORDINGLY.

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Dated: August 1, 2017.

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_____________/s/______________
ALKA SAGAR
UNITED STATES MAGISTRATE JUDGE

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