Marcelino Zepeda Castillo v. Nancy A. Berryhill

Filing 20

MEMORANDUM DECISION AND ORDER by Magistrate Judge Suzanne H. Segal. IT IS ORDERED that Judgment be entered REVERSING the decision of the Commissioner and REMANDING this matter for further proceedings consistent with this decision. (See document for further details). (mr)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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MARCELINO ZEPEDA CASTILLO,

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Case No. EDCV 17-0236 SS

Plaintiff,

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v.

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MEMORANDUM DECISION AND ORDER

NANCY A. BERRYHIL,1
Acting
Commissioner
of
the
Social Security Administration,

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Defendant.

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I.

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INTRODUCTION

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Marcelino Zepeda Castillo (“Plaintiff”) brings this action

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seeking to overturn the decision of the Commissioner of the Social

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Security

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application for Disability Insurance Benefits (“DIB”). The parties

Administration

(the

“Commissioner”)

denying

his

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Nancy A. Berryhill is now the Acting Commissioner of Social
Security and is substituted for former Acting Commissioner Carolyn
W. Colvin in this case. See Fed. R. Civ. P. 25(d).
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have consented to the jurisdiction of the undersigned United States

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Magistrate Judge pursuant to 28 U.S.C. § 636(c).

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stated below, the decision of the Commissioner is REVERSED and

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REMANDED for further proceedings.

For the reasons

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6

II.

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PROCEDURAL HISTORY

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On January 9, 2013, Plaintiff filed an application for DIB

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claiming

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(Administrative Record (“AR”) 222-23). Plaintiff’s DIB application

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was denied both initially on May 31, 2013 and upon reconsideration

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on October 25, 2013. (AR 120-25, 127-32). Plaintiff then requested

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a hearing which was held before Administrative Law Judge (“ALJ”)

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Dana E. McDonald on January 23, 2015.

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held a second hearing on August 20, 2015. (AR 39-73). On September

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22, 2015, ALJ McDonald issued an unfavorable decision, finding

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Plaintiff

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limitations.

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review of the ALJ’s decision before the Appeals Council.

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18).

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request for review and the ALJ’s decision became the final decision

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of the Commissioner.

his

able

disability

to

perform

(AR 19-38).

began

light

on

December

(AR 74-88).

work

with

22,

2010.

ALJ McDonald

some

additional

On October 29, 2015, Plaintiff requested
(AR 17-

On December 12, 2016, the Appeals Council denied Plaintiff’s

(AR 1-7).

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IV.

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THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS

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4

To

qualify

for

disability

benefits,

a

claimant

must

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demonstrate a medically determinable physical or mental impairment

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that prevents him from engaging in substantial gainful activity2

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and that is expected to result in death or to last for a continuous

8

period of at least twelve months.

Reddick v. Chater, 157 F.3d 715,

9

721

U.S.C.

(9th

Cir.

1998)(citing

42

§

423(d)(1)(A)).

The

10

impairment must render the claimant incapable of performing the

11

work he previously performed and incapable of performing any other

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substantial gainful employment that exists in the national economy.

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Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999)(citing 42

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U.S.C. § 423(d)(2)(A)).

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16

To decide if a claimant is entitled to benefits, an ALJ

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conducts a five-step inquiry.

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steps are:

20 C.F.R. §§ 404.1520, 416.920.

The

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20

(1)

Is the claimant presently engaged in substantial gainful

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activity? If so, the claimant is found not disabled.

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not, proceed to step two.

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(2)

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Is the claimant’s impairment severe?
is found not disabled.

If

If not, the claimant

If so, proceed to step three.

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Substantial gainful activity means work that involves doing
significant and productive physical or mental duties and is done
for pay or profit. 20 C.F.R. §§ 404.1510, 416.910.
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3

1

(3)

Does the claimant’s impairment meet or equal one of a list

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of specific impairments described in 20 C.F.R. Part 404,

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Subpart P, Appendix 1?

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disabled.

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(4)

If so, the claimant is found

If not, proceed to step four.

Is the claimant capable of performing his past work?

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so, the claimant is found not disabled.

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If

step five.

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(5)

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Is the claimant able to do any other work?
claimant is found disabled.

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If not, proceed to

If not, the

If so, the claimant is found

not disabled.

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Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari,

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262 F.3d 949, 953-54 (9th Cir. 2001)(citing Tackett); 20 C.F.R. §§

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404.1520(b) – 404.1520(f)(1) & 416.920(b) – 416.920(f)(1).

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The claimant has the burden of proof at steps one through

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four, and the Commissioner has the burden of proof at step five.

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Bustamante, 262 F.3d at 953-54 (citing Tackett).

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the ALJ has an affirmative duty to assist the claimant in developing

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the record at every step of the inquiry.

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four, the claimant meets his burden of establishing an inability

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to perform past work, the Commissioner must show that the claimant

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can perform some other work that exists in “significant numbers”

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in

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residual functional capacity,3 age, education, and work experience.

the

national

economy,

taking

into

Additionally,

Id. at 954.

account

the

If, at step

claimant’s

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Residual functional capacity is “what [one] can still do despite
[his] limitations” and represents an “assessment based upon all of
the relevant evidence.” 20 C.F.R. §§ 404.1545(a), 416.945(a).
3

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Tackett, 180 F.3d at 1098, 1100; Reddick, 157 F.3d at 721; 20

2

C.F.R. §§ 404.1520(f)(1), 416.920(f)(1).

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so by the testimony of a vocational expert or by reference to the

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Medical-Vocational Guidelines appearing in 20 C.F.R. Part 404,

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Subpart P, Appendix 2 (commonly known as “the Grids”).

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v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001)(citing Tackett).

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When

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nonexertional limitations, the Grids are inapplicable and the ALJ

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must take the testimony of a vocational expert.

a

claimant

has

both

The Commissioner may do

exertional

Osenbrock

(strength-related)

and

Moore v. Apfel,

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216 F.3d 864, 869 (9th Cir. 2000)(citing Burkhart v. Bowen, 856

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F.2d 1335, 1340 (9th Cir. 1988)).

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V.

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THE ALJ’S DECISION

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The ALJ used the above five-step process and found Plaintiff

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was not disabled. (AR 15-28). At step one, the ALJ found Plaintiff

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had not engaged in substantial gainful activity from the alleged

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disability onset date.

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Plaintiff

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disease

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decompression; scoliosis; and obesity.”

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the ALJ found Plaintiff’s impairments did not meet or medically

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equal in whole or in part any of the specific impairments as

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required under this step of the process.

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determined Plaintiff’s residual functional capacity for use in

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steps four and five.

had
of

multiple

the

lumbar

(AR 24).
severe

impairments:

spine,

(AR 20).

At step two, the ALJ found

status

“degenerative

post

laminectomy

(AR 24).

(AR 26).

disc
and

At step three,

Next, the ALJ

The ALJ found Plaintiff’s residual

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5

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functional capacity allows him to perform light work with certain

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exceptions:

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“[H]e requires a sit/stand option at will
throughout an eight-hour workday. He can only
frequently climb ramps and stairs, balance,
kneel, crouch, and crawl. He can occasionally
stoop and climb ladders, ropes and scaffolds. He
must avoid concentrated exposure to extreme cold,
vibration and hazards.” (AR 27).

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In reaching this residual functional capacity, the ALJ gave

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no weight to the opinion of Plaintiff’s treating doctor, Dr. Mario
Luna.

(AR 31).

Based on this residual functional capacity, at

step four the ALJ found Plaintiff is unable to perform his past
relevant work.

(AR 31).

Finally, at step five, the ALJ found

there are other jobs in the national economy in significant numbers
that Plaintiff can perform. (AR 32). Thus, the ALJ found Plaintiff
was not disabled under the Social Security Act from the alleged
onset date through the date of the decision.

(AR 33).

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VI.

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STANDARD OF REVIEW

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Under 42 U.S.C. § 405(g), a district court may review the
Commissioner’s decision to deny benefits.

The court may set aside

the Commissioner’s decision when the ALJ’s findings are based on
legal error or are not supported by substantial evidence in the
record as a whole.

Garrison v. Colvin, 759 F.3d 995 (9th Cir.

2014)(citing Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1052
(9th Cir. 2006); Auckland v. Massanari, 257 F.3d 1033, 1035 (9th

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1

Cir. 2001)(citing Tackett, 180 F.3d at 1097); Smolen v. Chater, 80

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F.3d 1273, 1279 (9th Cir. 1996)(citing Fair v. Bowen, 885 F.2d 597,

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601 (9th Cir. 1989)).

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“Substantial evidence is more than a scintilla, but less than

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a preponderance.”

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Chater, 112 F.3d 1064, 1066 (9th Cir. 1997)).

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evidence which a reasonable person might accept as adequate to

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support a conclusion.”

Reddick, 157 F.3d at 720 (citing Jamerson v.
It is “relevant

Id. (citing Jamerson, 112 F.3d at 1066;

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Smolen,

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evidence supports a finding, the court must “‘consider the record

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as a whole, weighing both evidence that supports and evidence that

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detracts from the [Commissioner’s] conclusion.’” Auckland, 257 F.3d

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at 1035 (citing Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)).

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If

16

reversing

17

judgment for that of the Commissioner.

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21 (citing Flaten v. Sec’y, 44 F.3d 1453, 1457 (9th Cir. 1995)).

the

80

F.3d

at

evidence
that

can

1279).

To

reasonably

conclusion,

the

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26
27
28
7

determine

support
court

may

whether

either
not

substantial

affirming
substitute

or
its

Reddick, 157 F.3d at 720-

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VII.

2

DISCUSSION

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Plaintiff contends that the ALJ erred for two reasons.

First,

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Plaintiff argues the ALJ failed to properly weigh the opinion of

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his treating physician, Dr. Mario Luna.

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the ALJ did not properly assess Plaintiff’s credibility.

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reasons discussed below, the Court finds that the ALJ’s decision

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should

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be

REVERSED

and

this

action

Second, Plaintiff argues

REMANDED

for

For the

further

proceedings.

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A.

The ALJ Failed To Provide Specific And Legitimate Reasons To
Reject Plaintiff’s Treating Doctor’s Opinion

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“The medical opinion of a claimant’s treating physician is

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given “controlling weight” so long as it “is well-supported by

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medically acceptable clinical and laboratory diagnostic techniques

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and is not inconsistent with the other substantial evidence in [the

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claimant’s] case record.”

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(9th Cir. 2017) (citing 20 C.F.R. § 404.1527(c)(2)).

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required to give weight to the treating physician’s subjective

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judgments,

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interpretation of test results.”

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832-33 (9th Cir. 1995) (citing Embrey v. Bowen, 849 F.2d 418, 421

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(9th Cir. 1988)).

not

just

the

Trevizo v. Berryhill, 871 F.3d 664, 675

physician’s

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8

“clinical

The ALJ is

findings

and

Lester v. Chater, 81 F.3d 821,

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If the treating doctor’s opinion is not contradicted, the ALJ

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must give “clear and convincing” reasons supported by substantial

3

evidence in the record to reject it. Lester, 81 F.3d at 830 (citing

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Baxter v. Sullivan, 923 F.2d 1391, 1396 (9th Cir. 1991)).

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treating doctor’s opinion is contradicted by the opinion of another

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doctor, the ALJ can only reject the treating doctor’s opinion by

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providing “specific and legitimate reasons supported by substantial

8

evidence in the record for so doing.”

If the

Lester, 81 F.3d at 830.

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10

“Where the opinion of the claimant’s treating physician is

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contradicted, and the opinion of a nontreating source is based on

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independent

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treating physician, the opinion of the nontreating source may

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itself be substantial evidence."

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1041 (9th Cir. 1995).

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opinions, the ALJ must decide how to resolve them based on how

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credible they are.

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(9th Cir. 2008)(citing Andrews, 53 F.3d at 1039-40); Batson v.

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Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004)

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(citing Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992)).

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More weight is generally given “to the medical opinion of a

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specialist about medical issues related to his or her area of

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specialty than to the medical opinion of a source who is not a

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specialist.”

clinical

findings

that

differ

from

those

of

the

Andrews v. Shalala, 53 F.3d 1035,

If there are conflicts between the medical

Tommasetti v. Astrue, 533 F.3d 1035, 1041-42

20 C.F.R. § 404.1527(c)(5).

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26

Here, the ALJ failed to give the proper weight to Dr. Mario

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Luna’s opinions as Plaintiff’s treating physician. (AR 31).

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ALJ mistakenly concluded that Dr. Luna examined Plaintiff only
9

The

1

once, when in fact Dr. Luna had examined Plaintiff many times and

2

performed Plaintiff’s 2013 back surgery.

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asserted that Dr. Luna had not reviewed Plaintiff’s medical file

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and

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consistent with Plaintiff’s medical history.

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reasons are undermined by the record.

that

his

opinion

regarding

(AR 31).

Plaintiff’s

The ALJ also

abilities
(AR 31).

was

not

These

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8
9

The ALJ overlooked the evidence establishing that Dr. Luna
was Plaintiff’s treating physician.

It appears that Dr. Luna left

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the practice he was in when he performed Plaintiff’s 2013 surgery

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and started his own practice, which may have confused the ALJ in

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her review of the record.

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Plaintiff’s decompression surgery and treated Plaintiff before and

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after the surgery.

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reflects Dr. Luna treated Plaintiff from September 2012 through

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November 2013 and from February 2015 through January 2016 (AR 746-

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761).

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from September 2012 through November 2013, but does not acknowledge

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the subsequent treatment.

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writing in the Spinal Impairment Questionnaire that February 24,

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2015 was the “Date of first treatment”, but this statement was

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obviously a mistaken entry, overlooking the prior treatment from

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2012 to 2013.

(See AR 424, 746).

(AR 419-22).

Dr. Luna performed

Plaintiff’s medical record

In her brief, Defendant concedes Dr. Luna treated Plaintiff

Dr. Luna may have confused matters by

(AR 721).

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25

Defendant

argues

that

Dr.

Luna

is

still

not

a

treating

26

physician because Plaintiff had not been treated by him in thirteen

27

months.

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demonstrates that this argument lacks merit.

A

careful

reading

of

10

20

C.F.R.

§

404.1527(a)(2)

“Treating source

1

means your own acceptable medical source who provides you, or has

2

provided you, with medical treatment or evaluation and who has, or

3

has had, an ongoing treatment relationship with you.”

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404.1527(a)(2).

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treating

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involvement in Plaintiff’s surgery, and the frequency of the visits

7

all support a finding that Dr. Luna was Plaintiff’s treating

8

physician.

20 C.F.R. §

Under this definition, Dr. Luna is Plaintiff’s

physician,

as

the

length

of

the

relationship,

the

See Travizo, supra.

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10

The ALJ weighed other medical opinion evidence in Plaintiff’s

11

disability determination.

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specialists.

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orthopedic specialist, examined Plaintiff only once. (AR 732-37).

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Prior to the examination, Dr. Bernabe reviewed three documents: an

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operative note dated July 1, 2013, a medical progress note dated

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September 26, 2014, and an X-ray report of the sacrum dated November

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24, 2014.

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Plaintiff’s back impairments appears to be in his lumbar spine,

19

not his sacrum.

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Plaintiff.

21

comprehensive.

22

Bernabe’s opinion.

Dr.

Two of the doctors were also orthopedic

Bernabe,

(AR 732).

the

consultative

examiner

and

an

It is worth noting that the focus of

Dr. Bernabe did not take any X-rays or MRIs of

(AR 736).
The

His one-time examination is thus not very
ALJ

correctly

gave

little

weight

to

Dr.

(AR 31).

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24

Dr. Schmitter, an orthopedic surgeon and the medical expert,

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also offered an opinion for consideration.

26

before the ALJ, Dr. Schmitter testified he found Dr. Bernabe’s

27

conclusions regarding Plaintiff’s residual functional capacity to

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be more credible than Dr. Luna’s. As the Court noted, Dr. Bernabe’s
11

During the hearing

1

opinions were problematic and therefore Dr. Schmitter’s reliance

2

on those opinions is similarly problematic.

3

addition,

4

correctly gave little weight to Dr. Schmitter’s opinion.

Dr.

Schmitter

did

not

examine

(AR 48, 57).

Plaintiff.

The

In
ALJ

(AR 31).

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6

The ALJ gave the most weight to the opinion of the State

7

agency doctor at the reconsideration level.

8

agency

9

Plaintiff’s limitations on October 24, 2013.

doctor,

Dr.

Bitonte,

provided

an

(AR 31).

This State

opinion

regarding

(AR 102-16).

This

10

was three months after Plaintiff’s surgery, but failed to take into

11

account other records with greater detail about Plaintiff’s pain

12

levels.

13

reasons, and the reasons stated below, it was error for the ALJ to

14

give greater weight to the state agency’s opinion over Dr. Luna’s

15

opinion on this record.

This doctor also never examined Plaintiff.

For these

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17

The

ALJ

found

Dr.

Luna’s

medical

opinion

concerning

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Plaintiff’s level of pain was inconsistent with the medical file.

19

(AR 31).

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cited to isolated pages in the record to support this finding.

21

31).

22

a full picture of Plaintiff’s pain history.

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cited list Plaintiff reporting on January 16, March 28 and April

24

29 of 2014 the pain being better managed with medication.

25

49, 52).

26

on May 23, 2014, Plaintiff also reported he had severe, burning

27

pain radiating down his right leg.

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opinion appears to be consistent over both periods of time he

This finding is not supported by the record.

The ALJ
(AR

These page references appear to be very selective rather than
Three of the pages

(AR 641,

However, a medical record omitted by the ALJ shows that

12

(AR 655).

Dr. Luna’s medical

1

treated Plaintiff.

2

for this case, one in February of 2015 and one in January of 2016,

3

Dr. Luna provided two medical opinion forms

and these opinions are consistent with Dr. Luna’s records.

4

721-26, 761).

5

reasons to reject the treating physician’s opinion.

6

(AR

remand is required.

The ALJ failed to provide specific and legitimate
Accordingly,

7
8

B.

9

The ALJ Failed To Provide Clear And Convincing Reasons To
Reject Plaintiff’s Testimony As Not Credible

10
11

The ALJ follows a two-step process to determine Plaintiff’s

12

credibility regarding subjective pain.

13

F.3d 995, 1014 (9th Cir. 2014).

14

the Plaintiff provided objective medical evidence that could cause

15

the alleged pain.

16

testimony unless there are clear and convincing reasons to reject

17

it.

18

claimant’s

19

credibility evaluation, such as the claimant’s reputation for

20

lying, prior inconsistent statements concerning the symptoms, and

21

other testimony by the claimant that appears less than candid; (2)

22

unexplained or inadequately explained failure to seek treatment or

23

to follow a prescribed course of treatment; and (3) the claimant’s

24

daily activities.

25

Cir.

26

credibility if they are inconsistent with the alleged limitations,

27

but “disability claimants should not be penalized for attempting

28

to lead normal lives in the face of their limitations.”

Id.

2008).

Id.

Garrison v. Colvin, 759

First, the ALJ must find whether

Second, the ALJ must accept the Plaintiff’s

“The ALJ may consider many factors in weighing a
credibility,

including

(1)

ordinary

techniques

of

Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th

Activities

are

only

13

relevant

to

a

finding

of

Reddick

1

v. Chater, 157 F. 3d 715, 722 (9th Cir. 1998).

2

“treatment

3

diagnostic record.”

4

Cir. 2014).

records

must

be

viewed

in

light

Additionally,

of

the

overall

Ghanim v. Colvin, 763 F.3d 1154, 1164 (9th

5
6

Here, the ALJ found Plaintiff’s “allegations concerning the

7

intensity, persistence and limiting effects of his symptoms are

8

less than fully credible.”

9

pain improved with treatment. (AR 28). While this may be partially

10

true, as discussed earlier, this finding does not appear to take

11

the whole record into account, including Dr. Luna’s findings as

12

the treating physician.

(AR 28).

The ALJ found Plaintiff’s

13
14

The

ALJ

also

found

Plaintiff’s

receipt

of

unemployment

15

benefits was inconsistent with his claim for disability.

16

While this evidence may weigh against Plaintiff’s credibility, it

17

is not dispositive on its own.

18

Memorandum from the Chief Administrative Law Judge Frank Cristaudo,

19

included

20

Cristaudo’s

21

unemployment

22

However, because of the lengthy disability determination process,

23

individuals

24

unemployment

25

application.

26

for and receipt of unemployment benefits may be helpful.

27

generally Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795

28

(1999)(finding legal claims under the Social Security Act and

as

an

exhibit

memorandum

apply

benefits

Defendant fails to address the

Plaintiff’s

states

compensation

may

to

in

for
does

(AR 28).

ALJs
their

both.
not

memorandum.

must

consider

credibility

The

defeat

mere
a

Judge

receipt

of

determination.

application

disability

for

benefits

More information regarding Plaintiff’s application

14

See

1

Americans with Disabilities Act can coexist).

2

ALJ intends to rely on the unemployment benefits application to

3

reject Plaintiff’s credibility, the ALJ must fully develop the

4

record on this issue.

Accordingly, if the

5
6

The

ALJ

also

found

Plaintiff’s

travel

to

7

inconsistent with his alleged physical limitations.

8

travel

9

inconsistent with a claim of disability.

to

a

foreign

country,

however,

is

Mexico

was

(AR 28).

Mere

not

necessarily

Plaintiff’s mode of

10

travel and activities while traveling (except that he apparently

11

closed escrow on property) are not contained in the record.

12

649).

13

travel to Mexico is not a clear and convincing reason to reject

14

Plaintiff’s subjective pain testimony.

15

782 F.2d 1484 (9th Cir. 1986)(showing Plaintiff travelled around

16

North America in a motor home but made frequent stops to do

17

exercises and was still found disabled), with Tommasetti v. Astrue,

18

533

19

Venezuela

20

inference that he was not as physically limited as he claimed).

21

Without more information regarding Plaintiff’s travel, it is not

22

clear how his credibility as to the limiting effects

23

impairments is affected.

(AR

Without knowing more details about this trip, Plaintiff’s

F.3d

1035
to

(9th

care

Cir.

for

an

Compare Howard v. Heckler,

2008)(stating
ailing

24
25
26
27
28
15

sister

Plaintiff’s
allowed

a

travel

to

reasonable

of his

1

VIII.

2

CONCLUSION

3
4

Consistent with the foregoing, IT IS ORDERED that Judgment be

5

entered REVERSING the decision of the Commissioner and REMANDING

6

this matter for further proceedings consistent with this decision.

7

IT IS FURTHER ORDERED that the Clerk of the Court serve copies of

8

this Order and the Judgment on counsel for both parties.

9
10

DATED:

November 22, 2017

11

/S/

12

SUZANNE H. SEGAL
UNITED STATES MAGISTRATE JUDGE

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14
15

THIS DECISION IS NOT INTENDED FOR PUBLICATION IN LEXIS/NEXIS,
WESTLAW OR ANY OTHER LEGAL DATABASE.

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19
20
21
22
23
24
25
26
27
28
16