Harris v. Colvin

Filing 20

ORDER DIRECTING Entry of Judgment in Favor of Plaintiff, Stan P. Harris, and Against Nancy A. Berryhill, Acting Commissioner of Social Security signed by Magistrate Judge Gary S. Austin on 8/15/2017. CASE CLOSED. (Sant Agata, S)

1
2
3
4
5
6
7
8
9

UNITED STATES DISTRICT COURT

10

EASTERN DISTRICT OF CALIFORNIA

11
12

STAN P. HARRIS,
Plaintiff,

13
v.

14
15

1:16-cv-0384-GSA

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

16
Defendant.

ORDER DIRECTING ENTRY OF
JUDGMENT IN FAVOR OF PLAINTIFF,
STAN P. HARRIS, AND AGAINST NANCY
A. BERRYHILL. ACTING
COMMISSIONER OF SOCIAL SECURITY

17
18
19
20

I.

21
22
23
24
25

INTRODUCTION
Plaintiff Stan Harris (“Plaintiff”) seeks judicial review of the final decision of the

Commissioner of Social Security (“Commissioner” or “Defendant”) denying his application for
Supplemental Security Income (“SSI”) pursuant to Title XVI of the Social Security Act. (Doc.
16). The Commissioner filed an Opposition and a Cross-Motion for Summary Judgment.
(Doc.17). Plaintiff filed a reply. (Doc. 18). The matter is currently before the Court on the parties’

26
27
28

1

Pursuant to Fed. R. Civ. Pro. 25(d), Nancy A. Berryhill shall be substituted in for Carolyn W. Colvin, as Nancy A.
Berryhill is now the acting Commissioner of Social Security.

1

1

briefs which were submitted without oral argument to the Honorable Gary S. Austin, United

2

States Magistrate Judge.2 After reviewing the administrative record and the pleadings, the Court

3

finds the ALJ did not apply the correct legal standards, and that the decision is not supported by

4

substantial evidence. Plaintiff’s appeal is GRANTED in part, and Defendant’s Cross-Motion for

5

Summary Judgment (Doc. 17) is DENIED.

6

pursuant to sentence four of 42 U.S.C. § 405(g).

7

II.

BACKGROUND AND PRIOR PROCEEDINGS3
Plaintiff most recently filed an application for SSI on May 1, 2012, alleging a disability

8
9

The case is remanded for further proceedings

beginning September 14, 2004.4 AR 20; 313-321; 369. His application was denied initially on

10

August 9, 2012, and on reconsideration on March 22, 2013. AR 20; 248-253. Plaintiff requested

11

a hearing before an administrative law judge (“ALJ”). AR 254-257. ALJ John Cusker conducted

12

a hearing on May 30, 2014 (AR 36-69), and published an unfavorable decision on July 14, 2014.

13

AR 17-30. Plaintiff filed an appeal and the Appeals Council denied the request for review on

14

January 19, 2016, rendering the order the final decision of the Commissioner. AR 1-8; 42 U.S.C.

15

§§ 405(g); 1383(c).

16 III.

ISSUES FOR JUDICIAL REVIEW

17

Plaintiff alleges that the ALJ improperly found he was not eligible for benefits.

18

Specifically, Plaintiff argues that: (1) the ALJ did not properly address his advanced age which

19

was approaching 55 at the time the decision was issued, and therefore improperly applied the

20

Medical-Vocational Guidelines (“the Grids”) when evaluating his case; (2) the ALJ did not give

21

specific and legitimate reasons for rejecting the opinions of Plaintiff’s treating psychiatrist,

22

neurologist, or the consultative psychologist; and (3) the ALJ’s application of the presumption of

23

continuing nondisability based on Plaintiff’s prior applications was error given the ALJ’s

24

improper assessment of the medical evidence. Plaintiff requests that the case be remanded for an

25

2

The parties consent to magistrate judge jurisdiction. See, Docs. 6 and 8.

26

3

References to the Administrative Record will be designated as “AR,” followed by the appropriate page number.

27

4

28

This is Plaintiff’s fifth application for SSI. AR 215. His most recent prior application was appealed to this Court. It
was recommended that judgment be entered in favor of the Commissioner, and District Court Judge Anthony W.
Ishii adopted the recommendation on December 21, 2011. AR 20; 211-236.

2

1

award of benefits, or alternatively, that the case be remanded for further proceedings. (Doc. 16.

2

pgs. 11-25; Doc. 18, pgs. 1-12). The Commissioner opposes each of these arguments and

3

contends that: (1) the ALJ properly considered Plaintiff’s advanced age and found he was not

4

disabled based on the vocational expert’s (“VE”) testimony; (2) the ALJ’s evaluation of the

5

medical evidence was proper; and (3) Plaintiff has not rebutted the presumption of continuing

6

non-disability. Therefore, the ALJ’s decision should be affirmed. (Doc. 17, pgs. 5-15).

7 IV.

THE MEDICAL RECORD

8

The Court has reviewed the entire medical record and the relevant sections will be discussed

9
10
11

below as necessary. AR 456-1521.
V.

THE DISABILITY DETERMINATION PROCESS
To qualify for benefits under the Social Security Act, a plaintiff must establish that he or she

12

is unable to engage in substantial gainful activity due to a medically determinable physical or

13

mental impairment that has lasted or can be expected to last for a continuous period of not less

14

than twelve months. 42 U.S.C. § 1382c(a)(3)(A). An individual shall be considered to have a

15

19

disability only if:
. . . his physical or mental impairment or impairments are of such severity that he is not only
unable to do his previous work, but cannot, considering his age, education, and work
experience, engage in any other kind of substantial gainful work which exists in the national
economy, regardless of whether such work exists in the immediate area in which he lives, or
whether a specific job vacancy exists for him, or whether he would be hired if he applied for
work.
42 U.S.C. § 1382c(a)(3)(B).

20

To achieve uniformity in the decision-making process, the Commissioner has established a

16
17
18

21

sequential five-step process for evaluating a claimant’s alleged disability. 20 C.F.R. §

22

416.920(a). The ALJ proceeds through the steps and stops upon reaching a dispositive finding

23

that the claimant is or is not disabled. 20 C.F.R. § 416.920 (a)(4). The ALJ must consider

24

objective medical evidence and opinion testimony. 20 C.F.R. § 416.913. Specifically, the ALJ is

25

required to determine: (1) whether a claimant engaged in substantial gainful activity during the

26

period of alleged disability; (2) whether the claimant had medically-determinable “severe”

27

impairments; (3) whether these impairments meet or are medically equivalent to one of the listed

28

impairments set forth in 20 C.F.R. § 404, Subpart P, Appendix 1; (4) whether the claimant
3

1

retained the residual functional capacity (“RFC”) to perform his past relevant work; and (5)

2

whether the claimant had the ability to perform other jobs existing in significant numbers at the

3

regional and national level. 20 C.F.R. § 416.920(a)(4).

4 VI.

SUMMARY OF THE ALJ’S FINDINGS

5

Using the Social Security Administration’s five-step sequential evaluation process, the

6

ALJ determined that Plaintiff did not meet the disability standard. AR 20-30. At step one, he

7

found that Plaintiff had not engaged in substantial gainful activity since May 26, 2012, the

8

application date. AR 22. At step two, the ALJ identified a history of right knee surgery,

9

degenerative disc disease involving Plaintiff’s neck, and schizoaffective disorder as severe

10

impairments. AR 22. At step three, the ALJ determined that the severity of Plaintiff’s

11

impairments did not meet or exceed any of the listed impairments. AR 23. In doing so, the ALJ

12

noted that Plaintiff’s did not show that his impairments changed from the findings contained in

13

the prior ALJ’s decision. AR 23.

14

Based on a review of the entire record, the ALJ determined that Plaintiff had the RFC to

15

lift and carry up to twenty pounds occasionally and ten pounds frequently, and that he could sit,

16

stand, and walk up to six hours in an eight-hour workday. He also found Plaintiff was able to

17

perform simple repetitive tasks. AR 24. After considering the testimony of a VE, the ALJ

18

determined that Plaintiff could not perform his past relevant work, but that there was a significant

19

number of jobs in the national economy that Plaintiff could perform including a marker, a bench

20

assembler, and a bottle line attendant. AR 29-30. Therefore, Plaintiff was not disabled under the

21

Social Security Act. AR 30.

22

VII. STANDARD OF REVIEW

23

Under 42 U.S.C. § 405(g), this Court reviews the Commissioner's decision to determine

24

whether: (1) it is supported by substantial evidence; and (2) it applies the correct legal standards.

25

See Carmickle v. Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 499 F.3d

26

1071, 1074 (9th Cir. 2007).

27
28

“Substantial evidence means more than a scintilla but less than a preponderance.”
Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002).
4

It is “relevant evidence which,

1

considering the record as a whole, a reasonable person might accept as adequate to support a

2

conclusion.” Id. “Where the evidence is susceptible to more than one rational interpretation, one

3

of which supports the ALJ's decision, the ALJ's conclusion must be upheld.” Id.

4

VIII. DISCUSSION

5

A. The ALJ Did Not Properly Assess Plaintiff’s Advanced Age.

6

Plaintiff was within three days of his 55th birthday on the day the ALJ issued his decision

7

finding Plaintiff was not disabled. Plaintiff argues that the ALJ erred because he mistakenly

8

believed that Plaintiff was a younger individual (under 49) on the date he filed his application,

9

rather than his actual age of 52. Because Plaintiff was almost 55 when the decision was issued,

10

Plaintiff contends that the ALJ should have considered his borderline age since he would be

11

disabled under the advanced age category given the ALJ’s findings that Plaintiff was only capable

12

of performing light work and simple tasks. 20 C.F.R. pt. 404, Subpt. P. App. 2, 202.00 (c); (Doc.

13

16, pg. 10-11; Doc. 18, pgs. 2-3).

14

Plaintiff’s age because the ALJ considered VE testimony when determining that Plaintiff was not

15

disabled. (Doc. 16, pgs. 5-6).

Defendant contends that the ALJ properly considered

16

A review of the record reveals that the ALJ erred because he mistakenly believed Plaintiff

17

was in a younger age category and therefore, applied the wrong rule under the grids. When

18

finding Plaintiff could perform other work on July 14, 2014, the ALJ cited Medical Vocational

19

Rule 202.21, which applies to younger individuals (ages 45-49) with no transferrable skills. AR

20

30; 20 C.F.R. Pt. 404, Subpt. P, App. 2, Table No. 2. This is incorrect because at the time of the

21

hearing, Plaintiff was 54 years old and as such he was considered an individual closely

22

approaching advanced age. See 20 C.F.R. § 416.963(d). Additionally, Plaintiff turned 55 years

23

old three days after the ALJ issued his order, and therefore, became an individual of advanced age

24

(55 and over). AR 24; See 20 C.F.R. § 416.963(e) (defining advances age as 55 or older).

25

Pursuant to the regulations, an adjudicator “will not apply the age categories

26

mechanically in a borderline situation.” 20 C.F.R. § 416.963(b). “If you are within a few days to

27

a few months of reaching an older age category, and using the older age category would result in

28

a determination or decision that you are disabled, we will consider whether to use the older age
5

1

category after evaluating the overall impact of all the factors of your case.” Id. The specific

2

factors that an adjudicator must use in these circumstances have not been identified. However,

3

courts are required to review the ALJ’s decision to determine whether the ALJ considered this

4

issue in borderline age cases. Lockwood v. Comm’r of Soc. Sec.. 616 F.3d 1068, 1071-72 (9th Cir.

5

2010).

6

In Lockwood, the claimant was within one month and three days of his 55th birthday. The

7

ALJ had cited claimant’s birth date and found that claimant, at age 54, was an individual closely

8

approaching advanced age (50-54). The ALJ relied on the testimony of a VE and concluded that

9

the claimant was not disabled. Based on these facts, the Court found the ALJ properly considered

10

the issue because the decision indicated claimant was just shy her 55th birthday, at which time she

11

would be an individual of advanced age, and cited 20 C.F.R. 20 C.F.R. 404.1563(b) (the Title II

12

equivalent of 20 C.F.R. § 416.963(b)). Under those circumstances, the Court was satisfied that

13

the ALJ had considered claimant’s borderline age. Id.

14

Here, it is not clear that the ALJ considered this issue. Although the Commissioner argues

15

the ALJ’s analysis is proper because he relied on the VE’s testimony to reach his disability

16

determination, there is no indication that the ALJ considered Plaintiff’s advanced age when doing

17

so. To the contrary, the ALJ appears to have miscalculated Plaintiff’s age based on the date of

18

birth and referenced the Grids using a younger age category. AR 29-30. Therefore, the case will

19

be remanded so that the ALJ can consider Plaintiff’s borderline age at the time of the hearing, and

20

properly apply the appropriate grid category.

21
22

B. The ALJ Improperly Evaluated the Medical Evidence and Therefore Erred in
Finding a Presumption of Continuing Nondisability.

23

1. Plaintiff’s Psychological/Mental Impairments

24

There were four doctors who evaluated Plaintiff’s mental impairments : (1) Dr. Zhang,

25

Psy. D., a consultative psychologist; (2), Dr. Collado, M.D., Plaintiff’s treating psychiatrist, and

26

(3) Dr. Ikawa, and Dr. Morgan, two non-examining physicians. “When there is conflicting

27

medical evidence, the Secretary must determine credibility and resolve the conflict.” Matney v.

28
6

1

Sullivan, 981 F.2d 1016, 1019 (9th Cir.1992). Here, although it is not entirely clear, the ALJ

2

appears to have credited the two non-examining physician’s opinions. Because the ALJ rejected

3

the treating and examining doctors’ opinions, he needed to provide specific and legitimate

4

reasons for doing so. Ghanim v. Colvin, 763 F. 3d 1154,1161 (9th Cir. 2013); Lester v. Chater, 81

5

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

6

Plaintiff contends that that ALJ’s evaluation of the medical evidence is not supported by

7

substantial evidence because ALJ did not give specific and legitimate reasons for rejecting Dr.

8

Zhang’s and Dr. Collado’s opinions. (Doc. 16, pgs. 13- 18; Doc. 18, pgs. 6-9). The

9

Commissioner argues the ALJ properly considered the two doctors’ opinions. (Doc. 17, pgs. 7-

10

11). A review of the record reveals that the ALJ’s analysis with regard to Dr. Zhang’s opinion is

11

not supported by substantial evidence, however, the ALJ did provide specific and legitimate

12

reasons when rejecting Dr. Collado’s opinion.

13
14

a. Dr. Zhang
Dr. Zhang, Psy.D., performed a consultative examination at the agency’s request on July

15

10, 2012. AR 818-822. Dr. Zhang observed that Plaintiff was disheveled, he spoke slowly, and

16

exhibited moderate psychomotor retardation. AR 819. His mood was depressed, anxious and

17

irritable; his affect was constricted; and he admitted frequent hallucinations. AR 819. Plaintiff

18

was alert, but his intellectual functioning and fund of general information were moderately

19

limited. AR 819. His memory of past events was below average, he had poor attention and

20

concentration, and he needed frequent prompts to remain focused during the evaluation. AR 819.

21

His insight was moderately limited, he had a history of poor judgment, and appeared genuine and

22

truthful with no evidence of exaggeration. AR 819.

23

Plaintiff’s Full Scale I.Q. was 58, which Dr. Zhang opined was an underestimate of

24

Plaintiff’s intellectual functioning given his psychosis, mood disturbances, personality problems

25

and poor concentration. AR 820. Plaintiff also did poorly on testing that measures logical

26

memory, verbal associations, visual reproduction, spatial addition and symbol span, which Dr.

27

Zhang also thought was an underestimate caused by Plaintiff’s mental impairments. AR 821.

28

Similarly, testing for organic impairments showed moderate limitations. AR 821. Dr. Zhang
7

1

stated that these test results appeared valid. AR 822.

2

Dr. Zhang diagnosed Schizoaffective Disorder, Personality Disorder NOS (not otherwise

3

specified) and assigned a GAF score of 47. AR 822. He opined Plaintiff had mild limitations in

4

his ability to understand, remember, and carry out one-or-two simple instructions, and moderate

5

limitations if the instructions were complex. AR 822. He also found Plaintiff had moderate

6

limitations in his ability to accept instructions from supervisors, and had marked limitations in the

7

following functional areas: the ability to relate and interact appropriately with the public, co-

8

workers and supervisors; the ability to maintain concentration, persistence and pace; the “ability

9

associated with common work activity including attendance and safety”; the ability to maintain

10

regular attendance and to perform work activities consistently; the ability to perform work

11

activities without special or additional supervision; and to manage money on his own behalf. AR

12

822.

13

When evaluating Dr. Zhang’s opinion, the ALJ summarized the doctor’s findings. He

14

noted Dr. Zhang found Plaintiff had mild limitations in his ability to carry out simple one or two-

15

step instructions, and that his ability to interact appropriately with supervisors, coworkers, and the

16

public was markedly limited. However, the ALJ also noted that the terms “mild” and “marked”

17

were undefined. AR 26. He further stated the following:

18
19
20
21

State agency psychiatric consultant G. Ikawa, M.D., reviewed the
relevant evidence in March 2012. He opined that claimant had a
“severe” mental impairment, and the ability to perform simple,
repetitive tasks, was consistent with the findings in the prior
ALJ[’s] decision. On reconsideration, M. Morgan M.D., reviewed
the relevant evidence and adopted the findings from the prior ALJ
decision. Both doctors accorded great weight to Dr. Zhang’s report
and opinion.

22
AR 27 (Citations omitted).
23
24
25
26
27

This is the entirety of the ALJ’s analysis with regard to all of these doctors’ opinions
which is insufficient. First, although the ALJ noted that Dr. Zhang found Plaintiff had marked
limitations in his ability to interact appropriately with supervisors, coworkers and the public, he
did not include all of Dr. Zhang’s additional marked limitations including : (1) Plaintiff’s
impaired ability to maintain concentration, persistence and pace; (2) his ability associated with

28
8

1

common work activity including attendance and safety; (3) his ability to maintain regular

2

attendance and perform work activities consistently; and (4) his ability to perform work activities

3

without special or additional supervision . In fact, the ALJ did not address the marked limitations

4

in any way. AR 26; 822. The only reference the ALJ made to the limitations was that terms mild

5

and marked were not defined in the report. AR 26. This is not a specific reason to reject the

6

marked limitations, especially since the majority of the limitations were not mentioned in the

7

ALJ’s opinion. Furthermore, even assuming arguendo that the ALJ’s references to the doctors’

8

failure to define these terms was meant to be a reason to reject the opinion, it is not a legitimate

9

one since Dr. Zhang is a state agency doctor who is trained and familiar with disability terms and

10
11

definitions.
Finally, the ALJ did not indicate how much weight he was giving each of the doctors’

12

opinions. The Commissioner argues that it can be inferred from the opinion that the ALJ credited

13

Dr. Zhang’s opinion and the state agency doctors’ opinions only to the extent that Plaintiff could

14

perform simple tasks. However, if the ALJ intended to give Dr. Zhang’s other findings less

15

weight, he was required to provide specific and legitimate reasons for doing so. Ghanim, 763 F.

16

3d at 1161; Lester, 81 F.3d at 830. Therefore, his assessment with regard to Dr. Zhang’s opinion

17

is not supported by substantial evidence.

18

Plaintiff has argued that in light this error, the ALJ’s finding that Plaintiff had not rebutted

19

the presumption of nondisability is not supported by substantial evidence. The Court agrees. A

20

decision by an ALJ denying benefits may create a presumption that a claimant continued

21

to be not disabled during a subsequent, unadjudicated period. Chavez v. Bowen, 844 F.3d 691,

22

693 (9th Cir. 1988). Plaintiff may rebut this presumption by showing “‘changed circumstances.’”

23

Lester, 81 F.3d at 827 (quoting Taylor v. Heckler, 765 F.2d 872, 875 (9th Cir. 1985)). Examples

24

of “changed circumstances” are an increase in the severity of a claimant’s impairment, or the

25

existence of a new impairment not considered in the previous application. Id. Here, because the

26

ALJ did not provide specific and legitimate reasons for rejecting Dr. Zhang’s opinion, the ALJ’s

27

finding that Plaintiff has not rebutted the presumption was improper.

28
9

1
2

b. Dr. Callado
On May 21, 2014, Dr. Collado opined that Plaintiff had a significant impairment in his

3

memory, concentration, intelligence, and judgment. Significant impairment was defined as one

4

that would impair Plaintiff’s ability to perform simple work for two hours at a time or eight hours

5

a day. AR 1520. She also opined that Plaintiff’s mood or affect also would impair his ability to

6

work. AR 1520. Other abnormalities that would significantly impair Plaintiff’s ability to work

7

were his hallucinations, delusional or paranoid thoughts, mood swings and social isolation. AR

8

1520. Plaintiff needed assistance from others with activities of daily living to achieve a socially

9

acceptable standard of self-care; his deficient social functioning impaired his ability to work with

10

supervisors, coworkers or the public; his mental illness impaired his ability to adapt to stresses

11

common to the normal work environment; and his medications cause adverse side effects that

12

impaired his ability to perform normal work. AR1521. Dr. Collado opined Plaintiff’s condition

13

was unlikely to improve during the next 12 months and she indicated she saw him every eight

14

weeks since March 4, 2010 until April 2014. AR 1521.

15

The ALJ gave this opinion “little” weight for several reasons : (1) the doctor provided a

16

check box form; (2) although mental status examinations from Fresno County Behavior Health

17

indicated motor retardation, impaired memory, abnormal thought content, anxiety, and irritable

18

mood, Plaintiff’s primary care doctors reported full orientation, normal insight and judgment,

19

and appropriate mood and affect during the same time period; (3) Dr. Chuahan, Plaintiff’s

20

neurologist, did not report any psychiatric abnormality; (4) the prior ALJ noted inconsistencies

21

between Dr. Collado’s opinions and the opinions of other examining physicians; and (5) Dr.

22

Collado and other doctors appeared to be unaware of Plaintiff’s daily consumption of drug use

23

through at least 2013, which the state agency doctors considered. AR 27.

24

The Court finds that three of these reasons are specific and legitimate. First, Dr. Collado’s

25

report is a check-box form which can serve as a basis to reject an opinion. Crane v. Shalala, 76

26

F.3d 251, 253 (9th Cir.1996) (An ALJ may “permissibly reject[ ] ... check-off reports that [do]

27

not contain any explanation of the bases of their conclusions.”); Holohan v. Massanari, 246 F.3d

28

1195, 1202 (9th Cir. 2001) (“[T]he regulations give more weight to opinions that are explained
10

1

than to those that are not.”); Magallenes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (A brief

2

and conclusionary form opinion which lacks supporting clinical findings is a legitimate reason to

3

reject a treating physician's conclusion). Additionally, while Dr. Collado reported an abnormal

4

mental status examination, other physicians who saw Plaintiff during the same time period

5

reported contrary findings. AR 27. For example, Plaintiff’s primary care physicians documented

6

generally normal findings (e.g. full orientation, appropriate mood and affect, normal insight and

7

judgment). AR 1357; 1359; 1365; 1368. Similarly, Dr. Chauhan, Plaintiff’s neurologist, who has

8

seen Plaintiff for over a decade, never reported any psychiatric abnormality.5 AR 875-1287.
Notwithstanding the above, the Court finds that the other reasons – Dr. Collado’s lack of

9
10

knowledge about Plaintiff’s use of drugs, and the prior ALJ’s reliance on inconsistencies between

11

Dr. Collado’s opinons and other examining sources - are not legitimate reasons. The citations to

12

the medical record the ALJ gave to support his findings that Dr. Collado was unaware of

13

Plaintiff’s drug use during the applicable time are from other doctors and are not relevant to Dr.

14

Collado’s report. AR 1313 (Dr. Raypon dated 3/4/10); 1337(Dr. Champlin 8/7/08). Similarly, the

15

fact that a prior ALJ found Dr. Collado’s opinion inconsistent with the opinions of other

16

examining sources is not a legitimate reason to reject Dr. Collado’s current evaluation because

17

Dr. Collado’s most recent report was not available at the time of the prior ALJ’s findings.

18

Notwithstanding, these errors are harmless since the ALJ provided other specific and legitimate

19

reasons for rejecting Dr. Collado’s opinion. See, Molina v. Astrue, 674 F. 3d 1104, 1115 (9th Cir.

20

2012) (An ALJ's error is harmless where it is “inconsequential to the ultimate nondisability

21

determination.”)
c. Dr. Chauhan

22

On February 27, 2014, Dr. Chauhan, opined Plaintiff was unable to work full-time at any

23
24

exertional level because of his low back pain, bilateral knee pain, neck pain and headaches. AR

25

1429. Specifically, Dr. Chauhan opined Plaintiff could sit for ten minutes at a time for a total of

26

two hours in an eight-hour workday, stand/walk for two to five minutes for a total of two hours in

27
5

28

Although Dr. Chauhan’s notes reflect evaluations only of Plaintiff’s physical impairments, the letterhead on his
treatment notes indicates that he is a Diplomate of the American Board of Psychiatry and Neurology. AR 1370

11

1

an eight-hour workday, and must lie down every two hours for fifteen minutes. AR 1429. The

2

ALJ gave this opinion no weight for the following reasons:

3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

… I give no weight to Dr. Chauhan’s opinion indicating a less than
sedentary residual functional capacity. The claimant testified at the
hearing that he could stand and/or walk for at least 45 minutes or an
hour, much longer than the few minutes assessed in this opinion.
Moreover, Dr. Chauhan’s opinion that the claimant’s impairment
has been the same since March 2001 is inconsistent with the prior
ALJ’s findings in 2008. The prior ALJ actually discounted an
earlier opinion by Dr. Chuahan, apparently indicating [a] much less
impairment. Considering the aforementioned inconsistencies, and
the lack of credible findings supporting the latest opinion, I accord
it no weight.
AR 28.
The Court finds that these reasons are specific and legitimate. First, Plaintiff’s own
testimony that he is able to walk for 45 minutes (AR 46) undercuts Dr. Chauahan’s opinion that
Plaintiff could only stand or walk for a few minutes at a time. AR 1429. Plaintiff contends this
testimony is not necessarily inconsistent because it is unclear from his testimony whether 45
minutes was a total period of time he could walk in a day, or the amount of time he could walk at
one time. However, the Court must adopt the ALJ’s interpretation of the evidence when it is
rational as it is here. See, Gutierrez v. Comm’r of Soc. Sec., 740 F.3d 519, 523 (9th Cir. 2014)
(“The court must consider the record as a whole and weigh ‘both the evidence that supports and
the evidence that detracts from the ALJ’s’ factual conclusions” and “‘[i]f the evidence can
reasonably support either affirming or reversing,’ the reviewing court ‘may not substitute its
judgment’ for that of the Commissioner”); Thomas v. Barnhart, 278 F.3d at 954 (Where the
evidence is susceptible to more than one rational interpretation, one of which supports the ALJ's
decision, the ALJ's conclusion must be upheld.)
Similarly, the ALJ is permitted to reject a physician’s opinion when it is internally
inconsistent, or when it is inconsistent with other evidence in the record. Rejecting an opinion that
contains internal inconsistencies is a specific and legitimate reason to discount the opinion.
Roberts v. Shalala, 66 F.3d 179, 184 (9th Cir. 1995) (rejection of examining psychologist’s

28
12

1

functional assessment which conflicted with his own written report and test results); see also

2

Buckner-Larkin v. Astrue, 450 Fed. Appx. 626, 628 (9th Cir. 2011) (unpub’l) (affirming the

3

ALJ’s rejection of a physician’s opinion because the opinion contained internal inconsistencies

4

and was inconsistent with other medical evidence). In his assessment, Dr. Chuahan noted that

5

Plaintiff became disabled in 2001 to the same degree that was reflected in his current report.

6

However, in 2005, Dr. Chauhan indicated that Plaintiff was able to do light work with postural

7

restrictions, which are limitations that are less restrictive than the doctor’s current report which

8

limits Plaintiff to sedentary work. AR 223; 1429. This inconsistency reasonably raised questions

9

regarding the legitimacy of the doctor’s representations and conclusions. Therefore, the ALJ’s

10

reliance on this evidence is a specific and legitimate reason supported by substantial evidence to

11

reject the opinion.

12

IX.

13

REMAND FOR FURTHER ADMINSTRATIVE PROCEEDINGS
The Court must determine whether this action should be remanded to the Commissioner

14

with instructions to immediately award benefits, or whether this action should be remanded to the

15

Commissioner for further administrative proceedings. Remand for further proceedings is

16

appropriate when an evaluation of the record as a whole creates serious doubt as to whether the

17

claimant is in fact disabled. Garrison v. Colvin, 759 F. 3d 995, 1021 (9th Cir. 2014). Conversely,

18

a court should remand with for an award of benefits when: (1) the record has been fully

19

developed and further administrative proceedings would serve no useful purpose; (2) the ALJ has

20

failed to provide legally sufficient reasons for rejecting evidence, whether claimant testimony or

21

medical opinion; and (3) if the improperly discredited evidence were credited as true, the ALJ

22

would be required to find the claimant disabled on remand. Id. at 1020. Even if all three of these

23

criteria are met, the Court can retain flexibility in determining an appropriate remedy. Brown-

24

Hunter v. Colvin, 806 F. 3d 487, 495 (9th Cir. 2015).

25

Here, remand is appropriate so that the ALJ may properly consider and discuss Dr.

26

Zhang’s (the consultative psychologist) opinion. Additionally, as outlined above, the ALJ needs

27

to develop the record regarding Plaintiff’s borderline age at the time of the hearing, as well as to

28

make findings regarding Plaintiff’s current eligibility for benefits given that he is now over 55
13

1

years of age (if the ALJ finds this appropriate to do so). The ALJ is also free to reevaluate his

2

analysis and/or further develop the record with respect to any or all of these additional issues. The

3

court expresses no opinion regarding how the evidence should ultimately be weighed, or how any

4

ambiguities or inconsistencies should be resolved on remand.

5

X. CONCLUSION
Based on the foregoing, the Court finds that the ALJ’s decision is not supported by

6
7

substantial evidence and is not based on proper legal standards. Accordingly, this Court

8

GRANTS Plaintiff’s appeal against the Commissioner of Social Security IN PART, and DENIES

9

the Commissioner’s Cross-Motion for Summary Judgment. This action is REMANDED to the

10

Commissioner for further administrative proceedings consistent with this opinion. The Clerk of

11

this Court shall enter judgment in favor of Plaintiff, Stan P. Harris , and against Nancy A.

12

Berryhill, Commissioner of Social Security. The Clerk of the Court is directed to close this

13

action.

14
IT IS SO ORDERED.
15
16

Dated:

August 15, 2017

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

17
18
19
20
21
22
23
24
25
26
27
28
14