Xiong v. Commissioner of Social Security

Filing 20

ORDER denying 18 Motion for Summary Judgment and remanding the action pursuant to sentence four of 42 U.S.C. 405(g) and directing entry of judgment in favor of Plaintiff and against Commissioner of Social Security signed by Magistrate Judge Jennifer L. Thurston on 3/19/2018. CASE CLOSED. (Lundstrom, T)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

LEE LEE XIONG,
Plaintiff,

12
13
14
15
16
17
18

v.
NANCY A. BERRYHILL1,
Acting Commissioner of Social Security,
Defendant.

)
)
)
)
)
)
)
)
)
)
)
)
)

Case No.: 1:16-cv-0582 - JLT
ORDER DENYING DEFENDANT’S MOTION
FOR SUMMARY JUDGMENT AND
REMANDING THE ACTION PURSUANT TO
SENTENCE FOUR OF 42 U.S.C. § 405(g)
ORDER DIRECTING ENTRY OF JUDGMENT IN
FAVOR OF PLAINTIFF LUCIO GOMEZ AND
AGAINST DEFENDANT NANCY A. BERRYHILL,
ACTING COMMISSIONER OF SOCIAL
SECURITY

Lee Lee Xiong asserts she is entitled to supplemental security income under Title XVI of the

19

Social Security Act. Plaintiff argues the administrative law judge erred in finding her mental

20

impairments were not severe. Because the ALJ failed to apply the proper legal standards and erred in

21

evaluating the medical record, Defendant’s motion for summary judgment is DENIED and the matter

22

is REMANDED for further proceedings pursuant to sentence four of 42 U.S.C. § 405(g).

23
24

PROCEDURAL HISTORY
Plaintiff filed an application for benefits on August 26, 2010, alleging disability beginning

25

September 12, 2005. (Doc. 10-4 at 36) The Social Security Administration denied the application at

26

both the initial level and upon reconsideration. (Id. at 2, 15, 36) After requesting a hearing, Plaintiff

27
28

1
Nancy A. Berryhill is now the Acting Commissioner of Social Security. Pursuant to Rule 25(d) of the Federal
Rules of Civil Procedure, the Court substitutes Nancy A. Berryhill for her predecessor, Carolyn W. Colvin, as the defendant
in this action.

1

1

testified before an ALJ on November 16, 2012. (Doc. 10-3 at 51) The ALJ determined Plaintiff had

2

the following severe impairments: “fracture of the left femur status post open reduction internal

3

fixation instrumentation insertion and removal, chronic knee pain from town meniscus, lateral discoid

4

meniscus, and major depressive disorder.” (Doc. 10-4 at 38) The ALJ found Plaintiff was capable of

5

performing medium exertion work with postural limitations, as well as a limitation to “simple and

6

repetitive type tasks. (Id. at 39) With these limitations, the ALJ determined Plaintiff was able to

7

perform work in the national economy and issued an order denying benefits on December 13, 2012.

8

(Id. at 44-45)

9

Plaintiff requested review of the ALJ’s decision by the Appeals Council, which granted the

10

request on April 30, 2014. (Doc. 10-4 at 52) The Appeals Council found it was “not clear” whether

11

the ALJ considered evidence from a treating physician indicating that Plaintiff “had ongoing left leg

12

pain with an unstable gait and … was using a cane for support.” (Id.) Therefore, the Appeals Council

13

found “[f]urther development and evaluation of the claimant’s musculoskeletal impairments [were]

14

necessary.” (Id.) The Appeals Council vacated the ALJ’s decision and remanded it with instructions

15

for an ALJ that included obtaining, updated medical records, ordering a consultative examination, and

16

offering Plaintiff another hearing. (Id. at 53)

17

Plaintiff testified at a second hearing on September 9, 2014. (Doc. 10-3 at 12, 30-31) The ALJ

18

determined Plaintiff was not disabled and issued an order denying benefits on October 10, 2014. (Id.

19

at 12-23) The Appeals Council denied Plaintiff’s request for review on February 25, 2016. (Id. at 2-4)

20

Therefore, the ALJ’s determination became the final decision of the Commissioner of Social Security

21

(“Commissioner”).

22
23

STANDARD OF REVIEW
District courts have a limited scope of judicial review for disability claims after a decision by

24

the Commissioner to deny benefits under the Social Security Act. When reviewing findings of fact,

25

such as whether a claimant was disabled, the Court must determine whether the Commissioner’s

26

decision is supported by substantial evidence or is based on legal error. 42 U.S.C. § 405(g). The ALJ’s

27

determination that the claimant is not disabled must be upheld by the Court if the proper legal

28

standards were applied and the findings are supported by substantial evidence. See Sanchez v. Sec’y of
2

1
2

Health & Human Serv., 812 F.2d 509, 510 (9th Cir. 1987).
Substantial evidence is “more than a mere scintilla. It means such relevant evidence as a

3

reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S.

4

389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197 (1938)). The record as a whole

5

must be considered, because “[t]he court must consider both evidence that supports and evidence that

6

detracts from the ALJ’s conclusion.” Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985).

7
8

DISABILITY BENEFITS
To qualify for benefits under the Social Security Act, Plaintiff must establish he is unable to

9

engage in substantial gainful activity due to a medically determinable physical or mental impairment

10

that has lasted or can be expected to last for a continuous period of not less than 12 months. 42 U.S.C.

11

§ 1382c(a)(3)(A). An individual shall be considered to have a disability only if:

12
13
14

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.

15
16

42 U.S.C. § 1382c(a)(3)(B). The burden of proof is on a claimant to establish disability. Terry v.

17

Sullivan, 903 F.2d 1273, 1275 (9th Cir. 1990). If a claimant establishes a prima facie case of disability,

18

the burden shifts to the Commissioner to prove the claimant is able to engage in other substantial

19

gainful employment. Maounois v. Heckler, 738 F.2d 1032, 1034 (9th Cir. 1984).

20
21

ADMINISTRATIVE DETERMINATION
To achieve uniform decisions, the Commissioner established a sequential five-step process for

22

evaluating a claimant’s alleged disability. 20 C.F.R. §§ 404.1520, 416.920(a)-(f). The process

23

requires the ALJ to determine whether Plaintiff (1) engaged in substantial gainful activity during the

24

period of alleged disability, (2) had medically determinable severe impairments (3) that met or equaled

25

one of the listed impairments set forth in 20 C.F.R. § 404, Subpart P, Appendix 1; and whether

26

Plaintiff (4) had the residual functional capacity (“RFC”) to perform to past relevant work or (5) the

27

ability to perform other work existing in significant numbers at the state and national level. Id. The

28

ALJ must consider testimonial and objective medical evidence. 20 C.F.R. §§ 404.1527, 416.927.
3

1
2

A.

Relevant Medical Evidence2
In July 2010, Plaintiff visited the Tulare Community Health Clinic due to chronic leg pain.

3

(Doc. 10-10 at 30) She told Dr. Victor Sunga that she had “fatigue, lethargy, and crying spells, and

4

she [was] also feeling depressed at times.” (Id.) Plaintiff also reported she had “no concentration, no

5

appetite, and … issues at home that [were] making this problem.” (Id.) Further, she described having

6

suicidal thoughts, without a plan. (Id.) Dr. Sunga referred Plaintiff to Rosandra Soleno, LCSW, for

7

counseling. (Id.)

8
9
10

In August 2010, Ms. Soleno noted that Plaintiff continued to have suicidal thoughts, “without
plan or intent.” (Doc. 10-10 at 28) Plaintiff received a prescription for Zoloft. (See id. at 21)
Treatment notes dated September 2010 indicate Plaintiff continued to report she slept “poorly

11

because of ‘stuff on [her] mind.’” (Doc. 10-10 at 21) Plaintiff reported she had thoughts of suicide, but

12

she had not attempted it. (Id.) In addition, Plaintiff said she was hearing things, such as funeral drums.

13

(Id.) Plaintiff’s dose of Zoloft was increased, and the doctor prescribed Risperdal. (Id.)

14

In October 2010, Ms. Novelo-Soleno noted Plaintiff reported her medication was “helping a

15

little bit,” because her hallucinations had decreased. (Doc. 10-10 at 15) Later that month, Dr. Reddy

16

Prasad noted Plaintiff had a “history of major depression with psychotic features.” (Id. at 12) Plaintiff

17

told Dr. Reddy that she was feeling “significantly better since the start of the medication.” (Id.) She

18

said she was not having any auditory or visual hallucinations. (Id.) Dr. Reddy observed that

19

Plaintiff’s thoughts appeared “congruent, logical, and goal directed.” (Id.) Dr. Reddy opined Plaintiff

20

was “stable on Zoloft and Risperdal,” and directed her to continue with psychotherapy. (Id. at 12-13)

21

On December 20, 2010, Plaintiff told Dr. Prasad Reddy at the Tulare Community Health Clinic

22

that she had “been doing well,” and estimated she had “a 60% improvement in her symptoms.” (Doc.

23

10-10 at 3) Plaintiff said she was getting “about 6 hours of sleep” each night, and believed the

24

medications were beneficial. (Id.) However, Plaintiff reported she was still “hearing voices once in a

25

while.” (Id.) She did not have any suicidal or homicidal ideations. (Id.) Dr. Reddy observed that

26

Plaintiff was “able to answer questions and understand[] the questions mostly well.” (Id.) Dr. Reddy

27
28

2
While the Court has reviewed the entirety of the medical record, Plaintiff challenges the evaluation of medical
evidence related to her mental impairments. Accordingly, the summary excludes any evidence related to her physical
impairments.

4

1

opined Plaintiff’s mood was “good” and her affect was broad. (Id.) He believed Plaintiff’s “insight

2

and judgment [were] limited.” (Id.) Dr. Reddy determined Plaintiff should continue on the same

3

amount of Zoloft, but increased her dose of Risperdal. (Id.) In addition, he indicated should “continue

4

psychotherapy.” (Id. at 4)

5

Dr. Anna Franco completed a psychiatric review and mental residual functional capacity

6

assessment on February 2, 2011. (Doc. 10-10 at 43-53) She noted Plaintiff had been diagnosed with

7

depression, not otherwise specified, but believed Plaintiff’s mood was “stable and well controlled by

8

her anti-depressant.” (Id. at 46, 55) According to Dr. Franco, Plaintiff had a mild restriction in

9

activities of daily living; no difficulties with social functioning; mild difficulties in maintaining

10

concentration, persistence, or pace; and no episodes of decompensation. (Id. at 51) Dr. Franco

11

concluded Plaintiff’s mental impairment was not severe. (Id. at 43, 56)

12

On February 7, 2011, Plaintiff reported her depression had “improved by about 50%,” but “she

13

still hear[d] voices once or twice a day and… the ‘drums playing.’” (Doc. 10-11 at 40) Plaintiff told

14

Dr. Reddy that she was “trying to get out and do some activities.” (Id.) Dr. Reddy observed that

15

Plaintiff’s mood was good though her affect was flat. (Id.) Dr. Reddy diagnosed Plaintiff with “Major

16

depression, recurrent, severe with psychosis, chronic,” and increased Plaintiff’s doses of Zoloft and

17

Risperdal. (Id.)

18

On March 11, 2011, Dr. Fariba Vesali performed a consultative orthopedic evaluation. (Doc.

19

10-10 at 57-61) Dr. Vesali noted Plaintiff had a history of depression but did “not have any idea or

20

intention of hurting herself at [that] time.” (Id. at 58) Dr. Vesali found Plaintiff “did not have any

21

difficulties to follow three-step commands.” (Id.) In addition, Plaintiff was able to “appropriately

22

answer[] questions” during the examination. (Id.)

23

In April 2011, Plaintiff visited the Tulare Community Health Clinic, reporting she had “back

24

and right foot pain.” (Doc. 10-10 at 72) Dr. Sunga noted Plaintiff’s did not include “anxiety,

25

depression [or] insomnia.” (Id.) In addition, Dr. Sunga opined Plaintiff had “normal insight” and

26

“normal judgment,” with “appropriate mood and affect.” (Id. at 74)

27
28

On October 31, 2011, Plaintiff told Dr. Reddy that she was feeling “stressed” and “apprehensive
about her [disability] application.” (Doc. 10-11 at 37) Plaintiff reported that she “ha[d] to do well in
5

1

the psychiatric assessment… [or] her application for assessments will be denied.” (Id.) Dr. Reddy

2

found “no worsening of neurovegetative symptoms of depression.” (Id.) He opined Plaintiff had a

3

“flat” affect and “limited” insight and judgment. (Id.) Plaintiff was directed to continue taking Zoloft

4

and Risperdal. (Id. at 37-38)

5

Dr. Roger Izzi performed a psychiatric evaluation on November 1, 2011. (Doc. 10-11 at 12)

6

Plaintiff reported she angered easily, cried without provocation, got depressed, and was unable to do

7

what she normally would. (Id.) Plaintiff told Dr. Izzi that her children, who ranged in age from 2 years

8

to over 20 years old, did “all the household chores.” (Id.) Plaintiff said she stayed home during the

9

day, did not belong to any clubs, groups, or organizations; attend religious services; or visit any family

10

or friends. (Id.) Dr. Izzi observed that Plaintiff’s “affect seemed dysphoric.” (Id. at 13) He found

11

Plaintiff was “able to immediately recall three words without any obvious difficulty,” and “[u]pon

12

delayed recall, she was able to recall two of the three words.” (Id. at 14) When Plaintiff was asked to

13

spell words to test her attention and concentration, she responded that she did not “know how to spell.”

14

(Id.) Dr. Izzi opined Plaintiff “did poorly on the present mental status examination,” and believed that

15

“[h]er responses were considered so poor that they could only suggest a poor effort and poor

16

motivation.” (Id. at 14-15) According to Dr. Izzi, Plaintiff had “multiple medical problems and there

17

[was] likely to be depression secondary to her awareness of her physical limitations.” (Id. at 15) Dr.

18

Izzi opined:

23

The present evaluation suggests that the claimant does appear capable of performing a
simple and repetitive type task on a consistent basis over an eight-hour period. Her
ability to get along with peers or be supervised in [a] work-like setting is not limited.
The claimant’s mood disorder will fluctuate as her subjective perception of pain
fluctuates. Any significant fluctuation of mood would limit her ability to perform a
complex task on a consistent basis over an eight-hour period. On a purely psychological
basis, the claimant appears capable of responding to usual work session situations
regarding attendance and safety issues. On a purely psychological basis, the claimant
appears capable of dealing with changes in a routine work setting.

24

(Id. at 15) Dr. Izzi gave Plaintiff a GAF score of 683, and concluded she had a depressive disorder, not

19
20
21
22

25
26
27
28

3

Global Assessment Functioning (“GAF”) scores range from 1-100, and in calculating a GAF score, the doctor
considers “psychological, social, and occupational functioning on a hypothetical continuum of mental healthillness.” American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, 34 (4th ed.) (“DSMIV). A GAF score between 61-70 indicates “[s]ome mild symptoms (e.g., depressed mood and mild insomnia) OR some
difficulty in social, occupational, or school functioning . . . but generally functioning pretty well, has some meaningful
interpersonal relationships.” DSM-IV at 34.

6

1

otherwise specified. (Id. at 14)

2

On November 15, 2011, Ms. Soleno noted Plaintiff had “minor improvement” with her

3

medication. (Doc. 10-11 at 36) Plaintiff “continue[d] to express feelings of low self-worth related to

4

her inability to work.” (Id.) In addition, Plaintiff described being “involved with her 2-year-old

5

daughter, but she [was] limited in the amount of physical activity she [could] do with her.” (Id.)

6

In December 2011, Dr. Harvey Bilik reviewed the medical record and noted that while Plaintiff

7

“appear[ed] to allege worsening severity of mental impairments on appeal, … none [appeared] evident

8

in the MER received subsequent to the initial determination.” (Doc. 10-11 at 19) Dr. Bilik affirmed

9

the conclusion of Dr. Franco that Plaintiff’s mental impairments were not severe. (Id.)

10

At a follow-up appointment with Dr. Reddy in February 2012, Plaintiff reported “her social

11

security application was denied.” (Doc. 10-11 at 32) Dr. Reddy observed that Plaintiff had “poor eye

12

contact,” “decreased psychomotor activity,” and a flat affect. (Id.) He believed Plaintiff’s “insight and

13

judgment [were] poor.” (Id.) Dr. Reddy opined Plaintiff had “good functioning on Zoloft.” (Id.) The

14

same month, Ms. Soleno noted Plaintiff’s mood was “somewhat constricted but not as flat as when she

15

was seen previously.” (Id. at 31)

16

In April 2012, Dr. Reddy noted that Plaintiff reported she felt “better than before but … her

17

depression [was] not completely dissipated.” (Doc. 10-11 at 27) Dr. Reddy opined Plaintiff’s “insight

18

and judgment [were] limited.” (Id.) He opined Plaintiff’s depression was “in partial remission with

19

current improvement in symptoms.” (Id.) Dr. Reddy discontinued the prescription for Risperdal. (Id.)

20

At a therapy session with Ms. Soleno in June 2012, Plaintiff reported she was “doing ok.”

21

(Doc. 10-12 at 19) Ms. Soleno opined Plaintiff’s mood was euthymic and her attitude was “cooperative

22

and less hopeless.” (Id.) She also believed Plaintiff exhibited fair judgment, reasoning, and insight.

23

(Id. at 20)

24

In August 2012, Plaintiff told Ms. Soleno her depression had “improved,” but she was

25

concerned about her daughter leaving for college. (Doc. 10-12 at 11) Plaintiff said she did “not know

26

how she [would] manage with her baby” once her daughter left for school, because she both helped

27

with the baby and with cooking. (Id.) Ms. Soleno opined Plaintiff depression was in remission, but she

28

was “facing adjustment problems at home requiring additional support.” (Id. at 11-12) The following
7

1

month, Plaintiff told Ms. Soleno that she had “been crying after her daughter left for college,” but she

2

was “adapting to having to do additional work.” (Id. at 9) According to Ms. Soleno, Plaintiff’s mood

3

was within normal limits; her affect was broad; and she had fair reasoning, judgment, and insight. (Id.

4

at 9) Ms. Soleno again opined Plaintiff’s depression was in remission. (Id.)

5

Dr. Sunga completed a residual functional capacity questionnaire on October 24, 2012. (Doc.

6

10-12 at 22-26) He noted Plaintiff had been diagnosed with left hip pain, left knee pain, plantar

7

fasciitis, depression, and anxiety. (Id. at 22) According to Dr. Sunga, Plaintiff had emotional factors

8

that “contribute[d] to the severity of … [her] symptoms and functional limitations.” (Id. at 23) He

9

believed Plaintiff’s symptoms would frequently interfere with the attention and concentration needed to

10

perform simple work tasks, and that Plaintiff could maintain attention for one hour at a time. (Id. at 24)

11

Dr. Sunga opined Plaintiff was incapable of working even “low stress” jobs. (Id. at 24, 206)

12

In early 2013, Plaintiff reported she was suffering “incapacitating” pain in her left knee. (Doc.

13

10-12 at 51) Dr. Sunga opined Plaintiff’s memory was intact and she had an “appropriate mood and

14

affect.” (Id. at 53) Through April 2013, Dr. Sunga continued to find Plaintiff’s memory was intact and

15

she had an appropriate mood and affect” when she had check-ups for pain. (See, e.g., id. at 46, 50)

16

On April 16, 2014, Mor Chang, MSW/ASW, performed an assessment intake at Healing Hope

17

clinic. (See Doc. 10-13 at 2, 27-31) Ms. Chang noted Plaintiff described “somatic pain, depression,

18

medical problems, marital issues, financial problems, [and] anxiety.” (Id. at 27) Ms. Chang observed

19

that Plaintiff had a blunt and tearful affect; and her mood appeared angry, irritable, sad, depressed, and

20

worried. (Id. at 29) In addition, she opined Plaintiffs thoughts appeared irrational and incoherent. (Id.

21

at 30) According to Ms. Chang, Plaintiff’s memory was poor. (Id.) Ms. Chang diagnosed Plaintiff

22

with a major depressive disorder, recurrent, severe, with psychotic features; and post traumatic

23

disorder, chronic. (Id. at 31) She gave Plaintiff a GAF score of 45.4 (Id.) The following week,

24

Plaintiff began psychotherapy at Healing Hope with Ms. Chang under the supervision of Dr. Mark

25

Popper. (Doc. 10-13 at 26; see also id. at 6-26)

26

In April 2014, Ms. Chang noted that Plaintiff “continue[d] to exhibit auditory/visual

27
28

4
A GAF score between 41-50 indicates “[s]erious symptoms (e.g., suicidal ideation, severe obsessional rituals,
frequent shoplifting) OR any serious impairments in social, occupational, or school functioning (e.g., no friends, unable to
keep a job).” Id. at 34.

8

1

hallucination.” (Doc. 10-13 at 26) Ms. Chang observed that Plaintiff’s affect was blunt, and “[h]er

2

mood was sad, dysphoric and depressed.” (Id., emphasis omitted) On April 30, Plaintiff “was tearful

3

during [her therapy] session.” (Id. at 24) Ms. Chang noted Plaintiff “presented with irritability,

4

depressed mood.” (Id. at 24)

5

Ms. Chang observed that Plaintiff “was irritable, dysphoric and worried” during her session on

6

May 7, 2014. (Doc. 10-13 at 23) Plaintiff continued to exhibit a “depressed mood and anxiety”

7

throughout the month of May. (Id. at 21, 22) In addition, Ms. Chang noted Plaintiff “continued to

8

present with visual and auditory hallucination.” (Id. at 20)

9

In June 2014, Ms. Chang noted Plaintiff “reported feeling depressed and frustrated.” (Doc. 10-

10

13 at 15) Ms. Chang noted Plaintiff “became teary eye[d] during the session.” (Id.) In addition,

11

Plaintiff “continued to report visual and auditory hallucination,” as well as “anxiety and distressed

12

feelings.” (Id. at 14) Ms. Chang opined Plaintiff’s “affect and mood were depressed, sad, irritable,

13

and dysphoric.” (Id.) Further, she believed Plaintiff was “preoccupied with worries, intrusive and

14

negative thoughts.” (Id. at 13) Ms. Chang opined Plaintiff had a “low tolerance [for] frustration and

15

low self-esteem.” (Id.)

16

In July 2014, Ms. Chang observed that Plaintiff “had a hard time concentrating and focusing”

17

during her therapy session. (Doc. 10-13 at 5) In addition, she noted Plaintiff had “a flat affect” and

18

“was quiet throughout the session.” (Id.)

19

On August 26, 2014, Dr. Popper completed a form regarding Plaintiff’s ability to do work-

20

related activities. (Doc. 10-13 at 3) Dr. Popper noted Plaintiff had been “diagnosed with Major

21

Depressive Disorder; Recurrent; Severe with Psychotic Features, Posttraumatic Stress Disorder,

22

Chronic with Delayed Onset.” (Id. at 4) Dr. Popper opined Plaintiff was “unable to meet competitive

23

standards,” with many mental abilities and aptitudes necessary for unskilled work including: carrying

24

out very short and simple instructions; maintaining attention for two-hour segments; sustaining an

25

ordinary routine; responding appropriately to changes in a routine work setting; understanding,

26

remembering, and carrying out detailed instructions; and dealing with stress of semiskilled and skilled

27

work. (Id. at 3-4) Dr. Popper noted Plaintiff had “poor concentration, intrusive thoughts, persistent

28

sadness, rumination of thoughts, irritability, memory disturbance (forgetful), anxious, low tolerance to
9

1

frustration and relational issues.” (Id. at 4) He also believed Plaintiff was “unable to meet competitive

2

standards” with maintaining socially appropriate behavior and interacting with the general public. (Id.)

3

Dr. Johnny Fong completed a “medical history, physical examination, psychological and mental

4

examination” on August 21, 2014. (Doc. 10-13 at 32-34) He noted Plaintiff began seeing a

5

psychiatrist regularly beginning in 2012, and was “taking Cymbalta and Sertraline and Seroquel for the

6

depression.” (Id. at 32) Plaintiff told Dr. Fong that “[i]n the last 2 years, she [had] been having

7

memory loss, loss of attention span and focus.” (Id.) Dr. Fong opined Plaintiff “showed memory loss

8

and lack of recall when she was asked to give back the exact order of 4 colors given her,” as well as

9

when she was asked to recall the exact order of four numbers and four fruits. (Id. at 33)

10
11

B.

The ALJ’s Findings
Pursuant to the five-step process, the ALJ determined Plaintiff did not engage in substantial

12

gainful activity after the application date of August 26, 2010. (Doc. 10-3 at 13) At step two, the ALJ

13

found Plaintiff’s severe impairments included: “left femur fracture status post intramedular rodding

14

and removal, left knee meniscal tear, plantar fasciitis, obesity, and lumbago.” (Id.) At step three, the

15

ALJ determined Plaintiff did not have an impairment, or combination of impairments, that met or

16

medically equaled a Listing. (Id. at 16-17) Next, the ALJ determined:

17
18
19

[T]he claimant has the residual functional capacity to perform less than the full range
of light work as defined in 20 CFR 416.967(b) except the claimant can lift and carry
20 pounds occasionally and 10 pounds occasionally, sit for six to eight hours in an 8hour day, and stand and walk for six to eight hours in an 8-hour day. She can
occasionally climb, kneel, crawl, crouch, and balance, and frequently stoop.

20

(Id. at 17) With these limitations, the ALJ found “there are jobs that exist in significant numbers in the

21

national economy that the claimant can perform.” (Id. at 22) Thus, the ALJ concluded Plaintiff was

22

not disabled as defined by the Social Security Act. (Id. at 23)

23
24

DISCUSSION AND ANALYSIS
Plaintiff contends the ALJ erred at step two of the sequential evaluation in finding that her

25

mental impairments were “non-severe.” (Doc. 14 at 9-17) According to Plaintiff, the ALJ erred in

26

evaluating the medical record and rejecting the opinion of Dr. Popper in reaching this conclusion. (Id.

27

at 13-16) On the other hand, the Commissioner argues that Plaintiff did not meet her burden to show

28

the severity of her symptoms, and “[t]he ALJ properly found that Plaintiff’s depression was non severe
10

1

and did not result in any work-related functional limitations.” (Doc. 18 at 9, 10)

2

A.

3

Step Two Findings
The inquiry at step two is a de minimus screening for severe impairments “to dispose of

4

groundless claims.” Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996) (citing Bowen v. Yuckert,

5

482 U.S. 137, 153-54 (1987)). The purpose is to identify claimants whose medical impairment makes it

6

unlikely they would be disabled even if age, education, and experience are considered. Bowen, 482

7

U.S. at 153 (1987). At step two, a claimant must make a “threshold showing” that (1) he has a

8

medically determinable impairment or combination of impairments and (2) the impairment or

9

combination of impairments is severe. Id. at 146-47; see also 20 C.F.R. §§ 404.1520(c), 416.920(c).

10

Thus, the burden of proof is on the claimant to establish a medically determinable severe impairment.

11

Id.; see also Bray v. Comm’r of Soc. Sec. Admin, 554 F.3d 1219, 1222 (9th Cir. 2009) (“The burden of

12

proof is on the claimant at steps one through four...”).

13

An impairment, or combination thereof, is “not severe” if the evidence establishes that it has

14

“no more than a minimal effect on an individual’s ability to do work.” Smolen, 80 F.3d at 1290. The

15

Ninth Circuit explained: “The mere existence of an impairment is insufficient proof of a disability.”

16

Matthews v. Shalala, 10 F.3d 678, 680 (9th Cir. 1993). A medical diagnosis alone “does not

17

demonstrate how that condition impacts plaintiff’s ability to engage in basic work activities.” Nottoli v.

18

Astrue, 2011 U.S. Dist. LEXIS 15850, at *8 (E.D. Cal. Feb. 16, 2011). For an impairment to be

19

“severe,” it must limit the claimant’s ability to do basic work activities, or the “abilities and aptitudes

20

necessary to do most jobs.” 20 C.F.R. §§ 404.1520(c), 416.920(b). Specifically, basic work activities

21

include “[u]nderstanding, carrying out, and remembering simple instructions; [u]se of judgment;

22

[r]esponding appropriately to supervision, co-workers and usual work situations, and [d]ealing with

23

changes in a routine work setting.” 20 C.F.R. §§ 404.1521(b), 416.921(b).
“Paragraph B” criteria

24

1.

25

The “paragraph B” criteria set forth in 20 C.F.R., Pt. 404, Subpart P, App. 1 are used to evaluate

26

the mental impairments of a claimant, and include: “[a]ctivities of daily living; social functioning;

27

concentration, persistence, or pace; and episodes of decompensation.” See id. The Regulations inform

28

claimants:
11

1
2

If we rate the degree of your limitation in the first three functional areas as “none” or
“mild” and “none” in the fourth area, we will generally conclude that your impairment(s)
is not severe, unless the evidence otherwise indicates that there is more than a minimal
limitation in your ability to do basic work activities.

3
4

20 C.F.R. § 404.1520a(d)(1). The ALJ concluded Plaintiff had “mild limitation” in activities of daily

5

living and concentration, persistence, or pace. (Doc. 10-3 at 16) The ALJ also found Plaintiff had “no

6

limitation” with social functioning, and no episodes of decompensation. (Id.) As a result, the ALJ

7

concluded Plaintiff’s “mental impairment … is non-severe.” (Id.)
ALJ’s evaluation of Dr. Popper’s opinion

8

2.

9

In this circuit, the courts distinguish the opinions of three categories of physicians: (1) treating

10

physicians; (2) examining physicians, who examine but do not treat the claimant; and (3) non-

11

examining physicians, who neither examine nor treat the claimant. Lester v. Chater, 81 F.3d 821, 830

12

(9th Cir. 1996). In general, the opinion of a treating physician is afforded the greatest weight but it is

13

not binding on the ultimate issue of a disability. Id.; see also 20 C.F.R. § 404.1527(d)(2); Magallanes

14

v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). Further, an examining physician’s opinion is given more

15

weight than the opinion of non-examining physician. Pitzer v. Sullivan, 908 F.2d 502, 506 (9th Cir.

16

1990); 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2).

17

A treating physician’s opinion is not binding upon the ALJ and may be discounted whether

18

another physician contradicts it. Magallanes, 881 F.2d at 751. An ALJ may reject an uncontradicted

19

opinion of a treating or examining medical professional only by identifying “clear and convincing”

20

reasons. Lester, 81 F.3d at 831. In contrast, a contradicted opinion of a treating or examining

21

professional may be rejected for “specific and legitimate reasons that are supported by substantial

22

evidence in the record.” Id., 81 F.3d at 830. When there is conflicting medical evidence, “it is the

23

ALJ’s role to determine credibility and to resolve the conflict.” Allen v. Heckler, 749 F.2d 577, 579

24

(9th Cir. 1984). The ALJ’s resolution of the conflict must be upheld when there is “more than one

25

rational interpretation of the evidence.” Id.; see also Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir.

26

1992) (“The trier of fact and not the reviewing court must resolve conflicts in the evidence, and if the

27

evidence can support either outcome, the court may not substitute its judgment for that of the ALJ”).

28

The opinion of Dr. Popper was contradicted by Drs. Izzi, Bilik, and Sunga. Therefore, the ALJ was
12

1

required to set forth specific and legitimate reasons for rejecting the opinions articulated by Dr. Popper.

2

Examining the medical evidence, the ALJ summarized the conclusions of Dr. Popper related to

3

Plaintiff’s memory, concentration, ability to maintain regular attendance, and social functioning. (See

4

Doc. 10-3 at 15-16) The ALJ rejected the limitations by stating: “These limitations are overly

5

restrictive and appear to be based solely on the claimant’s subjective complaints. Her ability to care for

6

an infant and a disabled husband are inconsistent with Dr. Popper’s opinion.” (Id. at 16) Plaintiff

7

contends these reasons for rejecting the limitations of Dr. Popper are not “specific and legitimate” as

8

required by the Ninth Circuit. (Id. at 15-17)

9
10

a.

Inconsistencies with the record

An ALJ may reject limitations “unsupported by the record as a whole.” Mendoza v. Astrue, 371

11

Fed. Appx. 829, 831-32 (9th Cir. 2010) (citing Batson v. Comm’r of the Soc. Sec. Admin., 359 F.3d

12

1190, 1195 (9th Cir. 2003)). Significantly, when an ALJ believes a physician’s opinion is unsupported

13

by the objective medical evidence, the ALJ has a burden to “set[] out a detailed and thorough summary

14

of the facts and conflicting clinical evidence, stating his interpretation thereof, and making findings.”

15

Cotton v. Bowen, 799 F.2d 1403, 1408 (9th Cir. 1986).

16

The ALJ determined Dr. Popper’s limitations were “overly restrictive” in light of the evidence

17

in the record. However, the ALJ failed to explain why this appeared to be the case or to identify any

18

specific conflicts between Dr. Popper’s opinions and the record. The ALJ offered only her conclusion,

19

which is insufficient. See Embrey v. Bowen, 849 F.2d 418, 421 (9th Cir. 1988) (to reject an opinion as

20

inconsistent with the medical record, the ‘ALJ must do more than offer his conclusions”); see also

21

Russell v. Colvin, 2017 U.S. Dist. LEXIS 7044 at *11 (E.D. Cal. Jan. 17, 2017) (finding “the vague

22

assertion that [a physician’s] findings are ‘overly restrictive’ does not withstand appellate review”

23

because the “[t]he state of being overly restrictive is a conclusion that lacks details as to what limitation

24

is unsupported by which clinical findings”). Accordingly, the unidentified inconsistencies with the

25

record fail to support the decision to reject Dr. Popper’s opinion.

26
27
28

b.

Limitations based upon Plaintiff’s subjective complaints

The Ninth Circuit has determined that an ALJ may reject an opinion based upon “a claimant's
self-reports that have been properly discounted as not credible.” Tommasetti v. Astrue, 533 F.3d 1035,
13

1

1041 (9th Cir. 2008); see also Fair v. Bowen, 885 F.2d 597, 605 (9th Cir. 1989) (“The ALJ thus

2

disregarded [the physician’s] opinion because it was premised on Fair’s own subjective complaints,

3

which the ALJ had already properly discounted. This constitutes a specific, legitimate reason for

4

rejecting the opinion of a treating physician.”). For example, in Tommasetti, the Court reviewed the

5

physician's records, and found “they largely reflect[ed] Tommasetti’s reports of pain, with little

6

independent analysis or diagnosis.” Id., 533 F.3d at 1041. Because the ALJ found the claimant’s

7

subjective complaints lacked credibility, the Court concluded that “the ALJ’s adverse credibility

8

determination supports the limited rejection of [the physician's] opinion because it was primarily based

9

on Tommasetti’s subjective comments concerning his condition.” Id.

10

The ALJ rejected the limitations identified by Dr. Popper, in part, on the grounds that the

11

limitations “appear[ed] to be based solely on the claimant’s subjective complaints.” (Doc. 10-3 at 16)

12

However, the record does not support this conclusion. Dr. Popper supervised Ms. Chang and signed

13

each summary of her therapy session notes concerning Plaintiff. As a result, he was aware of the

14

observations of Ms. Chang that Plaintiff repeatedly exhibited a blunt affect, was tearful during her

15

sessions, appeared preoccupied, and “had a hard time concentrating and focusing” during her therapy

16

session. (See, e.g., Doc. 10-13 at 5, 14-15, 24, 26, 29) Indeed, when asked to identify findings that

17

supported the opinions regarding Plaintiff’s memory and ability to handle stress, Dr. Popper noted in

18

his questionnaire that Plaintiff had a “poor concentration.” (Id. at 4) Thus, there were objective

19

observations to support Dr. Popper’s conclusions, and the ALJ erred in rejecting the limitations as

20

being based solely upon Plaintiff’s subjective complaints.

21
22

c.

Conflict with Plaintiff’s level of activity

The Ninth Circuit determined the opinion of a treating physician may be given less weight when

23

the physician sets forth restrictions that “appear to be inconsistent with the level of activity that [the

24

claimant] engaged in.” Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 2001); see also Fisher v.

25

Astrue, 429 Fed. App’x 649, 652 (9th Cir. 2011) (the ALJ set forth specific and legitimate reasons for

26

rejecting a physician’s opinion where the limitations identified by the doctor conflicted with the

27

claimant’s daily activities).

28

In this case, the ALJ concluded Plaintiff’s “ability to care for an infant and a disabled husband
14

1

are inconsistent with Dr. Popper’s opinion.” (Doc. 10-3 at 16) Notably, Plaintiff testified that she had

2

assistance from her older children with taking care of the baby, as they would do things such as “get a

3

baby wipe, the diaper, put [them] on the sofa, get ready for [her].” (Id. at 37) Plaintiff also reported

4

she was responsible only for “reheating” meals. (Id.) Thus, it appears Plaintiff did not have the sole

5

responsibility for caring for her baby or husband.
Regardless, the ALJ does not explain how the ability to care for her baby and her husband is

6
7

inconsistent with Dr. Popper’s opinions that Plaintiff was “unable to meet competitive standards,” with

8

many mental abilities and aptitudes necessary for unskilled work including: carrying out very short and

9

simple instructions; maintaining attention for two-hour segments; sustaining an ordinary routine;

10

understanding, remembering, and carrying out detailed instructions; and dealing with stress of

11

semiskilled and skilled work. (Doc. 10-13 at 3-4) Because the ALJ fails to explain how Plaintiff’s

12

level of activity is inconsistent with the findings of Dr. Popper, Plaintiff’s activities do not support the

13

ALJ’s rejection of the medical opinion. See Rollins, 261 F.3d at 856; see also Russell, 2017 U.S. Dist.

14

LEXIS 7044 (“where an ALJ seeks to discredit… opinions as inconsistent with a Plaintiff’s daily

15

activities, the ALJ must explain how the inconsistency or contradiction cuts against the statement or

16

opinion being discredited”).

17

B.

18

Remand is Appropriate
The decision whether to remand a matter pursuant to sentence four of 42 U.S.C. § 405(g) or to

19

order immediate payment of benefits is within the discretion of the district court. Harman v. Apfel,

20

211 F.3d 1172, 1178 (9th Cir. 2000). Except in rare instances, when a court reverses an administrative

21

agency determination, the proper course is to remand to the agency for additional investigation or

22

explanation. Moisa v. Barnhart, 367 F.3d 882, 886 (9th Cir. 2004) (citing INS v. Ventura, 537 U.S.

23

12, 16 (2002)). Generally, an award of benefits is directed when:

24
25

(1) the ALJ has failed to provide legally sufficient reasons for rejecting such evidence,
(2) there are no outstanding issues that must be resolved before a determination of
disability can be made, and (3) it is clear from the record that the ALJ would be required
to find the claimant disabled were such evidence credited.

26
27

Smolen v. Chater, 80 F.3d 1273, 1292 (9th Cir. 1996). In addition, an award of benefits is directed

28

where no useful purpose would be served by further administrative proceedings, or where the record is
15

1

fully developed. Varney v. Sec’y of Health & Human Serv., 859 F.2d 1396, 1399 (9th Cir. 1988).
The ALJ failed to identify specific and legitimate reasons supported by the record for rejecting

2
3

the limitations assessed by Dr. Popper. Because the ALJ failed to resolve the conflicts in the record

4

regarding Plaintiff’s mental limitations, the matter should be remanded for the ALJ to re-evaluate the

5

medical evidence to determine Plaintiff’s mental residual functional capacity. See Moisa, 367 F.3d at

6

886.
CONCLUSION AND ORDER

7
8

For the reasons set forth above, the Court finds the ALJ erred in evaluating the medical record

9

at step two, and the decision cannot be upheld by the Court. See Sanchez, 812 F.2d at 510. Because

10

the Court finds remand is appropriate on these grounds, it offers no findings regarding the remaining

11

issue in Plaintiff’s opening brief. Accordingly, the Court ORDERS:

12

1.

Defendant’s motion for summary judgment (Doc. 18) is DENIED;

13

2.

The matter is REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for further
proceedings consistent with this decision; and

14
15

3.

The Clerk of Court is DIRECTED to enter judgment in favor of Plaintiff Lee Lee Xiong
and against Defendant, Nancy A. Berryhill, Acting Commissioner of Social Security.

16
17
18
19
20

IT IS SO ORDERED.
Dated:

March 19, 2018

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

21
22
23
24
25
26
27
28
16