Barajas v. Commissioner of Social Security

Filing 29

ORDER REVERSING Agency's Denial of Benefits and Ordering Remand signed by Magistrate Judge Barbara A. McAuliffe on 2/26/2019. CASE CLOSED. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DALILA BARAJAS,

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Plaintiff,

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

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) Case No.: 1:17-cv-01551-BAM
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) ORDER REVERSING AGENCY’S DENIAL OF
) BENEFITS AND ORDERING REMAND
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INTRODUCTION

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Plaintiff Dalila Barajas (“Plaintiff”) seeks judicial review of a final decision of the Commissioner

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of Social Security (“Commissioner”) denying her application for disability insurance benefits (“DBI”)

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under Title II of the Social Security Act and for supplemental security income (“SSI”) under Title XVI

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of the Social Security Act. The matter is currently before the Court on the parties’ briefs, which were

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submitted, without oral argument, to Magistrate Judge Barbara A. McAuliffe.1

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Having considered the parties’ briefs, along with the entire record in this case, the Court finds

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that the decision of the Administrative Law Judge (“ALJ”) is not supported by substantial evidence in

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The parties consented to the jurisdiction of a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c)(1).
(Doc. Nos. 6, 8.)

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the record and is not based on proper legal standards. Accordingly, the Court will direct that the

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Commissioner’s determination be REVERSED and REMANDED for further proceedings.
FACTS AND PRIOR PROCEEDINGS

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On August 22, 2013, Plaintiff protectively filed an application for a period of disability and DBI.

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AR 207-213.2 Plaintiff also protectively filed an application for SSI on August 22, 2013. AR 214-219.

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Plaintiff alleged disability beginning April 20, 2012, in both applications. AR 207, 214. Plaintiff’s

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applications were denied initially and on reconsideration and Plaintiff subsequently requested a hearing

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before an Administrative Law Judge (“ALJ”). AR 132-150. ALJ Sharon Madsen held a hearing on

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June 21, 2016, and issued an order denying benefits on July 26, 2016. AR 17-67. This appeal followed.

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Relevant Hearing Testimony

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The ALJ held a hearing on July 26, 2016, in San Bernadino, California. AR 35-67. Plaintiff

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appeared and was represented by her attorney, Melissa Proudian. AR 17, 35. Impartial Vocational

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Expert Jose L. Chaparro also appeared. Id.

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In response to questioning by the ALJ, Plaintiff testified that she is 5 feet 2 inches tall and 260

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pounds. AR 39. She is separated and has two kids, aged eighteen and eleven-and-a-half, and her

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youngest child lives with her. Id. Plaintiff can do some household chores, such as preparing simple

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meals, washing dishes, sweeping, and mopping with use of a chair with wheels. AR 40-41. She does

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not engage in social activities. AR 40.

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Plaintiff’s testimony regarding her typical daily activities differentiated between “good” and

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“bad” days. AR 41-42. On “good” days, Plaintiff gets up at 6:30 a.m. to wake her daughter and take

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her to school. AR 41. Plaintiff returns home, takes her medication, and prepares a simple meal if she

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is hungry, although she frequently is not hungry. Id. She then performs light chores such as washing

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dishes, sweeping, or mopping with the assistance of a chair on wheels. Id. By 12 p.m., Plaintiff must

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take a nap due to pain and fatigue. Id. Plaintiff awakes at 1:45 p.m. to pick up her daughter from school

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and prepares her a light snack. Id. Plaintiff then offers to help her daughter with her homework and, if

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

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nothing else is needed, asks her daughter to wake her if she needs anything and then returns to sleep.

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Id.

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On “bad” days, Plaintiff takes her daughter to school, returns home, and sleeps from

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approximately 8 a.m. through 1:45 p.m. AR 42. Plaintiff picks her daughter up from school and then

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asks her mother to take care of her daughter while Plaintiff sleeps. Id.

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experiences at least three flare ups of “bad” days per month that last anywhere from two to seven days

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at a time. AR 47. Stress and escalated activity levels can increase the duration or intensity of these

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flare ups. AR 47-48.

Plaintiff testified that she

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When asked about her prior work history, Plaintiff testified that she worked for King’s County

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Sheriff’s office from 2007 through 2012, initially performing secretarial work and then ultimately

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assisting with Live Scan fingerprinting. AR 43. From 2006 to 2007, Plaintiff was employed full-time

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as a medical records technician. AR 44.

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With respect to her mental impairments, Plaintiff testified that she suffers from depression and

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is sad about her life. AR 51. Plaintiff typically remains in her home and does not like going out because

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she becomes nervous and panicky around other people. AR 51-52.

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concentrating on tasks. AR 53. Plaintiff takes Venlafaxine, Abilify, and Trazodone, but testified that

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they do not help her. AR 52. Plaintiff sees a therapist every three to six weeks. AR 52-53.

Plaintiff also has difficulty

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In response to questioning by her attorney, Plaintiff testified that she can pay attention to a task

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for approximately fifteen to twenty minutes before requiring a break of forty-five minutes to an hour.

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AR 53-54. On average, she has maybe three to four “good” days per week but cannot anticipate when

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they will come and how long they will last. AR 54-55. In addition to stress, Plaintiff’s “bad” days are

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triggered by increased activities, lack of rest, and change of weather. AR 56. Even on her “good” days,

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Plaintiff requires breaks of thirty minutes to an hour after five to ten minutes of performing activities

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such as preparing simple meals and conducting light housework. AR 55-56. Plaintiff testified that her

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energy levels are generally very low, she is constantly in pain, and she experiences drowsiness as a side

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effect of her medication. AR 57-58.

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Plaintiff further testified that she suffers from panic attacks when she is around crowds of people.

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AR 58. If she needs to go to the store, she gets there early before anyone else arrives. Id. When she
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takes her daughter to school, she arrives five to ten minutes early while there are fewer cars. AR 58-59.

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Plaintiff’s last panic attack was approximately one month prior to the hearing while she was at the mall.

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AR 59.

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Following Plaintiff’s testimony, the ALJ elicited testimony from the Vocational Expert (“VE”),
The VE testified that Plaintiff’s work history included administrative clerk,

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Jose L. Chaparro.

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fingerprint clerk, and medical record clerk. AR 61. The ALJ also asked the VE hypothetical questions.

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AR 61-63. For the first hypothetical, the ALJ asked the VE to assume a person of the same age,

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education, and work background as Plaintiff. AR 61. This person could lift and carry 20 pounds

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occasionally, 10 pounds frequently, sit, stand, and walk six to eight hours with occasional stopping,

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crouching, crawling, climbing and kneeling, frequent balance, simple routine tasks, and occasional

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public contact. AR 61-62. The VE testified that Plaintiff’s past work was not available but there were

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other jobs available, including light unskilled work as a housekeeping cleaner, toe housing machine

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tender, or router. AR 62. For the second hypothetical, the ALJ asked if the person in the first

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hypothetical would be able to perform any jobs if he or she were able to stand and walk for two hours

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and sit for six to eight hours. AR 62-63. The VE testified that there would be no past work available,

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but there were unskilled sedentary jobs available as a microfilming document preparer, stuffer, or table

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worker. AR 62. For the third hypothetical, the ALJ asked if the person in the second hypothetical would

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be able to perform any jobs if that person needed an additional two to four breaks of thirty (30) minutes

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each per day. AR 63. The VE testified that there would be no work available. Id.

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Finally, Plaintiff’s attorney asked the VE hypothetical questions. AR 63-64. Plaintiff’s attorney

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asked if the result would change if the person in the ALJ’s first hypothetical would be off task fifteen

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(15) percent of the time. AR 64. The VE testified that there would be no work available. Plaintiff’s

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attorney then asked if the result would change if the person in the ALJ’s second hypothetical would be

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unable to interact and relate approximately with co-workers and the general public ninety (90) percent

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of the time. AR 64. The VE again testified there would be no work available. Id. Plaintiff’s attorney

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then asked if the result would change if the person in the ALJ’s second hypothetical would be unable to

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maintain regular attendance in the work place and perform work activity on a consistent basis ninety

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(90) percent of the time. Id. The VE again testified that there would be no work available. Id. Finally,
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Plaintiff’s attorney asked if the result would change if the person in the ALJ’s second hypothetical would

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miss two or more days per month. Id. The VE again testified that there would be no work available.

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Id.

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Medical Record

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The relevant medical record was reviewed by the Court and will be referenced below as

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necessary to the Court’s decision.

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The ALJ’s Decision

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

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determined that Plaintiff was not disabled under the Social Security Act. AR 17-29. Specifically, the

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ALJ found that Plaintiff had not engaged in any substantial gainful activity since April 20, 2012, her

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alleged onset date. AR 19. Further, the ALJ identified lumbar degenerative disc disease, fibromyalgia,

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morbid obesity, cervical degenerative disc disease, major depressive disorder, generalized anxiety

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disorder, and panic disorder as severe impairments. AR 19-20. Nonetheless, the ALJ determined that

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Plaintiff did not have an impairment or combination of impairments that met or medically equaled the

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severity of one of the listed impairments. AR 20-21. Based on her review of the entire record, the ALJ

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determined that Plaintiff retained the residual functional capacity (“RFC”) to perform a range of

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sedentary work. AR 21-26. With this RFC, the ALJ found that Plaintiff could not perform any past

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relevant work, but there were other jobs existing in significant numbers in the national economy that

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Plaintiff could perform. AR 27. The ALJ therefore concluded that Plaintiff was not disabled under the

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Social Security Act. AR 28.

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SCOPE OF REVIEW

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Congress has provided a limited scope of judicial review of the Commissioner’s decision to deny

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benefits under the Act. In reviewing findings of fact with respect to such determinations, this Court

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must determine whether the decision of the Commissioner is supported by substantial evidence. 42

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U.S.C. § 405(g). Substantial evidence means “more than a mere scintilla,” Richardson v. Perales, 402

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U.S. 389, 402 (1971), but less than a preponderance. Sorenson v. Weinberger, 514 F.2d 1112, 1119, n.

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10 (9th Cir. 1975). It is “such relevant evidence as a reasonable mind might accept as adequate to

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support a conclusion.” Richardson, 402 U.S. at 401. The record as a whole must be considered,
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weighing both the evidence that supports and the evidence that detracts from the Commissioner’s

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conclusion. Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). In weighing the evidence and making

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findings, the Commissioner must apply the proper legal standards. See, e.g., Burkhart v. Bowen, 856

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F.2d 1335, 1338 (9th Cir. 1988). This Court must uphold the Commissioner’s determination that the

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claimant is not disabled if the Commissioner applied the proper legal standards, and if the

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Commissioner’s findings are supported by substantial evidence. See Sanchez v. Sec’y of Health and

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Human Servs., 812 F.2d 509, 510 (9th Cir. 1987).
REVIEW

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In order to qualify for benefits, a claimant must establish that he or she is unable to engage in

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substantial gainful activity due to a medically determinable physical or mental impairment which has

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

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1382c(a)(3)(A). A claimant must show that he or she has a physical or mental impairment of such

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severity that he or she is not only unable to do his or her previous work, but cannot, considering his or

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her age, education, and work experience, engage in any other kind of substantial gainful work which

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exists in the national economy. Quang Van Han v. Bowen, 882 F.2d 1453, 1456 (9th Cir. 1989). The

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burden is on the claimant to establish disability. Terry v. Sullivan, 903 F.2d 1273, 1275 (9th Cir. 1990).

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DISCUSSION3

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Plaintiff contends that the ALJ erred in evaluating the opinions of consultative psychological

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examiner Robert Marselle, Psy. D., RN, and Plaintiff’s treating psychiatrist, Romeo Mariano, M.D.

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(Doc. No. 19 at 29-33.) Plaintiff additionally asserts that the ALJ’s errors warrant a direct award of

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benefits without remand for further proceedings. (Doc. No. 19 at 33-35.)

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Physician Opinions

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Cases in this circuit identify three types of physicians: (1) those who treat the claimant (treating

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

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who neither examine nor treat the claimant (nonexamining physicians). Lester v. Chater, 81 F.3d 821,

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The parties are advised that this Court has carefully reviewed and considered all of the briefs, including arguments,
points and authorities, declarations, and/or exhibits. Any omission of a reference to any specific argument or brief is not to
be construed that the Court did not consider the argument or brief.

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830 (9th Cir. 1995). Generally, the opinions of treating physicians are entitled to the most weight, while

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the opinions of examining physicians are entitled to more weight than the opinions of nonexamining

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physicians. Id. This is because a treating doctor is employed to cure and has a greater opportunity to

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know and observe the patient as an individual. Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996);

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Bates v. Sullivan, 894 F.2d 1059, 1063 (9th Cir. 1990). Where the opinion of an examining or treating

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physician is uncontroverted, the ALJ must provide clear and convincing reasons for rejecting that

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opinion. Lester, 81 F.3d at 830-31. Even if contradicted by another doctor, the opinion of an examining

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or treating doctor can be rejected only for “specific and legitimate reasons that are supported by

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substantial evidence in the record.” Id. The ALJ can meet this burden by setting forth a detailed and

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thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and

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making findings. Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008).

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Dr. Marselle

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On January 30, 2014, Dr. Marselle completed a Consultative Psychological Evaluation Report.

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AR 443-453. Dr. Marselle opined that Plaintiff had no impairments in her ability to carry out simple

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one- or two-step job instructions or accept instructions from supervisors. AR 453. Dr. Marselle further

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opined that Plaintiff had moderate impairments in her ability to carry out detailed and complex

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instructions, associate with day-to-day work activities including attendance and safety, and perform

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work activities without special or additional supervision, and marked impairments in her ability to relate

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and interact with co-workers and the public, maintain concentration and attention, and maintain regular

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attendance in the workplace and perform work activities on a consistent basis. Id.

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In assessing the opinion of Dr. Marselle, the ALJ stated as follows:

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Dr. Marselle opined that the claimant demonstrated mild to marked impairment in workrelated mental functions. I give limited weight to the limitations that Dr. Marselle assessed.
The terms “mild,” moderate,” and “marked” to describe impairment are vague and Dr.
Marselle did not offer any guidance on interpreting them.

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AR 25.

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Here, Dr. Marselle’s opinion appears to have been contradicted by the non-examining state

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agency physician, E. Aquino-Caro, M.D. According to Dr. Aquino-Caro’s review of the records dated

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February 28, 2014, Plaintiff’s ability to perform activities within a schedule, maintain regular

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attendance, be punctual within customary tolerances, and sustain an ordinary routine without special

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supervision was not significantly limited and her ability to maintain attention and concentration for

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extended periods of time and to appropriately interact with the general public was only moderately

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limited. AR 78-80, 92-94. On June 19, 2014, a second non-examining state agency physician, E.

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Murillo, M.D., affirmed Dr. Aquino-Caro’s assessment. AR 110-112, 125-127. Given that the opinion

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of the state agency physicians contradicted Dr. Marselle’s opinion regarding the severity of Plaintiff’s

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limitations, the ALJ was required to provide specific and legitimate reasons supported by substantial

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evidence in the record to discount Dr. Marselle’s opinion.

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Plaintiff argues that the sole reason the ALJ identified in discounting Dr. Marselle’s opinion

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regarding Plaintiff’s limitations, i.e. that the terms “mild,” “moderate,” and “marked,” were not defined,

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does not meet the standard of specific and legitimate reasons supported by substantial evidence in the

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record. (Doc. Nos. 19 at 31, 27 at 3.) Notably, Dr. Marselle does not use the term “mild” to describe

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Plaintiff’s limitations in his report. Moreover, with respect to Dr. Marselle’s use of the terms “moderate”

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and “marked,” an ALJ has a duty to “fully and fairly develop the record and to assure that the claimant’s

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interests are considered.” Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001). This duty is

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triggered when there is “[a]mbiguous evidence” or on “the ALJ’s own finding that the record is

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inadequate to allow for proper evaluation of the evidence.” Id. Once it is triggered, the ALJ must

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“conduct an appropriate inquiry,” which can include “subpoenaing the claimant’s physicians,

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submitting questions to the claimant’s physicians, continuing the hearing, or keeping the record open

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after the hearing to allow supplementation of the record.” Id. Here, the ALJ expressly found the terms

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used in Dr. Marselle’s report to describe impairment to be “vague.” AR 25. There is no indication on

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the record that the ALJ made any efforts to satisfy her duty of conducting an appropriate inquiry to

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resolve the ambiguity which allegedly resulted from Dr. Marselle’s use of these terms. Failure to do so

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constitutes reversible error. Tonapetyan, 242 F.3d at 1151; see also Vasquez v. Berryhill, 2017 WL

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2633413 at *6 (E.D. Cal. June 19, 2017).

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The Commissioner argues that any error is harmless because the limitations assessed by Dr.

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Marselle are consistent with the ALJ’s RFC finding for simple routine work and occasional contact with
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the public. (Doc. No. 26 at 8.) An RFC is what a claimant “can still do despite [his or her] limitations,”

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and it should include all the limiting effects of an impairment. 20 C.F.R. §§ 404.1545(a)(e) and

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416.945(a)(e). Here, the ALJ’s mental RFC states that Plaintiff can perform simple, routine tasks and

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tolerate occasional public contact. AR 21. Dr. Marselle found no impairment in Plaintiff’s ability to

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understand, remember, and carry out simple one-or-two step job instructions or to accept instructions

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from supervisors; moderate impairment in her ability to follow detailed and complex instructions,

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associate with day-to-day work activity including attendance and safety, or to perform work activities

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without special or additional supervision; and marked impairment in her ability to relate and interact

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with co-workers and the public, maintain concentration and attention, persistence, and pace, or to

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maintain regular attendance in the workplace and perform work activities on a consistent basis. AR

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453. The RFC does not appear to encompass any of the moderate and marked limitations Dr. Marselle

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identified, and the ALJ did not properly reject this opinion. Furthermore, the ALJ found the terminology

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used by Dr. Marselle to be ambiguous, making it difficult to determine whether the ALJ incorporated

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any of Dr. Marselle’s limitations in to the RFC at all. The Court accordingly cannot find that the ALJ’s

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error was “inconsequential to the ultimate nondisability determination” and therefore harmless. See

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Tommasetti, 533 F.3d at 1038.

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Dr. Mariano

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On June 14, 2016, Dr. Mariano completed a Mental Residual Functional Capacity Questionnaire.

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AR 859-861. Dr. Mariano opined that Plaintiff had “Category IV” limitations in every identified area,

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including the ability to remember locations and work-like procedures, understand and remember very

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short and simple instructions, understand and remember detailed instructions, carry out very short and

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simple instructions, carry out detailed instructions, maintain attention and concentration for extended

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periods of time, perform activities within a schedule, maintain regular attendance, be punctual and

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within customary tolerances, sustain an ordinary routine without special supervision, work in

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coordination with or in proximity to others without being distracted by them, make simple work-related

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decisions, complete a normal workday and workweek without interruptions from psychologically based

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symptoms, perform at a consistent pace without an unreasonable number and length of rest periods,

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interact appropriately with the general public, ask simple instructions and respond appropriately to
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criticisms from supervisors, get along with coworkers or peers without distracting them or exhibiting

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behavioral extremes, maintain socially appropriate behavior, adhere to basic standards of neatness and

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cleanliness, respond appropriately to changes in the work setting, be aware of normal hazards and take

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appropriate precautions, travel in unfamiliar places or use public transportation, and set realistic goals

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or make plans independently of others. AR 860. A “Category IV” limitation was defined as “precludes

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performance for 15% or more of an 8-hour work day.” AR 859. In addition to evaluating Plaintiff’s

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abilities, Dr. Mariano reported that Plaintiff likely would be absent from work and/or unable to complete

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an 8-hour work day five days or more per month. Id.

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In assessing the opinion of Dr. Mariano, the ALJ stated as follows:
I give minimal weight to the Mental Residual Functional Capacity Questionnaire that
Romeo Mariano, M.D. completed in June 2016 (Exhibit 16F), indicating that the claimant
was extremely limited in performing various mental abilities typically required in the
performance of unskilled work, and was unable to perform these tasks for 15 percent of
[sic] more of an eight-hour day. This checklist-style form appears to have been completed
as an accommodation to the claimant in her pursuit of disability benefits, and includes only
conclusions regarding functional limitations without meaningful rationale for those
conclusions. The responses on the check-box form are at odds with Dr. Mariano’s
treatment notes that consistently indicated that the claimant continued to improve with
treatment. Mental status examinations consistently noted a euthymic mood and friendly
demeanor (Exhibit 5F). Dr. Mariano also indicated that he saw the claimant for routine
follow up every six to 12 weeks, which is consistent with generally stable symptomology.

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AR 25-26.
Here, Dr. Mariano’s opinion was contradicted by the non-examining state agency physicians Dr.
Aquino-Caro and Dr. Murillo, who found moderate limitations in Plaintiff’s ability to understand and
remember very short and simple instructions, carry out detailed instructions, maintain concentration for
extended periods, and interact appropriately with the general public, and no significant limitations in all
remaining areas of the mental residual functional capacity assessment. AR 77-79, 92-94, 110-112, 125127. Dr. Mariano’s opinion additionally appears to have been contradicted by Dr. Marselle, who found
no impairments in Plaintiff’s ability to carry out simple one- or two-step job instructions or accept
instructions from supervisors and moderate impairments in her ability to carry out detailed and complex
instructions, associate with day-to-day work activities including attendance and safety, and perform
work activities without special or additional supervision. AR 453. As a result, the ALJ was required to
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provide specific and legitimate reasons supported by substantial evidence in the record to discount Dr.

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Mariano’s opinion.

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Plaintiff first argues that the ALJ erred in rejecting Dr. Mariano’s opinion because it “appears to

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have been completed as an accommodation to the claimant in her pursuit of disability benefits.” AR 26.

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The Court agrees. “The purpose for which medical reports are obtained does not provide a legitimate

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basis for rejecting them.” Lester, 81 F.3d at 832. It is improper to “assume that doctors routinely lie in

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order to help their patients collect disability benefits.” Id. While evidence of actual improprieties may

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be relevant and admissible, the ALJ does not cite to any such evidence in support of her conclusion and

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the Court has found none in the record. See id. Thus, the ALJ erred in rejecting Dr. Mariano’s opinion

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on the basis that he appeared to be accommodating Plaintiff in her pursuit of disability benefits.

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Second, Plaintiff argues that the ALJ improperly rejected Dr. Mariano’s opinion as inconsistent

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with his treatment notes which “consistently indicate that the claimant continued to improve with

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treatment.” AR 26. The ALJ further reasoned that Dr. Mariano’s “[m]ental status examinations

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consistently noted a euthymic mood and friendly demeanor[.]” Id. An ALJ may properly discount a

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treating physician’s opinion that is not supported by the medical record, including his own treatment

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notes. Valentine v. Comm'r of Soc. Sec. Admin., 574 F.3d 685, 692-93 (9th Cir. 2009) (contradiction

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between treating physician’s opinion and his treatment notes constitutes specific and legitimate reason

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for rejecting treating physician’s opinion); Tommasetti, 533 F.3d 1035, 1041 (“incongruity” between

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doctor’s questionnaire responses and her medical records provided specific and legitimate reason for

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rejecting doctor’s opinion). Here, however, the ALJ’s characterization that Dr. Mariano’s treatment

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records were inconsistent with his opinion is based upon an inadequate discussion of those treatment

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records. As the Ninth Circuit has explained, symptoms of mental impairments “wax and wane in the

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course of treatment.” Garrison v. Colvin, 759 F.3d 995, 1017 (9th Cir. 2014). “Cycles of improvement

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and debilitating symptoms are a common occurrence, and in such circumstances it is error for an ALJ

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to rely on “a few isolated instances of improvement over a period of months or years and to treat them

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as a basis for concluding a claimant is capable of working.” Id. (citing Holohan v. Massanari, 246 F.3d

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1195, 1205 (9th Cir. 2001) (“[The treating physician's] statements must be read in context of the overall

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diagnostic picture he draws. That a person who suffers from severe panic attacks, anxiety, and
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depression makes some improvement does not mean that the person's impairments no longer seriously

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affect [his] ability to function in a workplace.”)).

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Dr. Mariano’s treatment notes state that Plaintiff experienced “moderate” improvement overall

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on November 10, 2015, and June 9, 2015, and “mild” improvement overall on August 25, 2015, and

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February 11, 2015. AR 786, 802, 810, 823. Dr. Mariano nonetheless regularly notes that Plaintiff’s

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prognosis is poor, chronic, and severe. AR 786-787, 803, 811. In Dr. Mariano’s most recent treatment

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notes, Plaintiff’s global assessment of functioning is rated at a 50, which indicates “serious symptoms

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(e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in

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social, occupational, or school functioning (e.g., no friends, unable to keep a job).” AR 785; see also

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Am. Psychiatric Ass'n, Diagnostic and Statistical Manual of Mental Disorders (DSM–IV–TR) (4th ed.

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2000). Dr. Mariano further consistently assessed Plaintiff as “markedly limited” in each of the mental

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abilities and aptitudes needed to work, with “markedly limited” defined as “unable to meet competitive

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standards, [n]o useful ability to function[.]” AR 787-788, 803, 811-812. Moreover, the ALJ’s finding

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that Dr. Mariano “consistently noted a euthymic mood and friendly demeanor” is inaccurate, as Dr.

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Mariano’s treatment notes indicate that Plaintiff’s mood was anxious, depressed, sad, and/or highly

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stressed in all but one of her sessions. AR 767, 782, 807, 823.

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The ALJ’s conclusion that Plaintiff was not disabled because the record showed that Plaintiff

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continued to improve with treatment is based upon isolated favorable portions of the record. See Ryan

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v. Comm'r of Soc. Sec., 528 F.3d 1194, 1200-1201 (9th Cir. 2008) (“Nor are the references in [a doctor's]

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notes that Ryan’s anxiety and depression were ‘improving’ sufficient to undermine the repeated

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diagnosis of those conditions, or [another doctor’s] more detailed report.”); Hutsell v. Massanari, 259

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F.3d 707, 712 (8th Cir. 2001) (“We also believe that the Commissioner erroneously relied too heavily

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on indications in the medical record that Hutsell was ‘doing well,’ because doing well for the purposes

24

of a treatment program has no necessary relation to a claimant’s ability to work or to her work-related

25

functional capacity.”). Further, while Plaintiff may have experienced some “mild” and “moderate”

26

improvement overall, there is nothing in Dr. Mariano’s treatment notes indicating that her condition had

27

stablized or the possibility of relapse had been eradicated. By themselves, notations indicating that a

28

claimant is doing well or is stable do not contradict a treating physician’s opinion of a claimant’s
12

1

functional limitations. See Moriel v. Berryhill, No. SA CV 17-2215-PLA, 2018 WL 6435325, at *9

2

(C.D. Cal. Dec. 7, 2018); Perez v. Astrue, No 1L08cv0463 BAK, 2009 WL 3011647, at *13 (E.D. Cal.

3

Sept. 17, 2009) (noting that “fairly stable” and “doing well” are relative terms). Thus, the ALJ’s finding

4

that Dr. Mariano’s treatment notes consistently indicated improvement and were therefore inconsistent

5

with his opinion regarding the degree of Plaintiff’s limitations was in error and lacked the support of

6

substantial evidence.

7

Third, Plaintiff argues that the ALJ erred in finding that Dr. Mariano’s opinion was entitled to

8

minimal weight because he saw the claimant for “routine” follow up every six to twelve weeks, “which

9

is consistent with generally stable symptomology.” AR 26. Frequency of examination is one factor that

10

an ALJ may consider in determining how much weight to afford a treating physician’s medical opinion.

11

Ghanim v. Colvin, 763 F.3d 1154, 1161 (9th Cir. 2014). However, the ALJ’s conclusion here that the

12

frequency of Plaintiff’s visits with Dr. Mariano was “routine” and “consistent with generally stable

13

symptomology” amounted to an independent medical finding without the support of an underlying

14

medical opinion. See Padilla v. Astrue, 541 F.Supp.2d 1102, 1106 (C.D. Cal. 2008) (“[A]s a lay person,

15

an ALJ is ‘simply not qualified to interpret raw medical data in functional terms.’” (quoting Nguyen v.

16

Chater, 172 F.3d 31, 35 (1st Cir. 1999) (per curiam)); Banks v. Barnhart, 434 F.Supp.2d 800, 805 (C.D.

17

Cal. 2006) (An ALJ “must not succumb to the temptation to play doctor and make his own independent

18

medical findings” (quoting Rohan v. Chater, 98 F.3d 966, 970 (7th Cir. 1996)). Moreover, an ALJ

19

“‘must not draw any inferences about an individual's symptoms and their functional effects from a

20

failure to seek or pursue regular medical treatment without first considering any explanations that the

21

individual may provide, or other information in the case record, that may explain infrequent or

22

irregular medical visits or failure to seek medical treatment’ including inability to pay, whether ‘[t]he

23

individual's daily activities may be structured so as to minimize symptoms to a tolerable level or

24

eliminate them entirely,’ and whether medication may relieve symptoms.” Orn v. Astrue, 495 F.3d 625,

25

638 (9th Cir. 2007) (quoting S.S.R. 96-7p)). There is no indication that any such explanations were

26

considered here. Thus, the ALJ’s finding was in error.

27

Finally, as the Commissioner notes, the ALJ identified a fourth reason for affording minimal

28

weight to Dr. Mariano’s opinion. The ALJ found that Dr. Mariano’s opinion was entitled to little weight
13

1

because it “includes only conclusions regarding functional limitations without meaningful rationale for

2

those conclusions.” AR 26. This finding is supported by substantial evidence on the record. An ALJ

3

may properly reject physicians’ opinions that brief, conclusory, and unsubstantiated by relevant medical

4

documentation. Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (citations omitted); Meanel v.

5

Apftel, 172 F.3d 1111, 1114 (9th Cir. 1999). This includes “check-off reports that [do] not contain any

6

explanation of the bases of their conclusions.” Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012)

7

(quotation omitted). Here, Dr. Mariano did not provide any comments or other explanations which

8

would substantiate his opinion that Plaintiff was precluded from performing each of the twenty (20)

9

mental abilities identified in his report for 15%, or 72 minutes, or more of an 8-hour work day. AR 859The ALJ’s finding in this regard is therefore supported by substantial evidence and does not

10

860.

11

constitute legal error.

12

Had the conclusory and unsupported nature of Dr. Mariano’s report been the only reason given,

13

it would have been sufficient to support the ALJ’s finding that Dr. Mariano’s opinion was entitled to

14

minimal weight. See Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008).

15

Several Ninth Circuit cases have held that an ALJ's error was harmless where the ALJ provided one or

16

more invalid reasons for disbelieving a claimant's testimony, but also provided valid reasons that were

17

supported by the record. See Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir.

18

2009); Carmickle, 533 F.3d at 1162–63; Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1195–

19

97 (9th Cir.2004). An error is harmless so long as there remains substantial evidence supporting the

20

ALJ's decision and the error “does not negate the validity of the ALJ's ultimate conclusion.” Batson, 359

21

F.3d at 1197; see also Carmickle, 533 F.3d at 1162. Although the ALJ committed error in her findings

22

regarding Dr. Mariano’s opinion, her ultimate conclusion that it was entitled to minimal weight remains

23

supported by substantial evidence because Dr. Mariano’s assessment of Plaintiff’s functional limitations

24

was brief, conclusory, and unsubstantiated by relevant medical documentation.

25

2.

Remand is Required

26

The Court has considered Plaintiff's request to award benefits rather than remand the case for

27

additional proceedings but finds remand more appropriate. The decision whether to remand for further

28

proceedings or order an immediate award of benefits is within the Court’s discretion. See Harman v.
14

1

Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000). Unless “the record has been fully developed and further

2

administrative proceedings would serve no useful purpose,” remand for further proceedings is

3

warranted. Garrison, 759 F.3d at 1020. Here, the ALJ failed to properly consider Dr. Marselle’s opinion

4

and the circumstances of this case indicate that there are outstanding issues regarding the medical

5

evidence that must be resolved before a final determination can be made. Further administrative review

6

may remedy the ALJ’s errors and thus remand is appropriate. Ghanim, 763 F.3d at 1166 (finding remand

7

to Commissioner for further proceedings appropriate where ALJ’s reasons for discounting the opinions

8

of claimant’s treating providers and discrediting claimant’s testimony were not supported by substantial

9

evidence); McLeod v. Astrue, 640 F.3d 881, 888 (9th Cir. 2011). Moreover, even if the Court were to

10

credit Dr. Marselle’s opinion as true, this opinion would still conflict with the findings of other

11

physicians. The resolution of conflicting medical evidence is a determination solely for the ALJ. See

12

Andrews v. Shalala, 53 F.3d 1035, 1039-40 (9th Cir. 1995) (“The ALJ is responsible for determining

13

credibility, resolving conflicts in medical testimony, and for resolving ambiguities.”) (citations omitted);

14

see also Tommasetti, 533 F.3d at 1041 (“[T]he ALJ is the final arbiter with respect to resolving

15

ambiguities in the medical evidence.”). As it is not clear that “further administrative proceedings would

16

serve no useful purpose,” remand for further proceedings is appropriate. See Garrison, 759 F.3d at 1020.

17

CONCLUSION

18

Based on the foregoing, the Court finds that the ALJ’s disability determination warrants remand.

19

Accordingly, the decision is REVERSED and the case REMANDED to the ALJ for further proceedings.

20

On remand, the ALJ will reweigh the medical evidence and address the deficiencies identified by the

21

Court. If necessary, the Commissioner may hold further hearings and receive additional evidence.

22
23

Accordingly, the Clerk of the Court is DIRECTED to enter judgment in favor of Plaintiff Dalila
Barajas and against Defendant Nancy A. Berryhill, Acting Commissioner of Social Security.

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25
26
27

IT IS SO ORDERED.
Dated:

/s/ Barbara

February 26, 2019

A. McAuliffe

_

UNITED STATES MAGISTRATE JUDGE

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