Setu v. Commissioner of Social Security

Filing 18

ORDER signed by Magistrate Judge Edmund F. Brennan on 9/21/16 ORDERING that Plaintiff's motion for summary judgment is granted. The Commissioner's cross-motion for summary judgment is denied. The matter is REMANDED for further proceedings consistent with this order. The Clerk is directed to enter judgment in plaintiff's favor. CASE CLOSED (Kastilahn, A)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ROSE SETU, 12 Plaintiff, 13 14 15 No. 2:15-cv-597-EFB v. ORDER CAROLYN W. COLVIN, Acting Commissioner of Social Security Defendant. 16 17 Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security 18 19 (“Commissioner”) denying her applications for a period of disability and Disability Insurance 20 Benefits (“DIB”) and Supplemental Security Income (“SSI”) under Titles II and XVI of the 21 Social Security Act. The parties have filed cross-motions for summary judgment. For the 22 reasons discussed below, plaintiff’s motion for summary judgment is granted, the 23 Commissioner’s motion is denied, and the matter is remanded for further proceedings. 24 I. 25 BACKGROUND Plaintiff filed applications for a period of disability, DIB, and SSI, alleging that she had 26 been disabled since September 15, 2009. Administrative Record (“AR”) 228-240. Plaintiff’s 27 applications were denied initially and upon reconsideration. Id. at 122-126, 130-134. On 28 February 9, 2011, a hearing was held before administrative law judge (“ALJ”) Timothy S. 1 1 Snelling. Id. at 29-61. Plaintiff was represented by counsel at the hearing, at which she and her 2 daughter testified. Id. 3 On April 18, 2011, the ALJ issued a decision finding that plaintiff was not disabled under 4 sections 216(i), 223(d), and 1614(a)(3)(A) of the Act. Id. at 102-111. The Appeals Council 5 subsequently granted plaintiff’s request for review, vacated the ALJ’s decision, and remanded the 6 matter to the ALJ for further consideration of plaintiff’s mental impairments and to obtain 7 evidence from a vocational expert. Id. at 118-120. 8 Another hearing was held before the ALJ on June 6, 2013, at which plaintiff and a 9 vocational expert testified. Id. at 62-91. The ALJ issued a new decision on July 26, 2013, again 10 finding that plaintiff was not disabled under sections 216(i), 223(d), and 1614(a)(3)(A) of the1 11 Act.1 Id. at 11-21. The ALJ made the following specific findings: 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 1 Disability Insurance Benefits are paid to disabled persons who have contributed to the Social Security program, 42 U.S.C. §§ 401 et seq. Supplemental Security Income (“SSI”) is paid to disabled persons with low income. 42 U.S.C. §§ 1382 et seq. Under both provisions, disability is defined, in part, as an “inability to engage in any substantial gainful activity” due to “a medically determinable physical or mental impairment.” 42 U.S.C. §§ 423(d)(1)(a) & 1382c(a)(3)(A). A five-step sequential evaluation governs eligibility for benefits. See 20 C.F.R. §§ 423(d)(1)(a), 416.920 & 416.971-76; Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987). The following summarizes the sequential evaluation: Step one: Is the claimant engaging in substantial gainful activity? If so, the claimant is found not disabled. If not, proceed to step two. Step two: Does the claimant have a “severe” impairment? If so, proceed to step three. If not, then a finding of not disabled is appropriate. Step three: Does the claimant’s impairment or combination of impairments meet or equal an impairment listed in 20 C.F.R., Pt. 404, Subpt. P, App.1? If so, the claimant is automatically determined disabled. If not, proceed to step four. Step four: Is the claimant capable of performing his past work? If so, the claimant is not disabled. If not, proceed to step five. Step five: Does the claimant have the residual functional capacity to perform any other work? If so, the claimant is not disabled. If not, the claimant is disabled. 27 Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995). 28 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1. The claimant meets the insured status requirements of the Social Security Act through June 30, 2013. 2. The claimant has not engaged in substantial gainful activity since September 15, 2009, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.). 3. The claimant has the following medically severe combination of impairments: diabetes mellitus with history of retinopathy; loss of left eye vision; retinal detachment and neuropathy; major depression with psychotic features; bipolar disorder; hypertension; exogenous obesity; gastro-esophageal reflux disorder; mood disorder, not otherwise specified; borderline personality disorder; and psychotic disorder (20 CFR 404.1520(c) and 416.920(c)). *** 4. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, and 404.1526, 416.920(d), 416.925 and 416.926). *** 5. After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform a wide range of light work as defined in 20 CFR 404.1567(b) and 416.967(b), but she cannot perform work requiring good binocular vision, good depth perception or field of vision because of blindness in the left eye; the claimant is restricted to no more than occasional stooping and twisting and would need to avoid more than moderate exposure (no more than 50% of the work day) to hazards, unprotected heights, unprotected dangerous moving machinery etc. The claimant can have no more than occasional face-to-face interaction with the general public and the claimant is more than frequently but less than constantly able to understand, remember and carry out complex and detailed job instructions. *** 6. The claimant is unable to perform any past relevant work (20 CFR 404.1565 and 416.965). *** 7. The claimant was born on August 6, 2962 and was 47 years old, which is defined as an individual closely approaching advanced age, on the alleged disability onset date. The claimant subsequently changed age category to closely approaching advanced age (20 CFR 404.1563 and 416.963). The claimant bears the burden of proof in the first four steps of the sequential evaluation process. Yuckert, 482 U.S. at 146 n.5. The Commissioner bears the burden if the sequential evaluation process proceeds to step five. Id. 3 1 8. The claimant has a limited education and is able to communicate in English (20 CFR 404.1564 and 416.964). 2 3 9. Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is “not disabled,” whether or not the claimant has transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2). 4 5 6 10. Considering the claimant’s age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 404.1569, 404.1569(a), 416.969, and 416.969(a)). 7 8 *** 9 11. The claimant has not been under a disability, as defined in the Social Security Act, from September 15, 2009, through the date of this decision (20 CFR 404.1520(g) and 416.920(g)). 10 11 12 Id. at 13-22. 13 Plaintiff’s request for Appeals Council review was denied on January 26, 2015, leaving 14 15 the ALJ’s decision as the final decision of the Commissioner. Id. at 1-6. 16 II. LEGAL STANDARDS The Commissioner’s decision that a claimant is not disabled will be upheld if the findings 17 18 of fact are supported by substantial evidence in the record and the proper legal standards were 19 applied. Schneider v. Comm’r of the Soc. Sec. Admin., 223 F.3d 968, 973 (9th Cir. 2000); 20 Morgan v. Comm’r of the Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999); Tackett v. Apfel, 21 180 F.3d 1094, 1097 (9th Cir. 1999). The findings of the Commissioner as to any fact, if supported by substantial evidence, are 22 23 conclusive. See Miller v. Heckler, 770 F.2d 845, 847 (9th Cir. 1985). Substantial evidence is 24 more than a mere scintilla, but less than a preponderance. Saelee v. Chater, 94 F.3d 520, 521 (9th 25 Cir. 1996). “‘It means such evidence as a reasonable mind might accept as adequate to support a 26 conclusion.’” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. 27 N.L.R.B., 305 U.S. 197, 229 (1938)). 28 ///// 4 1 “The ALJ is responsible for determining credibility, resolving conflicts in medical 2 testimony, and resolving ambiguities.” Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 3 2001) (citations omitted). “Where the evidence is susceptible to more than one rational 4 interpretation, one of which supports the ALJ’s decision, the ALJ’s conclusion must be upheld.” 5 Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). 6 III. 7 ANALYSIS Plaintiff argues that the ALJ erred by (1) rejecting opinions from plaintiff’s treating, 8 examining, and non-examining physicians and (2) discrediting her testimony without providing 9 clear and convincing reasons. ECF No. 13-1 at 14-22. 10 Plaintiff first argues that the ALJ erred in rejecting opinions from three different 11 physicians assessing her mental limitations. Id. at 14-20. The weight given to medical opinions 12 depends in part on whether they are proffered by treating, examining, or non-examining 13 professionals. Lester, 81 F.3d at 834. Ordinarily, more weight is given to the opinion of a 14 treating professional, who has a greater opportunity to know and observe the patient as an 15 individual. Id.; Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996). To evaluate whether an 16 ALJ properly rejected a medical opinion, in addition to considering its source, the court considers 17 whether (1) contradictory opinions are in the record; and (2) clinical findings support the 18 opinions. An ALJ may reject an uncontradicted opinion of a treating or examining medical 19 professional only for “clear and convincing” reasons. Lester, 81 F.3d at 831. In contrast, a 20 contradicted opinion of a treating or examining medical professional may be rejected for “specific 21 and legitimate” reasons that are supported by substantial evidence. Id. at 830. While a treating 22 professional’s opinion generally is accorded superior weight, if it is contradicted by a supported 23 examining professional’s opinion (e.g., supported by different independent clinical findings), the 24 ALJ may resolve the conflict. Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995) (citing 25 Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)). However, “[w]hen an examining 26 physician relies on the same clinical findings as a treating physician, but differs only in his or her 27 conclusions, the conclusions of the examining physician are not ‘substantial evidence.’” Orn v. 28 Astrue, 495 F.3d 625, 632 (9th Cir. 2007). 5 1 Plaintiff’s treating physician, Dr. John O’Neal, completed a medical opinion form 2 regarding plaintiff’s mental impairments. AR 523-526. Dr. O’Neal had been treating plaintiff 3 every three months over a one and a half year period. Id. at 523. He diagnosed plaintiff with 4 mood disorder and a psychotic disorder and indicated that her symptoms included depressed 5 mood, suicidal thoughts, insomnia, irritability, lack of energy, impaired concentration, frequent 6 mood swings, and impulsive behavior. Id. at 523-525. It was his opinion that plaintiff had a poor 7 to no ability to behave in an emotionally stable manner, relate predictably in social situations, and 8 demonstrate reliability. Id. at 524. He further opined that plaintiff would likely be absent from 9 work for more than four days a month due to her mental impairments, and that she is incapable of 10 11 performing even low stress jobs. Id. at 526. Plaintiff underwent a complete psychiatric evaluation, which was performed by Dr. 12 Bradley Daigle, M.D., an examining physician. Id. at 420-425. Dr. Daigle found that plaintiff 13 was alert, cooperative, and basically oriented, but poorly responsive with obvious depression and 14 limited eye contact. Id. at 422-423. Her affect was glum, humorless, sad, and virtually 15 expressionless with psychomotor retardation. Id. at 423. Dr. Daigle diagnosed plaintiff with 16 major depression with psychotic features, currently untreated.2 Id. at 424. He opined that 17 plaintiff is moderately limited in following detailed and complex instructions, but only slightly 18 limited in understanding, remembering, and carrying out simple 1 or 2-step instructions; 19 moderately limited in relating and interaction with supervisors, co-workers, and the public; 20 moderately limited in maintaining concentration and attention, persistence and pace; and 21 moderately to markedly limited in her ability to associate with day-to-day work activity and in 22 adapting to stresses common to a normal work environment. Id. at 425. 23 The record also contains an opinion from Dr. K. Loomis, a non-examining physician. Id. 24 at 338-440. Dr. Loomis opined that plaintiff is capable of understanding, remembering and 25 carryout one to two step tasks; maintaining concentration, persistence and pace throughout a 26 normal workday/workweeks as related to simple tasks; interacting adequately with coworkers and 27 28 2 Dr. Daigle provided his opinion in May 2010, prior to plaintiff receiving treatment from Dr. O’Neil. AR 420, 523. 6 1 supervisors but may have difficulty dealing with the demands of contact with the general public. 2 Id. at 440. 3 In assessing plaintiff’s RFC, the ALJ gave “reduced weight” to Dr. O’Neil’s treating 4 opinion, “moderate weight” to Dr. Daigle’s examining opinion, and “great weight” to Dr. 5 Loomis’s non-examining opinions. Id. at 18-19. 6 Plaintiff first argues that the ALJ erred by rejecting Dr. O’Neil’s opinion without 7 providing specific and legitimate reasons. ECF No. 13-1. The ALJ gave reduced weight to Dr. 8 O’Neal’s opinion because it was provided “in a form consisting largely of checked boxes without 9 further explanation,” and it was inconsistent and contrasted by other evidence in the record, 10 including plaintiff’s daily activities and her ability to walk with a normal gait. 11 An “ALJ need not accept the opinion of any physician, including a treating physician, if 12 that opinion is brief, conclusory, and inadequately supported by clinical findings.” Chaudhry v. 13 Astrue, 688 F.3d 661, 671 (9th Cir. 2012) (quoting Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 14 1219, 1228 (9th Cir. 2009)). Dr. O’Neal’s opinion was obtained by way of a check-the-box form. 15 AR 523-526. However, rather than simply check boxes, Dr. O’Neal explained that his opinion 16 was based on plaintiff’s symptoms of depression and suicidal thoughts, as well as frequent mood 17 swings and impulsive behavior. Id. at 524-525. Thus, notwithstanding the use of a check-the-box 18 form, Dr. O’Neal did identify the clinical findings that supported his opinion. 19 Moreover, the court finds that the ALJ’s reliance on the brevity of Dr. O’Neal’s opinion 20 was not a specific and legitimate reason in the instant case. The ALJ rejected Dr. O’Neal’s 21 treating opinion in favor of Dr. Loomis’s opinion. Dr. Loomis, however, also provided his 22 opinion in a check-the-box form. But unlike Dr. O’Neal, Dr. Loomis did not provide any 23 explanation for his opinion. To reject a treating opinion on the basis that it is conclusory and 24 unsupported in favor of a non-examining opinion that is, at the very least, equally conclusory is 25 not a legitimate reason for discounting the treating doctor’s opinion. 26 The ALJ also concluded that Dr. O’Neal’s “findings are inconsistent and contrast sharply 27 with the other evidence of record, rendering them less persuasive.” AR 19. Specifically, the 28 ALJ concluded that Dr. O’Neal’s opinion was inconsistent with evidence showing that plaintiff 7 1 walks with a normal gait, prepares her own meals, does dishes, cleaning, dusting, and vacuuming. 2 Id. There no apparent inconsistency between Dr. O’Neal’s opinion and the ability to perform 3 these activities. The ability to walk with a normal gait has no relevance to Dr. O’Neal’s opinion, 4 which was based on plaintiff’s mental impairments. See id. at 525 (opining that plaintiff could 5 perform less than sedentary work due to her “emotion stability.”). Furthermore, the ability to 6 perform light house work does not conflict with Dr. O’Neal’s opinion that plaintiff’s is severely 7 limited in her ability to behave in an emotionally stable manner, relate predictably in social 8 situations, and handle stress. Cf Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001) (“This 9 court has repeatedly asserted that the mere fact that a plaintiff has carried on certain daily 10 activities, such as grocery shopping, driving a car, or limited walking for exercise, does not in any 11 way detract from her credibility as to her overall disability.”); Fair v. Bowen, 885 F.2d 597, 603 12 (9th Cir. 1989) (“Social Security Act does not require that claimants be utterly incapacitated to be 13 eligible for benefits”). Accordingly, the ALJ failed to provide specific and legitimate reasons for 14 rejecting Dr. O’Neal’s treating opinion. 15 Plaintiff further argues that the ALJ erred in rejecting Dr. Diagle’s opinion that plaintiff is 16 slightly limited in her ability to understand, remember, and carry out simple 1 or 2-step job 17 instructions and moderately limited in following detailed and complex instructions. ECF No. 13 18 at 18-19. The ALJ rejected this portion of Dr. Daigle’s opinion, finding that it was inconsistent 19 with evidence in the record showing that plaintiff maintained the ability to pay bills, count change 20 and use a checkbook or money orders. AR 19. 21 The evidence cited by the ALJ does not establish plaintiff’s ability to independently 22 manage her finances. While plaintiff states that she can pay bills, count change, and use a 23 checkbook, she also states that she has difficulty managing her savings account. Id. at 293. She 24 explains that she doesn’t always remember how much money is in her account and that she may 25 overdrafted the account. Id. at 293. She further states that she doesn’t “really know what I have 26 unless its in front of me” or she receives assistance from her fiancé. Id. at 294. 27 28 Thus, the record merely establishes that plaintiff has the ability to count money and write a check. The ability to perform these activities is not tantamount to the ability to more frequently 8 1 understand, remember and carry out complex and detailed job instructions. Accordingly, the ALJ 2 failed to give sufficient reasons for rejecting Dr. O’Neal’s examining opinion. 3 As the ALJ erred in rejecting the opinions from both plaintiffs’ treating and examining 4 physicians, this matter must be remanded for further proceedings.3 5 IV. CONCLUSION 6 Accordingly, it is hereby ORDERED that: 7 1. Plaintiff’s motion for summary judgment is granted; 8 2. The Commissioner’s cross-motion for summary judgment is denied; 9 3. The matter is remanded for further proceedings consistent with this order; and 10 11 4. The Clerk is directed to enter judgment in plaintiff’s favor. DATED: September 21, 2016. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 Because the court finds that remand is necessary for further consideration of the medical evidence, the court declines to address plaintiff’s additional arguments. 9

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