Mejia v. Commissioner of Social Security

Filing 25

ORDER signed by Magistrate Judge Edmund F. Brennan on 9/22/16 ORDERING that Plaintiff's MOTION for Summary Judgment 20 is granted; The Commissioner's Cross-MOTION for Summary Judgment 21 is DENIED; The matter is REMANDED for further proceedings consistent with this order; and The Clerk is directed to enter judgment in Plaintiff's favor. CASE CLOSED. (Mena-Sanchez, L)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RUBEN MEJIA,

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Plaintiff,

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No. 2:15-cv-707-EFB

v.

ORDER

CAROLYN W. COLVIN, Acting
Commissioner of Social Security
Defendant.

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Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security

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(“Commissioner”) denying his applications for a period of disability and Disability Insurance

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Benefits (“DIB”) and Supplemental Security Income (“SSI”) under Titles II and XVI of the

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Social Security Act. The parties’ cross-motions for summary judgment are pending. For the

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reasons discussed below, plaintiff’s motion for summary judgment is granted and the

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Commissioner’s motion is denied.

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I.

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BACKGROUND
Plaintiff filed applications for a period of disability, DIB, and SSI, alleging that he had

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been disabled since June 1, 2008. Administrative Record (“AR”) 232-244. His applications were

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denied initially and upon reconsideration. Id. at 146-151, 153-158. On April 30, 2013, a hearing

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was held before administrative law judge (“ALJ”) Jean R. Kerins. Id. at 53-83. Plaintiff was

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represented by counsel at the hearing, at which he and a vocational expert testified. Id.
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On June 27, 2013, the ALJ issued a decision finding that plaintiff was not disabled under

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sections 216(i), 223(d), and 1614(a)(3)(A) of the Act.1 Id. at 35-45. The ALJ made the following

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specific findings:

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1. The claimant meets the insured status requirements of the Social Security Act through
December 31, 2013.
2. The claimant has not engaged in substantial gainful activity since June 1, 2008, the
alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).

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3. The claimant has the following severe impairments: history of bilateral knee surgeries,
back pain and obesity (20 CFR 404.1520(c) and 416.920(c)).
***

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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.

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Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995).

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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.
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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, 404.1526, 416.920(d), 416.925 and
416.926).

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***

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5. After careful consideration of the entire record, the undersigned finds that the claimant has
the residual functional capacity to perform light work as defined under the Regulations
except he is limited to frequent stooping, crouching, crawling and kneeling (20 CFR
404.1567(b) and 416.967(b).

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***

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6. The claimant is capable of performing past relevant work as a barista. This work does not
require the performance of work-related activities precluded by the claimant’s residual
functional capacity (20 CFR 404.1565 and 416.965).

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***

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7. The claimant has not been under a disability, as defined in the Social Security Act, from
June 1, 2008, through the date of this decision (20 CFR 404.1520(f) and 416.920(f)).

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Id. at 37-45.
Plaintiff’s request for Appeals Council review was denied on January 27, 2015, leaving

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the ALJ’s decision as the final decision of the Commissioner. Id. at 1-6.

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II.

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LEGAL STANDARDS
The Commissioner’s decision that a claimant is not disabled will be upheld if the findings

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of fact are supported by substantial evidence in the record and the proper legal standards were

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applied. Schneider v. Comm’r of the Soc. Sec. Admin., 223 F.3d 968, 973 (9th Cir. 2000);

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Morgan v. Comm’r of the Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999); Tackett v. Apfel,

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180 F.3d 1094, 1097 (9th Cir. 1999).

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The findings of the Commissioner as to any fact, if supported by substantial evidence, are

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conclusive. See Miller v. Heckler, 770 F.2d 845, 847 (9th Cir. 1985). Substantial evidence is

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more than a mere scintilla, but less than a preponderance. Saelee v. Chater, 94 F.3d 520, 521 (9th

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Cir. 1996). “‘It means such evidence as a reasonable mind might accept as adequate to support a

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conclusion.’” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v.

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N.L.R.B., 305 U.S. 197, 229 (1938)).
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“The ALJ is responsible for determining credibility, resolving conflicts in medical

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testimony, and resolving ambiguities.” Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir.

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2001) (citations omitted). “Where the evidence is susceptible to more than one rational

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interpretation, one of which supports the ALJ’s decision, the ALJ’s conclusion must be upheld.”

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Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002).

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III.

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ANALYSIS
Plaintiff argues that the ALJ erred by (1) finding that he did not have mental impairments

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that impacted his ability to work, and (2) that the Appeals Council failed to provide sufficient

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reasons for rejecting evidence. ECF No. 20 at 5-12.

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Plaintiff argues that the ALJ erred at step two and step four of the sequential evaluation

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process by finding that his mental impairments did not limit his ability to work. Plaintiff

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contends that the ALJ erred in assessing his limitations by rejecting medical opinions from

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treating, examining, and non-examining sources.

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The weight given to medical opinions depends in part on whether they are proffered by

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treating, examining, or non-examining professionals. Lester, 81 F.3d at 834. Ordinarily, more

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weight is given to the opinion of a treating professional, who has a greater opportunity to know

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

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1996). To evaluate whether an ALJ properly rejected a medical opinion, in addition to

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considering its source, the court considers whether (1) contradictory opinions are in the record;

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and (2) clinical findings support the opinions. An ALJ may reject an uncontradicted opinion of a

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treating or examining medical professional only for “clear and convincing” reasons. Lester, 81

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F.3d at 831. In contrast, a contradicted opinion of a treating or examining medical professional

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may be rejected for “specific and legitimate” reasons that are supported by substantial evidence.

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Id. at 830. While a treating professional’s opinion generally is accorded superior weight, if it is

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contradicted by a supported examining professional’s opinion (e.g., supported by different

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independent clinical findings), the ALJ may resolve the conflict. Andrews v. Shalala, 53 F.3d

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1035, 1041 (9th Cir. 1995) (citing Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)).

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However, “[w]hen an examining physician relies on the same clinical findings as a treating

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physician, but differs only in his or her conclusions, the conclusions of the examining physician

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are not ‘substantial evidence.’” Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007).

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Plaintiff received treatment from Dodie Newman, a speech pathologist. Plaintiff was

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diagnosed with acquired brain injury from carbon monoxide poisoning, which resulted in deficits

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in cognitive communication. AR 502. Ms. Newman found that plaintiff’s short term memory is

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impaired and his cognitive endurance is poor, resulting in difficultly maintaining concentration.

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Id. at 502. It was her opinion that plaintiff had a good (limited but satisfactory) to fair (seriously

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limited, but not precluded) ability to deal with work stresses and function independently. Id. at

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502. She also opined that plaintiff had a fair ability to maintain attention/concentration and

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understand, remember, and carry out complex jobs. Id. at 502-503. Ms. Newman also opined

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that plaintiff would need to switch tasks after 15 minutes due to cognitive fatigue.2 Id. at 503.

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Plaintiff underwent a psychological evaluation, which was completed by Dr. Jack Latow,

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Ph.D. Id. at 356-361. Dr. Latow diagnosed plaintiff with major depressive disorder, moderate;

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and cognitive disorder, mild to moderate. Id. at 360. It was his opinion that plaintiff could

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perform simple, repetitive, one and two-step tasks; and detailed tasks, but would have moderate

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difficulty with detailed and complex tasks due to his cognitive impairments and interference with

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psychological symptoms. Id. at 360. He further opined that plaintiff would have moderate

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difficulty managing the pace of a normal workday; moderate difficulty managing changes during

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Ms. Newman holds a Certificate of Clinical Competence in Speech-Language Pathology
(“CCC”). A speech-language pathologist holding a CCC is an acceptable medical source for
purposes of establishing speech or language impairments. 20 C.F.R. §§ 404.1513(a)(5),
416.913(a)(5). Plaintiff contends that Ms. Newman’s opinion was a treating opinion because it
concerned plaintiff’s cognitive-communication disorder. ECF No. 20 at 13-14. “Cognitivecommunication disorders encompass difficulty with any aspect of communication that is affected
by disruption of cognition . . . . Cognition includes cognitive process and systems (e.g., attention,
perception, memory, organization, executive functions). Areas of function affected by cognitive
impairments include behavioral self-regulation, social interaction, activities of daily living,
learning and academic performance, and vocational performance.” American Speech-LanguageHearing Association, http://www.asha.org/policy/PS2005-00110 (last visited on September 11,
2016). The Commissioner does not dispute Ms. Newman’s status as a treating source, but
contends that the ALJ did not error in rejecting her opinion. As the parties do not dispute her
status, the court considers Ms. Newman a treating source.
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a normal workday; and significant difficulty managing the stress of a normal workday. Id. It was

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also his opinion that plaintiff would be able to get along with other people. Id.

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The record also contains opinions from two non-examining physicians. Based on his

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review of the record, Dr. Timothy Schumacher, Ph.D., opined that plaintiff was moderately

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limited in carrying out detailed instructions; maintaining attention and concentration for extended

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periods of time; completing a normal workday and workweek without interruption from

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psychologically-based symptoms; and performing at a consistent pace without unreasonable

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number of rest periods. Id. at 93-94. He further opined that plaintiff was moderately limited in

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interacting appropriately with the general public and accepting instructions and responding

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appropriately to criticism from supervisors, but could engage in routine contacts with coworkers

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and supervisors in settings where major collaboration with others is not involved. Id. at 94. Dr.

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Michael Hammonds, Ph.D., a non-examining physician, agreed with Dr. Schumacher’s opinion.

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Id. at 125-126.

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In assessing plaintiff’s mental impairments, the ALJ summarized the opinions provided by

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Ms. Newman, Dr. Schumacher, and Michael Hammonds. Although each of these sources

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concluded that plaintiff had at least moderate mental impairments, the ALJ determined that

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plaintiff’s mental impairments were not severe. In reaching this conclusion, the ALJ gave no

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explanation for why these opinions were rejected. An ALJ, however, is not permitted to

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disregard opinions from treating and examining sources without explanation. Lester, 81 F.3d at

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830 (An ALJ must provide specific and legitimate reasons for rejecting a treating or examining

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medical professional’s opinion); Flores v. Shalala, 49 F.3d 562, 570 (9th Cir. 1995) (An ALJ

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“may not reject ‘significant probative evidence’ without explanation.”); see also SSR 96-6p

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(ALJs cannot ignore opinions from state agency physicians and psychologist and must explain the

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weight given to these opinion in their decision).

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The Commissioner argues that the ALJ properly rejected Ms. Newman’s opinion because

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subsequent treatment records indicated that plaintiff made steady gains in treatment and his

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impairments improved. ECF No. 21 at 10. The ALJ, however, did not find that Ms. Newman’s

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opinion was inconsistent with treatment records demonstrating improvement. See Bray v.
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Comm’r Soc. Sec. Admin., 554 F.3d 1219, 1225 (9th Cir. 2009) (“Long-standing principles of

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administrative law require [the court] to review the ALJ’s decision based on the reasoning and

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factual findings offered by the ALJ—not post hoc rationalizations that attempt to intuit what the

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adjudicator may have been thinking.”); Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003) (a

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district court is “constrained to review the reasons the ALJ asserts”). Accordingly, the

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Commissioner’s post hoc rationalization may not serve as a basis for rejecting these opinions.

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The Commissioner further argues that any failure to explain why Ms. Newman’s opinion

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was rejected was harmless because Ms. Newman did not assess any impairment that would

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preclude plaintiff from performing her past work as a barista. ECF No. 21 at 10. The

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Commissioner explains that “according to the Dictionary of Occupational Titles (DOT), a

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barista’s job functions are limited to accepting and calling orders, serving customers, processing

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payment, preparing short order items, and cleaning” and that these “tasks are not implicated by

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Ms. Newman’s opinion.” Id. at 11. This argument requires the court to speculate as to why the

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ALJ rejected Ms. Newman’s opinion.

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Ms. Newman opined that plaintiff has serious limitations in maintaining attention and

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concentration, and that plaintiff would need to switch tasks after 15 minutes due to cognitive

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fatigue. Id. at 503. The vocational expert did not testify that an individual with such impairments

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could work as a barista, and there is no evidence that an individual with this impairment would be

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able to do so. See id. at 74-82 (transcript of vocational expert’s testimony); see also Tackett v.

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Apfel, 180 F.3d 1094, 1101 (9th Cir. 1999) (An ALJ may rely on a vocational expert “to testify as

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to . . . what jobs the claimant, given his or her functional capacity, would be able to do . . . .”).

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Accordingly, the ALJ’s failure to provide legally sufficient reasons for rejecting Ms. Newman’s

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opinion was not harmless.

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The only opinion addressed by the ALJ was Dr. Latow’s opinion, which the ALJ accorded

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reduced weight. Plaintiff argues that the ALJ’s reasons for rejecting Dr. Latow’s opinion are

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insufficient and not supported by substantial evidence. The court need not decide whether the

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reasons were sufficient because, even assuming that they were, the ALJ failed to give any

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justification for rejecting the other medical opinions concluding that plaintiff had moderate
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mental impairments. Accordingly, the ALJ’s finding that plaintiff’s mental impairments are not

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severe is not supported by substantial evidence and this case must be remanded for further

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consideration of plaintiff’s mental impairments.3 Dominguez v. Colvin, 808 F.3d 403, 407 (9th

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Cir. 2015) (“Unless the district court concludes that further administrative proceedings would

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serve no useful purpose, it may not remand with a direction to provide benefits.”).

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IV.

CONCLUSION

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Accordingly, it is hereby ORDERED that:

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1. Plaintiff’s motion for summary judgment is granted;

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2. The Commissioner’s cross-motion for summary judgment is denied;

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3. The matter is remanded for further proceedings consistent with this order; and

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4. The Clerk is directed to enter judgment in plaintiff’s favor.

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DATED: September 22, 2016.

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The court does not address plaintiff’s remaining argument that the Appeals Council
failed to properly consider evidence plaintiff submitted after the ALJ’s decision issued. ECF No.
20 at 16-18. The ALJ will be able to address in the first instance any new evidence on remand.
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