Morales v. Commissioner of Social Security

Filing 24

ORDER signed by Magistrate Judge Deborah Barnes on 3/7/2017 ORDERING that Plaintiff's 19 motion for summary judgment is GRANTED. Defendant's 23 cross-motion for summary judgment is DENIED. The Commissioner's decision is REVERSED. This matter is REMANDED for the immediate award of benefits. The Clerk of the Court shall enter judgment for plaintiff, and close this case. CASE CLOSED. (Zignago, K.)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MIGUEL ANGEL MORALES,

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Plaintiff,

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No. 2:15-cv-1822 DB

v.

ORDER

NANCY A. BERRYHILL, Acting
Commissioner of Social Security,

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Defendant.

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This social security action was submitted to the court without oral argument for ruling on

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plaintiff’s motion for summary judgment.1 Plaintiff argues that the ALJ’s treatment of the

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medical opinion evidence, plaintiff’s subjective testimony, and the ALJ’s residual functional

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capacity determination constituted error. For the reasons explained below, plaintiff’s motion is

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granted, the decision of the Commissioner of Social Security (“Commissioner”) is reversed, and

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the matter is remanded for the payment of benefits.

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PROCEDURAL BACKGROUND

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On March 21, 2012, plaintiff filed an application for Supplemental Security Income

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(“SSI”) under Title XVI of the Social Security Act (“the Act”) alleging disability beginning on

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Both parties have previously consented to Magistrate Judge jurisdiction in this action pursuant
to 28 U.S.C. § 636(c). (See ECF Nos. 8 & 10.)
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January 1, 2004. (Transcript (“Tr.”) at 28, 174-83.) Plaintiff’s application was denied initially,

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(id. at 100-05), and upon reconsideration. (Id. at 113-17.)

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Thereafter, plaintiff requested a hearing which was held before an Administrative Law

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Judge (“ALJ”) in December of 2013. (Id. at 28, 46-67.) Plaintiff was represented by an attorney

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and testified at the administrative hearing. (Id. at 46-47.) In a decision issued on February 28,

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2014, the ALJ found that plaintiff was not disabled. (Id. at 41.) The ALJ entered the following

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findings:

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1. The claimant has not engaged in substantial gainful activity
since March 21, 2012, the application date (20 CFR 416.971 et
seq.).
2. The claimant has the following severe impairments: mild L5-S1
degenerative disc disease (DDD), hearing loss, moderate, recurrent,
major depressive disorder, and posttraumatic stress disorder (20
CFR 416.920(c)).
3. 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 416.920(d), 416.925 and 416.926).

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4. After careful consideration of the entire record, the undersigned
finds that the claimant has the residual functional capacity to
perform medium work as defined in 20 CFR 416.967(c) except
avoid concentrated exposure to noise and mentally limited to simple
routine tasks with no public contact.

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5. The claimant has no past relevant work (20 CFR 416.965).

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6. The claimant was born on June 1, 1967 and was 44 years old,
which is defined as a younger individual age 18-49, on the date the
application was filed (20 CFR 416.963).

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7. The claimant has a limited education and is able to communicate
in English (20 CFR 416.964).
8. Transferability of job skills is not an issue because the claimant
does not have past relevant work (20 CFR 416.968).
9. 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 416.969 and 416.969(a)).
10. The claimant has not been under a disability, as defined in the
Social Security Act, since March 21, 2012, the date the application
was filed (20 CFR 416.920(g)).
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(Id. at 30-41.)

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On June 30, 2015, the Appeals Council denied plaintiff’s request for review of the ALJ’s

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February 28, 2014 decision. (Id. at 1-3.) Plaintiff sought judicial review pursuant to 42 U.S.C. §

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405(g) by filing the complaint in this action on August 28, 2015. (ECF No. 1.)

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LEGAL STANDARD
“The district court reviews the Commissioner’s final decision for substantial evidence,

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and the Commissioner’s decision will be disturbed only if it is not supported by substantial

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evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 1158-59 (9th Cir. 2012).

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Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to

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support a conclusion. Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001); Sandgathe v.

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Chater, 108 F.3d 978, 980 (9th Cir. 1997).

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“[A] reviewing court must consider the entire record as a whole and may not affirm

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simply by isolating a ‘specific quantum of supporting evidence.’” Robbins v. Soc. Sec. Admin.,

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466 F.3d 880, 882 (9th Cir. 2006) (quoting Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir.

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1989)). If, however, “the record considered as a whole can reasonably support either affirming or

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reversing the Commissioner’s decision, we must affirm.” McCartey v. Massanari, 298 F.3d

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1072, 1075 (9th Cir. 2002).

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A five-step evaluation process is used to determine whether a claimant is disabled. 20

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C.F.R. § 404.1520; see also Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). The five-step

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process has been summarized as follows:

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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.
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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).
The claimant bears the burden of proof in the first four steps of the sequential evaluation

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process. Bowen v. Yuckert, 482 U.S. 137, 146 n. 5 (1987). The Commissioner bears the burden

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if the sequential evaluation process proceeds to step five. Id.; Tackett v. Apfel, 180 F.3d 1094,

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1098 (9th Cir. 1999).

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APPLICATION

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In his pending motion plaintiff argues that the ALJ committed the following three

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principal errors: (1) the ALJ’s treatment of the medical opinion evidence constituted error; (2)

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the ALJ’s treatment of plaintiff’s subjective testimony constituted error; and (3) the ALJ erred in

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determining plaintiff’s residual functional capacity.2 (Pl.’s MSJ (ECF No. 19) at 12-20.3)

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I.

Medical Opinion Evidence
The weight to be given to medical opinions in Social Security disability cases depends in

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part on whether the opinions are proffered by treating, examining, or nonexamining health

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professionals. Lester, 81 F.3d at 830; Fair v. Bowen, 885 F.2d 597, 604 (9th Cir. 1989). “As a

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general rule, more weight should be given to the opinion of a treating source than to the opinion

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of doctors who do not treat the claimant . . . .” Lester, 81 F.3d at 830. This is so because a

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treating doctor is employed to cure and has a greater opportunity to know and observe the patient

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as an individual. Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996); Bates v. Sullivan, 894

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F.2d 1059, 1063 (9th Cir. 1990).
The uncontradicted opinion of a treating or examining physician may be rejected only for

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clear and convincing reasons, while the opinion of a treating or examining physician that is

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controverted by another doctor may be rejected only for specific and legitimate reasons supported

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by substantial evidence in the record. Lester, 81 F.3d at 830-31. “The opinion of a nonexamining

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physician cannot by itself constitute substantial evidence that justifies the rejection of the opinion

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The court has reordered plaintiff’s claims for purposes of clarity and efficiency.
Page number citations such as this one are to the page number reflected on the court’s CM/ECF
system and not to page numbers assigned by the parties.
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of either an examining physician or a treating physician.” (Id. at 831.) Finally, although a

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treating physician’s opinion is generally entitled to significant weight, “‘[t]he ALJ need not

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accept the opinion of any physician, including a treating physician, if that opinion is brief,

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conclusory, and inadequately supported by clinical findings.’” Chaudhry v. Astrue, 688 F.3d 661,

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671 (9th Cir. 2012) (quoting Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th Cir.

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2009)).
Here, plaintiff challenges the ALJ’s treatment of opinion offered by plaintiff’s treating

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physician, Dr. Eduardo R. Morales.4 (Pl.’s MSJ (ECF No. 19) at 13-15.) In this regard, Dr.

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Morales opined on May 30, 2013, that plaintiff had “a permanent, chronic, Mental Health

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Condition which [was] so impairing that he [was] not able to work.” (Tr. at 576.) Dr. Morales

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expected the “condition to be impairing for the period of time from 5/30/13 to 5/30/14.” (Id.)
The ALJ’s decision failed to mention Dr. Morales by name, instead referring to his

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opinion as “the Parole Outpatient Clinic opinion,” which the ALJ afforded “minimal weight.”

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(Id. at 39.) In this regard, the ALJ found Dr. Morales’ opinion “inconsistent with the SA

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[nonexamining State Agency physician] determinations and mental CE [Consultative

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Examination] opinions” that found plaintiff could perform unskilled work. (Id.)

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Where an ALJ does not explicitly reject a medical opinion or set
forth specific, legitimate reasons for crediting one medical opinion
over another, he errs. In other words, an ALJ errs when he rejects a
medical opinion or assigns it little weight while doing nothing more
than ignoring it, asserting without explanation that another medical
opinion is more persuasive, or criticizing it with boilerplate
language that fails to offer a substantive basis for his conclusion.

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Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014) (citation omitted); see also Embrey v.

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Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988) (“To say that medical opinions are not supported by

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sufficient objective findings or are contrary to the preponderant conclusions mandated by the

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objective findings does not achieve the level of specificity . . . required, even when the objective

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factors are listed seriatim. The ALJ must do more than offer his conclusions. He must set forth

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It appears Dr. Morales was a Psychiatrist. “We generally give more weight to the opinion of a
specialist about medical issues related to his or her area of specialty than to the opinion of a
source who is not a specialist.” 20 C.F.R. § 404.1527(c)(5).
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his own interpretations and explain why they, rather than the doctors’, are correct.”).5
The ALJ’s decision went on to state:

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Additionally, the parole chart notes indicated he experienced some
improvement with medications, was seen primarily by an LCSW
[Licensed Clinical Social Worker] and did not require a psychiatric
hospitalization or any 5150 mental health admissions. His nonmental health treating sources contained no mental clinical findings,
psychiatrist examinations were normal, and contained no evidence
of suicidal ideations.6 No mental difficulties were perceived when
he filed his application, and there was no evidence the claimant
underwent intensive individual therapy.
Finally, no mental
problems were noted during the internal medicine CE, and the
claimant did not allege depression or anxiety in identifying his
complaints.

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(Tr. at 39.) None of these reasons, however, are specific and legitimate reasons supported by

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substantial evidence in the record to reject Dr. Morales’ opinion.
In this regard, that plaintiff experienced “some improvement with medications” does not

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speak to Dr. Morales’ opinion. Improvement with treatment is to be expected. The mere

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occurrence of “some improvement,” does not undermine a treating physician’s opinion that their

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patient’s impairments render him unable to work. Nor does the fact that plaintiff’s treatment

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included counseling from a social worker, as those with mental impairments are often treated with

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counseling.

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Similarly, that plaintiff was not psychiatrically hospitalized does not mean that he did not

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have a mental health impairment that prevented him from working. A claimant may suffer from

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mental health impairments that prevent him from working but do not require psychiatric

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hospitalization. Nor does the fact that providers unrelated to plaintiff’s mental health treatment

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did not perceive his mental health impairments, or that plaintiff only discussed his mental health

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impairments with those providing his mental health care in any way undermine Dr. Morales’

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opinion.

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Moreover, “‘[t]he opinion of a nonexamining physician cannot by itself constitute substantial
evidence that justifies the rejection of the opinion of . . . a treating physician.’” Hill v. Astrue,
698 F.3d 1153, 1160 (9th Cir. 2012) (quoting Lester, 81 F.3d at 831).
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A September 16, 2013 treatment note reflected that plaintiff experienced “recent SI [Suicidal
Ideation].” (Tr. at 565.)
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Moreover, Dr. Morales’ opinion was supported by plaintiff’s treatment notes. In this

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regard, a May 2, 2013 mental status examination noted that plaintiff’s concentration was

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“Impaired,” his demeanor was “sad,” his energy was low, anxiety high, plaintiff’s affect was

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“Constricted,” and his thoughts were racing. (Id. at 543.) May 30, 2013, and June 6, 2013,

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mental status examinations were similar, but also found that plaintiff’s insight and judgement

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were “Impaired.” (Id. at 574, 576.) Each of these treatment notes reflects that Dr. Morales was

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asked if plaintiff was able to work full time or with a modified work schedule, and each time Dr.

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Morales answered “No.”7 (Id. at 543, 575, 576.)

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For the reasons stated above, the court finds that the ALJ failed to provide specific and

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legitimate reasons supported by substantial evidence in the record for rejecting the opinion of Dr.

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Morales. Accordingly, plaintiff is entitled to summary judgment on his claim that the ALJ’s

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treatment of the medical opinion evidence constituted error.

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II.

Plaintiff also argues that the ALJ’s treatment of plaintiff’s subjective testimony

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constituted error. (Pl.’s MSJ (ECF No. 19) at 18-20.)
The Ninth Circuit has summarized the ALJ’s task with respect to assessing a claimant’s

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Subjective Testimony

credibility as follows:
To determine whether a claimant’s testimony regarding subjective
pain or symptoms is credible, an ALJ must engage in a two-step
analysis. First, the ALJ must determine whether the claimant has
presented objective medical evidence of an underlying impairment
which could reasonably be expected to produce the pain or other
symptoms alleged. The claimant, however, need not show that her
impairment could reasonably be expected to cause the severity of
the symptom she has alleged; she need only show that it could
reasonably have caused some degree of the symptom. Thus, the
ALJ may not reject subjective symptom testimony . . . simply
because there is no showing that the impairment can reasonably
produce the degree of symptom alleged.

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Second, if the claimant meets this first test, and there is no evidence
of malingering, the ALJ can reject the claimant’s testimony about
the severity of her symptoms only by offering specific, clear and
convincing reasons for doing so . . . .

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It appears Dr. Morales also examined plaintiff on October 17, 2013, with nearly identical
results. (Tr. at 561-62.)
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Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007) (citations and quotation marks

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omitted). “The clear and convincing standard is the most demanding required in Social Security

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cases.” Moore v. Commissioner of Social Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002). “At

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the same time, the ALJ is not required to believe every allegation of disabling pain, or else

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disability benefits would be available for the asking . . . .” Molina v. Astrue, 674 F.3d 1104, 1112

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(9th Cir. 2012).

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“The ALJ must specifically identify what testimony is credible and what testimony

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undermines the claimant’s complaints.” Valentine v. Commissioner Social Sec. Admin., 574

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F.3d 685, 693 (9th Cir. 2009) (quoting Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595,

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599 (9th Cir. 1999)). In weighing a claimant’s credibility, an ALJ may consider, among other

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things, the “[claimant’s] reputation for truthfulness, inconsistencies either in [claimant’s]

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testimony or between [her] testimony and [her] conduct, [claimant’s] daily activities, [her] work

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record, and testimony from physicians and third parties concerning the nature, severity, and effect

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of the symptoms of which [claimant] complains.” Thomas v. Barnhart, 278 F.3d 947, 958-59

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(9th Cir. 2002) (modification in original) (quoting Light v. Soc. Sec. Admin., 119 F.3d 789, 792

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(9th Cir. 1997)). If the ALJ’s credibility finding is supported by substantial evidence in the

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record, the court “may not engage in second-guessing.” Id.

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Here, the ALJ found that plaintiff’s medically determinable impairments “could

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reasonably be expected to cause the alleged symptoms,” but that plaintiff’s “statements

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concerning the intensity, persistence and limiting effects” were “not entirely credible for the

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reasons explained in [the] decision.” (Tr. at 33.) The ALJ’s decision then proceeded to generally

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discuss much of the evidence of record before “considering the claimant’s subjective complaints .

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. . .” (Id. at 36.)

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The ALJ went on to find that “[c]oncerning his mental complaints . . . the evidence failed

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to support them in full as described above and at the hearing because SA determined he could

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perform simple routine tasks with limited public contact.” (Id. at 38.) The ALJ ultimately

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concluded by stating that “[c]learly, the evidence fails to show that [plaintiff’s] mental complaints

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and impairments were disabling and based upon the preceding factors, his mental complaints
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were found partially credible.” (Id. at 39.)
The ALJ’s analysis, however, is erroneous in several respects. First, “after a claimant

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produces objective medical evidence of an underlying impairment, an ALJ may not reject a

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claimant’s subjective complaints based solely on a lack of medical evidence to fully corroborate

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the alleged severity” of the symptoms. Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005); see

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also Putz v. Astrue, 371 Fed. Appx. 801, 802-03 (9th Cir. 2010) (“Putz need not present objective

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medical evidence to demonstrate the severity of her fatigue.”); Bunnell v. Sullivan, 947 F.2d 341,

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347 (9th Cir. 1991) (“If an adjudicator could reject a claim for disability simply because a

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claimant fails to produce medical evidence supporting the severity of the pain, there would be no

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reason for an adjudicator to consider anything other than medical findings.”).
Second, as noted above, the ALJ erred in rejecting the opinion of plaintiff’s treating

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physician. It was the opinion of plaintiff’s treating physician, Dr. Morales, that plaintiff suffered

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from a “permanent, chronic, Mental Health Condition which [was] so impairing that he [was] not

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able to work.” (Tr. at 576.) The opinion of Dr. Morales, and his treatment notes, are consistent

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with plaintiff’s testimony.

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Third, as was true of the treating physician opinion, the ALJ invalidly relied on the fact

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that the record failed to contain evidence that plaintiff’s “mental status was of such severity that

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he required psychiatric hospitalization or intensive individual therapy with a psychiatrist or

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psychologist.” (Id. at 38.) That plaintiff had not experienced psychiatric hospitalization is neither

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a clear and convincing nor specific and legitimate reason to discredit his testimony.

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Moreover, the ALJ’s decision acknowledged that plaintiff was receiving individual

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therapy from a LCSW. That plaintiff’s therapist was not a psychiatrist or psychologist is also not

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a legitimate reason to find him not credible. Many patients with severe mental impairments do

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not undergo any individual therapy. Here, plaintiff was being treated, apparently by a

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psychiatrist, with medications and was undergoing individual therapy. There is nothing

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inconsistent about that level of treatment and plaintiff’s testimony.

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However, even assuming arguendo that plaintiff’s level of treatment and the severity of
his mental complaints were inconsistent, the Ninth Circuit has
. . . particularly criticized the use of a lack of treatment to reject
mental complaints both because mental illness is notoriously
underreported and because ‘it is a questionable practice to chastise
one with a mental impairment for the exercise of poor judgment in
seeking rehabilitation.’

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Regennitter v. Commissioner of Social Sec. Admin., 166 F.3d 1294, 1299-300 (9th Cir. 1999)

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(quoting Nguyen v. Chater, 100 F.3d 1462, 1465 (9th Cir. 1996)).

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Fourth, the ALJ’s decision relied on select treatment notes stating that plaintiff was
“functioning adequately,” “everything was okay,” that plaintiff “was assessed as being

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psychiatrically stable for continued outpatient treatment,” and that his “medications appeared to

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be helpful.” (Tr. at 38.) The Ninth Circuit has explained that:

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… it is error to reject a claimant’s testimony merely because
symptoms wax and wane in the course of treatment. Cycles of
improvement and debilitating symptoms are a common occurrence,
and in such circumstances it is error for an ALJ to pick out a few
isolated instances of improvement over a period of months or years
and to treat them as a basis for concluding a claimant is capable of
working.
Garrison, 759 F.3d at 1017.
It appears that the ALJ also attempted to support the rejection of plaintiff’s testimony by

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referring to plaintiff’s activities of daily living. In this regard, the ALJ’s decision states that

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plaintiff’s “daily activities included taking daily walks,” that plaintiff reported having “no

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problems getting along with family, friends, neighbors, or others,” and that plaintiff “did not need

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help with personal care, hygiene or upkeep of a home.” (Tr. at 38.)

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The critical differences between activities of daily living and
activities in a full-time job are that a person has more flexibility in
scheduling the former than the latter, can get help from other
persons . . . and is not held to a minimum standard of performance,
as she would be by an employer. The failure to recognize these
differences is a recurrent, and deplorable, feature of opinions by
administrative law judges in social security disability cases.

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Bjornson v. Astrue, 671 F.3d 640, 647 (7th Cir. 2012); see also Garrison, 759 F.3d at 1016 (“The

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ability to talk on the phone, prepare meals once or twice a day, occasionally clean one’s room,

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and, with significant assistance, care for one’s daughter, all while taking frequent hours-long

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rests, avoiding any heavy lifting, and lying in bed most of the day, is consistent with the pain that

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Garrison described in her testimony. It is also consistent with an inability to function in a

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workplace environment.”); Howard v. Heckler, 782 F.2d 1484, 1488 (9th Cir. 1986) (“to find

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Howard’s claim of disability gainsaid by his capacity to engage in periodic restricted travel, as the

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Council seems to have done, trivializes the importance that we consistently have ascribed to pain

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testimony”).

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For the reasons stated above, the court finds that the ALJ failed to offer specific, clear, and

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convincing reasons for rejecting plaintiff’s testimony. Accordingly, plaintiff is also entitled to

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summary judgment on his claim that the ALJ’s treatment of his subjective testimony constituted

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error.

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CONCLUSION

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With error established, the court has the discretion to remand or reverse and award

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benefits.8 McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989). A case may be remanded

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under the “credit-as-true” rule for an award of benefits where:

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(1) the record has been fully developed and further administrative
proceedings would serve no useful purpose; (2) the ALJ has failed
to provide legally sufficient reasons for rejecting evidence, whether
claimant testimony or medical opinion; and (3) if the improperly
discredited evidence were credited as true, the ALJ would be
required to find the claimant disabled on remand.

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Garrison, 759 F.3d at 1020. Even where all the conditions for the “credit-as-true” rule are met,

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the court retains “flexibility to remand for further proceedings when the record as a whole creates

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serious doubt as to whether the claimant is, in fact, disabled within the meaning of the Social

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Security Act.” Id. at 1021; see also Dominguez v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015)

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(“Unless the district court concludes that further administrative proceedings would serve no

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useful purpose, it may not remand with a direction to provide benefits.”); Treichler v.

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Commissioner of Social Sec. Admin.,, 775 F.3d 1090, 1105 (9th Cir. 2014) (“Where . . . an ALJ

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makes a legal error, but the record is uncertain and ambiguous, the proper approach is to remand

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In light of the remand for payment of benefits required by the resolution of the two claims
addressed above, the court need not address plaintiff’s third claim for relief.
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the case to the agency.”).

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Here, the record has been fully developed and further administrative proceedings would

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serve no useful purpose. In this regard, the record includes multiple medical opinions, medical

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evidence, plaintiff’s testimony, and the testimony of a vocational expert. As discussed above, the

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ALJ has failed to provide legally sufficient reasons for rejecting evidence. And if the improperly

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discredited evidence were credited as true, the ALJ would be required to find the claimant

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disabled on remand. In this regard, Dr. Morales’ opinion and plaintiff’s testimony establish that

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plaintiff was disabled as of May 30, 2013. Moreover, the record as a whole does not create

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serious doubt as to whether plaintiff is, in fact, disabled within the meaning of the Social Security

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Act.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion for summary judgment (ECF No. 19) is granted;

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2. Defendant’s cross-motion for summary judgment (ECF No. 23) is denied;

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3. The Commissioner’s decision is reversed;

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4. This matter is remanded for the immediate award of benefits9; and

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5. The Clerk of the Court shall enter judgment for plaintiff, and close this case.

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Dated: March 7, 2017

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DLB:6
DB\orders\orders.soc sec\morales1822.ord

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On remand, the Commissioner may elect to award plaintiff benefits from May 30, 2013, the
date of Dr. Morales’ opinion.
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