John v. Commissioner of Social Security

Filing 20

MEMORANDUM and ORDER signed by Magistrate Judge Edmund F. Brennan on 9/12/2018 GRANTING plaintiff's 14 Motion for Summary Judgment and DENYING the Commissioner's 15 Cross-Motion for Summary Judgment. This matter is REMANDED for further administrative proceedings. The Clerk is directed to enter judgment in the plaintiff's favor and close the 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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TERESA L. JOHN,

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No. 2:17-cv-867-EFB

Plaintiff,
v.

MEMORANDUM AND ORDER

NANCY A. BERRYHILL, 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 her applications for disability insurance benefits (“DIB”) pursuant to

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Title II, and for supplemental security income (“SSI”) pursuant to Title XVI of the Social

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Security Act. The parties have filed cross-motions for summary judgment. ECF Nos. 14 & 15.

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For the 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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BACKGROUND
Plaintiff filed for DIB on October 7, 2014 and SSI on October 9, 2014, alleging that she

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has been disabled since May 31, 2009. Administrative Record (“AR”) at 144, 223-229.

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Plaintiff’s applications were denied initially and upon reconsideration. Id. at 145-148, 150-161.

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A hearing was held before administrative law judge (“ALJ”) Sara A. Gillis. Id. at 47-84.
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On December 8, 2016, the ALJ issued a decision finding that plaintiff was not disabled

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under sections 216(i), 223(d), and 1614(a)(3)(A) of the Act.1 Id. at 21-40. The ALJ made the

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following specific findings:

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1. The claimant meets the insured status requirements of the Social Security Act through
December 31, 2014.

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2. The claimant has not engaged in substantial gainful activity since March 31, 2009, the
alleged onset date (20 CFR 404.1571 et seq. and 416.971 et seq.).

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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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3. The claimant has the following severe impairments: right and left carpal tunnel syndrome
status post release surgeries; degenerative disc disease lumbar spine; degenerative changes
of the scaphoid bone of right wrist; right and left shoulder impingement; depressive
disorder; bipolar disorder; anxiety disorder; attention deficit disorder (ADD) (20 CFR
404.1520(c) and 416.920(c)).

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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).
***
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 in 20 CFR 404.1567(b)
and 416.967(b) in that she can lift and carry twenty pounds occasionally and ten pounds
frequently, sit for six hours of an eight hour day, and stand and walk for six hours of an
eight hour day. She can only occasionally climb ladders, ropes and scaffolds and crawl;
she can frequently climb ramps/stairs, balance, stoop, kneel, and crouch. She can
occasionally overhead reach with both arms; she can frequently reach, handle, finger and
feel with both hands/wrists/arms; and she can sustain concentration to perform unskilled
tasks i.e. simple job instructions, with occasional public contact.
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6. The claimant is unable to perform any past relevant work (20 CFR 404.1565 and
416.965).
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7. The claimant was born [in] 1964 and was 44 years old, which is defined as a younger
individual age 18-49, on the alleged disability onset date. The claimant subsequently
changed age category to closely approaching advanced age (20 CFR 404.1563 and
416.963).
8. The claimant has at least a high school education and is able to communicate in English
(20 CFR 404.1564 and 416.964).
9. Transferability of job skills is not material to the determination of disability because using
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).
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)).

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11. The claimant has not been under a disability, as defined in the Social Security Act, from
May 31, 2009, through the date of this decision (20 CFR 404.1520(g) and 416.920(g)).
Id. at 23-40.
Plaintiff’s request for Appeals Council review was denied on February 24, 2017, leaving
the ALJ’s decision as the final decision of the Commissioner. Id. at 1-3.
LEGAL STANDARDS

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The Commissioner’s decision that a claimant is not disabled will be upheld if the findings
of fact are supported by substantial evidence in the record and the proper legal standards were
applied. Schneider v. Comm’r of the Soc. Sec. Admin., 223 F.3d 968, 973 (9th Cir. 2000);
Morgan v. Comm’r of the Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999); Tackett v. Apfel,
180 F.3d 1094, 1097 (9th Cir. 1999).
The findings of the Commissioner as to any fact, if supported by substantial evidence, are
conclusive. See Miller v. Heckler, 770 F.2d 845, 847 (9th Cir. 1985). Substantial evidence is
more than a mere scintilla, but less than a preponderance. Saelee v. Chater, 94 F.3d 520, 521 (9th
Cir. 1996). “‘It means such evidence as a reasonable mind might accept as adequate to support a
conclusion.’” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v.
N.L.R.B., 305 U.S. 197, 229 (1938)).
“The ALJ is responsible for determining credibility, resolving conflicts in medical
testimony, and resolving ambiguities.” Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir.
2001) (citations omitted). “Where the evidence is susceptible to more than one rational
interpretation, one of which supports the ALJ’s decision, the ALJ’s conclusion must be upheld.”
Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002).
ANALYSIS
Plaintiff argues that the ALJ erred in: (1) failing to give great weight to plaintiff’s treating
physicians – Dr. Malek (who treated her mental health impairments) and Dr. Jackson (who
treated her carpal tunnel); (2) failing to give great weight to examining physician – Dr. Schmidt;
(3) according great weight to non-examining agency physicians; (4) failing to give great weight to
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two non-physician providers who treated plaintiff for back, shoulder, and neck issues; (5) failing

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to find that plaintiff met listing 12.03, 12.04, and 12.06; and (6) discrediting plaintiff’s statements

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about the severity of her impairments. The court concludes that the ALJ failed to offer specific

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and legitimate reasons for discounting the opinion of Dr. Malek. This was reversible error and,

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consequently, the court finds it unnecessary to reach plaintiff’s other arguments.

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In her opinion, the ALJ made reference to both Dr. Malek’s treatment notes and his
assessment of plaintiff’s ability to work. She found that:
Mental status examination findings of treating source physician of
Dr. Malek generally showed the claimant presenting within normal
limits. Orientation, judgment, insight, and memory were within
normal. Hygiene/dress was appropriate, speech was of appropriate
quantity, quality and organization of sentences but sometimes noted
as with little rapid speed. She was cooperative, with attention,
concentration, and thought content within normal limits (citations
omitted). Occasionally and usually at times of life stressors, she was
noted in moderate-marked distress, tearful, depressed, or anxious.
Sometimes she appeared unkempt. Sometimes she had pressured or
rapid speech (sad/anxious, upset regarding 25 year old son mental
health needs); (living at shelter, cannot live with mother due to
conflicts wither her mother’s boyfriend); (boyfriend in jail on
domestic violence); (just testified against abusive ex-husband in
prison for 17 years); (unkempt); (boyfriend in jail); (homeless, son
very ill); (fear regarding mentally ill son and ex-husband in prison)
...

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Treating source psychiatrist Dr. R. Malek opined in January 2015 on
a Placer County Health and Human Services Department form that
the claimant incapable of gainful employment due to severe mood
swings, depression and anxiety. He stated she was incapable of
working due to bipolar disorder, being depressed with general
anxiety disorder. He indicated the probable duration of the
incapacity was six months. He renewed this opinion for another six
months in June 2015, September 2015 and January 2016. Little
weight is accorded these opinions which essentially are finding the
claimant disabled. By regulation, opinions that the claimant is
“disabled” or “unable to work” are not entitled to any special
significance, even when offered by a treating physician. The
determination of disability is an issue reserved to the Commissioner,
which it is the Commissioner’s statutory responsibility to perform.
AR at 33-38 (internal citations omitted).
Here, the opinion of Dr. Malek as to the limitations caused by plaintiff’s mental health

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issues was contradicted by non-examining physician Heather Barrons. Id. at 139. Thus, to reject

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his opinion, the ALJ was required to provide specific and legitimate reasons that were based on
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substantial evidence in the record. See Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995).

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As noted above, the ALJ reasoned that Malek’s opinions should be rejected solely because they

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amounted to findings that plaintiff was disabled – a finding reserved to the Commissioner. This

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fact alone, however, was insufficient to justify the rejection. In Matthews v. Shalala, the Ninth

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Circuit stated that “the administrative law judge is not bound by the uncontroverted opinions of

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the claimant’s physicians on the ultimate issue of disability, but he cannot reject them without

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presenting clear and convincing reasons for doing so.” 10 F.3d 678, 680 (9th Cir. 1993); see also

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Rodriguez v. Bowen, 876 F.2d 759, 762 n.7 (9th Cir. 1989) (“We do not draw a distinction

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between a medical opinion as to a physical condition and a medical opinion on the ultimate issue

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of disability.”).
The court recognizes that, in the earlier portions of her opinion, the ALJ noted that Dr.

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Malek’s treatment findings indicated that plaintiff was generally “presenting within normal

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limits.” AR at 33. She also conceded, however, that “occasionally and usually at times of life

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stressors, she was noted in moderate-marked distress . . .” Id. The ALJ went on to cite various

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life events which caused plaintiff to present in distress, namely her son’s mental illness, her

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homelessness, and her interactions with men who had been accused and/or convicted of domestic

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abuse. Id. The court is troubled by the ALJ’s intimation that these stressors are “occasional.”

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The record indicates that, on February 8, 2016, plaintiff told her provider that her twenty-one year

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old son – who is bipolar, schizophrenic, and using methadone – had recently moved from living

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under a bridge to a local homeless shelter. Id. at 962. Plaintiff had vocalized her concerns about

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her son’s mental illness as far back as 2013 and there is no indication that her son’s mental health

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was improving. Id. at 652. Similarly, the mental pain caused by plaintiff’s interactions with

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abusive/violent men was also consistently and repeatedly relayed to her providers. See, e.g., id. at

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1003, 1007, and 1014. In any event, even if the court concluded that Dr. Malek’s conclusions as

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to plaintiff’s disability were inconsistent with his treatment notes, it could not affirm the ALJ’s

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decision on that basis insofar as she did not rely on that ground. See Garrison v. Colvin, 759 F.3d

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995, 1010 (9th Cir. 2014) (“We review only the reasons provided by the ALJ in the disability

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determination and may not affirm the ALJ on a ground upon which he did not rely.”).
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The foregoing error was not harmless. The Ninth Circuit has stated that “a reviewing

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court cannot consider [an] error harmless unless it can confidently conclude that no reasonable

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ALJ, when fully crediting the testimony, could have reached a different disability determination.”

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Marsh v. Colvin, 792 F.3d 1170, 1173 (9th Cir. 2015) (citing Stout v. Comm'r, Soc. Sec. Admin.,

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454 F.3d 1050, 1055-56 (9th Cir. 2006)). The court cannot so conclude in this case. It notes that

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both physicians that actually examined plaintiff with respect to her mental health – Drs. Malek

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and Schmidt – opined that her mental illnesses severely and adversely impacted her ability to

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work. AR at 760, 991-96. Thus, remand is appropriate. See McLeod v. Astrue, 640 F.3d 881,

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888 (9th Cir. 2011) (“[W]here the circumstances of the case show a substantial likelihood of

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prejudice, remand is appropriate so that the agency ‘can decide whether re-consideration is

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necessary.’”) (citing Shinseki v. Sanders, 556 U.S. 396, 412-413 (2009)). And the court elects to

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remand for further administrative proceedings rather than benefits. It notes that, although the

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ALJ failed to provide legally sufficient reasons for discounting Dr. Malek’s opinion in this

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instance, that failure does not automatically compel a finding that she is unable do so.

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CONCLUSION

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Based on the foregoing, it is hereby ORDERED that:

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1. Plaintiff’s motion for summary judgment (ECF No. 14) is GRANTED;

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2. The Commissioner’s cross-motion for summary judgment (ECF No. 15) is DENIED;

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3. This matter is REMANDED for further administrative proceedings; and

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4. The Clerk is directed to enter judgment in the plaintiff’s favor and close the case.

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DATED: September 12, 2018.

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