Villalobos Gallardo v. Colvin

Filing 27


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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9 10 HUMBERTO VILLALOBOS GALLARDO, 11 United States District Court Northern District of California Plaintiff, 12 v. 13 CAROLYN W. COLVIN, 14 Defendant. 15 Case No. 16-cv-00824 NC ORDER GRANTING IN PART AND DENYING IN PART CROSSMOTIONS FOR SUMMARY JUDGMENT, AND REMANDING FOR FURTHER ADMINISTRATIVE PROCEEDINGS Re: Dkt. Nos. 16, 21 16 17 Plaintiff Humberto Villalobos Gallardo seeks judicial review of the Commissioner 18 of Social Security’s denial of his claim for disability benefits. Gallardo argues his claim 19 for benefits was wrongfully denied because the Administrative Law Judge gave too little 20 weight to the opinions of treating and examining medical sources and improperly found 21 him lacking credibility. The Court finds the ALJ properly rejected Gallardo’s treating 22 physician’s assessment and found him lacking credibility. However, the Court finds the 23 ALJ erred in rejecting the finding of an examining physician. Thus, the Court GRANTS in 24 PART and DENIES in PART the cross-motions for summary judgment, and REMANDS 25 for further proceedings consistent with this order. 26 I. 27 28 BACKGROUND Gallardo applied for Supplemental Security Income and Social Security Disability Insurance benefits on December 6, 2012. AR 29. Gallardo listed an alleged onset date for Case No. 16-cv-00824 NC 1 his disability of June 1, 2011, later amending it to April 15, 2012. Id. The SSA denied 2 Gallardo benefits at the initial determination and reconsideration levels, and Gallardo 3 subsequently requested a hearing held on July 2, 2014. Id. Gallardo and a vocational 4 expert, James C. Westman testified. AR 29. In a July 18, 2014, decision, ALJ Christopher 5 R. Inama found Gallardo not disabled. AR 37. 6 The ALJ used a five-step evaluation process. AR 30. At step 1, the ALJ found 7 Gallardo had not engaged in substantial gainful activity since the alleged onset date. AR 8 31. At step 2, the ALJ found Gallardo had the severe impairment of diabetes mellitus. Id. 9 The ALJ also discussed Gallardo’s alleged depressive disorder, but did not find it “severe.” AR 31-32. In making this determination, the ALJ found Gallardo’s psychologist’s, Dr. 11 United States District Court Northern District of California 10 Ginny Estupinian’s reported limitations on his functioning inconsistent with her treatment 12 notes, which showed “far less intensive treatment than would be expected for a claimant 13 with such purportedly severe psychiatric issues.” AR 32. At step 3, the ALJ found 14 Gallardo did not meet a listed impairment in 20 C.F.R. Part 404, Subpart P, Appendix 1. 15 Id. The ALJ specifically considered the listing for endocrine disorders, Listing 9.00. Id. 16 At step 4, the ALJ found Gallardo had the residual functional capacity to perform 17 sedentary work, except that he is illiterate in English, but literate in Spanish and had 18 certain other physical limitations. AR 32. When considering a claimant’s symptoms, 19 ALJs must follow a two-step analysis. AR 33. First, the ALJ must determine if there is an 20 “underlying medically determinable physical or mental impairment(s) . . . that could 21 reasonably be expected to produce the claimant’s pain or other symptoms.” Id. If the first 22 step is met, the ALJ next evaluates “the intensity, persistence, and limiting effects of the 23 claimant’s symptoms to determine the extent to which they limit the claimant’s 24 functioning.” Id. ALJs must decide on the claimant’s credibility based on the entire 25 record. Id. Though the ALJ found Gallardo’s “medically determinable impairments could 26 reasonably be expected to cause” his symptoms, the ALJ also found Gallardo’s 27 “statements concerning the intensity, persistence and limiting effects of these symptoms 28 are not entirely credible.” Id. For example, the ALJ found “instances of exaggeration Case No. 16-cv-00824 NC 2 1 throughout the record,” and that Gallardo’s hearing testimony was inconsistent with 2 previous statements regarding the severity of his symptoms. AR 35. In determining Gallardo’s residual functional capacity, the ALJ considered a 3 consultative examination conducted by Dr. Concepcion Enriquez in April 2013. AR 34. 5 The ALJ gave great weight to most of Dr. Enriquez’s opinion, including findings that 6 Gallardo had wasting of his upper and lower extremities, that he used a walker and had 7 difficulty walking unassisted, and that he could perform sedentary work. Id. The ALJ 8 rejected Dr. Enriquez’s finding that Gallardo “could stand and walk less than one-hour in 9 an 8-hour workday . . . , as it is inconsistent with her own findings and the credibility 10 issues raised throughout this decision.” Id. The ALJ specifically asked the vocational 11 United States District Court Northern District of California 4 expert, Westman, whether a person who could not fulfill the sitting, standing, and walking 12 requirements of sedentary work would be able to work full-time. AR 64. Westman 13 testified that such a person would be unable to work full-time. Id. That question 14 incorporated Dr. Enriquez’s one hour standing and walking limitation. Id. (see verbal 15 exchange between ALJ and Gallardo’s representative during the hearing). Gallardo appealed the ALJ’s decision to the SSA Appeals Council, which reversed 16 17 in part the ALJ’s decision, finding Gallardo disabled beginning after July 9, 2014, upon his 18 45th birthday. AR 6, 15. Under Rule 201.17, Table No. 1 of 20 C.F.R. Part 404, Subpart 19 P, Appendix 2, Gallardo became disabled upon turning 45 years old based on his 20 individual vocational factors of being limited to sedentary work, being unable to 21 communicate in English, and having past relevant work of an unskilled nature. AR 15. Gallardo filed this case on February 18, 2016, dkt. no. 1, and filed a motion for 22 23 summary judgment on July 24, 2016. Dkt. No. 16. Gallardo wants the Court to order the 24 case remanded to determine his onset date. Id. at 19. Colvin filed a cross-motion for 25 summary judgment on September 22, 2016. Dkt. No. 21. Both parties consented to the 26 jurisdiction of a magistrate judge under 28 U.S.C. § 636(c). Dkt. Nos. 9, 24. 27 II. 28 LEGAL STANDARD A district court has the “power to enter, upon the pleadings and transcript of the Case No. 16-cv-00824 NC 3 1 record, a judgment affirming, modifying, or reversing the decision of the Commissioner of 2 Social Security, with or without remanding the case for a rehearing.” 42 U.S.C. § 405(g). 3 The decision of the Commissioner should only be disturbed if it is not supported by 4 substantial evidence or if it is based on legal error. Burch v. Barnhart, 400 F.3d 676, 679 5 (9th Cir. 2005). Substantial evidence is evidence that a reasonable mind would accept as 6 adequate to support the conclusion. Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 7 2005) (“[It] is more than a mere scintilla but less than a preponderance.”). Where evidence 8 is susceptible to more than one rational interpretation, the ALJ’s decision should be 9 upheld. Andrews v. Shalala, 53 F.3d 1035, 1039-40 (9th Cir.1995). An ALJ’s decision will not be reversed for harmless error. Burch, 400 F.3d at 679; Curry v. Sullivan, 925 F.2d 11 United States District Court Northern District of California 10 1127, 1131 (9th Cir. 1990). 12 III. DISCUSSION 13 Gallardo challenges the ALJ’s decision on two grounds. First, Gallardo asserts the 14 ALJ improperly rejected his treating and examining physicians’ opinions in whole or in 15 part. Second, Gallardo argues the ALJ improperly found him not entirely credible. 16 17 18 A. The ALJ Improperly Rejected Part of Dr. Enriquez’s Opinion and Properly Rejected Dr. Estupinian’s Assessment. In social security disability cases, “[t]he ALJ must consider all medical opinion 19 evidence.” Tommasetti, 533 F.3d at 1041. Generally, more weight is given to the opinion 20 of a treating physician than to that of an examining physician. Lester v. Chater, 81 F.3d 21 821, 830 (9th Cir. 1995), as amended (Apr. 9, 1996). Similarly, the opinion of an 22 examining physician is entitled to more weight than that of a non-examining physician. Id. 23 Where a treating physician’s opinion is “well-supported by medically acceptable 24 clinical and laboratory diagnostic techniques and is not inconsistent with the other 25 substantial evidence” in the record, it must be given “controlling weight.” 20 C.F.R. 26 § 404.1527(c)(2). The Commissioner must provide “clear and convincing” reasons for 27 rejecting the un-contradicted opinion of treating and examining physicians. Lester, 81 28 F.3d at 830. An ALJ can reject an un-contradicted treating physician’s opinion, “by Case No. 16-cv-00824 NC 4 setting out a detailed and thorough summary of the facts and conflicting medical evidence, 2 stating his interpretation thereof, and making findings.” Thomas v. Barnhart, 278 F.3d 947, 3 957 (9th Cir. 2002). An ALJ need not accept such an opinion if it is “brief, conclusory, 4 and inadequately supported by clinical findings.” Id. When rejecting a medical opinion, 5 an ALJ must do more than state his or her conclusions; the ALJ must express his or her 6 “interpretations and explain why they, rather than the doctors’, are correct.” Embrey v. 7 Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988). Further, “an ALJ errs when he rejects a 8 medical opinion or assigns it little weight while doing nothing more than ignoring it, 9 asserting without explanation that another medical opinion is more persuasive, or 10 criticizing it with boilerplate language than fails to offer a substantive basis for his 11 United States District Court Northern District of California 1 conclusion.” Garrison v. Colvin, 759 F.3d 995, 1012-13 (9th Cir. 2014). 12 1. The ALJ Improperly Rejected Part of Dr. Enriquez’s Opinion. 13 Gallardo argues the ALJ failed to provide “clear and convincing reasons” for 14 rejecting Dr. Enriquez’s finding that he could only stand and walk for one hour. Dkt. No. 15 16 at 5. Dr. Enriquez conducted a consultative examination of Gallardo. AR 34. The ALJ 16 gave great weight to most of Dr. Enriquez’s opinion, but rejected the finding that Gallardo 17 “could stand and walk less than one-hour in an 8-hour workday . . . , as it is inconsistent 18 with her own findings and the credibility issues raised throughout this decision.” Id. No 19 other specifics were provided in that section for discrediting that particular finding, despite 20 the “great weight” given to the rest of the opinion. 21 Though Gallardo makes a number of weak arguments for crediting Dr. Enriquez’s 22 finding, the Court ultimately finds the ALJ erred because if the ALJ had credited Dr. 23 Enriquez’s opinion, the ALJ would have been required to account for the one hour 24 standing and walking limitation in determining what type of work Gallardo could still 25 perform. See 20 C.F.R. § 404.1567(a) (defining “sedentary work”), SSR 96-9p (“Jobs are 26 sedentary if walking and standing are required occasionally . . . . ‘Occasionally’ means 27 occurring from very little up to one- third of the time, and would generally total no more 28 than about 2 hours of an 8-hour workday.”). Vocational expert Westman provided that a Case No. 16-cv-00824 NC 5 1 person who could not meet the requirements of sedentary work would not be able to work 2 full-time. AR 64. Given these implications, it was error that the ALJ did not provide 3 “clear and convincing reasons” for rejecting Dr. Enriquez’s finding regarding Gallardo’s 4 alleged standing and walking limitation. Lester, 81 F.3d at 830. Such error was not 5 harmless. Burch, 400 F.3d at 679. 6 The Court notes, however, that the ALJ specifically noted inconsistencies in 7 Gallardo’s testimony throughout the opinion, and the ALJ could have found reasons to 8 discredit this particular finding. As a result, rather than crediting as true Dr. Enriquez’s 9 finding as Gallardo suggests, the Court finds remand appropriate. Dkt. No. 16 at 9 10 United States District Court Northern District of California 11 12 (arguing the Court should apply the “credit as true test”). 2. The ALJ Properly Rejected Dr. Estupinian’s Assessment. Gallardo argues the ALJ erred in finding he did not have a severe mental 13 impairment, and that he erred in rejecting Dr. Estupinian’s opinion. Dkt. No. 16 at 10. Dr. 14 Estupinian was Gallardo’s treating psychologist, and her opinion regarding Gallardo’s 15 mental condition was not contradicted by another medical source. AR 31-32. Assuming 16 her opinion is “well-supported by medically acceptable clinical and laboratory diagnostic 17 techniques and is not inconsistent with the other substantial evidence” in the record, the 18 Court must give it “controlling weight.” 20 C.F.R. § 404.1527(c)(2). However, an ALJ 19 may reject such an un-contradicted opinion if he or she provides “clear and convincing” 20 reasons. Lester, 81 F.3d at 830. 21 The ALJ found that Dr. Estupinian’s mental capacity questionnaire, which 22 concluded that Gallardo “would have marked restrictions with daily living and with social 23 function” and that he “had a listing-level psychiatric impairment and would be unable to 24 meet competitive standards in most work-related areas,” was inconsistent with her 25 treatments notes. AR 32. These treatment notes “show[ed] far less intensive treatment 26 than would be expected for a claimant with such purportedly severe psychiatric issues.” 27 Id. (explaining that during therapy with a psychology intern, Gallardo “worked primarily 28 on relaxation techniques and coping mechanisms,” and that he medications never changed Case No. 16-cv-00824 NC 6 1 during his visits). In addition, the ALJ pointed out internal inconsistencies within the 2 questionnaire itself, which undermined Dr. Estupinian’s credibility. AR 32 (“Dr. 3 Estupinian also concluded that the claimant would have marked limitations in social 4 functioning but also said that he has ‘unlimited or very good’ ability to interact 5 appropriately with the public and maintain socially appropriate behavior.”). The Court 6 finds these reasons for disbelieving the opinion of Dr. Estupinian clear and convincing. 7 Lester, 81 F.3d at 830. 8 9 The Court finds Gallardo’s arguments to the contrary unconvincing. First, one of Gallardo’s arguments for reversing the ALJ’s finding and crediting the opinion of Dr. Estupinian is based on a misreading of the record. Dkt. No. 22 at 8 (incorrectly arguing 11 United States District Court Northern District of California 10 the ALJ misread Dr. Estupinian’s questionnaire regarding two-week episodes of 12 decompensation); see AR 419 (quoting from questionnaire: “Episodes of decompensation* 13 within 12 month period, each of at least two weeks duration” (emphasis added)). Second, 14 Gallardo relies on conjecture as to what Dr. Estupinian may have meant in her 15 questionnaire, though he concedes that “[a]t first blush, the social functioning assessment 16 does appear inconsistent . . . [, but] close review of Dr. Estupinian’s assessment evidences 17 that her assessment of social functioning is not necessarily inconsistent.” Dkt. No. 16 at 18 11 (emphasis added). It is not the place of the Court to reweigh the evidence, where the 19 Court has already found the ALJ’s finding supported by clear and convincing evidence, 20 and where the claimant—by his very arguments—concedes that the ALJ could have read 21 the evidence as he did. The ALJ did not err in rejecting the opinion of Dr. Estupinian, and 22 as a result also did not err in finding Gallardo’s alleged mental impairment was non- 23 severe. 24 B. 25 The ALJ Properly Found Gallardo Less Than Fully Credible. Gallardo argues the ALJ improperly found him less than fully credible in his 26 subjective complaints regarding his symptoms. Dkt. No. 16 at 15. An ALJ must use a 27 two-step analysis to determine a claimant’s credibility as to subjective pain or symptoms. 28 Garrison, 759 F.3d at 1014. An ALJ first decides if the claimant presented “objective Case No. 16-cv-00824 NC 7 1 medical evidence of an underlying impairment which could reasonably be expected to 2 produce the pain or other symptoms alleged.” Lingenfelter v. Astrue, 504 F.3d 1028, 1036 3 (9th Cir. 2007) (internal quotations omitted). If the claimant meets the first test, and the 4 ALJ finds no malingering, the claimant’s testimony regarding the severity of symptoms 5 may only be rejected for “specific, clear and convincing reasons.” Id. Where a credibility 6 determination is a “critical factor” in the ALJ’s decision, the ALJ must make an “explicit 7 credibility finding” that is “supported by a specific, cogent reason for the disbelief.” 8 Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). If a reviewing court agrees that 9 the ALJ’s finding is so supported, it must be given great weight. Id. “In weighing a claimant’s credibility, the ALJ may consider his reputation for truthfulness, inconsistencies 11 United States District Court Northern District of California 10 either in his testimony or between his testimony and his conduct, his daily activities, his 12 work record, and testimony from physicians and third parties concerning the nature, 13 severity, and effects of the symptoms of which he complains.” Light v. Soc. Sec. Admin., 14 119 F.3d 789, 792 (9th Cir. 1997). 15 Here, the ALJ found that though Gallardo’s “medically determinable impairments 16 could reasonably be expected to cause” his symptoms, his “statements concerning the 17 intensity, persistence and limiting effects of these symptoms are not entirely credible.” AR 18 33. Gallardo’s piecemeal attempts to undermine this finding in his motion are 19 unpersuasive, dkt. no. 16 at 16-18, where the ALJ’s credibility finding was based on a 20 combination of specifically identified inconsistencies and exaggerations by Gallardo 21 throughout the record. Rashad, 903 F.2d at 1231. 22 IV. CONCLUSION 23 For the reasons stated above, the Court GRANTS IN PART and DENIES IN PART 24 the cross-motions for summary judgment, and REMANDS for further administrative 25 proceedings consistent with this order regarding Dr. Enriquez’s consultative examination. 26 27 IT IS SO ORDERED. Dated: February 28, 2017 28 Case No. 16-cv-00824 NC _____________________________________ NATHANAEL M. COUSINS United States Magistrate Judge 8

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