Villalobos Gallardo v. Colvin

Filing 27

ORDER GRANTING IN PART AND DENYING IN PART CROSS-MOTIONS FOR SUMMARY JUDGMENT, AND REMANDING FOR FURTHER ADMINISTRATIVE PROCEEDINGS. Re: Dkt. Nos. 16 21 . Signed by Judge Nathanael Cousins. (lmh, COURT STAFF) (Filed on 2/28/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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HUMBERTO VILLALOBOS
GALLARDO,

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United States District Court
Northern District of California

Plaintiff,
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v.
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CAROLYN W. COLVIN,

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Defendant.
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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

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Plaintiff Humberto Villalobos Gallardo seeks judicial review of the Commissioner

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of Social Security’s denial of his claim for disability benefits. Gallardo argues his claim

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for benefits was wrongfully denied because the Administrative Law Judge gave too little

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weight to the opinions of treating and examining medical sources and improperly found

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him lacking credibility. The Court finds the ALJ properly rejected Gallardo’s treating

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physician’s assessment and found him lacking credibility. However, the Court finds the

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ALJ erred in rejecting the finding of an examining physician. Thus, the Court GRANTS in

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PART and DENIES in PART the cross-motions for summary judgment, and REMANDS

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for further proceedings consistent with this order.

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I.

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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
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his disability of June 1, 2011, later amending it to April 15, 2012. Id. The SSA denied

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Gallardo benefits at the initial determination and reconsideration levels, and Gallardo

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subsequently requested a hearing held on July 2, 2014. Id. Gallardo and a vocational

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expert, James C. Westman testified. AR 29. In a July 18, 2014, decision, ALJ Christopher

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R. Inama found Gallardo not disabled. AR 37.

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The ALJ used a five-step evaluation process. AR 30. At step 1, the ALJ found

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Gallardo had not engaged in substantial gainful activity since the alleged onset date. AR

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31. At step 2, the ALJ found Gallardo had the severe impairment of diabetes mellitus. Id.

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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.

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United States District Court
Northern District of California

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Ginny Estupinian’s reported limitations on his functioning inconsistent with her treatment

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notes, which showed “far less intensive treatment than would be expected for a claimant

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with such purportedly severe psychiatric issues.” AR 32. At step 3, the ALJ found

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Gallardo did not meet a listed impairment in 20 C.F.R. Part 404, Subpart P, Appendix 1.

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Id. The ALJ specifically considered the listing for endocrine disorders, Listing 9.00. Id.

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At step 4, the ALJ found Gallardo had the residual functional capacity to perform

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sedentary work, except that he is illiterate in English, but literate in Spanish and had

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certain other physical limitations. AR 32. When considering a claimant’s symptoms,

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ALJs must follow a two-step analysis. AR 33. First, the ALJ must determine if there is an

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“underlying medically determinable physical or mental impairment(s) . . . that could

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reasonably be expected to produce the claimant’s pain or other symptoms.” Id. If the first

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step is met, the ALJ next evaluates “the intensity, persistence, and limiting effects of the

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claimant’s symptoms to determine the extent to which they limit the claimant’s

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functioning.” Id. ALJs must decide on the claimant’s credibility based on the entire

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record. Id. Though the ALJ found Gallardo’s “medically determinable impairments could

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reasonably be expected to cause” his symptoms, the ALJ also found Gallardo’s

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“statements concerning the intensity, persistence and limiting effects of these symptoms

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are not entirely credible.” Id. For example, the ALJ found “instances of exaggeration
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throughout the record,” and that Gallardo’s hearing testimony was inconsistent with

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previous statements regarding the severity of his symptoms. AR 35.
In determining Gallardo’s residual functional capacity, the ALJ considered a

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consultative examination conducted by Dr. Concepcion Enriquez in April 2013. AR 34.

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The ALJ gave great weight to most of Dr. Enriquez’s opinion, including findings that

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Gallardo had wasting of his upper and lower extremities, that he used a walker and had

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difficulty walking unassisted, and that he could perform sedentary work. Id. The ALJ

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rejected Dr. Enriquez’s finding that Gallardo “could stand and walk less than one-hour in

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an 8-hour workday . . . , as it is inconsistent with her own findings and the credibility

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issues raised throughout this decision.” Id. The ALJ specifically asked the vocational

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United States District Court
Northern District of California

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expert, Westman, whether a person who could not fulfill the sitting, standing, and walking

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requirements of sedentary work would be able to work full-time. AR 64. Westman

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testified that such a person would be unable to work full-time. Id. That question

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incorporated Dr. Enriquez’s one hour standing and walking limitation. Id. (see verbal

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exchange between ALJ and Gallardo’s representative during the hearing).
Gallardo appealed the ALJ’s decision to the SSA Appeals Council, which reversed

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in part the ALJ’s decision, finding Gallardo disabled beginning after July 9, 2014, upon his

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45th birthday. AR 6, 15. Under Rule 201.17, Table No. 1 of 20 C.F.R. Part 404, Subpart

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P, Appendix 2, Gallardo became disabled upon turning 45 years old based on his

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individual vocational factors of being limited to sedentary work, being unable to

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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

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summary judgment on July 24, 2016. Dkt. No. 16. Gallardo wants the Court to order the

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case remanded to determine his onset date. Id. at 19. Colvin filed a cross-motion for

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summary judgment on September 22, 2016. Dkt. No. 21. Both parties consented to the

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jurisdiction of a magistrate judge under 28 U.S.C. § 636(c). Dkt. Nos. 9, 24.

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II.

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LEGAL STANDARD
A district court has the “power to enter, upon the pleadings and transcript of the

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record, a judgment affirming, modifying, or reversing the decision of the Commissioner of

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Social Security, with or without remanding the case for a rehearing.” 42 U.S.C. § 405(g).

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The decision of the Commissioner should only be disturbed if it is not supported by

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substantial evidence or if it is based on legal error. Burch v. Barnhart, 400 F.3d 676, 679

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(9th Cir. 2005). Substantial evidence is evidence that a reasonable mind would accept as

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adequate to support the conclusion. Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir.

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2005) (“[It] is more than a mere scintilla but less than a preponderance.”). Where evidence

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is susceptible to more than one rational interpretation, the ALJ’s decision should be

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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

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Northern District of California

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1127, 1131 (9th Cir. 1990).

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III. DISCUSSION

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Gallardo challenges the ALJ’s decision on two grounds. First, Gallardo asserts the

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ALJ improperly rejected his treating and examining physicians’ opinions in whole or in

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part. Second, Gallardo argues the ALJ improperly found him not entirely credible.

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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

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evidence.” Tommasetti, 533 F.3d at 1041. Generally, more weight is given to the opinion

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of a treating physician than to that of an examining physician. Lester v. Chater, 81 F.3d

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821, 830 (9th Cir. 1995), as amended (Apr. 9, 1996). Similarly, the opinion of an

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examining physician is entitled to more weight than that of a non-examining physician. Id.

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Where a treating physician’s opinion is “well-supported by medically acceptable

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clinical and laboratory diagnostic techniques and is not inconsistent with the other

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substantial evidence” in the record, it must be given “controlling weight.” 20 C.F.R.

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§ 404.1527(c)(2). The Commissioner must provide “clear and convincing” reasons for

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rejecting the un-contradicted opinion of treating and examining physicians. Lester, 81

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F.3d at 830. An ALJ can reject an un-contradicted treating physician’s opinion, “by
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setting out a detailed and thorough summary of the facts and conflicting medical evidence,

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stating his interpretation thereof, and making findings.” Thomas v. Barnhart, 278 F.3d 947,

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957 (9th Cir. 2002). An ALJ need not accept such an opinion if it is “brief, conclusory,

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and inadequately supported by clinical findings.” Id. When rejecting a medical opinion,

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an ALJ must do more than state his or her conclusions; the ALJ must express his or her

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“interpretations and explain why they, rather than the doctors’, are correct.” Embrey v.

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Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988). Further, “an ALJ errs when he rejects a

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medical opinion or assigns it little weight while doing nothing more than ignoring it,

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asserting without explanation that another medical opinion is more persuasive, or

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criticizing it with boilerplate language than fails to offer a substantive basis for his

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United States District Court
Northern District of California

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conclusion.” Garrison v. Colvin, 759 F.3d 995, 1012-13 (9th Cir. 2014).

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1.

The ALJ Improperly Rejected Part of Dr. Enriquez’s Opinion.

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Gallardo argues the ALJ failed to provide “clear and convincing reasons” for

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rejecting Dr. Enriquez’s finding that he could only stand and walk for one hour. Dkt. No.

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16 at 5. Dr. Enriquez conducted a consultative examination of Gallardo. AR 34. The ALJ

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gave great weight to most of Dr. Enriquez’s opinion, but rejected the finding that Gallardo

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“could stand and walk less than one-hour in an 8-hour workday . . . , as it is inconsistent

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with her own findings and the credibility issues raised throughout this decision.” Id. No

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other specifics were provided in that section for discrediting that particular finding, despite

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the “great weight” given to the rest of the opinion.

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Though Gallardo makes a number of weak arguments for crediting Dr. Enriquez’s

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finding, the Court ultimately finds the ALJ erred because if the ALJ had credited Dr.

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Enriquez’s opinion, the ALJ would have been required to account for the one hour

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standing and walking limitation in determining what type of work Gallardo could still

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perform. See 20 C.F.R. § 404.1567(a) (defining “sedentary work”), SSR 96-9p (“Jobs are

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sedentary if walking and standing are required occasionally . . . . ‘Occasionally’ means

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occurring from very little up to one- third of the time, and would generally total no more

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than about 2 hours of an 8-hour workday.”). Vocational expert Westman provided that a
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person who could not meet the requirements of sedentary work would not be able to work

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full-time. AR 64. Given these implications, it was error that the ALJ did not provide

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“clear and convincing reasons” for rejecting Dr. Enriquez’s finding regarding Gallardo’s

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alleged standing and walking limitation. Lester, 81 F.3d at 830. Such error was not

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harmless. Burch, 400 F.3d at 679.

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The Court notes, however, that the ALJ specifically noted inconsistencies in

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Gallardo’s testimony throughout the opinion, and the ALJ could have found reasons to

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discredit this particular finding. As a result, rather than crediting as true Dr. Enriquez’s

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finding as Gallardo suggests, the Court finds remand appropriate. Dkt. No. 16 at 9

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(arguing the Court should apply the “credit as true test”).
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The ALJ Properly Rejected Dr. Estupinian’s Assessment.

Gallardo argues the ALJ erred in finding he did not have a severe mental

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impairment, and that he erred in rejecting Dr. Estupinian’s opinion. Dkt. No. 16 at 10. Dr.

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Estupinian was Gallardo’s treating psychologist, and her opinion regarding Gallardo’s

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mental condition was not contradicted by another medical source. AR 31-32. Assuming

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her opinion is “well-supported by medically acceptable clinical and laboratory diagnostic

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techniques and is not inconsistent with the other substantial evidence” in the record, the

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Court must give it “controlling weight.” 20 C.F.R. § 404.1527(c)(2). However, an ALJ

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may reject such an un-contradicted opinion if he or she provides “clear and convincing”

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reasons. Lester, 81 F.3d at 830.

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The ALJ found that Dr. Estupinian’s mental capacity questionnaire, which

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concluded that Gallardo “would have marked restrictions with daily living and with social

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function” and that he “had a listing-level psychiatric impairment and would be unable to

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meet competitive standards in most work-related areas,” was inconsistent with her

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treatments notes. AR 32. These treatment notes “show[ed] far less intensive treatment

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than would be expected for a claimant with such purportedly severe psychiatric issues.”

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Id. (explaining that during therapy with a psychology intern, Gallardo “worked primarily

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on relaxation techniques and coping mechanisms,” and that he medications never changed
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during his visits). In addition, the ALJ pointed out internal inconsistencies within the

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questionnaire itself, which undermined Dr. Estupinian’s credibility. AR 32 (“Dr.

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Estupinian also concluded that the claimant would have marked limitations in social

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functioning but also said that he has ‘unlimited or very good’ ability to interact

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appropriately with the public and maintain socially appropriate behavior.”). The Court

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finds these reasons for disbelieving the opinion of Dr. Estupinian clear and convincing.

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Lester, 81 F.3d at 830.

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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

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Northern District of California

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the ALJ misread Dr. Estupinian’s questionnaire regarding two-week episodes of

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decompensation); see AR 419 (quoting from questionnaire: “Episodes of decompensation*

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within 12 month period, each of at least two weeks duration” (emphasis added)). Second,

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Gallardo relies on conjecture as to what Dr. Estupinian may have meant in her

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questionnaire, though he concedes that “[a]t first blush, the social functioning assessment

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does appear inconsistent . . . [, but] close review of Dr. Estupinian’s assessment evidences

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that her assessment of social functioning is not necessarily inconsistent.” Dkt. No. 16 at

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11 (emphasis added). It is not the place of the Court to reweigh the evidence, where the

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Court has already found the ALJ’s finding supported by clear and convincing evidence,

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and where the claimant—by his very arguments—concedes that the ALJ could have read

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the evidence as he did. The ALJ did not err in rejecting the opinion of Dr. Estupinian, and

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as a result also did not err in finding Gallardo’s alleged mental impairment was non-

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severe.

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B.

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The ALJ Properly Found Gallardo Less Than Fully Credible.

Gallardo argues the ALJ improperly found him less than fully credible in his

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subjective complaints regarding his symptoms. Dkt. No. 16 at 15. An ALJ must use a

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two-step analysis to determine a claimant’s credibility as to subjective pain or symptoms.

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Garrison, 759 F.3d at 1014. An ALJ first decides if the claimant presented “objective
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medical evidence of an underlying impairment which could reasonably be expected to

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produce the pain or other symptoms alleged.” Lingenfelter v. Astrue, 504 F.3d 1028, 1036

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(9th Cir. 2007) (internal quotations omitted). If the claimant meets the first test, and the

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ALJ finds no malingering, the claimant’s testimony regarding the severity of symptoms

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may only be rejected for “specific, clear and convincing reasons.” Id. Where a credibility

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determination is a “critical factor” in the ALJ’s decision, the ALJ must make an “explicit

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credibility finding” that is “supported by a specific, cogent reason for the disbelief.”

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Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). If a reviewing court agrees that

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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

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Northern District of California

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either in his testimony or between his testimony and his conduct, his daily activities, his

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work record, and testimony from physicians and third parties concerning the nature,

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severity, and effects of the symptoms of which he complains.” Light v. Soc. Sec. Admin.,

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119 F.3d 789, 792 (9th Cir. 1997).

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Here, the ALJ found that though Gallardo’s “medically determinable impairments

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could reasonably be expected to cause” his symptoms, his “statements concerning the

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intensity, persistence and limiting effects of these symptoms are not entirely credible.” AR

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33. Gallardo’s piecemeal attempts to undermine this finding in his motion are

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unpersuasive, dkt. no. 16 at 16-18, where the ALJ’s credibility finding was based on a

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combination of specifically identified inconsistencies and exaggerations by Gallardo

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throughout the record. Rashad, 903 F.2d at 1231.

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IV. CONCLUSION

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For the reasons stated above, the Court GRANTS IN PART and DENIES IN PART

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the cross-motions for summary judgment, and REMANDS for further administrative

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proceedings consistent with this order regarding Dr. Enriquez’s consultative examination.

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IT IS SO ORDERED.
Dated: February 28, 2017

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Case No. 16-cv-00824 NC

_____________________________________
NATHANAEL M. COUSINS
United States Magistrate Judge
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