Keovongsa v. Colvin

Filing 20

ORDER Granting Plaintiff's Motion for Summary Judgment and Denying Defendant's Cross-Motion for Summary Judgment, Vacating ALJ's Decision, and Remanding for Further Proceedings. Case transferred to the Social Security Administration. Certified copy of transfer order sent. Signed by Judge Barry Ted Moskowitz on 9/29/2017.(mxn)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Case No.: 3:16-CV-00842-BTM-NLS

KHENE KEOVONGSA,
Plaintiff,

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v.

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CAROLYN W. COLVIN, Acting
Commissioner of Social Security,

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Defendant.

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ORDER GRANTING
PLAINTIFF’S MOTION FOR
SUMMARY JUDGMENT AND
DENYING DEFENDANT’S
CROSS-MOTION FOR
SUMMARY JUDGMENT,
VACATING ALJ’S DECISION,
AND REMANDING FOR
FURTHER PROCEEDINGS.

Plaintiff Khene Keovongsa (“Plaintiff”) seeks judicial review of Acting

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Commissioner of Social Security, Carolyn Colvin’s (“Defendant”) denial of her

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application for Supplemental Security Income (“SSI”). (ECF No. 1, Compl.)

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Plaintiff and Defendant have filed motions for summary judgment. (ECF Nos.

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14,16.) For the reasons discussed below, the Court GRANTS Plaintiff’s motion

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for summary judgment, DENIES Defendant’s cross-motion for summary

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judgment, VACATES the Commissioner’s decision, and REMANDS for further

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proceedings.

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I. PROCEDURAL BACKGROUND
On April 16, 2012, Plaintiff filed for SSI benefits pursuant to Title XVI of the

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Social Security Act, 42 U.S.C. § 1381. (Administrative Record (“AR”) 157–65.)

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The Social Security Administration denied the claims both on initial review and

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later upon reconsideration. (AR 57–79.) On March 21, 2014, Plaintiff’s claim

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was heard by Administrative Law Judge (“ALJ”) Mason Harrell. (AR 15–22.) On

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April 11, 2014, the ALJ issued a decision denying benefits and finding that

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Plaintiff was not under a disability on the date the application was filed. (Id.)

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Plaintiff filed a request for review with the Appeals Council, which subsequently

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denied her request on February 25, 2016. (AR 1–4.) The ALJ’s decision then

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became the final decision of the Commissioner of Social Security. Plaintiff seeks

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judicial review of the Commissioner’s decision pursuant to 42 U.S.C. § 405(g).
II. ALJ’S FINDINGS AND CONCLUSIONS

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The ALJ conducted the five-step sequential analysis set forth in 20 C.F.R. §
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At step one the ALJ found that Plaintiff had not engaged in substantial
gainful activity since April 16, 2012—the application date. (AR 17.)

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Next, the ALJ found that Plaintiff had the following medically determinable

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impairments: postural back pain and depression (20 C.F.R. § 416.921 et seq.).

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(Id.)

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However, at step two, the ALJ determined that Plaintiff did not have an

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impairment or combination of impairments that significantly limited her ability to

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perform basic work related activities for 12 consecutive months, and therefore,

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Under the Social Security Regulations, the determination of whether a claimant is disabled within the meaning of
the Social Security Act is a five step process set forth at 20 C.F.R. § 404.1520. Under the test, “a claimant must
be found disabled if she proves: (1) that she is not presently engaged in any substantially gainful activity, (2) that
her disability is severe, and (3) that her impairment meets or equals one of the specific impairments described in
the regulations. If the impairment does not meet or equal one of the specific impairments described in the
regulations, the claimant can still establish a prima facie case of disability by proving at step four that in addition to
the first two requirements, she is not able to perform any work that she has done in the past. Once the claimant
established a prima facie case, the burden of proof shifts to the agency at step five to demonstrate that the
claimant can perform a significant number of other jobs in the national economy. This step-five determination is
made on the basis of four factors: the claimant’s residual functional capacity, age, work experience and
education.” Treichler v. Comm’r of SSA, 775 F.3d 1090, 1096 n.1 (9th Cir. 2014).
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did not have a severe impairment or combination of impairments. (AR 17.)

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Having reached this determination, the ALJ did not proceed to the next step and

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instead found that she was not disabled. (AR 22.)

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III. STANDARD
The Commissioner’s denial of benefits may be set aside if it is based on

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legal error or is not supported by substantial evidence. Jamerson v. Chater, 112

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F.3d 1064, 1066 (9th Cir. 1997). Substantial evidence is more than a mere

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scintilla but less than a preponderance. Id. Substantial evidence is “relevant

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evidence which, considering the record as a whole, a reasonable person might

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accept as adequate to support a conclusion.” Flaten v. Secretary of Health &

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Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995). A denial of benefits must be

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upheld if the evidence could reasonably support either affirming or reversing the

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ALJ’s decision. Robbins v. Social Sec. Admin., 466 F.3d 880, 882 (9th Cir.

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2006). When the evidence is susceptible to more than one rational

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interpretation, it is the Commissioner's conclusion that must be upheld. Thomas

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v. Barnhart, 278 F.3d 947, 954 (9th Cir.2002). The ALJ is responsible for

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determining credibility, resolving conflicts in medical testimony, and resolving

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ambiguities. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995).

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IV. MEDICAL EVIDENCE
A. Evidence of Physical Impairments
1. Dr. Keith Cunningham
On March 27, 2008, examining physician Dr. Keith Cunningham examined
Plaintiff and determined that she was suffering from back pain, but had no
physical limitations. (AR 267–272.) Dr. Cunningham found that Plaintiff could
stand and lift her arms normally. (AR 268.) When examining her back, Dr.
Cunningham stated that she reported some mild pain from the midthoracic to the
lower lumbar spine. (Id.) However, there was no muscle spasm and the straight

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leg raise test was negative. (Id.) Based on these observations, he determined

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her condition did not impose any limitations. (AR 269.)

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2. Dr. Paul Jain

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On June 9, 2010, examining physician Dr. Paul Jain performed a physical

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examination of Plaintiff. (AR 273–280.) Plaintiff complained of mild to moderate

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low back pain and neck pain for approximately ten years. (AR 273.) Plaintiff

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denied any type of functional limitations. (AR 274.) Dr. Jain reported that the

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range of motion of her neck was within normal range. (AR 275.) As to Plaintiff’s

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back, Dr. Jain reported no tenderness in response to palpation in the midline or

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paraspinal areas. (AR 276.) Additionally, the straight leg raising test was

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negative at 90 degrees. (Id.) Despite Plaintiff’s subjective complaints, Dr. Jain

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found no objective findings regarding her neck and low back pain. (AR 278.)

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3. Dr. Frederick Close

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On August 3, 2012, Dr. Close examined Plaintiff. (AR 281–284.) An

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examination of her cervical spine revealed some minimal tenderness and spasm

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on the right side of Plaintiff’s cervical spine. (AR 282.) However, the tests were

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negative and the range of motion was normal. (Id.) As to her dorsolumbar spine,

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Dr. Close found no palpable spasm but found a mild dorsal kyphosis, mild

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increase lumbar lordosis, and mild tenderness. (Id.) Dr. Close diagnosed

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Plaintiff with postural back pain and limited her to performing medium work. (AR

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283–84.)

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4. State Agency Physical Medical Consultants

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On initial review, Dr. D. Haaland reviewed the medical evidence, including

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Dr. Cunningham’s, Dr. Jain’s, and Dr. Close’s opinions and determined that

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there was no support for a finding that Plaintiff had any functional limitations

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associated with a severe physical impairment. (AR 63.) In reaching his

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conclusion, Dr. Haaland gave less weight to Dr. Close’s findings and concluded

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that he relied heavily on Plaintiff’s subjective complaints and that the totality of
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the evidence did not support his findings. (AR 66.) On reconsideration, Dr. G.

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Spinka similarly found no severe impairments and rejected Dr. Close’s findings

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for lack of objective support. (AR 68–78.)

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5. Dr. James S. Grisolia

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On August 17, 2012, Dr. James Grisolia diagnosed Plaintiff with chronic

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lumbosacral pain syndrome. (AR 291.) Dr. Grisolia found that Plaintiff’s memory

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and cognitive functions were severely affected. (Id.) Dr. Grisoli also determined

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that Plaintiff was “certainly severely disabled and should be rated on her

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psychiatric disability.” (Id.) Additionally, he stated that Plaintiff “will be unable to

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stand or walk on more than infrequent basis due to chronic back injury.” (Id.)

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6. Dr. Nadine Sidrick

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From 2013 to 2014, Dr. Nadine Sidrick treated Plaintiff for moderate lumbar

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scoliosis and severe mental illness. (AR 315.) Dr. Sidrick, relying in part on x-

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rays, diagnosed Plaintiff with lumbar scoliosis, which she found affected Plaintiff’s

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ability to walk and stand. (AR 317.) Dr. Sidrick determined that Plaintiff could

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not stand or walk for more than one hour at a time without taking a break of

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fifteen minutes. (AR 317–18.) Dr. Sidrick also found that Plaintiff could only

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stand or walk for a maximum of three hours a day. (Id.) She limited Plaintiff to

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sedentary type activity. (Id.)

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B. Evidence of Mental Impairment

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1. Dr. Harry C. Henderson

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Dr. Henderson served as Plaintiff’s psychiatrist since 2012. (AR 358.) In a

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December 19, 2013 report, Dr. Henderson provided a psychiatric evaluation for

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Plaintiff. (AR 335–36.) Based on his own treatment notes and medical

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documents, Dr. Henderson diagnosed her with major depression and chronic

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post-traumatic stress disorder. (AR 336.) He stated that Plaintiff had marked

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restriction of activities of daily living, difficulties in maintaining social functioning

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and often could not concentrate which results in an inability to complete tasks in
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a timely manner in work settings or elsewhere. (Id.) He found that as a result of

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strong medication, Plaintiff suffered from chronic fatigues and sedation. (Id.)

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Finally, Dr. Henderson concluded that her physical impairments coupled with her

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depression and post-traumatic stress syndrome would prevent her from gainful

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employment. (Id.)

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2. Dr. H. Douglas Engelhorn

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On August 7, 2012, Dr. Engelhorn performed a psychiatric evaluation of

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Plaintiff. (AR 285–87.) Plaintiff stated that she suffered from chronic low-grade

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depression for the past four to five years, and experienced some sadness and

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depression on almost a daily basis. (AR 286.) However, Dr. Engelhorn did not

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find Plaintiff to come across as being a particularly depressed or sad person.

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(Id.) Dr. Engelhorn found no evidence of active depression or excessive levels of

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anxiety, but did include possible major depression as part of his diagnostic

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impression. (AR 287.)

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3. Dr. Milton Lessner

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On December 2, 2013, Dr. Lessner wrote a report summarizing his

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psychological assessments performed upon Dr. Henderson’s request. (AR 303–

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14.) Dr. Lessner performed several tests including the Mooney Problem

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checklist, the Bender Gestalt, the Minnesota Multiphasic Personality Inventory-2

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(“MMPI-2”), and the Beck Depression Inventory. (AR 309.) The MMPI-2 test

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provided evidence of profoundly serious psychopathology, though Dr. Lessner

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noted that part of the reason for such a high infrequency scale score may be

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exaggerated symptoms as a plea for help. (AR 309.) As to the Bender Gestalt

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Test, Dr. Lessner believed her reproductions suggested psychotic conditions

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along with paranoia. (AR 312.) He gave Plaintiff a GAF score of 30. (AR 314.)

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4. State Agency Mental Medical Consultants

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On initial review, H. Hurwitz, M.D. opined that acculturation problems are

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the primary limitation and that there was no evidence of a severe impairment.
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(AR 64.) On reconsideration, Harvey Bilik, Psy. D. reviewed Plaintiff’s record and

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affirmed the finding of no severe mental impairment. (AR 75.)

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V. DISCUSSION
The Social Security Act defines “disability” as the “inability to engage in any

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substantial gainful activity by reason of any medically determinable physical or

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mental impairment which can be expected to result in death or which has lasted

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or can be expected to last for a continuous period of not less than 12 months.”

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42 U.S.C. § 423(d)(1)(A). While the regulations provide that the existence of a

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medically determinable physical or mental impairment must be established by

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medical evidence consisting of signs, symptoms, and laboratory findings,

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symptoms alone are not enough. Ukolov v. Barnhart, 420 F.3d 1003, 1005 (9th

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Cir. 2005).

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A. Whether there is Substantial Evidence to Support the ALJ’s Decision

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Step two “is ‘a de minimis screening device [used] to dispose of groundless

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claims.’” Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005) (quoting Smolen v.

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Chater, 80 F.3d 1273, 1290 (9th Cir. Cir. 1996)).

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impairment or combination of impairments may be found not severe only if the

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evidence established a slight abnormality that has no more than a minimal effect

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on an individual’s ability to work.” (Id. at 686) (internal citations omitted). “[A]n ALJ

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may find that a claimant does not have a severe impairment or combination of

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impairments only when his conclusion is ‘clearly established by medical evidence.’”

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(Id. at 687 (quoting Social Security Ruling (“SSR”) 85–28, 1985 SSR LEXIS 19)).

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Here, the ALJ determined at step two that Plaintiff did not have a severe

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impairment or combination of impairments. Having made this finding, the ALJ

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ended his inquiry and concluded she was not disabled. The Court, therefore,

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reviews the record to determine “whether the ALJ had substantial evidence to find

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that the medical evidence clearly established that [Plaintiff] did not have a

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medically severe impairment or combination of impairments.” See Webb, 433 F.3d

In the Ninth Circuit, “[a]n

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at 687.

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1. ALJ’s Decision Regarding Plaintiff’s Physical Impairment

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Plaintiff argues that the ALJ’s determination that her physical impairment is

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not severe is not supported by substantial evidence. Specifically she contends

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that he erred in disregarding the opinions of examining physician, Dr. Close, and

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of her treating physician, Dr. Sidrick.

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Courts distinguish among the opinions of treating physicians, physicians who

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examine but do not treat the claimant, and those who neither examine nor treat the

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claimant. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). “Generally, the

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opinions of examining physicians are afforded more weight than those of non-

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examining physicians, and the opinions of examining non-treating physicians are

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afforded less weight than those of treating physicians.” Orn v. Astrue, 495 F.3d

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625, 631 (9th Cir. 2007). When a treating physician’s opinion or an examining

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physician’s opinion is not contradicted by another doctor, an ALJ may only reject

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it for “clear and convincing reasons” supported by substantial evidence in the

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record. Lester, 81 F.3d at 830. Even when a treating physician’s opinion or an

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examining physician’s opinion is contradicted, the ALJ still may not reject their

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opinion without providing “specific and legitimate reasons” supported by

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substantial evidence in the record. Id. This can be done “by setting out a detailed

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and thorough summary of the facts and conflicting clinical evidence, stating his

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interpretation thereof, and making findings.” Magallanes v. Bowen, 881 F.2d 747,

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753 (9th Cir. 1989).

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In concluding that Plaintiff suffered from no severe physical impairments,

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the ALJ gave significant weight to the opinions of Dr. Cunningham and Dr. Jain,

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as well as Dr. Haaland and Dr. Spinka. (AR 19–20.) In justifying his reliance on

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these opinions, the ALJ explained that “these physicians are generally consistent

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in that they all assess the claimant does not have a severe physical impairment

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and thus no corresponding limitations.” (Id.) The ALJ stated that the “opinions
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are all generally supported by the record as a whole . . . .” (Id.)
The ALJ gave little weight to Dr. Close’s opinion because he diagnosed

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Plaintiff with only postural back pain, but opined she would be limited to medium

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work. (AR 20.) The ALJ found that given the negative physical examinations,

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Plaintiff’s postural back pain was not a severe impairment. (Id.) As to Dr.

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Sidrick, the ALJ gave no weight to her opinion because it was “without

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substantial support from any objective clinical or diagnostic findings.” (AR 20.)

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Despite having a treating relationship with Plaintiff, the ALJ noted that the history

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was brief and the course of treatment pursued by Dr. Sidrick was not consistent

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with Plaintiff’s alleged disability. (Id.)

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Dr. Cunningham and Dr. Jain rendered their opinions two and four years

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before the date of application. The state agency physical medical consultants

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primarily relied on the outdated opinions in concluding that Plaintiff had no severe

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impairments. They did not benefit from Dr. Sidrick’s opinion, as it was provided

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after their reviews. Nevertheless, the ALJ relied on these opinions to reject those

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rendered more recently by Dr. Close and Dr. Sidrick and conclude that Plaintiff

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did not suffer from a severe physical impairment. While the ALJ provided

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reasons for rejecting the opinions of Dr. Sidrick and Dr. Close, the Court finds

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that the ALJ’s decision was not supported by substantial evidence in the record.

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In the Ninth Circuit, “[m]edical opinions that predate the alleged onset of

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disability are of limited relevance.” Carmickle v. Comm’r, 533 F.3d 1155, 1165

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(9th Cir. 2008). Thus, the outdated opinions of Dr. Cunningham and Dr. Jain do

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not constitute substantial evidence to justify the ALJ’s rejection of Dr. Close’s or

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Dr. Sidrick’s opinions. Additionally, the ALJ rejected Dr. Sidrick’s opinion in part

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because it was “without substantial support from any objective clinical or

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diagnostic findings . . . .” (AR 20.) However, Dr. Sidrick diagnosed Plaintiff with

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moderate lumbar scoliosis based on x-rays. (AR 315). While those were not

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provided in the record, the ALJ was under a duty to supplement the record. See
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Webb, 433 F.3d at 687 (“The ALJ’s duty to supplement a claimant’s record is

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triggered by ambiguous evidence, the ALJ’s own finding that the record is

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inadequate or the ALJ’s reliance on an expert’s conclusion that the evidence is

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ambiguous.”). The evidence was sufficiently ambiguous given that the outdated

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opinions contrasted with the more recent opinions of Dr. Close and Dr. Sidrick.

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2. ALJ’s Decision Regarding Plaintiff’s Mental Impairments

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Plaintiff also challenges whether the ALJ had substantial evidence to

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determine that her mental impairment was not severe. She argues that he erred

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in rejecting Dr. Henderson’s and Dr. Lessner’s opinions.

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The ALJ primarily relied on the opinions of Drs. Engelhorn, Hurwitz, and

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Bilik in concluding that Plaintiff suffered from no severe mental impairments. The

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ALJ gave no weight to Dr. Lessner’s diagnostic impression and GAF score

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because it contrasted with the other evidence in the record. (AR 21.) However,

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Dr. Lessner’s opinion did not entirely contradict with that of Dr. Engelhorn, as Dr.

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Engelhorn’s diagnostic impression included possible major depression. (AR

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287.) Additionally, the ALJ rejected Dr. Lessner’s opinion, in part, because he

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only saw Plaintiff in a one-time setting, yet gave primary weight to that of Dr.

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Engelhorn’s who also only examined Plaintiff once. (AR 303-314.) As to Dr.

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Henderson’s opinion, the ALJ gave it little weight because he found that it was

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inadequately supported by clinical findings. Dr. Henderson, however, did

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perform a series of concentration and memory exercises to support his finding

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that her impairments affect her daily activities. The evidence in the record

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supporting the existence of a mental impairment was enough to clear the low bar

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at step two.

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C. Credibility Determination

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Lastly, Plaintiff argues that the ALJ erred in making an adverse credibility
finding.
An ALJ is not required to accept as true every allegation of disabling pain by
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the claimant. See Orn, 495 F.3d at 635. In evaluating the claimant’s testimony,

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the ALJ may consider inconsistencies between the claimant’s testimony and

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conduct, an unexplained or inadequately explained failure to seek or follow medical

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treatment, and whether the claimant engages in daily activities inconsistent with

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the alleged symptoms. Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012). The

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ALJ’s rationale must contain a “thorough discussion and analysis of the objective

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medical evidence and other evidence, including the individual’s complaints of pain

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and other symptoms and the adjudicator’s personal observations.” SSR 95-5P,

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1995 WL 670415, at *3 (Oct. 31, 1995).

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An ALJ engages in a two-step analysis when assessing the credibility of a

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claimant’s symptom testimony. Molina, 674 F.3d at 1112. First, the ALJ “must

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determine whether there is ‘objective medical evidence of an underlying

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impairment which could reasonably be expected to produce the pain or other

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symptoms alleged.’” Id. (citing Vazquez v. Astrue, 572 F.3d 586, 591 (9th Cir.

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2009)). When the claimant has presented such evidence, and the case lacks

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evidence of malingering on behalf of the claimant, the ALJ may reject a claimant’s

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testimony regarding the severity of her symptoms only if the ALJ “makes specific

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findings stating clear and convincing reasons for doing so.” Smolen, 80 F.3d at

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1283-84.

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Plaintiff testified that she suffers from a constant pain in her neck and back,

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as well as from depression. (AR 38.) The medication that she takes makes her

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very sleepy which causes her to sleep throughout the day. (AR 39.) Her

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activities are limited to laying down and watching television. (Id.) The pain she

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suffers also prevents her from lifting any weight. (Id.) Plaintiff stated that her

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daughter takes care of the household chores, including cooking for her. (Id.) In

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addition to the physical pain, Plaintiff also stated that she experiences crying

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episodes and often hears voices. (AR 40.)

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The ALJ determined that the “claimant’s medically determinable
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impairments could reasonably be expected to produce the alleged symptoms”

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but that her “statements concerning their intensity, persistence and limiting

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effects of these symptoms are not entirely credible.” (AR 18.) In making an

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adverse credibility determination, the ALJ stated that the medical objective

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evidence and the opinions of the examining and reviewing physicians

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undermined Plaintiff’s claims of disabling symptoms. (AR 18–19.) As discussed

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above, the objective and opinion evidence rendered by Dr. Cunningham and Dr.

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Jain are of limited relevance, as they are from 2008 and 2010. See Carmickle,

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533 F.3d at 1165. While Dr. Close’s tests were negative, he did find minimal

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tenderness and spasm on the right side of Plaintiff’s cervical spine, and as it

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related to her dorsolumbar spine, diagnosed her with mild dorsal kyphosis, mild

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increase lumbar lordosis, and mild tenderness. (Id.) Therefore, the ALJ’s first

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two reasons do not constitute “clear and convincing” reasons for rejecting

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Plaintiff’s subjective testimony.

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The ALJ also noted that Plaintiff’s inconsistent statements undermined her

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credibility. (AR 19.) Specifically, the ALJ stated that her statements were

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inconsistent because she reported only low-grade symptoms whereas the

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narrative statements made by her medical sources reported disabling pain and

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deviant psychotic mental impairments. The ALJ placed importance on the fact

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that Plaintiff reported only “chronic low-grade depression” to Dr. Engelhorn,

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described her back pain as an “ache” to Dr. Cunningham, and told Dr. Jain that

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she experienced mild to moderate back pain. As discussed above, because she

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met with Dr. Cunningham and Dr. Jain two and four years before the date of her

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application, their reports, including her alleged complaints, are of limited

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relevance. Her symptoms could have worsened, which is consistent with the

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opinions of the more recent physicians, including Dr. Close’s. As to her

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description of her mental impairment to Dr. Engelhorn, this sole discrepancy is

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not sufficient enough to deem her symptoms groundless and reject her testimony
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under step two of the sequential analysis. See Webb, 433 F.3d at 688.
The Court concludes that the ALJ lacked substantial evidence to find that

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the medical evidence clearly established Plaintiff’s lack of medically severe

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impairment or combination of impairments at step two. On remand, the ALJ

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should proceed with the sequential analysis and consider the cumulative effect of

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Plaintiff’s impairments. The Court, however, expresses no opinion as to

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Plaintiff’s ability to meet her burden at step 3, 4, and 5. See Id.

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III. CONCLUSION
For the reasons discussed above, Plaintiff’s motion for summary judgment
[ECF No. 14] is GRANTED and Defendant’s cross-motion for summary judgment
[ECF No. 16] is DENIED. The Commissioner’s decision is VACATED and this
matter is REMANDED for further proceedings.

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IT IS SO ORDERED.
Dated: September 29, 2017

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