United States District Court, C.D. California, Southern Division
MEMORANDUM OPINION AND ORDER
L. ABRAMS UNITED STATES MAGISTRATE JUDGE
filed this action on August 26, 2015, seeking review of the
Commissioner’s denial of his application for
Supplemental Security Income (“SSI”) payments.
The parties filed Consents to proceed before the undersigned
Magistrate Judge on August 28, 2015, and September 16, 2015.
Pursuant to the Court’s Order, the parties filed a
Joint Stipulation (alternatively “JS”) on May 20,
2016, that addresses their positions concerning the disputed
issues in the case. The Court has taken the Joint Stipulation
under submission without oral argument.
was born on April 3, 1976. [Administrative Record
(“AR”) at 236, 385, 389.] He has no past relevant
work experience. [AR at 93, 235.]
March 29, 2010, plaintiff filed an application for a period
of disability and disability insurance benefits
(“DIB”), and an application for SSI payments,
alleging that he has been unable to work since April 1, 1995.
[AR at 197; JS at 2.] After his applications were denied
initially and upon reconsideration, plaintiff timely filed a
request for a hearing before an Administrative Law Judge
(“ALJ”). [AR at 197, 276.] A hearing was held on
July 28, 2011 (“2011 Hearing”), at which time
plaintiff appeared represented by an attorney, and testified
on his own behalf. [AR at 138-88.] A vocational expert
(“VE”), and a medical expert (“ME”),
Craig C. Rath, Ph.D., a licensed clinical psychologist, also
testified. [AR at 142-47, 150-54, 160-61, 167-69, 178-84.]
Plaintiff’s sister, Marina Diaz, also testified. [AR at
170-77.] At the 2011 Hearing, plaintiff withdrew his claim
for DIB. [AR at 186-87.] On December 23, 2011, the ALJ issued
a decision concluding that plaintiff was not under a
disability at any time “from the alleged onset date
through the date of [the] decision” (“2011
Decision”). [AR at 197-207.] Plaintiff requested review
of the ALJ’s decision by the Appeals Council. [AR at
324-25.] The Appeals Council remanded the matter with
instructions [AR at 214-17], and a second hearing was held on
February 25, 2014 (“2014 Hearing”), before the
same ALJ. [AR at 46-101.] Plaintiff appeared represented by
an attorney, and again testified on his own behalf.
[Id.] A VE and Dr. Rath also testified. [AR at
48-78, 93-97.] At the 2014 Hearing, plaintiff changed his
disability onset date to March 29, 2010, the date he filed
his application for SSI. [AR at 46.] On April 8, 2014, the
ALJ issued a decision concluding that plaintiff was not under
a disability at any time since March 29, 2010, the date the
application was filed. (“2014 Decision”). [AR at
222-37.] When the Appeals Council denied plaintiff’s
request for review on July 25, 2015 [AR at 1-5], the
ALJ’s 2014 Decision became the final decision of the
Commissioner. See Sam v. Astrue, 550 F.3d 808, 810
(9th Cir. 2008) (per curiam) (citations omitted).
This action followed. /
to 42 U.S.C. § 405(g), this Court has authority to
review the Commissioner’s decision to deny benefits.
The decision will be disturbed only if it is not supported by
substantial evidence or if it is based upon the application
of improper legal standards. Berry v. Astrue, 622
F.3d 1228, 1231 (9th Cir. 2010) (citation omitted).
evidence means more than a mere scintilla but less than a
preponderance; it is such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.”
Carmickle v. Comm’r, Soc. Sec. Admin., 533
F.3d 1155, 1159 (9th Cir. 2008) (citation and internal
quotation marks omitted); Reddick v. Chater, 157
F.3d 715, 720 (9th Cir. 1998) (same). When determining
whether substantial evidence exists to support the
Commissioner’s decision, the Court examines the
administrative record as a whole, considering adverse as well
as supporting evidence. Mayes v. Massanari, 276 F.3d
453, 459 (9th Cir. 2001) (citation omitted); see Ryan v.
Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir.
2008) (“[A] reviewing court must consider the entire
record as a whole and may not affirm simply by isolating a
specific quantum of supporting evidence.”) (citation
and internal quotation marks omitted). “Where evidence
is susceptible to more than one rational interpretation, the
ALJ’s decision should be upheld.” Ryan,
528 F.3d at 1198 (citation and internal quotation marks
omitted); see Robbins v. Soc. Sec. Admin., 466 F.3d
880, 882 (9th Cir. 2006) (“If the evidence can support
either affirming or reversing the ALJ’s conclusion,
[the reviewing court] may not substitute [its] judgment for
that of the ALJ.”) (citation omitted).
EVALUATION OF DISABILITY
are “disabled” for purposes of receiving Social
Security benefits if they are unable to engage in any
substantial gainful activity owing to a physical or mental
impairment that is expected to result in death or which has
lasted or is expected to last for a continuous period of at
least twelve months. 42 U.S.C. § 423(d)(1)(A);
Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir.
THE FIVE-STEP EVALUATION PROCESS
Commissioner (or ALJ) follows a five-step sequential
evaluation process in assessing whether a claimant is
disabled. 20 C.F.R. §§ 404.1520, 416.920;
Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir.
1995), as amended April 9, 1996. In the first step,
the Commissioner must determine whether the claimant is
currently engaged in substantial gainful activity; if so, the
claimant is not disabled and the claim is denied.
Id. If the claimant is not currently engaged in
substantial gainful activity, the second step requires the
Commissioner to determine whether the claimant has a
“severe” impairment or combination of impairments
significantly limiting his ability to do basic work
activities; if not, a finding of nondisability is made and
the claim is denied. Id. If the claimant has a
“severe” impairment or combination of
impairments, the third step requires the Commissioner to
determine whether the impairment or combination of
impairments meets or equals an impairment in the Listing of
Impairments (“Listing”) set forth at 20 C.F.R.
part 404, subpart P, appendix 1; if so, disability is
conclusively presumed and benefits are awarded. Id.
If the claimant’s impairment or combination of
impairments does not meet or equal an impairment in the
Listing, the fourth step requires the Commissioner to
determine whether the claimant has sufficient “residual
functional capacity” to perform his past work; if so,
the claimant is not disabled and the claim is denied.
Id. The claimant has the burden of proving that he
is unable to perform past relevant work. Drouin, 966
F.2d at 1257. If the claimant meets this burden, a prima
facie case of disability is established. Id.
The Commissioner then bears the burden of establishing that
the claimant is not disabled, because he can perform other
substantial gainful work available in the national economy.
Id. The determination of this issue comprises the
fifth and final step in the sequential analysis. 20 C.F.R.
§§ 404.1520, 416.920; Lester, 81 F.3d at
828 n.5; Drouin, 966 F.2d at 1257.
THE ALJ’S APPLICATION OF THE FIVE-STEP PROCESS
one, the ALJ found that plaintiff had not engaged in
substantial gainful activity since March 29, 2010, the
application date. [AR at 225.] At step two, the ALJ concluded
that plaintiff has the severe impairments of major depressive
disorder, recurrent; and polysubstance dependence.
[Id.] He found plaintiff’s hepatitis C,
hyperlipidemia and/or dyslipidemia, and chronic bronchitis to
be not severe. [AR at 225-26.] At step three, the ALJ
determined that plaintiff does not have an impairment or a
combination of impairments that meets or medically equals any
of the impairments in the Listing. [AR at 226.] The ALJ
further found that plaintiff retained the residual functional
capacity (“RFC”) to perform the full range of work
at all exertional levels but with the following
non-exertional limitations: “3 to 5 step moderately
complex tasks; object oriented, so no working with the
general public; avoid stressful environments such as taking
complaints; and avoid intrusive supervision.” [AR at
229.] At step four, the ALJ concluded that plaintiff has no
past relevant work. [AR at 93, 235.] At step five, based on
plaintiff’s RFC, vocational factors, and the VE’s
testimony, the ALJ found that there are jobs existing in
significant numbers in the national economy that plaintiff
can perform, including work as a “hand packager”
(Dictionary of Occupational Titles (“DOT”) No.
920.587-018), and an “assembler, plastic hospital
parts” (DOT No. 712.687-010). [AR at 93-94, 236.]
Accordingly, the ALJ determined that plaintiff was not
disabled at any time from March 29, 2010, the date his
application was filed, through April 8, 2014, the date of the
decision. [AR at 237.]
contends that the ALJ erred when he: (1) gave great weight to
the testimony of the ME, Dr. Rath; (2) rejected the opinion
of plaintiff’s treating psychiatrist, Bruce Appelbaum,
M.D.; (3) considered the testimony of plaintiff’s
sister, Marina Diaz; (4) rejected plaintiff’s
subjective symptom testimony; and (5) found plaintiff’s
impairment of hepatitis C to be nonsevere. [JS at 3.] As set
forth below, the Court agrees with plaintiff, in part, and
remands for further proceedings.
are three types of medical opinions in social security cases:
those from treating physicians, examining physicians, and
non-examining physicians.” Valentine v.
Comm’r Soc. Sec. Admin., 574 F.3d 685, 692 (9th
Cir. 2009); see also 20 C.F.R. §§
404.1502, 404.1527, 416.927. “As a general rule, more
weight should be given to the opinion of a treating source
than to the opinion of doctors who do not treat the
claimant.” Lester, 81 F.3d at 830;
Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir.
2014) (citing Ryan, 528 F.3d at 1198); Turner v.
Comm’r of Soc. Sec., 613 F.3d 1217, 1222 (9th Cir.
2010). “The opinion of an examining physician is, in
turn, entitled to greater weight than the opinion of a
nonexamining physician.” Lester, 81 F.3d at
830; Ryan, 528 F.3d at 1198.
ALJ may only reject a treating or examining physician’s
uncontradicted medical opinion based on clear and convincing
reasons.” Carmickle, 533 F.3d at 1164
(citation and internal quotation marks omitted); Widmark
v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006).
“Where such an opinion is contradicted, however, it may
be rejected for specific and legitimate reasons that are
supported by substantial evidence in the record.”
Carmickle, 533 F.3d at 1164 (citation and internal
quotation marks omitted); Ryan, 528 F.3d at 1198;
Ghanim v. Colvin, 763 F.3d 1154, 1160-61 (9th Cir.
2014); Garrison, 759 F.3d at 1012. The ALJ can meet
the requisite specific and legitimate standard “by
setting out a detailed and thorough summary of the facts and
conflicting clinical evidence, stating his interpretation
thereof, and making findings.” Reddick, 157
F.3d at 725. The ALJ “must set forth his own
interpretations and explain why they, rather than the
[treating or examining] doctors’, are correct.”
the opinion of a non-examining physician “cannot by
itself constitute substantial evidence that justifies the
rejection of the opinion of either an examining physician or
a treating physician, ” state agency physicians are
“highly qualified physicians, psychologists, and other
medical specialists who are also experts in Social Security
disability evaluation.” 20 C.F.R. §§
404.1527(f)(2)(i), 416.927(f)(2)(i); Soc. Sec. Ruling
(“SSR”) 96-6p; Bray v. Astrue, 554 F.3d
1219, 1221, 1227 (9th Cir. 2009) (the ALJ properly relied
“in large part on the DDS physician’s
assessment” in determining the claimant’s RFC and
in rejecting the treating doctor’s testimony regarding
the claimant’s functional limitations). Reports of
non-examining medical experts “may serve as substantial
evidence when they are supported by other evidence in the
record and are consistent with it.” Andrews v.
Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995).
Dr. Appelbaum’s Opinions
27, 2011, Dr. Appelbaum, plaintiff’s treating
psychiatrist since October 1, 2009, completed a Mental
Assessment in which he found the following
“severe” functional limitations (defined as an
“[e]xtreme impairment of ability to function”):
ability to understand, remember and carry out detailed
instructions; maintain attention and concentration for
extended periods; perform activities within a schedule, and
maintain regular attendance and punctuality; work in
coordination within a proximity to others without being
distracted by them; complete a normal workday and workweek
without interruptions from psychologically-based symptoms and
perform at a consistent pace without an unreasonable number
and length of rest periods; get along with coworkers or peers
without distracting them or exhibiting behavioral extremes;
and respond appropriately to changes in the work setting. [AR
at 645-48.] He determined plaintiff had the following
“moderately severe” functional limitations
(defined as an impairment which “seriously affects
ability to function”): ability to remember locations
and work-like procedures; sustain an ordinary routine without
special supervision; make simple work-related decisions;
interact appropriately with the general public; accept
instructions and respond appropriately to criticism from
supervisors; maintain socially appropriate behavior and
adhere to basic standards of neatness and cleanliness; be
aware of normal hazards and take appropriate measures; travel
in unfamiliar places or use public transportation; and set
realistic goals or make plans independently of others.
[Id.] He found the following “moderate”
functional limitations (defined as “an impairment which
affects but does not preclude ability to function”):
ability to understand, remember, and carry out very short and
simple instructions; and ask simple questions or request
assistance. [Id.] Dr. Appelbaum indicated diagnoses
of Major Depressive Disorder and Polysubstance Abuse, but
also indicated that plaintiff was not
“presently addicted to alcohol and/or drugs, ”
has a “history of use, ” and claimed to
have been clean and sober for six months at that
time. [AR at 648, 649 (emphasis added).] After
the hearing, on August 5, 2011, Dr. Appelbaum submitted a
letter stating that the Mental Assessment form he completed
on June 27, 2011, “pertains to [plaintiff’s]
major depressive disorder. There was no history of abuse of
alcohol or drugs during the period he has been treated at
College Community Services [from October 1, 2009.] Therefore,
alcohol or polysubstances abuse was not a factor and not
material to the level of [plaintiff’s] impairment noted
on the assessment form.” [AR at 650.] On March 11,
2014, Dr. Appelbaum stated that he had reviewed
plaintiff’s treatment records since the June 27, 2011,
assessment, and found that plaintiff’s “mental
functional capacity remains substantially the same as
noted” in the June 2011 Mental Assessment. [AR at 765.]
The 2011 ...