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Moriel v. Colvin

United States District Court, C.D. California, Southern Division

August 3, 2016

ADRIAN MORIEL, Plaintiff,
v.
CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, Defendant.

          MEMORANDUM OPINION AND ORDER

          PAUL L. ABRAMS UNITED STATES MAGISTRATE JUDGE

         I.

         PROCEEDINGS

         Plaintiff 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.

         II.

         BACKGROUND

         Plaintiff was born on April 3, 1976. [Administrative Record (“AR”) at 236, 385, 389.] He has no past relevant work experience. [AR at 93, 235.]

         On 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. /

         III.

         STANDARD OF REVIEW

         Pursuant 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).

         “Substantial 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).

         IV.

         THE EVALUATION OF DISABILITY

         Persons 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. 1992).

         A. THE FIVE-STEP EVALUATION PROCESS

         The 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.

         B. THE ALJ’S APPLICATION OF THE FIVE-STEP PROCESS

         At step 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”)[1] 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.]

         V.

         THE ALJ’S DECISION

         Plaintiff 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.

         A.

         MEDICAL OPINIONS

         1. Legal Standard

         “There 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.

         “[T]he 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.” Id.

         Although 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”)[2] 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).

         2. Background

         a. Dr. Appelbaum’s Opinions

         On June 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.[3] [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.]

         b. The 2011 ...


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