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Pin v. Berryhill

United States District Court, E.D. California

March 28, 2017

NANCY A. BERRYHILL, Acting Commissioner of Social Security Defendant.



         Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security (“Commissioner”) denying his application for a period of disability and Disability Insurance Benefits (“DIB”) under Titles II of the Social Security Act. The parties have filed cross-motions for summary judgment. For the reasons discussed below, plaintiff's motion for summary judgment is granted, the Commissioner's motion is denied, and the matter is remanded for further proceedings.

         I. BACKGROUND

         Plaintiff filed an application for a period of disability and DIB, alleging that he had been disabled since April 6, 2012. Administrative Record (“AR”) 151-160. His application was denied initially and upon reconsideration. Id. at 86-89, 91-96. On May 5, 2014, a hearing was held before administrative law judge (“ALJ”) G. Ross Wheatley. Id. at 24-57. Plaintiff was represented by counsel at the hearing, at which he and a vocational expert testified. Id. On June 5, 2014, the ALJ issued a decision finding that plaintiff was not disabled under sections 216(i) and 223(d) of the Act.[1] Id. at 9-19. The ALJ made the following specific findings:

1. The claimant meets the insured status requirements of the Social Security Act through December 31, 2017.
2. The claimant has not engaged in Substantial Gainful Activity (SGA) since April 6, 2012, the Alleged Onset Date (20 CFR 404.1571 et seq.).
3. The claimant has the following severe impairments: Valley Fever - fatigue - weakness; left lung infection with shortness of breath; Hepatitis B; Fibromyalgia (20 CFR 404.1520(c)).
4. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526).
5. After careful consideration of the entire record, the undersigned finds that he claimant has the Residual Functional Capacity (RFC) to perform sedentary work as defined in 20 CFR 404.1567(a) with the following additional limitations: can occasionally climb ladders, ropes, or scaffolds; can frequently climb ramps or stairs; can frequently balance, stoop, crouch, kneel, or crawl; must avoid all exposure to irritants, such as fumes, odors, dust, and gases; must avoid all exposure to poorly ventilated areas; must avoid all use of hazardous machinery and all exposure to unprotected heights.
6. The claimant is capable of performing Past Relevant Work (PRW) as a Cashier - Gambling or Teacher Aide II. This work does not require the performance of work-related activities precluded by the claimant's Residual Functional Capacity (RFC) (20 CFR 404.1565).
7. The claimant has not been under a disability, as defined in the Social Security Act, from April 6, 2012, through the date of this decision (20 CFR 404.1520(f)).

Id. at 11-19.

         Plaintiff's request for Appeals Council review was denied on September 30, 2015, leaving the ALJ's decision as the final decision of the Commissioner. Id. at 1-4.


         The Commissioner's decision that a claimant is not disabled will be upheld if the findings of fact are supported by substantial evidence in the record and the proper legal standards were applied. Schneider v. Comm'r of the Soc. Sec. Admin., 223 F.3d 968, 973 (9th Cir. 2000); Morgan v. Comm'r of the Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999); Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999).

         The findings of the Commissioner as to any fact, if supported by substantial evidence, are conclusive. See Miller v. Heckler, 770 F.2d 845, 847 (9th Cir. 1985). Substantial evidence is more than a mere scintilla, but less than a preponderance. Saelee v. Chater, 94 F.3d 520, 521 (9th Cir. 1996). “‘It means such evidence as a reasonable mind might accept as adequate to support a conclusion.'” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. N.L.R.B., 305 U.S. 197, 229 (1938)).

         “The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and resolving ambiguities.” Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001) (citations omitted). “Where the evidence is susceptible to more than one rational interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be upheld.” Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002).

         III. ANALYSIS

         Plaintiff argues that the ALJ erred in (1) failing to provide sufficient reasons for rejecting the opinion of his treating psychologist; (2) discrediting his subjective complaints absent clear and convincing reasons; and (3) failing to consider the side effects of his medication. ECF No. 15 at 10-18.

         A. The ALJ Properly Rejected Dr. Acolaste's Opinion

         Plaintiff first contends that the ALJ erred by rejecting the opinion from her treating psychologist, Dr. Julia Darko Acolatse, Ph.D. ECF No. 15 at 10-14. The weight given to medical opinions depends in part on whether they are proffered by treating, examining, or non-examining professionals. Lester, 81 F.3d at 834. Ordinarily, more weight is given to the opinion of a treating professional, who has a greater opportunity to know and observe the patient as an individual. Id.; Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996). To evaluate whether an ALJ properly rejected a medical opinion, in addition to considering its source, the court considers whether (1) contradictory opinions are in the record; and (2) clinical findings support the opinions. An ALJ may reject an uncontradicted opinion of a treating or examining medical professional only for “clear and convincing” reasons. Lester, 81 F.3d at 831. In contrast, a contradicted opinion of a treating or examining medical professional may be rejected for “specific and legitimate” reasons that are supported by substantial evidence. Id. at 830. While a treating professional's opinion generally is accorded superior weight, if it is contradicted by a supported examining professional's opinion (e.g., supported by different independent clinical findings), the ALJ may resolve the conflict. Andrews v. Shalala, 53 F.3d 1035, 1041 ...

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