United States District Court, E.D. California
F. BRENNANUNITED STATES MAGISTRATE JUDGE
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.
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
Id. at 9-19. The ALJ made the following specific
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
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.
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.
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).
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)).
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).
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
The ALJ Properly Rejected Dr. Acolaste's Opinion
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