Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Marshall v. Berryhill

United States District Court, S.D. California

May 12, 2017

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


          Hon. Cynthia Bashant United States District Judge

         Plaintiff Trina Marshall seeks judicial review of a final decision by the Acting Commissioner of Social Security (“Commissioner”) denying her application for disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401-433 (2012). For the reasons that follow, the Court grants in part Plaintiff's motion for summary judgment (ECF No. 13), denies the Commissioner's cross-motion for summary judgment (ECF No. 22), and declines to adopt the report and recommendation (ECF No. 26). The matter will be remanded to the ALJ for further proceedings.


         Marshall alleges she became disabled on February 7, 2011, at which time she was 31 years old. Prior to the onset of disability, Marshall worked as a customer service representative. (ECF No. 8, Administrative Record (“AR”) 41-42.) She stopped working after being terminated due to multiple absences stemming from migraines and chronic pain. (AR 42.) Marshall lives with her stepfather, brother, two daughters, and three grandchildren. (AR 41.)

         Marshall suffers from migraines, depression, chronic pain syndrome, and fibromyalgia. (AR 24.) Her treatment has included physical therapy, a variety of prescription pain medications, Botox injections to alleviate pain from her migraines, and targeted cortical steroid injections (known as “trigger point” injections) to alleviate pain associated with her fibromyalgia. Marshall testified at the administrative hearing that she has occasionally experienced improvement from treatment, but that her pain has persisted overall, especially as it relates to her fibromyalgia.

         On September 24, 2012, Marshall filed an application for disability insurance benefits under Title II of the Social Security Act. (AR 160-61.) The application was denied on initial administrative review and on reconsideration, after which Marshall requested her claim be heard before an administrative law judge (“ALJ”). (See AR 83, 95, 110-16.) A hearing was held before ALJ Peter Valentino on September 26, 2014. In a decision dated December 17, 2014, the ALJ determined that Marshall was not disabled under the meaning of the Social Security Act. (AR 22-32.) Marshall's request for review was denied by the Appeals Council, making the ALJ's decision the final decision of the Commissioner. Marshall now seeks judicial review. (ECF No. 1.)


         Under 42 U.S.C. § 405(g), an applicant for social security disability benefits may seek judicial review of a final decision of the Commissioner in federal district court. “As with other agency decisions, federal court review of social security determinations is limited.” Treichler v. Comm'r of Soc. Sec. Admin., 775 F.3d 1090, 1098 (9th Cir. 2014). Federal courts will uphold the Commissioner's disability determination “unless it contains legal error or is not supported by substantial evidence.” Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014) (citing Stout v. Comm'r, Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 2006)).

         “‘Substantial evidence' means more than a mere scintilla, but less than a preponderance; it is such relevant evidence as a reasonable person might accept as adequate to support a conclusion.” Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). In reviewing whether the Commissioner's decision is supported by substantial evidence, the court must consider the record as a whole, “weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion.” Id. at 1035 (quoting Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998)). “Where evidence is susceptible to more than one rational interpretation, the ALJ's decision should be upheld.” Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) (internal quotation marks and citation omitted). However, the court “review[s] only the reasons provided by the ALJ in the disability determination and may not affirm the ALJ on a ground upon which he did not rely.” Garrison, 759 F.3d at 1010 (citation omitted).


         A. Standard for Determining Disability

         The Social Security Act (“the Act”) defines “disability” as the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which . . . has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). Under the Act's implementing regulations, the Commissioner applies a five-step sequential evaluation process to determine whether an applicant for benefits qualifies as disabled. See 20 C.F.R. § 404.1520(a)(4). “The burden of proof is on the claimant at steps one through four, but shifts to the Commissioner at step five.” Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009).

         At step one, the ALJ must determine whether the claimant is engaged in “substantial gainful activity.”[1] 20 C.F.R. § 404.1520(a)(4)(i). If so, the claimant is not disabled. If not, the ALJ proceeds to step two.

         At step two, the ALJ must determine whether the claimant has a severe medical impairment, or combination of impairments, that meets the duration requirement in the regulations. Id. § 404.1520(a)(4)(ii). If the claimant's impairment or combination of impairments is not severe, or does not meet the duration requirement, the claimant is not disabled. If the impairment is severe, the analysis proceeds to step three.

         At step three, the ALJ must determine whether the severity of the claimant's impairment or combination of impairments meets or medically equals the severity of an impairment listed in the Act's implementing regulations.[2] Id. § 404.1520(a)(4)(iii). If so, the claimant is disabled. If not, the analysis proceeds to step four.

         At step four, the ALJ must determine whether the claimant's residual functional capacity (“RFC”)-that is, the most she can do despite her physical and mental limitations-is sufficient for the claimant to perform her past relevant work. Id. § 404.1520(a)(4)(iv). The ALJ assesses the RFC based on all relevant evidence in the record. Id. §§ 416.945(a)(1), (a)(3). If the claimant can perform her past relevant work, she is not disabled. If not, the analysis proceeds to the fifth and final step.

         At step five, the Commissioner bears the burden of proving that the claimant can perform other work that exists in significant numbers in the national economy, taking into the claimant's RFC, age, education, and work experience. 20 C.F.R. §§ 404.1560(c)(1), (c)(2); see also 20 C.F.R. § 404.1520(g)(1). The ALJ usually meets this burden through the testimony of a vocational expert, who assesses the employment potential of a hypothetical individual with all of the claimant's physical and mental limitations that are supported by the record. Hill v. Astrue, 698 F.3d 1153, 1162 (9th Cir. 2012) (citations omitted). If the claimant is able to perform other available work, she is not disabled. If the claimant cannot make an adjustment to other work, she is disabled. Id. § 404.1520(a)(4)(iv).

         B. The ALJ's Disability Determination

         On December 17, 2014, the ALJ issued a written decision concluding that Marshall was not disabled within the meaning of the Act. At step one, the ALJ found that Marshall had not engaged in substantial gainful activity since February 7, 2011, the alleged onset date of disability. (AR 24.) At step two, the ALJ found that Marshall had the following severe medically determinable impairments: migraine headaches, fibromyalgia, and chronic pain syndrome. (Id.) He found that Marshall's depression was not a severe impairment for purposes of step two.

         At step three, the ALJ determined that Marshall's impairments, alone and in combination, did not meet or medically equal the severity of the impairments listed in the regulations. (AR 25-26.) At step four, the ALJ assessed that Marshall had the RFC to perform “light work” as defined in the Social Security regulations, with the following restrictions:

[Marshall can] lift and carry 20 pounds occasionally, 10 pounds frequently, sit for six hours in an eight hour workday and stand/walk for six hours in an eight hour workday, with normal 10-minute breaks and restricted fine manipulation and upper extremity reaching limited to occasionally in an eight hour workday.

(AR 26.)

         Ultimately, on the basis of Marshall's RFC and the testimony of a vocational expert who considered the impact of Marshall's limitations, the ALJ concluded that Marshall could not perform her past relevant work. (AR 31.)

         Finally, at step five, the ALJ called upon a vocational expert to testify as to what jobs Marshall could perform given her RFC, age, education, and work experience, and the availability of suitable jobs in the national economy. The vocational expert testified that an individual with Marshall's profile could perform certain unskilled, light level occupations such as information clerk, ticket taker, and recreation aide. (AR 32.) Based on this testimony, the ALJ determined that Marshall was capable of adjusting to other work available in the national economy, and therefore found Marshall “not disabled” under the meaning of the Social Security Act. (Id.)

         In reaching his decision, the ALJ largely rejected the opinions of three of Marshall's treating doctors, Drs. Kirstin Filizetti, Roshan Kotha, and William Chapman, all of whom found significant limitations in Marshall's capacity to work. The ALJ instead credited the opinions of state agency examining physicians Drs. Soliman and Sabourin, who found that Marshall had no significant mental or orthopedic limitations. The ALJ also discredited Marshall's testimony regarding the severity of her symptoms. He found instead that factors such as Marshall's conservative course of treatment and her ability to carry out daily activities rendered her pain testimony “not entirely credible.” (AR 28.)


         Marshall challenges the ALJ's decision on two grounds. First, she argues the ALJ erred in giving little to no weight to the opinions of Drs. Filizetti, Kotha, and Chapman. Second, she argues the ALJ erred in discrediting her testimony regarding her pain. The Commissioner contends the ALJ properly evaluated the medical opinions in question, and properly assessed the credibility of Marshall's testimony. The parties also dispute the appropriate remedy, should the Court find the ALJ committed legal error.

         A. Opinions of Treating Physicians

         The Social Security Act's implementing regulations distinguish among the opinions of three types of physicians:[3] “(1) those who treat the claimant (treating physicians); (2) those who examine but do not treat the claimant (examining physicians); and (3) those who neither examine nor treat the claimant (nonexamining physicians).” Holohan v. Massanari, 246 F.3d 1195, 1201-02 (9th Cir. 2001) (quoting Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995)). As a general rule, the opinion of a treating doctor is entitled to greater weight than the opinion of doctors who do not treat the claimant.[4] Lester, 81 F.3d at 830 (citation omitted). “The rationale for giving greater weight to a treating physician's opinion is that he is employed to cure and has a greater opportunity to know and observe the patient as an individual.” Sprague v. Bowen, 812 F.2d 1226, 1230 (9th Cir. 1987) (citation omitted).

         The degree of deference afforded to a treating source's opinion depends partly upon whether, and to what extent, that opinion is contradicted. An uncontradicted opinion by a treating doctor is given “controlling weight” if it is “well-supported by medically acceptable clinical and laboratory techniques” and is “not inconsistent with the other substantial evidence in [the] case record.” 20 C.F.R. § 404.1527(c)(2). Such opinions may be rejected “only for ‘clear and convincing' reasons supported by substantial evidence in the record.” Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007) (quoting Lester, 81 F.3d at 830). In cases where a treating doctor's opinion is contradicted by another doctor's, an ALJ may only reject the treating doctor's opinion with “specific and legitimate reasons that are supported by substantial evidence.” Garrison, 759 F.3d at 1012 (quoting Ryan, 528 F.3d at 1198). An ALJ satisfies the substantial evidence requirement by “setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and making findings.” Id. (quoting Reddick, 157 F.3d at 725). “The ALJ must do more than state conclusions. He must set forth his own interpretations and explain why they, rather than the doctors', are correct.” Reddick, 157 F.3d at 725.

         1. Dr. Filizetti's Opinion

         Dr. Filizetti, a licensed clinical psychologist, treated Marshall from December 2012 through February 2013, and again in February and March of 2014. At their initial session, Marshall reported to Filizetti a history of grief and major depressive disorder. (AR 335.) During their subsequent treatment sessions, Filizetti repeatedly noted that Marshall presented as dysphoric, anxious, tearful, and depressed. (See, e.g., AR 335, 418, 419.) On two separate occasions-December 7, 2012 and December 28, 2012-Filizetti assessed Marshall's Global Assessment of Functioning (“GAF”) scale at 50, [5] indicating “serious symptoms” or any “serious impairment in social, occupational or school functioning.” (AR 332, 335). Filizetti ultimately diagnosed dysthymic disorder, a type of chronic depression, based on “clinical interview and clinical behavioral observations.” (AR 386.)

         On March 5, 2014, Filizetti completed a “mental impairment questionnaire” in which she discussed the nature and severity of Marshall's condition. (AR 388-92.) She diagnosed Marshall with both dysthymic disorder and generalized anxiety disorder. (AR 388.) With respect to the signs and symptoms that supported the diagnoses, Filizetti noted Marshall's constricted affect, feelings of guilt and worthlessness, anxiety, tension, pressured and slowed speech, decreased energy, and irregular sleep pattern. (AR 389.) She assessed that Marshall's symptoms cause “marked” limitations in her ability to complete a normal workday without interruptions from psychological symptoms.[6] (AR 391.) She also assessed that Marshall's symptoms cause “moderate-to-marked” limitations in her ability to: maintain attention and concentration for extended periods; perform at a consistent pace without rest periods of unreasonable length or frequency; accept instructions and respond appropriately to criticism from supervisors; and get along with co-workers without distracting them, among other limitations.[7] (AR 391.) Filizetti estimated that Marshall would likely miss work two to three times per month due to her psychological symptoms. (AR 392.)

         The state examining psychiatrist, Dr. Soliman, examined Marshall on January 7, 2013. (AR 339-44.) He conducted a mental status examination and found, among other things, that Marshall's speech was “soft and of decreased rate and rhythm, ” that she was alert and oriented to person, place, and time, that her abstract thinking was normal, that her insight was good, that her mood was depressed, and that the relevant clinical signs and symptoms were significant for “decreased concentration” and “decreased energy.” (AR 341-42.) Soliman diagnosed “major depression, ” assessed a GAF of “about 66, ” and concluded that Marshall “is able to withstand the stress and pressures associated with an eight-hour workday[.]” (AR 342-43.)

         The ALJ credited Soliman's opinion and gave little, if any weight to Filizetti's. He proffered four reasons for rejecting Filizetti's opinion. First, he stated that the number of treatment sessions was insufficient for Filizetti to properly assess Marshall's mental limitations. (AR 26.) Second, the ALJ emphasized that Filizetti did not complete a formal mental status examination (“MSE”), or other standard psychological test, and found Filizetti's reliance on “interview and behavior” to be insufficient.[8] (AR 27.) Third, the ALJ asserted that Filizetti's opinion was contradicted by evidence that Marshall's condition improved with treatment. (AR 29.) Finally, the ALJ argued that Filizetti's opinion was in the form of a conclusory “check-box” questionnaire with no further explanation to support her findings. (Id.)

         The Court finds the ALJ did not provide specific and legitimate reasons supported by substantial evidence to reject Filizetti's opinion. First, the ALJ's argument that the number of treatment sessions was insufficient to support Filizetti's opinion is unavailing. At the time of her March 5, 2014 assessment of Marshall's mental function limitations, Filizetti had examined Marshall ten times: eight treatment sessions between December 2012 and February 2013, with two additional sessions in February and March of 2014. During these sessions, Filizetti counseled, evaluated, observed, and diagnosed Marshall, and recorded treatment notes. This is more than sufficient substantive contact to establish Filizetti as a treating physician whose opinion is entitled to deference. See Ghokassian v. Shalala, 41 F.3d 1300, 1303 (9th Cir. 1994) (holding that a physician who treated claimant twice within a 14-month period was “without doubt” a treating physician whose opinion was entitled to deference); see also Benton ex rel. Benton v. Barnhart, 331 F.3d 1030, 1036 (9th Cir. 2003) (noting that Social Security regulations do not establish a “floor” for the minimum number of contacts needed to credit a physician treating status, but instead considers whether the frequency of contact is consistent with accepted medical practice for the type of treatment and evaluation of the claimant's medical condition). The ALJ has provided no reason why the ten sessions in this case were insufficient or inconsistent with accepted medical practice. Thus, under these circumstances, the number of treatment sessions is not a legally sufficient reason to reject Filizetti's opinion.[9]

         Second, the ALJ's argument that Filizetti's failure to conduct an MSE means her opinion unduly relied on Marshall's subjective complaints is not supported by substantial evidence. Although it is true Filizetti did not conduct an MSE, and that Dr. Soliman did, it is also the case that Filizetti's clinical notes cover several of the categories included on an MSE. These include observations and assessments regarding Marshall's appearance, attitude, behavior, mood and affect, and thought content. (AR 417-21.) During various sessions, Filizetti documented that Marshall presented as “dysphoric, anxious and tearful” (AR 335); “tearful, depressed, and dysphoric” (AR 419); and “dysphoric, anxious, and depressed” (AR 418). She also assessed Marshall's GAF scale on two separate occasions. These types of clinical observations require expertise; they are not a mere parroting of Marshall's subjective complaints. The ALJ cites no authority for the proposition that clinical observations not made within the framework of an MSE are afforded less weight than those made as part of an MSE. Thus, the fact that Filizetti did not conduct a formal MSE is not a legally sufficient reason to reject her opinion regarding Marshall's limitations.[10]

         Third, the ALJ's contention that Filizetti's opinion is contradicted by evidence that Marshall's symptoms improved with treatment is unavailing. For one, it is unclear what “improvement” the ALJ is citing given that the example he references is to treatment regarding Marshall's migraines, a condition that Filizetti was not treating. (AR 29.) Vague assertions of a patient's “improvement” are insufficient to reject a treating source's medical opinion. See Garrison, 759 F.3d at 1012 (quoting Reddick, 157 F.3d at 725) (“The ALJ must do more than state conclusions. He must set forth his own interpretations and explain why they, rather than the doctors', are correct.”). Furthermore, to the extent Marshall's symptoms may have occasionally improved during treatment, this does not undermine Filizetti's ultimate opinion regarding Marshall's mental limitations where, as here, “the overall diagnostic picture” is consistent with chronic depression. Holohan, 246 F.3d at 1205. “The fact that a person suffering from depression makes some improvement ‘does not mean that the person's impairment no ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.