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Greenwood v. Berryhill

United States District Court, N.D. California

February 28, 2018




         Plaintiff John Greenwood seeks social security benefits for a combination of mental and physical impairments, including: major depression, anxiety disorder, Graves Disease, multiple suicide attempts, chronic neck and back pain, poor short and long-term memory, and chronic memory loss. (Administrative Record (“AR”) 34, 41, 183.) Pursuant to 42 U.S.C. § 405(g), Plaintiff filed this lawsuit for judicial review of the final decision by the Commissioner of Social Security (“Commissioner”) denying his benefits claim. Now before the Court are Plaintiff's and Defendant's Motions for Summary Judgment.[1] (Dkt. Nos. 17 & 22.) Because the Administrative Law Judge's (“ALJ”) decision contains legal error the Court GRANTS Plaintiff's motion and DENIES Defendant's cross-motion.


         A claimant is considered “disabled” under the Social Security Act if she meets two requirements. See 42 U.S.C. § 423(d); Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). First, the claimant must demonstrate “an inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or 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). Second, the impairment or impairments must be severe enough that she is unable to do her previous work and cannot, based on her age, education, and work experience “engage in any other kind of substantial gainful work which exists in the national economy.” 42 U.S.C. § 423(d)(2)(A).

         To determine whether a claimant is disabled, an ALJ is required to employ a five-step sequential analysis, examining: (1) whether the claimant is “doing substantial gainful activity”; (2) whether the claimant has a “severe medically determinable physical or mental impairment” or combination of impairments that has lasted for more than 12 months; (3) whether the impairment “meets or equals” one of the listings in the regulations; (4) whether, given the claimant's “residual functional capacity, ” the claimant can still do her “past relevant work”; and (5) whether the claimant “can make an adjustment to other work.” Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012); see 20 C.F.R. §§ 404.1520(a), 416.920(a).


         On September 16, 2013, Plaintiff applied for Disability Insurance Benefits and Social Security Income payments pursuant to Title XVI of the Social Security Act. (AR 787). The State denied Plaintiff's claim initially and upon reconsideration. (AR 61, 67.) Plaintiff then requested a hearing before an administrative law judge. (AR 78.)

         On February 4, 2016, Plaintiff and a vocational expert testified before an ALJ. (AR 801-862.) The ALJ denied Plaintiff's claim on March 28, 2016. (AR 30.) The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied Plaintiff's request for review. (AR 6.) Thereafter, Plaintiff filed a complaint in this Court seeking judicial review of the ALJ's decision pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3).

         A. The ALJ's Findings

         On March 28, 2016, the ALJ issued a written decision denying Plaintiff's application and finding that Plaintiff was not disabled within the meaning of the Social Security Act and its regulations taking into consideration the testimony and evidence, and using the SSA's five-step sequential evaluation process for determining disability. (AR 15-30.); see 20 C.F.R. §§ 404.1520(a), 416.920(a).

         At step one, the ALJ concluded that Plaintiff had not engaged in substantial gainful activity since October 15, 2004, the alleged onset date. (AR 18); see 20 C.F.R. §§ 404.1571 et seq., 416.971 et seq.

         At step two, the ALJ determined that the objective medical evidence indicated that Plaintiff's affective mood and anxiety disorder constitute “severe impairments” within the meaning of the regulations. (AR 18); see 20 C.F.R. §, 416.920(c). However, the ALJ concluded that the medical evidence of record did not indicate that claimant had more than minimal functional restriction due to any physical impairment during the period at issue, and thus concluded that Plaintiff did not have any severe physical impairments. (AR 19.)

         At the third step, the ALJ concluded that Plaintiff did not have an impairment or a combination of impairments that meet or medically equal the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Id.) At this step, the ALJ considered whether Plaintiff's mental impairments met the listing of Sections 12.04 and 12.06, paragraphs (B) and (C). (AR 19 & 20) With regards to paragraph (B), he concluded that they did not, on the grounds that Plaintiff's mental impairments do not cause (1) at least two “marked” limitations, where a marked limitation means more than moderate but less than extreme, or (2) one “marked” limitation and “repeated” episodes of decompensation, each of extended duration, which means three episodes within one year, or an average of once every four months, each lasting for at least two weeks. (Id.) The ALJ also concluded that no paragraph C criteria were present. (AR 20.)

         The ALJ found that Plaintiff retained the residual functional capacity (“RFC”) to perform a full range of work at all exertional levels, with the mental abilities and aptitudes to engage in simple, repetitive tasks that do not require interaction with others due to Plaintiff's psychiatric symptoms and the possible stress that might be caused by such interaction. (AR 21.) To reach this conclusion, the ALJ found that Plaintiff's “medically determinable impairments could reasonably be expected to cause some of the alleged symptoms. However, the claimant's statements concerning the intensity, persistence and limiting effects of these symptoms are not sufficiently supported.” (Id.) The ALJ noted “there is almost nothing, or nothing pertinent, by way of evidence prior to the date last insured” and that “a preponderance of the probative opinion evidence and medical evidence does not support a finding of disability. (Id.)

         As far as the medical opinion evidence, the ALJ gave no weight to the opinion of Plaintiff's treating psychiatric nurse practitioner Denine Baldor-Gallahon because her opinion was brief, conclusory, “neither well supported by medically acceptable clinical findings and is largely inconsistent with other substantial evidence in the record” and there was no evidence that the doctors who signed Plaintiff's forms ever saw or treated him. (AR 26 & 27.) The ALJ gave little weight to the opinion of treating therapist John McGinnis because his opinion was “brief, conclusory, and inadequately supported by clinical findings, even his own.” (AR 23.)

         The ALJ gave no weight to the consultative opinion of Dr. Frank Chen due to corrective action letters removing Dr. Chen from the DDS panel due to his incompetence and unprofessionalism. (AR 24-25.) Without explanation the ALJ awarded substantial weight to the opinion of consulting psychologist Ute Kollath, Ph.D. (AR 25.) The ALJ awarded great weight to the opinion of a “State agency medical consultant” because the record does not support a finding of severe physical impairment. (Id.) The ALJ awarded little weight to “consulting” psychologist Deepa Abraham, Ph.D, and psychological assistant Sherry Loewinger, Ph.D, finding their opinions were “conclusory, inadequately supported by clinical findings, and entirely inconsistent with their findings on evaluation of the claimant.” (AR 27.) The ALJ also concluded that the opinions of Abraham and Loewinger were “squarely contracted by treatment notes.” (Id.) The ALJ gave examining psychologist Dr. Zeiner's opinion substantial weight. (AR 28.)

         The ALJ reviewed Plaintiff's former employer William Howard Paul's report that Plaintiff was unable to remember “small or long-term tasks” and that Plaintiff distanced himself from unpleasant realities. (Id.) The ALJ found Mr. Paul's report sincere but that it did not support a finding of disability because the record does no support a finding of significant memory impairment. (Id.)

         At step four, the ALJ found that Plaintiff was incapable of performing his past relevant work as secretary, receptionist, and telemarketer. (AR 29). However, the ALJ also found that Plaintiff's English communication skills, age, education, work experience, and RFC make Plaintiff capable of making a successful adjustment to other work and thus not entitled to disability benefits. (AR 29 & 30.)

         B. Appeals Council

         Plaintiff filed a request for review on April 20, 2016. (AR 11.) On December 27, 2016, the Appeals Council considered Plaintiff's request and denied review, making the ALJ's decision final. (AR 6.)

         C. This Action

         Plaintiff commenced this action for judicial review on January 30, 2017 pursuant to 42 U.S.C. §§ 405(g), 1383(c). (Dkt. No. 1.) Both parties thereafter consented to the jurisdiction of a magistrate judge pursuant to 28 U.S.C. § 636(c). (Dkt. Nos. 8 & 10.) Plaintiff then filed his motion for summary judgment and the Commissioner filed her cross-motion. (Dkt. Nos. 17 & 22.)


         In the Ninth Circuit, courts must “distinguish among the opinions of three types of physicians: (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).” Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995) (as amended (Apr. 9, 1996)). “A treating physician's opinion is entitled to more weight than that of an examining physician, and an examining physician's opinion is entitled to more weight than that of a nonexamining physician.” Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007). If a treating doctor's opinion is not contradicted by another doctor, it may be rejected only for “clear and convincing” reasons. Baxter v. Sullivan, 923 F.2d 1391, 1396 (9th Cir. 1991). And “even if the treating doctor's opinion is contradicted by another doctor, the Commissioner may not reject this opinion without providing ‘specific and legitimate reasons' supported by substantial evidence in the record for so doing.” Lester, 81 F.3d at 830 (internal citations omitted). Likewise, “the opinion of an examining doctor, even if contradicted by another doctor, can only be rejected for specific and legitimate reasons that are supported by substantial evidence in the record.” Id. at 830-31.

         “The ALJ can meet this burden by setting out a detailed and thorough summary of the facts and conflicting medical evidence, stating his interpretation thereof, and making findings.” Cotton v. Bowen, 799 F.2d 1403, 1407 (9th Cir. 1986). “The opinion of a nonexamining physician cannot by itself constitute substantial evidence that justifies the rejection of the opinion of either an examining physician or a treating physician.” Lester, 81 F.3d at 831 (internal citation omitted). Ultimately, “the ALJ must do more than offer his conclusions. He must set forth his own interpretations and explain why they, rather than the doctors', are correct.” Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988).

         “When an ALJ does not explicitly reject a medical opinion or set forth specific, legitimate reasons for crediting one medical opinion over another, he errs. In other words, an ALJ errs when he rejects a medical opinion or assigns it little weight while doing nothing more than ignoring it, asserting without explanation that another medical opinion is more persuasive, or criticizing it with boilerplate language that fails to offer a substantive basis for his conclusion.” Garrison v. Colvin, 759 F.3d 995, 1012-13 (9th Cir. 2014) (internal citation omitted). In conducting its review, the ALJ “must consider the entire record as a whole and may not affirm simply by isolating a ‘specific quantum of supporting evidence.'” Hill v. Astrue, 388 F.3d 1144, 1159 (9th Cir. 2012) (internal citations omitted). “An ALJ may not cherry-pick and rely on portions of the medical record which bolster his findings.” See, e.g., Holohan v. Massanari, 246 F.3d 1195, 1207-08 (9th Cir. 2001) (holding that an ALJ may not selectively rely on some entries and ignore others “that indicate continued, severe impairment”). “Particularly in a case where the medical opinions of the physicians differ so markedly from the ALJ's[, ]” “it is incumbent on the ALJ to provide detailed, reasoned, and legitimate rationales for disregarding the physicians' findings.” Embrey, 849 F.2d at 422.


         The parties' briefing focuses on Plaintiff's mental impairments. Plaintiff challenges four aspects of the ALJ's decision: (1) not giving sufficient weight to the opinion of treating and examining psychologists, (2) the evaluation of lay evidence from Plaintiff's former employer and a social security claims representative, (3) ...

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