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Nichols v. Saul

United States District Court, S.D. California

November 22, 2019

NICHOLE NICHOLS, Plaintiff,
v.
ANDREW SAUL, Defendant.

          REPORT AND RECOMMENDATION RE: CROSS-MOTIONS FOR SUMMARY JUDGMENT [ECF NOS. 11, 12]

          Honorable Linda Lopez, United States Magistrate Judge

         Plaintiff Nichole Nichols brings this action for judicial review of the Social Security Commissioner's (“Commissioner's”) denial of her claim for disability insurance benefits. ECF No. 1. Before the Court are Plaintiff's Motion for Summary Judgment [ECF No. 11 (“Pl.'s Mot.”)], Defendant's Cross-Motion for Summary Judgment and Opposition to Plaintiff's Motion [ECF No. 12 (“Def.'s Mot.”)], Plaintiff's Reply in Support of Motion for Summary Judgment [ECF No. 17 (“Pl.'s Reply”)] and Defendant's Reply in Support of Motion for Summary Judgment [ECF No. 18 (“Def.'s Reply”)].

         This Report and Recommendation is submitted to United States District Judge Roger T. Benitez pursuant to 28 U.S.C. § 636(b) and Civil Local Rule 72.1(c) of the United States District Court for the Southern District of California. For the reasons set forth below, the Court RECOMMENDS that Plaintiff's Motion for Summary Judgment be GRANTED and Defendant's Cross-Motion for Summary Judgment be DENIED.

         PROCEDURAL BACKGROUND

         On May 11, 2015, Plaintiff filed a Title II application for disability insurance benefits, alleging disability beginning September 5, 2012. Administrative Record (“AR”) at 16, 230-31. On November 16, 2015, Plaintiff's claims were denied by initial determination. Id. at 163-68. On December 8, 2015, Plaintiff requested reconsideration. Id. at 169. On March 10, 2016, Plaintiff's application was again denied upon reconsideration. Id. at 16, 170-75. On March 22, 2016, Plaintiff thereafter filed a written request for a hearing. Id. at 16, 176-77.

         On November 28, 2017, a hearing was held before Administrative Law Judge (“ALJ”) Roger E. Winkelman. Id. at 16, 83-131. On February 23, 2018, the ALJ issued a written decision in which he determined that Plaintiff had not been under a disability, as defined in the Social Security Act, from September 5, 2012 through December 31, 2017 (date of last insured). Id. at 16-26.

         Plaintiff requested review of the ALJ's decision by the Appeals Council. Id. at 1, 228. In a letter dated February 12, 2019, the Appeals Council found no basis for changing the ALJ's ruling. Id. at 1-4. The ALJ's decision thereafter became the Commissioner's final decision.

         On March 14, 2019, Plaintiff filed the instant action seeking judicial review by the federal district court. ECF No. 1. On July 30, 2019, Plaintiff filed a motion for summary judgment. ECF No. 11. On August 16, 2019, Defendant filed a cross-motion for summary judgment. ECF No. 12. On September 12, 2019, Plaintiff filed a reply. ECF No. 17. On September 18, 2019, Defendant filed a reply. ECF No. 18.

         SUMMARY OF THE ALJ'S FINDINGS

         The ALJ followed the Commissioner's five-step sequential evaluation process in his written decision. See 20 C.F.R. §§ 404.1520, 416.920. At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity from Plaintiff's alleged onset date of September 5, 2012 through December 31, 2017. AR at 18.

         At step two, the ALJ found that Plaintiff had the following severe impairment: degenerative disc disease. Id. In contrast, the ALJ found that Plaintiff's medically determinable mental impairment of affective disorder did not cause more than a minimal limitation in Plaintiff's ability to perform basic mental work activities and was therefore not severe. Id. at 18-19.

         At step three, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of one of the impairments listed in the Commissioner's Listing of Impairments. Id. at 19.

         In his RFC assessment, the ALJ found Plaintiff did have residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) except for occasional balancing, crouching, crawling, climbing ramp/stairs, kneeling and stooping, never climbing ladders/ropes/scaffolds, and the need to avoid concentrated exposure to bright light. Id. at 25.

         At step four, the ALJ found that Plaintiff was capable of performing her past relevant work as a “collection clerk” and “credit and loan supervisor . . . as actually and generally performed.” Id. at 25-26.

         STANDARD OF REVIEW

         Section 405(g) of the Social Security Act permits unsuccessful applicants to seek judicial review of the Commissioner's final decision. 42 U.S.C. § 405(g). The scope of judicial review is limited. A denial of benefits will not be disturbed if it is supported by substantial evidence and contains no legal error. Id.; see also Trevizo v. Berryhill, 871 F.3d 664, 674 (9th Cir. 2017) (citing Benton ex rel. Benton v. Barnhart, 331 F.3d 1030, 1035 (9th Cir. 2003)).

         “Substantial evidence is more than a mere scintilla, but may be less than a preponderance.” Lewis v. Apfel, 236 F.3d 503, 509 (9th Cir. 2001) (citation omitted). It is “relevant evidence that, considering the entire record, a reasonable person might accept as adequate to support a conclusion.” Id. (citation omitted). “In determining whether the [ALJ's] findings are supported by substantial evidence, [the court] must review the administrative record as a whole, weighing both the evidence that supports and the evidence that detracts from the [ALJ's] conclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998) (citations omitted). “Where evidence is susceptible to more than one rational interpretation, the ALJ's decision should be upheld.” Trevizo, 871 F.3d at 674-75 (quoting Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007)). This includes deferring to the ALJ's consistency determinations and resolutions of evidentiary conflicts. See Lewis, 236 F.3d at 509. A court reviews “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 v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014) (citation omitted).

         Section 405(g) permits a court to enter judgment affirming, modifying, or reversing the Commissioner's decision. 42 U.S.C. § 405(g). The reviewing court may also remand the matter to the Social Security Administration for further proceedings. Id.

         ANALYSIS

         Plaintiff challenges the ALJ's adverse decision on two grounds. First, Plaintiff contends that the ALJ did not articulate specific and legitimate reasons for giving “no weight” to her treating physician Dr. Elizabeth Pendragon's opinion. Pl.'s Mot. at 3-10. Second, Plaintiff contends that the ALJ did not articulate specific and legitimate reasons for rejecting her examining psychologist Dr. Kara Cross's opinion. Id. at 10-12.

         The Court addresses the ALJ's treatment of each doctor's opinion below.

         I. Opinions of Treating and Examining Physicians

         Where the record contains medical evidence conflicting with a treating or examining physician's opinion, “the ALJ is charged with determining credibility and resolving the conflict.” Benton v. Barnhart, 331 F.3d 1030, 1040 (9th Cir. 2003). The opinion of a treating doctor generally should be given more weight than opinions of doctors who do not treat the claimant. See Turner v. Comm'r. of Soc. Sec., 613 F.3d 1217, 1222 (9th Cir. 2010) (citing Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1995)).

         If the treating doctor's opinion is not contradicted by another doctor, it may be rejected only for “clear and convincing” reasons supported by substantial evidence in the record. Id. (citing Lester, 81 F.3d at 830-31). Even when the treating doctor's opinion is contradicted by the opinion of another doctor, the ALJ may properly reject the treating doctor's opinion only by providing “specific and legitimate reasons” for doing so. Id. (citing Lester, 81 F.3d at 830-31). This can be done by “setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating [the ALJ's] interpretation thereof, and making findings.” Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) (citing Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). “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.” Orn, 495 F.3d at 632 (quoting Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988)).

         II. The ALJ's Treatment Of Dr. Pendragon's Opinion

         As an initial matter, the record contains multiple indicia of Plaintiff's treatment relationship with Dr. Pendragon. See AR at 430-435 (June 23, 2015), 438-444 (May 26, 2015), 454-459 (April 21, 2015), 476-486 (March 17, 2015), 509-515 (February 24, 2015), 527-532 (February 4, 2015), 535-542 (January 14, 2015), 546-551 (December 11, 2014), 552-555 (November 21, 2014), and 759-765 (July 21, 2015).

         Dr. Pendragon found in her physical examinations that Plaintiff's lumbosacral spine exhibited tenderness on palpation, muscle spasms and pain elicited by motion. Id. at 432, 456, 478, 511, 529, 537, 761. Dr. Pendragon diagnosed Plaintiff with lumbar spondylosis, lumbar radiculopathy, and lumbago with sciatica. Id. at 433, 441, 480, 512-513, 530.

         In Dr. Pendragon's January 14, 2015 report, Dr. Pendragon cited MRI results: (1) indicating a “[s]mall right S2 perineural cyst, of uncertain clinical significance” with an “[o]therwise negative examination”; and (2) an assessment of “single level disc disease L4\L5 with possible exiting nerve root contact on the left.” Id. at 538, 540. In her May 26, 2015 report, Dr. Pendragon indicated she considered Plaintiff “totally disabled” with “no prolonged sitting” and “lifting restrictions.” Id. at 441.

         In her July 21, 2015 “Medical Opinion Re: Ability To Do Physical Activities, ” Dr. Pendragon opined Plaintiff could only continuously sit for an hour and continuously stand for thirty minutes at a time. Id. at 632. Dr. Pendragon further opined that Plaintiff could sit, stand, and walk for less than two hours in an eight hour work day. Id. Dr. Pendragon opined that Plaintiff required a job which permitted shifting positions at will and Plaintiff would also need to take ...


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