United States District Court, S.D. California
REPORT AND RECOMMENDATION RE: CROSS-MOTIONS FOR
SUMMARY JUDGMENT [ECF NOS. 11, 12]
Honorable Linda Lopez, United States Magistrate Judge
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
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
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.
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.
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.
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.
OF THE ALJ'S FINDINGS
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.
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.
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.
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.
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.
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)).
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).
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
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
Court addresses the ALJ's treatment of each doctor's
Opinions of Treating and Examining
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)).
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)).
The ALJ's Treatment Of Dr. Pendragon's
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).
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.
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.
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 ...