United States District Court, E.D. California
MEMORANDUM OPINION AND ORDER
M. COTA UNITED STATES MAGISTRATE JUDGE.
who is proceeding with retained counsel, brings this action
for judicial review of a final decision of the Commissioner
of Social Security under 42 U.S.C. § 405(g). Pursuant to
the written consent of all parties (ECF Nos. 6 and 7), this
case is before the undersigned as the presiding judge for all
purposes, including entry of final judgment. See 28
U.S.C. § 636(c). Pending before the court are the
parties' briefs on the merits (ECF Nos. 15 and 16).
court reviews the Commissioner's final decision to
determine whether it is: (1) based on proper legal standards;
and (2) supported by substantial evidence in the record as a
whole. See Tackett v. Apfel, 180 F.3d 1094, 1097
(9th Cir. 1999). “Substantial evidence” is more
than a mere scintilla, but less than a preponderance. See
Saelee v. Chater, 94 F.3d 520, 521 (9th Cir. 1996). It
is “. . . such evidence as a reasonable mind might
accept as adequate to support a conclusion.”
Richardson v. Perales, 402 U.S. 389, 402 (1971). The
record as a whole, including both the evidence that supports
and detracts from the Commissioner's conclusion, must be
considered and weighed. See Howard v. Heckler, 782
F.2d 1484, 1487 (9th Cir. 1986); Jones v. Heckler,
760 F.2d 993, 995 (9th Cir. 1985). The court may not affirm
the Commissioner's decision simply by isolating a
specific quantum of supporting evidence. See Hammock v.
Bowen, 879 F.2d 498, 501 (9th Cir. 1989). If substantial
evidence supports the administrative findings, or if there is
conflicting evidence supporting a particular finding, the
finding of the Commissioner is conclusive. See Sprague v.
Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987).
Therefore, where the evidence is susceptible to more than one
rational interpretation, one of which supports the
Commissioner's decision, the decision must be affirmed,
see Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir.
2002), and may be set aside only if an improper legal
standard was applied in weighing the evidence, see
Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988).
reasons discussed below, the Commissioner's final
decision is affirmed.
THE DISABILITY EVALUATION PROCESS
achieve uniformity of decisions, the Commissioner employs a
five-step sequential evaluation process to determine whether
a claimant is disabled. See 20 C.F.R. §§
404.1520 (a)-(f) and 416.920(a)-(f). The sequential
evaluation proceeds as follows:
Step 1 Determination whether the claimant is engaged in
substantial gainful activity; if so, the claimant is presumed
not disabled and the claim is denied;
Step 2 If the claimant is not engaged in substantial gainful
activity, determination whether the claimant has a severe
impairment; if not, the claimant is presumed not disabled and
the claim is denied;
Step 3 If the claimant has one or more severe impairments,
determination whether any such severe impairment meets or
medically equals an impairment listed in the regulations; if
the claimant has such an impairment, the claimant is presumed
disabled and the claim is granted;
Step 4 If the claimant's impairment is not listed in the
regulations, determination whether the impairment prevents
the claimant from performing past work in light of the
claimant's residual functional capacity; if not, the
claimant is presumed not disabled and the claim is denied;
Step 5 If the impairment prevents the claimant from
performing past work, determination whether, in light of the
claimant's residual functional capacity, the claimant can
engage in other types of substantial gainful work that exist
in the national economy; if so, the claimant is not disabled
and the claim is denied.
See 20 C.F.R. §§ 404.1520 (a)-(f) and
qualify for benefits, the claimant must establish the
inability to engage in substantial gainful activity due to a
medically determinable physical or mental impairment which
has lasted, or can be expected to last, a continuous period
of not less than 12 months. See 42 U.S.C. §
1382c(a)(3)(A). The claimant must provide evidence of a
physical or mental impairment of such severity the claimant
is unable to engage in previous work and cannot, considering
the claimant's age, education, and work experience,
engage in any other kind of substantial gainful work which
exists in the national economy. See Quang Van Han v.
Bower, 882 F.2d 1453, 1456 (9th Cir. 1989). The claimant
has the initial burden of proving the existence of a
disability. See Terry v. Sullivan, 903 F.2d 1273,
1275 (9th Cir. 1990).
claimant establishes a prima facie case by showing that a
physical or mental impairment prevents the claimant from
engaging in previous work. See Gallant v. Heckler,
753 F.2d 1450, 1452 (9th Cir. 1984); 20 C.F.R. §§
404.1520(f) and 416.920(f). If the claimant establishes a
prima facie case, the burden then shifts to the Commissioner
to show the claimant can perform other work existing in the
national economy. See Burkhart v. Bowen, 856 F.2d
1335, 1340 (9th Cir. 1988); Hoffman v. Heckler, 785
F.2d 1423, 1425 (9th Cir. 1986); Hammock v. Bowen,
867 F.2d 1209, 1212-1213 (9th Cir. 1989).
THE COMMISSIONER'S FINDINGS
applied for social security benefits on November 4, 2014.
See CAR 15.In the application, plaintiff claims
disability began on November 5, 2012. See id.
Plaintiff's claim was initially denied. Following denial
of reconsideration, plaintiff requested an administrative
hearing, which was held on April 3, 2017, before
Administrative Law Judge (ALJ) Christopher C. Knowdell. In a
July 18, 2017, decision, the ALJ concluded plaintiff is not
disabled based on the following relevant findings:
1. The claimant has the following severe impairment(s):
celiac disease, arthralgia, depression, and chronic fatigue
2. The claimant does not have an impairment or combination of
impairments that meets or medically equals an impairment
listed in the regulations;
3. The claimant has the following residual functional
capacity: light work, except she is limited to occasional
postural activities, she must avoid concentrated exposure to
extreme heat, humidity, and cold, and she is limited to
simple tasks with no public interactions;
4. Considering the claimant's age, education, work
experience, residual functional capacity, and vocational
expert testimony, there are jobs that exist in significant
numbers in the national economy that the claimant can
See id. at 17-24.
the Appeals Council declined review on June 9, 2018, this
opening brief, plaintiff argues: (1) the ALJ erred in
rejecting her testimony as to the severity of her symptoms;
(2) the ALJ ignored the requirements of 20 C.F.R. §
404.1520a in evaluating the severity of plaintiff's
depression; and (3) the ALJ failed to properly evaluate the
medical opinions from plaintiff's treating physician, Dr.
Severity of Plaintiff's Depression
qualify for benefits, the plaintiff must have an impairment
severe enough to significantly limit the physical or mental
ability to do basic work activities. See 20 C.F.R.
§§ 404.1520(c), 416.920(c). In determining whether a
claimant's alleged impairment is sufficiently severe to
limit the ability to work, the Commissioner must consider the
combined effect of all impairments on the ability to
function, without regard to whether each impairment alone
would be sufficiently severe. See Smolen v. Chater,
80 F.3d 1273, 1289-90 (9th Cir. 1996); see also 42
U.S.C. § 423(d)(2)(B); 20 C.F.R. §§ 404.1523
and 416.923. An impairment, or combination of impairments,
can only be found to be non-severe if the evidence
establishes a slight abnormality that has no more than a
minimal effect on an individual's ability to work.
See Social Security Ruling (SSR) 85-28; see also
Yuckert v. Bowen, 841 F.2d 303, 306 (9th Cir. 1988)
(adopting SSR 85-28). The plaintiff has the burden of
establishing the severity of the impairment by providing
medical evidence consisting of signs, symptoms, and
laboratory findings. See 20 C.F.R. §§
404.1508, 416.908. The plaintiff's own statement of
symptoms alone is insufficient. See id.
2, the ALJ determined that plaintiff's depression is a
severe impairment. See CAR 17-18. Though plaintiff
argues the ALJ failed to apply 20 C.F.R. § 404.1520a,
plaintiff concedes: “In this case, the ALJ did this
[applied § 404.1520a(b)(1)] and found that Plaintiff
suffers from depression.” See ECF No. 15, pg.
11. According to plaintiff, the ALJ failed to “apply
the special technique to evaluate the severity of
Plaintiff's mental impairment. . . .” Id.
According to plaintiff: “At step two in this case, the
ALJ did not provide a narrative of his rationale. . .
.” Id. at 12. Plaintiff argues the matter must
argument is not persuasive. Though the ALJ did not provide a
narrative discussion supporting his conclusion at Step 2 that
plaintiff's depression is a severe impairment, the court
finds no error given that the ALJ did in fact find the
impairment to be severe. Plaintiff has not indicated how the
lack of a narrative discussion at Step 2 resulted in any
prejudice given that the ALJ rendered a favorable
determination as to the severity of plaintiff's
depression. While plaintiff references medical sources who
concluded plaintiff's depression is extremely limiting,
plaintiff confuses the standard applicable at Step 2 with the
standard at Step 4 for determination of residual functional
capacity. To what extent plaintiff's depression presents
more than minimal limitations on her ability to work is not
relevant at Step 2.
Evaluation of Medical Opinions
ALJ must consider all medical opinion evidence.”
Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir.
2008) (citing 20 C.F.R. § 404.1527(b)). The ALJ errs by
not explicitly rejecting a medical opinion. See Garrison
v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014). The ALJ
also errs by failing to set forth sufficient reasons for
crediting one medical opinion over another. See id.
the regulations, only “licensed physicians and certain
qualified specialists” are considered acceptable
medical sources. 20 C.F.R. § 404.1513(a); see also
Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012).
Where the acceptable medical source opinion is based on an
examination, the “. . . physician's opinion alone
constitutes substantial evidence, because it rests on his own
independent examination of the claimant.”
Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir.
2001). The opinions of non-examining professionals may also
constitute substantial evidence when the opinions are
consistent with independent clinical findings or other
evidence in the record. See Thomas v. Barnhart, 278
F.3d 947, 957 (9th Cir. 2002). Social workers are not
considered an acceptable medical source. See Turner v.
Comm'r of Soc. Sec. Admin., 613 F.3d 1217, 1223-24
(9th Cir. 2010). Nurse practitioners and physician assistants
also are not acceptable medical sources. See Dale v.
Colvin, 823 F.3d 941, 943 (9th Cir. 2016). Opinions from
“other sources” such as nurse practitioners,
physician assistants, and social workers may be discounted
provided the ALJ provides reasons germane to each source for
doing so. See Popa v. Berryhill, 872 F.3d 901, 906
(9th Cir. 2017), but see Revels v. Berryhill, 874
F.3d 648, 655 (9th Cir. 2017) (quoting 20 C.F.R. §
404.1527(f)(1) and describing circumstance when opinions from
“other sources” may be considered acceptable
weight given to medical opinions depends in part on whether
they are proffered by treating, examining, or non-examining
professionals. See Lester v. Chater, 81 F.3d 821,
830-31 (9th Cir. 1995). 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,
than the opinion of a non-treating professional. See
id.; Smolen v. Chater, 80 F.3d 1273, 1285 (9th
Cir. 1996); Winans v. Bowen, 853 F.2d 643, 647 (9th
Cir. 1987). The least weight is given to the opinion of a
non-examining professional. See Pitzer v. Sullivan,
908 F.2d 502, 506 & n.4 (9th Cir. 1990).
addition to considering its source, to evaluate whether the
Commissioner properly rejected a medical opinion the court
considers whether: (1) contradictory opinions are in the
record; and (2) clinical findings support the opinions. The
Commissioner may reject an uncontradicted opinion of a
treating or examining medical professional only for
“clear and convincing” reasons supported by
substantial evidence in the record. See Lester, 81
F.3d at 831. While a treating professional's opinion
generally is accorded superior weight, if it is contradicted
by an examining professional's opinion which is supported
by different independent clinical findings, the Commissioner
may resolve the conflict. See Andrews v. Shalala, 53
F.3d 1035, 1041 (9th Cir. 1995).
contradicted opinion of a treating or examining professional
may be rejected only for “specific and
legitimate” reasons supported by substantial evidence.
See Lester, 81 F.3d at 830. This test is met if the
Commissioner sets out a detailed and thorough summary of the
facts and conflicting clinical evidence, states her
interpretation of the evidence, and makes a finding. See
Magallanes v. Bowen, 881 F.2d 747, 751-55 (9th Cir.
1989). Absent specific and legitimate reasons, the
Commissioner must defer to the opinion of a treating or
examining professional. See Lester, 81 F.3d at
830-31. The opinion of a non-examining professional, without
other evidence, is insufficient to reject the opinion of a
treating or examining professional. See id. at 831.
In any event, the Commissioner need not give weight to any
conclusory opinion supported by minimal clinical findings.
See Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir.
1999) (rejecting treating physician's conclusory,
minimally supported opinion); see also Magallanes,
881 F.2d at 751.
The ALJ's Analysis
4, the ALJ considered the medical opinion evidence in
determining plaintiff's residual functional capacity.
See CAR 21-22. As to treating sources, the ALJ
I have considered the multiple physician's statement[s]
completed for purposes of long-term disability insurance
benefits (see Ex. 9F). In these statements, it was asserted
that the claimant's physical impairments were
“Class 4, ” indicating “marked limitation -
capable of minimal activity” (see Ex. 9F, pp. 7 and
12). I give no weight to these ratings because they are not
supported by the evidence at the hearing level as discussed
above, including the claimant's capacity for skiing and
traveling. The ratings are also not assessments of the
claimant's residual functional capacity for purposes of
Social Security disability determination and thus, they have
little probative value.
The claimant's treating doctor, Charles Sutter, M.D.,
also completed a “Chronic Fatigue Syndrome Residual
Functional Capacity Questionnaire” on May 26, 2016, in
which he indicated the claimant's fatigue, celiac disease
and arthralgia frequently interfered with her attention and
concentration and generally limited her to
less-than-sedentary activities. He indicated the claimant
could not sit or stand for more than one hour at a time and
that the claimant had been at this level of functioning for
over four years (Ex. 13F). I find these limitations are not
consistent with the rather limited medical treatment the
claimant has received to date, as well as the physical
activities she reported as noted above on a longitudinal
basis (traveling and skiing). This checklist-style form
appears to have been completed based on the claimant's
subjective complaints only and includes only conclusions
regarding exertional limitations without objective rationale
for those conclusions. It is noted that Dr. Sutter previously
completed a similar form on April 20, 2016, in which he
indicated the claimant could sit for four hours and stand
and/or walk for two hours total, but not continuously (Ex.
14F, p. 67). The file shows that the claimant and her
representative had some role in advising Dr. Sutter on how to
complete the form with respect to ...