Rangel v. Berryhill

[3] 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA [6] MARGARET R., 7 Case No. 19-cv-01797-DMR Plaintiff, [8] v. ORDER ON CROSS MOTIONS FOR 9 SUMMARY JUDGMENT NANCY A. BERRYHILL, 10 Re: Dkt. Nos. 22, 23 Defendant. [11] 12 Plaintiff Margaret R. moves for summary judgment to reverse the Commissioner of the 13 Social Security Administration’s (the “Commissioner’s”) final administrative decision, which found 14 Plaintiff not disabled and therefore denied her application for benefits under Title II of the Social 15 Security Act, 42 U.S.C. § 401 et seq. [Docket Nos. 22 (“Pltf. Mot.”), 26 (“Reply”).] The 16 Commissioner cross-moves to affirm. [Docket No. 23 (“Def. Mot.”).] For the reasons stated below, 17 the court grants Plaintiff’s motion and denies the Commissioner’s motion. 18 I. PROCEDURAL HISTORY 19 Plaintiff filed an application for Social Security Disability Insurance (“SSDI”) benefits on 20 January 12, 2015, alleging a disability onset date of September 29, 2013. Administrative Record 21 (“A.R.”) 55, 180-85. The claim was initially denied on July 13, 2015 and again on reconsideration 22 on October 19, 2015. A.R. 81-84, 86-90. On November 12, 2015, Plaintiff filed a request for a 23 hearing before an Administrative Law Judge (“ALJ”). A.R. 91-92. After the August 2, 2017 24 hearing, ALJ Brenton L. Rogozen issued a decision finding Plaintiff not disabled. A.R. 18-34. The 25 ALJ determined that Plaintiff has the following severe impairments: depression and anxiety. A.R. 26 23. The ALJ found that Plaintiff retains the residual functional capacity (“RFC”) “to perform a full 27 range of work at all exertional levels but with the following nonexertional limitations: the claimant 1 is not disabled under the Medical Vocational Guidelines, section 204.00. A.R. 29-30. 2 The Appeals Council denied Plaintiff’s request for review on January 28, 2019. A.R. 7-12. 3 The ALJ’s decision therefore became the Commissioner’s final decision. Taylor v. Comm’r of Soc. 4 Sec. Admin., 659 F.3d 1228, 1231 (9th Cir. 2011). Plaintiff then filed suit in this court pursuant to [5] 42 U.S.C. § 405 (g). 6 II. THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS 7 To qualify for disability benefits, a claimant must demonstrate a medically determinable 8 physical or mental impairment that prevents her from engaging in substantial gainful activity1 and 9 that is expected to result in death or to last for a continuous period of at least twelve months. Reddick 10 v. Chater, 157 F.3d 715, 721 (9th Cir. 1998) (citing 42 U.S.C. § 423 (d)(1)(A)). The impairment 11 must render the claimant incapable of performing the work she previously performed and incapable 12 of performing any other substantial gainful employment that exists in the national economy. Tackett 13 v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423 (d)(2)(A)). 14 To decide if a claimant is entitled to benefits, an ALJ conducts a five-step inquiry. 20 C.F.R. 15 §§ 404.1520, 416.920. The steps are as follows: 16 1. At the first step, the ALJ considers the claimant’s work activity, if any. If the 17 claimant is doing substantial gainful activity, the ALJ will find that the claimant is not disabled. 18 2. At the second step, the ALJ considers the medical severity of the claimant’s 19 impairment(s). If the claimant does not have a severe medically determinable physical or mental 20 impairment that meets the duration requirement in [20 C.F.R.] § 416.909, or a combination of 21 impairments that is severe and meets the duration requirement, the ALJ will find that the claimant 22 is not disabled. 23 3. At the third step, the ALJ also considers the medical severity of the claimant’s 24 impairment(s). If the claimant has an impairment(s) that meets or equals one of the listings in 20 25 C.F.R., Pt. 404, Subpt. P, App. 1 [the “Listings”] and meets the duration requirement, the ALJ will 26 find that the claimant is disabled. [27] 1 4. At the fourth step, the ALJ considers an assessment of the claimant’s residual 2 functional capacity (“RFC”) and the claimant’s past relevant work. If the claimant can still do his 3 or her past relevant work, the ALJ will find that the claimant is not disabled. 4 5. At the fifth and last step, the ALJ considers the assessment of the claimant’s RFC 5 and age, education, and work experience to see if the claimant can make an adjustment to other 6 work. If the claimant can make an adjustment to other work, the ALJ will find that the claimant is 7 not disabled. If the claimant cannot make an adjustment to other work, the ALJ will find that the 8 claimant is disabled. [9] 20 C.F.R. § 416.920 (a)(4); 20 C.F.R. §§ 404.1520 ; Tackett, 180 F.3d at 1098-99 . 10 III. STANDARD OF REVIEW 11 Pursuant to 42 U.S.C. § 405 (g), this court has the authority to review a decision by the 12 Commissioner denying a claimant disability benefits. “This court may set aside the Commissioner’s 13 denial of disability insurance benefits when the ALJ’s findings are based on legal error or are not 14 supported by substantial evidence in the record as a whole.” Tackett v. Apfel, 180 F.3d 1094 , 1097 15 (9th Cir. 1999) (citations omitted). Substantial evidence is evidence within the record that could 16 lead a reasonable mind to accept a conclusion regarding disability status. See Richardson v. Perales, [17] 402 U.S. 389, 401 (1971). It is more than a mere scintilla, but less than a preponderance. See Saelee 18 v. Chater, 94 F.3d 520, 522 (9th Cir.1996) (internal citation omitted). When performing this 19 analysis, the court must “consider the entire record as a whole and may not affirm simply by isolating 20 a specific quantum of supporting evidence.” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th 21 Cir. 2006) (citation and quotation marks omitted). 22 If the evidence reasonably could support two conclusions, the court “may not substitute its 23 judgment for that of the Commissioner” and must affirm the decision. Jamerson v. Chater, 112 24 F.3d 1064, 1066 (9th Cir. 1997) (citation omitted). “Finally, the court will not reverse an ALJ’s 25 decision for harmless error, which exists when it is clear from the record that the ALJ’s error was 26 inconsequential to the ultimate nondisability determination.” Tommasetti v. Astrue, 533 F.3d 1035 , 27 1038 (9th Cir. 2008) (citations and internal quotation marks omitted). 1 brevity, the court cites only those facts that are relevant to its decision. 2 IV. ISSUES PRESENTED 3 Plaintiff argues that the ALJ erred in (1) weighing the medical opinions, (2) rejecting her 4 testimony, and (3) rejecting the lay testimony of her husband, Richard R. Plaintiff argues that, as a 5 result of these errors, the ALJ erred in his ultimate disability decision. 6 V. DISCUSSION 7 A. Medical Opinions 8 1. Legal Standard 9 Courts employ a hierarchy of deference to medical opinions based on the relation of the 10 doctor to the patient. Namely, courts distinguish between three types of physicians: those who treat 11 the claimant (“treating physicians”) and two categories of “nontreating physicians,” those who 12 examine but do not treat the claimant (“examining physicians”) and those who neither examine nor 13 treat the claimant (“non-examining physicians”). See Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 14 1995). A treating physician’s opinion is entitled to more weight than an examining physician’s 15 opinion, and an examining physician’s opinion is entitled to more weight than a non-examining 16 physician’s opinion. Id. 17 The Social Security Act tasks the ALJ with determining credibility of medical testimony and 18 resolving conflicting evidence and ambiguities. Reddick, 157 F.3d at 722 . A treating physician’s 19 opinion, while entitled to more weight, is not necessarily conclusive. Magallanes v. Bowen, 881 20 F.2d 747, 751 (9th Cir. 1989) (citation omitted). To reject the opinion of an uncontradicted treating 21 physician, an ALJ must provide “clear and convincing reasons.” Lester, 81 F.3d at 830 ; see, e.g., 22 Roberts v. Shalala, 66 F.3d 179, 184 (9th Cir. 1995) (affirming rejection of examining 23 psychologist’s functional assessment which conflicted with his own written report and test results); 24 see also 20 C.F.R. § 416.927 (d)(2); SSR 96-2p, 1996 WL 374188 (July 2, 1996). If another doctor 25 contradicts a treating physician, the ALJ must provide “specific and legitimate reasons” supported 26 by substantial evidence to discount the treating physician’s opinion. Lester, 81 F.3d at 830 . The 27 ALJ meets this burden “by setting out a detailed and thorough summary of the facts and conflicting 1 (citation omitted). “[B]road and vague” reasons do not suffice. McAllister v. Sullivan, 888 F.2d 2 599, 602 (9th Cir. 1989). This same standard applies to the rejection of an examining physician’s 3 opinion as well. Lester, 81 F.3d at 830-31 . A non-examining physician’s opinion alone cannot 4 constitute substantial evidence to reject the opinion of an examining or treating physician, Pitzer v. 5 Sullivan, 908 F.2d 502 , 506 n.4 (9th Cir. 1990); Gallant v. Heckler, 753 F.2d 1450, 1456 (9th Cir. 6 1984), though a non-examining physician’s opinion may be persuasive when supported by other 7 factors. See Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001) (noting that opinion by 8 “non-examining medical expert . . . may constitute substantial evidence when it is consistent with 9 other independent evidence in the record”); Magallanes, 881 F.2d at 751-55 (upholding rejection of 10 treating physician’s opinion given contradictory laboratory test results, reports from examining 11 physicians, and testimony from claimant). An ALJ “may reject the opinion of a non-examining 12 physician by reference to specific evidence in the medical record.” Sousa v. Callahan, 143 F.3d 13 1240, 1244 (9th Cir. 1998). An opinion that is more consistent with the record as a whole generally 14 carries more persuasiveness. See 20 C.F.R. § 416.927 (c)(4). 15 2. Analysis 16 Plaintiff argues that the ALJ erred in reviewing the medical opinions of Dr. Debra Bunger 17 and Dr. Aparna Dixit. 18 a. Debra Bunger, M.D. 19 In July 2014, Dr. Bunger began treating Plaintiff for anxiety, depression, and paranoia. A.R. 20 272-73, 318. She met with Plaintiff on a monthly basis, and the record contains her treatment notes 21 from July 2014 to September 2015. Dr. Bunger provided a medical source statement dated October 22 13, 2015. A.R. 318-21. In the source statement, Dr. Bunger wrote that Plaintiff experiences 23 depression, anhedonia, anxiety, panic attacks, and severe paranoia. A.R. 318. According to Dr. 24 Bunger, Plaintiff is often unable to leave the house, can barely socialize even with family, and can 25 barely go places on her own. A.R. 318. She diagnosed Plaintiff with paranoid schizophrenia and 26 schizoaffective disorder. A.R. 318. Dr. Bunger opined that Plaintiff has marked limitations in her 27 ability to work in coordination or proximity to others without being unduly distracted by them, 1 symptoms, and accept instructions and respond appropriately to criticism from supervisors; 2 moderate limitations in her ability to interact appropriately with the general public and ask simple 3 questions or request assistance; mild limitations in her ability to carry out short and simple 4 instructions, carry out detailed instructions, maintain attention and concentration for extended 5 periods, perform activities within a schedule, sustain an ordinary routine without special 6 supervision, and make simple work-related decisions; and no limitations in her ability to get along 7 with coworkers/peers without unduly distracting them or exhibiting behavioral extremes and ability 8 to maintain socially appropriate behavior and adhere to basic standards of neatness and cleanliness. 9 A.R. 319 -20. 10 The ALJ assigned little weight to Dr. Bunger’s opinion on the grounds that it is (1) internally 11 inconsistent, (2) inconsistent with Dr. Bunger’s own treatment notes, and (3) inconsistent with the 12 claimant’s activities of daily living. A.R. 28. Plaintiff argues that the ALJ erred by assigning too 13 little weight to Dr. Bunger’s opinion, and specifically, by discounting Dr. Bunger’s assessment of 14 moderate to marked impairments in Plaintiff’s social functioning. Although Dr. Bunger assigned 15 more restrictive limitations overall than the other medical sources in the record, her opinion as to 16 Plaintiff’s social limitations is not contradicted by any physician. Instead, every medical source 17 assessed at least moderate limitations in Plaintiff’s social functioning. A.R. 63, 77, 296. Thus, the 18 ALJ was required to provide clear and convincing reasons to discount Dr. Bunger’s opinion as to 19 Plaintiff’s social limitations. Lester, 81 F.3d at 830 . 20 According to the ALJ, the limitations assessed by Dr. Bunger are internally inconsistent. 21 A.R. 28 . However, the ALJ’s reasoning is not persuasive since he did not explain which limitations 22 are inconsistent with each other. The Commissioner lists examples of the supposed contradictions, 23 but this reasoning does not appear in the ALJ’s opinion and so cannot be accepted. See Def. Mot. 24 at 3; Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1225-26 (9th Cir. 2009) (explaining that 25 a court must review the agency’s decision “based on the reasoning and factual findings offered by 26 the ALJ—not post hoc rationalizations that attempt to intuit what the adjudicator may have been 27 thinking.”). Further, the limitations identified by the Commissioner are not necessarily 1 not inconsistent with her inability to work near others without being distracted by them. See A.R. 2 319-20. Similarly, her ability to carry out either simple or detailed instructions in general does not 3 imply that she can accept instructions and respond appropriately to criticism from supervisors. See 4 A.R. 319 -20. Because the ALJ did not explain or support his reasoning, the alleged inconsistencies 5 in Dr. Bunger’s assessment do not provide a clear and convincing reason to discount her opinion. 6 The ALJ also discounted Dr. Bunger’s opinion on the basis that it contradicted her treatment 7 notes, which show “only mildly abnormal mental status exams with some paranoia but otherwise, 8 normal speech, alert and oriented, memory grossly intact, cognitive exam normal.” A.R. 28. The 9 ALJ is correct that Dr. Bunger’s treatment notes record largely normal mental exams in terms of 10 cognitive functioning, memory, speech, and orientation. See, e.g., A.R. 272-73, 301, 302, 303, 304, 11 306, 307, 308, 309, 310, 311, 312, 313, 314, 315, 316, 317. However, the ALJ does not explain 12 how Plaintiff’s relatively normal cognition and memory conflict with Dr. Bunger’s assessment of 13 moderate and marked limitations in social functioning. Dr. Bunger’s notes consistently record 14 Plaintiff’s paranoia and anxiety, as well as her difficulty in trusting others, socializing, and leaving 15 her house. See, e.g., A.R. 310, 311, 312, 313, 316. As a whole, Dr. Bunger’s notes and mental 16 status exams are consistent with her opinion that Plaintiff has significant impairments in social 17 functioning but is otherwise only mildly impaired. Thus, the ALJ erred in discounting Dr. Bunger’s 18 opinion on the basis that it is inconsistent with her treatment notes. 19 Finally, the ALJ wrote that Dr. Bunger’s opinion “is not consistent with the claimant’s own 20 reports that she was able to attend a party with family and friends, she went to the mall by herself, 21 and attended other family events along with her statement that she has no trouble with authority 22 figures.” A.R. 28. As noted by the ALJ, Plaintiff reported socializing or going to public places on 23 several occasions. See A.R. 302, 303, 307, 310, 316, 405, 406, 431. However, on almost all of 24 these occasions, Plaintiff was with family or friends. Even then, she usually experienced paranoia 25 and anxiety or took medication to prevent it. A.R. 283, 302, 304, 310, 406, 421, 428. For example, 26 during a trip to a golfing range with her husband, Plaintiff began experiencing paranoia, sat quietly 27 by herself, and tried to distract herself by reading magazines. A.R. 406. On a trip to the mall with 1 reported on many occasions that she cannot go to church or the grocery store on her own, and that 2 she had stopped going to the gym because of her paranoia. A.R. 204, 291, 305, 308, 309, 310, 311, 3 316, 383, 416, 423. The ALJ did not explain how Plaintiff’s ability to occasionally socialize with 4 family and friends undermines Dr. Bunger’s opinion that Plaintiff would have moderate to marked 5 impairment in interacting with coworkers and the public on a daily basis. Accordingly, Plaintiff’s 6 self-reported activities do not provide a clear and convincing reason to discount Dr. Bunger’s 7 opinion. 8 In sum, the ALJ erred in assigning little weight to Dr. Bunger’s opinion. 9 b. Aparna Dixit, PsyD 10 On May 30, 2015, Dr. Dixit performed a consultative psychological evaluation. A.R. 29311 97. She wrote that Plaintiff was cooperative and a reliable historian. A.R. 293-94. Plaintiff’s speech 12 was spontaneous, clear, and coherent, and there were no observed signs or symptoms of delusions 13 or hallucinations. A.R. 294. Dr. Dixit observed that Plaintiff was appropriately dressed, alert and 14 oriented, reserved, anxious, and somewhat irritable. A.R. 294. Dr. Dixit noted evident signs of 15 paranoia and observed that Plaintiff was ill at ease throughout the exam. A.R. 294. She wrote that 16 “[r]apport could be established with some difficulty.” A.R. 293. Plaintiff’s insight was limited but 17 her judgment was intact. A.R. 294. 18 Dr. Dixit administered a battery of tests, including the Wechsler Adult Intelligence Scale 19 (“WAIS-IV”), the Wechsler Memory Scale (“WMS-IV”), and the Trail Making Test (“TMT”). 20 A.R. 295 . Plaintiff’s WAIS-IV results all fell within the low normal range. A.R. 295. Her scores 21 on the WMS “suggest[ed] intact auditory and visual working memory functioning.” A.R. 295. Her 22 TMT scores “suggested mild to moderate impairment in organizing, sequencing, and mental 23 flexibility.” A.R. 295. Dr. Dixit assessed moderate impairments in Plaintiff’s ability to withstand 24 the stress of a routine work day, maintain emotional stability/predictability, interact appropriately 25 with coworkers and supervisors on a regular basis, and interact appropriately with the public on a 26 regular basis; mild to moderate impairments in her ability to follow/remember complex/detailed 27 instructions, maintain adequate pace or persistence to perform complex tasks, and maintain adequate 1 and no limitations in her ability to follow/remember simple instructions, maintain adequate pace or 2 persistence to perform one or two step simple repetitive tasks, adapt to changes in job routine, and 3 communicate effectively with others (verbal and written). A.R. 296. 4 The ALJ assigned significant weight to Dr. Dixit’s opinion except for her opinion that 5 Plaintiff is moderately limited in interacting with coworkers, which he said is not consistent with 6 the objective medical evidence and Plaintiff’s activities of daily living. A.R. 28. Plaintiff argues 7 that the ALJ erred in rejecting that portion of Dr. Dixit’s opinion. Dr. Dixit’s evaluation of 8 Plaintiff’s social impairments is not contradicted by any other physician, and accordingly, the ALJ 9 was required to provide clear and convincing reasons to reject it. Lester, 81 F.3d at 830 . 10 The court finds that the ALJ erred in discounting Dr. Dixit’s opinion as to Plaintiff’s social 11 limitations. Although the ALJ wrote that her opinion is contradicted by “objective medical 12 evidence,” he did not explain what objective evidence undermines her opinion and did not cite any 13 portion of the medical record in support of that statement. The ALJ’s reasoning with respect to 14 Plaintiff’s activities of daily living is the same reasoning the court examined above with respect to 15 Dr. Bunger’s opinion and is deficient for the same reasons. 16 Therefore, the ALJ failed to provide clear and convincing reasons to reject Dr. Dixit’s 17 opinion. 18 B. Remaining Arguments 19 Plaintiff argues that the ALJ erred in making an adverse credibility determination, in 20 discounting her husband’s lay testimony, and in the step five assessment. The court does not reach 21 these arguments in light of its conclusion that the ALJ erred in weighing the medical opinions. This 22 error was not harmless because it could impact the ALJ’s determination on other steps of the 23 analysis. For example, if the ALJ assigns different weight to the medical opinions, he may find that 24 Plaintiff’s testimony and/or the lay testimony is more consistent with the medical evidence, or he 25 assess more restrictive RFC. 26 On remand, the ALJ should revisit these issues and make findings consistent with this order 27 and the regulations. VI. CONCLUSION For the reasons stated above, Plaintiff's motion for summary judgment is granted and the [2] Commissioner’s cross motion is denied. The Clerk shall enter judgment for Plaintiff and against [3] Defendant and close this case. KD □ 5 > 6 &y IT IS SO ORDERED. > Tr 1s SO ORDERED [7] Dated: November 24, 2020 8 4 LY a Z Y 7 mM ROE ES PN titedaserOS Via cistrate Nkage Ay) 10 □□ LOY K © DISTRICS a 12 [16] Z 18