United States District Court, D. Hawaii
MARY M. KHAN Plaintiff,
ANDREW SAUL, Commissioner of Social Security, Defendant.
ORDER AFFIRMING THE DECISION OF THE COMMISSIONER OF
C. Kay Sr. United States District Judge
reasons discussed below, the Court AFFIRMS the decision of
the Commissioner of Social Security.
3, 2014, Plaintiff Mary Khan (“Plaintiff”) filed
a Title II application for a period of disability and
disability insurance benefits (“SSDI”) and a
Title XVI application for supplemental security income
(“SSI”), alleging disability beginning on April
21, 2009. Administrative Record (“AR”) 27;
228-33; 238-44. The applications were initially denied on
February 2, 2015, and then denied upon reconsideration on May
18, 2015. AR 163-66; 170-72. Plaintiff then requested a
hearing before an administrative law judge
(“ALJ”), which was held on July 26, 2016, and at
which Plaintiff appeared and testified. AR 45-91. At the
hearing, Plaintiff amended her onset date to January 1, 2013.
November 15, 2016, the ALJ issued his written decision
finding that Plaintiff was not disabled. AR 24-44. On
December 20, 2016, Plaintiff requested the Appeals Council
review the ALJ's decision. AR 222-23. On July 9, 2018,
the Appeals Council notified Plaintiff that it granted
Plaintiff's request for review. AR 4. The Appeals Council
informed Plaintiff that it would add Exhibit 16F to the
record, which contained treatment notes from Plaintiff's
treating doctor, Mary Myers, Ph.D. AR 4. The treatment notes
were not previously entered into the record and were not
addressed in the ALJ's hearing decision. AR 4. On August
26, 2018, Plaintiff's counsel indicated neither she nor
Plaintiff had received the Appeals Council's July 9, 2018
correspondence, and on August 31, 2018, the Appeals Council
granted Plaintiff 30 additional days to respond. AR 4. The
Appeals Council received no additional statement or evidence,
and it adopted the ALJ's decision as its final decision
on November 2, 2018. AR 4-7.
filed a Complaint on January 5, 2019, seeking review of the
denial of her applications for SSDI and SSI benefits. ECF No.
1. On May 31, 2019, Plaintiff filed her Opening Brief
(“Opening Br.”). ECF No. 15. On July 30, 2019,
Defendant Andrew Saul, the Acting Commissioner of Social
Security (the “Commissioner”),  filed his
Answering Brief (“Ans. Br.”). ECF No. 16.
Plaintiff filed a Reply Brief (“Reply Br.”) on
August 29, 2019. ECF No. 17. The Court held a hearing on
September 24, 2019.
district court has jurisdiction pursuant to 42 U.S.C. §
405(g) to review final decisions of the Commissioner of
Social Security. A decision is not final until the
Appeals Council either denies review or assumes jurisdiction
and issues its own decision. 20 C.F.R. § 404.955.
“When the Appeals Council declines review, ‘the
ALJ's decision becomes the final decision of the
Commissioner,' and the district court reviews that
decision for substantial evidence, based on the record as a
whole.” Brewes v. Comm'r of Soc. Sec.
Admin., 682 F.3d 1157, 1161-62 (9th Cir. 2012) (quoting
Taylor v. Comm'r of Soc. Sec. Admin., 659 F.3d
1228, 1231 (9th Cir. 2011)). Where the Appeals Council grants
review and issues a decision, the Appeals Council's
decision becomes the final decision of the Commissioner. 20
C.F.R. §§ 404.969, 404.979. The reviewing
court's task is then “to review the decision of the
Appeals Council under the substantial evidence standard, not
the decision of the ALJ.” Howard v. Heckler,
782 F.2d 1484, 1487 (9th Cir. 1986).
decision denying Social Security disability benefits will not
be disturbed by the reviewing district court if it is free of
legal error and supported by substantial evidence.
See 42 U.S.C. § 405(g); Dale v.
Colvin, 823 F.3d 941, 943 (9th Cir. 2016). In
determining the existence of substantial evidence, the
administrative record must be considered as a whole, weighing
the evidence that both supports and detracts from the
ALJ's factual conclusions. See Gutierrez v.
Comm'r of Soc. Sec., 740 F.3d 519, 523 (9th Cir.
2014). “Substantial evidence means more than a
scintilla but less than a preponderance; it is such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion.” Id. (internal quotation
marks omitted). “If the evidence can reasonably support
either affirming or reversing, the reviewing court may not
substitute its judgment for that of the Commissioner.”
Id. (internal quotation marks omitted). Rather,
courts “leave it to the ALJ to determine credibility,
resolve conflicts in the testimony, and resolve ambiguities
in the record.” Treichler v. Comm'r of Soc.
Sec. Admin., 775 F.3d 1090, 1098 (9th Cir. 2014).
reviewing courts must be cognizant of the
“[l]ong-standing principles of administrative law
require us to review the ALJ's decision based on the
reasoning and factual findings offered by the ALJ-not
post hoc rationalizations that attempt to intuit
what the adjudicator may have been thinking.” Bray
v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219,
1225-26 (9th Cir. 2009); see also S.E.C. v. Chenery
Corp., 332 U.S. 194, 196 (1947) (if the grounds
“invoked by the agency . . . are inadequate or
improper, the court is powerless to affirm the administrative
action by substituting what it considers to be a more
adequate or proper basis”).
establish a claimant's eligibility for disability
benefits under the Social Security Act, it must be shown
that: (a) the claimant suffers from a medically determinable
physical or mental impairment that can be expected to result
in death or that has lasted or can be expected to last for a
continuous period of not less than twelve months; and (b) the
impairment renders the claimant incapable of performing the
work that the claimant previously performed and incapable of
performing any other substantial gainful employment that
exists in the national economy.” Tackett v.
Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999); see
also 42 U.S.C. § 423(d)(2)(A). A claimant must
satisfy both requirements in order to qualify as
“disabled” under the Social Security Act.
Tackett, 180 F.3d at 1098.
The Social Security Administration's Five-Step Process
for Determining Disability
Social Security regulations set forth a five-step sequential
process for determining whether a claimant is disabled.
Dominguez v. Colvin, 808 F.3d 403, 405 (9th Cir.
2014); see also 20 C.F.R. §
404.1520(a)(4). “If a claimant is found to be
‘disabled' or ‘not disabled' at any step
in the sequence, there is no need to consider subsequent
steps.” Ukolov v. Barnhart, 420 F.3d 1002,
1003 (9th Cir. 2005) (citations omitted in original); see
also 20 C.F.R. § 404.1520(a)(4). The claimant bears
the burden of proof as to steps one through four, whereas the
burden shifts to the ALJ for step five. Tackett, 180
F.3d at 1098; see also Valentine v. Comm'r of Soc.
Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009) (noting
that the burden shifts to the Commissioner at step five to
show that the claimant can do other kinds of work).
one, the ALJ will consider a claimant's work activity, if
any. 20 C.F.R. § 404.1520(a)(4)(i). If the ALJ finds the
claimant is engaged in substantial gainful activity, the ALJ
will determine that the claimant is not disabled, regardless
of the claimant's medical condition, age, education, or
work experience. 20 C.F.R. § 404.1520(b). Substantial
gainful activity is work that is defined as both substantial
(work activity involving significant physical or mental
activities) and gainful (work activity usually done for pay
or profit, whether or not a profit is realized). 20 C.F.R.
§ 404.1572. If the ALJ finds that the claimant is not
engaged in substantial gainful activity, the analysis
proceeds to step two. Tackett, 180 F.3d at 1098.
two requires that the ALJ consider the medical severity of
the claimant's impairments. 20 C.F.R. §
404.1520(a)(4)(ii). Only if the claimant has an impairment or
combination of impairments that “significantly limits
[her] physical or mental ability to do basic work
activities” will the analysis proceed to step three. 20
C.F.R. § 404.1520(c). If not, the ALJ will find the
claimant is not disabled and the analysis ends there. 20
C.F.R. § 404.1520(a)(4)(ii).
also considers the severity of the claimant's impairments
at step three. 20 C.F.R. § 404.1520(a)(4)(iii). Here,
the ALJ will determine whether the claimant's impairments
meet or equal the criteria of an impairment specifically
described in the regulations. Id.; see also
20 C.F.R. Part 404, Subpart P, App. 1. If the impairments
meet or equal these criteria, the claimant is deemed disabled
and the analysis ends. 20 C.F.R. § 404.1520(a)(4)(iii).
If not, the analysis proceeds to step four. 20 C.F.R. §
four first requires the ALJ to determine the claimant's
residual functional capacity (“RFC”).
Id. RFC is defined as the most the claimant can
still do in a work setting despite her physical and mental
limitations. 20 C.F.R. § 404.1545(a)(1). In assessing a
claimant's RFC, the ALJ will consider all of the relevant
evidence in the claimant's case record regarding both
severe and non-severe impairments. 20 C.F.R. § 404.1545.
The ALJ then uses this assessment to determine whether the
claimant can still perform her past relevant work. 20 C.F.R.
§ 404.1520(e). Past relevant work is defined as
“work that [the claimant has] done within the past 15
years, that was substantial gainful activity, and that lasted
long enough for [the claimant] to learn to do it.” 20
C.F.R. § 404.1560(b)(1). The ALJ will find that the
claimant is not disabled if she can still perform her past
relevant work, at which point the analysis will end.
Otherwise, the ALJ moves on to step five.
fifth and final step, the ALJ will once again consider the
claimant's RFC, as well as her age, education, and work
experience, in order to determine whether the claimant can
perform other work. 20 C.F.R. § 404.1520(a)(4)(v). Here,
the ALJ is responsible for providing “evidence that
demonstrates that other work exists in significant numbers in
the national economy that [the claimant] can do.” 20
C.F.R. § 404.1520(g)(1). If the claimant is unable to
perform other work, she is deemed disabled. 20 C.F.R. §
404.1520(g). If she can make an adjustment to other available
work, she is considered not disabled. Id.
The Appeals Council's Decision
issued his decision in this case on November 15, 2016. The
Appeals Council granted review of that decision, and
therefore the Appeals Council's November 2, 2018 decision
was the Commissioner's final decision in this case. AR 1.
In that final decision, the Appeals Council adopted the
regarding the pertinent provisions of the Social Security
Act, Social Security Administration Regulations, Social
Security Rulings and Acquiescence Rulings, the issues in the
case, and the evidentiary facts; (2) findings and conclusions
regarding whether Plaintiff is disabled; (3) findings under
steps one, two, three, and four of the sequential evaluation;
(4) conclusions regarding Plaintiff's statements
concerning the alleged symptoms; and (5) conclusions
regarding Plaintiff's mental impairment under the four
functional areas requiring evaluation. AR 4-7. Aside from
these statements, the Appeals Council did not discuss or
evaluate the medical reports or other evidence that was
before the ALJ.
Appeals Council did add Exhibit 16F to the record, which was
not addressed in the hearing decision or previously entered
into the record. AR 4. The Appeals Council found that
“Exhibit 16F do[es] not contain objective, clinical
findings that would otherwise change the Administrative Law
Judge's mental functional findings.” AR 4; see
also note 8, infra.
ALJ's decision is therefore treated as the decision of
the Appeals Council concerning the evaluation of the medical
evidence and the credibility of plaintiff's subjective
The ALJ's Analysis
found that, at step one, Plaintiff had not engaged in
substantial gainful activity since January 1, 2013- the
amended alleged disability onset date-and at step two, that
she suffered from the following severe impairments:
depression; post-traumatic stress disorder (PTSD); and
possible personality disorder. AR 29-30.
three, the ALJ found that Plaintiff did not have an
impairment or combination of impairments that met or
medically equaled the severity of an impairment listed in 20
C.F.R. Part 404, Subpart P, Appendix 1. AR 30-31.
Specifically, the ALJ found that Plaintiff's mental
impairments, considered singly and in combination, did not
meet or medically equal the criteria related to depressive,
bipolar and related disorders; anxiety and
obsessive-compulsive disorders; and personality and
impulse-control disorders. Id.; 20 C.F.R. Part 404,
Subpart P, Appendix 1, §§ 12.04, 12.06, 12.08.
to step four, the ALJ determined that Plaintiff had the RFC
to perform a full range of work at all exertional levels but
with the following nonexertional limitations: she is limited
to simple routine, repetitive tasks; she is limited to
occasional changes in work setting; she could not perform
production rate pace work (that is, traditional assembly line
work where another employee's performance is dependent on
the immediate prior performance of the claimant); and she is
limited to occasional interaction with the public but
frequent interaction with coworkers and supervisors.
AR 31-32. Based on this RFC, the ALJ determined at step four
that Plaintiff is capable of performing past relevant work as
a data entry clerk. AR 38. This determination led the ALJ to
find Plaintiff “not disabled” at step four. AR
Plaintiff's Challenge on Appeal
does not challenge any of the findings the ALJ made at the
first three steps. See generally Opening Br.
Plaintiff instead challenges the ALJ's determination at
step four: that she is capable of performing past relevant
work as a data entry clerk and is therefore “not
disabled.” She asserts that the ALJ improperly weighed
or rejected the testimony of certain medical professionals,
and that the ALJ erred in his analysis of Plaintiff's
credibility. Opening Br. at 1-2, 10.
Whether the ALJ Erred in His Assessment of Certain Medical
ALJ considered medical opinions issued by six doctors in this
case. Opening Br. at 14. While Plaintiff
takes issue with the weight ascribed to each throughout her
papers, see generally Opening Br., she characterizes
her challenge in three parts: (1) that the ALJ failed to
provide clear and convincing or specific and legitimate
reasons to reject treating doctor, Dr. Myers's, opinions;
(2) that the ALJ failed to provide clear and convincing or
specific and legitimate reasons to reject Dr. Wingert's
opinions; and (3) that the ALJ failed to provide clear and
convincing or specific and legitimate reasons to reject seven
of Dr. Kiyota's opinions. Opening Br. at 15-27.
Standards for Weighing Medical Opinion Evidence
assessing whether a claimant is disabled, the ALJ must
“develop the record and interpret the medical evidence,
” considering the “‘combined effect' of
all the claimant's impairments, ” regardless of
whether any one impairment, considered alone, would be of
sufficient severity. Howard v. Barnhart, 341 F.3d
1006, 1012 (9th Cir. 2003) (citing Crane v. Shalala,
76 F.3d 251, 255 (9th Cir. 1996); 20 C.F.R. § 416.923).
The ALJ is not obligated to discuss “every piece of
evidence” where the evidence is “neither
significant nor probative.” Id. Ultimately,
“it is the responsibility of the ALJ, not the
claimant's physician, to determine residual function
capacity.” Vertigan v. Halter, 260 F.3d 1044,
1049 (9th Cir. 2001) (citing 20 C.F.R. § 404.1545).
applicable regulations state that the agency will consider
all the medical opinions it receives. See 20 C.F.R.
§ 404.1527(b)-(c). But in the realm of social security
adjudications, medical opinions are not all created equal:
“Cases in this circuit 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); see also 20 C.F.R. §
404.1527(c). “Generally, the opinion of a treating
physician must be given more weight than the opinion of an
examining physician, and the opinion of an examining
physician must be afforded more weight than the opinion of a
reviewing physician.” Ghanim v.
Colvin, 763 F.3d 1154, 1160 (9th Cir. 2014) (citing
Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir;
2001); 20 C.F.R. § 404.1527(c)).
a treating physician's opinion is generally afforded the
greatest weight in disability cases, it is not binding on an
ALJ with respect to the existence of an impairment or the
ultimate determination of disability.” Ukolov,
420 F.3d at 1004 (citation omitted). A treating
physician's opinion should be given controlling weight if
the opinion “is well-supported by medically acceptable
clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence in [the]
case record.” Ghanim, 763 F.3d at 1160
(quoting Orn v. Astrue, 495 F.3d 625, 631 (9th Cir.
2007)) (alteration in original).
if a treating physician's opinion is contradicted, the
ALJ may not simply disregard it.” Ghanim, 763
F.3d at 1161. Rather, to determine how much weight to give a
treating physician's opinion, the ALJ must consider the
following factors: the length of the treatment relationship
and frequency of examination by the treating physician; the
nature and extent of the treatment relationship between the
patient and the treating physician; the supportability of the
treating physician's opinion with medical evidence; the
consistency of the treating physician's opinion with the
record as a whole; and whether or not the treating physician
is a specialist. Id.; 20 C.F.R. §
may only reject a treating physician's contradicted
opinions by providing “specific and legitimate reasons
that are supported by substantial evidence.”
Ghanim, 763 F.3d at 1161 (quoting Ryan v.
Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir.
2008)). “The ALJ can meet this burden by setting out a
detailed and thorough summary of the facts and conflicting
clinical evidence, stating [his] interpretation thereof, and
making findings.” Tommasetti v. Astrue, 533
F.3d 1035, 1041 (9th Cir. 2008). “The ALJ must do more
than state conclusions. He must set forth his own
interpretations and explain why they, rather than the
doctors', are correct.” Garrison v.
Colvin, 759 F.3d 995, 1012 (9th Cir. 2014) (quoting
Reddick v. Chater, 157 F.3d 715, 725 (9th Cir.
1998)). “[A]n 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.” Id. at 1012-13.
an examining physician's opinion is entitled to greater
weight than that of a nonexamining physician.
Lester, 81 F.3d at 830. The ALJ must provide clear
and convincing reasons for rejecting the uncontradicted
opinion of an examining physician; and if the opinion is
contradicted by another physician, the ALJ can only reject it
by providing specific and legitimate reasons that are
supported by substantial evidence in the record. Id.
this framework in mind, the Court considers whether the ALJ
properly weighed the opinions of Plaintiff's physicians.
Whether the ALJ Improperly Afforded “Only Some
Weight” to the Medical Opinion of Treating
Psychologist, Dr. Myers
The Medical Reports of Dr. Myers and the ALJ's
Myers is Plaintiff's treating psychologist and has been
treating Plaintiff in individual psychotherapy since October
9, 2012. AR 34, 374. Dr. Myers submitted five medical reports
to the agency, dated November 21, 2012, May 12, 2013, August
18, 2014, June 3, 2016, and August 15, 2016. AR 374, 375,
388-92, 683-85, 707-721.
Myers's November 21, 2012 report took the form of a
letter describing Plaintiff's diagnoses, background, and
treatment. AR 374. Specifically, she described daily survival
as a struggle for Plaintiff, which was exacerbated when
Plaintiff was required to comply with a 30-hour-per-week job
search requirement under the state of Hawaii's First to
Work Program. Id. Dr. Myers stated that the
exemption Plaintiff received from First to Work enabled her
to enter treatment. Id. Dr. Myers stated that
Plaintiff had progressed well in therapy and had elected to
forego medication but would be receptive to medication if her
psychotherapy did not show progress. Id. Dr. Myers
requested that Plaintiff “be granted a minimum of 6-12
months to continue her treatment and prepare for her future
employment plans, ” because Dr. Myers believed
“this is necessary in order to ensure her return to the
workforce as a productive worker.” Id. The ALJ
did not mention this report. See AR 34-35
(describing Dr. Myers's four other reports, beginning
with the May 12, 2013 report).
Myers's May 12, 2013 report provided “an update to
the previous report, dated 11/21/12.” AR 375. After
reiterating Plaintiff's background, Dr. Myers opined that
Plaintiff “has made good progress but is clearly not
yet ready to return to employment. I would anticipate that
she will require at least 6 months to be fully ready to
become gainfully employed on a full time basis.”
Id. The ALJ considered the background provided in
the report and understood that “in Dr. Meyers'
[sic] opinion, ” Plaintiff “would likely
be able to become fully gainfully employed after another six
months of treatment.” AR 34.
August 18, 2014, Dr. Myers completed a form entitled
“Report of Treating Mental Health Provider.” AR
388-92. On that form, Dr. Myers indicated that she met with
Plaintiff one to two times per month. AR 388. She provided
narrative descriptions of Plaintiff as polite and pleasant,
actively engaged in her treatment, and interested in being an
excellent parent to her eight children, and Dr. Myers
described her ability to relate as “excellent.”
AR 389-91. Dr. Myers found Plaintiff to have an IQ
functioning in the average or above average range, and found
Plaintiff displayed an “appropriate range of emotions
given topics discussed.” AR 389.
response to questions regarding Plaintiff's RFC, Dr.
Myers stated that Plaintiff was capable of understanding and
remembering simple work instructions but “may not be
able to do so consistently on [a] daily basis for employment,
” noting that Plaintiff continued to struggle with past
traumas. AR 390. Similarly, she opined that Plaintiff was
“probably” capable of maintaining regular job
attendance and persisting at simple, repetitive work tasks
under ordinary supervision, “but may not be able to do
so consistently for employment as she is most likely at or
near her limit for coping [with] stressors of any
kind.” Id. Dr. Myers again stated that social
engagement was a strength for Plaintiff as she relates and
engages easily, but concluded Plaintiff was “probably
not” capable of adapting/coping with a low-demand,
entry-level job on a full time consistent basis in an
employment situation. AR 391.
found this report the most persuasive of the reports Dr.
Myers submitted. AR 35. The ALJ contrasted Dr. Myers's
“detailed findings” used “to support her
conclusions” in the August 18, 2014 report against the
lack of detailed findings used to support Dr. Myers's
conclusions in her later-submitted June 3, 2016 and August
15, 2016 reports. Id.
3, 2016, Dr. Myers completed a form entitled “Mental
Health Questionnaire.” AR 683-85. The form included:
(1) a DSM-V Multiaxial Evaluation, where Dr. Myers wrote
“Posttraumatic stress disorder, Depression” on
Axis I, and wrote “single parent, economic hardship, no
psychosocial support network” on Axis IV;
(2) a check-box identification of signs and symptoms, where
Dr. Myers checked eleven of thirty-two signs or symptoms;
(3) a check-box ranking of the ability to make necessary
adjustment to maintain a job across a list of categories,
where Dr. Myers indicated zero no limitations, five mild
limitations, fourteen moderate limitations, three marked
limitations, and zero extreme limitations;
(4) a check-box ranking of the degree to which the
patient's mental health impairs her ability to function,
where Dr. Myers indicated zero no limitations, one mild
limitation, three moderate limitations, zero marked
limitations, and zero extreme limitations;
(5) an expected average monthly work absence, where Dr. Myers
wrote 5-6 days, “possibly more”; and
(6) an indication of whether the limitations have been
present since the provided onset date, where Dr. Myers wrote
AR 683-85. The ALJ referred to this report in his decision
but found it “cursory” and “provided no
detailed clinical findings, much less any ...