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Khan v. Saul

United States District Court, D. Hawaii

October 8, 2019

MARY M. KHAN Plaintiff,
ANDREW SAUL, Commissioner of Social Security, Defendant.


          Alan C. Kay Sr. United States District Judge

         For the reasons discussed below, the Court AFFIRMS the decision of the Commissioner of Social Security.


         On June 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. AR 48.

         On 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.[1] 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.

         Plaintiff 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”), [2] 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.


         A district court has jurisdiction pursuant to 42 U.S.C. § 405(g) to review final decisions of the Commissioner of Social Security.[3] 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).[4]

         A final 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).

         But 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”).


         “To 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.

         I. The Social Security Administration's Five-Step Process for Determining Disability

         The 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).[5] “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).

         At step 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.

         Step 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).

         The ALJ 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. § 404.1520(e).

         Step 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.

         In the 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.

         II. The Appeals Council's Decision

         The ALJ 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 ALJ's (1)

         statements 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.

         The 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.

         The 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 testimony.

         III. The ALJ's Analysis

         The ALJ 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.

         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 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.[6] Id.; 20 C.F.R. Part 404, Subpart P, Appendix 1, §§ 12.04, 12.06, 12.08.

         Moving 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 38.

         IV. Plaintiff's Challenge on Appeal

         Plaintiff does not challenge any of the findings the ALJ made at the first three steps.[7] 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.

         V. Whether the ALJ Erred in His Assessment of Certain Medical Opinions

          The ALJ considered medical opinions issued by six doctors in this case.[8] 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.

         A. Standards for Weighing Medical Opinion Evidence

         In 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).

         The 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.”[9] 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)).

         “Although 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).

         “Even 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. § 404.1527(c)(1)-(6).

         An ALJ 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.

         Similarly, 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. at 830-31.

         With this framework in mind, the Court considers whether the ALJ properly weighed the opinions of Plaintiff's physicians.

         B. Whether the ALJ Improperly Afforded “Only Some Weight” to the Medical Opinion of Treating Psychologist, Dr. Myers

         i. The Medical Reports of Dr. Myers and the ALJ's Analysis

         Dr. 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.

         Dr. 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).

         Dr. 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.

         On 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.

         In 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.

         The ALJ 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.

         On June 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 “yes.”

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 ...

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