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Morris v. Berryhill

United States District Court, D. Arizona

January 4, 2019

Catherine Anne Morris, Plaintiff,
v.
Nancy A. Berryhill, Deputy Commissioner of Social Security for Operations, Defendant.

          ORDER

          H. Russel Holland United States District Judge

         This is an action for judicial review of the denial of disability benefits under Title II and Title XVI of the Social Security Act, 42 U.S.C. §§ 401-434, 1381-1383f. Plaintiff Catherine Anne Morris has timely filed her opening brief, [1] to which defendant Nancy A. Berryhill has timely responded.[2] Oral argument was not requested and is not deemed necessary.

         Procedural Background

         On September 16, 2016, plaintiff filed applications for disability benefits under Title II and Title XVI of the Social Security Act, alleging that she became disabled on December 31, 2013. Plaintiff alleged that she is disabled due to bipolar disorder, depression, and schizophrenia. Plaintiff's applications were denied initially and on reconsideration. Plaintiff requested a hearing. After a hearing on September 26, 2017, an administrative law judge (ALJ) denied plaintiff's claims. Plaintiff sought review of the ALJ's unfavorable opinion. On March 9, 2018, the Appeals Council denied plaintiff's request for review, thereby making the ALJ's January 9, 2018 decision the final decision of the Commissioner. On May 7, 2018, plaintiff commenced this action in which she asks the court to review the Commissioner's final decision.

         General Background

         Plaintiff was born on December 3, 1979. She was 37 years old at the time of the administrative hearing. Plaintiff has a college education. Plaintiff's past relevant work includes work as a case manager, a house parent, a telemarketer, a house manager, a collection agent, and a dispatcher.

         The ALJ's Decision

         The ALJ first determined that plaintiff met “the insured status requirements of the Social Security Act through December 31, 2017.”[3]

         The ALJ then applied the five-step sequential analysis used to determine whether an individual is disabled.[4]

         At step one, the ALJ found that plaintiff had “not engaged in substantial gainful activity since December 31, 2013, the alleged onset date. . . .”[5]

         At step two, the ALJ found that plaintiff had the “following severe impairments: cannabis dependence, schizoaffective disorder, [and] depressive disorder. . . .”[6] The ALJ found plaintiff's GERD and obesity to be non-severe impairments.[7]

         At step three, the ALJ found that plaintiff did “not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1. . . .”[8] The ALJ considered Listings 12.03 (schizophrenia spectrum and other psychotic disorders), 12.04 (depressive, bipolar and related disorders), and 12.06 (anxiety and obsessive-compulsive disorders).[9] The ALJ considered the paragraph B criteria. The ALJ found that plaintiff had moderate limitations “[i]n understanding, remembering, or applying information, ” “[i]n interacting with others, ” and “in her ability to adapt or manage herself.”[10] The ALJ also found that plaintiff had moderate limitations as to concentration, persistence, and pace.[11] Because plaintiff's mental impairments did “not cause at least two ‘marked' limitations or one ‘extreme' limitation, ” the ALJ concluded that the paragraph B criteria were not met.[12] The ALJ also considered the paragraph C criteria and found that they were not met because plaintiff “has more than a minimal capacity to adapt to changes in her environment and to demands that are not already part of her daily life.”[13]

         “Between steps three and four, the ALJ must, as an intermediate step, assess the claimant's RFC.” Bray v. Comm'r of Social Security Admin., 554 F.3d 1219, 1222-23 (9th Cir. 2009). The ALJ found that plaintiff had “the residual functional capacity to perform a full range of work at all exertional levels but with the following nonexertional limitations: the claimant is limited to simple and detailed work, but not complex work, occasional interaction with [the] public, coworkers, and supervisors, occasional changes in workplace setting, and no hazards.”[14]

         The ALJ found plaintiff's symptom statements less than credible because they were inconsistent with the medical evidence, because medications have been “relatively effective in controlling” plaintiff's symptoms, because she had “not received any ongoing treatment until 2016, ” and because her statements are inconsistent with her daily activities.[15]

         The ALJ gave little weight to the lay testimony of plaintiff's sister, Cynthia McCormack.[16] The ALJ gave little weight to Dr. Koster's opinion.[17] The ALJ also gave little weight[18] to Dr. Marks' opinion.[19] And, the ALJ gave little weight to plaintiff's GAF scores.[20] The ALJ gave some weight[21] to the opinions of Dr. Titus[22] and Dr. Bailey.[23]

         At step four, the ALJ found that plaintiff was “unable to perform any past relevant work. . . .”[24]

         At step five, the ALJ found that “there are jobs that exist in significant numbers in the national economy that [plaintiff] can perform[, ]” including production assembler, addresser, and small parts assembler.[25]

         The ALJ thus concluded that plaintiff had “not been under a disability, as defined in the Social Security Act, from December 31, 2013, through the date of this decision. . . .”[26]

         Standard of Review

         Pursuant to 42 U.S.C. § 405(g), the court has the “power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner. . . .” The court “properly affirms the Commissioner's decision denying benefits if it is supported by substantial evidence and based on the application of correct legal standards.” Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997). “Substantial evidence is ‘more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Id. (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)). “‘To determine whether substantial evidence supports the ALJ's decision, [the court] review[s] the administrative record as a whole, weighing both the evidence that supports and that which detracts from the ALJ's conclusion.'” Id. (quoting Andrews, 53 F.3d at 1039). If the evidence is susceptible to more than one reasonable interpretation, the court must uphold the Commissioner's decision. Id. But, the Commissioner's decision cannot be affirmed “‘simply by isolating a specific quantum of supporting evidence.'” Holohan v. Massanari, 246 F.3d 1195, 1201 (9th Cir. 2001) (quoting Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999)).

         Discussion

         Plaintiff first argues that the ALJ erred in rejecting Dr. Koster's opinion. On April 18, 2017, Dr. Koster opined that plaintiff had moderate limitations in her ability to understand/remember simple instructions, apply information to make judgments on simple work-related decisions, maintain concentration for up to one hour, sustain an ordinary routine without special supervision, interact appropriately with the public and co-workers, and respond appropriately to changes in a routine work setting; and marked limitations in her ability to understand/remember detailed instructions, maintain attention and concentration for up to two hours, perform activities within a schedule at a consistent and continuous speed, interact appropriately with supervisors, and respond appropriately to work pressures in a usual work setting.[27] Dr. Koster also opined that plaintiff would be off task 20% of the time, would be absent from work five or more days per month, would be unable to complete an 8-hour day five or more days per month, and that compared to an average worker, plaintiff would only be 70% efficient at her work on a sustained basis.[28]

         Dr. Koster was a treating physician. “As a general rule, more weight should be given to the opinion of a treating source than to the opinion of doctors who do not treat the claimant.” Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). “[I]f the treating doctor's opinion is contradicted by another doctor, the Commissioner may not reject this opinion without providing ‘specific and legitimate reasons' supported by substantial evidence in the record for so doing.” Id. (quoting Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983)). Dr. Koster's opinion was contradicted by Dr. Marks', Dr. Titus', and Dr. Bailey's opinions. Thus, the ALJ was required to give specific and legitimate reasons for rejecting Dr. Koster's opinion.

         The ALJ rejected Dr. Koster's opinion because it was inconsistent with her treatment notes, because it was inconsistent with plaintiff's “achieved score of 29 points out of 30 on the MMSE, which indicates normal cognition[, ]” and because it was inconsistent with plaintiff's “subjective reports that she could prepare meals, pay bills, shop and read.”[29]Plaintiff argues that these were not specific and legitimate reasons for rejecting Dr. Koster's opinion.

         As for the first reason, that Dr. Koster's opinion was inconsistent with her treatment notes, the ALJ explained that Dr. Koster's treatment notes from 2016 and 2017 “noted that the claimant was oriented, alert, had normal speech quantity, logical thought process, euthymic mood, appropriate effect, good memory, good concentration, and fair insight and judgment.”[30] The ALJ then cited to Exhibit 9F as support. Exhibit 9F is over three hundred pages of mental health records from Community Bridges and it includes Dr. Koster's treatment notes.[31]

         To properly reject a treating physician's opinion, an ALJ must set out “‘a detailed and thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and making findings.'” Trevizo v. Berryhill, 871 F.3d 664, 675 (9th Cir. 2017) (quoting Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)). Listing some general mental status findings and then citing generally to a 300-page exhibit is not sufficiently specific. See, e.g., Spendlove v. Comm'r of Social Sec. Admin., No. CV-17-08157-PCT-DGC, 2018 WL 3633744, at *3 (D. Ariz. July 31, 2018) (“the ALJ's citation to 50 pages of treatment notes is inadequate” because “[t]he ALJ's reasoning and broad citations do not explain how specific clinical findings are inconsistent with the doctor's limitations”). Moreover, “the affect and mood notes that the ALJ emphasized simply described how [plaintiff] presented on the days of her appointments. They were not general assessments.” Gerstner v. Berryhill, 879 F.3d 257, 262 (7th Cir. 2018) (emphasis omitted). As the Ninth Circuit has observed, “treatment records must be viewed in light of the overall diagnostic record.” Ghanim v. Colvin, 763 F.3d 1154, 1164 (9th Cir. 2014). Here, the overall diagnostic record indicated that plaintiff had significant limitations flowing from her mental impairments, as Dr. Koster opined. The first reason given by the ALJ for rejecting Dr. Koster's opinion was neither specific nor legitimate.

         As for the second reason, that Dr. Koster's opinion was inconsistent with the findings of a single mini-mental status examination (MMSE), the MMSE does measure cognitive function, as the ALJ indicated. But, plaintiff's limitations flow from her schizoaffective disorder and her depressive disorder, not from any cognitive disorder. The Ninth Circuit has pointed out, “observations of cognitive functioning during therapy sessions do not contradict [a claimant's] reported symptoms of depression and social anxiety.” Id. Similarly, observations as to plaintiff's cognitive functioning do not contradict her reported symptoms of depression and hearing voices. The limitations that Dr. Koster assessed were not limited to cognition issues, but included limitations that flowed from plaintiff's depressive and schizoaffective disorders. The second reason the ALJ gave for rejecting Dr. Koster's opinion was not legitimate.

         As for the third reason, that Dr. Koster's opinion was contradicted by plaintiff's daily activities, the Ninth Circuit has recognized that

“[t]he critical differences between activities of daily living and activities in a full-time job are that a person has more flexibility in scheduling the former than the latter, can get help from other persons . . ., and is not held to a minimum standard of performance, as she would be by an employer. The failure to recognize these differences is a recurrent, and deplorable, feature of opinions by administrative law judges in social security disability cases.”

Garrison v. Colvin, 759 F.3d 995, 1016 (9th Cir. 2014) (quoting Bjornson v. Astrue, 671 F.3d 640, 647 (7th Cir. 2012)). Here, the ALJ did not explain how preparing meals, paying bills, shopping, and reading would translate into the ability to perform full-time work. The third reason given by the ALJ for rejecting Dr. Koster's opinion was not legitimate.

         Because none of the reasons the ALJ gave for rejecting Dr. Koster's opinions were proper, the ALJ erred in ...


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