United States District Court, D. Arizona
Russel Holland United States District Judge
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,
to which defendant Nancy A. Berryhill has timely
responded. Oral argument was not requested and is
not deemed necessary.
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.
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.
first determined that plaintiff met “the insured status
requirements of the Social Security Act through December 31,
then applied the five-step sequential analysis used to
determine whether an individual is disabled.
one, the ALJ found that plaintiff had “not engaged in
substantial gainful activity since December 31, 2013, the
alleged onset date. . . .”
two, the ALJ found that plaintiff had the “following
severe impairments: cannabis dependence, schizoaffective
disorder, [and] depressive disorder. . .
.” The ALJ found plaintiff's GERD and
obesity to be non-severe impairments.
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. . .
.” 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). 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.” The ALJ also found
that plaintiff had moderate limitations as to concentration,
persistence, and pace. 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. 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.”
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.”
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
gave little weight to the lay testimony of plaintiff's
sister, Cynthia McCormack. The ALJ gave little
weight to Dr. Koster's opinion. The ALJ also gave
little weight to Dr. Marks'
opinion. And, the ALJ gave little weight to
plaintiff's GAF scores. The ALJ gave some
weight to the opinions of Dr.
Titus and Dr. Bailey.
four, the ALJ found that plaintiff was “unable to
perform any past relevant work. . . .”
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.
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. . .
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.
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. 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.
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.
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.”Plaintiff argues that
these were not specific and legitimate reasons for rejecting
Dr. Koster's opinion.
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.” 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
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.
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
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
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
none of the reasons the ALJ gave for rejecting Dr.
Koster's opinions were proper, the ALJ erred in ...