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Herrera v. Berryhill

United States District Court, D. Arizona

April 9, 2019

Christina Herrera, 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 of the Social Security Act, 42 U.S.C. §§ 401-434. Plaintiff Christina Herrera 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 May 1, 2014, plaintiff filed an application for disability benefits under Title II of the Social Security Act, alleging that she became disabled on April 27, 2012. Plaintiff alleged that she was disabled due to PTSD, occipital neuralgia, chronic depression, panic attacks, psychomotor retardation, chronic neck and head pain, and severe insomnia.[3]Plaintiff's application was denied initially and upon reconsideration. Plaintiff requested a hearing. After an administrative hearing on December 14, 2016, an administrative law judge (ALJ) found that plaintiff was disabled from April 27, 2012 through September 24, 2015, but not disabled after September 24, 2015. Plaintiff sought review of the ALJ's partially favorable decision. On June 25, 2018, the Appeals Counsel denied plaintiff's request for review, thereby making the ALJ's March 13, 2017 decision the final decision of defendant. On August 22, 2018, plaintiff commenced this action in which she asks the court to review defendant's final decision.

         General Background

         Plaintiff was born on June 28, 1974. She was 42 years old at the time of the administrative hearing. Plaintiff has a master's degree in counseling. Plaintiff and her son live with her parents. Plaintiff's past relevant work includes work as a school psychologist.

         The ALJ's Decision This “is a so-called closed period case, meaning the ALJ found-in the same decision-that [plaintiff] had been disabled for a closed period of time and had since medically improved.” Attmore v. Colvin, 827 F.3d 872, 876 (9th Cir. 2016).

         The ALJ first determined that plaintiff met “the insured status requirements of the Social Security Act through December 31, 2017.”[4]

         The ALJ then applied the five-step sequential analysis used to determine whether an individual is disabled.[5]

         At step one, the ALJ found that “[f]rom April 27, 2012 through September 24, 2015, the claimant did not engage in substantial gainful activity. . . .”[6]

         At step two, the ALJ found that “[f]rom April 27, 2012 through September 24, 2015, the period during which the claimant was under a disability, the claimant had the following severe impairments: occipital neuralgia, major depressive disorder, post-traumatic stress disorder . . ., and generalized anxiety disorder. . . .”[7]

         At step three, the ALJ found that “[f]rom April 27, 2012 through the date of this decision, the claimant does not have an impairment or combination of impairments that meets or medically equals the severity of an impairment listed in 20 CFR Part 404, Subpart P, Appendix 1. . . .”[8]

         “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, from April 27, 2012 through September 24, 2015, the claimant had the residual functional capacity to perform a full range of work at all exertional levels but with the following non-exertional limitations: She could have moderate exposure to loud noise. She could perform simple work with occasional interaction with the public, coworkers, and supervisors. She could have occasional changes in the workplace setting. Due to psychological symptoms, she would be off task 15 percent of the workday.[9]

         At step four, the ALJ found that “[f]rom April 27, 2012 through September 24, 2015, the claimant was unable to perform any past relevant work. . . .”[10]

         At step five, the ALJ found that “[f]rom April 27, 2012 through September 24, 2015, considering the claimant's age, education, work experience, and residual functional capacity, there were no jobs that existed in significant numbers in the national economy that the claimant could have performed. . . .”[11]

         The ALJ then considered whether plaintiff's “disability continue[d] through the date of decision.”[12] An ALJ follows an “eight-step sequential evaluation process to assess whether a recipient continues to be disabled.” Laura G. v. Berryhill, 357 F.Supp.3d 1023, 1026 (C.D. Cal. 2019). The ALJ set out[13] the eight steps[14] in her decision and made the following findings.

         The ALJ found that “beginning on September 24, 2015 the claimant's impairment's improved causing a lesser severity of symptoms.”[15] The ALJ found

that beginning on September 24, 2015, the claimant has the residual functional capacity to perform a full range of work at all exertional levels but with the following non-exertional limitations: She can have moderate exposure to loud noise. She can perform simple work with occasional interaction with the public, coworkers, and supervisors. She can have occasional changes in the workplace setting.[16]

         The ALJ found “[t]he claimant's objective medical evidence, the effectiveness of treatment, and the claimant's activities of daily living[] illustrate greater functional abilities than alleged.”[17] The ALJ found that plaintiff could not perform her past relevant work.[18] But, the ALJ found that “[a]s of September 25, 2015, considering the claimant's age, education, work Lesley v. Berryhill, 261 F.Supp.3d 983, 988 (D. Ariz. 2017) (citation omitted). experience, and residual functional capacity, there were jobs that existed in significant numbers in the national economy that the claimant could have performed[, ]” such as working as a marker, cleaner, or router.[19]

         Thus, the ALJ concluded that plaintiff “was under a disability, as defined by the Social Security Act, from April 27, 2012, through September 24, 2015” but that plaintiff's “disability ended September 25, 2015, and the claimant has not become disabled again since that date. . . .”[20]

         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 conclu- sion.'” 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 finding that she had medically improved as of September 24, 2015. “Medical improvement is defined as ‘any decrease in the medical severity' of a recipient's impairment and requires a ‘comparison of prior and current medical evidence which must show that there have been changes (improvement) in the symptoms, signs or laboratory findings associated with that impairment(s)[.]'” Attmore, 827 F.3d at 875 (quoting 20 C.F.R. § 404.1594(b)(1), (c)(1)).

         Plaintiff argues that the evidence to which the ALJ cited in support of her finding of medical improvement as of September 24, 2015, does not actually show improvement. First, the ALJ noted[21] that on October 8, 2015, plaintiff reported that her “‘mood is overall pretty good'” and that she reported that “this mood has been ongoing” for the past three or four weeks.[22] Plaintiff argues that an improved mood at one appointment or even for 3-4 weeks does not necessarily represent medical improvement.

         The ALJ next noted[23] that on September 13, 2016, plaintiff was taking less Xanax.[24] While plaintiff does not dispute that this was correct, she points out that she continued to take Effexor, propranolol, Trazodone, and hydroxyzine in 2016, just as she did during the closed period. Moreover, plaintiff points out that at this September 2016 appointment, she reported that “her anxiety is elevated and keeping her sleepless at night” which “causes grogginess in the morning which makes it hard for her to get her son up for school.”[25] Thus, plaintiff argues that the fact that she was taking less Xanax does not necessarily mean that she had medically improved.

         The ALJ also noted that psychological exams in late 2015 and 2016 showed “normal orientation, appearance, behavior, mood, affect, thought content, and intellectual function-ing.”[26] But plaintiff argues that her mental status exams were largely the same both before and after September 24, 2015. For example, in June 2015, plaintiff's mental status exam[27]was exactly the same as it was on October 8, 2015.[28] And, Dr. Alexander's mental status exams, which were done during the closed period, also often showed positive findings such as normal orientation, good memory, good insight, and appropriate judgment.[29]

         The ALJ also noted[30] that plaintiff's 2016 treatment notes indicated that plaintiff's PTSD was stable.[31] But, plaintiff argues that this evidence does not support a finding of a medical improvement because “a condition can be stable but disabling.” Petty v. Astrue, 550 F.Supp.2d 1089, 1099 (D. Ariz. 2008).

         Plaintiff argues that the foregoing illustrates that the ALJ was “cherry-picking” from the evidentiary record to find support for the medical improvement finding, which is not appropriate. “An ALJ cannot simply ‘pick out a few isolated instances of improvement over a period of months or years' but must interpret ‘reports of improvement . . . with an understanding of the patient's overall well-being and the nature of her symptoms.'” Attmore, 827 F.3d at 877 (quoting Garrison v. Colvin, 759 F.3d 995, 1017 (9th Cir. 2014)). Plaintiff argues that the ALJ simply picked out the few instances of improvement in her 2015 and 2016 treatment notes and ignored all the evidence that indicated that she was still struggling with depression, anxiety, and PTSD symptoms.

         There is certainly some evidence of medical improvement in 2015 and 2106, as the ALJ noted. And, there is evidence that plaintiff continued to struggle with anxiety, depression, and PTSD symptoms, as plaintiff points out. When, as here, “evidence exists to support more than one rational interpretation, [the court] must defer to the Commissioner's decision.” Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004).

         But even if the ALJ did not err in finding that plaintiff had medically improved as of September 24, 2015, the ALJ still erred in her application of the eight-step medical improvement analysis. Whether there has actually been medical improvement is only one of the eight steps. Once an ALJ finds medical improvement, the ALJ must then “determine whether the improvement is related to [the claimant's] ability to work. . . .” ” Laura G, 357 F.Supp.3d at 1027. The ALJ's decision is devoid of any such finding. Rather, the ALJ found that plaintiff had medically improved, and then the ALJ proceeded to assess plaintiff's RFC and consider whether plaintiff could do her past relevant work or whether there was any other work she could perform. The ALJ never considered whether the alleged improvement was related to plaintiff's ability to work. There is no medical opinion as to how the improvement in plaintiff's symptoms might impact her ability to work. In fact, the only medical opinion after September 24, 2015, was from Dr. Rogers, an opinion to which the ALJ gave little weight as it applied to the period after September 24, 2015. In sum, the ALJ erred because she failed to consider whether plaintiff's alleged medical improvement was related to plaintiff's ability to work.

         Plaintiff next argues that the ALJ erred as to Dr. Roger's opinion. On December 12, 2016, Dr. Rogers opined that plaintiff was seriously limited but not precluded in her ability to understand/remember very short and simple instructions, ask simple questions or request assistance; was unable to meet competitive standards in terms of her ability to remember work-like procedures, carry out very short and simple instructions, maintain attention for a two-hour segment, work in coordination with or proximity to others without being unduly distracted, perform at a consistent pace without an unreasonable number and length of rest periods, and be aware of normal hazards and take appropriate precautions; and had no useful ability to function as to her ability to maintain regular attendance, be punctual within customary tolerances, sustain an ordinary routine without special supervision, make simple work-related decisions, complete a normal workday and workweek without interruptions from psychologically based symptoms, accept instructions and respond appropriately to criticism from supervisors, get along with co-workers or peers without unduly distracting them or exhibiting behavioral extremes, respond appropriately to changes in a routine work setting, and deal with normal work stress.[32] Dr. Rogers also opined that plaintiff had moderate limitations in her ability to understand/remember/carry out detailed instructions, maintain socially appropriate behavior, and adhere to basic standards of neatness and cleanliness; and marked limitations in her ability to set realistic goals or make plans independently of others, deal with the stress of semiskilled and skilled work, interact appropriately with the general public, travel in unfamiliar places, and use public transporta-tion.[33] Dr. Rogers also opined that plaintiff would miss more than four days per month due to her mental impairments and that plaintiff could not work 50 weeks a year, 40 hours a week, 5 days a week, and 8 hours a day.[34]

         Dr. Rogers was a treating physician. The ALJ gave “great weight to Dr. Rogers[' opinion] from April 27, 2012 through September 24, 2015” but “little weight to his opinion after September 24, 2015.”[35] “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). “At least where the treating doctor's opinion is not contradicted by another doctor, it may be rejected only for ‘clear and convincing' reasons.” Id. (quoting Baxter v. Sullivan, 923 F.2d 1391, 1396 (9th Cir. 1991)). “[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. Rogers' opinion was contradicted by the opinion of Dr. Meier[36] and the opinion of Dr. Word.[37] Thus, the ALJ was required to give specific and legitimate reasons for giving little weight to Dr. Rogers' opinion after September 24, 2015.

         The ALJ gave two reasons for rejecting Dr. Rogers' opinion as it applied to the time period after September 24, 2015. First, the ALJ found his opinion inconsistent with the fact that plaintiff had traveled to New Mexico, Texas, and Hawaii.[38] Second, the ALJ found his opinion inconsistent with plaintiff's psychological examinations after September 24, 2015, which showed “normal ...


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