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 of the Social Security Act, 42 U.S.C.
§§ 401-434. Plaintiff Christina Herrera has timely
filed her opening brief,  to which defendant, Nancy A. Berryhill,
has timely responded. Oral argument was not requested and is not
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.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.
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.
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).
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 “[f]rom April 27, 2012 through
September 24, 2015, the claimant did not engage in
substantial gainful activity. . . .”
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. . . .”
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. . .
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.
four, the ALJ found that “[f]rom April 27, 2012 through
September 24, 2015, the claimant was unable to perform any
past relevant work. . . .”
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. . .
then considered whether plaintiff's “disability
continue[d] through the date of
decision.” 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 the eight steps in her decision and made
the following findings.
found that “beginning on September 24, 2015 the
claimant's impairment's improved causing a lesser
severity of symptoms.” 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
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.” The ALJ found that plaintiff
could not perform her past relevant work. 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
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. . . .”
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.
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)).
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 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. Plaintiff argues that an improved mood
at one appointment or even for 3-4 weeks does not necessarily
represent medical improvement.
next noted that on September 13, 2016, plaintiff
was taking less Xanax. 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.” Thus, plaintiff argues that the fact
that she was taking less Xanax does not necessarily mean that
she had medically improved.
also noted that psychological exams in late 2015 and 2016
showed “normal orientation, appearance, behavior, mood,
affect, thought content, and intellectual
function-ing.” 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 examwas exactly the same as it
was on October 8, 2015. 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
also noted that plaintiff's 2016 treatment
notes indicated that plaintiff's PTSD was
stable. 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.
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
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.
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.
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. 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. 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
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.” “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 and the opinion of Dr.
Word. Thus, the ALJ was required to give
specific and legitimate reasons for giving little weight to
Dr. Rogers' opinion after September 24, 2015.
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. Second, the ALJ found his opinion
inconsistent with plaintiff's psychological examinations
after September 24, 2015, which showed “normal