Marcelino Zepeda Castillo v. Nancy A. Berryhill, No. 5:2017cv00236 - Document 20 (C.D. Cal. 2017)

Court Description: MEMORANDUM DECISION AND ORDER by Magistrate Judge Suzanne H. Segal. IT IS ORDERED that Judgment be entered REVERSING the decision of the Commissioner and REMANDING this matter for further proceedings consistent with this decision. (See document for further details). (mr)
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Marcelino Zepeda Castillo v. Nancy A. Berryhill Doc. 20 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 MARCELINO ZEPEDA CASTILLO, 12 Case No. EDCV 17-0236 SS Plaintiff, 13 v. 14 MEMORANDUM DECISION AND ORDER NANCY A. BERRYHIL,1 Acting Commissioner of the Social Security Administration, 15 16 Defendant. 17 18 19 I. 20 INTRODUCTION 21 22 Marcelino Zepeda Castillo (“Plaintiff”) brings this action 23 seeking to overturn the decision of the Commissioner of the Social 24 Security 25 application for Disability Insurance Benefits (“DIB”). The parties Administration (the “Commissioner”) denying his 26 27 28 1 Nancy A. Berryhill is now the Acting Commissioner of Social Security and is substituted for former Acting Commissioner Carolyn W. Colvin in this case. See Fed. R. Civ. P. 25(d). 1 have consented to the jurisdiction of the undersigned United States 2 Magistrate Judge pursuant to 28 U.S.C. § 636(c). 3 stated below, the decision of the Commissioner is REVERSED and 4 REMANDED for further proceedings. For the reasons 5 6 II. 7 PROCEDURAL HISTORY 8 9 On January 9, 2013, Plaintiff filed an application for DIB 10 claiming 11 (Administrative Record (“AR”) 222-23). Plaintiff’s DIB application 12 was denied both initially on May 31, 2013 and upon reconsideration 13 on October 25, 2013. (AR 120-25, 127-32). Plaintiff then requested 14 a hearing which was held before Administrative Law Judge (“ALJ”) 15 Dana E. McDonald on January 23, 2015. 16 held a second hearing on August 20, 2015. (AR 39-73). On September 17 22, 2015, ALJ McDonald issued an unfavorable decision, finding 18 Plaintiff 19 limitations. 20 review of the ALJ’s decision before the Appeals Council. 21 18). 22 request for review and the ALJ’s decision became the final decision 23 of the Commissioner. his able disability to perform (AR 19-38). began light on December (AR 74-88). work with 22, 2010. ALJ McDonald some additional On October 29, 2015, Plaintiff requested (AR 17- On December 12, 2016, the Appeals Council denied Plaintiff’s (AR 1-7). 24 25 26 27 28 2 1 IV. 2 THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS 3 4 To qualify for disability benefits, a claimant must 5 demonstrate a medically determinable physical or mental impairment 6 that prevents him from engaging in substantial gainful activity2 7 and that is expected to result in death or to last for a continuous 8 period of at least twelve months. Reddick v. Chater, 157 F.3d 715, 9 721 U.S.C. (9th Cir. 1998)(citing 42 § 423(d)(1)(A)). The 10 impairment must render the claimant incapable of performing the 11 work he previously performed and incapable of performing any other 12 substantial gainful employment that exists in the national economy. 13 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999)(citing 42 14 U.S.C. § 423(d)(2)(A)). 15 16 To decide if a claimant is entitled to benefits, an ALJ 17 conducts a five-step inquiry. 18 steps are: 20 C.F.R. §§ 404.1520, 416.920. The 19 20 (1) Is the claimant presently engaged in substantial gainful 21 activity? If so, the claimant is found not disabled. 22 not, proceed to step two. 23 (2) 24 Is the claimant’s impairment severe? is found not disabled. If If not, the claimant If so, proceed to step three. 25 26 27 28 2 Substantial gainful activity means work that involves doing significant and productive physical or mental duties and is done for pay or profit. 20 C.F.R. §§ 404.1510, 416.910. 3 1 (3) Does the claimant’s impairment meet or equal one of a list 2 of specific impairments described in 20 C.F.R. Part 404, 3 Subpart P, Appendix 1? 4 disabled. 5 (4) If so, the claimant is found If not, proceed to step four. Is the claimant capable of performing his past work? 6 so, the claimant is found not disabled. 7 If step five. 8 (5) 9 Is the claimant able to do any other work? claimant is found disabled. 10 If not, proceed to If not, the If so, the claimant is found not disabled. 11 12 Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari, 13 262 F.3d 949, 953-54 (9th Cir. 2001)(citing Tackett); 20 C.F.R. §§ 14 404.1520(b) – 404.1520(f)(1) & 416.920(b) – 416.920(f)(1). 15 16 The claimant has the burden of proof at steps one through 17 four, and the Commissioner has the burden of proof at step five. 18 Bustamante, 262 F.3d at 953-54 (citing Tackett). 19 the ALJ has an affirmative duty to assist the claimant in developing 20 the record at every step of the inquiry. 21 four, the claimant meets his burden of establishing an inability 22 to perform past work, the Commissioner must show that the claimant 23 can perform some other work that exists in “significant numbers” 24 in 25 residual functional capacity,3 age, education, and work experience. the national economy, taking into Additionally, Id. at 954. account the If, at step claimant’s 26 27 28 Residual functional capacity is “what [one] can still do despite [his] limitations” and represents an “assessment based upon all of the relevant evidence.” 20 C.F.R. §§ 404.1545(a), 416.945(a). 3 4 1 Tackett, 180 F.3d at 1098, 1100; Reddick, 157 F.3d at 721; 20 2 C.F.R. §§ 404.1520(f)(1), 416.920(f)(1). 3 so by the testimony of a vocational expert or by reference to the 4 Medical-Vocational Guidelines appearing in 20 C.F.R. Part 404, 5 Subpart P, Appendix 2 (commonly known as “the Grids”). 6 v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001)(citing Tackett). 7 When 8 nonexertional limitations, the Grids are inapplicable and the ALJ 9 must take the testimony of a vocational expert. a claimant has both The Commissioner may do exertional Osenbrock (strength-related) and Moore v. Apfel, 10 216 F.3d 864, 869 (9th Cir. 2000)(citing Burkhart v. Bowen, 856 11 F.2d 1335, 1340 (9th Cir. 1988)). 12 13 V. 14 THE ALJ’S DECISION 15 16 The ALJ used the above five-step process and found Plaintiff 17 was not disabled. (AR 15-28). At step one, the ALJ found Plaintiff 18 had not engaged in substantial gainful activity from the alleged 19 disability onset date. 20 Plaintiff 21 disease 22 decompression; scoliosis; and obesity.” 23 the ALJ found Plaintiff’s impairments did not meet or medically 24 equal in whole or in part any of the specific impairments as 25 required under this step of the process. 26 determined Plaintiff’s residual functional capacity for use in 27 steps four and five. had of multiple the lumbar (AR 24). severe impairments: spine, (AR 20). At step two, the ALJ found status “degenerative post laminectomy (AR 24). (AR 26). disc and At step three, Next, the ALJ The ALJ found Plaintiff’s residual 28 5 1 functional capacity allows him to perform light work with certain 2 exceptions: 3 “[H]e requires a sit/stand option at will throughout an eight-hour workday. He can only frequently climb ramps and stairs, balance, kneel, crouch, and crawl. He can occasionally stoop and climb ladders, ropes and scaffolds. He must avoid concentrated exposure to extreme cold, vibration and hazards.” (AR 27). 4 5 6 7 8 9 10 11 12 13 14 15 16 17 In reaching this residual functional capacity, the ALJ gave no weight to the opinion of Plaintiff’s treating doctor, Dr. Mario Luna. (AR 31). Based on this residual functional capacity, at step four the ALJ found Plaintiff is unable to perform his past relevant work. (AR 31). Finally, at step five, the ALJ found there are other jobs in the national economy in significant numbers that Plaintiff can perform. (AR 32). Thus, the ALJ found Plaintiff was not disabled under the Social Security Act from the alleged onset date through the date of the decision. (AR 33). 18 VI. 19 STANDARD OF REVIEW 20 21 22 Under 42 U.S.C. § 405(g), a district court may review the 23 Commissioner’s decision to deny benefits. 24 the Commissioner’s decision when the ALJ’s findings are based on 25 26 27 28 The court may set aside legal error or are not supported by substantial evidence in the record as a whole. Garrison v. Colvin, 759 F.3d 995 (9th Cir. 2014)(citing Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 2006); Auckland v. Massanari, 257 F.3d 1033, 1035 (9th 6 1 Cir. 2001)(citing Tackett, 180 F.3d at 1097); Smolen v. Chater, 80 2 F.3d 1273, 1279 (9th Cir. 1996)(citing Fair v. Bowen, 885 F.2d 597, 3 601 (9th Cir. 1989)). 4 “Substantial evidence is more than a scintilla, but less than 5 6 a preponderance.” 7 Chater, 112 F.3d 1064, 1066 (9th Cir. 1997)). 8 evidence which a reasonable person might accept as adequate to 9 support a conclusion.” Reddick, 157 F.3d at 720 (citing Jamerson v. It is “relevant Id. (citing Jamerson, 112 F.3d at 1066; 10 Smolen, 11 evidence supports a finding, the court must “‘consider the record 12 as a whole, weighing both evidence that supports and evidence that 13 detracts from the [Commissioner’s] conclusion.’” Auckland, 257 F.3d 14 at 1035 (citing Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)). 15 If 16 reversing 17 judgment for that of the Commissioner. 18 21 (citing Flaten v. Sec’y, 44 F.3d 1453, 1457 (9th Cir. 1995)). the 80 F.3d at evidence that can 1279). To reasonably conclusion, the 19 20 21 22 23 24 25 26 27 28 7 determine support court may whether either not substantial affirming substitute or its Reddick, 157 F.3d at 720- 1 VII. 2 DISCUSSION 3 4 Plaintiff contends that the ALJ erred for two reasons. First, 5 Plaintiff argues the ALJ failed to properly weigh the opinion of 6 his treating physician, Dr. Mario Luna. 7 the ALJ did not properly assess Plaintiff’s credibility. 8 reasons discussed below, the Court finds that the ALJ’s decision 9 should 10 be REVERSED and this action Second, Plaintiff argues REMANDED for For the further proceedings. 11 12 13 A. The ALJ Failed To Provide Specific And Legitimate Reasons To Reject Plaintiff’s Treating Doctor’s Opinion 14 15 “The medical opinion of a claimant’s treating physician is 16 given “controlling weight” so long as it “is well-supported by 17 medically acceptable clinical and laboratory diagnostic techniques 18 and is not inconsistent with the other substantial evidence in [the 19 claimant’s] case record.” 20 (9th Cir. 2017) (citing 20 C.F.R. § 404.1527(c)(2)). 21 required to give weight to the treating physician’s subjective 22 judgments, 23 interpretation of test results.” 24 832-33 (9th Cir. 1995) (citing Embrey v. Bowen, 849 F.2d 418, 421 25 (9th Cir. 1988)). not just the Trevizo v. Berryhill, 871 F.3d 664, 675 physician’s 26 27 28 8 “clinical The ALJ is findings and Lester v. Chater, 81 F.3d 821, 1 If the treating doctor’s opinion is not contradicted, the ALJ 2 must give “clear and convincing” reasons supported by substantial 3 evidence in the record to reject it. Lester, 81 F.3d at 830 (citing 4 Baxter v. Sullivan, 923 F.2d 1391, 1396 (9th Cir. 1991)). 5 treating doctor’s opinion is contradicted by the opinion of another 6 doctor, the ALJ can only reject the treating doctor’s opinion by 7 providing “specific and legitimate reasons supported by substantial 8 evidence in the record for so doing.” If the Lester, 81 F.3d at 830. 9 10 “Where the opinion of the claimant’s treating physician is 11 contradicted, and the opinion of a nontreating source is based on 12 independent 13 treating physician, the opinion of the nontreating source may 14 itself be substantial evidence." 15 1041 (9th Cir. 1995). 16 opinions, the ALJ must decide how to resolve them based on how 17 credible they are. 18 (9th Cir. 2008)(citing Andrews, 53 F.3d at 1039-40); Batson v. 19 Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004) 20 (citing Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992)). 21 More weight is generally given “to the medical opinion of a 22 specialist about medical issues related to his or her area of 23 specialty than to the medical opinion of a source who is not a 24 specialist.” clinical findings that differ from those of the Andrews v. Shalala, 53 F.3d 1035, If there are conflicts between the medical Tommasetti v. Astrue, 533 F.3d 1035, 1041-42 20 C.F.R. § 404.1527(c)(5). 25 26 Here, the ALJ failed to give the proper weight to Dr. Mario 27 Luna’s opinions as Plaintiff’s treating physician. (AR 31). 28 ALJ mistakenly concluded that Dr. Luna examined Plaintiff only 9 The 1 once, when in fact Dr. Luna had examined Plaintiff many times and 2 performed Plaintiff’s 2013 back surgery. 3 asserted that Dr. Luna had not reviewed Plaintiff’s medical file 4 and 5 consistent with Plaintiff’s medical history. 6 reasons are undermined by the record. that his opinion regarding (AR 31). Plaintiff’s The ALJ also abilities was (AR 31). not These 7 8 9 The ALJ overlooked the evidence establishing that Dr. Luna was Plaintiff’s treating physician. It appears that Dr. Luna left 10 the practice he was in when he performed Plaintiff’s 2013 surgery 11 and started his own practice, which may have confused the ALJ in 12 her review of the record. 13 Plaintiff’s decompression surgery and treated Plaintiff before and 14 after the surgery. 15 reflects Dr. Luna treated Plaintiff from September 2012 through 16 November 2013 and from February 2015 through January 2016 (AR 746- 17 761). 18 from September 2012 through November 2013, but does not acknowledge 19 the subsequent treatment. 20 writing in the Spinal Impairment Questionnaire that February 24, 21 2015 was the “Date of first treatment”, but this statement was 22 obviously a mistaken entry, overlooking the prior treatment from 23 2012 to 2013. (See AR 424, 746). Dr. Luna performed Plaintiff’s medical record (AR 419-22). In her brief, Defendant concedes Dr. Luna treated Plaintiff Dr. Luna may have confused matters by (AR 721). 24 25 Defendant argues that Dr. Luna is still not a treating 26 physician because Plaintiff had not been treated by him in thirteen 27 months. 28 demonstrates that this argument lacks merit. A careful reading of 10 20 C.F.R. § 404.1527(a)(2) “Treating source 1 means your own acceptable medical source who provides you, or has 2 provided you, with medical treatment or evaluation and who has, or 3 has had, an ongoing treatment relationship with you.” 4 404.1527(a)(2). 5 treating 6 involvement in Plaintiff’s surgery, and the frequency of the visits 7 all support a finding that Dr. Luna was Plaintiff’s treating 8 physician. 20 C.F.R. § Under this definition, Dr. Luna is Plaintiff’s physician, as the length of the relationship, the See Travizo, supra. 9 10 The ALJ weighed other medical opinion evidence in Plaintiff’s 11 disability determination. 12 specialists. 13 orthopedic specialist, examined Plaintiff only once. (AR 732-37). 14 Prior to the examination, Dr. Bernabe reviewed three documents: an 15 operative note dated July 1, 2013, a medical progress note dated 16 September 26, 2014, and an X-ray report of the sacrum dated November 17 24, 2014. 18 Plaintiff’s back impairments appears to be in his lumbar spine, 19 not his sacrum. 20 Plaintiff. 21 comprehensive. 22 Bernabe’s opinion. Dr. Two of the doctors were also orthopedic Bernabe, (AR 732). the consultative examiner and an It is worth noting that the focus of Dr. Bernabe did not take any X-rays or MRIs of (AR 736). The His one-time examination is thus not very ALJ correctly gave little weight to Dr. (AR 31). 23 24 Dr. Schmitter, an orthopedic surgeon and the medical expert, 25 also offered an opinion for consideration. 26 before the ALJ, Dr. Schmitter testified he found Dr. Bernabe’s 27 conclusions regarding Plaintiff’s residual functional capacity to 28 be more credible than Dr. Luna’s. As the Court noted, Dr. Bernabe’s 11 During the hearing 1 opinions were problematic and therefore Dr. Schmitter’s reliance 2 on those opinions is similarly problematic. 3 addition, 4 correctly gave little weight to Dr. Schmitter’s opinion. Dr. Schmitter did not examine (AR 48, 57). Plaintiff. The In ALJ (AR 31). 5 6 The ALJ gave the most weight to the opinion of the State 7 agency doctor at the reconsideration level. 8 agency 9 Plaintiff’s limitations on October 24, 2013. doctor, Dr. Bitonte, provided an (AR 31). This State opinion regarding (AR 102-16). This 10 was three months after Plaintiff’s surgery, but failed to take into 11 account other records with greater detail about Plaintiff’s pain 12 levels. 13 reasons, and the reasons stated below, it was error for the ALJ to 14 give greater weight to the state agency’s opinion over Dr. Luna’s 15 opinion on this record. This doctor also never examined Plaintiff. For these 16 17 The ALJ found Dr. Luna’s medical opinion concerning 18 Plaintiff’s level of pain was inconsistent with the medical file. 19 (AR 31). 20 cited to isolated pages in the record to support this finding. 21 31). 22 a full picture of Plaintiff’s pain history. 23 cited list Plaintiff reporting on January 16, March 28 and April 24 29 of 2014 the pain being better managed with medication. 25 49, 52). 26 on May 23, 2014, Plaintiff also reported he had severe, burning 27 pain radiating down his right leg. 28 opinion appears to be consistent over both periods of time he This finding is not supported by the record. The ALJ (AR These page references appear to be very selective rather than Three of the pages (AR 641, However, a medical record omitted by the ALJ shows that 12 (AR 655). Dr. Luna’s medical 1 treated Plaintiff. 2 for this case, one in February of 2015 and one in January of 2016, 3 Dr. Luna provided two medical opinion forms and these opinions are consistent with Dr. Luna’s records. 4 721-26, 761). 5 reasons to reject the treating physician’s opinion. 6 (AR remand is required. The ALJ failed to provide specific and legitimate Accordingly, 7 8 B. The ALJ Failed To Provide Clear And Convincing Reasons To Reject Plaintiff’s Testimony As Not Credible 9 10 The ALJ follows a two-step process to determine Plaintiff’s 11 12 credibility regarding subjective pain. 13 F.3d 995, 1014 (9th Cir. 2014). 14 the Plaintiff provided objective medical evidence that could cause 15 the alleged pain. 16 testimony unless there are clear and convincing reasons to reject 17 it. 18 claimant’s 19 credibility evaluation, such as the claimant’s reputation for 20 lying, prior inconsistent statements concerning the symptoms, and 21 other testimony by the claimant that appears less than candid; (2) 22 unexplained or inadequately explained failure to seek treatment or 23 to follow a prescribed course of treatment; and (3) the claimant’s 24 daily activities. 25 Cir. 26 credibility if they are inconsistent with the alleged limitations, 27 but “disability claimants should not be penalized for attempting 28 to lead normal lives in the face of their limitations.” Id. 2008). Id. Garrison v. Colvin, 759 First, the ALJ must find whether Second, the ALJ must accept the Plaintiff’s “The ALJ may consider many factors in weighing a credibility, including (1) ordinary techniques of Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Activities are only 13 relevant to a finding of Reddick 1 v. Chater, 157 F. 3d 715, 722 (9th Cir. 1998). 2 “treatment 3 diagnostic record.” 4 Cir. 2014). records must be viewed in light Additionally, of the overall Ghanim v. Colvin, 763 F.3d 1154, 1164 (9th 5 6 Here, the ALJ found Plaintiff’s “allegations concerning the 7 intensity, persistence and limiting effects of his symptoms are 8 less than fully credible.” 9 pain improved with treatment. (AR 28). While this may be partially 10 true, as discussed earlier, this finding does not appear to take 11 the whole record into account, including Dr. Luna’s findings as 12 the treating physician. (AR 28). The ALJ found Plaintiff’s 13 14 The ALJ also found Plaintiff’s receipt of unemployment 15 benefits was inconsistent with his claim for disability. 16 While this evidence may weigh against Plaintiff’s credibility, it 17 is not dispositive on its own. 18 Memorandum from the Chief Administrative Law Judge Frank Cristaudo, 19 included 20 Cristaudo’s 21 unemployment 22 However, because of the lengthy disability determination process, 23 individuals 24 unemployment 25 application. 26 for and receipt of unemployment benefits may be helpful. 27 generally Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795 28 (1999)(finding legal claims under the Social Security Act and as an exhibit memorandum apply benefits Defendant fails to address the Plaintiff’s states compensation may to in for does (AR 28). ALJs their both. not must memorandum. consider credibility The defeat mere a Judge receipt of determination. application disability for benefits More information regarding Plaintiff’s application 14 See 1 Americans with Disabilities Act can coexist). 2 ALJ intends to rely on the unemployment benefits application to 3 reject Plaintiff’s credibility, the ALJ must fully develop the 4 record on this issue. Accordingly, if the 5 The 6 ALJ also found Plaintiff’s travel to 7 inconsistent with his alleged physical limitations. 8 travel 9 inconsistent with a claim of disability. to a foreign country, however, is Mexico was (AR 28). Mere not necessarily Plaintiff’s mode of 10 travel and activities while traveling (except that he apparently 11 closed escrow on property) are not contained in the record. 12 649). 13 travel to Mexico is not a clear and convincing reason to reject 14 Plaintiff’s subjective pain testimony. 15 782 F.2d 1484 (9th Cir. 1986)(showing Plaintiff travelled around 16 North America in a motor home but made frequent stops to do 17 exercises and was still found disabled), with Tommasetti v. Astrue, 18 533 19 Venezuela 20 inference that he was not as physically limited as he claimed). 21 Without more information regarding Plaintiff’s travel, it is not 22 clear how his credibility as to the limiting effects 23 impairments is affected. (AR Without knowing more details about this trip, Plaintiff’s F.3d 1035 to (9th care Cir. for an Compare Howard v. Heckler, 2008)(stating ailing 24 25 26 27 28 15 sister Plaintiff’s allowed a travel to reasonable of his 1 VIII. 2 CONCLUSION 3 4 Consistent with the foregoing, IT IS ORDERED that Judgment be 5 entered REVERSING the decision of the Commissioner and REMANDING 6 this matter for further proceedings consistent with this decision. 7 IT IS FURTHER ORDERED that the Clerk of the Court serve copies of 8 this Order and the Judgment on counsel for both parties. 9 10 DATED: November 22, 2017 11 /S/ 12 SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 13 14 15 THIS DECISION IS NOT INTENDED FOR PUBLICATION IN LEXIS/NEXIS, WESTLAW OR ANY OTHER LEGAL DATABASE. 16 17 18 19 20 21 22 23 24 25 26 27 28 16