Morrow v. Berryhill, No. 3:2018cv04641 - Document 15 (N.D. Cal. 2019)
Court Description: ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT'S CROSS-MOTION FOR SUMMARY JUDGMENT [re 13 MOTION for Summary Judgment filed by Nancy A. Berryhill, 10 MOTION for Summary Judgment filed by Matthew C. Morrow]. Signed by Judge William Alsup on 5/7/2019. (whasec, COURT STAFF) (Filed on 5/7/2019)
Download PDF
<![CDATA[
Morrow v. Berryhill Doc. 15 1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 For the Northern District of California United States District Court 9 10 MATTHEW CLAYTON MORROW, 11 Plaintiff, 12 13 14 No. C 18-04641 WHA v. ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S CROSS-MOTION FOR SUMMARY JUDGMENT NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant. 15 / 16 INTRODUCTION 17 18 In this social security appeal, plaintiff appeals the denial of disability benefits. For the 19 reasons stated below, plaintiff’s motion for summary judgment is DENIED, and defendant’s 20 cross-motion for summary judgment is GRANTED. STATEMENT 21 22 1. PROCEDURAL HISTORY. 23 In November 2011, plaintiff (and claimant) Matthew Clayton Morrow applied for 24 disability insurance benefits under Title II of the Social Security Act. The plaintiff alleged 25 disability from full time work beginning on March 7, 2011, when, as a deputy sheriff, he 26 suffered a head injury following an altercation with an inmate at Monterey County Jail. 27 The claim was initially denied in August 2012, then denied again after reconsideration in 28 August 2013 (AR 189–99, 300–01). Dockets.Justia.com For the Northern District of California United States District Court 1 The plaintiff then requested a hearing before an Administrative Law Judge (ALJ). 2 In June 2014, the plaintiff appeared without representation before ALJ Brenton Rogozen and 3 testified about his disability. In February 2015, the ALJ issued a partially favorable decision 4 finding that the plaintiff had a physical impairment that met the criteria for Listing 11.18 5 (traumatic brain injury) and was temporarily disabled from March 7, 2011 until December 1, 6 2012 (AR 38–86, 160–75). The plaintiff appealed the decision to the Appeals Council, and 7 in May 2016, the Appeals Council released an order that vacated the ALJ decision and 8 remanded the case to further evaluate the plaintiff’s impairment level, residual functional 9 capacity, and relevant vocational factors. The Appeals Council also questioned the “favorable” 10 parts of the hearing decision and whether the plaintiff “met or medically equaled Listing 11.18 11 during the period of disability” (AR 184–88, 257–59). 12 In November 2016, the plaintiff appeared with his attorney and testified again before the 13 ALJ. In April 2017, the ALJ issued his second decision in which the plaintiff was found not to 14 be disabled from the onset date, March 7, 2011, through the date last insured, December 31, 15 2012. The decision found that the severity of the plaintiff’s physical impairments did not meet 16 or medically equal Listing 11.18 and the plaintiff’s mental impairment did not meet or 17 medically equal the criteria of Listings 12.02 (neurocognitive disorders) or 12.04 (depressive, 18 bipolar, and related disorders). The decision concluded that the plaintiff had the residual 19 functional capacity to perform sedentary work, limited to simple, repetitive tasks with 20 occasional public contact, and was capable of making a successful adjustment to other work 21 that existed in significant numbers in the national economy (AR 11–37, 87–114). In May 2017, 22 the plaintiff appealed the ALJ’s decision again and the Appeals Council denied the request for 23 review, thus rendering the ALJ decision in April 2017 the Commissioner’s final decision 24 (AR 2–7, 298–99). The plaintiff then initiated this action seeking judicial review pursuant to 25 Section 405(g) of Title 42 of the United States Code. The parties now cross-move for summary 26 judgment. 27 28 2 For the Northern District of California United States District Court 1 2. PLAINTIFF TESTIMONY. 2 The plaintiff testified in both hearings before the ALJ, submitted multiple disability 3 and function reports, and met with many medical examiners. The plaintiff’s written 4 submissions and subjective testimonial complaints both alleged that his head injury made him 5 incapable of working. The plaintiff alleged that due to his head injury, he suffered from 6 headaches, nerve damage, dizziness, nausea, vomiting, blurred vision, sensitivity to noise and 7 motion, memory loss, vertigo, fatigue, anxiety, impulsive behavior, and depression. He also 8 claimed to have difficulty remembering things, like when he last showered or took medication, 9 when bills were due, and to finish chores. He testified that he had become less social and had 10 difficulty communicating with his wife and children, often becoming irritable and easily 11 frustrated. Furthermore, the plaintiff claimed to have difficulty completing complex tasks, 12 becoming overwhelmed when faced with multiple tasks, finding it hard to concentrate around 13 distractions, and becoming easily fatigued (AR 38–114, 344–55, 376–83, 402–15, 418–26, 14 473–80, 542–43). The plaintiff’s spouse, Brandy Morrow, offered similar testimony in support 15 (AR 67–68, 107–13, 356–63, 427–35, 545–46). 16 3. MEDICAL EVIDENCE. 17 The ALJ summarized and weighed all the medical evidence he considered in his 18 decision. This order will briefly summarize some of the relevant medical evidence from the 19 expansive record. 20 The plaintiff underwent a large number of clinical and laboratory diagnostic tests, most 21 of which returned unremarkable results. The plaintiff had computerized tomography (CT) and 22 magnetic resonance imaging (MRI) scans taken of his head in 2011, but the results showed no 23 abnormalities (AR 739–53). The results of an electroencephalography (EEG) in 2011 were also 24 unremarkable (AR 720–21). Neurological and physical examinations also turned out normal, 25 and ophthalmological examinations revealed “[n]o obvious ocular component” that could be 26 causing the alleged blurred vision (AR 659). Audiology exams showed “hearing within normal 27 limits bilaterally” and no indication of hyperacusis (AR 735). Videonystagmography, however, 28 3 1 revealed evidence of significant peripheral and central vestibular dysfunction and balance 2 rehabilitation was recommended (AR 723–24). For the Northern District of California United States District Court 3 The administrative record also contains opinions from several different medical 4 examiners that the plaintiff visited. A set of medical opinions were from sources linked to a 5 workers’ compensation action and found the plaintiff to be temporarily totally disabled or 100% 6 permanently disabled (AR 667–75, 783–806, 820–72, 1250–60). One of those examiners was 7 treating physician Maureen Miner, M.D., who first examined the plaintiff in September 1, 2011 8 and continued to treat him until at least August 1, 2016 (AR 689–743, 1272–79). Dr. Miner’s 9 residual functional capacity questionnaire concluded that the plaintiff had “permanent 10 disability,” needed unscheduled breaks “multiple times” a day for “minutes to hours,” 11 and would be unable to work or complete a day of work more than four days per month 12 (AR 1272–75). 13 The record also contains the medical opinions of several other treating physicians. 14 Carlo Bernardino, M.D., the plaintiff’s treating ophthalmologist, indicated that the plaintiff 15 could return to full duty in July 2011 with no restrictions or limitations (AR 653–66). 16 Ronald Diebel, M.D., a treating psychiatrist, and David O. Torrez, Ph.D., MFT, a treating 17 therapist, both indicated that the plaintiff exhibited “three or more episodes of decompensation 18 within 12 months, each at least two weeks along” and that they expected the plaintiff to be 19 absent or unable to complete a work day more than four days a month (AR 1238–49). 20 Both, however, began treating the plaintiff after the date last insured. 21 The opinions of consultative examiners and impartial medical experts were also 22 considered. Jeanne Card, Psy.D., a consultative psychological examiner, saw the plaintiff in 23 May 2013 and opined that he “appeared cognitively intact” and was “able to perform simple 24 and repetitive tasks” with “no significant maladaptive behaviors” (AR 1043–48). 25 Kim Goldman, Psy.D., another consultative psychological examiner, saw the plaintiff in July 26 2012 and opined that he had moderate difficulties in maintaining social function; moderate to 27 marked difficulties with concentration, persistence, and pace; and an ability to carry out and 28 remember simple instructions (AR 815–19). Claude Munday, Ph.D., a neurophysical examiner, 4 1 saw the plaintiff in November 2012 and opined that it was “a very interesting case,” as the 2 plaintiff described “major functional limitations” yet was “remarkably adept when it [came] 3 to the actual testing” and only showed “very mild” residual cognitive deficits (AR 867). 4 Manuel Hernandez, M.D., an internal medicine consultative examiner, saw the plaintiff in 2016 5 and opined that he was capable of work at the light exertional level (AR 1261–71). 6 James Haynes, M.D., the impartial medical expert at the plaintiff’s first ALJ hearing, stated that 7 the plaintiff had no exertional or postural limitations (AR 54). Ashok Khushalani, M.D., 8 another impartial medical expert at the first hearing, found that the plaintiff was limited to 9 simple, repetitive tasks with occasional public contact (AR 65–67). ANALYSIS A decision denying disability benefits must be upheld if it is supported by substantial 11 For the Northern District of California United States District Court 10 12 evidence and free of legal error. See Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1052 13 (9th Cir. 2006). “Substantial evidence means more than a scintilla, but less than a 14 preponderance; it is such relevant evidence as a reasonable person might accept as adequate 15 to support a conclusion.” Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). Federal 16 courts must “consider the entire record as a whole, weighing both the evidence that supports 17 and the evidence that detracts from the Commissioner’s conclusion, and may not affirm simply 18 by isolating a specific quantum of supporting evidence.” Ibid. “The ALJ is responsible for 19 determining credibility, resolving conflicts in medical testimony, and for resolving 20 ambiguities,” so when “the evidence can reasonably support either affirming or reversing a 21 decision, [a court] may not substitute [its] judgment for that of the [ALJ].” Garrison v. Colvin, 22 759 F.3d 995, 1010 (9th Cir. 2014) (citing Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 23 1995)). 24 There is a five-step evaluation for determining disability. 20 C.F.R. § 404.1520. 25 First, the ALJ determines whether a claimant is currently engaged in substantial gainful 26 activity. Second, the ALJ evaluates whether the claimant has a medically severe impairment or 27 combination of impairments. Third, the ALJ considers whether the impairment or combination 28 of impairments meets or equals any listed impairment in the regulations. Fourth, the ALJ 5 1 assesses whether the claimant is capable of performing his past relevant work based on his 2 residual functional capacity. Fifth, the ALJ examines whether the claimant can perform any 3 other jobs in the national economy. “The burden of proof is on the claimant at steps one 4 through four, but shifts to the Commissioner at step five.” Colvin, 759 F.3d at 1011. For the Northern District of California United States District Court 5 Here, the ALJ determined that the plaintiff did not engage in substantial gainful activity 6 during the period from his alleged onset date, March 7, 2011, through his date last insured, 7 December 31, 2012. He then determined that the plaintiff had post traumatic brain injury, 8 depression, and vertigo through the date last insured. At step three, the ALJ found that the 9 impairment or combination of impairments did not meet or equal any listed impairment in the 10 regulations. The ALJ then determined that the plaintiff had the residual functional capacity 11 to perform sedentary work that was limited to simple, repetitive tasks with occasional public 12 contact, but that plaintiff was unable to perform any past relevant work. Finally, the ALJ 13 concluded that plaintiff was not disabled because there were jobs that existed in significant 14 numbers in the national economy that the plaintiff could have performed (AR 17–28). 15 Plaintiff attacks the ALJ’s decision in five ways. First, plaintiff asserts that ALJ 16 Rogozen was not properly appointed, so his decision should be vacated and a new hearing 17 commenced under a properly appointed ALJ. Second, plaintiff argues that the ALJ erred in 18 discounting his testimony. Third, plaintiff asserts that the testimony of his treating physicians, 19 Dr. Miner and Dr. Diebel, should have been given more weight. Fourth, plaintiff asserts 20 that the ALJ’s decision at step three of the five-step evaluation process was not supported by 21 substantial evidence. Fifth, plaintiff attacks the partial weight and little weight assigned to the 22 opinions of two consultative psychologists, Dr. Goldman and Dr. Card. This order will address 23 each argument in turn. 24 1. IMPROPER APPOINTMENT. 25 As a threshold matter, plaintiff asserts that ALJ Rogozen was not properly appointed 26 under the Appointments Clause in Article II of the Constitution. This argument is premised 27 on a recent decision by the Supreme Court, Lucia v. Securities and Exchange Commission, 28 585 U.S. –––, 138 S. Ct. 2044, 2053–2055 (2018), which found that ALJs of the SEC are 6 For the Northern District of California United States District Court 1 “Officers of the United States” that can only be appointed by the President, “Courts of Law,” or 2 “Heads of Departments.” Lucia found that ALJs of the SEC were “Officers” because they hold 3 “continuing” positions where they exercised “significant authority pursuant to the laws of the 4 United States.” Id. at 2051. Lucia also held that the appropriate remedy to a timely challenge 5 “before the Commission” was a new hearing before a different ALJ that was properly 6 appointed. Id. at 2055. 7 Plaintiff, however, has failed to make a timely challenge or factually establish that ALJ 8 Rogozen was improperly appointed. Lucia only found that ALJs of the SEC were “Officers of 9 the United States” and were improperly appointed by SEC staff members. While it is possible 10 that ALJs of the Social Security Administration are similarly in continuing positions that 11 “exercise significant authority pursuant to the laws of the United States,” plaintiff has failed to 12 support the argument besides legal conclusions. Furthermore, plaintiff has failed to provide 13 any factual evidence supporting the theory that ALJ Rogozen specifically was improperly 14 appointed. Indeed, it is plausible that ALJ Rogozen was properly appointed by an appropriate 15 Head of Department. 16 Lucia also only provides a remedy for timely challenges that were made during the 17 administrative process. Plaintiff does not dispute that he failed to preserve his objection in front 18 of ALJ Rogozen or the Appeals Council. While our court of appeals has not directly spoken on 19 the issue of preserving challenges under Lucia in the social security context, it has recently 20 confirmed the general proposition that a social security claimant must exhaust issues before 21 the ALJ to preserve judicial review. Shaibi v. Berryhill, 883 F.3d 1102, 1109 (9th Cir. 2017). 22 In addition, nearly all district courts that have faced this issue have declined to remand when 23 the Appointments Clause challenge was not exhausted during the administrative process. 24 See Sprouse v. Berryhill, 363 F. Supp. 3d 543, 548–49 (D.N.J. 2019) (collecting cases). 25 Thus, plaintiff’s Appointments Clause challenge falls short. 26 2. 27 Plaintiff asserts that the ALJ improperly discounted his testimony about the severity 28 PLAINTIFF TESTIMONY. of his symptoms. There is a two-step analysis to determine whether a plaintiff’s testimony 7 1 regarding subjective pain or symptoms is credible: “First, the ALJ must determine whether the 2 [plaintiff] has presented objective medical evidence of an underlying impairment ‘which could 3 reasonably be expected to produce the pain or other symptoms alleged.’” Lingenfelter, 504 F.3d 4 at 1036 (9th Cir. 2007). “Second, if the [plaintiff] meets this first test, and there is no evidence 5 of malingering, the ALJ can reject the [plaintiff’s] testimony about the severity of her symptoms 6 only by offering specific, clear and convincing reasons for doing so.” Ibid. For the Northern District of California United States District Court 7 The ALJ properly rejected parts of the plaintiff’s testimony when it was inconsistent 8 with the overall medical evidence. At step one, the ALJ determined that the plaintiff suffered 9 a mild traumatic brain injury that could reasonably be expected to cause the alleged symptoms. 10 At step two, the ALJ gave specific, clear and convincing reasons when discounting the 11 plaintiff’s statements about the intensity, persistence, and limiting effects of the symptoms. 12 The ALJ discounted the allegation of nerve damage because it was “inconsistent with the 13 numerous normal physical and neurological findings.” The ALJ discounted the allegation of 14 blurred vision because “ophthalmological tests were normal.” The allegation of sensitivity 15 to noise were discounted because audiology tests “showed no evidence of hyperacusis.” 16 In contrast, the allegation of vertigo was accepted because it was supported by 17 videonystagmography (AR 21–22). The ALJ also stated that he “generously” considered the 18 plaintiff’s allegations of fatigue with mental and physical tasks because of the “subjective 19 nature” of many of the symptoms like headaches, dizziness, nausea, and light sensitivity 20 (AR 22). 21 The plaintiff also alleged a host of mental impairments that were functionally limiting. 22 The plaintiff alleged he had difficulty remembering things, such as when he last showered, 23 when to pay bills, and to finish chores. The severity of this allegation was discounted based 24 on psychological consultive examinations where the “plaintiff demonstrated memory in the 25 average range” and was able to recall personal data and complete multiple questionnaires 26 independently and appropriately. The ALJ also noted that the plaintiff was able to follow 27 instructions without the need for clarification or repetition. The plaintiff also alleged that he 28 had difficulty communicating with his wife and children, easily losing patience with them. 8 1 The ALJ discounted the severity of this allegation based on doctors’ observations that the 2 plaintiff was pleasant, cooperative, and displayed no maladaptive behaviors (AR 18). For the Northern District of California United States District Court 3 The plaintiff alleged difficulty multitasking and concentrating for over ten minutes in 4 the face of distractions. The ALJ discounted the severity of this allegation based on the fact 5 that plaintiff was capable of completing a twelve-page questionnaire and a history form 6 independently and appropriately. The ALJ further noted that in psychological consultative 7 evaluations, the plaintiff “demonstrated fair attention to instructions, fair task persistence, 8 ability to perform math calculations, and ability to perform a three-step command.” The ALJ 9 also added that the plaintiff’s alleged disabling functional limitations were inconsistent with the 10 plaintiff’s reported activities, such as preparing simple meals, washing dishes, doing laundry, 11 driving his children to activities, mowing the lawn, going to church, taking care of pets, and 12 going shopping in stores (AR 18–22). In sum, the ALJ properly provided a specific, clear and 13 convincing reason each time he discounted the severity of plaintiff’s testimony. 14 3. TREATING PHYSICIANS. 15 Plaintiff asserts that the ALJ gave inadequate weight to two of plaintiff’s treating 16 physicians: Dr. Miner and Dr. Diebel. Our court of appeals has distinguished between three 17 types of physicians: treating, examining, and nonexamining. Lester v. Chater, 81 F.3d 821, 830 18 (9th Cir. 1995). Ordinarily, the “opinions of treating doctors should be given more weight than 19 the opinion of doctors who do not treat the [plaintiff].” When a treating doctor’s opinion is 20 contradicted by another doctor, the ALJ may reject the opinion but must provide “specific and 21 legitimate reasons” for doing so “supported by substantial evidence in the record.” Reddick v. 22 Chater, 157 F.3d 715, 725 (9th Cir. 1998). “The opinion of a nonexamining physician cannot 23 by itself constitute substantial evidence that justifies the rejection of the opinion of a treating 24 physician.” Lester, 81 F.3d at 831. 25 Here, plaintiff asserts that the ALJ improperly gave Dr. Miner’s opinion little weight. 26 Dr. Miner concluded that the plaintiff was permanently disabled and would need unscheduled 27 work breaks, lasting possibly hours, multiple times a day and would be unable to complete 28 a workday more than four times a month (AR 1274–75). The ALJ gave little weight to 9 1 Dr. Miner’s opinion because “it [was] conclusory and inadequately supported by the objective 2 medical evidence.” For the Northern District of California United States District Court 3 This order finds that the ALJ’s decision to give Dr. Miner’s opinion little weight is 4 supported by substantial evidence. While Dr. Miner treated the plaintiff extensively during the 5 relevant period, and for several years after, it was unclear from her reports how she ultimately 6 arrived at her conclusions (AR 710–17, 1272–79). The progress reports showed Dr. Miner 7 ordering multiple tests, like CT scans, EEGs, audiograms, and videonystagmography, while 8 reporting plaintiff’s testimony of ongoing headaches and nausea (AR 713–16). The record, 9 however, indicated that the objective tests returned relatively unremarkable results. It is then 10 unclear how Dr. Miner reached her conclusion that the plaintiff would needs hours of 11 unscheduled breaks a day and that he would unable to finish the workday more than four days a 12 month. Furthermore, Dr. Miner’s conclusion of permanent disability was in the context of a 13 workers’ compensation claim, which applies a different standard for a finding of “disability” 14 than in the social security context. See 42 U.S.C. § 423(d). 15 Plaintiff also asserts that the ALJ improperly assigned little weight to the opinion of 16 treating psychiatrist Dr. Diebel. The ALJ asserted that Dr. Diebel “did not examine the 17 [plaintiff] until several months after the relevant period,” so his “opinions are not an accurate 18 reflection of the severity of [plaintiff’s] mental impairment during the relevant period” (AR 25). 19 Dr. Diebel provided his medical opinion on June 20, 2016, stating that he first began treating 20 the plaintiff on April 29, 2013 (AR 1238–1243). Since the plaintiff’s relevant period ended on 21 December 31, 2012, Dr. Diebel first saw the plaintiff nearly half a year after the end of the 22 relevant period and provided his opinion nearly three years after. It is also unclear how 23 Dr. Diebel’s opinion applies retroactively because when asked to “indicate the earliest date 24 when the signs, symptoms, and limitations . . . first applied to this case,” Dr. Diebel, in an 25 apparent mistake, answered with a date in the future: June, 30, 2019. Dr. Diebel’s prognosis 26 was simply “fair,” yet he opined that the patient suffers from “three or more episodes of 27 decompensation within 12 months, each at least two weeks long” and that the plaintiff would be 28 absent from work or unable to complete a work day more than four days a month (AR 1238, 10 For the Northern District of California United States District Court 1 1243). As this conclusory opinion contradicts the battery of normal test results and given the 2 delayed time of examination, this order finds that the ALJ was supported by substantial 3 evidence in assigning little weight to Dr. Diebel’s opinion. 4 4. STEP THREE FINDINGS. 5 Plaintiff asserts that the ALJ made an error when completing step three of the five-step 6 evaluation for disability. Plaintiff attacks the determination that he did not meet the 7 requirements for Listing 11.18 by arguing that the ALJ should have relied on the testimony of 8 Dr. Haynes, the impartial medical expert from the first hearing. This is an odd line of argument 9 as the Appeals Council vacated the initial ALJ decision for mistakenly relying on Dr. Haynes’ 10 testimony (AR 185–86). And indeed, Dr. Haynes’ testimony stated that the plaintiff’s head 11 injury was “not all that severe” and that he thought the plaintiff did not meet the 11.18 Listing 12 for traumatic brain injury (AR 52). Reliance on Dr. Haynes’ testimony would only further 13 support the ALJ’s determination. Nonetheless, the ALJ did not rely on Dr. Haynes’ testimony 14 for the Listing 11.18 determination, instead stating that “no treating or examining physician 15 has recorded findings equivalent in severity to the criteria of any listed impairment” (AR 17). 16 Thus, the finding that plaintiff did not meet the requirements for Listing 11.18 is supported by 17 substantial evidence. 18 Plaintiff also attacks the finding that he did not meet the requirements for Listing 12.02 19 or 12.04 during the relevant period. Again, plaintiff launches an odd attack on the testimony of 20 Dr. Khushalani, claiming that her opinions are invalid in light of new Listings criteria that took 21 effect in 2017. Plaintiff, however, fails to provide any support for the proposition that modified 22 Listings criteria should be retroactively applied to already completed determinations. 23 Furthermore, plaintiff misreads the ALJ’s opinion. The ALJ did not rely on Dr. Khushalani’s 24 testimony from the first ALJ hearing in making a determination at step three. Instead, the ALJ 25 relied on the plaintiff’s testimony and examination findings in concluding that plaintiff did not 26 meet the “paragraph B” or “paragraph C” criteria. As each “paragraph B” and “paragraph C” 27 determination was supported by extensive evidence in the record, the finding that plaintiff did 28 11 1 not meet the requirements for Listing 12.02 or 12.04 was also supported by substantial 2 evidence. For the Northern District of California United States District Court 3 4 5. CONSULTATIVE PSYCHOLOGISTS. 5 Plaintiff asserts that the ALJ’s decision gave inadequate weight to the assessments 6 of consultative psychologists Dr. Goldman and Dr. Card. Plaintiff asserts that the ALJ was 7 required to give clear and convincing reasons for disregarding aspects of a consultative medical 8 examiner’s opinion. Our court of appeals, however, stated that it employs a clear and 9 convincing standard when an ALJ rejects the uncontradicted opinion of a medical source. 10 Popa v. Berryhill, 872 F.3d 901, 906 (9th Cir. 2017). In this instance, however, both 11 consultative psychologist opinions were contradicted by the opinions of Dr. Khushalani 12 and state agency medical consultants (AR 65–67, 128–30, 153–58). 13 The decision to give the opinion of Dr. Card little weight is supported by substantial 14 evidence. The ALJ consistently gave little weight to all medical examiners who did not first 15 examine the plaintiff until after the date last insured. Dr. Card did not first examine the plaintiff 16 until May 18, 2013, five months after his date last insured, so her testimony was less applicable. 17 Furthermore, Dr. Card opined that the plaintiff was “able to perform simple and repetitive 18 tasks” and that “[plaintiff] should be able to work with coworkers” (AR 1047). Thus, giving 19 Dr. Card’s testimony increased weight would only support the determined residual functional 20 capacity. 21 As for Dr. Goldman, the ALJ appropriately only gave partial weight to Dr. Goldman’s 22 opinions. The ALJ adopted Dr. Goldman’s opinion on social limitations and limitation to 23 simple instructions, but declined to adopt Dr. Goldman’s opinion of marked limitation in 24 concentrating, persisting, and pace. The ALJ instead chose to rely on a contradictory 25 neuropsychological examination by Dr. Munday. Dr. Munday found “very subtle and 26 circumscribed deficits” and stated that he saw “a very clean picture of someone with some 27 very mild residuals secondary to a mild traumatic brain injury or concussion” (AR 867). 28 Dr. Munday then narrowed in on a central issue in this appeal: “While [the plaintiff] describes 12 1 major functional limitations, he is remarkably adept when it comes to the actual testing” 2 (AR 867). The ALJ’s assignment of partial weight to Dr. Goldman’s opinion was supported by 3 substantial evidence as there was contradictory, convincing medical evidence that was more 4 harmonious with the overall record. 5 6 7 CONCLUSION For the foregoing reasons, plaintiff’s motion for summary judgment is DENIED, and defendant’s motion for summary judgment is GRANTED. Judgment will be entered accordingly. 8 9 IT IS SO ORDERED. 11 For the Northern District of California United States District Court 10 Dated: May 7, 2019. WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
