# Catherine Leigh Ertel v. Nancy A. Berryhill

> District Court, C.D. California · August 21, 2019

URL: https://www.frixlaw.com/law-library/cases/9978631

## Case

- **Court:** District Court, C.D. California
- **Decided:** August 21, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9978631

## How later opinions describe it (automated extraction)

- finding that “mild” mental retardation 6 meets Listing 12.05

## Opinion text

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8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA
10
11 CATHERINE LEIGH ERTEL, CASE NO. CV 18-9603 SS

12 Plaintiff,

13 v. MEMORANDUM DECISION AND ORDER

14 ANDREW M. SAUL, Commissioner
of Social Security,1
15
Defendant.
16

17
18 I.
19 INTRODUCTION
20
21 Catherine Leigh Ertel (“Plaintiff”) brings this action seeking
22 to overturn the decision of the Commissioner of Social Security
23 (the “Commissioner” or “Agency”) denying her application for
24 Disability Insurance Benefits (“DIB”). The parties consented
25

26 1 Andrew M. Saul, Commissioner of Social Security, is
substituted for his predecessor Nancy A. Berryhill, whom Plaintiff
27 named in the Complaint. See 42 U.S.C. § 405(g); Fed. R. Civ. P.
25(d).
28
1 pursuant to 28 U.S.C. § 636(c) to the jurisdiction of the
2 undersigned United States Magistrate Judge. (Dkt. Nos. 11, 17-
3 18). For the reasons stated below, the decision of the Commissioner
4 is REVERSED, and this case is REMANDED for further administrative
5 proceedings consistent with this decision.
6
7 II.
8 THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS
9
10 To qualify for disability benefits, a claimant must
11 demonstrate a medically determinable physical or mental impairment
12 that prevents the claimant from engaging in substantial gainful
13 activity and that is expected to result in death or to last for a
14 continuous period of at least twelve months. Reddick v. Chater,
15 157 F.3d 715, 721 (9th Cir. 1998) (citing 42 U.S.C. § 423(d)(1)(A)).
16 The impairment must render the claimant incapable of performing
17 work previously performed or any other substantial gainful
18 employment that exists in the national economy. Tackett v. Apfel,
19 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C.
20 § 423(d)(2)(A)).
21
22 To decide if a claimant is entitled to benefits, an
23 Administrative Law Judge (“ALJ”) conducts a five-step inquiry. 20
24 C.F.R. §§ 404.1520, 416.920. The steps are:
25
26 (1) Is the claimant presently engaged in substantial gainful
27 activity? If so, the claimant is found not disabled. If
28 not, proceed to step two.
1 (2) Is the claimant’s impairment severe? If not, the
2 claimant is found not disabled. If so, proceed to step
3 three.
4 (3) Does the claimant’s impairment meet or equal one of the
5 specific impairments described in 20 C.F.R. Part 404,
6 Subpart P, Appendix 1? If so, the claimant is found
7 disabled. If not, proceed to step four.
8 (4) Is the claimant capable of performing his past work? If
9 so, the claimant is found not disabled. If not, proceed
10 to step five.
11 (5) Is the claimant able to do any other work? If not, the
12 claimant is found disabled. If so, the claimant is found
13 not disabled.
14
15 Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari,
16 262 F.3d 949, 953-54 (9th Cir. 2001); 20 C.F.R. §§ 404.1520(b)-
17 (g)(1), 416.920(b)-(g)(1).
18
19 The claimant has the burden of proof at steps one through four
20 and the Commissioner has the burden of proof at step five.
21 Bustamante, 262 F.3d at 953-54. Additionally, the ALJ has an
22 affirmative duty to assist the claimant in developing the record
23 at every step of the inquiry. Id. at 954. If, at step four, the
24 claimant meets his or her burden of establishing an inability to
25 perform past work, the Commissioner must show that the claimant
26 can perform some other work that exists in “significant numbers”
27 in the national economy, taking into account the claimant’s
28 residual functional capacity (“RFC”), age, education, and work
1 experience. Tackett, 180 F.3d at 1098, 1100; Reddick, 157 F.3d at
2 721; 20 C.F.R. §§ 404.1520(g)(1), 416.920(g)(1). The Commissioner
3 may do so by the testimony of a vocational expert (“VE”) or by
4 reference to the Medical-Vocational Guidelines appearing in 20
5 C.F.R. Part 404, Subpart P, Appendix 2 (commonly known as “the
6 grids”). Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001).
7 When a claimant has both exertional (strength-related) and non-
8 exertional limitations, the grids are inapplicable and the ALJ must
9 take the testimony of a VE. Moore v. Apfel, 216 F.3d 864, 869 (9th
10 Cir. 2000) (citing Burkhart v. Bowen, 856 F.2d 1335, 1340 (9th Cir.
11 1988)).
12
13 III.
14 THE ALJ’S DECISION
15
16 The ALJ employed the five-step sequential evaluation process
17 and concluded that Plaintiff was not disabled within the meaning
18 of the Social Security Act (the “Act”). (AR 28-37). At step one,
19 the ALJ found that Plaintiff has not engaged in substantial gainful
20 activity since May 1, 2013, the amended alleged onset date.2 (AR
21 30). At step two, the ALJ found that Plaintiff’s status post brain
22 cancer with craniotomy, partial colectomy, thoracotomy, and
23 lobectomy are severe impairments.3 (AR 30). At step three, the
24
2 At her administrative hearing, Plaintiff amended her alleged
25 onset date from September 30, 2010, to May 1, 2013. (AR 46).
26 3 The ALJ also found that Plaintiff’s medically determinable
impairments of depression and anxiety do not cause more than
27 minimal limitation in Plaintiff’s ability to perform basic mental
work limit and are therefore nonsevere. (AR 30-31).
28
1 ALJ determined that Plaintiff does not have an impairment or
2 combination of impairments that meet or medically equal the
3 severity of any of the listings enumerated in the regulations.4
4 (AR 30).
5
6 The ALJ then assessed Plaintiff’s RFC and concluded that she
7 can perform the full range of medium work as defined in 20 C.F.R.
8 § 404.1567(c).5 (AR 25). At step four, the ALJ found that
9 Plaintiff is capable of performing past relevant work as an office
10 manager and as a bookkeeper, as actually and generally performed.
11 (AR 36). Accordingly, the ALJ found that Plaintiff was not under
12 a disability as defined in the Act from May 1, 2013, through the
13 date of the decision. (AR 36-37).
14
15 IV.
16 STANDARD OF REVIEW
17
18 Under 42 U.S.C. § 405(g), a district court may review the
19 Commissioner’s decision to deny benefits. “[The] court may set
20 aside the Commissioner’s denial of benefits when the ALJ’s findings
21 are based on legal error or are not supported by substantial
22 evidence in the record as a whole.” Aukland v. Massanari, 257 F.3d
23

4 Specifically, the ALJ considered whether Plaintiff met the
24
criteria for Listing 12.02 (neurocognitive disorders) and concluded
25 that she did not. (AR 31-32).
26 5 “Medium work involves lifting no more than 50 pounds at a time
with frequent lifting or carrying of objects weighing up to 25
27 pounds. If someone can do medium work, we determine that he or
she can also do sedentary and light work.” 20 C.F.R. § 404.1567(c).
28
1 1033, 1035 (9th Cir. 2001) (citing Tackett, 180 F.3d at 1097); see
2 also Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996) (citing
3 Fair v. Bowen, 885 F.2d 597, 601 (9th Cir. 1989)).
4
5 “Substantial evidence is more than a scintilla, but less than
6 a preponderance.” Reddick, 157 F.3d at 720 (citing Jamerson v.
7 Chater, 112 F.3d 1064, 1066 (9th Cir. 1997)). It is “relevant
8 evidence which a reasonable person might accept as adequate to
9 support a conclusion.” (Id.). To determine whether substantial
10 evidence supports a finding, the court must “‘consider the record
11 as a whole, weighing both evidence that supports and evidence that
12 detracts from the [Commissioner’s] conclusion.’” Aukland, 257 F.3d
13 at 1035 (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir.
14 1993)). If the evidence can reasonably support either affirming
15 or reversing that conclusion, the court may not substitute its
16 judgment for that of the Commissioner. Reddick, 157 F.3d at 720-
17 21 (citing Flaten v. Sec’y of Health & Human Servs., 44 F.3d 1453,
18 1457 (9th Cir. 1995)).
19
20 V.
21 DISCUSSION
22
23 Plaintiff raises four claims for relief. She contends that
24 the ALJ erred in (1) evaluating Plaintiff’s cognitive disorder at
25 step two; (2) evaluating Plaintiff’s cognitive disorder at step
26 three; (3) evaluating Plaintiff’s subjective impairments and
27 complaints; and (4) determining Plaintiff’s RFC and finding she
28 can return to her past work at step four. (Dkt. No. 23 at 4-16).
1 A. The ALJ’s Reasons For Rejecting Multiple Medical Opinions Are
2 Not Supported By Substantial Evidence
3
4 An ALJ must take into account all medical opinions of record.
5 20 C.F.R. §§ 404.1527(b), 416.927(b). The regulations “distinguish
6 among the opinions of three types of physicians: (1) those who
7 treat the claimant (treating physicians); (2) those who examine
8 but do not treat the claimant (examining physicians); and (3) those
9 who neither examine nor treat the claimant (nonexamining
10 physicians).” Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995),
11 as amended (Apr. 9, 1996). “Generally, a treating physician’s
12 opinion carries more weight than an examining physician’s, and an
13 examining physician’s opinion carries more weight than a reviewing
14 [(nonexamining)] physician’s.” Holohan v. Massanari, 246 F.3d
15 1195, 1202 (9th Cir. 2001); accord Garrison v. Colvin, 759 F.3d
16 995, 1012 (9th Cir. 2014). “The weight afforded a non-examining
17 physician’s testimony depends ‘on the degree to which they provide
18 supporting explanations for their opinions.’” Ryan v. Comm’r of
19 Soc. Sec., 528 F.3d 1194, 1201 (9th Cir. 2008) (quoting 20 C.F.R.
20 § 404.1527(d)(3)).
21
22 The medical opinion of a claimant’s treating physician is
23 given “controlling weight” so long as it “is well-supported by
24 medically acceptable clinical and laboratory diagnostic techniques
25 and is not inconsistent with the other substantial evidence in [the
26 claimant’s] case record.” 20 C.F.R. §§ 404.1527(c)(2),
27 416.927(c)(2). “When a treating doctor’s opinion is not
28 controlling, it is weighted according to factors such as the length
1 of the treatment relationship and the frequency of examination,
2 the nature and extent of the treatment relationship,
3 supportability, and consistency with the record.” Revels v.
4 Berryhill, 874 F.3d 648, 654 (9th Cir. 2017); see also 20 C.F.R.
5 §§ 404.1527(c)(2)–(6), 416.927(c)(2)-(6). Greater weight is also
6 given to the “opinion of a specialist about medical issues related
7 to his or her area of specialty.” 20 C.F.R. §§ 404.1527(c)(5),
8 416.927(c)(5).
9
10 “To reject an uncontradicted opinion of a treating or
11 examining doctor, an ALJ must state clear and convincing reasons
12 that are supported by substantial evidence.” Bayliss v. Barnhart,
13 427 F.3d 1211, 1216 (9th Cir. 2005). “If a treating or examining
14 doctor’s opinion is contradicted by another doctor’s opinion, an
15 ALJ may only reject it by providing specific and legitimate reasons
16 that are supported by substantial evidence.” Id.; see also
17 Reddick, 157 F.3d at 725 (the “reasons for rejecting a treating
18 doctor’s credible opinion on disability are comparable to those
19 required for rejecting a treating doctor’s medical opinion.”).
20 “The ALJ can meet this burden by setting out a detailed and thorough
21 summary of the facts and conflicting clinical evidence, stating
22 his interpretation thereof, and making findings.” Trevizo v.
23 Berryhill, 871 F.3d 664, 675 (9th Cir. 2017) (citation omitted).
24 “When an examining physician relies on the same clinical findings
25 as a treating physician, but differs only in his or her conclusions,
26 the conclusions of the examining physician are not ‘substantial
27 evidence.’” Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007).
28
1 1. Dr. Raffle
2
3 In November 2007, an MRI revealed a malignant non-small cell
4 carcinoma in Plaintiff’s brain, most likely a metastasis from lung
5 cancer, which was subsequently diagnosed in December 2007. (AR
6 634). Whole-brain radiation treatment and chemotherapy sessions
7 were administered from December 2007 through March 2008. (AR 634).
8 Plaintiff had lung surgery in March 2008, removing her left lower
9 lobe and part of her diaphragm. (AR 634). She was also diagnosed
10 with colon cancer and treated with surgery in April 2008. (AR
11 634).
12
13 Brain MRIs in October 2008, May 2009, and December 2009
14 revealed no local recurrence of the tumor and no metastases, but
15 there was mild diffuse cerebral cortical atrophy.6 (AR 634). There
16 was also considerable but stable periventricular and deep white
17 matter hyperintensity related to chronic ischemia and radiation
18 treatment.7 (AR 634). A December 2010 brain MRI revealed stable

19 6 “Cerebral atrophy is a common feature of many of the diseases
that affect the brain. Atrophy of any tissue means loss of cells.
20
In brain tissue, atrophy describes a loss of neurons and the
21 connections between them. Atrophy can be generalized, which means
that all of the brain has shrunk; or it can be focal, affecting
22 only a limited area of the brain and resulting in a decrease of
the functions that area of the brain controls. If the cerebral
23 hemispheres (the two lobes of the brain that form the cerebrum)
are affected, conscious thought and voluntary processes may be
24
impaired.” National Institute of Neurological Disorders and
25 Stroke, Cerebral Atrophy Information Page, available at
(last visited August 13, 2019).
27 7 White matter hyperintensities “are associated with cognitive
impairment, triple the risk of stroke and double the risk of
28 dementia.” Joanna M. Wardlaw, M.D., et al., What are White Matter
1 left temporal lobe encephalomalacia and volume loss with no midline
2 shift and moderate chronic microangiographic ischemic changes.8
3 (AR 634).
4
5 In May 2015, Plaintiff was referred by her neurologist, Valeri
6 Yarema, M.D., to David L. Raffle, Ph.D., a licensed clinical
7 neuropsychologist and a certified brain injury specialist, for a
8 neuropsychological evaluation to clarify Plaintiff’s current level
9 of neuropsychological functioning, to determine possible
10 etiologies for Plaintiff’s relative weaknesses in cognitive
11 impairment, and to confirm if current deficits prevent her from
12 successfully engaging in full-time employment as an office manager.
13 (AR 632). Over a three-day period, from May 2-4, 2015, Dr. Raffle
14 reviewed the medical record, interviewed Plaintiff, conducted a
15 mental status examination, and administered a battery of tests,
16
17
18

19
Hyperintensities Made of? (2015), available at (last visited August 13, 2019).
20
Ischemia “is a restriction in blood supply to tissues, causing a
21 shortage of oxygen that is needed for cellular metabolism (to keep
tissue alive). . . . Chronic ischemia of the brain may result in
22 a form of dementia called vascular dementia.” (last visited August 13, 2019).
23
8 “Cerebral softening, also known as encephalomalacia, is a
24
localized softening of the substance of the brain, due to bleeding
25 or inflammation. . . . White softening . . . occurs in areas that
continue to be poorly perfused, with little to no blood flow. These
26 are known as ‘pale’ or ‘anemic infarcts’ and are areas that contain
dead neuronal tissue, which result in a softening of the cerebrum.”
27 (last
visited August 13, 2019).
28
1 and on May 29, 2015, Dr. Raffle submitted a thorough, detailed
2 report.9 (AR 632-52).
3
4 Plaintiff reported multiple symptoms since her cancer
5 treatment, including short-term memory problems, occasional word-
6 finding difficulties, verbal paraphasias,10 falling incidences,
7 migraine headaches, and extreme photophobia. (AR 634). During
8 the mental status examination, Plaintiff was able to recall only
9 one of three words, which is indicative of possible mild cognitive
10 impairment. (AR 633). Dr. Raffle administered over 25
11 psychological assessment tests. (AR 637-43, 646-52). The tests
12 indicated that Plaintiff was mildly to moderately impaired in a
13 number of functional areas, including memory, recall, and learning.
14 (AR 646-52). Dr. Raffle summarized the test results:
15
16 There is evidence of a modest impairment in memory that
17 represents a significant decline from [Plaintiff’s]
18 level of performance prior to her cancer
19 treatment. . . . Her brain tumor excision and
20 subsequent whole-brain radiation and chemotherapy appear
21 to have had a significant negative effect on the
22 functioning of the left side of her brain, resulting in
23

9 The ALJ mistakenly refers to this evaluation as being
24
performed by Dr. Yarema. (AR 35).
25
10 “Paraphasia is a type of language output error commonly
26 associated with aphasia, and characterized by the production of
unintended syllables, words, or phrases during the effort to
27 speak.” (last visited
August 13, 2019).
28
1 significant impairment in her ability to recall what she
2 has heard, especially when confronted with large amounts
3 of information. Testing verified that she can recall at
4 any one time only a small amount of information, and she
5 will not be able to remember any additional information
6 even if the information is repeated to her several times.
7 Her treatment has resulted in a significant number of
8 verbal paraphasias, which have negatively affected her
9 ability to communicate clearly. . . . [Plaintiff] is
10 experiencing an organic mental disorder caused by
11 surgical excision of brain tissue, chemotherapy, and
12 radiation exposure that has resulted in moderate
13 impairment in her neuropsychological functioning,
14 including a significant loss of memory abilities and
15 communication difficulties.
16
17 (AR 644). Dr. Raffle diagnosed mild neurocognitive disorder,
18 persistent, without behavioral disturbance, induced by surgical
19 excision of brain tissue, chemotherapy and whole-brain radiation;
20 adjustment disorder with depressed mood, mild; and major depressive
21 disorder, recurrent, mild. (AR 644). He opined that Plaintiff’s
22 impairments
23
24 directly affect her functional capacity to complete work
25 relevant to her profession as an office manager. These
26 impairments have resulted not only in marked difficulties
27 in maintaining employment, but also have resulted in
28 frequent failure to complete tasks in an accurate and
1 timely manner in the work setting, preventing her from
2 engaging in substantial and gainful work activity.
3
4 (AR 644). Dr. Raffle concluded that Plaintiff appears to meet the
5 criterial of Listing 12.02 (neurocognitive disorders). (AR 644).
6 After reviewing Dr. Raffle’s assessment, the state agency
7 psychological consultant largely agreed (AR 653-54), finding that
8 Plaintiff is moderately limited in her ability to understand,
9 remember and carry out detailed instructions, maintain attention
10 and concentration for extended periods, complete a normal workday
11 and workweek without interruptions from psychologically based
12 symptoms and to perform at a consistent pace without an
13 unreasonable number and length of rest periods, respond
14 appropriately to changes in the work setting, and travel in
15 unfamiliar places or use public transportation (AR 669-70).
16
17 The ALJ gave Dr. Raffle’s opinion “little weight.” (AR 35).
18 She found the opinion “internally inconsistent because [Dr. Raffle]
19 opined [Plaintiff] was permanently disabled, yet she gave
20 [Plaintiff] diagnoses of a mild neurocognitive disorder without
21 behavioral disturbance, a mild adjustment disorder, [and] a mild
22 depressive disorder.” (AR 35). Dr. Raffle’s opinion was
23 contradicted by the opinion of Banafshe P. Sharokhi, Ph.D., who
24 conducted a psychological evaluation in July 2014. (AR 599-609).
25 As Dr. Raffle’s opinion was contradicted by an earlier medical
26 evaluation, the ALJ was required to give specific and legitimate
27 reasons that were supported by substantial evidence in the record
28 for rejecting Dr. Raffle’s opinion. See Lester, 81 F.3d at 830–31
1 (“the opinion of an examining doctor, even if contradicted by
2 another doctor, can only be rejected for specific and legitimate
3 reasons that are supported by substantial evidence in the record”).
4 The ALJ’s rejection of Dr. Raffle’s opinion does not satisfy these
5 standards.
6
7 First, Dr. Raffle’s opinion is supported by his own extensive
8 examinations and testing. In evaluating a consultative examiner’s
9 opinion, the ALJ must consider the extent to which the opinion is
10 supported by clinical and diagnostic examinations in determining
11 the weight to give the opinion. Revels, 874 F.3d at 654; 20 C.F.R.
12 §§ 404.1527(c)(2)–(6), 416.927(c)(2)-(6). While the ALJ summarized
13 Dr. Raffle’s clinical conclusions, she did not discuss the specific
14 testing –- performed over a three-day period –- or the results of
15 the testing. (AR 35). “[A]n ALJ may not pick and choose evidence
16 unfavorable to the claimant while ignoring evidence favorable to
17 the claimant.” Cox v. Colvin, 639 F. App’x 476, 477 (9th Cir.
18 2016) (citing Ghanim v. Colvin, 763 F.3d 1154, 1164 (9th Cir.
19 2014)). Dr. Raffle’s assessment is supported by the test results,
20 which indicated mild to moderate impairments in multiple cognitive
21 functions, especially with recall, memory, and communication
22 skills. (AR 638-43, 646-52).
23
24 Dr. Raffle’s opinion is also supported by the medical records
25 that he reviewed, including multiple MRI studies. (AR 632). For
26 example, a May 2009 brain MRI revealed mild diffuse cerebral
27 cortical atrophy, along with deep white matter hyperintensity
28 related to chronic ischemia and radiation treatment. (AR 576,
1 634). In December 2010, a brain MRI indicated left temporal lobe
2 encephalomalacia and volume loss and moderate chronic
3 microangiographic ischemic changes. (AR 567, 634). Similar
4 findings were noted in July 2014, August 2015, and in July 2016,
5 when Plaintiff’s white matter hyperintensity had increased from
6 moderate to severe. (AR 620-21, 695).
7
8 Second, this Court has a different interpretation than the
9 ALJ of Dr. Raffle’s diagnoses. Dr. Raffle clearly indicated that
10 Plaintiff’s functional limitations were the result of her
11 persistent mild neurocognitive disorder, and not due to Plaintiff’s
12 anxiety or depression. (AR 644). The characterization of
13 Plaintiff’s neurocognitive disorder as “mild” does not indicate
14 “mild” symptoms. Instead, DSM-5 distinguishes between two
15 neurocognitive disorders: “mild” and “major,” the latter replacing
16 the use of “dementia.”11 Mark Moran, Mild Neurocognitive Disorder
17 Added to DSM (2013) (“Mild neurocognitive disorder . . . recognizes
18 the many patients seen by clinicians who do not meet [the] criteria
19 for dementia but who are nevertheless clinically impaired.”).12
20 Mild neurocognitive disorder is used to “emphasize loss of
21 previously acquired cognitive functions,” including complex
22 attention, learning and memory, executive ability, language,
23 visual-constructional-perceptual ability, and social cognition.
24
11 DSM-5 refers to the American Psychiatric Association’s
25 Diagnostic and Statistical Manual of the American Psychiatric
Association (Fifth edition).
26
12 The article is available at (last
visited August 13, 2019).
28
1 Mary Ganguli, M.D., et al., Classification of Neurocognitive
2 Disorders in DSM-5: A Work in Progress (2011).13 Indeed, labeling
3 a diagnosis as “mild” does not preclude a severe or even a listing
4 level impairment. See, e.g., Gomez v. Astrue, 695 F. Supp. 2d
5 1049, 1053 (C.D. Cal. 2010) (finding that “mild” mental retardation
6 meets Listing 12.05). The ALJ’s lay opinion of Plaintiff’s medical
7 condition cannot provide the medical evidence needed to support
8 the ALJ’s RFC determination. See Tackett, 180 F.3d at 1102-03
9 (there was no medical evidence to support the ALJ’s determination);
10 Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975) (an ALJ is
11 forbidden from making his or her own medical assessment beyond that
12 demonstrated by the record); Rohan v. Chater, 98 F.3d 966, 970 (7th
13 Cir. 1996) (“ALJs must not succumb to the temptation to play doctor
14 and make their own independent medical findings”).
15
16 Finally, Dr. Raffle did not opine on whether Plaintiff is
17 “disabled.” Indeed, whether a claimant is disabled is an issue
18 reserved for the Commissioner. 20 C.F.R. § 416.927(e)(1); see
19 McLeod v. Astrue, 640 F.3d 881, 885 (9th Cir. 2011) (“A treating
20 physician’s evaluation of a patient’s ability to work may be useful
21 or suggestive of useful information, but a treating physician
22 ordinarily does not consult a vocational expert or have the
23 expertise of one. An impairment is a purely medical condition. A
24 disability is an administrative determination of how an impairment,
25 in relation to education, age, technological, economic, and social
26
13 The article is available at (last visited August
13, 2019).
28
1 factors, affects ability to engage in gainful activity.”).
2 Instead, Dr. Raffle merely concluded that Plaintiff was unable to
3 perform her past work as an office manager. (AR 644).
4
5 Defendant argues that in rejecting the opinions of Dr. Raffle
6 and the state agency consultant, the ALJ properly relied on the
7 opinions of the examining psychologist, the testifying medical
8 expert, and the treating opinion of Dr. Nishikubo. (Dkt. No. 24
9 at 2-7). On July 16, 2014, Dr. Sharokhi conducted a psychological
10 evaluation at the request of the Agency. (AR 599-609). She
11 reviewed a few medical records and conducted three tests. (AR 599,
12 601). Dr. Sharokhi diagnosed depressive disorder and opined that
13 Plaintiff has a mild inability to understand, remember and carryout
14 short, simple instructions, to maintain attention and
15 concentration, and to maintain persistence and pace. (AR 607,
16 608).
17
18 The ALJ gave Dr. Sharokhi’s opinion “great weight,” finding
19 it supported by the test results and the medical record. (AR 34-
20 35). The ALJ’s assessment is not supported by substantial
21 evidence. First, as discussed above, multiple MRI studies revealed
22 chronic, severe brain deficits. Second, most of the medical
23 evidence provided to Dr. Sharokhi predated Plaintiff’s amended
24 alleged onset date. (AR 601). Finally, Dr. Sharokhi errantly
25 noted that the medical records she reviewed included no history of
26 memory deficits or diagnosed cognitive disorders. (AR 601). To
27 the contrary, the December 2010 brain MRI reviewed by Dr. Sharokhi
28 (AR 601) indicates a history of short-term memory problems (AR
1 576). Similarly, other reports provided to Dr. Sharokhi reflect
2 ongoing issues with Plaintiff’s short term memory. (AR 493, 498).
3
4 While both Dr. Raffle and Dr. Sharokhi were examining
5 physicians, Dr. Raffle’s opinion is deserving of greater weight.
6 Dr. Raffle is a licensed clinical neuropsychologist and a certified
7 brain injury specialist (AR 632), specialties which directly relate
8 to Plaintiff’s psychological functioning. “[T]he opinions of a
9 specialist about medical issues related to his or her area of
10 specialization are given more weight than the opinions of a
11 nonspecialist.” Smolen, 80 F.3d at 1285 (citing 20 C.F.R. §
12 404.1527(c)(5)). Dr. Raffle issued his opinion after conducting a
13 mental status examination and administering an exhaustive battery
14 of over 25 psychological tests during a three-day period. (AR 632-
15 33, 637). Dr. Sharokhi, however, administered only three tests
16 (AR 599) and failed to fully explain some of her findings. For
17 example, Plaintiff needed instructions repeated during the testing
18 yet Dr. Sharokhi found only a mild impairment in concentration and
19 attentions. (AR 604, 608). Dr. Sharokhi also performed the
20 Weschler Memory Scale test, which includes tests for both immediate
21 and delayed memory, yet she provided test results only for
22 immediate memory. (AR 606). Critically, this is an area where
23 Dr. Raffle’s testing revealed a moderate impairment. (AR 638-39).
24 As Dr. Raffle concluded, “[Plaintiff’s] brain tumor excision and
25 subsequent whole-brain radiation and chemotherapy appear to have
26 had a significant negative effect on the functioning of the left
27 side of her brain, resulting in significant impairment in her
28 ability to recall what she has heard, especially when confronted
1 with large amounts of information.” (AR 644). The ALJ must give
2 more weight to opinions based on objective evidence, such as test
3 results.” See 20 C.F.R. § 404.1527(c)(3) (“The more a medical
4 source presents relevant evidence to support a medical opinion,
5 particularly medical signs and laboratory findings, the more weight
6 we will give that medical opinion. The better an explanation a
7 source provides for a medical opinion, the more weight we will give
8 that medical opinion. Furthermore, because nonexamining sources
9 have no examining or treating relationship with you, the weight we
10 will give their medical opinions will depend on the degree to which
11 they provide supporting explanations for their medical
12 opinions.”).14
13
14 The ALJ also gave “great weight” to the testimony of the
15 medical expert (AR 33), who concluded that Plaintiff did not meet
16 a listed impairment and was capable of the full range of medium
17 work. (AR 55-56). The medical expert’s conclusion was largely
18 based on his finding that Dr. Raffle found only “mild problems.”
19 (AR 54-55). However, as discussed above, the “mild” neurocognitive
20 disorder diagnosis does not indicate that Plaintiff has “mild”
21 symptoms. Nor did the medical expert acknowledge the specific
22 findings on the neurocognitive testing performed by Dr. Raffle,
23 including Plaintiff’s deficits in delayed memory recall.
24

25 14 The ALJ gave the state agency psychological consultant’s
opinion only “partial weight,” largely based on the consultative
26 examiner’s opinion. (AR 36). However, because Dr. Raffle’s
opinion was deserving of greater weight than Dr. Sharokhi’s, the
27 ALJ’s assessment of the consultant’s opinion is not supported by
substantial evidence.
28
1 Critically, the medical expert did not address Dr. Raffle’s finding
2 that Plaintiff’s “modest impairment in memory” caused her to
3 “recall at one time only a small amount of information” and cannot
4 remember additional information “even if the information is
5 repeated to her several times.” (AR 644). The medical expert also
6 mischaracterized the brain MRI results as “clean.” (AR 54). While
7 the cited brain MRI found no residual or recurrent tumor, it noted
8 moderate to severe white matter hyperintensity and mild atrophy,
9 indicative of cognitive impairment. (AR 695).
10
11 The Commissioner emphasizes that the medical expert is a
12 diplomate in three medical fields. (Dkt. No. 24 at 4). However,
13 these fields -- medical examiner, internal medicine, and oncology
14 (AR 677) -- do not cover Plaintiff’s neurocognitive impairment that
15 resulted from her chemotherapy and radiation treatment. Indeed,
16 the medical expert stated that Dr. Raffle made neurological and
17 psychological evaluations and admitted that he, the medical expert,
18 is not an expert in either of those fields but would give his
19 opinion anyway.15 (AR 51-53). For all these reasons, the decision
20 below erred in giving more weight to the medical expert’s opinion
21 than Dr. Raffle’s.
22
23
24

25 15 It appears that the medical expert reviewed the MRIs as an
oncologist looking for recurrent metastatic disease, rather than
26 other findings that affect cognition. Given that Plaintiff alleged
disabilities due to short-term memory deficits resulting from
27 chemotherapy and radiation treatment (AR 221), the ALJ should have
sought an expert in the appropriate field.
28
1 The ALJ also credited the opinion of Carol Nishikubo, M.D.,
2 Plaintiff’s treating physician. (AR 34). In June 2014, Dr.
3 Nishikubo opined that Plaintiff’s neoplastic disease was controlled
4 with current treatment.16 (AR 584-85). Nevertheless, she also
5 opined that Plaintiff suffers from residual complications,
6 including fatigue, difficulty concentrating, decreased stamina,
7 and recurrent headaches, which affect her daily functioning. (AR
8 585). While the ALJ gave Dr. Nishikubo’s opinion “great weight,”
9 she did not address any of these limitations or include them in
10 assessing Plaintiff’s RFC. (AR 34).
11
12 In sum, the ALJ failed to provide specific and legitimate
13 reasons for rejecting Dr. Raffle’s opinion. On remand, the ALJ
14 shall reevaluate the weight to be afforded Dr. Raffle’s opinion.
15
16 2. Dr. Fang
17
18 In January 2015, Lichuan Fang, M.D., Plaintiff’s treating
19 physician, opined that Plaintiff is permanently disabled and unable
20 to engage in meaningful work. (AR 628-29). Dr. Fang concluded
21 that Plaintiff continues to struggle with thinking clearly,
22 managing tasks, poor memory, and confusion. (AR 628). Indeed,
23 Plaintiff has “significant short term memory impairment despite
24 writing everything down on paper.” (AR 628). Further, Plaintiff
25 “faces tremendous challenges in completing the simplest tasks and
26
16 “Neoplastic diseases are conditions that cause tumor growth —
27 both benign and malignant.” (last visited August 14, 2019).
28
1 has difficulties with higher level functioning cognitive tasks as
2 well.” (AR 628).
3
4 The ALJ gave Dr. Fang’s opinion “little weight,” finding no
5 indication Dr. Fang was relying on medical records that had been
6 reviewed. (AR 35). The ALJ also rejected Dr. Fang’s opinion
7 because she treated Plaintiff “only for physical impairments” and
8 “there was no evidence in the medical records of post-chemotherapy
9 cognitive impairment.” (AR 35). The ALJ’s assessment is not
10 supported by substantial evidence. Dr. Fang is part of UCLA Santa
11 Monica Bay Physicians (AR 628), which is Plaintiff’s primary
12 treating group. The medical records from Bay Physicians document
13 ongoing treatment for fatigue, cognitive problems, depression, and
14 anxiety. (AR 282, 289, 296, 301, 315, 378, 421, 447). Further,
15 both Dr. Raffle and Dr. Nishikubo found post-chemotherapy cognitive
16 impairment, as discussed above.
17
18 In sum, the ALJ failed to provide specific and legitimate
19 reasons for rejecting Dr. Fang’s opinion. On remand, the ALJ shall
20 reevaluate the weight to be afforded Dr. Fang’s opinion.
21
22 3. Dr. deMayo
23
24 In July 2016, Robert A. deMayo, Ph.D., board certified in
25 clinical psychology, reported that he had been treating Plaintiff
26 since February 2016. (AR 697). During her treatment sessions,
27 Plaintiff presented with complaints of severe depression and
28 anxiety, including depressed and anxious mood, decreased energy
1 level, crying episodes, diminished ability to concentrate, and
2 indecisiveness. (AR 697). Plaintiff also reported ongoing
3 cognitive deficits in memory and attention subsequent to brain
4 surgery and radiation treatment. (AR 697). Dr. deMayo diagnosed
5 major depression, recurrent, and opined that Plaintiff is
6 psychologically disabled. (AR 697).
7
8 The ALJ gave Dr. deMayo’s opinion “little weight,” finding
9 that “he apparently relied quite heavily on the subjective report
10 of symptoms and limitations provided by [Plaintiff].” (AR 36).
11 “An ALJ may reject a treating physician’s opinion if it is based
12 to a large extent on a claimant’s self-reports that have been
13 properly discounted as incredible.” Tommasetti v. Astrue, 533 F.3d
14 1035, 1041 (9th Cir. 2008). However, as discussed below, the ALJ
15 did not properly discount Plaintiff’s subjective statements. In
16 any event, Dr. deMayo did not rely solely on Plaintiff’s subjective
17 symptoms. In his report, Dr. deMayo clearly indicated that
18 Plaintiff’s “memory and concentration issues have been apparent in
19 our ongoing sessions.” (AR 697).
20
21 In sum, the ALJ failed to provide specific and legitimate
22 reasons for rejecting Dr. deMayo’s opinion. On remand, the ALJ
23 shall reevaluate the weight to be afforded Dr. deMayo’s opinion.
24
25
26
27
28
1 B. The ALJ’s Reasons for Discrediting Plaintiff’s Subjective
2 Symptom Testimony Were Not Supported By Substantial Evidence
3
4 Plaintiff alleges disabilities due to short-term memory
5 deficits resulting from radiation and chemotherapy. (AR 221). She
6 testified that after her cancer treatment, she tried to return to
7 work but was unable to perform the way she used to. (AR 61). Her
8 memory was short, so she tried to write things down but then could
9 not remember where she left her writing pad. (AR 61-62).
10 Plaintiff’s primary difficulty is with memory, recall, focusing,
11 and communicating. (AR 69, 71, 76). She also suffers from
12 insomnia, anxiety, nervousness, difficulty concentrating, and
13 migraine headaches. (AR 68, 71-72).
14
15 When assessing a claimant’s credibility regarding subjective
16 pain or intensity of symptoms, the ALJ must engage in a two-step
17 analysis. Trevizo, 871 F.3d at 678. First, the ALJ must determine
18 if there is medical evidence of an impairment that could reasonably
19 produce the symptoms alleged. Garrison, 759 F.3d at 1014. “In
20 this analysis, the claimant is not required to show that her
21 impairment could reasonably be expected to cause the severity of
22 the symptom she has alleged; she need only show that it could
23 reasonably have caused some degree of the symptom.” Id. (emphasis
24 in original) (citation omitted). “Nor must a claimant produce
25 objective medical evidence of the pain or fatigue itself, or the
26 severity thereof.” Id. (citation omitted).
27
28
1 If the claimant satisfies this first step, and there is no
2 evidence of malingering, the ALJ must provide specific, clear and
3 convincing reasons for rejecting the claimant’s testimony about
4 the symptom severity. Trevizo, 871 F.3d at 678 (citation omitted);
5 see also Smolen, 80 F.3d at 1284 (“[T]he ALJ may reject the
6 claimant’s testimony regarding the severity of her symptoms only
7 if he makes specific findings stating clear and convincing reasons
8 for doing so.”); Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883
9 (9th Cir. 2006) (“[U]nless an ALJ makes a finding of malingering
10 based on affirmative evidence thereof, he or she may only find an
11 applicant not credible by making specific findings as to
12 credibility and stating clear and convincing reasons for each.”).
13 “This is not an easy requirement to meet: The clear and convincing
14 standard is the most demanding required in Social Security cases.”
15 Garrison, 759 F.3d at 1015 (citation omitted).
16
17 In discrediting the claimant’s subjective symptom testimony,
18 the ALJ may consider the following:
19
20 (1) ordinary techniques of credibility evaluation, such
21 as the claimant’s reputation for lying, prior
22 inconsistent statements concerning the symptoms, and
23 other testimony by the claimant that appears less than
24 candid; (2) unexplained or inadequately explained
25 failure to seek treatment or to follow a prescribed
26 course of treatment; and (3) the claimant’s daily
27 activities.
28
1 Ghanim, 763 F.3d at 1163 (citation omitted). Inconsistencies
2 between a claimant’s testimony and conduct, or internal
3 contradictions in the claimant’s testimony, also may be relevant.
4 Burrell v. Colvin, 775 F.3d 1133, 1137 (9th Cir. 2014); Light v.
5 Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997). In addition,
6 the ALJ may consider the observations of treating and examining
7 physicians regarding, among other matters, the functional
8 restrictions caused by the claimant’s symptoms. Smolen, 80 F.3d
9 at 1284; accord Burrell, 775 F.3d at 1137. However, it is improper
10 for an ALJ to reject subjective testimony based “solely” on its
11 inconsistencies with the objective medical evidence presented.
12 Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir.
13 2009) (citation omitted).
14
15 Further, the ALJ must make a credibility determination with
16 findings that are “sufficiently specific to permit the court to
17 conclude that the ALJ did not arbitrarily discredit claimant’s
18 testimony.” Tommasetti, 533 F.3d at 1039 (citation omitted); see
19 Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015) (“A
20 finding that a claimant’s testimony is not credible must be
21 sufficiently specific to allow a reviewing court to conclude the
22 adjudicator rejected the claimant’s testimony on permissible
23 grounds and did not arbitrarily discredit a claimant’s testimony
24 regarding pain.”) (citation omitted). Although an ALJ’s
25 interpretation of a claimant’s testimony may not be the only
26 reasonable one, if it is supported by substantial evidence, “it is
27 not [the court’s] role to second-guess it.” Rollins v. Massanari,
28 261 F.3d 853, 857 (9th Cir. 2001).
1 The ALJ discounted Plaintiff’s subjective statements, finding
2 “no evidence in the medical records of post-chemotherapy cognitive
3 impairment.” (AR 34). As discussed above, however, multiple
4 treating and examining physicians opined that Plaintiff suffers
5 from post-chemotherapy neurocognitive disorder. (AR 628-29, 644,
6 697; see id. 669-72). Multiple brain MRIs document cognitive
7 deficits. (AR 567, 576, 620-21, 695). Furthermore, Dr. Raffle’s
8 exhaustive battery of psychological tests indicate that Plaintiff
9 has a significant impairment in memory and in her ability to recall
10 and communicate. (AR 644).
11
12 The ALJ also discounted Plaintiff’s subjective symptoms
13 because “[s]he was able to work for many years successfully after
14 her chemotherapy.” (AR 34). While Plaintiff did have significant
15 earnings in 2009 and 2010 (AR 202), this does not represent “many”
16 years. Further, Plaintiff testified that after completing her
17 cancer treatments, she returned to work in a different position,
18 had difficulty performing her job as her memory was impaired, and
19 tried to write things down, but then forgot where she left her
20 notes, and was eventually terminated from her position. (AR 61-
21 62, 64-65). See Lingenfelter v. Astrue, 504 F.3d 1028, 1036–37
22 (9th Cir. 2007) (ALJ erred in relying on brief and failed period
23 of work as proof that plaintiff’s pain was not disabling). In any
24 event, Plaintiff does not allege that she was disabled prior to
25 May 2013.
26
27 Finally, the ALJ discredited Plaintiff’s subjective
28 statements because “[a]ll of her brain MRIs showed no residual or
1 recurrent disease metastatic.” (AR 34). The decision below,
2 however, fails to mention that the MRIs indicated deficits in
3 Plaintiff’s brain that support the cognitive disorder diagnosis.
4 (AR 567, 576, 620-21, 695). The fact that her cancer has not
5 returned does not invalidate her allegations of memory, recall,
6 concentration, and communication impairments caused by the
7 resection of her brain, chemotherapy, and radiation treatment.
8
9 In sum, the decision below failed to provide clear and
10 convincing reasons, supported by substantial evidence, for
11 rejecting Plaintiff’s subjective symptoms. The matter is remanded
12 for further proceedings. On remand, the ALJ shall reevaluate
13 Plaintiff’s symptoms in accordance with the current version of the
14 Agency’s regulations and guidelines, taking into account the full
15 range of medical evidence.
16
17 C. The ALJ Failed To Properly Assess Plaintiff’s Cognitive
18 Disorder As A Severe Impairment At Step Two Of The Evaluation
19
20 By its own terms, the evaluation at step two is a de minimis
21 test intended to weed out the most minor of impairments. See Bowen
22 v. Yuckert, 482 U.S. 137, 153–54 (1987) (O’Connor, J., concurring);
23 Edlund v. Massanari, 253 F.3d 1152, 1158 (9th Cir. 2001) (“We have
24 defined the step-two inquiry as a de minimis screening device to
25 dispose of groundless claims.”). Further, at step two, “the ALJ
26 must consider the combined effect of all of the claimant’s
27 impairments on her ability to function, without regard to whether
28 each alone was sufficiently severe.” Smolen, 80 F.3d at 1290
1 (citation omitted); see SSR 85-28. An impairment is not severe
2 “only if the evidence establishes a slight abnormality that has
3 not more than a minimal effect on an individual’s ability to work.”
4 Smolen, 80 F.3d at 1290 (citation omitted). “Thus, applying [the
5 Court’s] normal standard of review to the requirements of step two,
6 [the Court] must determine whether the ALJ had substantial evidence
7 to find that the medical evidence clearly established that
8 [Plaintiff] did not have a medically severe impairment or
9 combination of impairments.” Webb v. Barnhart, 433 F.3d 683, 687
10 (9th Cir. 2005).
11
12 According to the Commissioner’s regulations, “[a]n impairment
13 or combination of impairments is not severe if it does not
14 significantly limit your physical or mental ability to do basic
15 work activities.” 20 C.F.R. §§ 404.1522(a), 416.922(a). “Basic
16 work activities are abilities and aptitudes necessary to do most
17 jobs, including, for example, walking, standing, sitting, lifting,
18 pushing, pulling, reaching, carrying or handling.” Smolen, 80 F.3d
19 at 1290 (citation omitted); see 20 C.F.R. §§ 404.1522(b),
20 416.922(b); SSR 85-28. Nevertheless, the Commissioner has
21 emphasized that “[g]reat care should be exercised in applying the
22 not severe impairment concept.” SSR 85-28, at *4. Accordingly,
23 if the ALJ is “unable to determine clearly the effect of an
24 impairment or combination of impairments on the individual’s
25 ability to do basic work activities, the sequential evaluation
26 process should not end with the not severe evaluation step.” Id.
27 (emphasis added). Instead, the sequential evaluation process
28 should continue through steps three, four, and five to “evaluate
1 the individual’s ability to do past work, or to do other work based
2 on the consideration of age, education, and prior work experience.”
3 Id.
4
5 Here, the ALJ erred at step two when she failed to acknowledge
6 Plaintiff’s cognitive disorder as a severe impairment. As
7 discussed above, Plaintiff’s cognitive disorder is supported by
8 the opinions of Drs. Raffle, Nishikubo, and deMayo and the state
9 agency psychological consultant, Dr. Raffle’s extensive testing,
10 the brain MRI results, and Plaintiff’s subjective statements.
11 There is significant medical evidence that Plaintiff’s cognitive
12 disorder causes severe deficits in memory, recall, concentration,
13 and communication. Because a step two evaluation is to dispose of
14 “groundless claims,” and substantial evidence here establishes that
15 Plaintiff suffers from a cognitive impairment, the ALJ erred by
16 failing to identify Plaintiff’s cognitive disorder as a severe
17 impairment. This is not the “total absence of objective evidence
18 of severe medical impairment” that would permit us to affirm “a
19 finding of no disability at step two.” Webb, 433 F.3d at 688
20 (reversing a step-two determination “because there was not
21 substantial evidence to show that Webb’s claim was ‘groundless’”).
22 The evidence in the record was sufficient for the ALJ to conclude
23 that Plaintiff’s cognitive disorder was a severe impairment at step
24 two under the de minimis test.
25
26 For the foregoing reasons, the matter is remanded for further
27 proceedings. On remand, the ALJ must evaluate Plaintiff’s
28 cognitive disorder as a severe impairment at step-two and include
1 limitations imposed by Plaintiff’s cognitive disorder in the ALJ’s
2 overall evaluation of Plaintiff. The ALJ must consider the impact
3 of Plaintiff’s cognitive disorder and other impairments, as well
4 as the entire medical record, on her RFC.17
5
6 VI.
7 CONCLUSION
8
9 Accordingly, IT IS ORDERED that Judgment be entered REVERSING
10 the decision of the Commissioner and REMANDING this matter for
11 further proceedings consistent with this decision. IT IS FURTHER
12 ORDERED that the Clerk of the Court serve copies of this Order and
13 the Judgment on counsel for both parties.
14
15 DATED: August 21, 2019
16
/S/ __________
17 SUZANNE H. SEGAL
UNITED STATES MAGISTRATE JUDGE
18
19 THIS DECISION IS NOT INTENDED FOR PUBLICATION IN WESTLAW,
LEXIS/NEXIS OR ANY OTHER LEGAL DATABASE.
20
21
22
23
24

25 17 Plaintiff also argues that the ALJ erred in evaluating her
cognitive impairment at step three and in concluding she can
26 perform past relevant work at step four. (Dkt. No. 23 at 12, 15-
16). However, it is unnecessary to reach Plaintiff’s arguments on
27 these grounds, as the matter is remanded for the alternative
reasons discussed at length in this Order.
28

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9978631. Public record. Not legal advice.