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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

10 11 12 FERMIN CERVANTES CASTANEDA, Case No. 1:17-cv-01654-EPG 13 Plaintiff, FINAL JUDGMENT AND ORDER

REGARDING PLAINTIFF’S SOCIAL

14 v. SECURITY COMPLAINT 15 COMMISSIONER OF SOCIAL

SECURITY,

16 Defendant. 17 18 19 20 This matter is before the Court on Plaintiff’s complaint for judicial review of an 21 unfavorable decision by the Commissioner of the Social Security Administration regarding his 22 application for Disability Insurance Benefits and Supplemental Security Income. The parties have 23 consented to entry of final judgment by the United States Magistrate Judge under the provisions 24 of 28 U.S.C. § 636(c) with any appeal to the Court of Appeals for the Ninth Circuit. (ECF Nos. 7, 25 9). 26 \\\ 27 \\\ 28 2 At a hearing on August 13, 2019, the Court heard from the parties and, having reviewed 3 the record, administrative transcript, the briefs of the parties, and the applicable law, finds as 4 follows: 5 Plaintiff challenges the decision of the Administrative Law Judge (“ALJ”), on the ground 6 that she improperly rejected the opinion of Plaintiff’s treating physician, Dr. Tripodis. The Ninth 7 Circuit has held regarding such opinion testimony:

8 The medical opinion of a claimant’s treating physician is given “controlling 9 weight” so long as it “is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial 10 evidence in [the claimant’s] case record.” 20 C.F.R. § 404.1527(c)(2). When a treating physician’s opinion is not controlling, it is weighted according to factors 11 such as the length of the treatment relationship and the frequency of examination, 12 the nature and extent of the treatment relationship, supportability, consistency with the record, and specialization of the physician. Id. § 404.1527(c)(2)–(6). “To reject 13 [the] uncontradicted opinion of a treating or examining doctor, an ALJ must state clear and convincing reasons that are supported by substantial evidence.” Ryan v. 14 Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) (alteration in original) 15 (quoting Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005)). “If a treating or examining doctor’s opinion is contradicted by another doctor’s opinion, an ALJ 16 may only reject it by providing specific and legitimate reasons that are supported 17 by substantial evidence.” Id. (quoting Bayliss, 427 F.3d at 1216); see also Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (“[The] reasons for rejecting a 18 treating doctor’s credible opinion on disability are comparable to those required for rejecting a treating doctor’s medical opinion.”). “The ALJ can meet this burden 19 by setting out a detailed and thorough summary of the facts and conflicting clinical 20 evidence, stating his interpretation thereof, and making findings.” Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (quoting Cotton v. Bowen, 799 F.2d 21 1403, 1408 (9th Cir. 1986)). 22 Trevizo v. Berryhill, 871 F.3d 664, 675 (9th Cir. 2017). Dr. Tripodis’ opinion is contradicted by 23 two medical opinions—one by the consultative psychiatric examining physician, Dr. Sharmin 24 Jahan, and one by a non-examining state agency doctor, Dr. Balson. Thus, this Court examines 25 whether the ALJ provided specific and legitimate reasons supported by substantial evidence for 26 rejecting Dr. Tripodis’ opinions. 27 The ALJ gave the following reasons for the weight given to Dr. Tripodis’ opinions: 28 The undersigned rejects the above-cited September 2015 report from Dr. Tripodis, due to moderate to marked mental deficits in all areas of work-related activities. 2 The undersigned notes this report was completed approximately two years after the claimant’s date last insured and is wholly inconsistent with other medical evidence 3 of record and findings of Dr. Jahan and the State Agency. Moreover, this report is also inconsistent with Dr. Tripodis’ own reported findings. As noted above, as of 4 July 2015, Dr. Tripodis, cited the claimant as being stable on his medications. 5 (Exhibit B9F).

6 The undersigned finds the medical findings submitted by Dr. Tripodis do not support a finding that the claimant’s mental condition is of disabling severity, nor 7 does Dr. Tripodis provide an assessment of the claimant’s mental residual 8 functional capacity, which is compatible with the record as a whole. Dr. Tripodis appear to have taken the claimant’s subjective allegations at face value and merely 9 reiterated those allegations in his report when making his assertions regarding the 10 claimant’s mental ability to work. However, his assertions are both internally inconsistent with his own reported findings and the other medical evidence of 11 record, and do not appear to take into account the other factors, which must be considered by the undersigned, such as the other medical reports and opinions as 12 well as the vocational factors involved. Accordingly, even though Dr. Tripodis’ 13 opinions have been duly considered, in view of the overall record, they are not found to be persuasive or controlling. 14 (A.R. 32-33). 15 16 To begin, the fact that the medical source statement was completed approximately two 17 years after the claimant’s date last insured is relevant to its weight, especially given that 18 Mr. Castaneda testified at the hearing that his depression had worsened over time. (A.R. 75). 19 Regarding the alleged inconsistency with the medical evidence, the ALJ summarized that 20 evidence at length earlier in the decision, such as the following discussion: 21 The same lack of medical support applies to the claimant’s allegations of disabling depression. While the claimant submitted evidence of presentations to the county 22 mental health department dating back to 2010, he has not required any inpatient 23 psychiatric treatment or participated in regular, consistent outpatient therapy. There also appears to be significant gaps in treatment between 2010 and 2013, 24 with records from and after 2013 frequently referencing the claimant’s concerns about successfully pursuing his disability benefits, or seeking related benefits (e.g. 25 a bus pass) rather than expressing significant psychiatric problems or seeking 26 active treatment. Moreover, the claimant has been inconsistent in his symptoms complaints. As of 2010, he complained of auditory hallucinations, but later denied 27 any such problems as of 2013 and 2014 visits to the county mental health department. The claimant generally performed well upon mental status testing 28 on seeking educational or vocational training as an alternative to seeking disability 2 benefits. 2014 and 2015 records from the county mental health department, after the claimant’s date last insured, continued to reflect the claimant as denying any 3 problems with psychosis and continuing to perform well upon mental status testing. With the use of prescribed medications, the claimant’s condition remained 4 stable and, as of July 2015, the claimant reported feeling well and only expressed 5 issues relating to pursuing his disability application. 6 (A.R. 32). The Court has reviewed underlying documents, which support the ALJ’s conclusions 7 as summarized above. See, e.g., A.R. 519 (“45 y/o HM with MDD stable on his current meds, 8 denies SE, SI, HI, A+OX3, continue with same tx plan, RTC in three months.”); A.R. 520 9 (“Client was casually dressed, polite and cooperative with this clinician. Mood was euthymic and 10 affect congruent. Denied any S/H ideation, mania, hallucinations. Client requested this 11 clinician’s assistance with completing a disabled bus pass application. . . Client had no additional 12 needs today and thanked this clinician for assistance.”). 13 Finally, the reason that “Dr. Tripodis appear to have taken the claimant’s subjective 14 allegations at face value and merely reiterated those allegations in his report when making his 15 assertions regarding the claimant’s mental ability to work” is legitimate in light of the related 16 adverse findings regarding Mr. Castaneda’s inconsistent statements. See,e.g., A.R. 33 (“The 17 claimant has submitted no evidence corresponding to his alleged disability onset date and no 18 evidence he requires a cane or other assistive ambulation device. The claimant has also given 19 inconsistent statements regarding his ability to move about and perform daily activities and 20 household chores.”). 21 In conclusion, the Court finds that the reasons given by the ALJ for rejecting the medical 22 source statement of Dr. Tripodis are sufficiently specific and legitimate reasons supported by 23 substantial evidence. 24 Plaintiff next claims that the ALJ erred in determining Plaintiff’s RFC because she failed 25 to provide for limitations in concentration, persistence or pace. Plaintiff points to the ALJ’s 26 statement that “[w]ith regard to concentration, persistence or pace, the claimant had moderate 27 difficulties.” (A.R. 29). 28 The Commissioner points to cases finding that moderate limitations do not necessarily 2 have not previously held mild or moderate depression to be a sufficiently severe non-exertional 3 limitation that significantly limits a claimant’s ability to do work beyond the exertional 4 limitation.”); Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1173 (9th Cir. 2008) (upholding an 5 RFC limited to “simple, routine, repetitive sedentary work, requiring no interaction with the 6 public” despite medical opinion that claimant was “moderately limited” in her ability to “to 7 perform at a consistent pace without an unreasonable number and length of rest periods”). Here, 8 in light of the ALJ’s rejection of Dr. Tripodis’ specific limitations and the two physicians’ 9 opinions that “the claimant [had] no severe mental impairments and no mental deficits in his 10 ability to perform work tasks,” the Court finds no error in the ALJ’s RFC notwithstanding the 11 ALJ’s comment regarding moderate limitations in concentration, persistence and pace. 12 Finally, Plaintiff argues that the ALJ erred by failing to pose hypothetical questions to the 13 Vocational Expert (VE) which addressed Mr. Cervantes’ illiteracy. The Commissioner argues 14 that literacy is part of a Claimant’s assumed education, and not part of an RFC. The 15 Commissioner argues that illiteracy was part of the assumption posed in the question asking the 16 VE to “Assume a hypothetical individual of the same age, education, experience as the claimant . 17 . . .” (A.R. 81). The parties then disagree as to whether the jobs identified by the VE, and 18 adopted by the ALJ, can be done by someone who cannot speak English. The Commissioner 19 argues that the ability to communicate in English would have little significance because the jobs 20 of dining room attendant, hand packager, and machine cleaner are unskilled and concern the 21 handling of things rather than people. (ECF No. 26, at p. 15, citing DOT 311.677-018, 920.587- 22 018, 699.687-014). In contrast, Plaintiff argues that the Dictionary of Occupational Titles states 23 that all three jobs require capabilities of reading, writing and speaking to some extent. (ECF No. 24 27, at p. 7, citing DOT 311.677-018, 920.587-018, 699.687-014) 25 The Court believes this issue requires greater clarification from a VE. The ALJ did not 26 clearly specify that the jobs must be done by someone who is illiterate, and it is not clear on the 27 record whether that the VE made that assumption. Nor can the Court determine based on the 28 record whether such error was harmless. It will therefore remand to the ALJ for further 1 | proceedings to determine whether the jobs found by the ALJ can be performed by someone, like 2 | Plaintiff, who is illiterate in the English language. 3 B. Conclusion 4 The Court thus remands this case to the ALJ and directs the ALJ upon remand to consider 5 whether a person, like Plaintiff, who is illiterate in the English language can perform jobs that 6 existed in significant numbers in the national economy, including those identified by the ALJ in 7 her opinion at page 35. 8 Accordingly, the decision of the Commissioner of the Social Security Administration is ? REVERSED and REMANDED for further administrative proceedings consistent with this 10 opinion. 11 12 | ITIS SO ORDERED. | ated: _ August 14, 2019 [Jee ey 14 UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28