Vanlengen v. Commissioner of Social Security, No. 3:2018cv00566 - Document 26 (N.D. Cal. 2019)
Court Description: ORDER GRANTING PLAINTIFFS MOTION FOR SUMMARY JUDGMENT, DENYING DEFENDANTS MOTION FOR SUMMARY JUDGMENT AND REMANDING FOR AWARD OF BENEFITS. (jcslc1S, COURT STAFF) (Filed on 7/3/2019)
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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 RENA LANE VANLENGEN, 7 Plaintiff, 8 v. 9 ANDREW M. SAUL, COMMISSIONER OF SOCIAL SECURITY, 10 11 United States District Court Northern District of California Defendant. 12 Case No. 18-cv-00566-JCS ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT, DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND REMANDING FOR AWARD OF BENEFITS Re: Dkt. Nos. 21, 24 13 14 I. INTRODUCTION 15 Plaintiff Rena VanLengen seeks review of the final decision of Defendant Andrew M. 16 Saul, Commissioner of the Social Security Administration (the “Commissioner”), denying her 17 applications for Supplemental Security Income (“SSI”) benefits under Title XVI of the Social 18 Security Act. For the reasons stated below, the Court GRANTS VanLengen’s Motion for 19 Summary Judgment, DENIES the Commissioner’s Motion for Summary Judgment, REVERSES 20 the decision of the Commissioner and REMANDS the case to the Social Security Administration 21 for award of benefits.1 22 II. A. 23 Factual Background 1. Educational and Employment Background 24 VanLengen was born on October 27, 1966. Administrative Record (“AR”) 219. She 25 26 BACKGROUND completed 10th grade. AR 240. She testified that she left school because she was “into drugs.” 27 28 1 The parties have consented to the jurisdiction of the undersigned magistrate judge pursuant to 28 U.S.C. § 636(c). 1 AR 66. Between January 1999 and December 2002, VanLengen worked as a home care giver, a 2 bartender and a restaurant manager. AR 241, 270. She stopped working in December 2002 and 3 claimed on her initial application for SSI that she became disabled at that time; at the hearing 4 before the ALJ she amended her onset date to the date of her SSI application, December 26, 2013. 5 AR 56. 6 United States District Court Northern District of California 7 2. Medical History a. Overview of Alleged Impairments 8 At the hearing before an Administrative Law Judge (“ALJ”), conducted on April 1, 2016, 9 VanLengen’s attorney explained that the primary impairment that is the basis of of VanLengen’s 10 SSI claim, her chronic abdominal pain, began in March 2013. AR 61. At that time, VanLengen 11 was hospitalized for “[m]ultiple intra-abdominal abscesses,” “[a]cute sepsis syndrome [and] 12 systemic inflammatory response syndrome secondary to” the abscesses, and “[r]uptured ovarian 13 cyst leading to left salpingo-oophorectomy with extensive lysis of adhesions.” AR 336. A year 14 later she was diagnosed with “pelvic adhesions and adhesive disease,” among other things, and on 15 May 13, 2014 VanLengen underwent a “total laparoscopic hysterectomy and right salpingo- 16 oophorectomy with extensive lysis of adhesions.” AR 519. Since her hospitalization and surgery 17 in 2013, VanLengen has suffered from chronic abdominal/pelvic pain due to adhesion (scarring). 18 AR 111, 239, 551. In addition to her chronic abdominal pain, VanLengen claims she is impaired 19 by chronic headaches (see, e.g., AR 313, 807-809, 821, 844, 947, 1165); anxiety, depression and 20 memory and cognitive problems (see, e.g., AR 123, 149, 1189); and tarsal tunnel syndrome in her 21 feet (see, e.g., AR 284, 825-826, 833). 22 23 b. Treating Physicians The administrative record reflects that since her onset date, the vast majority of 24 VanLengen’s medical care has been provided by the Sonoma County Indian Health Project, where 25 she was treated by, among others, Ellen Kruusmagi, M.D. (her primary care physician), Neil 26 Steinberg, Psy. D. (her psychologist) and John Hollander, D.P.M. (her podiatrist). The record 27 reflects that Sonoma County Indian Health Project has its own pharmacy that filled many of the 28 prescriptions written by the doctors who treated VanLengen there. See, e.g., AR 562, 572, 735, 2 1 840. During the relevant period, VanLengen also was evaluated by and received treatment at 2 Sutter Medical Center of Santa Rosa and was referred out to other providers for treatment as well, 3 including Marcia Luisi, M.D., who conducted electrodiagnostic testing of VanLengen’s lower 4 extremities to evaluate for possible tarsal tunnel syndrome at the request of Dr. Hollander. United States District Court Northern District of California 5 i. Dr. Kruusmagi 6 Treatment Notes 7 VanLengen’s primary care physician was Dr. Ellen Kruusmagi, who has treated 8 VanLengen since February 2013. See AR 641. Treatment notes from Plaintiff’s visits reflect that 9 Dr. Kruusmagi provided ongoing treatment for Plaintiff’s abdominal pain, as well as for anxiety 10 and depression and difficulty sleeping. April 22, 2013 treatment notes reflect that VanLengen was 11 recovering from “extensive hospital stay for septicemia and multiple abdominal abcesses,” that 12 she “still ha[d] diffuse abdominal pain,” was on IV antibiotics and was “very weak.” AR-456-457. 13 Dr. Kruusmagi prescribed oxycodone/acetaminophen to be taken “as needed for pain.” Id. June 14 10, 2013 notes reflect that VanLengen was experiencing “sharp lasting” pelvic pain; Dr. 15 Kruusmagi observed that VanLengen’s abdominal pain was “most likely secondary to all of the 16 scarring she developed with her severe abdominal infection.” AR 448-449. Dr. Kruusmagi 17 prescribed 800 mg. ibuprofen tablets. Id. November 6, 2013 treatment notes reflecting 18 “intermittent abdominal pain,” and occasional migraine headaches. AR 436-440. Dr. Kruusmagi 19 again prescribed 800 mg. ibuprofen tablets and a “small amount of narcotic,” namely, 20 hydrocodone/acetaminophen, with a caution that “[n]arcotics should not be used on a regular basis 21 for this type of problem and that she expected the prescription to “last.” Id. 22 December 4, 2013 notes reflect that VanLengen was experiencing “intermittent abdominal 23 pain that sometimes extends to the sides of her chest” and depression. AR 428. Dr. Kruusmagi 24 ordered a pelvic ultrasound and prescribed Zoloft and Trazodone. Id. January 8, 2014 notes 25 reflect that Plaintiff was reporting continued abdominal pain and pain in her chest when she took 26 deep breaths. AR 422-423. Dr. Kruusmagi increased VanLengen’s Zoloft dose. Id. March 5, 27 2014 notes reflect that Plaintiff had experienced pelvic pain for “months” and that the 28 prescription-strength ibuprofen helped “a bit.” AR 405-407. April 9, 2014 notes reflect that Dr. 3 United States District Court Northern District of California 1 Kruusimagi told VanLengen that removal of her remaining ovary would likely help with pain 2 associated with menses and heavy bleeding but “might not relieve the everyday pelvic pain as this 3 may be related to adhesions from the extensive previous infection.” AR 584-586. 4 Treatment notes from a visit to Dr. Kruusmagi on June 13, 2014, after VanLengen had 5 undergone the hysterectomy discussed above, in May 2014, reflect that VanLengen was “anxious” and 6 “tearful,” had “jumpy” legs due to Trazadone, was experiencing abdominal pain at night and that 7 VanLengen’s abdomen was “tender to deep palpitation.” AR 571-572. September 3, 2014 notes 8 reflect that VanLengen’s chief complaint was abdominal pain, that she was still experiencing insomnia 9 and that she had gained weight. AR 558-564. Dr. Kruusmagi prescribed 800 mg. ibuprofen tablets for 10 pain and Zolpidem for sleep. Id. On December 31, 2014, Dr. Kruusmagi noted that Plaintiff had 11 experienced “ongoing intermittent abdominal pain worse with bowel movements.” AR 744. Dr. 12 Kruusmagi “asked her to start working on weight loss,” noting that Plaintiff had gained “about 20-30 13 pounds since her surgery.” Id. She refilled VanLengen’s prescription for Zolpidem. AR 746. 14 On January 28, 2015, Dr. Kruusmagi noted that VanLengen experienced “mild daily 15 abdominal pain” and that “frequently throughout the day” it “will flare up and she will have to rest, sit 16 down or lay down.” AR 734. Dr. Kruusmagi noted that the abdominal pain “wakes her up every 17 morning and worsens when she has a bowel movement.” Id. Dr. Kruusmagi also observed that 18 VanLengen was overweight and made a “strong recommendation” to lose weight “as this can help the 19 abdominal pain.” Id. Dr. Kruusmagi noted that VanLengen “look[ed] uncomfortable” but that she was 20 able to ambulate in and out of the clinic. AR 735. Dr. Kruusmagi refilled a prescription for 21 Sumatriptan for VanLengen’s migraine headaches during this visit. AR 735. 22 Notes from a March 4, 2015 visit reflect that VanLengen “has had constant daily abdominal 23 pain since the severe abdominal infection and septicemia in early 2013.” AR 716. Further, 24 VanLengen continued to report that “the pain wakes her up in the morning and that she has it all day.” 25 Id. The notes reflect that “[b]owel movements make it worse” and that while “[o]ccasionally she can 26 get into a position that will be comfortable for a short period of time” “[s]he is unable to sit in one 27 position for very long.” Id. Dr. Kruusmagi also noted that VanLengen was experiencing “almost daily 28 headaches” with sensitivity to bright lights, and that VanLengen took ibuprofen daily and Sumatriptan 4 1 occasionally. Id. Dr. Kruusmagi prescribed 800 mg. ibuprofen tablets for pain, sumatriptan for 2 headaches and zolpidem for sleep. AR 718. United States District Court Northern District of California 3 In treatment notes from a visit on April 22, 2014, Dr. Kruusmagi opined that VanLengen “has 4 two types of pain[:] . . . a general mid abdominal pain worse with BM and an epigastric pain that feels 5 like she is hungry.” AR 861. Dr. Kruusmagi assessed the second type of pain to be gastritis, while the 6 first she described as “adhesion pain,” that is, pain associated with the scarring in VanLengen’s 7 abdomen. Id. On August 5, 2015, Dr. Kruusmagi noted that VanLengen has “chronic abdominal 8 pain,” that she takes Motrin and Tylenol for the pain and that she “has been trying to lose weight as 9 this may help.” AR 833. Although VanLengen was “down to 194” pounds, Dr. Kruusmagi noted that 10 Plaintiff was still overweight. Id. Dr. Kruusmagi also noted that VanLengen had “corns and calluses” 11 on her feet and had recently seen Dr. Holland, a podiatrist. Id. 12 September 23, 2015 treatment notes reflect that VanLengen continued to experience abdominal 13 pain and complain of headaches. AR 820. Dr. Kruusmagi noted that VanLengen “does take 14 Propranolol” for her headaches but that she was “out of Sumatriptan.” Id.; see also AR 1029 (May 6, 15 2013 prescription for Propranolol for “cardiovascular therapy”). Dr. Kruusmagi refilled VanLengen’s 16 prescription for Sumatriptan and Zolpidem. AR 821. In notes from a November 18, 2015 visit, Dr. 17 Kruusmagi noted that the purpose of VanLengen’s visit was to manage abdominal pain with bowel 18 movements that VanLengen had experienced for “months” and migraines. AR 927. She noted that 19 VanLengen was experiencing increased abdominal pain and insomnia. Id. Dr. Kruusmagi wrote that 20 VanLengen had seen Dr. Hollander for bilateral Tarsal Tunnel Syndrome and that he had started her 21 on Neurontin. Id. She also noted that Dr. Holland had recommended compression stockings and 22 topical NSAIDs but that VanLengen was unable to get them because they were not covered by 23 insurance. Id. 24 On January 6, 2016, Dr. Kruusmagi saw VanLengen again for abdominal pain, nausea and 25 vomiting. AR 916. Dr. Kruusmagi referred VanLengen to the Emergency Room due to the severity of 26 her symptoms. AR 917; see also AR 939 (reflecting that VanLengen went to the Emergency Room 27 that day and that a CT scan showed a kidney stone that had also be observed in earlier CT scan in 28 2013, which was removed using uteroscopy with laser lithotripsy). 5 1 RFC Questionnaires 2 Dr. Kruusmagi completed four questionnaires in connection with VanLengen’s SSI 3 application: 1) a Residual Functional Capacity Questionnaire dated March 12, 2014, AR 1005- 4 1007; 2) a Residual Functional Capacity Questionnaire dated January 28, 2015, AR 641-642; 3) a 5 Headache Residual Functional Capacity Questionnaire, dated March 4, 2015, AR 807-809; and 4) 6 a Physical Assessment, dated February 24, 2016, AR 996-998. In the RFC questionnaire dated March 12, 2014, Dr. Kruusmagi described VanLengen’s United States District Court Northern District of California 7 8 diagnosis as “chronic abdominal pain due to adhesions and previous surgery.” AR 402. She 9 opined that VanLengen’s symptoms (lower abdominal pain “much worse with urination and 10 Bowel movements”) are “constantly” severe enough to interfere with the attention and 11 concentration required to perform simple work-related tasks. Id. In response to questions 12 addressing VanLengen’s ability to sit, Dr. Kruusmagi opined that VanLengen can sit for thirty 13 minutes at a time for a total of four hours in an eight-hour day and stand/walk for thirty minutes 14 at a time for three of eight hours. Id. She checked “no” in response to the question “Does your 15 patient need a job which permits shifting positions at will from sitting, standing or walking” with 16 the following a handwritten explanation: “(in pain all day) shifting won’t help.” Id. Dr. 17 Kruusmagi indicated that VanLengen would need to take unscheduled breaks every thirty minutes 18 and that the required breaks would need to be 30 minutes long. Id. The next question addressed 19 limitations on lifting and carrying. Id. at 403. Dr. Kruusmagi opined that VanLengen can 20 occasionally lift up to ten pounds and never lift more than ten pounds. Id. Dr. Kruusmagi 21 answered “no” in response to the question that followed, which asked whether VanLengen had 22 trouble with “reaching handling or fingering.” Id. She wrote in the margin next to this question, 23 “no probs with hands – just can’t sit.” Id. In response to a question asking how often Plaintiff 24 would be “likely to be absent from work” as a result of her impairments, Dr. Kruusmagi checked 25 the option for “More than four times a month” and wrote under the option she had checked “much 26 more.” Id. Finally, she answered “no” in response to the question of whether VanLengen was 27 “physically capable of working an 8 hour day, 5 days a week employment on a sustained basis.” 28 Id. 6 United States District Court Northern District of California 1 Just under a year later, on January 28, 2015, Dr. Kruusmagi completed the same Residual 2 Functional Capacity Questionnaire a second time. Her answers were the same or similar to the 3 previous RFC questionnaire. She again answered the questions about sitting limitations by stating 4 that VanLengen could sit no more than thirty minutes at one time and no more than four hours in 5 an eight-hour work day. AR 641. Likewise, she again answered “no” in the response to the 6 question asking whether VanLengen needed a job that would allow her to shift positions, with a 7 handwritten note next to the question saying that “this will not help.” Id. She opined that 8 VanLengen would need to take unscheduled breaks “at least hourly” (previously she said every 9 thirty minutes) and the breaks would last thirty minutes (the same as in the previous RFC 10 questionnaire). Id. As in the previous questionnaire, Dr. Kruusmagi stated that VanLengen could 11 lift ten pounds occasionally and could never lift more than ten pounds. AR 642. She again 12 checked the “no” box in response to the question about repetitive reaching, handling or fingering, 13 with a handwritten notation stating “hands – fingers and arms work[.] It is the abdominal pain that 14 is the limiting factor.” Id. Although the follow-on question (asking the doctor to provide the 15 percentage of the work day the claimant could perform certain activities using her hands, fingers 16 and arms) was to be answered only if the answer to the previous question was “yes,” Dr. 17 Kruusmagi filled in the blanks for the specified activities, indicating that VanLengen’s ability to 18 use her hands, fingers and arms to perform them could not exceed 50% of the work day. Id. Dr. 19 Kruusmagi again checked the box indicating VanLengen would miss more than four days a month 20 of work and checked “no” in response to the question as to whether VanLengent was capable of 21 “working an 8 hour day, 5 days a week employment on a sustained basis.” Id. 22 On March 4, 2015, Dr. Kruusmagi completed a Headache Residual Functional Capacity 23 Questionnaire. The first half of the questionnaire posed questions specifically related to 24 VanLengen’s headache symptoms and limitations that were not included on the RFC 25 questionnaires discussed above. In response to these questions, Dr. Kruusmagi stated that 26 VanLengen suffered from headaches six days a week that were “severe so that [they] interfere 27 with activity.” AR 807. She stated that VanLengen’s headaches were triggered by bright light 28 and that to make them better she needed to lie in a dark room, and that ibuprofen and Sumatriptan 7 1 help. Id.; see also AR 808 (stating that ibuprofen and Sumatriptan provide “moderate relief”). 2 She stated that VanLengen’s headaches caused impaired sleep. AR 807. Dr. Kruusimagi 3 attributed VanLengen’s headaches to “migraine” and “abdominal pain,” and also opined that 4 “emotional factors” contribute “somewhat” to VanLengen’s headaches. AR 808. She stated that 5 the medications used to treat VanLengen’s headaches (ibuprofen 800 mg. and Sumatriptan) cause 6 “some fatigue.” Id. Dr. Kruusmagi states that VanLengen would not be able to work when she 7 had headaches, that she would need to take unscheduled breaks five times a week due to 8 headaches and would need these breaks to last at least two hours. Id. United States District Court Northern District of California 9 The Headache RFC questionnaire went on to ask a series of questions about VanLengen’s 10 physical limitations. AR 808-809. In this section, Dr. Kruusmagi again stated that VanLengen 11 could lift ten pounds occasionally and could never lift more than ten pounds. AR 808. The next 12 question asked how long VanLengen could sit at one time and Dr. Kruusmagi gave the same 13 response she had given in the two RFC questionnaires discussed above, namely, that VanLengen 14 could not sit for more than 30 minutes at a time. AR 809. She opined that VanLengen would 15 need to sit or lie down for a total of four hours of an eight-hour day. Id. She further stated that 16 VanLengen’s ability to sit or stand was less than two hours a day. Id. As in the previous 17 questionnaires, Dr. Kruusmagi stated that VanLengen was likely to miss more than four days of 18 work a month due to her impairments. Id 19 Finally, on February 24, 2016, Dr. Kruusmagi completed a Physical Assessment. AR 996- 20 998. In that questionnaire, Dr. Kruusmagi stated that VanLengen’s diagnosis was “chronic 21 abdominal pain due to previous severe abdominal internal infections and subsequent bowel 22 adhesion and scar[r]ing.” AR 997. She listed constipation and diarrhea as side-effects VanLengen 23 experienced due to medications. Id. Dr. Kruusmagi opined that VanLengen could sit no more 24 than a total of three hours of an eight-hour work day and stand or walk no more than two hours a 25 day. Id. She again stated that VanLengen would need to take breaks every 30 minutes; she 26 estimated these breaks would last 15-20 minutes. Id. Dr. Kruusmagi found the same restrictions 27 as to lifting and carrying that she had found in the forms discussed above. Id. In response to the 28 question whether VanLengen had limitations as to repetitive reaching, handling or fingering, Dr. 8 1 Kruusmagi for the first time checked the “yes” box. She went on to provide percentages for 2 various activities, opining that Plaintiff’s limitations with respect to reaching, handling and 3 fingering would limit her to performing these activities no more than 25% of the work day. 4 Again, a handwritten notation next to this question made clear that Dr. Kruusmagi did not see 5 these limitations as primary; she wrote, “It is more sitting in place greater than 30 min. that is the 6 difficulty.” Id. She again opined that VanLengen would miss more than four days of work a 7 month due to her impairments. AR 998. 8 United States District Court Northern District of California 9 ii. Dr. Steinberg Dr. Steinberg, a psychologist at the Sonoma County Indian Health Project, began seeing 10 VanLengen in August 2014 for psychotherapy and pain management. AR 707. Treatment notes 11 indicate that he saw VanLengen for treatment approximately twice a month and sometimes 12 weekly. AR 714-715, 723, 724, 730, 731, 740-742, 747-750. He diagnosed VanLengen with 13 “chronic psychogenic pain.” AR 714. Dr. Steinberg completed a Cognitive Functioning 14 Evaluation on December 30, 2014 and January 7, 2015. AR 1180. He administered the Wechsler 15 Adult Intelligence Scale, Third Edition (“WAIS-III”). VanLengen’s full scale score, verbal 16 composite score and verbal comprehension scores were all “borderline”, with working memory 17 scored as “extremely low,” processing speed at “low average,” performance composite score at 18 “beginning average” and perceptual organization at “average.” Id. Dr. Steinberg concluded based 19 on these scores that VanLengen’s “verbal learning capacity is impoverished” and that her low 20 scores with respect to working memory, verbal composite and verbal comprehension make it 21 “very challenging for this patient to function in her daily life.” Id. 22 Dr. Steinberg completed two RFC questionnaires: 1) a Residual Functional Capacity 23 Questionnaire dated February 16, 2015, AR 707-708; and 2) a Headache Residual Functional 24 Capacity Questionnaire, also dated February 16, 2015, AR 1009-1011. In the former, Dr. 25 Steinberg listed VanLengen’s diagnosis as “Pain Disorder: Psychological and Medical” and 26 “Major Depression.” AR 707. He listed VanLengen’s symptoms as “pain, hopelessness, 27 helplessness, impoverished energy, cognitive deficit” and opined that these symptoms would 28 “frequently” be “severe enough to interfere with the attention and concentration required to 9 1 perform simple work-related tasks.” Id. Dr. Steinberg deferred numerous questions to 2 VanLengen’s medical provider, leaving blank the questions about side-effects of medications, 3 VanLengen’s ability to use her hands and arms, and the number of days of work she would miss 4 each month due to her symptoms. Id. at 707-708. He did answer the questions about 5 VanLengen’s ability to sit, stand and walk, opining that VanLengen could sit for 60 minutes at a 6 time for a total of no more than four hours a day and could stand and walk no more than a total of 7 two hours a day. AR 707. He also indicated that VanLengen would need to take ten-minute 8 breaks every thirty minutes. Id. In the headache RFC questionnaire that Dr. Steinberg completed on the same day, he again United States District Court Northern District of California 9 10 wrote that VanLengen’s diagnosis was “Chronic Pain, Psychological [and] Medical.” AR 1009. 11 He noted that headache was “not [Plaintiff’s] primary symptom” and elsewhere in the form 12 crossed out “headache” and replaced it with “chronic pain.” AR 1009-1010. In response to a 13 number of the headache questions, Dr. Steinberg wrote N/A (not applicable). Id. He again opined 14 that VanLengen would need to take unscheduled ten-minute breaks every thirty minutes. AR 15 1010. On this form, Dr. Steinberg responded to the question about how many days of work 16 VanLengen would miss due to her impairments, checking the box for “more than four times a 17 month.” AR 1011. He also listed as an additional limitation that would affect VanLengen’s 18 ability to work VanLengen’s “severe cognitive learning limitations.” AR 1011. 19 20 B. Legal Background for Determination of Disability: Five-Step Analysis Disability insurance benefits are available under the Social Security Act (the “Act”) when 21 an eligible claimant is unable “to engage in any substantial gainful activity by reason of any 22 medically determinable physical or mental impairment . . . which has lasted or can be expected to 23 last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A); see also 24 42 U.S.C. § 423(a)(1). The Commissioner has established a sequential, five-part evaluation 25 process to determine whether a claimant is disabled under the Act. See Tackett v. Apfel, 180 26 F.3d 1094, 1098 (9th Cir. 1999) (citing 20 C.F.R. § 404.1520). The claimant bears the burden of 27 proof at steps one through four, but the burden shifts to the Commissioner at step five. Id. “If a 28 claimant is found to be ‘disabled’ or ‘not disabled’ at any step in the sequence, there is no need to 10 1 consider subsequent steps.” Id. At step one, the Administrative Law Judge (“ALJ”) considers whether the claimant is 2 3 presently engaged in “substantial gainful activity.” 20 C.F.R. § 404.1520(a)(4)(i). If she is, the 4 ALJ must find that she is not disabled. Id. If she is not engaged in substantial gainful activity, the 5 ALJ continues the analysis. See id. At step two, the ALJ considers whether the claimant has “a severe medically determinable United States District Court Northern District of California 6 7 physical or mental impairment,” or combination of such impairments, which meets the 8 regulations’ twelve-month duration requirement. 20 C.F.R. §§ 404.1509, 404.1520(a)(4)(ii). An 9 impairment or combination of impairments is severe if it “significantly limits [the claimant’s] 10 physical or mental ability to do basic work activities.” 20 C.F.R. § 404.1520(c). If the claimant 11 does not have a severe impairment, disability benefits are denied. 20 C.F.R. § 404.1520(a)(4)(ii). 12 If the ALJ determines that one or more impairments are severe, the ALJ proceeds to the next step. 13 See id. At step three, the ALJ compares the medical severity of the claimant’s impairments to a 14 15 list of impairments that the Commissioner has determined are disabling (“Listings”). See 20 16 C.F.R. § 404.1520(a)(4)(iii); see also 20 C.F.R. Pt. 404, Subpt. P, App. 1. If one or a combination 17 of the claimant’s impairments meets or equals the severity of a listed impairment, she is disabled. 18 20 C.F.R. § 404.1520(a)(4)(iii). Otherwise, the analysis continues. See id. At step four, the ALJ considers the claimant’s residual functional capacity (“RFC”) in light 19 20 of her impairments and whether she can perform past relevant work. 20 C.F.R. 21 § 404.1520(a)(4)(iv) (citing 20 C.F.R. § 404.1560(b)). If she can perform past relevant work, she 22 is not disabled. Id. If she cannot perform past relevant work, the ALJ proceeds to the final step. 23 See id. 24 At step five, the burden shifts to the Commissioner to demonstrate that the claimant, in 25 light of her impairments, age, education, and work experience, can perform other jobs in the 26 national economy. Johnson v. Chater, 108 F.3d 178, 180 (8th Cir. 1997); see also 20 C.F.R. 27 § 404.1520(a)(4)(v). If the Commissioner meets this burden, the claimant is not disabled. 28 See 20 C.F.R. § 404.1520(f). Conversely, the claimant is disabled and entitled to benefits if there 11 1 2 are not a significant number of jobs available in the national economy that she can perform. Id. C. 3 1. The Hearing A hearing on VanLengen’s application for SSI was held on April 1, 2016. AR 48. ALJ 4 5 Suzanne Krolikowski presided over the hearing. VanLegen was represented by an attorney, Negin 6 Mohajeri. A vocational expert (“VE”), Luis Mas, also offered testimony. 2. The ALJ’s Decision 7 In her decision, the ALJ found at step one that VanLengen had not engaged in substantial 8 9 United States District Court Northern District of California Procedural Background gainful activity since December 26, 2013, the amended alleged onset date. AR 31. She found at 10 step two that VanLengen suffered from the following severe impairments: “pain disorder/chronic 11 abdominal and pelvic pain status post infection and scarring status post surgery, migraines, 12 bilateral tarsal tunnel syndrome, major depressive disorder, and organic mental disorder.” Id. At 13 step three, the ALJ found that VanLengen’s impairments do not meet or medically equal the 14 severity of any listed impairment. AR 32. At step four, the ALJ found VanLengen had the 15 residual functional capacity to perform light work, except: she can understand, remember, and carry out simple instructions and make simple work related decisions. She can tolerate occasional interaction with coworkers, supervisors, and no interaction with the public. She can occasionally climb ramps and stairs and cannot climb ropes, ladders and scaffolds. She can have no exposure to light brighter than that typically found in an indoor work environment such as an office or retail store. 16 17 18 19 20 AR 33. The ALJ concluded that VanLengen has no past relevant work, but she could perform 21 other work as a small parts assembler, production assembler, and photocopy worker and that these 22 jobs exist in significant number in the national economy. AR 39-40. On that basis, the ALJ 23 concluded that VanLengen was not disabled. 24 25 D. Contentions of the Parties on Summary Judgment VanLengen argues that the ALJ erred in rejecting the opinions of Dr. Kruusmagi, whose 26 opinions about VanLengen’s limitations should have been given more weight because she is a 27 treating physician. According to VanLengen, because the ALJ did not offer adequate reasons for 28 refusing to credit Dr. Kruusmagi’s opinions, her finding that VanLengen is not disabled is not 12 United States District Court Northern District of California 1 supported by substantial evidence. The Commissioner, in turn, contends the ALJ’s decision is 2 supported by substantial evidence and that she provided adequate reasons for rejecting the 3 opinions of Dr. Kruusmagi in weighing the evidence and determining that VanLengen is not 4 disabled. 5 III. ANALYSIS 6 A. 7 District courts have jurisdiction to review the final decisions of the Commissioner and General Legal Standards Governing Review of Disability Determinations 8 have the power to affirm, modify, or reverse the Commissioner’s decisions, with or without 9 remanding for further hearings. 42 U.S.C. § 405(g); see also 42 U.S.C. § 1383(c)(3). When 10 reviewing the Commissioner’s decision to deny benefits, the Court “may set aside a denial of 11 benefits only if it is not supported by substantial evidence or if it is based on legal error.” Thomas 12 v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (quoting Jamerson v. Chater, 112 F.3d 1064, 1066 13 (9th Cir. 1997)) (quotation marks omitted). Substantial evidence must be based on the record as a 14 whole and is “such relevant evidence as a reasonable mind might accept as adequate to support a 15 conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971). Substantial evidence “must be 16 ‘more than a mere scintilla,’ but may be less than a preponderance.” Molina v. Astrue, 674 F.3d 17 1104, 1110–11 (9th Cir. 2012) (quoting Desrosiers v. Sec’y of Health and Human Servs., 846 F.2d 18 573, 576 (9th Cir. 1988)). Even if the Commissioner’s findings are supported by substantial 19 evidence, “the decision should be set aside if the proper legal standards were not applied in 20 weighing the evidence and making the decision.” Benitez v. Califano, 573 F.2d 653, 655 (9th Cir. 21 1978). 22 The Court must review the record as a whole, considering the evidence that supports and 23 the evidence that detracts from the Commissioner’s conclusion. Smolen v. Chater, 80 F.3d 1273, 24 1279 (9th Cir. 1996) (citing Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985)). “Where 25 evidence is susceptible to more than one rational interpretation, it is the ALJ’s conclusion that 26 must be upheld.” Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). Reviewing courts “are 27 constrained to review the reasons the ALJ asserts” and “cannot rely on independent findings” to 28 affirm the ALJ’s decision. Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003) (citing SEC v. 13 1 Chenery Corp., 332 U.S. 194, 196 (1947)). If the Court identifies defects in the administrative proceeding or the ALJ’s conclusions, 2 3 the Court may remand for further proceedings or for a calculation of benefits. See Garrison v. 4 Colvin, 759 F.3d 995, 1019−21 (9th Cir. 2014). 5 United States District Court Northern District of California 6 B. Legal Standards Governing Consideration of Opinions by Treating Physicians “Cases in this circuit distinguish among the opinions of three types of physicians: (1) those 7 who treat the claimant (treating physicians); (2) those who examine but do not treat the claimant 8 (examining physicians); and (3) those who neither examine nor treat the claimant (nonexamining 9 physicians).” Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). “[T]he opinion of a treating 10 physician is . . . entitled to greater weight than that of an examining physician, [and] the opinion of 11 an examining physician is entitled to greater weight than that of a non-examining physician.” 12 Garrison, 759 F.3d at 1012. 13 “To reject [the] uncontradicted opinion of a treating or examining doctor, an ALJ must 14 state clear and convincing reasons that are supported by substantial evidence.” Ryan v. Comm’r of 15 Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) (citations omitted). “[T]he opinion of a 16 nonexamining physician cannot by itself constitute substantial evidence that justifies the rejection 17 of the opinion of either an examining physician or a treating physician.” Id at 1202 (quoting 18 Lester, 81 F.3d at 831). The Ninth Circuit has recently emphasized the high standard required for 19 an ALJ to reject an opinion from a treating or examining doctor, even where the record includes a 20 contradictory medical opinion: 21 22 23 24 25 26 27 28 “If a treating or examining doctor’s opinion is contradicted by another doctor’s opinion, an ALJ may only reject it by providing specific and legitimate reasons that are supported by substantial evidence.” Id. This is so because, even when contradicted, a treating or examining physician’s opinion is still owed deference and will often be “entitled to the greatest weight . . . even if it does not meet the test for controlling weight.” Orn v. Astrue, 495 F.3d 625, 633 (9th Cir. 2007). An ALJ can satisfy the “substantial evidence” requirement by “setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and making findings.” Reddick [v. Chater, 157 F.3d 715, 725 (9th Cir. 1998)]. “The ALJ must do more than state conclusions. He must set forth his own interpretations and explain why they, rather than the doctors’, are correct.” Id. (citation omitted). 14 Where an ALJ does not explicitly reject a medical opinion or set forth specific, legitimate reasons for crediting one medical opinion over another, he errs. See Nguyen v. Chater, 100 F.3d 1462, 1464 (9th Cir. 1996). In other words, an ALJ errs when he rejects a medical opinion or assigns it very little weight while doing nothing more than ignoring it, asserting without explanation that another medical opinion is more persuasive, or criticizing it with boilerplate language that fails to offer a substantive basis for his conclusion. See id. 1 2 3 4 United States District Court Northern District of California 5 Garrison, 759 F.3d at 1012–13. Whether the ALJ’s Erred in Rejecting Dr. Kruusmagi’s Opinions 6 C. 7 ALJ Krolikowski gave “little weight” to the opinions that Dr. Kruusmagi expressed on the 8 four questionnaires described above, offering the following reasons for doing so: 1) “the 9 assessments contain many different and conflicting limitations without any specific explanation”; 10 2) “the treatment record . . . does not support the limitations found in these assessments”: 3) Dr. 11 Kruusmagi noted in the February 2016 assessment that she completed the form “together” with 12 Plaintiff, leading the ALJ to conclude that Dr. Kruusmagi “seemed to uncritically accept as true 13 most, if not all, of what the claimant reported.” AR 38. The Court finds that the reasons offered 14 by ALJ Krolikowski for rejecting the opinions of Dr. Krolikowski were legally inadequate and not 15 supported by substantial evidence except with respect to limitations reflected on the two RFC 16 forms relating to Plaintiff’s ability to use her fingers, hands and arms. a. “conflicting limitations” 17 The ALJ offers one example of “conflicting limitations” in Dr. Kruusmagi’s opinons: “she 18 19 opines that the claimant cannot sit, but then states she can for 30 minutes, then for less than two 20 hours, then for three hours.” AR 38. The ALJ opines, “[w]hile it is possible she believes the 21 claimant’s sitting ability had improved based on her treatment, there is no reason for these 22 limitations and differences.” Id. This reason for rejecting Dr. Kruusmagi’s opinions is not 23 specific and legitimate and is not supported by substantial evidence.2 First, ALJ Krolikowski mischaracterizes Dr. Kruusmagi’s opinion when she states that 24 25 26 27 28 As discussed above, the standard that applies to the weighing of a treating physician’s opinion depends on whether or not there is conflicting evidence in the record. Although the ALJ did not cite to it, a report by consultative examiner Dr. Robert Tang, who examined Plaintiff once and reviewed some of her medical records, concludes that Plaintiff has “[n]o limitations sitting.” AR 1193. Therefore, the Court applies the specific and legitimate reasons standard to Dr. Kruusmagi’s opinions about Plaintiff’s sitting limitations. 15 2 United States District Court Northern District of California 1 “she opines that the claimant cannot sit.” The only evidence in the record that could possibly 2 support this statement is the notation on the March 12, 2014 RFC questionnaire next to the 3 questions about limitations relating to the claimant’s use of hands, fingers and arms, where Dr. 4 Kruusmagi wrote “no probs with hands – just can’t sit.” AR 1006. ALJ Krolikowski ignores, 5 however, Dr. Kruusmagi’s very specific responses to the previous question on the same 6 questionnaire, which specifically addressed VanLengen’s limitations with respect to sitting. AR 7 1005. These responses made clear that Kruusmagi’s opinion as to VanLenren’s limitations was 8 that VanLengen could sit for no more than 30 minutes at a time and no more than four hours in an 9 eight hour work day. The only reasonable interpretation of the notation on the next page was that 10 Dr. Kruusmagi’s statement that VanLengen “just can’t sit” was intended as a shorthand 11 referencing the fairly significant limitations identified by Dr. Kruusmagi in response to the 12 question on the previous page of the same questionnaire. 13 Second, the opinions Dr. Kruusmagi offered in the questionnaires she completed in support 14 of VanLengen’s application are consistent with respect to VanLengen’s ability to sit. In the RFC 15 questionnaire Dr. Kruusmagi completed January 28, 2015, almost a year after the once containing 16 the “can not sit” notation, she again opined that VanLengen could not sit more than thirty minutes 17 at once or more than four hours in a work day. AR 641. And in the Physical Assessment that Dr. 18 Kruusmagi completed almost a year after that, she opined that VanLengen would need to take 19 unscheduled breaks “every ½ hour” and could sit a total of three hours out of an eight-hour day. 20 AR 997. While the total hours that Dr. Kruusmagi thought VanLengen could sit during the 21 course of an eight-hour work day was somewhat lower than in her previous assessments, it is 22 consistent with the medical records, which reflect that in a visit to Dr. Kruusmagi a little over a 23 month before Dr. Kruusmagi completed the Physical Assessment VanLengen’s abdominal pain 24 was so severe that Dr. Kruusmagi referred her to the Emergency Room. AR 916-917. 25 ALJ Krolikowski also fabricates an inconsistency that does not exist when she states that 26 Dr. Kruusmagi opined that Plaintiff could sit “for 30 minutes, then for less than two hours, then 27 for 3 hours.” AR 38. The thirty minutes opinion, as discussed above, relates to VanLengen’s 28 ability to sit at one time without a break and Dr. Kruusmagi’s opinion is consistent on that 16 1 question in all of her assessments. The three hours opinion relates to the total number of hours 2 Plaintiff is able to sit during an eight-hour day (assuming she is allowed to take a break or shift her 3 position). This is a comparison of apples to oranges and thus offers no support for ALJ 4 Krolikowski’s conclusion. Her reference to two hours is even more perplexing. That figure is 5 provided only on the headache assessment and relates the amount of time Plaintiff’s headaches 6 typically last (which is also the amount of time Dr. Kruusmagi opined VanLengen needs to rest 7 when she gets a headache). AR 807-808. In other words, this opinion was unrelated to Dr. 8 Kruusmagi’s opinions about the sitting limitations associated with VanLengen’s abdominal pain. United States District Court Northern District of California 9 Finally, to the extent that ALJ Krolikowski relies on purported inconsistencies in Dr. 10 Kruusmagi’s opinions to reject opinions about limitations other than the sitting limitations that are 11 the subject of her example, this reasons is not adequate. Even assuming that the specific and 12 legitimate reasons standard applies, ALJ Krolikowski was required to identify specific 13 inconsistencies relevant to whatever opinions she was rejecting. Conclusory or boilerplate 14 statements that Dr. Kruusmagi’s opinions were inconsistent do not suffice. 15 16 b. “the treatment record” ALJ Krolikowski makes three specific points about the treatment record in support of her 17 conclusion that Dr. Kruusmagi’s opinions should be afforded little weight. First, she states that 18 the limitations associated with VanLengen’s headaches are “wholly without support” because the 19 record “shows the claimant had limited treatment for headaches, with improvement on 20 medications, as averred by the claimant in her testimony.” AR 38. Second, she states that there 21 are no treatment records that support the limitations Dr. Kruusmagi found as to VanLengen’s 22 fingers, hands and arms. Id. Third, the ALJ states that “[t]he need for lifting up to 10 pounds, 23 unscheduled breaks, absences and preclusion from work activity is not supported by the treatment 24 record, which demonstrated improvement in foot pain, as well as abdominal pain.” Id. While the 25 second reason provides an adequate basis for giving little weight to the limitations Dr. Kruusmagi 26 listed on the RFC questionnaires for use of Plaintiff’s fingers hands and arms, these are not 27 legitimate reasons for rejecting the other limitations listed by Dr. Kruusmagi in her assessments; 28 nor is the ALJ’s rejection of those opinions supported by substantial evidence in the record. 17 United States District Court Northern District of California 1 With respect to the percentages Dr. Kruusmagi provided in the January 28, 2015 RFC 2 questionnaire and the February 24, 2016 Physical Assessment in response to questions about 3 Plaintiff’s limitations relating to use of her fingers, hands and arms, it is unclear from Dr. 4 Kruusmagi’s treatment records how she arrived at these opinions. The Court has carefully 5 reviewed Dr. Kruusmagi’s treatment notes and finds no specific references to problems with 6 VanLengen’s fingers, hands or arms; nor does it appear that Dr. Kruusmagi ever diagnosed or 7 treated VanLengen for such problems. While it is not inconceivable that Dr. Kruusmagi’s 8 opinions about VanLengen’s ability to perform such tasks as fine manipulation with her fingers 9 were based on VanLengen’s headaches or abdominal pain (which are addressed extensively in Dr. 10 Kruusmagi’s treatment notes), the ALJ’s conclusion that these limitations were not supported by 11 the record is a clear and convincing reason (assuming without deciding that that higher standard 12 applies) for rejecting of Dr. Kruusmagi’s opinions as to those specific limitations. 13 The absence of treatment notes or other medical records relating to VanLengen’s use of her 14 hands, fingers and arms does not, however, offer a specific and legitimate – or clear and 15 convincing – reason to reject Dr. Kruusmagi’s opinions regarding VanLengen’s other limitations. 16 The other two points made by ALJ Krolikowski regarding the medical record also don’t meet 17 these standards. First, the Court addresses the medical record related to VanLengen’s headaches. 18 According to the ALJ, VanLengen’s treatment history does not support Dr. Kruusmagi’s opinions 19 as to severity of VanLengen’s headaches and the associated limitations, especially as 20 VanLengen’s headaches improve with medication. Yet Dr. Kruusmagi’s notes are replete with 21 references to almost daily headaches (see above) and she repeatedly refilled VanLengen’s 22 prescriptions for prescription-strength Ibuprofen and for Sumatriptan, the two medications she 23 prescribed to treat Plaintiff’s headaches. See AR 808 (listing only these two medications as the 24 medications Dr. Kruusmagi used to treat Plaintiff’s headaches). Both Dr. Kruusmagi and 25 VanLengen believed these medications were helpful but neither offered the opinion that they 26 provided immediate or complete relief. See AR 808 (Dr. Kruusmagi’s opinion that 800 mg. 27 Ibuprofen and Sumatriptan offered “moderate relief”); 69 (VanLengen’s testimony that headache 28 medication “does help”). 18 United States District Court Northern District of California 1 Other medical records also refer to VanLengen’s long history of suffering from headaches, 2 and treatment records from doctors who treated VanLengen before Dr. Kruusmagi became 3 VanLengen’s primary care physician show that VanLengen was treated for headaches for many 4 years. See, e.g., AR 313 (treatment note for 2012 Santa Rosa Cardiology Medical Group referring 5 to “long history of headaches” and noting that a few months earlier her headache was so severe 6 she went to the Emergency Room); AR 787-792 (treatment records from multiple doctor visits in 7 2012 referring to “chronic daily headache” and prescribing propranolol). Certainly, there is 8 nothing in the record that contradicts Dr. Kruusmagi’s opinion that even with the medications she 9 prescribed, VanLengen has headaches approximately five times a week and that she typically 10 needs to rest two hours when they occur, as is stated in Dr. Kruusmagi’s Headache RFC 11 questionnaire. 12 The ALJ’s conclusory statement that the treatment record “demonstrated improvement in 13 foot pain, as well as abdominal pain” also is not a legitimate reason for rejecting Dr. Kruusmagi’s 14 opinions about VanLengen’s “need for lifting [no more than] 10 pounds, unscheduled breaks, 15 absences and preclusion from work activity.” For one thing, Dr. Kruusmagi did not reference 16 VanLengen’s diagnosis of carpal tunnel in her feet in any of the assessments and there is no 17 indication that any of the limitation listed by Dr. Kruusmagi were based on foot pain. Rather, with 18 the exception of the Headache RFC questionnaire, all of Dr. Kruusmagi’s assessments listed only 19 Plaintiff’s chronic abdominal pain as her diagnosis. Indeed, VanLengen did not begin to 20 experience foot pain until the fall of 2015, when she began to see Dr. Hollander; she was referred 21 out for electrodiagnostic testing in September 2015, and was diagnosed with tarsal tunnel 22 syndrome at that point. AR 825828. Yet Dr. Kruusmagi completed three out of four of the 23 assessments before VanLengen experienced foot pain or received this diagnosis and those 24 assessments included the limitations that the ALJ declined to credit. As VanLengen’s foot pain 25 clearly had nothing to do with these limitations, any improvement in VanLengen’s foot pain has 26 no bearing on whether the medical record supports those limitations. 27 Nor is there any evidence in the medical records to support the ALJ’s conclusory statement 28 that VanLengen’s abdominal pain had improved such that the limitations Dr. Kruusmagi identified 19 1 should not be credited. This reason also is not “specific” as the ALJ did not point to any specific 2 evidence in the medical record to support her statement that Plaintiff’s abdominal pain had 3 improved. In sum, ALJ Krolikowski improperly relied on the treatment records to conclude the 4 Dr. Kruusmagi’s opinions about Plaintiff’s limitations should not be credited.3 5 c. completion of one assessment “together” In one treatment note, Dr. Kruusmagi wrote that VanLengen brought in “a form for her United States District Court Northern District of California 6 7 disability evaluation” and that “[w]e filled this out together.” AR 1046. As the note was from a 8 visit on February 24, 2016, it apparently refers to the last of the four assessments completed by Dr. 9 Kruusmagi, namely, the Physical Assessment completed on that same date. Based on this note, 10 ALJ Krolikowski concluded that Dr. Kruusmagi “thus apparently relied quite heavily on the 11 subjective report of symptoms and limitations provided by the claimant, and seemed to 12 uncritically accept as true most, if not all, of what the claimant reported.” AR 38. There are two 13 glaring problems with the ALJ’s reasoning. First, as discussed above, the limitations described in the Physical Assessment are 14 15 consistent with the limitations listed in the assessments Dr. Krussmagi completed in previous 16 years yet there is no evidence that Dr. Kruusmagi completed any of the earlier forms “together” 17 with VanLengen. Under these circumstances, a reasonable interpretation of Dr. Kruusmagi’s note 18 is simply that she and VanLengen were “together” in the appointment when the form was 19 completed; any possible inference that VanLengen simply dictated the limitations to Dr. 20 Kruusmagi when she completed the form are negated by the fact that the same limitations are also 21 included in the assessments that Dr. Kruusmagi had previously completed without VanLengen’s 22 participation. The second problem is that ALJ’s Krolikowski’s reasoning relies on her conclusion 23 24 elsewhere in the decision that VanLengen’s own reporting of the severity of her symptoms was 25 26 27 28 3 The Court also notes that ALJ Krolikowski ignored entirely the diagnosis of VanLengen’s treating psychologist, Dr. Steinberg, that VanLengen suffered from “psychogenic pain,” that is, that her chronic pain was at least partially the result of psychological factors. See AR 707, 714, 1009. As noted above, Dr. Steinberg agreed with Dr. Kruusmagi as to the severity of VanLengen’s limitations. 20 United States District Court Northern District of California 1 not credible. “[T]he ALJ is responsible for determining credibility, resolving conflicts in medical 2 testimony, and for resolving ambiguities.” Reddick, 157 F.3d at 722 (9th Cir. 1998). “The ALJ’s 3 findings, however, must be supported by specific, cogent reasons.” Id. “In evaluating the 4 credibility of a claimant’s testimony regarding subjective pain, an ALJ must engage in a two-step 5 analysis.” Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009) (citation omitted); see also 6 Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012). “First, the ALJ must determine whether the 7 claimant has presented objective medical evidence of an underlying impairment which could 8 reasonably be expected to produce the pain or other symptoms alleged.” Ligenfelter v. Astrue, 504 9 F.3d 1028, 1036 (9th Cir. 2007) (internal quotation marks and citation omitted); see also Molina, 10 674 F.3d at 1112. “Second, if the claimant meets this first test, and there is no evidence of 11 malingering, the ALJ can reject the claimant’s testimony about the severity of her symptoms only 12 by offering specific, clear and convincing reasons for doing so.” Ligenfelter, 504 F.3d at 1036 13 (internal quotation marks and citation omitted). 14 The ALJ found that VanLengen’s “medically determinable impairments could reasonably 15 be expected to cause the alleged symptoms.” AR 34. The ALJ did not find that VenLengen was 16 malingering. Therefore, the ALJ was required to offer “specific, clear and convincing reasons” for 17 rejecting VanLengen’s testimony with respect to the severity of her symptoms. The ALJ did not 18 meet that standard. Rather, the reasons she offered for her credibility findings are riddled with 19 legal and factual errors. For example, ALJ Krolikowski minimized the limitations associated with 20 VanLengen’s low IQ and poor verbal comprehension on the basis that VanLengen “showed an 21 ability to function in the community.” AR 36, 38. Yet the evidence she cited in support of this 22 conclusion stated just the opposite. In particular, the note upon which the ALJ relied stated that 23 VanLengen presented with “apparent low IQ and ability to function in community.” See AR 774. 24 The previous sentence states that her boyfriend was “the only one” who visited her when she was 25 in the hospital for a month and the sentence that follows states that VanLengen had “not worked 26 for the most part.” Id. Read in context, it is clear that in the sentence upon which the ALJ relied 27 the word “low” was intended to modify both “IQ” and “ability to function in the community.” 28 This reading is also supported by the administrative record as a whole, which does not refer to any 21 1 examples of VanLengen engaging with “the community,” much less an ability to “function in the 2 community.” Thus, ALJ Krolikowski’s conclusion that VanLengen had shown an ability to 3 function in the community is not supported by substantial evidence in the record. United States District Court Northern District of California 4 ALJ Krolikowski also speculates that VanLengen’s “current unemployment is [not] truly 5 the result of medical problems” because VanLengen has “never worked.” AR 34. This is 6 factually incorrect. As discussed above, the administrative record reflects that VanLengen worked 7 for several years. See AR 231, 241. Nor is there any mystery about why VanLengen stopped 8 working for a number of years: she suffered from an alcohol and drug problem. See AR 1189 9 (statement of consultative examiner that Plaintiff had a “well-documented” “history of poly-drug 10 use” including inhalant methamphetamine and marijuana up to 2013). Plaintiff reported, however, 11 that she stopped using drugs and abusing alcohol in 2013, AR 86, and there is no evidence in the 12 record to the contrary (nor did the ALJ make any such finding). Therefore, the Court concludes 13 that the ALJ’s reliance on VanLengen’s having “never worked” is not an adequate reason for 14 discounting VanLengen’s credibility and is not supported by substantial evidence. 15 The ALJ also concludes Plaintiff was not credible as to the severity of her pain because of 16 what she found were inconsistencies in her testimony as to the medications she was taking, 17 concluding that pharmacy records from 2014-2016 “demonstrate the claimant was not taking her 18 medications as she indicated.” AR 34. She specifically called out what she found to be 19 inconsistent testimony about VanLengen’s use of gabapentin, stating that the medical record did 20 not support VanLengen’s testimony that she took six gabapentin pills daily. Id. Yet the transcript 21 of the hearing reflects that VanLengen’s testimony regarding her medications (and the ALJ’s own 22 questions) verged on incoherent. It is apparent that VanLengen was extremely confused and she 23 often expressed uncertainty in response to the ALJ’s questions. See AR 73-77 (“I honestly don’t 24 remember”; “I really can’t remember”; “I’m taking so many medications right now I don’t even 25 know the names of them”; “I can’t remember the name of it”; “I’m take – I don’t know the name 26 of it”; “I don’t know the name of it”). With respect to the testimony about VanLengen’s use of 27 gabapentin, this confusion is particularly apparent. AR 76 (Q: Are you taking gabapentin? A: 28 What – is for my – Q: That’s for you – A: -- kidneys? Q: – feet.”). In light of VanLengen’s 22 United States District Court Northern District of California 1 confused testimony – which is entirely consistent with her diagnosed cognitive impairment – ALJ 2 Krolikowski’s reliance on those inconsistencies to discredit VanLengen’s testimony is misplaced. 3 Even more disturbing is ALJ Krolikowki’s reliance on pharmacy records showing that 4 VanLengen filled her hydrocodone prescription only in February 2014, May 2014 and March 5 2016 as a basis for concluding that the pain VanLengen experienced was not as severe as she 6 claimed. See AR 34. As discussed above, the record reflects that Dr. Kruusmagi prescribed 7 hydrocodone only occasionally, usually in connection with recent surgical procedures, and 8 cautioned VanLengen that the prescriptions should “last.” ALJ Krolikowski’s suggestion that 9 VanLengen’s testimony is not credible because she heeded her doctor’s advice as to how this 10 prescription medication should be used is improper. ALJ Krolikowski is not trained as a doctor 11 and may not substitute the doctor’s opinion with her own. See Day v. Weinberger, 522 F.2d 1154, 12 1156 (9th Cir. 1975) (an ALJ is forbidden from making his or her own medical assessment beyond 13 that demonstrated by the record); see also Balsamo v. Chater, 142 F.3d 75, 81 (2d Cir. 1998) (an 14 “ALJ cannot arbitrarily substitute his own judgment for competent medical opinion”) (internal 15 quotation marks and citation omitted); Rohan v. Chater, 98 F.3d 966, 970 (7th Cir. 1996) (“ALJs 16 must not succumb to the temptation to play doctor and make their own independent medical 17 findings”). 18 Finally, the ALJ does not offer “specific, clear and convincing reasons” for discounting 19 VanLengen’s pain testimony based on VanLengen’s activities of daily living. See AR 35. The 20 Ninth Circuit has held that “daily activities may be grounds for an adverse credibility finding ‘if a 21 claimant is able to spend a substantial part of his day engaged in pursuits involving the 22 performance of physical functions that are transferable to a work setting.’” Orn v. Astrue, 495 F.3d 23 625, 639 (9th Cir. 2007) (quoting Fair v. Bowen, 885 F.2d 597, 603). Here, the ALJ states: 24 25 26 27 28 The claimant admitted activities of daily living including dishes, grocery shopping, making the bed, folding clothes, performing personal care tasks, helping care for the cat as well as helping to care for her uncle. Some of the physical and mental abilities and social interactions required in order to perform these activities are the same as those necessary for obtaining and maintaining employment. Id. While the ALJ apparently found that these activities were transferrable to the workplace, she 23 1 made no finding that VanLengen was able to spend a substantial part of her day engaged in them. 2 Nor does the evidence in the record support such a conclusion. To the contrary, VanLengen 3 consistently testified that her ability to engage in the activities listed by the ALJ was very limited. 4 See AR 87-91. Therefore, the Court concludes that the ALJ’s reliance on VanLengen’s daily 5 activities was not sufficient to meet the clear and convincing reasons standard that applies to 6 credibility determinations. In sum, the ALJ offered inadequate reasons for rejecting Van Lengen’s testimony about the United States District Court Northern District of California 7 8 limiting effects of her pain. The ALJ amplified this error to the extent that she relied upon Van 9 Lengen’s lack of credibility to conclude that the opinions of Dr. Kruusmagi also were entitled to 10 little weight because Dr. Kruusmagi “uncritically accept[ed] as true most, if not all, of what the 11 claimant reported.” 12 arms, the ALJ erred in rejecting Dr. Kruusmagi’s opinions about VanLengen’s limitations; the 13 ALJ’s reasons for giving Dr. Kruusmagi’s opinions little weight are not specific and legitimate 14 and are not supported by substantial evidence in the record. 15 16 D. AR 38. Except as to VanLengen’s limitations in the use of her hands and Remedy Once a district court has determined that an ALJ has erred, the court must decide whether 17 to remand for further proceedings or to remand for immediate award of benefits. Harman v. Apfel, 18 211 F.3d 1172, 1177–78 (9th Cir. 2000). Under this Circuit’s “credit as true” rule, a court must 19 credit as true evidence that was rejected and remand for an immediate award of benefits if “(1) the 20 ALJ has failed to provide legally sufficient reasons for rejecting such evidence, (2) there are no 21 outstanding issues that must be resolved before a determination of disability can be made, and (3) 22 it is clear from the record that the ALJ would be required to find the claimant disabled were such 23 evidence credited.” Id. at 1178 (quoting Smolen v. Chater, 80 F.3d 1273, 1292 (9th Cir. 1996)). 24 On the other hand, a court should remand for further proceedings when “the record as a whole 25 creates serious doubt as to whether the claimant is, in fact, disabled within the meaning of the 26 Social Security Act,” Garrison, 759 F.3d at 1021, or where “there is a need to resolve conflicts 27 and ambiguities,” Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1101 (9th Cir. 2014). 28 The Court has found that the ALJ failed to provide legally sufficient reasons for rejecting 24 1 the opinions of VanLengen’s treating physician, Dr. Kruusmagi, with respect to VanLengen’s 2 symptoms and limitations. The Court further finds that under the credit-as-true rule, the testimony 3 of Dr. Kruusmagi establishes that VanLengen was disabled. In particular, Dr. Kruusmagi’s 4 opinions that VanLengen would need to take frequent breaks due to her pain and would miss more 5 than four days a month of work establishes that she could not perform any of the jobs listed by the 6 ALJ at step five. See AR 105 (VE testimony that none of the listed jobs would be available to a 7 hypothetical individual who was off task more than 10% of the time or missed more than two days 8 a month of work). 9 IV. United States District Court Northern District of California 10 CONCLUSION For the reasons stated above, the Court GRANTS Plaintiff’s motion for summary 11 judgment, DENIES Defendant’s motion for summary judgment and remands to the Social 12 Security Administration for award of benefits. 13 14 IT IS SO ORDERED. Dated: July 3, 2019 15 16 17 ______________________________________ JOSEPH C. SPERO Chief Magistrate Judge 18 19 20 21 22 23 24 25 26 27 28 25
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