Pedronan v. Berryhill, No. 3:2018cv02241 - Document 25 (N.D. Cal. 2019)
Court Description: ORDER granting 18 Motion for Summary Judgment.In the attached order, the court grants the plaintiff's motion for summary judgment, denies the Commissioner's cross-motion for summary judgment, and remands the case for further proceedings consistent with this order. (Beeler, Laurel) (Filed on 6/14/2019)
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Pedronan v. Berryhill Doc. 25 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 San Francisco Division United States District Court Northern District of California 11 ELEANOR PEDRONAN, Plaintiff, 12 v. 13 14 NANCY A. BERRYHILL, Defendant. 15 16 Case No. 18-cv-02241-LB ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT'S CROSS-MOTION FOR SUMMARY JUDGMENT Re: ECF Nos. 18, 19 INTRODUCTION 17 18 The plaintiff, Eleanor Pedronan, seeks judicial review of a final decision by the Commissioner 19 of the Social Security Administration denying her claim for disability benefits under Title II of the 20 Social Security Act.1 The plaintiff moved for summary judgment.2 The Commissioner opposed the 21 motion and filed a cross-motion for summary judgment.3 Under Civil Local Rule 16-5, the matter 22 is submitted for decision by this court without oral argument. Both parties consented to 23 24 25 26 27 28 1 Compl. – ECF No. 1 at 1. Citations refer to material in the Electronic Case File (“ECF”); pinpoint citations are to the ECF–generated page numbers at the top of the documents. 2 Mot. – ECF No. 18. 3 Cross–Mot. – ECF No. 19. ORDER – No. 18-cv-02241-LB Dockets.Justia.com 1 magistrate-judge jurisdiction.4 The court grants the plaintiff’s motion for summary judgment, 2 denies the Commissioner’s cross-motion, and remands for further proceedings. 3 STATEMENT 4 5 1. Procedural History On October 7, 2014, the plaintiff filed a claim for social-security-disability insurance (“SSDI”) 6 7 benefits under Title II of the Social Security Act (“SSA”).5 She alleged a lower-back injury and 8 adjustment disorder with an onset date of April 2, 2014.6 The Commissioner denied her SSDI 9 claim initially and on reconsideration.7 The plaintiff requested a hearing.8 Administrative Law Judge Brenton L. Rogozen (the “ALJ”) held a hearing on November 21, United States District Court Northern District of California 10 11 2016.9 The plaintiff was represented by an attorney.10 The ALJ heard testimony from the plaintiff 12 and from the vocational expert (“VE”) Robin Scher.11 On January 18, 2017, the ALJ issued an 13 unfavorable decision.12 The plaintiff appealed the decision to the Appeals Council on March 31, 14 2017.13 The Appeals Council denied her request for review on February 21, 2018.14 On April 13, 15 2018, the plaintiff filed this action for judicial review and moved for summary judgment on 16 October 31, 2018.15 The Commissioner opposed the motion and filed a cross-motion for summary 17 18 19 20 21 22 23 24 25 26 27 28 4 Consent Forms – ECF Nos. 8, 9, 10. 5 AR 158–59. Administrative Record (“AR”) citations refer to the page numbers in the bottom right hand corner of the Administrative Record. 6 AR 170, 232. 7 AR 60–72 (initial determination); AR 74–87 (reconsideration). 8 AR 108–09. 9 AR 35–59. 10 AR 35. 11 AR 36–59. 12 AR 15–34. 13 AR 7–11. 14 AR 1–6. 15 Compl. – ECF No. 1; Mot. – ECF No. 18. ORDER – No. 18-cv-02241-LB 2 United States District Court Northern District of California 1 judgment on November 27, 2018.16 2 2. Medical Records 3 2.1 John D. Warbritton, III, M.D. — Examining 4 On April 7, 2004, Dr. Warbritton, an orthopedic surgeon, conducted a medical examination of 5 the plaintiff regarding a permanent-disability rating.17 Dr. Warbritton found that the plaintiff’s 6 condition was permanent and that she could not perform heavy-lifting activities and repetitive- 7 bending activities.18 She was “unable to perform her full range of usual and customary job duties 8 as a floor nurse.”19 An MRI study of her lumbar spine revealed a small right-sided disc herniation 9 at L4-5 with degenerative disease involving the facet joints at the lower-lumbar levels.20 Dr. 10 Warbritton recommended limited supportive medical care and independent strengthening and 11 stretching exercises.21 He found that the use of “anti-inflammatory agents, muscle relaxants and 12 narcotic analgesics” was reasonable and appropriate.22 He said that the plaintiff should “undergo 13 further spinal injections, such as epidural injections or facet blocks” but did “not recommend any 14 sort of spine surgery.”23 15 2.2 16 Dr. Kaisler-Meza was the plaintiff’s treating physician from December 2008 to March 2015 17 and wrote the plaintiff’s Medical Source Statement.24 On December 18, 2008, Dr. Kaisler-Meza reported that the plaintiff’s injury caused “sharp 18 19 Allen Kaisler-Meza, M.D. and Vijayasree Kumar, PA-C — Treating aching pain” in her lower back and both legs.25 He diagnosed the plaintiff with lumbar 20 21 22 23 24 25 26 27 28 16 Cross–Mot. – ECF No. 19. 17 AR 237–52. 18 AR 238. 19 AR 239. 20 AR 241. 21 AR 250. 22 23 Id. Id. 24 AR 592–94. 25 AR 779. ORDER – No. 18-cv-02241-LB 3 1 radiculopathy, low-back pain, and lumbago.26 The “straight leg raising test [was] positive on the 2 right side in the supine position.”27 On February 19, 2009, Dr. Kaisler-Meza viewed MRI film, which showed “several disc bulges United States District Court Northern District of California 3 4 but not nerve impingement” in the plaintiff’s back.28 He noted that the plaintiff continued to work 5 full duty despite having pain.29 On January 27, 2010, Dr. Kaisler-Meza’s diagnosis of the plaintiff 6 remained the same, but he noted that she was on “permanent and stationary” work status.30 7 On June 17, 2010, Dr Kaisler-Meza noted that “not much changed since her last visit,” and she 8 still had an aggravated back.31 Dr. Kaisler-Meza conducted a Trigger Point Injection (“TPI”) “into 9 superficial musculature” in her “right quadratus lumborum.”32 He administered another TPI on the 10 plaintiff on October 13, 2010.33 As reported in a follow-up meeting on November 23, 2010, the 11 injections caused only “temporary relief.”34 On March 30, 2011, Dr. Kaisler-Meza administered a 12 TPI into the plaintiff’s right buttock, where “she has had the most success with a TPI.”35 The 13 plaintiff reported pain levels of “8–9/10” in her lower back.36 On December 28, 2012, the plaintiff was “unable to go back to work” due to “low back 14 15 pain.”37 Dr. Kaisler-Meza noted that the plaintiff had “completed aquatic therapy,” and “it helped 16 her for pain relief.”38 17 18 19 20 21 22 23 24 25 26 27 28 26 27 28 29 Id. Id. AR 775. Id. 30 AR 773–74. 31 AR 771. 32 AR 772. 33 AR 768. 34 AR 750–51. 35 AR 737. 36 AR 736. 37 AR 676. 38 Id. ORDER – No. 18-cv-02241-LB 4 On April 26, 2013, the plaintiff came in again for a “severe pain flare up with stiffness in the United States District Court Northern District of California 1 2 lower back” and was “tearful.”39 A majority of the time was spent counseling and coordinating the 3 plaintiff’s care.40 The plaintiff was put “off from work” for three days.41 4 On April 9, 2014, Dr. Kaisler-Meza diagnosed the plaintiff with lumbar-disc displacement 5 without myelopathy, lumbago, and backache not otherwise specified.42 The plaintiff “appear[ed] 6 to be anxious and in mild pain” regarding her lower-back.43 The plaintiff’s range of motion was 7 “restricted with flexion [and was] limited to [two] degrees due to pain.”44 He noted that “a twitch 8 response was obtained along with radiating pain on palpation” on both sides of the plaintiff’s 9 lumbar spine.45 Additionally, she had “spinous process tenderness” on L3, L4 and L5.46 Dr. 10 Kaisler-Meza noted the plaintiff’s pain level was at “8–9/10” and she was taking 50mg Tramadol 11 tabs four times per day and over-the-counter Tylenol two times per day.47 The plaintiff could not 12 “walk on [her] heel[s]” and could not “walk on [her] toes.”48 Her straight-leg raising test was now 13 negative, suggesting that pain did not radiate below the knee.49 He noted that the plaintiff could 14 work with permanent restrictions on carrying, lifting, pushing or pulling anything exceeding ten 15 pounds, squatting, and bending.50 The plaintiff was working eight to ten hours per week in home 16 17 18 19 20 21 22 23 24 25 26 27 28 39 AR 752–53. 40 AR 752. 41 AR 753. Between April and October 2014, Physician Assistant Vijayasree Kumar performed some of the plaintiff’s examinations supervised by Dr. Kaisler-Meza. PA Kumar conducted over thirty examinations of the plaintiff under the supervision of Dr. Kaisler-Meza. 42 AR 494–98. 43 AR 495. 44 45 46 47 48 49 50 Id. Id. Id. AR 494. Id. Id. AR 487, 494, 497. ORDER – No. 18-cv-02241-LB 5 United States District Court Northern District of California 1 health.51 Dr. Kaisler-Meza discussed treatment plans with the plaintiff, including an anti- 2 inflammatory diet, a Prednisone taper for six days, and an H-wave-machine trial.52 The H-wave 3 machine would potentially “stabilize/immobilize the joint,” as part of the plaintiff’s rehabilitation 4 plan.53 She was “unable to tolerate topical capsaicin, Lidoderm patches, oral medication, and 5 [was] in chronic pain and inflammation.”54 Dr. Kaisler-Meza noted that the “prednisone taper 6 helped with the control of severe pain flare up.”55 7 On May 1, 2014, the plaintiff’s pain was at eight out of 10.56 8 On May 19, 2014, Dr. Kaisler-Meza observed the following pain behaviors: “facial grimacing, 9 frequent shifting of posture or position and holding or supporting affected body part or area.”57 10 The plaintiff reported the pain at a nine out of ten.58 The plaintiff had TPIs into her superficial 11 musculature (right-quadratus lumborum) — injecting 1 ml of 1% lidocaine and 0.5% Marcaine.59 12 The plaintiff reported that the procedure had a moderate effect on post-injection pain, which she 13 ranked four to six out of ten.60 On June 12, 2014, Dr. Kaisler-Meza reported that the plaintiff was “unable to work due to her 14 15 pain.”61 The plaintiff had completed her second of six authorized acupuncture sessions.62 This 16 time the plaintiff’s pain was a “9–10/10” and she had “severe muscle spasm[s] over the mid back 17 18 19 20 21 22 23 24 25 26 27 28 51 AR 485. 52 AR 496. 53 AR 491, 496. 54 AR 491. 55 AR 470, 490. 56 AR 490. 57 AR 486. 58 AR 485. 59 AR 486. 60 61 62 Id. AR 481. Id. ORDER – No. 18-cv-02241-LB 6 1 radiating down the right lower back and [into the] groin as well as [the] right leg.”63 Dr. Kaisler- 2 Meza concluded that the plaintiff was “unable to continue to work due to severe muscle spasms.”64 On July 11, 2014, Dr. Kaisler-Meza noted that the patient’s pain was an eight out of 10.65 On 3 4 August 20, 2014, Dr. Kaisler-Meza noted that the plaintiff’s pain was six out of 10 and that the H- 5 Wave machine was helpful.66 On October 10, 2014, Dr. Kaisler-Meza reported that the plaintiff was still taking 50mg tabs of United States District Court Northern District of California 6 7 tramadol and 500mg tabs of Tylenol if the pain was severe.67 Her pain was a “6/10” but could get 8 up to an “8–9/10” when it flared up.68 Dr. Kaisler-Meza noted that she was unable to continue to 9 work due to the severity of her muscle spasms.69 10 2.3 Park Acupuncture — Treating 11 Starting on November 4, 2009, the plaintiff met with Jae Park, a Doctor of Acupuncture and 12 Oriental Medicine, at Park Acupuncture for “electrical acupuncture sessions.”70 The plaintiff 13 “complained of constant back pain of 2 [to] 3 on a scale of 1 to 10” and indicated that the pain 14 “level reache[d] up to 9-10 . . . if aggravated.”71 The plaintiff “reported more relaxed back 15 muscles, decreased pain and improved range of motion after the treatment.”72 She did “not see 16 much improvement in the activities of daily living such as bending, squatting, and lifting.”73 17 18 19 20 21 22 23 24 25 26 27 28 63 Id. 64 AR 483. 65 AR 477. 66 AR 473. 67 AR 470. 68 Id. 69 AR 471. 70 AR 255. 71 72 73 Id. Id. AR 254. ORDER – No. 18-cv-02241-LB 7 1 2.4 2 On June 23, 2011, the plaintiff met with Dr. Hsieh at Pain Care of Silicon Valley.74 Dr. Hsieh 3 performed epidural steroid injections (“ESI”) on her spine at the L4-5 discs.75 Dr. Hsieh noted that 4 the “injection [was] appropriate to attempt to address the patient’s lumbar radicular 5 symptomatology by decreasing inflammation surrounding the discogenic pain generator 6 process.”76 On September 28, 2011, and February 8, 2012, Dr. Hsieh performed two ESI procedures at the 7 United States District Court Northern District of California Ray Hsieh, M.D. — Treating 8 L4 and L5 levels of the plaintiff’s spine. On February 8, 2012, he performed an epidurogram for 9 her lumbar-discogenic pain.77 10 2.5 Mark Culton, M.D. — Treating 11 On February 10, 2009, Dr. Culton, a radiologist referred by Dr. Kaisler-Meza, performed an 12 MRI on the plaintiff’s spine.78 He noted that the “remaining disc levels appear[ed] unremarkable 13 with no significant changes of degenerative disc disease and no significant stenosis observed.”79 14 He noted that “at L4-5, there is mild posterior annular disc bulging/diffuse.”80 15 2.6 Ronald Lamberton, M.D. — Treating 16 On January 17, 2013, Dr. Lamberton, an occupational medicine specialist, performed a 17 utilization review on behalf of Kaiser Permanente for authorization of aquatic and massage 18 therapy for the lower back.81 Dr. Lamberton denied authorization for additional aquatic therapy 19 because it was recommended for “extremely obese” patients who suffered from “degenerative disc 20 21 22 23 24 25 26 27 28 74 AR 274. 75 AR 276. 76 AR 277. 77 AR 280–83, 288–90. 78 AR 261–64. 79 AR 264. 80 AR 262. 81 AR 307–12. ORDER – No. 18-cv-02241-LB 8 1 disease.”82 He denied authorization for massage therapy because it was recommended for patients 2 actively “participating in graded aerobic and graded strengthening programs,” which the plaintiff 3 was not doing.83 4 2.7 5 On September 25, 2012, the plaintiff visited Omega Sports Rehabilitation, Inc. for aquatic 6 therapy sessions.84 Ms. Marianne Arild, a physical therapist, noted that the plaintiff “tolerated 7 [treatment] but fatigues quickly.”85 The emphasis during aquatic therapy was on “lumbar 8 stabilization and strengthening.”86 On October 10, 2012, the plaintiff completed another session of 9 aquatic therapy.87 Iqbaal Maan, DPT, MPT, noted that she presented with “muscle tightness and United States District Court Northern District of California 10 Omega Sports Rehabilitation, Inc. — Treating poor postural alignment.”88 11 2.8 Janine Marinos, Ph.D. — Examining 12 On December 11, 2014, Dr. Marinos performed a complete psychological evaluation on the 13 plaintiff.89 The plaintiff was “able to bathe and dress herself independently and do light cleaning, 14 shopping, and simple meal preparation.”90 Dr. Marinos diagnosed the plaintiff with adjustment 15 disorder with depressed mood.91 The “subtest scores on the WAIS-IV [Wechsler’s Adult 16 Intelligence Scale] ranged from average to moderately impaired, with the lowest score likely due 17 to concentration problems.”92 Dr. Marinos noted that the plaintiff’s “major obstacle to adequate 18 19 20 21 22 23 24 25 26 27 28 82 83 AR 309. Id. 84 AR 303. 85 AR 298. 86 AR 299. 87 AR 305. 88 Id. 89 AR 597–99. 90 AR 598. 91 AR 599. 92 Id. ORDER – No. 18-cv-02241-LB 9 United States District Court Northern District of California 1 job performance would appear to be [her] physical condition.”93 She was able to “understand, 2 remember, and carry out simple instructions, interact appropriately with others, and deal with 3 changes in a routine work setting.”94 Dr. Marinos assigned the plaintiff a Global Assessment of 4 Functioning (“GAF”) score of 60, indicating moderate symptoms.95 5 2.9 Lara A. Salamancha, M.D. — Examining 6 On February 26, 2016, Dr. Salamacha conducted an orthopedic evaluation on the plaintiff.96 7 The plaintiff had a “normal reciprocal gait” and no “focal tenderness to palpation in the midline or 8 paraspinous regions.”97 There were no signs of abnormal muscle spasms, and facet signs of pain 9 were positive on the right and negative on the left.98 Dr. Salamacha noted right L5 radiculitis with 10 pain distribution and a sensory pattern of numbness and tingling.99 Dr. Salamacha assessed the 11 plaintiff’s functional capabilities and found that she could stand and walk for a maximum of six 12 hours in an eight-hour time period and had no restrictions on sitting with routine position changes 13 every thirty minutes.100 The plaintiff could lift ten pounds frequently and twenty pounds 14 occasionally due to her degenerative-disc disease.101 Dr. Salamancha assessed no limitations on 15 reaching, handling, feeling, fingering, or grasping with bilateral-upper extremities, and there were 16 17 18 19 20 21 22 23 24 25 26 27 28 93 94 Id. Id. 95 Id. “According to the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (“DSM–IV”), a GAF of 51–60 indicates moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co–workers). See Am. Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders 34 (4th ed. text rev. 2000). GAF scores of 61 to 70 indicate some mild symptoms or some difficulty in social, occupational, or school functioning, but the patient is generally functioning pretty well. Id.” Turner v. Commissioner of Social Security, No. 14–cv–04525–MEJ, 2015 WL 3546057, at n.1 (N.D. Cal. Jun. 5, 2015). 96 AR 888–890. 97 AR 889. 98 99 Id. AR 890. 100 101 Id. Id. ORDER – No. 18-cv-02241-LB 10 1 no visual, communicative, or work-place environmental limitations.102 2 2.10 Disability Determination Explanations — Non-Examining 3 Two disability determination explanations (“DDE”) were issued during the pendency of the 4 plaintiff’s claim — one related to her initial claim for disability and a second related to her claim 5 at the reconsideration level.103 These reports included the physical and mental assessments of three 6 state-agency consultants, who reviewed the plaintiff’s medical records. In the first DDE, issued on December 12, 2014, Ernest Wong, M.D., determined that the United States District Court Northern District of California 7 8 plaintiff was not disabled.104 Dr. Wong, based on his review of the plaintiff’s record, indicated that 9 the plaintiff was a skilled worker who was capable of sustaining light work.105 The plaintiff’s prior 10 “nursing skills [were] transferable to a light RFC.”106 Dr. Wong did not believe the objective 11 medical evidence alone substantiated the plaintiff’s statements about the intensity, persistence, and 12 functionally limiting effects of the symptoms.107 R.E. Brooks, M.D., noted that the plaintiff’s 13 limitations relate to physical elements, and not her ability to concentrate.108 Thus, Dr. Brooks 14 determined that the plaintiff’s affective disorder did not meet the B or C criteria of the listings.109 15 16 17 18 19 20 21 22 23 24 25 26 27 28 102 Id. 103 AR 60, 74. 104 AR 72. 105 AR 71. 106 Id. 107 AR 68. 108 AR 67. 109 Id. The listings are individual criteria for different disorders as established in 20 CFR Pt. 404, Subpt. P, App. 1. Specifically, Drs. Wong and Brooks determined that the plaintiff’s anxiety-related disorders did not meet the criteria in § 12.04 of the listings dealing with “Depressive, bipolar and related disorders.” The B criteria of § 12.04 require “Extreme limitation of one, or marked limitation of two, of the following: (1) Understand, remember, or apply information[;] (2) Interact with others[;] (3) Concentrate, persist, or maintain pace[; and] (4) Adapt or manage oneself.” The C criteria of § 12.04 require that a claimant’s “mental disorder in this listing category is ‘serious and persistent;’ that is, you have a medically documented history of the existence of the disorder over a period of at least 2 years, and there is evidence of both: (1) Medical treatment, mental health therapy, psychosocial support(s), or a highly structured setting(s) that is ongoing and that diminishes the symptoms and signs of your mental disorder; and (2) Marginal adjustment, that is, you have minimal capacity to adapt to changes in your environment or to demands that are not already part of your daily life.” (internal citations omitted) ORDER – No. 18-cv-02241-LB 11 1 In the second DDE on reconsideration, issued on June 11, 2015, W. Jackson, M.D. and A. 2 Garcia, M.D., confirmed the initial finding that the plaintiff was not disabled.110 Dr. Jackson stated 3 that the “CE examiner’s opinion is an overestimate of the severity of the individual’s 4 restrictions/limitations and based only on a snapshot of the individual’s functioning.”111 They also 5 confirmed Dr. Brooks’s conclusion that the plaintiff’s affective disorder did not meet the B or C 6 criteria of the listings.112 7 8 3. Administrative Proceedings 3.1 United States District Court Northern District of California 9 Social Security Field Office Disability Report 10 On February 17, 2015, an SSA employee interviewed the plaintiff and made a disability 11 report.113 In the report, the plaintiff indicated that there was a “considerable increase of [her] low 12 back pain, right leg, and right groin.”114 Her concentration was significantly diminished, and she 13 was unable to sit, stand, or walk for longer than 30 minutes without pain in her right leg, buttock, 14 and groin.115 She stated that “lifting, bending, or squatting makes the pain more severe” so she 15 used a “roller to carry groceries.”116 16 3.2 Plaintiff’s Testimony 17 On November 21, 2016, the plaintiff testified at a hearing before the ALJ.117 The ALJ asked 18 the plaintiff whether she had worked at all since the alleged onset date.118 She worked part-time as 19 a visiting nurse for two to four hours a week at people’s houses.119 Her last job was in March 20 21 22 23 24 25 26 27 28 110 AR 87. 111 AR 85. 112 AR 83. 113 AR 195–96. 114 AR 190. 115 Id. 116 AR 193. 117 AR 35–59. 118 AR 38–39. 119 AR 39. ORDER – No. 18-cv-02241-LB 12 United States District Court Northern District of California 1 2016.120 2 The plaintiff’s attorney examined her.121 She asked the plaintiff why she stopped working at 3 the hospital.122 The plaintiff responded that “it got to the point that [she couldn’t] do the lifting and 4 the walking a lot, and sitting, and lifting, tugging, and the positioning patients is what became too 5 taxing on [her] back.”123 She tried to find another job to support herself and worked part-time as a 6 visiting nurse.124 7 The plaintiff had “lumbar pain constantly” that traveled to her right leg.125 She classified her 8 pain as a “ten” without medication, and an “eight” with medication.126 She could stand for “maybe 9 about five to 10 to 15 minutes” before having to sit down.127 After standing for 15 minutes she got 10 “super pain in [her] lowed back . . . [that went] down to [her] right buttocks to [her] groin and to 11 [her] right leg.”128 Standing and walking were “about the same.”129 If she stood for a long time she 12 had to sit, and if she sat for a long time then she had to stand up and walk a few steps.130 She could 13 sit for 10 to 15 minutes before needing to shift her position to “relieve the pain.”131 She could 14 safely lift and carry “less than ten pounds;” any more gave her “severe lower back pain.”132 The plaintiff could not clean her house; her sister did that for her.133 She could do “a little bit” 15 16 17 18 19 20 21 22 23 24 25 26 27 28 120 121 122 123 Id. AR 40. Id. Id. 124 AR 40–41. 125 AR 41. 126 AR 41–42. 127 AR 42. 128 129 130 131 132 133 Id. Id. Id. AR 43. Id. Id. ORDER – No. 18-cv-02241-LB 13 United States District Court Northern District of California 1 of laundry if “there [was] no bending.”134 She prepared simple meals.135 She could not bend, so to 2 put on shoes she had “somebody pull on the shoelaces and just insert [her] foot in there 3 loosely.”136 She drove only short distances because sitting in the car was painful and she “put a 4 water bottle . . . along her spine” to support her back.137 5 The plaintiff’s pain medication and muscle relaxers made her drowsy.138 She had to take the 6 medications “first thing in the morning after breakfast” or else she could not function.139 If she got 7 drowsy she took a nap.140 Her pain affected her “focus and concentration.”141 In response to the 8 attorney’s questions about the treatments the plaintiff had tried for her lower back, she listed 9 epidural, facet injections, acupuncture, chiropractic treatment, water therapy, massages and 10 exercise, and physical therapy.142 She exercised to strengthen her muscles.143 The injections were 11 helpful “for a brief period, [] like four to six days.”144 Her pain came back and so the surgeons 12 decided not to do more injections.145 The plaintiff’s doctors advised that there was a possibility of 13 surgery at some point.146 She was “kind of [] reluctant to go to surgery because of the potential 14 complications.”147 The ALJ then asked the plaintiff when she had her last epidural injection and she responded, 15 16 17 18 19 20 21 22 23 24 25 26 27 28 134 135 AR 44. Id. 136 AR 45. 137 AR 45–46. 138 AR 46. 139 140 141 142 143 144 145 146 147 Id. Id. AR 47. Id. Id. Id. AR 48. Id. Id. ORDER – No. 18-cv-02241-LB 14 United States District Court Northern District of California 1 not “for a couple of years.”148 The ALJ asked whether the plaintiff had an MRI of her back, and 2 she said she had one in 2013.149 3 In addition to her in-person testimony at the hearing, the plaintiff submitted a work history 4 report.150 From 1998 to 2008, the plaintiff worked as a nurse, and from 2009 to 2014 she worked 5 in home health.151 Her home-health work “included driving to visit patients in their homes,” which 6 “required sitting, bending, squatting” and “prolonged sitting.”152 Her work as a nurse “included a 7 lot of walking, standing, sitting” and “lifting and transferring patients from gurney to bed.”153 8 The plaintiff filed an exertion questionnaire to support her claims for benefits.154 She said that 9 she lived alone in her apartment and had “moderate to severe back pain” that prevented her “from 10 standing, sitting, and walking for longer than 30 minutes.”155 She dusted her furniture, vacuumed 11 her carpet, cooked meals, bathed, and shopped for groceries.156 She could walk one block and it 12 took her at least 30 to 45 minutes.157 In addition to taking Tramadol and Tylenol for pain, the 13 plaintiff used “thermawraps before going to bed” and a brace on her lower back when dusting and 14 vacuuming.158 15 3.3 Vocational Expert’s Testimony 16 The VE testified at the November 21, 2016 hearing.159 The ALJ asked the VE to characterize 17 18 19 20 21 22 23 24 25 26 27 28 148 AR 48–49. 149 AR 49. 150 AR 173. 151 Id. 152 AR 174. 153 AR 175. 154 AR 178. 155 156 157 Id. Id. Id. 158 AR 179. 159 AR 35–59. ORDER – No. 18-cv-02241-LB 15 United States District Court Northern District of California 1 the plaintiff’s prior work according to the Dictionary of Occupational Titles.160 She stated that the 2 plaintiff worked as a general duty-nurse (medium, SVP of 7).161 The ALJ asked whether, if he 3 assessed an RFC of sedentary or light work, the plaintiff could do her prior work as a general 4 nurse, and the VE answered that she could not.162 The ALJ asked if the plaintiff had “skills from 5 this job transferrable within the same field, the medical field, like the kind of work she was doing 6 before, but at the light level.”163 The VE said that she had “nursing skills” that could transfer to 7 occupational health nursing (light, SVP of 7) with approximately 2,980,000 jobs nationally, school 8 nursing (light, SVP of 7) with 178,000 jobs nationally, and office nursing (light, SVP of 7) with 9 approximately 231,000 jobs nationally.164 10 The plaintiff’s attorney examined the VE.165 The attorney asked whether the plaintiff had 11 transferrable skills to “sedentary jobs within the same field.”166 The VE said that the transferable 12 skills were the same but “the DOT is so old that the jobs [she] would think about for sedentary are 13 not in the DOT so [she] never offer[ed] them.”167 Specifically, the VE mentioned advice nurses 14 who “pretty much [were] just on the phone” but said there was no corresponding DOT code for 15 that position.”168 The attorney posed the following hypothetical: 16 17 18 19 20 21 22 23 24 25 26 27 28 160 AR 50. The Dictionary of Occupational Titles (DOT) was created by the Employment and Training Administration for the Office of Administrative Law Judges. 161 AR 50–51. Specific Vocational Preparation (“SVP”) is defined “as the amount of lapsed time required by a typical worker to learn the techniques, acquire the information, and develop the facility needed for average performance in a specific job-worker situation.” On the SVP scale, a 7 refers to “skilled work.” Cherwink v. Comm’r of Social Security, No. 17-cv-00082-JSC, 2018 WL 1050194, at *4 (N.D. Cal. Feb. 26, 2018). 162 AR 50–51. 163 AR 51. 164 AR 51–52. 165 AR 53. 166 167 168 Id. Id. Id. ORDER – No. 18-cv-02241-LB 16 [S]o let’s say a person [is] limited to light exertional level. Additionally, this person could only perform occasional bending, stooping or crouching. This person would also need the ability to sit, stand[,] and walk at will. Again, the sitting, standing[,] and walking at will when changing positions would mean that the person would need a few minutes, I would say about five minutes to, essentially, stretch in between positions or walk away. So, during this time, they would not be performing any work. Would there be work for a person like that to do?169 1 2 3 4 5 The VE responded, “I’m going to say no. At that at will, you know, there are certain things, if 6 you’re working, you have to be doing at a particular time. And, yes, there’s a lot of room to 7 change positions, but not the way you’re describing it.”170 8 9 The ALJ asked the VE whether the “occasional bending” limitation would preclude the plaintiff from doing the jobs the VE identified, and the VE said it would not.171 10 The attorney posed a second hypothetical: United States District Court Northern District of California 11 [T]his person may stand and walk for at least two hours in the morning and two hours in the afternoon . . . They sit for one hour at a time and stand for 30 minutes at a time. And, this person would need to change . . . positions a lot for discomfort every 30 minutes . . . [and] lift[] ten pounds frequently, 20 pounds occasionally. And, then again adding the occasional bending, stooping and crouching.172 12 13 14 15 16 The VE was not able to address that hypothetical because it was unclear.173 The attorney posed a third hypothetical: [T]he person’s attention and concentration needed to perform even simple task[s], . . . is affected . . . 16–20% of an eight-hour day or 40-hour work week. Would there be work for a person like that to do? So, essentially, they’re off-task during that period of time.”174 17 18 19 The VE said such a person “wouldn’t be able to maintain employment.”175 20 21 22 23 24 25 26 27 28 169 AR 53–54. 170 AR 54. 171 Id. 172 AR 55–56. 173 AR 56. 174 AR 57–58. 175 AR 58. ORDER – No. 18-cv-02241-LB 17 1 3.4 2 The ALJ issued an unfavorable decision on January 18, 2017.176 The ALJ followed the five- 3 step sequential evaluation process to determine whether the plaintiff was disabled and concluded 4 that she was not. 20 CFR 404.1520(a).177 At step one, the ALJ found that the plaintiff had not engaged in substantial gainful activity 5 6 since April 2, 2014, the alleged onset date.178 The ALJ noted that the earnings record was not 7 available, so he was unable to determine whether the plaintiff’s part-time work as a traveling nurse 8 through March 2016 constituted substantial gainful activity.179 As a result, the ALJ adjudicated the 9 case from the date of the plaintiff’s alleged onset date, April 2, 2014.180 At step two, the ALJ found that the plaintiff had the following severe impairments: “lumbar 10 United States District Court Northern District of California Administrative Findings 11 disc [dis]placement without myelopathy, lumbago, and backache not otherwise specified.”181 The 12 ALJ found that the plaintiff’s “medically determinable mental impairment of adjustment disorder 13 with depressed mood does not cause more than minimal limitation in [her] ability to perform basic 14 mental activities and is therefore non-severe.”182 Regarding the plaintiff’s mental impairment, the ALJ “considered the four broad functional 15 16 areas set in the disability regulations for evaluating mental disorders and in section 12.00C of the 17 Listing of Impairments (20 CFR Part 404, Subpart P, Appendix 1). These four broad functional 18 areas are known as the paragraph B criteria.”183 19 20 21 22 23 24 25 26 27 28 176 AR 15. 177 AR 18. 178 AR 20. 179 180 181 182 Id. Id. Id. AR 21. 183 Id. To meet the paragraph B criteria for listing 12.04, a claimant must demonstrate an “[e]xtreme limitation of one, or marked limitation of two, of the following areas of mental functioning: (1) Understand, remember, or apply information; (2) Interact with others; (3) Concentrate, persist, or maintain pace; (4) Adapt or manage oneself.” 20 C.F.R. pt. 5, subpt. P, app’x 1. ORDER – No. 18-cv-02241-LB 18 1 The ALJ noted the “claimant ha[d] no limitation” in the first functional area (activities of daily 2 living).184 The plaintiff was “capable of driving, bathing and dressing herself independently, doing 3 light cleaning, shopping, and preparing simple meals.”185 Next, the ALJ considered the area of social functioning.186 The ALJ found the claimant 4 5 had “no limitation[s]” because “she was able to work as a traveling nurse on a part-time 6 basis.”187 The third functional area was concentration, persistence, or pace, and the claimant had 7 8 no limitations there either.188 The ALJ found that Dr. Marinos’s examination of the 9 plaintiff indicated that her impairments were due to her physical (and not her mental) United States District Court Northern District of California 10 condition.189 11 The fourth functional area was “episodes of decompensation.”190 The ALJ noted that 12 the plaintiff “experienced no episodes of decompensation, which have been of extended 13 duration . . . [and] the claimant has never received any mental health treatment.”191 The ALJ found that the “claimant’s medically determinable mental impairment causes 14 15 no more than ‘mild’ limitation” and “is non-severe (20 CFR 404.1520a(d)(1)).”192 16 At step three, the ALJ found that the plaintiff did not have an impairment or combination of 17 impairments that met or medically equaled the severity of one of the listed impairments in 20 CFR 18 Part 404, Subpart P, Appendix 1.193 He found that the plaintiff’s back condition did not meet 19 listing 1.04 because the record did not demonstrate compromise of a nerve root or the spinal 20 21 22 23 24 25 26 27 28 184 185 186 187 188 189 190 191 192 193 AR 21. Id. AR 21. Id. Id. Id. Id. Id. Id. AR 22. ORDER – No. 18-cv-02241-LB 19 1 cord.194 The medical records lacked objective findings of evidence of nerve-root compression 2 characterized by neuro-anatomic distribution of pain, spinal arachnoiditis, or lumbar-spinal 3 stenosis resulting in pseudoclaudication.195 An MRI revealed that the plaintiff had mild stenosis at 4 L5-S1 and borderline stenosis at L4-5, but that test was conducted on December 17, 2013, before 5 the alleged onset date.196 At step four, the ALJ found that the plaintiff had the residual-functional capacity to perform a United States District Court Northern District of California 6 7 full range of medium work.197 In considering the plaintiff’s symptoms, the ALJ followed a two- 8 step process in determining a medical impairment and evaluating the intensity, persistence, and 9 limiting effects of the symptoms.198 The ALJ found that the plaintiff’s “medically determinable 10 impairments could reasonably be expected to produce the above alleged symptoms,” but the 11 intensity, persistence and limiting effects of these symptoms were not consistent with the medical 12 evidence in the record.199 The ALJ noted that the plaintiff’s normal level of daily activity was the 13 same as that necessary for obtaining and maintaining full-time employment.200 Additionally, the 14 plaintiff’s treatment was conservative in nature with no recommendation for surgical 15 intervention.201 Dr. Warbritton’s examination of the plaintiff revealed that she had sustained a back injury in 16 17 18 19 20 21 22 23 24 25 26 27 28 194 Id. To meet the criteria for listing 1.04, a claimant must demonstrate a “disorder[] of the spine (e.g., herniated nucleus pulposus, spinal arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc disease, facet arthritis, vertebral fracture), resulting in compromise of a nerve root (including the cauda equina) or the spinal cord.” 20 C.F.R. pt. 5, subpt. P, app’x 1. Listing 1.04 requires a disorder of the spine (for example . . . [4] if there is involvement of the lower back, positive straight–leg raising test (sitting and supine). Holguin v. Berryhill, No. 16–cv–06479–HRL, 2017 WL 3033672 at *4 (quoting 20 C.F.R. Part 404, Subpart P, Appendix 1). 195 196 197 AR 22. Id. Id. 198 AR 23. 199 AR 24. 200 201 Id. Id. ORDER – No. 18-cv-02241-LB 20 1 April 2001, but she was still able to perform work with appropriate modified job duties.202 Within 2 a few days after the alleged onset date, the record indicated that the plaintiff was working eight to 3 ten hours a week as a home-health nurse.203 The ALJ gave little weight to the opinion of PA 4 Kumar because the plaintiff was able to perform work at more than a sedentary level.204 The ALJ 5 also accorded little weight to Dr. Kaisler-Meza’s opinion as supervising physician because the 6 record indicated that PA Kumar was the primary person conducting the examinations.205 7 The ALJ noted that the plaintiff’s primary treating physician, Amarjit Singh Mangat, M.D., 8 returned the claimant to full work duty with no limitations or restrictions.206 The ALJ did not give 9 significant weight to this opinion because the record indicated that the plaintiff’s condition limited 10 her to medium-level work.207 The ALJ accorded great weight to the opinion of consultative examiner Dr. Marinos. 208 Dr. United States District Court Northern District of California 11 12 Marinos noted that the plaintiff’s primary functional limitation was related to her physical 13 condition and not her mental condition.209 Dr. Marinos also noted that the plaintiff was able “to 14 understand, remember, and carry out simple instructions” in a work setting.210 At step five, the ALJ found that the plaintiff had the residual-functional capacity to perform a 15 16 full range of light work beginning February 26, 2016, as noted by Dr. Salamacha.211 Dr. 17 Salamacha’s physical examination revealed that the plaintiff was in no acute distress, had a normal 18 reciprocal gait, her Romberg — or posture — test was negative, she used no assistive device, and 19 20 21 22 23 24 25 26 27 28 202 203 204 205 Id. AR 25. Id. Id. 206 Id. A review of the Administrative Record revealed that Dr. Mangat’s opinion, located at AR 875, refers to a patient named “Carolyn Bynum” and not the plaintiff. The ALJ accorded little weight to this opinion because it was inconsistent with the medical record. See Mot. – ECF No. 18 at 15. 207 208 AR 25. Id. 209 AR 25–26. 210 AR 25. 211 AR 26. ORDER – No. 18-cv-02241-LB 21 1 her straight-leg test was negative.212 The ALJ noted Dr. Salamacha’s determination that the 2 plaintiff was capable of light work and could sit for six hours, stand for four hours, and walk for 3 two hours.213 The ALJ concluded that the plaintiff’s alleged functional limitations were 4 inconsistent with the medical evidence of record and that she was able to perform her past relevant 5 work as a general nurse.214 The ALJ found that the plaintiff was not disabled.215 6 7 STANDARD OF REVIEW 8 Under 42 U.S.C. § 405(g), district courts have jurisdiction to review any final decision of the United States District Court Northern District of California 9 10 Commissioner if the claimant initiates a suit within sixty days of the decision. A court may set 11 aside the Commissioner’s denial of benefits only if the ALJ’s “findings are based on legal error or 12 are not supported by substantial evidence in the record as a whole.” Vasquez v. Astrue, 572 F.3d 13 586, 591 (9th Cir. 2009) (internal citation and quotation marks omitted); 42 U.S.C. § 405(g). 14 “Substantial evidence means more than a mere scintilla but less than a preponderance; it is such 15 relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” 16 Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). The reviewing court should uphold “such 17 inferences and conclusions as the [Commissioner] may reasonably draw from the evidence.” Mark 18 v. Celebrezze, 348 F.2d 289, 293 (9th Cir. 1965). If the evidence in the administrative record 19 supports the ALJ’s decision and a different outcome, the court must defer to the ALJ’s decision 20 and may not substitute its own decision. Tackett v. Apfel, 180 F.3d 1094, 1097–98 (9th Cir. 1999). 21 “Finally, [a court] may not reverse an ALJ’s decision on account of an error that is harmless.” 22 Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). 23 24 25 26 27 28 212 Id. 213 AR 27. 214 AR 26–27. 215 AR 29. ORDER – No. 18-cv-02241-LB 22 APPLICABLE LAW 1 2 3 mental impairment which can be expected to result in death or which has lasted or can be expected 4 to last for a continuous period of not less than twelve months,” and (2) the “impairment or 5 impairments are of such severity that he is not only unable to do his previous work but cannot, 6 considering his age, education, and work experience, engage in any other kind of substantial 7 gainful work which exits in the national economy. . . .” 42 U.S.C. § 1382c(a)(3)(A) & (B). The 8 five-step analysis for determining whether a claimant is disabled within the meaning of the Social 9 Security Act is as follows. Tackett, 180 F.3d at 1098 (citing at 20 C.F.R. § 404.1520). 10 11 United States District Court Northern District of California A claimant is considered disabled if (1) he suffers from a “medically determinable physical or 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Step One. Is the claimant presently working in a substantially gainful activity? If so, then the claimant is “not disabled” and is not entitled to benefits. If the claimant is not working in a substantially gainful activity, then the claimant’s case cannot be resolved at step one, and the evaluation proceeds to step two. See 20 C.F.R. § 404.1520(a)(4)(i). Step Two. Is the claimant’s impairment (or combination of impairments) severe? If not, the claimant is not disabled. If so, the evaluation proceeds to step three. See 20 C.F.R. § 404.1520(a)(4)(ii). Step Three. Does the impairment “meet or equal” one of a list of specified impairments described in the regulations? If so, the claimant is disabled and is entitled to benefits. If the claimant’s impairment does not meet or equal one of the impairments listed in the regulations, then the case cannot be resolved at step three, and the evaluation proceeds to step four. See 20 C.F.R. § 404.1520(a)(4)(iii). Step Four. Considering the claimant’s RFC, is the claimant able to do any work that he or she has done in the past? If so, then the claimant is not disabled and is not entitled to benefits. If the claimant cannot do any work he or she did in the past, then the case cannot be resolved at step four, and the case proceeds to the fifth and final step. See 20 C.F.R. § 404.1520(a)(4)(iv). Step Five. Considering the claimant’s RFC, age, education, and work experience, is the claimant able to “make an adjustment to other work?” If not, then the claimant is disabled and entitled to benefits. See 20 C.F.R. § 404.1520(a)(4)(v). If the claimant is able to do other work, the Commissioner must establish that there are a significant number of jobs in the national economy that the claimant can do. There are two ways for the Commissioner to show other jobs in significant numbers in the national economy: (1) by the testimony of a vocational expert or (2) by reference to the Medical-Vocational Guidelines at 20 C.F.R., part 404, subpart P, app. 2. 27 28 ORDER – No. 18-cv-02241-LB 23 For steps one through four, the burden of proof is on the claimant. Gonzales v. Sec’y of Health 1 2 & Human Servs., 784 F.2d 1417, 1419 (9th Cir. 1986). At step five, the burden shifts to the 3 Commissioner. Id. 4 ANALYSIS 5 The plaintiff contends the ALJ erred by (1) failing to provide specific and legitimate reasons United States District Court Northern District of California 6 7 for rejecting the opinion of her treating and examining doctors, (2) failing to properly consider the 8 plaintiff’s own testimony, and (3) failing to support the step-four and step-five findings with 9 substantial evidence.216 10 The court holds that the ALJ erred by discounting the opinions of Dr. Kaisler-Meza and PA 11 Kumar and by discounting the plaintiff’s testimony. Because the ALJ’s analysis was predicated on 12 his findings, the court also finds that the step-four and step-five analyses were not supported by 13 substantial evidence. 14 15 1. Whether the ALJ Properly Weighed Medical Evidence The plaintiff contends that the ALJ failed to properly weigh the opinions of her treating 16 17 physician, Dr. Kaisler-Meza.217 The ALJ is responsible for “‘resolving conflicts in medical testimony, and for resolving 18 19 ambiguities.’” Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014) (quoting Andrews, 53 F.3d 20 at 1039). In weighing and evaluating the evidence, the ALJ must consider the entire case record, 21 including each medical opinion in the record, together with the rest of the relevant evidence. 22 20 C.F.R. § 416.927(b); see also Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (“[A] reviewing 23 court [also] must consider the entire record as a whole and may not affirm simply by isolating a 24 specific quantum of supporting evidence.”) (internal quotation marks and citation omitted). 25 26 27 28 216 Mot. – ECF No. 18 at 6. 217 Id. at 14–17. ORDER – No. 18-cv-02241-LB 24 “In conjunction with the relevant regulations, [the Ninth Circuit has] developed standards that 1 2 guide [the] analysis of an ALJ’s weighing of medical evidence.”218 Ryan v. Comm’r of Soc. Sec., 3 528 F.3d 1194, 1198 (9th Cir. 2008) (citing 20 C.F.R. § 404.1527). Social Security regulations 4 distinguish between three types of physicians: (1) treating physicians; (2) examining physicians; 5 and (3) non-examining physicians. 20 C.F.R. § 416.927(c), (e); Lester v. Chater, 81 F.3d 821, 830 6 (9th Cir. 1995). “Generally, a treating physician’s opinion carries more weight than an examining 7 physician’s, and an examining physician’s opinion carries more weight than a reviewing [non- 8 examining] physician’s.” Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001) (citing 9 Lester, 81 F.3d at 830); Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996). An ALJ may disregard the opinion of a treating physician, whether or not controverted. United States District Court Northern District of California 10 11 Andrews, 53 F.3d at 1041. “To reject [the] uncontradicted opinion of a treating or examining 12 doctor, an ALJ must state clear and convincing reasons that are supported by substantial 13 evidence.” Ryan, 528 F.3d at 1198 (internal quotation marks and citation omitted). By contrast, if 14 the ALJ finds that the opinion of a treating physician is contradicted, a reviewing court will 15 require only that the ALJ provide “specific and legitimate reasons supported by substantial 16 evidence in the record.” Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (internal quotation 17 marks and citation omitted); see also Garrison, 759 F.3d at 1012 (“If a treating or examining 18 doctor’s opinion is contradicted by another doctor’s opinion, an ALJ may only reject it by 19 providing specific and legitimate reasons that are supported by substantial evidence.”) (internal 20 quotation marks and citation omitted). The opinions of non-treating or non-examining physicians 21 may serve as substantial evidence when the opinions are consistent with independent clinical 22 findings or other evidence in the record. Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). 23 An ALJ errs, however, when he “rejects a medical opinion or assigns it little weight” without 24 explanation or without explaining why “another medical opinion is more persuasive, or criticiz[es] 25 26 27 28 218 The Social Security Administration promulgated new regulations, including a new § 404.1521, effective March 27, 2017. The previous version, effective to March 26, 2017, governs here based on the date of the ALJ’s hearing, November 21, 2016. ORDER – No. 18-cv-02241-LB 25 United States District Court Northern District of California 1 it with boilerplate language that fails to offer a substantive basis for his conclusion.” Garrison, 2 759 F.3d at 1012-13. 3 “If a treating physician’s opinion is not given ‘controlling weight’ because it is not ‘well- 4 supported’ or because it is inconsistent with other substantial evidence in the record, the [Social 5 Security] Administration considers specified factors in determining the weight it will be given.” 6 Orn, 495 F.3d at 631. “Those factors include the ‘[l]ength of the treatment relationship and the 7 frequency of examination’ by the treating physician; and the ‘nature and extent of the treatment 8 relationship’ between the patient and the treating physician.” Id. (quoting 20 C.F.R. § 9 404.1527(d)(2)(i)-(ii)) (alteration in original). “Additional factors relevant to evaluating any 10 medical opinion, not limited to the opinion of the treating physician, include the amount of 11 relevant evidence that supports the opinion and the quality of the explanation provided[,] the 12 consistency of the medical opinion with the record as a whole[, and] the specialty of the physician 13 providing the opinion . . . .” Id. (citing 20 C.F.R. § 404.1527(d)(3)-(6)). 14 The ALJ found the following about Dr. Kaisler-Meza’s opinion: 15 20 Treating physician Allen Kaisler-Meza, M.D. opined that the claimant is limited to a less than sedentary functional[it]y with sitting a total of 2 hours, standing a total of 2 hours and walking less than an hour (Exhibit 13F at 2, 3). The undersigned gives little weight to Dr. Kaisler-Meza’s opinion because although he has treated the claimant since November 16, 2006, the record indicates that physician assistant Kumar was the primary person conducting the examinations with Dr. Kaisler-Meza being the supervising physician (Exhibit 16F at 29). Furthermore, Dr. KaislerMeza’s opinion in the medical source statement is not consistent with the objective evidence of record.219 21 Dr. Kaisler-Meza’s opinion is contradicted by the opinions of the consultative examiners.220 16 17 18 19 22 Thus, the ALJ was required to give specific and legitimate reasons supported by the record for 23 discounting the opinion. Reddick, 157 F.3d at 725. The court holds that the ALJ did not meet this 24 standard. The ALJ gave little weight to Dr. Kaisler-Meza’s opinion because PA Kumar was the 25 26 27 28 219 AR 25. 220 Compare AR 471 and 592 with AR 598 and AR 888. ORDER – No. 18-cv-02241-LB 26 1 “primary person” examining the plaintiff.221 This is not a specific and legitimate reason to 2 discount the opinion. Under CFR § 404.1502, a supervising physician is not precluded from being 3 considered a treating physician. “[T]he use of a team approach by medical providers is analytically 4 significant” if the opinions among the various treating doctors are consistent, as they were 5 between Dr. Kaisler-Meza and PA Kumar. Benton ex rel. Benton v. Barnhart, 331 F.3d 1030, 6 1037 (9th Cir. 2003). A supervising physician may employ a nurse to physically conduct the 7 medical examinations without fear of losing the treating physician status; doing so may place the 8 physician “relatively low on the continuum of treating physicians,” but they “would still fall into 9 the treating physician category” and their “opinion would be entitled to greater weight than that of United States District Court Northern District of California 10 an examining or reviewing physician.” Benton ex rel. Benton v. Barnhart, 331 F.3d at 1039. 11 Here, Dr. Kaisler-Meza and PA Kumar adopted a team approach. Based on the array of 12 different treatment strategies that were prescribed and acknowledged in Dr. Kaisler-Meza’s 13 medical source statement, both PA Kumar and Dr. Kaisler-Meza were familiar with the plaintiff’s 14 case. Dr. Kaisler-Meza was kept informed of her condition and retained responsibility for her care 15 over the course of several years. Dr. Kaisler-Meza’s assessment of the plaintiff’s condition was 16 predicated not only on his own observations but also on the plaintiff’s records reflecting 17 assessments and treatments by PA Kumar. His signature on 54 progress reports shows that he was 18 aware of the ongoing treatment and medication management of the plaintiff’s back issues, and his 19 assessment cannot be divorced from the plaintiff’s overall treatment at a treatment facility. 20 The ALJ also discredited Dr. Kaisler-Meza’s opinion because it was not consistent with the 21 objective evidence of the record as a whole.222 A review of the record reveals that this is not the 22 case. The plaintiff was consistently diagnosed with and treated for various back-related injuries.223 23 24 25 26 27 28 221 222 AR 25. Id. 223 AR 471, 475, 479, 487, 492, 497 (diagnoses of lumbar–disc displacement without myelopathy and lumbago); AR 890 (diagnosis of right L5 radiculitis with pain distribution); AR 246 (impressions including moderate to chronic lumbar strains, degenerative disc disease, and possible right lumbosacral radiculopathy); AR 599 (acknowledging in a Psychological Screen Evaluation that “the major obstacle to adequate job performance would appear to be the claimant’s physical condition.”). ORDER – No. 18-cv-02241-LB 27 1 The ALJ found that the plaintiff’s work history and income records supported work as a general 2 nurse, but the plaintiff’s medical history contains significant and long-lasting diagnoses of lumbar- 3 disc displacement without myelopathy and restrictions placed on her ability to move and lift.224 4 The record shows that the plaintiff suffered an injury to her back and over the course of several 5 years tried multiple interventions (including medication, aquatic therapy, and epidural injections) 6 without significant success or relief of symptoms. The ALJ did not identify specific objective 7 evidence in the record that was inconsistent with the plaintiff’s treating doctor’s opinion. The 8 court remands for reconsideration of the medical-opinion evidence. 9 10 2. Whether the ALJ Erred by Discounting the Plaintiff’s Testimony In assessing a claimant’s credibility, an ALJ must make two determinations. Molina, 674 F.3d United States District Court Northern District of California 11 12 at 1112. “First, the ALJ must determine whether [the claimant has presented] ‘objective medical 13 evidence of an underlying impairment which could reasonably be expected to produce the pain or 14 other symptoms alleged.’” Id. (quoting Vasquez, 572 F.3d at 591). Second, if the claimant 15 produces that evidence, and “there is no evidence of malingering,” the ALJ must provide 16 “specific, clear and convincing reasons for” rejecting the claimant’s testimony regarding the 17 severity of the claimant’s symptoms. Id. (internal quotation marks and citations omitted). 18 “Factors that an ALJ may consider in weighing a claimant’s credibility include reputation for 19 truthfulness, inconsistencies in testimony or between testimony and conduct, daily activities, and 20 unexplained, or inadequately explained, failure to seek treatment or follow a prescribed course of 21 treatment.” Orn, 495 F.3d at 636 (internal punctuation omitted). “[T]he ALJ must identify what 22 testimony is not credible and what evidence undermines the claimant’s complaints.” Burrell v. 23 Colvin, 775 F.3d 1133, 1138 (9th Cir. 2014); see, e.g., Morris v. Colvin, No. 16-CV-0674-JSC, 24 2016 WL 7369300, at *12 (N.D. Cal. Dec. 20, 2016). 25 In order to have meaningful appellate review, the ALJ must explain its reasoning and 26 “specifically identify the testimony [from a claimant] she or he finds not to be credible and . . . 27 28 224 AR 26, 471, 475, 479, 487, 492, 497. ORDER – No. 18-cv-02241-LB 28 United States District Court Northern District of California 1 explain what evidence undermines the testimony.” Treichler v. Comm’r of Soc. Sec., 775 F.3d 2 1090, 1102–03 (9th Cir. 2014) (“Credibility findings must have support in the record, and 3 hackneyed language seen universally in ALJ decisions adds nothing.”) (emphasis in original, 4 internal quotations omitted). “That means ‘[g]eneral findings are insufficient.’” Id. at 1102 5 (quoting Lester, 81 F.3d at 834); Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) (“the ALJ 6 must make a credibility determination with findings sufficiently specific to permit the court to 7 conclude that the ALJ did not arbitrarily discredit the claimant’s testimony” (citing Bunnell v. 8 Sullivan, 947 F.2d 341, 345–46 (9th Cir. 1991) (en banc)). Moreover, the court will “review only 9 the reasons provided by the ALJ in the disability determination and may not affirm the ALJ on a 10 ground upon which he did not rely.” Garrison, 759 F.3d at 1010. Here, the ALJ found the 11 following about the plaintiff’s testimony: 12 After careful consideration of the evidence, the undersigned finds that the claimant’s medically determinable impairments could reasonably be expected to produce the [] alleged symptoms; however, the claimant’s statements concerning the intensity, persistence[,] and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in this decision. Accordingly, these statements have been found to affect the claimant’s ability to work only to the extent they can reasonably be accepted as consistent with the objective medical and other evidence. In reaching this conclusion, the undersigned considered the claimant’s activities of daily living, treatment and medication, and objective evidence.225 13 14 15 16 17 18 The ALJ did not identify specifically what portions of the plaintiff’s testimony were not 19 20 credible or specifically identify what medical evidence and other evidence in the record 21 undermined his testimony. This was not a specific, clear, and convincing basis for rejecting his 22 testimony. Burrell v. Colvin, 775 F.3d 1133, 1138 (9th Cir. 2014). The court remands for 23 reconsideration of this issue too. 24 25 26 27 28 225 AR 24. ORDER – No. 18-cv-02241-LB 29 United States District Court Northern District of California 1 3. The ALJ’s Findings at Steps Four and Five 2 The plaintiff argues that the ALJ’s findings at steps four and five were not supported by 3 substantial evidence. 226The ALJ found that the plaintiff was “capable of performing [her] past 4 relevant work as a general nurse” and that the plaintiff “ha[d] the residual functional capacity to 5 perform the full range of medium work as defined in 20 CFR 404.1567(b).”227 Because the court 6 remands for a reweighing of medical-opinion evidence and the plaintiff’s testimony, and because 7 the past-relevant-work and RFC determinations are based on those assessments, the court remands 8 on this ground. 9 CONCLUSION 10 The court grants the plaintiff’s motion for summary judgment, denies the Commissioner’s 11 cross-motion for summary judgment, and remands the case for further proceedings consistent with 12 this order. This disposes of ECF 18 at 19. 13 14 15 IT IS SO ORDERED. 16 Dated: June 14, 2019 ______________________________________ LAUREL BEELER United States Magistrate Judge 17 18 19 20 21 22 23 24 25 26 27 28 226 Mot. – ECF No. 18 at 6. 227 AR 26. ORDER – No. 18-cv-02241-LB 30
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