Carlson v. Berryhill, No. 3:2018cv03107 - Document 19 (N.D. Cal. 2019)
Court Description: ORDER granting 18 the plaintiff's motion for summary judgment, denying the Commissioner's cross-motion, and remanding for further proceedings. (Beeler, Laurel) (Filed on 3/10/2019)
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Carlson v. Berryhill Doc. 19 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 DIANE CARLSON, Case No. 18-cv-03107-LB Plaintiff, 12 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND REMANDING CASE v. 13 14 NANCY A. BERRYHILL, Re: ECF Nos. 17 & 18 Defendant. 15 16 INTRODUCTION 17 18 Plaintiff Diane Carlson seeks judicial review of a final decision by the Commissioner of the 19 Social Security Administration denying her claim for disability benefits under Title II and Title 20 XVI of the Social Security Act.1 She moved for summary judgment.2 The Commissioner opposed 21 the motion and filed a cross-motion for summary judgment.3 Under Civil Local Rule 16-5, the 22 matter is submitted for decision by this court without oral argument. All parties consented to 23 24 25 26 27 28 1 Compl. – ECF No. 1; Motion for Summary Judgment – ECF No. 17 at 1–2. Citations refer to material in the Electronic Case File (“ECF”); pinpoint citations are to the ECF-generated page numbers at the top of documents. 2 Motion for Summary Judgment – ECF No. 17. 3 Cross-Motion – ECF No. 18. ORDER – No. 18-cv-03107-LB Dockets.Justia.com 1 magistrate-judge jurisdiction.4 The court grants the plaintiff’s motion, denies the Commissioner’s 2 cross-motion, and remands for further proceedings. 3 STATEMENT 4 United States District Court Northern District of California 5 1. Procedural History 6 On August 22, 2012, the plaintiff, born on February 27, 1963, and then age 49, filed claims for 7 social-security disability insurance (“SSDI”) benefits under Title II of the Social Security Act and 8 supplemental security income (“SSI”) under Title XVI.5 She alleged neck pain, shoulder pain, 9 pain, numbness, and tingling in the left hand, shooting pain in the left leg, carpal tunnel in both 10 hands, diabetes, depression, blurry eye sight, and pain in the side of her shoulder.6 She alleged an 11 onset date of May 31, 2012.7 She subsequently filed claims for SSDI benefits and SSI on October 12 15, 2015, alleging an onset date of December 17, 2014.8 The Commissioner denied her claims 13 initially and on reconsideration.9 The plaintiff requested a hearing.10 On September 3, 2014, Administrative Law Judge Richard P. Laverdure (the “ALJ”) held a 14 15 hearing in Oakland, California.11 Attorney Raymond Ugarte represented the plaintiff.12 The ALJ 16 heard testimony from the plaintiff, vocational expert (“VE”) Malcolm Brodzinsky, and medical 17 expert (“ME”) Anthony Francis.13 On December 17, 2014, the ALJ issued an unfavorable 18 19 20 21 22 23 24 25 26 27 28 4 Consent Forms – ECF Nos. 12 and 13. 5 AR 101, 115, 205–06. 6 AR 101. 7 AR 115, 205–06. 8 AR 1045–54, 1055–56. The plaintiff filed her subsequent applications while her original application was pending appeal at the United States District Court level. See Remand Order, 3:15-cv-03922-EDL – AR 923–26. That case was remanded and the subsequent claims were consolidated pursuant to the Appeal Council’s remand order. See AR 930. 9 AR 132–36 (initial); AR 139–44 (reconsideration). 10 AR 146–47. 11 AR 38–100. 12 AR 38. 13 Id. ORDER – No. 18-cv-03107-LB 2 1 decision.14 The plaintiff appealed the decision to the Appeals Council on January 12, 2015.15 The 2 Appeals Council denied her request for review on June 30, 2015.16 3 The plaintiff filed an action with the court, which remanded the matter pursuant to the parties’ 4 stipulation.17 The Appeals Council consequently vacated the ALJ’s prior decision, finding that the 5 ALJ did not “inquire or discuss occasional overhead reaching with the claimant’s right arm” 6 during the September 2014 hearing.18 The Appeals Council thus instructed the ALJ to (1) give 7 further consideration of the plaintiff’s maximum residual functional capacity (“RFC”) and provide 8 sufficient evidentiary support for the same, and (2) obtain supplemental VE testimony regarding 9 the effect of the assessed limitations on the plaintiff’s occupational base.19 The ALJ conducted the remand hearings on October 26, 2017 and February 13, 2018.20 United States District Court Northern District of California 10 11 Attorney Cyrus Saffa represented the plaintiff at both hearings.21 The ALJ heard testimony from 12 the plaintiff, VE Susan Creighton Clevelle, VE Lawrence Hughes, and ME Ronald Kendrick.22 13 The ALJ published an unfavorable decision on March 1, 2018.23 The plaintiff filed this action for 14 judicial review and subsequently moved for summary judgment on October 25, 2018.24 The 15 Commissioner opposed the motion and filed a cross-motion for summary judgment on November 16 21, 2018.25 17 18 19 20 21 22 23 24 25 26 27 28 14 AR 20–36. 15 AR 18–19. 16 AR 1–6. 17 AR 923–26. 18 AR 929–30. 19 AR 930. 20 AR 901–22 (October 2017 hearing transcript); AR 861–900 (February 2018 hearing transcript). 21 AR 861, 901. 22 AR 861, 901. 23 AR 846–60. 24 Motion for Summary Judgment – ECF No. 17. 25 Cross-Motion – ECF No. 18. ORDER – No. 18-cv-03107-LB 3 1 2. Summary of Record and Administrative Findings 2.1 2 2.1.1 3 Alameda County Medical Center — Treating The plaintiff visited Alameda County Medical Center on various occasions between August 4 5 2012 and January 2013.26 The records indicated that she had chronic neck and shoulder pain and 6 degenerative-joint disease.27 She could not raise her left arm overhead due to shoulder pain and 7 stiffness.28 She often described her pain as between 8/10 and 10/10.29 On December 5, 2012, Yasmeen Haq, M.D., an internist, wrote a doctor’s note stating that the 8 United States District Court Northern District of California Medical Records 9 plaintiff could not return to work until June 3, 2013.30 Dr. Haq saw the plaintiff on December 26, 10 2012 for shoulder pain.31 The plaintiff described her pain as 9/10.32 Dr. Haq prescribed 500 mg of 11 hydrocodone-acetaminophen and 600 mg of ibuprofen to be taken as needed.33 She referred the 12 plaintiff to neurosurgery and physical therapy.34 On January 19, 2013, Jackie Bolds, M.D., an internist, saw the plaintiff regarding lab results, 13 14 shoulder pain, and insomnia.35 Dr. Bolds referred the plaintiff to orthopedics for a steroid shot and 15 recommended heat therapy, local anesthetic cream, acupuncture, and ibuprofen.36 She prescribed 16 Ambien for the plaintiff’s insomnia.37 17 18 19 20 21 22 23 24 25 26 27 28 26 AR 476–546. 27 See, e.g., AR 506, 518. 28 AR 518. 29 See, e.g., AR 484, 494, 520. 30 AR 511. 31 AR 492–95. 32 AR 494. 33 AR 495. 34 Id. 35 AR 476–77. 36 AR 476. 37 Id. ORDER – No. 18-cv-03107-LB 4 2.1.2 1 The plaintiff was treated at Kaiser Permanente Medical Group various times between February 2 3 2, 2013 and January 2, 2018.38 On February 4, 2013, Carmina Isabel Ramos Dizon, M.D., a family-medicine specialist, saw 4 United States District Court Northern District of California Kaiser Permanente Medical Group — Treating 5 the plaintiff for an annual checkup.39 Dr. Dizon diagnosed her with neck pain, prediabetes, atopic 6 dermatitis, and shoulder-joint pain.40 Dr. Dizon noted that the plaintiff had been diagnosed with 7 degenerative-joint disease and herniated cervical discs.41 The plaintiff had not tried physical 8 therapy.42 Her pain had been occurring for three years.43 There was “no identifiable cause and it 9 happened gradually.”44 The plaintiff had been told previously that she had a “frozen shoulder” and 10 needed neck surgery.45 Her pain was trigged by movement.46 Dr. Dizon referred the plaintiff to 11 rehabilitation and an MRI for her neck pain and referred her to physical therapy for both her neck 12 and shoulder-joint pain.47 Dr. Dizon suggested lifestyle changes, such as diet and exercise, for the 13 plaintiff’s prediabetes.48 On February 8, 2013, physician assistant (“PA”) Justin Erich Brillo saw the plaintiff for left 14 15 shoulder pain.49 She reported that her pain worsened with overhead motion.50 She had not 16 attempted physical therapy.51 Padmaja Sista, P.T., a physical therapist, saw the plaintiff for a 17 18 19 20 21 22 23 24 25 26 27 28 38 See AR 570–649, 655–73, 695–756, 776–834, 1169–1201, 1296–1851, 1853–2887. 39 AR 577–78. 40 AR 577. 41 AR 578. 42 43 44 45 46 47 48 49 50 51 Id. Id. Id. Id. Id. AR 579. Id. AR 600. Id. Id. ORDER – No. 18-cv-03107-LB 5 1 cervical-spine evaluation on February 11, 2013.52 She noted that the plaintiff had “good” 2 rehabilitation potential for her shoulder and neck pain.53 P.T. Sista recommended therapeutic 3 exercise, functional-activity training, and group exercise.54 The plaintiff indicated that she did not 4 want to proceed with physical therapy on a weekly basis due to a high co-pay.55 Dr. Dizon saw the plaintiff for a follow-up appointment on March 5, 2013. Dr. Dizon noted 5 6 that the plaintiff’s insurance did not cover physical therapy.56 The plaintiff refused physical 7 therapy for her chronic neck pain.57 Dr. Dizon further noted that the plaintiff had no numbness, 8 tingling, or weakness in her extremities.58 The plaintiff also had no joint tenderness, deformity, or 9 swelling.59 Moreover, the plaintiff’s shoulder-injection relief lasted for only one day.60 Dr. Dizon 10 reported that the plaintiff appeared “alert, well appearing, and in no distress.”61 On April 1, 2013, Dr. Dizon saw the plaintiff for neck pain and carpal-tunnel syndrome.62 The United States District Court Northern District of California 11 12 plaintiff was advised to get neck surgery, but she refused.63 A spine-clinic doctor suggested that 13 the plaintiff take pain medication and undergo acupuncture.64 Dr. Dizon recommended that the 14 plaintiff follow up with the spine clinic for a second opinion about her neck pain.65 Dr. Dizon 15 16 17 18 19 20 21 22 23 24 25 26 27 28 52 AR 602–05. 53 AR 603. 54 Id. 55 AR 603, 605. 56 AR 621. 57 58 59 60 61 Id. Id. Id. Id. Id. 62 AR 643–45. 63 See AR 643, 731, 792, 1311, 1489. 64 AR 643–44. 65 AR 644. ORDER – No. 18-cv-03107-LB 6 1 referred the plaintiff to a neurology lab for electromyography testing for her carpal-tunnel 2 syndrome.66 On April 8, 2013, PA Brillo saw the plaintiff for left-shoulder pain.67 The plaintiff reported 3 4 that her pain was worse with “overhead motion” and “carrying weight.”68 A joint injection 5 provided “little relief.”69 PA Brillo noted that the plaintiff had “tenderness to palpation over ac 6 joint” in her left shoulder.70 On May 29, 2013, Francis Alarico, P.T., a physical therapist, called the plaintiff to advise her 7 8 regarding the chronic-pain program.71 The plaintiff did not answer.72 In April 2014, Dr. Dizon advised the plaintiff regarding her prescription-medication use and United States District Court Northern District of California 9 10 informed her that she would need to take a urine test for continued use.73 The plaintiff responded, 11 “why do [I] have to get tested. I refuse to do that. im usally [sic] in pain so i do need my medicine 12 since therapy doesn’t work nor I want surge[r]y.”74 On May 8, 2014, Dewate Sumetanon, M.D., a physical medicine and rehabilitation specialist, 13 14 summarized the plaintiff’s neck- and shoulder-pain treatment history as follows: “Cerv[ical] 15 surgery recommended, however pt never wants surgery for this. I recommended acupuncture, she 16 went once and never returned. Referred to Chronic Pain Program last year, never showed up. 17 Doesn’t do PT. Says she does nothing at home.”75 Dr. Sumetanon referred the plaintiff to 18 acupuncture, as she indicated she was willing to try it again.76 He also referred her to a stress- 19 20 21 22 23 24 25 26 27 28 66 AR 645. 67 AR 647. 68 69 Id. Id. 70 AR 648. 71 AR 723. 72 Id. 73 AR 1501. 74 AR 1501–02. 75 AR 818–19. 76 AR 820. ORDER – No. 18-cv-03107-LB 7 1 reduction program.77 He encouraged home exercise and using heat and ice before and after 2 exercise, respectively.78 The plaintiff declined physical therapy.79 In October 2014, PA Brillo saw the plaintiff for left-shoulder pain.80 The plaintiff reported that 3 4 her pain worsened with overhead motion.81 She declined a cortisone injection and requested a 5 surgery consultation to discuss further treatment options.82 Jun Matsui, M.D., an orthopedic surgery, consulted the plaintiff in February 2015 in 6 7 preparation for her carpal-tunnel release.83 Dr. Matsui also noted that the plaintiff was at a “higher 8 than usual” risk for persistent numbness due to her neck conditions.84 As of November 17, 2016, the plaintiff was still pre-diabetic.85 She again was recommended to 9 10 exercise regularly, lose weight, and eat a proper diet to prevent the development of diabetes.86 On July 30, 2017, the plaintiff was treated for an ankle sprain.87 She received an x-ray of her United States District Court Northern District of California 11 12 ankle, was placed with a splint, and given crutches.88 She did not show up for a follow-up visit, 13 which was scheduled for August 9, 2017.89 14 In August 2017, the plaintiff attempted to fill her opioid medication early with Kevin Gerard, 15 Hart, M.D., her primary-care physician.90 On September 25, 2017, the plaintiff received chronic- 16 17 18 19 20 21 22 23 24 25 26 27 28 77 78 79 80 81 Id. Id. Id. AR 1862. Id. 82 AR 1862–63. 83 AR 843–45, 1218–21. 84 AR 1221. 85 AR 2126, 2129–30. 86 AR 2129–30. 87 AR 2452–57. 88 AR 2455. 89 AR 2493. 90 AR 2503. ORDER – No. 18-cv-03107-LB 8 United States District Court Northern District of California 1 opioid treatment for her neck pain.91 She reported that her “depression symptoms [were] better” 2 but complained of “drowsiness” from Celexa.92 The plaintiff stopped taking Norco when she was 3 denied a refill.93 She reported Norco helped with her pain and helped her “function better.”94 She 4 did not believe that stopping Norco caused her depression.95 Dr. Hart prescribed Hydrocodone- 5 Acetaminophen for her pain.96 On November 17, 2017, Dr. Hart noted that the plaintiff attempted 6 to refill her opioid medication five days early.97 7 On November 17, 2017, Jennifer Anne Johnson, M.D., a rheumatologist, saw the plaintiff for 8 chronic-pain disorder.98 The plaintiff reported “all-over body pain” and that she was not sleeping 9 well due to pain.99 She received a cortisone injection for her left-trigger finger and was referred to 10 a chronic-pain class.100 As of December 5, 2017, the chronic-pain-management clinic had 11 attempted to contact the plaintiff four times regarding her referral.101 The plaintiff did not 12 respond.102 Ultimately, the clinic closed her referral because she was contacted “multiple times by 13 phone and secure MSG,” but the plaintiff did not return the calls.103 On November 27, 2017, Dr. Hart noted again that the plaintiff sought early refills of Norco 14 15 and Ambien.104 16 17 18 19 20 21 22 23 24 25 26 27 28 91 AR 2541–44. 92 AR 2541. 93 94 95 Id. Id. Id. 96 AR 2542. 97 AR 2564. 98 AR 2590–2600. 99 AR 2590. 100 AR 2593. 101 AR 2646; see also AR 2638. 102 AR 2638, 2646. 103 AR 2651. 104 AR 2605. ORDER – No. 18-cv-03107-LB 9 2.1.3 1 On February 22, 2013, Omar C. Bayne, M.D., an orthopedic surgeon, saw the plaintiff 2 United States District Court Northern District of California Omar C. Bayne, M.D. — Examining 3 regarding her neck and left-shoulder pain.105 Dr. Bayne noted that the plaintiff had been diagnosed 4 with cervical degenerative-disc disease and had been treated conservatively with pain medication, 5 anti-inflammatory medications, and physical therapy.106 She had also been diagnosed with left- 6 rotator-cuff calcific tendonitis and was given conservative treatment.107 Her neck pain was 7 aggravated with “repetitive flexion, extension, rotation of her neck.”108 Her pain woke her up at 8 night and “bother[ed]” her when she attempted to work with her left hand above shoulder level.109 9 Dr. Bayne noted that the plaintiff was in no acute distress, oriented to time, place, and person, 10 and well-groomed.110 She could squat, sit, and get up from a sitting to standing position without 11 difficulty.111 He found that the plaintiff had “significant paracervical muscle spasms to palpation” 12 and “tenderness to palpation over both trapezius muscles” with respect to her cervical spine.112 13 She had a full range of movement in the right shoulder.113 Her left shoulder was “tender to 14 palpation over the lateral acromion and left shoulder girdle muscles.”114 Her manual motor- 15 strength testing was “5/5 in all muscle groups” in her upper extremities, except the “right shoulder 16 girdle muscles were 4/5.”115 She had a “normal lordotic curve of her lumbar spine” and full range 17 of movement in her hip, knees, and ankles.116 18 19 20 21 22 23 24 25 26 27 28 105 AR 547–49. 106 AR 547. 107 108 109 110 111 112 113 114 115 116 Id. Id. Id. AR 548. Id. Id. Id. Id. Id. Id. ORDER – No. 18-cv-03107-LB 10 1 Based on his examination, Dr. Bayne opined that the plaintiff could stand and walk “with 2 appropriate breaks” for six hours in an eight-hour workday.117 She could sit, with appropriate 3 breaks, for six hours in an eight-hour workday.118 He further found that 4 8 Repetitive flexion, extension and rotation of her neck should be limited to occasionally. Working with the left hand above the shoulder level should be limited to occasionally. There are no restrictions in performing bilateral repetitive finger, hand and wrist manipulations or bilateral repetitive hand tasks frequently. She should be able to lift and carry 10 pounds frequently and 20 pounds occasionally. There are no restrictions on flexion, extension, bending, crouching, crawling and stooping. She should be able to work in any work environment except on unprotected heights.119 9 2.1.4 5 6 7 United States District Court Northern District of California 10 Jenny Forman, M.D. — Examining On August 1, 2013, Jenny Forman, M.D., a psychologist, saw the plaintiff for a psychiatric 11 evaluation.120 The plaintiff reported experiencing depression and anxiety “due to her medical 12 condition and change in lifestyle.”121 Her symptoms included insomnia, restlessness, nervousness, 13 worrying, feeling overwhelmed, occasional sadness and irritability, and mildly diminished 14 memory and concentration.122 Her daily activities included walking, watching television, doing 15 light household chores, going to church on Sundays, and spending time with her children.123 Based 16 on her assessment, Dr. Forman opined that the plaintiff had no impairments with respect to work- 17 related activities. Specifically, she was able to do the following: follow both simple and complex 18 instructions; maintain adequate pace or persistence to perform simple or complex tasks; withstand 19 the stress of an eight-hour workday; interact appropriately with co-workers, supervisors, and the 20 21 22 23 24 25 26 27 28 117 118 119 AR 549. Id. Id. 120 AR 674–77. 121 AR 674. 122 123 Id. Id. ORDER – No. 18-cv-03107-LB 11 1 public on a regular basis; adapt to changes, hazards, or stressors in the workplace; manage funds; 2 and work for eight hours each day.124 2.1.5 3 Robert Miller, M.D., a physical medicine and rehabilitation specialist, saw the plaintiff on 4 United States District Court Northern District of California Robert Miller, M.D. — Treating 5 October 28, 2013 for neck pain, numbness, and tingling.125 Dr. Miller referred her for a cervical 6 MRI and prescribed 500 mg of Lortab daily and Ambien for sleep.126 He also recommended a 7 cervical-traction trial.127 8 On July 1, 2014, Dr. Miller completed an impairment questionnaire.128 He diagnosed the 9 plaintiff with carpal-tunnel syndrome, neck pain, cervical-degenerative disease, and joint pain in 10 her hand.129 Her primary symptoms were neck pain, numbness, and tingling on her right side.130 11 Her pain was caused by a history of cervical-disc protrusion, and it occurred on a daily basis.131 12 Repetitive motion aggravated her pain.132 Her treatments included physical therapy and 13 medication, and surgery was recommended.133 Dr. Miller opined that the plaintiff could perform a job in a seated position for up to four hours 14 15 in an eight-hour workday, and she could perform a job standing and/or walking for six or more 16 hours in an eight-hour workday.134 He further opined that it was medically necessary for the 17 plaintiff to avoid continuous sitting in an eight-hour workday. She had to get up from a seated 18 19 20 21 22 23 24 25 26 27 28 124 AR 676. 125 AR 687–88. 126 AR 688. 127 Id. 128 AR 770–75; AR 837–41 (same). 129 AR 771. 130 AR 772. 131 132 133 134 Id. Id. Id. AR 773. ORDER – No. 18-cv-03107-LB 12 1 position and move around for twenty minutes every hour before she could sit again.135 Dr. Miller 2 opined that the plaintiff could occasionally lift and carry up to ten pounds, and could never or 3 rarely lift and carry more than ten pounds.136 She could occasionally grasp, turn, and twist objects, 4 use her hands and fingers for fine manipulations, and reach (including overhead) with both 5 arms.137 Dr. Miller opined that the plaintiff’s symptoms would increase if she worked in 6 competitive employment due to an increase in her neck pain.138 Her symptoms would occasionally 7 interfere with her attention and concentration.139 She would likely miss work once per month due 8 to her impairments.140 Emotional factors did not contribute to her functional limitations.141 2.1.6 9 On April 24, 2013, Katalin Galasi, Psy.D., a psychologist, saw the plaintiff for “anxiety 10 United States District Court Northern District of California Katalin Galasi, Psy.D. (Kaiser) — Treating 11 including excessive worry and muscle tension[,] life problems including relationship problems[,] 12 and health problems.”142 The plaintiff had been “more anxious over the past month” due to 13 “various stressors.”143 For example, the plaintiff was in the process of seeking disability 14 benefits.144 Also, “when she ha[d] time to think about her health issues, her pain [was] much 15 worse than when busy.”145 She denied any prior history of anxiety.146 In addition, the plaintiff had 16 ongoing neck and shoulder pain.147 She was considering surgery on her neck and shoulders but 17 18 19 20 21 22 23 24 25 26 27 28 135 136 137 138 139 140 141 Id. Id. AR 774. Id. Id. AR 775. Id. 142 AR 1169–82. 143 AR 1170. 144 145 146 147 Id. Id. Id. Id. ORDER – No. 18-cv-03107-LB 13 United States District Court Northern District of California 1 was “hesitant” and “worrie[d]” her condition would not improve with surgery.148 “Another 2 stressor” was the plaintiff’s relationship with her husband.149 They argued frequently, he was in 3 recovery from drugs, and he sometimes spoke disrespectfully to her.150 Dr. Galasi recommended 4 that the plaintiff reduce her caffeine intake and reminded her that certain medications may 5 contribute to anxiety.151 She also encouraged self-care, including healthy eating and continued 6 exercise.152 Dr. Galasi referred the plaintiff to a chronic-pain program as well.153 7 On November 17, 2014, Dr. Galasi had a follow-up appointment with the plaintiff over the 8 phone.154 The plaintiff was experiencing increased stress due to “some challenges at home.”155 Dr. 9 Galasi saw the plaintiff on November 19, 2014 regarding her son’s drug abuse .156 The plaintiff’s 10 husband’s prescription-medication addiction was also contributing to her stress.157 She reported 11 experiencing anxiety (including excessive worry), occasional headaches, depression, crying spells, 12 irritability, agitation, guilt, and decreased libido.158 She was tearful during the appointment.159 Dr. 13 Galasi referred the plaintiff to group therapy.160 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 148 149 150 Id. Id. Id. 151 AR 1172–73. 152 AR 1173. 153 AR 1173, 721, 723. 154 AR 1192–93. 155 AR 1192. 156 AR 1194–96. 157 AR 1195. 158 159 160 Id. Id. AR 1196. ORDER – No. 18-cv-03107-LB 14 2.1.7 1 On July 20, 2017, Ward D. Finer, Ph.D., a psychologist, saw the plaintiff for depression.161 2 United States District Court Northern District of California Ward D. Finer, Ph.D. (Kaiser) — Treating 3 The plaintiff reported that she had become “more depressed over the last several months.”162 Her 4 mother had passed away in October 2016, and her son was arrested for drug use and was in a 5 rehabilitation program.163 In addition, her husband continued to have problems related to 6 employment and medication.164 The plaintiff reported “always feel[ing] sad” and that she cried 7 easily — several times each week.165 She was “more irritable than usual” and “tend[ed] to nag her 8 husband.”166 She felt “more tired than usual,” had stopped going to the gym, and felt bad about 9 recent weight gain.167 She also reported that her husband had been physically abusive in the past 10 but denied current physical threats or abuse.168 Moreover, “[w]hereas she is normally energetic 11 and upbeat” she found herself “increasingly tired, sad and prone to get into conflicts with 12 people.”169 She reportedly had not felt that way before and had not previously undergone a trial of 13 antidepressant medication.170 She was open to a medication consultation as well as group 14 therapy.171 Dr. Finer referred the plaintiff to psychotherapy treatment with Sasikala Manavalan, 15 M.D.172 16 17 18 19 20 21 22 23 24 25 26 27 28 161 AR 2405–12. 162 AR 2406. 163 164 165 166 167 168 169 170 171 172 Id. Id. Id. Id. Id. Id. AR 2409. Id. Id. AR 2410-11. ORDER – No. 18-cv-03107-LB 15 2.1.8 1 On July 21, 2017, Sasikala Manavalan, M.D., a psychiatrist, saw the plaintiff for a psychiatric 2 United States District Court Northern District of California Sasikala Manavalan, M.D. (Kaiser) — Treating 3 evaluation.173 The plaintiff reported “worsening depression and anxiety over the last 8 months 4 since the passing of her mother.”174 She admitted that she “probably never got over it, as she 5 continue[d] to feel guilt that she did not spend more time with her.”175 She reported additional 6 stressors, including recent weight gain, “constant fights” with her husband, and family stress with 7 one of her daughters who abused drugs.176 She also reported a “drastic decline from her baseline 8 level of functioning.”177 She was no longer interested in exercising, socializing, or shopping.178 9 She had “low energy[,] decreased interest, low mood and anhedonia.”179 Dr. Manavalan noted that 10 the plaintiff appeared tearful, depressed, dysphoric, anxious, and sad but was also pleasant and 11 cooperative.180 Dr. Manavalan diagnosed the plaintiff with “major depressive disorder, recurrent 12 episode, severe.”181 She prescribed Citalopram (Celexa), 10 mg to be taken daily.182 13 Dr. Manavalan saw the plaintiff again on August 4, 2017.183 The plaintiff reported she was 14 “[d]oing a little bit better.”184 She reported only one crying episode since her last appointment and 15 “[o]verall fe[lt] less sad and more relaxed, able to brush off things more easily and not become as 16 easily frustrated.”185 Her symptoms included continued depressed mood, anhedonia, and insomnia, 17 18 19 20 21 22 23 24 25 26 27 28 173 AR 2424–35. 174 AR 2424. 175 176 177 178 179 Id. Id. Id. Id. Id. 180 AR 2430. 181 AR 2431. 182 Id. 183 AR 2478–90. 184 AR 2478. 185 Id. ORDER – No. 18-cv-03107-LB 16 1 though her symptoms had “improved slightly.”186 Dr. Manavalan recommended a continued 2 prescription of Celexa, 10 mg to be taken daily, as well as individual therapy.187 3 Dr. Manavalan saw the plaintiff again on September 7, 2017.188 The plaintiff reported that her 4 depressive-disorder symptoms had improved over the past month.189 Dr. Manavalan noted that the 5 plaintiff’s level of depression was moderate and her global distress severity was “[m]oderately 6 [s]evere.”190 On October 24, 2017, Dr. Manavalan saw the plaintiff for a follow-up visit.191 The plaintiff United States District Court Northern District of California 7 8 reported that “once again she fe[lt] she [was] back to square one in term[s] of her depression.”192 9 Because the anniversary of her mother’s death was approaching, she had not been able to “control 10 her sadness.”193 She was once again experiencing “crying spells.”194 Her family did not understand 11 and “merely t[old] her to take a pill.”195 The plaintiff also continued to have troubling sleeping, 12 was experiencing nightmares, and had been taking Ambien nearly every day.196 She could not 13 sleep without it.197 She denied having any thoughts or plans to harm herself, others, or property.198 14 Dr. Manavalan prescribed an increased dose of Celexa, 20 mg to be taken daily.199 She also 15 16 17 18 19 20 21 22 23 24 25 26 27 28 186 AR 2479. 187 AR 2483. 188 AR 2520–31. 189 AR 2521. 190 AR 2525. 191 AR 2573–83. 192 AR 2573. 193 194 195 196 197 Id. Id. Id. Id. Id. 198 AR 2577. 199 AR 2579. ORDER – No. 18-cv-03107-LB 17 1 recommended reading self-help books and maintaining healthy habits, such as a proper diet, 2 exercise, and meditation.200 The plaintiff declined individual therapy at that time.201 In a letter dated November 8, 2017, Dr. Manavalan stated that the plaintiff had been diagnosed 3 4 with “[m]ajor [d]epression, recurrent severe” and generalized anxiety disorder.202 Dr. Manavalan 5 reported that the plaintiff had been receiving treatment for depression and anxiety, “which began 6 after the passing of her mother.”203 The plaintiff showed “minor improvement” with medication 7 but continued to “exhibit relapses.”204 She had not been able to “function at work, having to quit 8 her job.”205 The plaintiff “continue[d] to be motivated and [c]ooperative with treatment.”206 On November 30, 2017, Dr. Manavalan saw the plaintiff for a follow-up visit.207 The plaintiff United States District Court Northern District of California 9 10 reported that her depressive-disorder symptoms had “improved slightly over the past 3 months.”208 11 That day, however, she was having a “hard day” because her husband had been “verbally abusive” 12 toward her.209 Dr. Manavalan noted that Celexa helped the plaintiff with her anxiety.210 She no 13 longer got “overly anxious about things” and was “able to remain calm for the most part,” except 14 when her husband was “verbally abusive towards her.”211 The plaintiff was considering ending the 15 relationship.212 She reported feeling “excessively tired all the time” and felt “less motivated in 16 general.”213 Dr. Manavalan recommended continued use of Celexa, 20 mg per day, and 5 mg of 17 18 19 20 21 22 23 24 25 26 27 28 200 201 202 203 204 205 206 Id. Id. AR 2585. Id. Id. Id. Id. 207 AR 2621–31. 208 AR 2621. 209 210 211 Id. AR 2627. Id. 212 AR 2621. 213 AR 2627. ORDER – No. 18-cv-03107-LB 18 1 Ambien per day.214 She also prescribed Bupropion, 75 mg, one-half of a tab daily for the first ten 2 days and then one tab daily.215 2.1.9 3 4 In March 2013, G. Lee, M.D., a state-agency medical consultant, opined that the plaintiff 5 could do the following: occasionally lift and carry up to twenty pounds; frequently lift and carry 6 up to ten pounds; stand and walk for about six hours in an eight-hour workday; sit for about six 7 hours in an eight-hour workday; push and pull with both upper and lower extremities.216 She had 8 limited ability to reach overhead on the left side and to use gross and fine manipulation in both 9 hands.217 She had no visual or environmental limitations.218 2.1.10 Margaret Pollack, Ph.D. — Non-Examining 10 United States District Court Northern District of California G. Lee, M.D. — Non-Examining 11 In August 2013, Margaret Pollack, Ph.D., a state-agency psychology consultant, opined as 12 follows. The plaintiff was independent in activities of daily living and had “no limitations notable 13 from a psych perspective.”219 Dr. Pollack noted that, during a consultative examination earlier that 14 month, the plaintiff was cooperative and demonstrated no thought disorder or mood lability.220 She 15 did not indicate any cognitive impairments.221 She had no limited capacity for substantial gainful 16 activity due to her psychological allegations.222 17 18 19 20 21 22 23 24 25 26 27 28 214 215 216 217 Id. Id. AR 111. Id. 218 AR 111–12. 219 AR 125. 220 221 222 Id. Id. Id. ORDER – No. 18-cv-03107-LB 19 United States District Court Northern District of California 1 2.2 Other Opinion Records 2 On December 26, 2012, David Carlson, the plaintiff’s husband, completed a third-party 3 function report.223 By that point, Mr. Carlson had known the plaintiff for five years.224 They were 4 together every day and did “everything” together.225 He reported that the plaintiff could not bend 5 her neck and experienced the following conditions: lower-back pain; shoulder pain; numbness in 6 her hand; and throbbing pain.226 Her pain affected her sleep.227 She would “try to stretch or walk 7 lightly to ease [the] pain.”228 8 The plaintiff could not lift her left shoulder, but otherwise her conditions did not affect her 9 ability regarding personal care.229 She did not need reminders to take care of her personal needs or 10 grooming.230 She did not cook or prepare her own meals.231 She was unable to do any household 11 chores because she had “pain with movement.”232 He further reported that the plaintiff went 12 outside daily and traveled by car.233 She could not go out alone in case she experienced “sudden 13 pain.”234 She went grocery shopping once per week.235 She could pay bills but could not count change, handle a savings account, or use checkbooks 14 15 or money orders due to “pain with [her] hands.”236 Mr. Carlson stated that the plaintiff’s 16 17 18 19 20 21 22 23 24 25 26 27 28 223 AR 276–84. 224 AR 276. 225 226 227 228 229 230 231 Id. Id. AR 277. Id. Id. AR 278. Id. 232 AR 278–79. 233 AR 279. 234 235 236 Id. Id. Id. ORDER – No. 18-cv-03107-LB 20 1 conditions had not affected her ability to handle money.237 The plaintiff had no hobbies and did 2 not socialize with others.238 She attended church on Sundays.239 Mr. Carlson reported that the plaintiff’s pain affected her ability to do the following: lift; 3 4 squat; bend; stand; reach; walk; sit; and climb stairs.240 The plaintiff was “ok” with respect to 5 following written and spoken instructions and getting along with authority figures.241 She also was 6 “good” at handling stress and changes to her routine.242 The plaintiff took Vicodin for her pain, 7 which made her sleepy.243 Mr. Carlson completed a second third-party function on November 6, 2015.244 He reported that 8 United States District Court Northern District of California 9 the plaintiff could not use her hands due to arthritis.245 She also had neck pain that caused 10 headaches.246 She slept a lot.247 She woke up randomly due to “hands stiffening up” or pain in her 11 hands.248 She was “very limited” in making meals but made them daily.249 She could do “light 12 cleaning,” including washing dishes and folding laundry, for about fifteen to twenty minutes “with 13 breaks in between.”250 She went outside daily, could drive a car, and could travel alone.251 She 14 shopped for groceries.252 She could pay bills, count change, and use a checkbook and money 15 16 17 18 19 20 21 22 23 24 25 26 27 28 237 238 239 AR 280. Id. Id. 240 AR 281. 241 AR 281–82. 242 AR 282. 243 AR 283. 244 AR 1136–43. 245 AR 1136. 246 247 248 249 250 251 252 Id. AR 1137. Id. AR 1138. Id. AR 1139. Id. ORDER – No. 18-cv-03107-LB 21 1 orders.253 Mr. Carlson handled the savings account.254 She watched television, used the internet, 2 and read daily.255 She spent time with family members on the weekends and went to Starbucks and 3 church on a regular basis.256 She became “moody and irritable” due to her pain.257 The plaintiff’s 4 conditions affected her ability to lift, squat, bend, stand, kneel, hear, climb stairs, concentrate, use 5 her hands, and get along with others.258 6 2.3 7 The plaintiff previously worked as a quality-control inspector of electronics from February 8 2005 to February 2008, January 2009 and March 2009, and January 2010 to May 2012.259 She also 9 worked as a cashier in a restaurant in 2006 and 2007, and in retail in 1989 and 1990.260 More 10 recently, she worked part-time at a school as a lunch monitor for about an hour each day.261 As a quality-control inspector, she inspected circuit boards through a microscope and lifted 11 United States District Court Northern District of California The Plaintiff’s Testimony 12 and carried boxes of circuit boards to a shipping area.262 In that job, she “look[ed] under [a] 13 microscope . . . to look at products,” sat, and lifted products.263 She frequently lifted up to twenty- 14 five pounds.264 She reported “sit[ting] all day look[ing] under [her] scope to look at products.”265 15 She bent her neck “all day” and used her hands.266 16 17 18 19 20 21 22 23 24 25 26 27 28 253 254 255 256 257 258 259 260 261 Id. Id. AR 1140. Id. AR 1141. Id. AR 294. Id. Id. 262 AR 874–75. 263 AR 295. 264 Id. 265 AR 296; see also AR 874–75 (hearing testimony). 266 AR 297. ORDER – No. 18-cv-03107-LB 22 In a December 26, 2012 function report, the plaintiff reported that she could not bend her neck United States District Court Northern District of California 1 2 and she had the following additional impairments: lower-back pain; shoulder pain; numbness in 3 both hands; an inability to move her left shoulder; throbbing pain; stiffness; an inability to move 4 without pain; and shooting pain in her neck.267 She tried to “stretch or walk lightly to ease [her] 5 pain.”268 Her pain affected her sleep.269 She also could not lift her left hand when she got 6 dressed.270 7 She could not cook because her hands would go numb and she could not move her hand or 8 shoulder.271 She was unable to do any household chores.272 She went outside daily and traveled by 9 car. She would not travel alone in case she experienced “sudden pain.”273 She went grocery 10 shopping once per week.274 She could not pay bills, count change, handle a savings account, or use 11 checkbooks or money orders because her hand would go “numb when writing.”275 She had no 12 hobbies and did not socialize, but she attended church every Sunday.276 She needed someone to 13 accompany her.277 14 Her pain affected her ability to do lift, squat, bend, stand, reach, walk, sit, kneel, climb stairs, 15 see, complete tasks, concentrate, and use her hands.278 She was able to finish what she started — 16 for example, movies or a conversation.279 She was “good” at following written instructions, 17 18 19 20 21 22 23 24 25 26 27 28 267 AR 285. 268 AR 286. 269 270 271 272 273 274 275 276 277 278 279 Id. Id. AR 287. Id. AR 288. Id. Id. AR 289. Id. AR 290. Id. ORDER – No. 18-cv-03107-LB 23 United States District Court Northern District of California 1 getting along with authority figures, and handling stress and changes to her routine.280 She could 2 follow spoken instructions if she “listen[ed] very well.”281 She took Vicodin for her pain, which 3 made her sleepy.282 4 She completed another function report on November 6, 2015.283 She reported experiencing 5 chronic-neck pain, shoulder pain, and stiffness and tingling in both hands.284 She felt pain shooting 6 down her left leg, got headaches due to neck pain, and experienced drowsiness due to 7 medication.285 She woke up from neck pain and tingling in her hands.286 She prepared meals, often 8 sandwiches, daily.287 She sometimes could not prepare meals due to stiffness in her hands.288 She 9 could do limited household chores. She could travel outside alone and go shopping for groceries 10 with family members.289 She could count change, but her husband paid the bills, handled a savings 11 account, and used a checkbook and money orders.290 She watched television and went to church 12 regularly.291 She did not spend time with others.292 Her conditions continued to affect her ability to 13 lift, squat, bend, stand, reach, walk, sit, climb stairs, and use her hands.293 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 280 AR 290–91. 281 AR 290. 282 AR 292. 283 AR 1144–52. 284 AR 1144. 285 Id. 286 AR 1145. 287 AR 1146. 288 289 290 291 Id. AR 1147. Id. AR 1148. 292 Id. Mr. Carlson’s third-party function dated November 6, 2015 contradicts the plaintiff’s self-report from the same day in several ways. For example, Mr. Carlson stated that the plaintiff socialized with family members on the weekends, but the plaintiff reported that she did not spend time with others. Compare AR 1140 with AR 1148. Mr. Carlson reported that the plaintiff could do light chores, such as washing dishes and folding laundry, but the plaintiff said her ability to do chores was “limited.” Compare AR 1138 with AR 1146. 293 AR 1149. ORDER – No. 18-cv-03107-LB 24 The plaintiff testified that she began experiencing depression and anxiety “way before [] July 1 2 2017.”294 She did not immediately seek mental-health treatment because she thought she could 3 “fix it on [her] own.”295 Her symptoms worsened in October 2016 when her mother passed 4 away.296 She took medication, but it had “its ups and downs.”297 She, for instance, was “just not 5 the person that [she was].”298 She also had a panic attack at a school, where she worked part-time, 6 when a shooting occurred there.299 She “didn’t know how to handle it” because she was on 7 medication.300 She had panic attacks at least once per month.301 She experienced other symptoms as a result of her medication. She “sometimes” could not 8 United States District Court Northern District of California 9 concentrate on movies or books.302 She would “keep to [her]self” rather than socializing with 10 others.303 At the hearing before the ALJ, she did not want to elaborate further because she “really 11 [did]n’t want to talk about it.”304 12 She testified that she could not return to her past work as a circuit-board inspector because “it 13 would bother . . . [her] with [her] condition.”305 “[W]orst of all is the medication” that she took.306 14 “[She] would just have a panic attack there, or some kind of panic attack by the time [she] walked 15 out” of work.307 She also stated that her physical limitations “worsened . . . everything [was] 16 17 18 19 20 21 22 23 24 25 26 27 28 294 295 296 297 298 299 300 301 AR 890. Id. AR 891. Id. Id. AR 892. Id. Id. 302 AR 892–93. 303 AR 893. 304 305 306 307 Id. AR 894. Id. Id. ORDER – No. 18-cv-03107-LB 25 1 flaring up.”308 Her hands flared up daily.309 Her shoulder “still bother[ed her].”310 After “sitting for 2 a long period of time, [she could] just feel it . . . getting tight. It’s kind of tight and aching.”311 She 3 took medication for her symptoms, but with her medications she would get “violent.”312 With 4 respect to her neck, her doctors wanted “to do a lot of surgery on [her],” but she did not “want to 5 go that way.”313 She was “scared” to have surgery.314 She could not do household chores due to “flare-ups.”315 She also could not go grocery 6 7 shopping.316 “Once in a while, but not all the time” should would clean the house and do dishes.317 8 When she had a flare-up, it would take “at least . . . three hours or so” for it to go “down.”318 She further testified that she was recently diagnosed with diabetes. She would “get dizzy” and United States District Court Northern District of California 9 10 sweat and was given a kit to monitor her blood sugar.319 She also received cortisone shots in her 11 hands every six months, but they reportedly did not work.320 2.4 12 Vocational Expert Testimony 2.4.1 13 VE Susan Creighton Clevelle’s testimony 14 VE Susan Creighton Clevelle testified at the October 26, 2017 hearing.321 The ALJ posed the 15 following hypothetical: an individual with no limitation on sitting, standing, or walking; carrying 16 and lifting no more than ten pounds with the non-dominant left-upper extremity; no overhead 17 18 19 20 21 22 23 24 25 26 27 28 308 AR 894–95. 309 AR 895. 310 311 312 Id. Id. Id. 313 AR 895–96. 314 AR 896. 315 316 317 Id. Id. Id. 318 AR 897. 319 AR 898. 320 AR 899. 321 AR 901, 908–17. ORDER – No. 18-cv-03107-LB 26 1 reaching and only occasional reaching, handling, fingering, and feeling; reaching, handling, 2 fingering, and feeling frequently with the dominant right-upper extremity, but only occasional 3 overhead reaching.322 In addition, the hypothetical individual could perform repetitive neck 4 motions in all directions for only fifteen minutes at a time, and she could hold her neck in a static 5 position only occasionally, cumulatively no more than one-third of the workday.323 The ALJ asked 6 whether such an individual could perform the jobs of an office helper (DOT 239.567-010), 7 parking-lot attendant (915.473-010), and storage-facility rental clerk (295.367-026).324 VE Clevelle testified that the office-helper job would be excluded because the “clerical-type United States District Court Northern District of California 8 9 activities” performed at the job would require use of both hands.325 The hypothetical individual 10 could perform the parking-lot attendant job because that could be done with the dominant right 11 hand only.326 Similarly, the individual could work as a storage-facility clerk because “that job 12 could be done one-handed as well.”327 VE Clevelle testified that such an individual could perform 13 other light jobs as well, including as an information clerk (DOT 237.367-018), usher (344.677- 14 014), and photo-counter clerk (249.366-010).328 The individual’s RFC, including her overhead-reaching limitation, would not preclude the 15 16 above jobs.329 In addition, the individual could perform these jobs even with limited neck 17 movement.330 “They’re not keeping their head static . . . holding it in one place. None of these jobs 18 they’re doing that. They have the flexibility to move their head when they need to.”331 19 20 21 22 23 24 25 26 27 28 322 AR 908–09. 323 AR 909. 324 325 326 327 Id. AR 910. Id. Id. 328 AR 912. 329 AR 911. 330 AR 914–15. 331 AR 914–15. ORDER – No. 18-cv-03107-LB 27 2.4.2 1 2 VE Lawrence Hughes testified at the February 13, 2018 hearing.332 VE Hughes classified the 3 plaintiff’s prior work as a circuit-board inspector (DOT 726.684-062), SVP three and medium.333 4 The ALJ posed the following hypothetical: an individual capable of lifting and carrying ten 5 pounds frequently and up to fifteen pounds occasionally; standing and walking no more than four 6 hours per day; sitting up to six hours per day; no ladders, ropes, or scaffolds, and all other 7 posturals occasional only; frequent reaching, handling, fingering in both upper extremities, except 8 only occasional overhead reaching on the left side; and no exposure to dangerous moving 9 machinery or unprotected heights.334 VE Hughes testified that the above hypothetical individual could perform the job of a circuit- 10 United States District Court Northern District of California VE Lawrence Hughes’s testimony 11 board inspector.335 That job is “a seated job that lifts very light weight throughout the day.”336 12 Moreover, neck-movement limitations — specifically, performing repetitive neck motions for no 13 more than fifteen minutes at a time and holding her head in a static position occasionally only — 14 would not preclude an individual from this job.337 “The repetitive neck motion is a non-issue, 15 because there’s not a lot of neck motion. But, the static position is held most of the time when 16 you’re looking through the microscope . . . . [Y]ou do have to hold a static position for probably a 17 minute at a time before you look up from where you are.”338 The plaintiff’s attorney suggested that the plaintiff would be limited to unskilled work due to 18 19 “the severity of her mental impairments.”339 VE Hughes testified that an individual limited to 20 21 22 23 24 25 26 27 28 332 AR 861, 877–89. 333 AR 877. 334 AR 881. 335 AR 881–82. 336 AR 882. 337 Id. 338 AR 882–83. 339 AR 883. ORDER – No. 18-cv-03107-LB 28 1 unskilled work could not perform the circuit-board inspector job because it required semi-skilled 2 work.340 VE Hughes further testified that the above hypothetical individual could perform other light United States District Court Northern District of California 3 4 unskilled jobs, such as a cashier (DOT 211.462-010), electronical-accessories assembler (DOT 5 729.687-010), and small-products assembler (DOT 739.687-030).341 6 2.5 Medical Expert Testimony 7 ME Kendrick testified at the February 13, 2018 hearing.342 ME Kendrick opined that, based on 8 the medical record, the plaintiff had “evidence of spinal stenosis, classified as severe at the C2-3, 9 and C4-5 levels.”343 She had a “narrowing of the spinal canal.”344 She had “carpal tunnel release 10 on the left, with a fusion of the PIP joint of her finger on that side.345 Her finger became infected, 11 but the wire was removed and she went on to heal.346 The plaintiff also developed carpal-tunnel 12 syndrome on her right side.347 She had osteoarthritis of the right second toe.348 Her “left shoulder 13 problem manifested by calcific tendonitis.”349 Furthermore, she had crystal deposits in her 14 joints.350 ME Kendrick testified that the plaintiff’s impairments did not meet, or in combination equal, 15 16 the severity of the medical listings.351 He assessed her RFC as “someplace between light and 17 18 19 20 21 22 23 24 25 26 27 28 340 Id. 341 AR 884–85. 342 AR 861, 864–70. 343 AR 864. 344 Id. 345 AR 864–65. 346 AR 865. 347 348 349 350 351 Id. Id. Id. Id. Id. ORDER – No. 18-cv-03107-LB 29 1 sedentary.”352 Specifically, she had the following limitations: lifting fifteen pounds occasionally 2 and ten pounds less frequently; standing or walking for four hours in an eight-hour workday; 3 sitting for six hours in an eight-hour workday; only occasional bending, stooping, kneeling, and 4 crawling; climbing stairs occasionally but no climbing ladders, ropes, or scaffolds; using all 5 modalities frequently, except only occasional overhead reaching on the left; and no exposure to 6 dangerous moving machinery or unprotected heights.353 With respect to the plaintiff’s neck-movement limitations, ME Kendrick testified that “the United States District Court Northern District of California 7 8 head and neck moves depends on how she feels. . . . [On] days where it feels fine . . . she might 9 have slight restriction on motion, but certainly her motion is functional.”354 He “would not impose 10 any specific restrictions because the body does it for her.”355 Moreover, the crystal deposits could 11 “affect any joint . . . . You get an acute episode of pain, and swelling, and it will subside. And, 12 basically the inflammation will go into a quiet period.”356 That disease, however, “does not 13 destroy joints.”357 “[I]t doesn’t compare to rheumatoid arthritis.”358 ME Kendrick also considered the plaintiff’s edema in her hand.359 She had some “tenderness 14 15 in the palpation dip and metacarpal flengial and PIP joints.”360 The plaintiff’s attorney asked 16 whether such symptoms could cause “flare-ups of that nature if the plaintiff were to engage in 17 frequent manipulation on a day-to-day basis in the workplace.”361 ME Kendrick testified that “she 18 might have . . . a little swelling, and then it goes away.”362 19 20 21 22 23 24 25 26 27 28 352 353 354 355 356 357 358 AR 866. Id. AR 867. Id. Id. AR 868. Id. 359 AR 868–69. 360 AR 869. 361 362 Id. Id. ORDER – No. 18-cv-03107-LB 30 1 2.6 2 The ALJ followed the five-step sequential evaluation process to determine whether the 3 plaintiff was disabled and concluded that she was not.363 At step one, the ALJ found that the plaintiff had not engaged in substantial gainful activity 4 5 since May 31, 2012, the alleged onset date.364 At step two, the ALJ found that the plaintiff had the following severe impairments: cervical 6 United States District Court Northern District of California Administrative Findings 7 stenosis; a history of bilateral carpal-tunnel syndrome, status post history of left release and 8 planned right release; left calcific tendonitis; and right second-toe osteoarthritis.365 The ALJ found 9 that the plaintiff’s pre-diabetes diagnosis and hyperglycemia were nonsevere.366 The ALJ also 10 considered the plaintiff’s depression and anxiety, finding that those mental impairments, 11 “considered singly and in combination, d[id] not cause more than minimal limitation in the ability 12 to perform basic mental work activities and [were] nonsevere.”367 He based that conclusion on the 13 following evidence. In April 2013, a psychological evaluation noted that some of the plaintiff’s anxiety could be 14 15 related to her weight-loss medication and her relationship with her husband.368 “She was assessed 16 with transient symptoms only.”369 In August 2013, Dr. Foreman saw the plaintiff for “depression 17 and anxiety apparently associated with her medical condition,” and the examination “yielded 18 largely unremarkable results.”370 Dr. Forman determined that the plaintiff “reflect[ed] the presence 19 of only transient symptoms.”371 20 21 22 23 24 25 26 27 28 363 AR 850–59. 364 AR 851. 365 366 367 368 369 370 371 Id. AR 852. Id. Id. Id. Id. Id. ORDER – No. 18-cv-03107-LB 31 On July 20, 2017, the plaintiff sought mental-health treatment for the first time because of 1 2 “anxiety due to a series of family issues.”372 Dr. Finer diagnosed the plaintiff with a major 3 depressive disorder and recommended therapy.373 On August 4, 2017, the plaintiff reported more 4 control, “feeling less sad, being more relaxed” and “not as easily frustrated.”374 During a follow- 5 up examination on November 30, 2017, Dr. Manavalan found that the plaintiff had a generalized 6 anxiety disorder and a major depressive disorder, with mild symptoms.375 The plaintiff reported 7 that her symptoms had improved over the prior three months.376 In a letter dated November 8, 2017, Dr. Manavalan indicated that the plaintiff had made 8 9 10 “minor improvement” but “ha[d] not been able to function at work, having to quit her job.”377 But, the ALJ noted, [t]his conclusion is contradicted by Dr. Manavalan’s treatment notes and appears to be more a description of the claimant’s assertions than an objective opinion about the claimant’s functional ability. At that time, there is no indication that the claimant was working at a job on anything approaching a full-time basis or that she stopped working because of symptoms.378 United States District Court Northern District of California 11 12 13 14 Therefore, the ALJ assigned Dr. Manavalan’s opinion little weight because it was 15 “inconsistent with the treatment notes and the longitudinal record indicating no significant mental 16 health problems interfering with work activity.”379 17 The ALJ accorded Dr. Forman’s opinion greater evidentiary weight because it was “based on a 18 thorough evaluation” and was consistent with the transient psychological symptoms reported by 19 the claimant” in 2013 and 2017.380 The ALJ explained that the plaintiff’s symptoms appeared to 20 21 22 23 24 25 26 27 28 372 373 374 375 376 377 Id. Id. Id. Id. Id. Id. 378 AR 852–53. 379 AR 853. 380 Id. ORDER – No. 18-cv-03107-LB 32 United States District Court Northern District of California 1 be related directly to “challenging family issues and not to an underlying mental illness.”381 He 2 found that the plaintiff had not met her burden to establish a severe mental impairment that 3 persisted for twelve consecutive months.382 4 In so finding, the ALJ considered the “paragraph B” criteria and found that the plaintiff had 5 not met her burden to prove “more than mild limitations in the ability to understand, remember, or 6 apply information; the ability to interact with others; the ability to concentrate, persist, or maintain 7 pace; and the ability to adapt or manage oneself.”383 8 At step three, the ALJ found that the plaintiff did not have an impairment or combination of 9 impairments that met or medically equaled the severity of one of the listed impairments.384 With 10 respect to the plaintiff’s cervical degenerative-disc disease, the ALJ found no evidence of 11 compromise of a nerve root or the spinal cord or any other evidence indicating that she could not 12 ambulate effectively.385 Moreover, the plaintiff’s carpal-tunnel syndrome did not meet or 13 medically equal any musculoskeletal or neurological listing.386 The ALJ also found that there was 14 no evidence of major joint dysfunctions that would result in the inability to perform fine and gross 15 movements effectively.387 16 Before considering the fourth step, the ALJ determined that the plaintiff had the residual 17 functional capacity to perform light work, with the following limitations: lifting and carrying ten 18 pounds frequently and twenty pounds occasionally; pushing and pulling with the same weight 19 limits, except lifting fifteen pounds frequently and ten pounds occasionally; sitting, standing, or 20 walking for six hours in an eight-hour workday; standing and walking for four hours with normal 21 breaks; occasionally climbing ramps and stairs, stooping, kneeling, crouching, and crawling; 22 23 24 25 26 27 28 381 382 383 Id. Id. Id. 384 AR 853–54. 385 AR 853–54. 386 AR 854. 387 Id. ORDER – No. 18-cv-03107-LB 33 1 frequently reaching, handling, fingering, and feeling bilaterally, except occasionally reaching 2 overhead with the left-upper extremity; and no climbing ladders, ropes, or scaffolds, or working at 3 unprotected heights or around dangerous moving machinery.388 In making this determination, the ALJ found that the plaintiff’s medically determinable United States District Court Northern District of California 4 5 impairments could reasonably be expected to cause some of the alleged symptoms.389 Her 6 statements about the intensity, persistence, and limiting effects of these symptoms, however, were 7 not entirely consistent with the record as a whole.390 The ALJ found that the plaintiff had 8 degenerative-disc disease of the cervical spine with intermittent radiculopathy.391 She received, 9 however, “mostly conservative treatment” for this condition and for pain management.392 From 10 2011 through 2012, chiropractic manipulative therapy improved her condition.393 She was referred 11 for physical therapy, surgical intervention, acupuncture, and to a chronic-pain program.394 But she 12 did not pursue those options thoroughly and relied on medication instead.395 13 The ALJ also noted that the plaintiff sought treatment for numbness and tingling of both 14 hands.396 The plaintiff underwent release and surgery for her left carpal tunnel.397 She agreed to 15 have release and surgery for her right carpal tunnel but purportedly did not follow up on those 16 procedures.398 During examination, she had full range of motion of the neck, without pain and 17 with no radicular signs.399 18 19 20 21 22 23 24 25 26 27 28 388 389 390 391 392 393 394 395 396 397 398 399 Id. AR 855. Id. Id. Id. Id. Id. Id. Id. Id. Id. Id. ORDER – No. 18-cv-03107-LB 34 The ALJ considered the plaintiff’s left-shoulder pain and stiffness.400 While she had some 1 2 reduced range of motion, amongst other symptoms, the plaintiff’s providers recommended 3 conservative treatments, such as shoulder stretches and massages, and she did not exhibit any 4 neurological deficits or need for a surgical referral.401 The ALJ also noted that the plaintiff 5 previously injured her left foot and fractured a toe, but she recovered quickly, with mild residual 6 pain.402 Moreover, the ALJ stated that his RFC assessment reflected the degree of limitation he found 7 8 in the “paragraph B” mental function analysis.403 The ALJ asserted that his RFC assessment was supported by sufficient objective and clinical United States District Court Northern District of California 9 10 evidence, including medical-opinion evidence.404 Specifically, the ALJ assigned greatest weight to 11 ME Kendrick, finding his opinion was consistent with the record, including the examinations, the 12 plaintiff’s statements, and the treatment records.405 ME Kendrick found that the plaintiff had an 13 RFC consistent with the ALJ’s determination.406 The ALJ accorded significant weight to the state- 14 agency medical consultants, whose opinions were consistent with ME Kendrick’s determination 15 that the plaintiff was capable of performing light work.407 The ALJ accorded significant weight to Dr. Forman.408 Based on Dr. Forman’s evaluation, the 16 17 plaintiff’s activities of daily living appeared to be unaffected by any psychological symptoms, 18 apart from occasional insomnia. Dr. Forman declined to diagnose the plaintiff with a mental 19 20 21 22 23 24 25 26 27 28 400 401 402 AR 856. Id. Id. 403 AR 853. 404 AR 857–58. 405 AR 856. 406 Id. 407 AR 856–57. 408 AR 857. ORDER – No. 18-cv-03107-LB 35 1 impairment as her symptoms were “likely transient” and “expected reactions to psychosocial 2 stressors.”409 The ALJ gave only minimal weight to Dr. Miller’s medical-source statement.410 The ALJ 3 4 explained, 8 [Dr. Miller] opined significant limitations that are not supported by the objective evidence. For example, he opined limitations in sitting, and he failed to explain fully why the claimant has significant limitations in both upper extremities, not only for reaching, but for handling and fingering as well. . . . Dr. Miller’s opinion is in conflict with all other opinions of record, and, although he is a ‘treating source,’ he saw the claimant only every three to six months.411 9 Further, the ALJ found unpersuasive Mr. Carlson’s third-party function report.412 In that 10 report, Mr. Carlson indicated that the plaintiff could not perform certain activities of daily living. 11 The record indicated, however, that although she had some limitations in her left-upper extremity 12 and with neck movement, she had “little difficulty with standing, walking, and sitting at a light 13 exertional level.”413 5 6 United States District Court Northern District of California 7 Finally, the ALJ found the plaintiff’s testimony regarding the severity and functional 14 15 consequences of her symptoms inconsistent with the record as a whole.414 The ALJ noted that the 16 plaintiff failed to follow through with various recommended treatments.415 For example, she 17 appeared to improve with chiropractic treatment, but she only attended one acupuncture session 18 and did not follow through with a chronic-pain program.416 19 20 21 22 23 24 25 26 27 28 409 410 411 412 413 414 415 416 Id. Id. Id. Id. Id. Id. Id. Id. ORDER – No. 18-cv-03107-LB 36 At step four, the ALJ concluded that the plaintiff was capable of performing her past relevant 1 2 work as a circuit-board inspector.417 That work did not require performance of work-related 3 activities precluded by the RFC.418 Accordingly, the ALJ concluded that the plaintiff was not 4 disabled and denied her applications for SSDI benefits and SSI.419 5 STANDARD OF REVIEW 6 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 7 8 Commissioner if the claimant initiates a suit within sixty days of the decision. A court may set 9 aside the Commissioner’s denial of benefits only if the ALJ’s “findings are based on legal error or 10 are not supported by substantial evidence in the record as a whole.” Vasquez v. Astrue, 572 F.3d 11 586, 591 (9th Cir. 2009) (internal citation and quotation marks omitted); 42 U.S.C. 12 § 405(g). “Substantial evidence means more than a mere scintilla but less than a preponderance; it 13 is such relevant evidence as a reasonable mind might accept as adequate to support a 14 conclusion.” Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). The reviewing court should 15 uphold “such inferences and conclusions as the [Commissioner] may reasonably draw from the 16 evidence.” Mark v. Celebrezze, 348 F.2d 289, 293 (9th Cir. 1965). If the evidence in the 17 administrative record supports the ALJ’s decision and a different outcome, the court must defer to 18 the ALJ’s decision and may not substitute its own decision. Tackett v. Apfel, 180 F.3d 1094, 1097– 19 98 (9th Cir. 1999). “Finally, [a court] may not reverse an ALJ’s decision on account of an error 20 that is harmless.” Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). 21 22 GOVERNING LAW 23 A claimant is considered disabled if (1) he or she suffers from a “medically determinable 24 physical or mental impairment which can be expected to result in death or which has lasted or can 25 26 27 28 417 418 419 AR 858. Id. AR 858–59. ORDER – No. 18-cv-03107-LB 37 1 be expected to last for a continuous period of not less than twelve months,” and (2) the 2 “impairment or impairments are of such severity that he or she is not only unable to do his 3 previous work but cannot, considering his age, education, and work experience, engage in any 4 other kind of substantial gainful work which exists in the national economy. . . .” 42 U.S.C. § 5 1382c(a)(3)(A) & (B). The five-step analysis for determining whether a claimant is disabled 6 within the meaning of the Social Security Act is as follows. Tackett, 180 F.3d at 1098 (citing 20 7 C.F.R. § 404.1520). 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 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. For steps one through four, the burden of proof is on the claimant. At step five, the burden shifts to the Commissioner. Gonzales v. Sec’y of Health & Human Servs., 784 F.2d 1417, 1419 (9th Cir. 1986). 28 ORDER – No. 18-cv-03107-LB 38 ANALYSIS 1 The plaintiff contends that the ALJ erred by failing to consider her mild mental limitations in 2 3 assessing her RFC.420 The court agrees. In order to properly determine a claimant’s RFC, the ALJ must consider the claimant’s mental United States District Court Northern District of California 4 5 limitations in four broad functional areas: activities of daily living; social functioning; 6 concentration, persistence, or pace; and episodes of decompensation. See 20 C.F.R. 7 § 404.1520a(c)(3); Smith v. Colvin, No. 14-cv-05082-HSG, 2015 WL 9023486, at *8 (N.D. Cal. 8 Dec. 16, 2015). The Code of Federal Regulations requires an ALJ to consider all of the claimant’s 9 limitations when assessing her RFC, including any nonsevere mental limitations. 20 C.F.R. 10 § 404.1545(a)(2) (“We will consider all of your medically determinable impairments of which we 11 are aware, including your medically determinable impairments that are not ‘severe,’ . . . when we 12 assess your residual functional capacity.”). Furthermore, SSR 96–8p provides: In assessing RFC, the adjudicator must consider only limitations and restrictions imposed by all of an individual’s impairments, even those that are not “severe.” While a “not severe” impairment(s) standing alone may not significantly limit an individual’s ability to do basic work activities, it may — when considered with limitations or restrictions due to other impairments — be critical to the outcome of a claim. 13 14 15 16 17 Here, in determining the severity of the plaintiff’s impairments, the ALJ found that the 18 plaintiff had “mild limitations” with respect to the four functional areas outlined in § 19 404.1520a(c)(3).421 He therefore determined that the plaintiff’s mental impairments existed but 20 were “nonsevere.”422 The ALJ stated that his step two determination was “not a residual functional 21 capacity assessment.”423 That assessment, he recognized, “requires a more detailed assessment by 22 itemizing various functions contained in the broad categories found in paragraph B of the adult 23 24 25 26 27 28 420 Motion for Summary Judgment – ECF No. 17 at 5–11. 421 AR 853. 422 423 Id. Id. ORDER – No. 18-cv-03107-LB 39 1 mental disorders listings.”424 He explained that his RFC assessment “reflects the degree of 2 limitation I found in the ‘paragraph B’ mental function analysis.”425 The ALJ, however, did not 3 adequately account for the plaintiff’s mental limitations in determining her RFC. The defendant argues to the contrary, pointing to the ALJ’s weighing of Dr. Forman’s opinion 4 5 that the plaintiff had no mental impairment.426 In according Dr. Forman’s opinion significant 6 weight, the ALJ explained: 11 She conducted a thorough clinical interview and evaluation. In particular, the claimant’s activities of daily living appear unaffected by any psychological symptoms, and, apart from reports of occasional insomnia, the mental status examination was unremarkable. Dr. Forman declined to diagnose the claimant with a mental impairment, and she opined that, with a GAF score of 75, the claimant’s symptoms were likely transient and were expected reactions to psychological stressors. The clinical record shows that the claimant briefly and intermittently experienced mild anxiety secondary to family stressors [].427 12 But the ALJ in no way attempted to reconcile Dr. Forman’s finding of no mental impairment with 13 his own finding of “mild” mental impairments.428 7 8 9 United States District Court Northern District of California 10 14 The same error occurred in Hutton v. Astrue, 491 F. App’x 850 (9th Cir. 2012).429 There, the 15 ALJ found that a mild limitation in concentration, persistence, and pace due to the claimant’s 16 PTSD was nonsevere. Id. at 850. In determining the RFC, the ALJ “excluded Hutton’s PTSD from 17 consideration” because the ALJ found that Hutton was not credible. Id. The Ninth Circuit held, 18 19 20 21 22 23 24 25 26 27 28 424 425 Id. Id. 426 Cross-Mot. – ECF No. 18 at 4. 427 AR 857. 428 See AR 853, 857. 429 A number of district courts in this circuit follow Hutton. See, e.g., Barrera v. Berryhill, No. CV 1707096-JEM, 2018 WL 4216693, at *5 (C.D. Cal. Sept. 5, 2018) (finding reversible error where ALJ did not consider nonsevere impairments in RFC assessment and offered only “boilerplate language” that she considered “all symptoms”); Gates v. Berryhill, No. ED CV 16-00049 AFM, 2017 WL 2174401, at *3 (C.D. Cal. May 16, 2017) (rejecting Commissioner’s argument that one could “infer” that the ALJ considered plaintiff’s mild mental limitations as inconsistent with Hutton); Reddick v. Colvin, No.: 16cv00029 BTM (BLM), 2016 WL 3854580, at *4 (S.D. Cal. July 15, 2016) (remanding because ALJ did not include plaintiff’s mild mental restrictions in RFC assessment); Smith, 2015 WL 9023486, at *8–*9 (same); Kramer v. Astrue, No.CV 12-5297-MLG, 2013 WL 256790 at *2–*3 (C.D. Cal. Jan. 22, 3013) (same). ORDER – No. 18-cv-03107-LB 40 1 “while the ALJ was free to reject Hutton’s testimony as not credible, there was no reason for the 2 ALJ to disregard his own finding that Hutton’s nonsevere PTSD caused some ‘mild’ limitations in 3 the areas of concentration, persistence or pace.” Id. at 851. As in Hutton, the ALJ did not discuss or give reasoned consideration of the plaintiff’s United States District Court Northern District of California 4 5 depression and anxiety in his RFC assessment. The ALJ did not explain that he had considered the 6 mild mental limitations or nonsevere impairments and offered only boilerplate language that the 7 plaintiff’s RFC “reflects the degree of limitation I found in ‘paragraph B’ mental function 8 analysis.”430 See Smith, 2015 WL 9023486, at *8–*9 (finding nearly the exact same statement 9 insufficient for purposes of the RFC analysis). While the ALJ was not required to include properly 10 rejected medical-opinion evidence of other providers, he could not disregard his own finding that 11 the plaintiff had mild mental limitations.431 See 20 C.F.R. § 404.1545(a)(2); Hutton, 491 F. App’x 12 at 850 (holding that while the ALJ was free to reject the claimant’s testimony as not credible, he 13 could not disregard his own finding that the claimant had some mild mental limitations); Curtis v. 14 Comm’r of Soc. Sec., 584 F. App’x 390, 391 (9th Cir. 2014) (“Although the ALJ wrote that he 15 considered ‘[a]ll impairments, severe and non-severe,’ in determining [the claimant’s] residual 16 functional capacity (RFC), we are unable to determine on the record before us whether the ALJ 17 adequately considered [the claimant’s] mental health limitations.”). Moreover, the ALJ’s VE 18 hypotheticals did not take into account the plaintiff’s mental limitations, although VE Hughes 19 testified that an individual limited to unskilled work due to the severity of her mental impairments 20 could not work as a circuit-board inspector.432 These errors were not “‘inconsequential to the ultimate nondisability determination,’” and 21 22 were not harmless. See Molina, 674 F.3d at 1115 (internal citation omitted). On this record, the 23 court cannot determine what would have happened had the ALJ considered the plaintiff’s mild 24 25 26 27 28 430 AR 853. 431 See AR 853. 432 At the February 13, 2018 hearing, the plaintiff’s attorney suggested that the plaintiff would be limited to unskilled work due to “the severity of her mental impairments.” AR 883. VE Hughes testified that an individual limited to unskilled work could not perform the circuit-board inspector job because it required semi-skilled work. Id. ORDER – No. 18-cv-03107-LB 41 1 mental impairments when assessing the RFC or how the vocational experts would have testified 2 had that limitation been included in the hypotheticals posed. See Gates, 2017 WL 2174401, at *3. 3 The court thus finds it necessary to remand for further proceedings to fully and correctly assess the 4 plaintiff’s RFC. 5 6 CONCLUSION 7 The court grants the plaintiff’s motion for summary judgment, denies the Commissioner’s 8 cross-motion for summary judgment, and remands the case for further proceedings consistent with 9 this order. United States District Court Northern District of California 10 11 IT IS SO ORDERED. 12 Dated: March 10, 2019 ______________________________________ LAUREL BEELER United States Magistrate Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER – No. 18-cv-03107-LB 42
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