Eiswald v. Berryhill, No. 3:2018cv03714 - Document 26 (N.D. Cal. 2019)
Court Description: ORDER granting 17 Motion for Summary Judgment; denying 24 Motion for Summary Judgment. (Beeler, Laurel) (Filed on 7/12/2019)
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Eiswald v. Berryhill Doc. 26 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 KATHLEEN EISWALD, Plaintiff, 12 v. 13 14 NANCY A. BERRYHILL, Defendant. 15 16 17 20 21 22 23 24 25 26 27 28 ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT'S CROSS-MOTION FOR SUMMARY JUDGMENT Re: ECF No. 17 & 24 INTRODUCTION 18 19 Case No. 18-cv-03714-LB The plaintiff Kathleen Eiswald seeks judicial review of a final decision by the Commissioner of the Social Security Administration denying her claim for Title XVI Supplemental Security Income (“SSI”).1 The plaintiff moved for summary judgment, and the Commissioner opposed the motion and filed a cross-motion for summary judgment.2 All parties consented to magistrate-judge jurisdiction.3 Under Civil Local Rule 16–5, the matter is submitted for decision by this court without oral argument. The court grants the plaintiff’s motion for summary judgement. 1 Mot. – ECF No. 17 at 3. 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 Id.; Cross-Mot. – ECF No. 24. 3 Consent Forms – ECF Nos. 9, 10. ORDER – No. 18-cv-03714-LB Dockets.Justia.com STATEMENT 1 2 1. Procedural History 3 On February 5, 2014, the plaintiff, then aged 48, filed an application for SSI based on 4 disability under Title XVI of the Social Security Act (“SSA”).4 The SSA denied the plaintiff’s 5 claim on September 30, 2015, and again on reconsideration on April 27, 2016.5 She filed a written 6 request for a hearing on May 21, 2015.6 She appeared and testified at a hearing held on February 7 1, 2017.7 Administrative Law Judge Kevin Gill (“the ALJ”) issued an unfavorable decision on May 17, 8 United States District Court Northern District of California 9 2017.8 The plaintiff requested review by the Appeals Council, and the Appeals Council denied the 10 request on May 24, 2018.9 The plaintiff filed this action for judicial review on June 21, 2018 and 11 moved for summary judgment.10 The Commissioner filed a cross-motion for summary judgment 12 and opposed the plaintiff’s motion.11 13 14 2. Summary of Administrative Record 2.1 15 2.1.1 16 Richard Godfrey, M.D. — Treating Dr. Godfrey specializes in surgical oncology and treated the plaintiff for two and a half years 17 18 Medical Records after her diagnosis of breast cancer in 2012.12 On June 15, 2014, Dr. Godfrey completed a 19 20 21 22 23 24 25 26 27 28 4 AR 211–231. Administrative Record (“AR”) citations refer to the page number in the bottom right hand corner of the Administrative Record. 5 AR 151–156; 161–165. 6 AR 167–169. 7 AR 36. 8 AR 16–30. 9 AR 207. 10 Compl. – ECF No. 1; Mot. – ECF No. 17. 11 Cross-Mot. – ECF No. 24; Reply – ECF No. 25. 12 AR 431, 450, 453. ORDER – No. 18-cv-03714-LB 2 1 residual-functional-capacity evaluation form.13 The plaintiff’s symptoms included “intermittent 2 left shoulder and breast pain, continuous left hand and wrist joint pains, [and] frequent mood 3 swings.”14 He listed the following diagnoses: “stage two breast cancer (treated), basal metacarpal 4 joint arthritis, [and] bipolar condition.”15 Dr. Godfrey treated this conditions with “splinting, anti- 5 inflammatory medications, [and] psychological therapy.”16 The plaintiff’s prognosis was 6 “guarded.”17 The plaintiff’s impairment lasted, or was expected to last, at least twelve months.18 The patient United States District Court Northern District of California 7 8 could not stand for at least six of eight hours because of mental fatigue (she could stand 9 continuously for four hours).19 She could continuously sit upright for at least six of eight hours.20 10 The plaintiff needed to lie down during the day because of mental fatigue.21 She could walk “more 11 than four” city blocks without stopping.22 The plaintiff could constantly reach above her shoulder, at waist level, and below waist level.23 12 13 She could rarely perform handling and fingering.24 She could frequently lift five to ten pounds 14 over an eight-hour period, and could frequently carry 11 to 20 pounds.25 She had problems 15 “grasping, pulling, pushing, or doing fine manipulations” with her hands because she had basal 16 17 18 19 20 21 22 23 24 25 26 27 28 13 AR 450–453. There are no medical records in the administrative record from Dr. Godfrey other than the residual-functional-capacity evaluation form. 14 15 16 17 18 19 20 21 22 23 AR 450. Id. Id. Id. Id. AR 451. Id. Id. Id. Id. 24 Id. On the form, “rarely” was defined as 0–33% of the time, “frequently” was defined as 34–67% of the time, and “constantly” was defined as 68–100% of the time. 25 AR 452. ORDER – No. 18-cv-03714-LB 3 1 metacarpal joint arthritis.26 She did not have problems bending, squatting, kneeling, or turning any 2 part of her body.27 She could travel alone.28 The plaintiff’s pain was “6/10 with repetitive 3 motion.”29 4 Dr. Godfrey stated that the plaintiff was not capable of returning to her past job because her 5 “primary limitation[s] [were] bipolar condition and repetitive stress disorder.”30 The plaintiff could 6 return to work in June of 2015 with “resolution of [her] joint pain and effective psychotherapy.”31 2.1.2 7 Dr. Lewis reviewed the plaintiff’s disability-evaluation report and performed a comprehensive 8 United States District Court Northern District of California 9 Rose Lewis, M.D. — Examining internal medicine evaluation on August 24, 2014.32 The plaintiff had pain in her left wrist and 10 could not pinch.33 She could not “do buttons or zippers, but she [could] pick up and hold with her 11 left hand if she [had] a wrist brace on.”34 The plaintiff took care of personal needs with some 12 difficulty with her left hand.35 She could not vacuum, mop, or sweep due to wrist pain.36 She took 13 care of her cat and used her computer with a left-hand splint for periods of no longer than ten 14 minutes at a time to check her email or do minimal typing.37 She took a two-hour daily walk.38 Dr. Lewis observed that the plaintiff was a “well-nourished female in no acute distress [who] 15 16 was unable to pick up a paperclip off the table with her left hand, but ambulate[d] without an 17 18 19 20 21 22 23 24 25 26 27 28 26 27 28 29 30 31 32 33 34 35 36 37 38 Id. Id. Id. Id. AR 453. Id. AR 460. Id. Id. Id. Id. Id. Id. ORDER – No. 18-cv-03714-LB 4 United States District Court Northern District of California 1 assistive device.”39 The plaintiff used a medically necessary left-wrist splint at all times.40 Dr. 2 Lewis found there was “tenderness to palpation on the left base of the thumb and it is a negative 3 Tinel’s.”41 The plaintiff’s motor strength/muscle bulk and tone was described as “[p]resent and 4 equal bilaterally in the upper and lower extremities and [was five out of five].”42 Her grip strength 5 was a five out of five on the right hand and three and a half out of five on the left.43 6 Dr. Lewis diagnosed the plaintiff with “[s]tatus post left breast cancer with three positive 7 nodes and a lumpectomy, node dissection, chemotherapy and radiation [and] [l]eft De Quervain’s 8 syndrome of the wrist.”44 Dr. Lewis reported that the plaintiff had no limitations on standing, 9 walking, or sitting.45 The plaintiff could carry twenty pounds occasionally and ten pounds 10 frequently due to the issues with her wrist and grip, could climb frequently, and had no other 11 limitations to postural activities, could reach and feel with no limitations, and could handle and 12 finger frequently.46 Dr. Lewis recommended that workplace environmental activities involving 13 heights and heavy machinery should be limited because of the plaintiff’s “decreased grip, fine 14 finger movement, the left wrist splint, and the De Quervain’s of the left wrist with a decreased 15 range of motion of the wrist.”47 16 17 18 19 20 21 22 23 24 25 26 27 28 39 AR 461. 40 AR 462. 41 AR 463. 42 43 44 45 46 47 Id. Id. Id. Id. Id. AR 464. ORDER – No. 18-cv-03714-LB 5 2.1.3 1 The plaintiff saw Ian Bledsoe, M.D., on several occasions at UCSF in 2016.48 On September 2, 2 3 2016, she was experiencing leg stiffness.49 Dr. Bledsoe noted the plaintiff’s history of “domestic 4 abuse and PTSD/anxiety, breast cancer and previous diagnosis of spasmodic dysphonia.”50 The 5 plaintiff’s first instance of movement-related symptoms was in 2001, when she was in an abusive 6 relationship and there were deaths in her family.51 After experiencing issues with her voice, she 7 saw a neurologist in Argentina, who diagnosed her with spasmodic dysphonia.52 In 2015 the plaintiff’s “leg became very tight and stiff.”53 “[H]er left thigh and calf felt tight 8 9 United States District Court Northern District of California University of California, San Francisco Medical Center — Treating and painful, her leg was extended at the knee, and she would sometimes have slight foot 10 inversion.”54 While she did not fall or require an assistive device, her gait was affected.55 Upon 11 returning from New York, her symptoms resolved “very quickly” with the assistance of physical 12 therapy.56 In the two months prior to visiting UCSF, she experienced similar symptoms in her 13 right foot.57 She felt “pain and instability in her right ankle and toes, and mild tightness around her 14 lateral right calf[,]” though the symptoms were not as severe as those in the summer of 2015.58 The symptoms noted by Dr. Bledsoe were as follows: 15 Cognitive: She has noticed significant memory loss lately, both short term and long term, including forgetting conversations. 16 17 18 19 20 21 22 23 24 25 26 27 28 48 AR 591, 595. The progress notes on September 2, 2016 were authored by Ethan Gus Brown, M.D. and co-signed by Dr. Bledsoe, who is the physician who examined the plaintiff. 49 50 51 52 53 54 55 AR 591. Id. Id. Id. Id. Id. Id. 56 AR 591–592. 57 AR 592. 58 Id. ORDER – No. 18-cv-03714-LB 6 Behavioral: Significant anxiety, PTSD, but denies significant depressions. She is concerned about impulse control and getting more angry lately, but feels that at some times it is appropriate. 1 2 Autonomic: No lightheadedness, constipation, or changes in urinary frequency. 3 Sleep: Most of the time, though sometimes limited because of anxiety. 4 Speech/Swallow: Different voice since 2003; better swallowing. 5 Gait/Balance: No changes.59 6 7 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 28 Dr. Bledsoe found that the plaintiff’s description of her symptoms was “most likely . . . related to a functional movement disorder, specifically functional dystonia.”60 His plan was for the plaintiff to undergo a brain MRI, have physical therapy, and schedule an appointment if her symptoms returned.61 The plaintiff had the MRI in October 2016, and no issues were identified.62 On December 12, 2016, the plaintiff returned to UCSF after having lost power in her right leg.63 Dr. Bledsoe noted that first the plaintiff’s right ankle gave out, causing her to fall, and then she could not move her right leg at all later in the evening, which was followed by involuntary movements in her right arm and involuntary elevation of her right shoulder.64 He also noted that the plaintiff was unable to get insurance coverage for physical therapy but found exercises learned in Taoist spiritual practice helpful.65 Dr. Bledsoe found the plaintiff’s condition to be “most consistent with a functional neurologic disorder with episodic weakness and dystonic movements[,]” and her episodic weakness was “temporally related to significant emotional stress.”66 He stated that the plaintiff would continue with her current strategy of Taoist spiritual practice and psychotherapy and return to the hospital as needed in the future.67 59 60 61 62 63 64 65 66 67 Id. AR 594. Id. AR 595. Id. Id. Id. AR 597. Id. ORDER – No. 18-cv-03714-LB 7 2.2 1 2.2.1 2 Catherine Maggio, MFT –—Treating Catherine Maggio is a licensed Marriage and Family Therapist who held regular weekly 3 United States District Court Northern District of California Mental Health Records 4 sessions with the plaintiff from November 2002 to December 2015.68 In January 2015, Ms. 5 Maggio submitted a letter as part of the plaintiff’s SSI application.69 She saw the plaintiff’s ability 6 to function deteriorate dramatically due to the presence of severe medical issues, which included 7 “the recurrence of tumors in several parts of her body including her breast, lymph nodes, and 8 adrenal glands; infections in her arm and her breast; and cystic growth on her ovaries.”70 She 9 found that being a cancer patient affected the plaintiff’s ability “in medical settings and in the rest 10 of her life” and made it difficult for the plaintiff to maintain her job as a cleaner due to difficulty in 11 scheduling appointments and arranging transportation.71 Ms. Maggio noted that the plaintiff tried 12 to perform cleaning jobs and continue film editing to earn money but was not successful.72 The 13 plaintiff’s “experience of living as a cancer patient [was] that it ‘[was] a chronic condition that 14 drives [the plaintiff] into bankruptcy, takes all [her] time, and interrupts everything else [she’s] 15 doing and expects [her] to drop it.’”73 As a result of this stress, the plaintiff would shut down or 16 not leave her house.74 The plaintiff experienced drastic mood changes and periods of feeling very 17 ill and other times better.75 Her interactions with people were very inconsistent.76 The plaintiff 18 would be “highly sensitive and easily overreact[ ] or misinterpret[ ] others’ comments or 19 20 21 22 23 24 25 26 27 28 68 AR 585. 69 AR 572. Ms. Maggio stated that she submitted another letter on May 20, 2014 that provided information about the plaintiff’s condition. The court did not locate the letter in the administrative record. 70 71 72 73 74 75 76 AR 572. Id. AR 573. Id. Id. Id. AR 573–574. ORDER – No. 18-cv-03714-LB 8 1 behavior.”77 Ms. Maggio believed that even before the current slate of issues, the plaintiff had an 2 impaired ability to function in a social and work setting, and she concluded that the plaintiff’s state 3 at the time of the report rendered her “incapable of finding work, adequately performing work 4 duties, or functioning in a normal capacity in her everyday life.”78 5 In January 2016, Ms. Maggio completed a mental-impairment questionnaire.79 Ms. Maggio 6 treated the plaintiff with “psychotherapy to gain insight into emotional and behavioral patterns and 7 increase functioning.”80 While the plaintiff’s behavior and ability to function in social situations 8 was better, she was “still very limited.”81 The plaintiff continued to experience issues related to 9 inflammation and arthritis in her hands, shooting pains in her arms, and the cumulative effects of 10 her cancer treatment, which involved radiation and chemotherapy.82 The plaintiff exhibited the following symptoms related to her mental-health status: blunt, flat United States District Court Northern District of California 11 12 or inappropriate affect; impairment in impulse control; generalized persistent anxiety; 13 somatization unexplained by organic disturbance; mood disturbance; difficulty thinking or 14 concentrating; recurrent and intrusive recollections of a traumatic experience, which are a source 15 of marked distress; pathological disturbances of mood or affect; persistent nonorganic disturbance 16 of vision, speech, hearing, use of a limb, movement and its control, or sensation; apprehensive 17 expectation; paranoid thinking or inappropriate suspiciousness; recurrent obsessions or 18 compulsions, which are a source of marked distress; substance dependence; emotional withdrawal 19 or isolation; intense and unstable interpersonal relationships and impulsive and damaging 20 behavior; hyperactivity; motor tension; deeply ingrained, maladaptive patterns of behavior; 21 vigilance and scanning; autonomic hyperactivity; and persistent irrational fear of a specific object, 22 23 24 25 26 27 28 77 78 AR 574. Id. 79 AR 585–90. 80 AR 585. 81 82 Id. Id. ORDER – No. 18-cv-03714-LB 9 1 activity, or situation which results in a compelling desire to avoid the dreaded object, activity or 2 situation.83 Ms. Maggio addressed the plaintiff’s mental abilities and aptitudes needed to do unskilled United States District Court Northern District of California 3 4 work.84 The plaintiff had an “unlimited or very good” ability to understand and remember very 5 short and simple instructions, sustain an ordinary routine without special supervision, make simple 6 work-related decisions, and be aware of normal hazards and take appropriate precautions.85 She 7 had a “limited but satisfactory” ability to remember work-like procedures, carry out very short and 8 simple instructions, ask simple questions or request assistance, and respond appropriately to 9 changes in a routine work setting.86 She had a “seriously limited, but not precluded” ability to 10 maintain attention for two-hour segments.87 She was “unable to meet competitive standards” to 11 maintain regular attendance and be punctual within customary, usually strict tolerances, and accept 12 instructions and respond appropriately to criticism from supervisors.88 She had “no useful ability 13 to function” in terms of being able to work in coordination with or proximity to others without 14 being unduly distracted, complete a normal workday and workweek without interruptions from 15 psychologically based symptoms, perform at a consistent pace without an unreasonable number 16 and length of rest periods, get along with co-workers or peers without unduly distracting them or 17 exhibiting behavioral extremes, and deal with normal work stress.89 18 19 20 21 22 23 24 25 26 27 28 83 AR 586–587. 84 AR 587. The form defined the ratings this way: “Seriously limited but not precluded means ability to function in this area is seriously limited and less than satisfactory, but not precluded in all circumstances. Unable to meet competitive standards means your patient cannot satisfactorily perform this activity independently, appropriately, effectively, and on a sustained basis in a regular work setting. No useful ability to function, an extreme limitation, means your patient cannot perform this activity in a regular work setting.” Id. “Unlimited or very good” and “limited but satisfactory” were not specifically defined. 85 86 87 88 89 Id. Id. Id. Id. Id. ORDER – No. 18-cv-03714-LB 10 On the plaintiff’s “mental abilities and aptitudes needed to do semiskilled and skilled work”, 1 2 Ms. Maggio marked that the plaintiff had an “unlimited or very good” ability to understand and 3 remember detailed instructions, a “limited but satisfactory” ability to carry out detailed 4 instructions and set realistic goals or make plans independently of others, and “no useful ability to 5 function” when dealing with the stress of semiskilled and skilled work.90 On the plaintiff’s 6 “mental abilities and aptitude needed to do particular types of jobs,” Ms. Maggio marked the 7 plaintiff as having an “unlimited or very good” ability to adhere to basic standards of neatness and 8 cleanliness, and travel in an unfamiliar place; a “limited but satisfactory” ability to use public 9 transportation; no ability “to meet competitive standards” to interact appropriately with the general United States District Court Northern District of California 10 public; and “no useful ability to function” to maintain socially appropriate behavior.91 11 Ms. Maggio found no reduced intellectual functioning based on her interactions with the 12 plaintiff over thirteen years, but stated that the plaintiff’s psychiatric condition exacerbated her 13 experience of pain or other physical symptoms.92 The plaintiff experienced “one or two” episodes 14 of decompensation within a twelve-month period, each of at least two-weeks duration; plaintiff 15 has a “marked” difficulty in maintaining concentration, persistence or pace; and she has “extreme” 16 difficulties in maintaining social functioning and restrictions of activities of daily living.93 17 The plaintiff’s impairments or treatment would cause her to miss more than four days of work 18 per month, and that these impairments lasted or could be expected to last at least twelve months.94 19 The plaintiff’s impairments were reasonably consistent with the symptoms and functional 20 limitations described above, and no alcohol or substance abuse contributed to the plaintiff’s 21 limitations.95 The plaintiff experienced the symptoms and limitations described in the 22 23 24 25 26 27 28 90 91 92 AR 588. Id. Id. 93 AR 589. 94 AR 590. 95 Id. ORDER – No. 18-cv-03714-LB 11 1 questionnaire since 1998, and had a significant increase in symptoms due to her cancer treatment 2 in 2012.96 2.2.2 3 On August 21, 2014, Dr. Kalich evaluated the plaintiff to provide an assessment regarding her 4 United States District Court Northern District of California Lisa Kalich, Psy.D. — Examining 5 eligibility for social-security benefits.97 She was referred by the plaintiff’s Benefits and 6 Entitlement Specialist, Noah Glasser, to assess the plaintiff’s activities of daily living, social 7 functioning, concentration, persistence, and pace, and episodes of decompensation.98 8 Dr. Kalich’s report stated that the plaintiff had a traumatic childhood involving physical and 9 emotional abuse and an attempted sexual assault.99 The plaintiff was married from 1991 to 2003 or 10 2004 and endured physical and sexual abuse throughout the marriage causing her mental health to 11 deteriorate.100 She had lived with a friend since 2006, but the relationship was “tumultuous” due to 12 her irritability and anger episodes.101 She had trouble outside of the home for similar reasons.102 13 The plaintiff’s daily routine consisted of waking up early, exercising, preparing food, completing 14 household chores, attending appointments, running errands, and working on film projects.103 She 15 worked as a housekeeper twice a week.104 She was able to drive and occasionally used her 16 roommate’s vehicle. Otherwise she walked or bicycled to her destination.105 The plaintiff graduated high school and attended college intermittently.106 For most of the 17 18 plaintiff’s adult life, she was employed as a housekeeper with many of her clients being long 19 20 21 22 23 24 25 26 27 28 96 AR 590. 97 AR 454. 98 99 Id. Id. 100 AR 454–455. 101 AR 455. 102 103 104 105 106 Id. Id. Id. Id. Id. ORDER – No. 18-cv-03714-LB 12 1 term.107 At the time of Dr. Kalich’s evaluation, the plaintiff had three clients; two required weekly 2 visits.108 Throughout her career, she was fired several times and in the year before the evaluation 3 she was fired for cursing at a client after the client took a vacation without providing the plaintiff 4 with notice.109 The plaintiff reported enduring emotional and sexual abuse by clients.110 The 5 plaintiff worked as a filmmaker as a hobby, but she was not able to make money doing so.111 According to the report, the plaintiff’s medical history involved a diagnosis in 2002 of Stage 2 United States District Court Northern District of California 6 7 and 3 lymphoma, for which she received (1) chemotherapy and radiation, (2) a hysterectomy in 8 2009 because of severe endometriosis which caused hair loss, pica, and blood-pressure 9 disruptions, (3) hormone replacement therapy following the hysterectomy, and (4) a breast-cancer 10 diagnosis.112 There was no finding that she abused any substance, though she occasionally used a 11 small amount of marijuana.113 The plaintiff’s mental-health history involved a diagnosis of PTSD related to the violence she 12 13 experienced during her marriage that caused extreme reactions to triggers in the environment.114 14 One example provided involved the plaintiff’s losing consciousness during a violent movie.115 Dr. 15 Kalich noted that the plaintiff experienced symptoms of depression, suicidal thoughts, self- 16 harming behavior, and a history of anorexia.116 During the evaluation, the plaintiff “exhibited 17 signs of mania/hypomania, including rapid, tangential speech, psychomotor agitation, a flight of 18 ideas, [ ] grandiosity[,]” and she made statements “indicative of a subtle paranoia.”117 Dr. Kalich 19 20 21 22 23 24 25 26 27 28 107 108 109 110 111 112 113 114 115 116 117 Id. Id. Id. Id. Id. Id. AR 456. Id. Id. Id. AR 456. ORDER – No. 18-cv-03714-LB 13 United States District Court Northern District of California 1 reported that the plaintiff had participated in individual therapy with Catherine Maggio since 2002, 2 and that this therapy was “instrumental in helping her [ ] overcome her posttraumatic anxiety.”118 3 The plaintiff was prescribed psychotropic medication early on in her treatment but stopped taking 4 the medication due to negative side effects.119 5 Dr. Kalich reported several observations during the evaluation. The plaintiff was aware of 6 date, time, and place and denied memory problems, and her intelligence appeared to be within the 7 average to high average range.120 She appeared restless and fidgety during the appointment, spoke 8 at a rapid pace, was tangential, and rarely gave direct answers.121 The plaintiff’s affect was 9 described as labile and ranged from tearful and upset to angry and outspoken.122 She denied 10 having auditory or visual hallucinations.123 A Trauma Symptom Inventory – Second Edition (TSI- 11 2) Test was administered.124 The test showed elevated levels of the externalization, anger, and 12 tension-reduction behaviors scales.125 Externalization elevations are common in people prone to 13 “exhibit problematic, self-destructive or aggressive behaviors as a way to deal with overwhelming 14 internal states and/or underdeveloped abilities to regulate their emotions.”126 Anger elevations are 15 common in people who “describe anger as an intrusive and unwanted experience and may 16 perceive their anger as being outside of their control[,]” and tension-reduction elevations suggest 17 that the plaintiff “may engage in external activity to modulate, interrupt, avoid or soothe negative 18 19 20 21 22 23 24 25 26 27 28 118 119 120 121 122 123 Id. Id. AR 457. Id. Id. Id. 124 Id. This test “assesses a wide range of complex symptomatology, including posttraumatic stress, dissociation, somatization, impaired self-capacities, and dysfunctional behaviors. It consists of two validity scales, 12 clinical scales and subscales, and four factors.” Id. 125 AR 457–58. 126 AR 457. ORDER – No. 18-cv-03714-LB 14 United States District Court Northern District of California 1 internal states.”127 Scales more typically associated with post-traumatic stress were not 2 significantly elevated.128 3 Dr. Kalich also administered a Beck Depression Inventory – Second Edition (BDI-II) test, 4 which is used to measure the severity of depression in adults and adolescents.129 According to the 5 test, the plaintiff was suffering from moderate to severe depression with a total score of thirty- 6 one.130 7 Dr. Kalich’s diagnostic impression was that there was enough evidence to support a diagnosis 8 of Unspecified Bipolar and Related Disorder, though there was not enough evidence to determine 9 whether she had Bipolar I or II Disorder.131 There was insufficient evidence at the time to indicate 10 the presence of PTSD.132 In assessing work-related activities, he determined that the plaintiff 11 likely experienced mild to moderate impairment to her daily living activities, marked impairment 12 to social functioning (which “would create significant instability in the workplace and are likely to 13 impede her ability to form and maintain positive work relationships”), and marked difficulty with 14 regard to concentration.133 The plaintiff was also vulnerable to future episodes of decompensation, 15 and if she continued “to experience health problems or other stressors, her functioning will likely 16 deteriorate further.”134 2.2.3 17 Dr. Khoi provided a post-hearing clinical evaluation of the plaintiff on March 1, 2017.135 She 18 19 Sokley Khoi, Ph.D. — Examining administered a pre-test interview/history/mental status exam, a Wechsler Adult Intelligence Scare- 20 21 22 23 24 25 26 27 28 127 128 AR 458. Id. 129 Id. “The BDI-II test was developed for the assessment of symptoms which corresponds to the DSM-IV. Test scores range from 0 to 63, with higher scores indicating more severe depression.” Id. 130 131 132 133 134 135 Id. Id. Id. AR 459. Id. AR 598. ORDER – No. 18-cv-03714-LB 15 1 IV (WAIS-4) Test, a Wechsler Memory Scale-IV (WMS-4): Flexible Approach Test, and a Trail 2 Making Test Part A & B (TMT).136 Dr. Khoi derived the information in her report from the 3 plaintiff and documents she reviewed.137 She reported that the plaintiff was difficult to interview 4 due to being significantly tangential and difficult to redirect, but said that she was a fair 5 historian.138 Dr. Khoi noted the following information from the interview under the plaintiff’s relevant United States District Court Northern District of California 6 7 history: she completed high school and attended some college; she was self-employed as a 8 housecleaner from 1997 to 2012, but stopped working due to breast cancer; the plaintiff gained 9 income through the GA; she received psychotherapy from 2002 to 2015 but discontinued therapy 10 for unknown reasons; she had no history of psychiatric hospitalization and had never been 11 prescribed psychotropic medications; in addition to the breast cancer, her medical history included 12 carpal-tunnel syndrome, a tumor in her uterus that was removed in 2009, liver problems, and 13 multiple head injuries inflicted as a result of the domestic violence during her marriage; she took 14 various herbal remedies; she used cannabis in the past for anxiety and pain; and she was arrested 15 in the past for environmental activism.139 The plaintiff informed Dr. Khoi that she could perform all activities of daily living, but with 16 17 restrictions due to her physical health problems.140 She managed her finances, read, listened to 18 music, took walks, socialized with friends, attended doctors’ appointments, and used the 19 computer.141 During the mental-health exam, the doctor reported that the plaintiff was cooperative and was 20 21 oriented to person, place, and time.142 She recalled three of three words during memory/short 22 23 24 25 26 27 28 136 137 138 Id. Id. Id. 139 AR 598–99. 140 AR 599. 141 142 Id. Id. ORDER – No. 18-cv-03714-LB 16 1 delay recall tests and correctly completed serial sevens.143 Her speech was pressured and she was 2 significantly tangential, but she was able to follow a simple three-step command.144 Her affect was 3 expansive and her mood was anxious.145 She denied suicidal or homicidal ideation and auditory or 4 visual hallucinations.146 Dr. Khoi reported that the claimant’s thought processes appeared very 5 tangential and difficult to redirect.147 On the WAIS-IV Test to evaluate cognitive functioning, the plaintiff scored a “superior” on United States District Court Northern District of California 6 7 the Verbal Comprehensive Index section, a “high average” on the Perceptual Reasoning Index, a 8 “superior” on the Working Memory Index, an “average” on the Processing Speed Index, and a 9 “high average” for the Full Scale IQ score.148 It was reported that there was “significant variability 10 among the subtests with scores ranging from the average to the superior range.”149 On the WMS- 11 IV test, she was within the borderline range on the Auditory Memory Index, the average range on 12 the Visual Memory Index, the low-average range for the Immediate Memory Index, and the low- 13 average range for the Delayed Memory Index.150 The plaintiff’s performance was within normal 14 limits on Part A and B of the TMT.151 Dr. Khoi determined the plaintiff’s work-related abilities were as follows: no impairment in 15 16 her ability to follow/remember simple instructions; mild impairment in her ability to 17 follow/remember complex or detailed instructions; no impairment in her ability to maintain 18 adequate pace or persistence to perform one or two-step simple repetitive tasks; mild impairment 19 in her ability to maintain adequate pace or persistence to perform complex tasks; mild to moderate 20 21 22 23 24 25 26 27 28 143 144 145 146 147 Id. Id. Id. Id. Id. 148 AR 599–600. 149 AR 600. 150 AR 600–601. 151 AR 601. ORDER – No. 18-cv-03714-LB 17 1 impairment in her ability to adapt to changes in job routine; moderate ability to withstand the 2 stress of a routine work day; and moderate impairment in her ability to interact appropriately with 3 co-workers, supervisors, and the public on a regular basis.152 Dr. Khoi wrote that “[a]n additional 4 obstacle to adequate work performance may be the claimant’s medical condition [but] [t]his matter 5 is beyond the scope of today’s evaluation and is deferred to medical opinion.”153 Lastly, Dr. Khoi 6 found the plaintiff able to manage her own funds.154 7 2.3 8 The plaintiff’s first Disability Determination Explanation from examiner K. Horel was dated United States District Court Northern District of California 9 Disability Determination Explanation — Initial September 24, 2014, and she was determined to be not disabled.155 The medical/psychological 10 consultants were Anna M. Franco, Psy.D., and I. Herman, M.D.156 After outlining the plaintiff’s 11 medical and psychological history, the report stated that it appears she would be capable of 12 working by February 2015, that it was “[o]f interest that MFT really did not provide a [diagnosis] 13 but presentation is suggestive of PTSD yet one time [evaluation] suggest no PTSD; both YTSs 14 refer to pain issues and MD notes that [claimant], [with] resolution of joint pain and effective 15 therapy will be capable of work by 6/15.”157 The report found that the plaintiff had at least one 16 medically determinable impairment.158 These included “non-severe” breast cancer, “severe” 17 affective disorders; “severe” anxiety disorders; and “severe” other unspecified arthropathies.159 18 Under the ‘A’ criteria of the listings for the Psychiatric Review Technique (PRT) assessment, 19 the report stated that a “medically determinable impairment [was] present that does not precisely 20 satisfy the diagnostic criteria” and that “[p]aragraph ‘A’ criteria evidence the anxiety-related 21 22 23 24 25 26 27 28 152 153 154 Id. Id. Id. 155 AR 104. 156 AR 91, 104. 157 AR 95. 158 159 Id. Id. ORDER – No. 18-cv-03714-LB 18 1 disorder – anxiety as the predominant disturbance or anxiety experienced in the attempt to master 2 symptoms, as evidenced by. . . [r]ecurrent and intrusive recollections of a traumatic experience, 3 which are a source of marked distress.”160 The ‘B’ Criteria section stated that the two disorders 4 result in a mild restriction of daily living activities, moderate difficulties in maintaining social 5 functioning, moderate difficulties in maintaining concentration, persistence or pace, and no 6 repeated episodes of decompensation, each of extended duration.161 The following section stated 7 that the “[e]vidence does not establish the presence of the ‘C’ criteria.”162 The report found that one or more of the plaintiff’s medically determinable impairments could 8 United States District Court Northern District of California 9 be reasonably expected to produce her pain or other symptoms but that the plaintiff’s statements 10 about the intensity, persistence, and functionally limiting effects of the symptoms could not be 11 substantiated by the objective medical evidence alone.163 The plaintiff’s daily living activities, 12 precipitating and aggravating factors, and medication treatment were stated to be the most 13 informative in assessing the credibility of the plaintiff’s statements.164 The plaintiff was found to 14 be “[p]artially [c]redible” because she had limited use of her left wrist and possible bi-polar 15 disorder, but she was able to take care of her personal needs, walked two hours a day, watched 16 TV, used the internet, and worked as a part time housekeeper and videographer.165 The report 17 indicated that Dr. Godfrey was labelled a treating physician and Catherine Maggio, Lisa Kalich, 18 and Rose Lewis were labelled non-treating or non-examining sources.166 The reports from Dr. 19 Godfrey, Ms. Maggio, and Dr. Kalich were assigned a weight of “other,” while Dr. Lewis’s report 20 was given “great weight.”167 21 22 23 24 25 26 27 28 160 AR 95–96. 161 AR 96. 162 163 164 165 166 167 Id. AR 97. Id. Id. Id. Id. ORDER – No. 18-cv-03714-LB 19 The Physical Residual Functional Capacity Assessment section stated that plaintiff had 1 2 exertional limitations.168 She could occasionally lift and/or carry fifty pounds, frequently lift 3 and/or carry twenty pounds, stand or walk with normal breaks for six hours in an eight-hour work 4 day, sit with normal breaks for more than six hours on a sustained basis in an eight-hour work day, 5 and push or pull (including operation of hand and/or foot controls) with no other limitation.169 6 This conclusion was based on the plaintiff’s wrist problems.170 The plaintiff’s manipulative 7 limitations were unlimited with regards to reaching in any direction, limited when handling with 8 her left hand, limited when fingering with her left hand, and unlimited in feeling.171 The report 9 found no visual, communicative, or environmental limitations.172 The Mental Residual Functional Capacity Assessment conducted was for the period between United States District Court Northern District of California 10 11 February 2014 and February 2015.173 It found that the plaintiff had understanding and memory 12 limitations.174 She was found to be not significantly limited in her ability to remember locations 13 and work-like procedures and her ability to understand and remember detailed instructions, but she 14 was moderately limited in her ability to understand and remember detailed instructions.175 Regarding persistence and concentration limitations, she was found to be not significantly 15 16 limited in her ability to carry out very short and simple instructions, perform activities within a 17 schedule, maintain regular attendance, be punctual within customary tolerance, sustain an ordinary 18 routine without special supervision, and make simple work related decisions.176 She was found to 19 be moderately limited in her ability to carry out detailed instructions, maintain attention and 20 21 22 23 24 25 26 27 28 168 169 170 AR 98. Id. Id. 171 AR 98–99. 172 AR 99. 173 174 175 176 Id. Id. Id. AR 100. ORDER – No. 18-cv-03714-LB 20 1 concentration for extended periods, work in coordination with or in proximity to others without 2 being distracted by them, and complete a normal workday or workweek without interruptions 3 from psychologically based symptoms and to perform at a consistent pace without an 4 unreasonable number and length of rest periods.177 The plaintiff was not significantly limited in her abilities to ask simple questions or request United States District Court Northern District of California 5 6 assistance, accept instructions and respond appropriately to criticism from supervisors, maintain 7 socially appropriate behavior, adhere to basic standards of neatness and cleanliness, be aware of 8 normal hazards and take appropriate precautions, travel in unfamiliar places or use public 9 transportation, and set realistic goals or make plans independently of others.178 She was 10 moderately limited in her abilities to interact appropriately with the general public, get along with 11 coworkers or peers without distracting them or exhibiting behavioral extremes, and respond 12 appropriately to changes in work setting.179 The examiner addressed source opinions that were more restrictive than his. He stated that Dr. 13 14 Lewis’s and Dr. Kalich’s “opinion [was] an underestimate of the severity of the individual’s 15 restrictions/limitations and based only on a snapshot of the individual’s functioning.”180 He stated 16 that Ms. Maggio’s opinion was an issue reserved for the Commissioner.181 About Dr. Godfrey, he 17 stated that the “opinion appears to rely on the assessment of limitations resulting from an 18 impairment for which the source has not treated or examined the individual. The opinion is 19 without substantial support from other evidence of record, which renders it less persuasive.”182 The examiner’s assessment of the plaintiff’s vocational factors indicated that she was not able 20 21 to perform her past relevant work as a house cleaner due to her inability to engage in constant 22 23 24 25 26 27 28 177 178 179 Id. AR 100–101. Id. 180 AR 101. 181 AR 102–103. 182 AR 102. ORDER – No. 18-cv-03714-LB 21 United States District Court Northern District of California 1 handling.183 She was thus deemed to be “limited to Medium work with occasional handling and 2 fingering with her [left] hand. In addition, [she] is limited to Unskilled work with limited public 3 contact by 02/2015.”184 4 2.4 Disability Determination Explanation — Reconsideration 5 S. Cifriano submitted a reconsideration DDE on April 24, 2015 and concluded that the 6 plaintiff was not disabled.185 Jay Flocks, M.D., completed the medical portion of the DDE.186 This 7 section will focus on the differences between the initial DDE and this one. 8 The primary reconsideration issue was the plaintiff stated that she had again been diagnosed 9 with breast cancer and masses on her ovaries.187 The approximate date of the new condition was 10 September 2014.188 Her new medical issues caused extreme stress and caused her mental-health 11 symptoms to increase in severity.189 The plaintiff had not worked since last completing a disability 12 report but had worked after the alleged onset date.190 Dr. Flocks provided additional comments in the Psychiatric Review Technique section. He 13 14 wrote that “[a]n MFT is not an Acceptable Medical Source. However, the overall picture is 15 suggestive to me of Depression, secondary to medical illness. This degree of possible malignancy 16 is quite scary. I affirm the previous as written albeit some arcane dispute with the [diagnosis].”191 17 18 19 20 21 22 23 24 25 26 27 28 183 AR 103. 184 AR 104. 185 AR 126. 186 AR 123. 187 AR 107. 188 189 190 Id. Id. Id. 191 AR 118. The previous entry that Dr. Flocks was affirming is as follows: “It appears that the claimant would be capable by 2/15. Of interest is that MFT really did not provide a [diagnosis] but presentation is suggestive of PTSD yet one time eval[uation] suggests no PTSD; both YSTs refer to pain issues and MD notes that claimant, [with] resolution of joint pain and effective therapy, will be capable of work by 6/15. Claimant has been in [therapy] since [potential onset date] of 2/14; LPSRTS are consistent with the ‘autonomous/independent’ work MFT refers to. Thus, LPSRTS as of 2/15 is reasonable.” Id. ORDER – No. 18-cv-03714-LB 22 1 2.5 2 The plaintiff submitted a function report dated July 14, 2014 as part of her application.192 In 3 response to how her condition limits her ability to work, she wrote that she could no longer work 4 as a house cleaner because her hands were “broken” to the point that she could no longer use a 5 zipper or hold a cup of tea.193 Her injuries were exacerbated by her anti-cancer drug causing rapid 6 menopause.194 She had frequent mood swings and a low tolerance for normal social environments 7 and social norms.195 In describing her typical day, she wrote that she woke up early and followed the news.196 She 8 9 United States District Court Northern District of California Function Report — Plaintiff stated that she had constant numbness in her hands and could not open jars.197 She used to be able 10 to do the following activities that she can no longer do: write in her journal; use her computer 11 mouse with her usual hand; open jars, use zippers, buttons, or snaps; use Ziploc bags or heavy 12 dishes; bake or perform any other job requiring more than minimal use of her hands; or ride her 13 bike, which was her primary mode of transportation.198 She could adequately address her personal 14 care but would at times engage in self-harm by cutting her nails until they bled and burned 15 herself.199 She was able to prepare easy meals for herself but “[could not] make 90% of what [she] 16 used to make.”200 The plaintiff could not do most household chores.201 She got around by walking, 17 18 19 20 21 22 23 24 25 26 27 28 192 193 194 195 196 197 198 AR 294. Id. Id. Id. Id. AR 295. Id. 199 AR 296. 200 AR 297. 201 Id. ORDER – No. 18-cv-03714-LB 23 1 borrowing her roommates car, or taking the bus.202 She frequently walked, and while she had 2 difficulty shopping, she was able to do it.203 She described herself as an online activist and listed filmmaking as a hobby.204 She had almost 3 4 completely stopped filmmaking due to chemotherapy, and was forced to support herself by 5 cleaning houses.205 Most of her socializing was done online or by phone.206 She said that she 6 experienced agoraphobia and severe anxiety because of her abusive ex-husband.207 She found her 7 condition affected her ability to lift, reach, sit, remember things, complete tasks, concentrate, 8 follow instructions, use her hands, and get along with others.208 She could walk for an hour 9 without a rest.209 The plaintiff said that she had problems with authority, had lost jobs due to not being able to 10 United States District Court Northern District of California 11 get along with people, and did not handle stress well.210 12 2.6 Function Report — Ralston Soong 13 Ralston Soong is the plaintiff’s roommate and submitted a third-party function report to 14 support the plaintiff’s application.211 He had known the plaintiff for twenty-three years.212 He 15 stated that she could use her hands well and needed help with basic chores.213 Mr. Soong 16 described the plaintiff’s typical day as taking care of her various health issues, walking, using the 17 18 19 20 21 22 23 24 25 26 27 28 202 203 204 205 206 207 AR 298. Id. AR 299. Id. Id. Id. 208 AR 300. 209 AR 300–301. 210 AR 301–302. 211 AR 285. 212 213 Id. Id. ORDER – No. 18-cv-03714-LB 24 United States District Court Northern District of California 1 internet, listening to the radio, reading, and keeping up with current events.214 Before her illness, 2 the plaintiff was able to ride her bike, clean, cook, and do heavy computer work.215 He reported 3 that the plaintiff’s illness negatively impacted her ability to dress, bathe, care for her hair, feed 4 herself, use the toilet, and use skin care products.216 She needed reminders for appointments and to 5 take medication.217 She could prepare food, but since her illness began, he would help with 6 shopping, preparing food, opening jars and Ziploc bags, and cooked when her hands hurt.218 Mr. 7 Soong did almost all cleaning chores.219 8 Mr. Soong said the plaintiff could be very excitable and seemed like she has PTSD.220 She had 9 become very direct with people.221 She could walk for an hour before needing a short break, could 10 pay attention for ten to fifteen minutes, and was able to follow instructions well.222 He did not 11 believe that she handled stress well, and she had outbursts due to her injuries.223 Lastly, Mr. Soong 12 stated he has known the plaintiff for a long time and said she was a very hardworking person 13 “until the cancer and chemo treatments/radiation destroyed her body.”224 He felt that her 14 personality had changed and said she now needed a lot of help.225 15 16 17 18 19 20 21 22 23 24 25 26 27 28 214 215 216 217 218 219 220 221 222 AR 286. Id. Id. AR 287. Id. Id. AR 290. Id. Id. 223 AR 291. 224 AR 292. 225 Id. ORDER – No. 18-cv-03714-LB 25 1 2 3.1 3 At the February 1, 2016 hearing, the plaintiff was represented by an attorney.226 The ALJ 4 asked the plaintiff for basic information and then began questioning her about her work history.227 5 The plaintiff testified that she was not currently working and last worked part-time in mid-2012.228 6 She was a housecleaner for more than twenty years, working about twenty-five hours per week, 7 “[b]ut over time, it was fewer and fewer hours [and] in the end, I couldn’t do it because my wrists 8 and hands were shot. They were just broken, not working.”229 When she could work as a house 9 cleaner, each job took two hours, she would work one to three jobs per day, and she was paid 10 United States District Court Northern District of California 3. Administrative Proceedings Plaintiff’s Testimony twenty dollars per hour.230 11 The ALJ asked the plaintiff about her film work, and she testified that she tried to use that 12 career path to get out of being a housecleaner.231 She made several independent films, but the most 13 she had ever made from this work was $1,800 as a videographer at a film festival in 2010.232 She 14 wanted to help younger women in the film industry.233 Between 2013 and 2015, the plaintiff 15 wrote, directed, edited, and operated cameras as part of her filmmaking.234 Using the camera 16 required her to wear large braces on her arms.235 As to what prevents her from working, the plaintiff testified that “[t]he most, at this point…has 17 18 to do with my emotional susceptibility to being upset[.]”236 When combined with her physical 19 20 21 22 23 24 25 26 27 28 226 AR 38. 227 AR 40-42. 228 AR 42. 229 Id. 230 AR 43–44. 231 AR 44. 232 233 234 235 236 Id. Id. AR 45. Id. AR 46. ORDER – No. 18-cv-03714-LB 26 1 dystonia, she stated she “can fall into a state of stroke-like paralysis.”237 This can occur whether 2 the triggering event is positive or negative, big or small, and leads to both “meltdowns” and 3 periods of physical disability.238 She described meltdowns as being akin to an unnatural adrenaline 4 rush.239 In response to the meltdowns, the plaintiff testified that she needs to “walk around a lot, 5 get away from people, maybe even talk a lot to myself, and then really kind of shut down and be 6 calm.”240 The plaintiff described feeling suicidal, hopeless, and worthless.241 The plaintiff testified that episodes of physical dystonia are frightening and said that they United States District Court Northern District of California 7 8 caused her body to “freeze up and spasm, or go into paralysis” similar to an “epileptic seizure, 9 only it’s a paralysis seizure.”242 During one episode she experienced (in the December before the 10 hearing), “the whole side of [her] body was completely paralyzed.”243 The last episode occurred as 11 a result of being invited to a film festival.244 The plaintiff testified that her “entire leg froze up for 12 about six months.”245 She describes this as not quite paralysis but “total tension, from ankle to hip 13 [that] was very difficult to bear, because after a while, it starts grinding in your hipbone[.]”246 To 14 cope with these episodes, she “hit the bed, and immediately [went] to sleep” and experienced a lot 15 of fatigue afterwards.247 She was seeing Dr. Ian Bledsoe at UCSF and has found a regimen of 16 qigong and therapy helpful.248 17 18 19 20 21 22 23 24 25 26 27 28 237 AR 46–47. 238 AR 47–48. 239 AR 47. 240 Id. 241 AR 75–76. 242 AR 48, 51. 243 AR 48. 244 AR 51. 245 Id. 246 AR 51–52. 247 AR 48, 51. 248 AR 49–50. ORDER – No. 18-cv-03714-LB 27 United States District Court Northern District of California 1 Next, the ALJ asked the plaintiff to discuss her cancer and treatment.249 The plaintiff described 2 her endometriosis diagnosis, which led to having her uterus removed in 2009.250 During the leadup 3 to the surgery, her doctors warned her about the chemicals she had been working with as a 4 housecleaner.251 After the surgery, she spent six months healing from a methicillin-resistant 5 staphylococcus aureus (MRSA) infection, and felt like she was getting better until experiencing 6 weakness in her bones and losing weight.252 This period of time was more debilitating than her 7 experience with cancer.253 While these issues predate the alleged onset date of January 2012, the 8 plaintiff said that “it was like the uterus removal just made the cancer just start up like crazy.”254 9 The plaintiff also testified that the doctors informed her she had the cancer for two years before its 10 discovery in January 2012.255 She finished treatment around the end of March 2013.256 Following 11 the cancer, the plaintiff testified that she had sepsis, which was not resolved until the end of 12 2014.257 13 The plaintiff had surgery on both breasts and her ovaries removed.258 She is currently taking 14 Exemestane, which costed $500 per month.259 She experienced bone pain as a side effect of the 15 drug.260 The pain is mostly in her feet and occurs when she walks or stands.261 The plaintiff 16 testified the pain fluctuates in degree where “sometimes [she] can take it, and sometimes [she is] 17 18 19 20 21 22 23 24 25 26 27 28 249 250 251 AR 52. Id. Id. 252 AR 53. 253 AR 72–73. 254 AR 53. 255 Id. 256 AR 73. 257 AR 73–74. 258 AR 54. 259 260 261 Id. Id. AR 54–55. ORDER – No. 18-cv-03714-LB 28 1 afraid [her] toes are breaking.”262 She sometimes woke up in the middle of the night with pain in 2 her forearms, and when she first began taking the drug, her hands hurt constantly.263 She reported 3 having lumps in her breast, but they did not require an operation.264 Next, the ALJ asked the plaintiff to describe a typical day.265 She responded that her days can 4 5 vary depending on her medical appointments but she typically makes food, plays with her cat, 6 communicates with people online, attempts to network and “figure out what [she is] going to do 7 next.”266 The plaintiff testified that while she wants to volunteer, she had not yet started.267 She 8 also outlined several ideas for what she may try to do for work.268 Additionally, she testified that 9 she has tried to look for work but “people haven’t tried to give [her] a chance” because she has her United States District Court Northern District of California 10 “own way of doing the craziest things” and does not have a college education.269 11 The plaintiff’s attorney then questioned her and first asked about her ability to gain or keep 12 clients.270 She testified that her clients were “more like friends” and “people who are supporting an 13 artist” rather than being clients primarily interested in having their houses cleaned.271 She stated 14 they are “not looking for a person who’s trying to find their voice, and has a lot of emotional 15 problems.”272 16 17 18 19 20 21 22 23 24 25 26 27 28 262 263 AR 55. Id. 264 AR 74. 265 AR 55. 266 AR 55–56. 267 AR 56. 268 AR 56–58. 269 AR 74–75. 270 AR 59. 271 272 Id. Id. ORDER – No. 18-cv-03714-LB 29 On her limited physical abilities, the plaintiff testified that she loses power in her hands, her 1 2 fingers are always numb, and her hands and wrists get numb very quickly after doing 3 something.273 She testified that she is unable to write or type a lot.274 Returning to the issue of physical dystonia, the plaintiff’s attorney questioned how often the United States District Court Northern District of California 4 5 episodes occur.275 The plaintiff testified that they do not occur regularly but are triggered by 6 events such as the film festival.276 She described having flashbacks where “emotions that are 7 coming up in [her] are completely out of sync with the environment and the situation [she is] 8 in.”277 The plaintiff testified that she has had therapy with Catherine Maggio for thirteen years and 9 that it was helpful.278 The plaintiff’s attorney then asked her how often emotional responses come 10 up during a work day.279 The plaintiff responded that she was “trying to find out how to even cope 11 with little encounters” and that if she experienced any verbal abuse she would not be able to hold 12 it in.280 13 The ALJ asked about the biggest impediments to working various jobs.281 The plaintiff said 14 her biggest impediment to being a cashier would be “people,” and she could not do a job where 15 she put things in a box because of her hands.282 16 17 18 19 20 21 22 23 24 25 26 27 28 273 274 AR 60. Id. 275 AR 61. 276 AR 61–62. 277 AR 63. 278 AR 64. 279 Id. 280 AR 65. 281 AR 76. 282 AR 76–77. ORDER – No. 18-cv-03714-LB 30 1 3.2 2 Mr. Soong is the plaintiff’s roommate.283 He was examined by the plaintiff’s attorney.284 He 3 had experienced the plaintiff’s meltdowns, which she used to have “a few times a week.”285 4 “Sometimes it would be over a word or something I did, and she would take it maybe the wrong 5 way, from my viewpoint, and she would just go off on a tangent, start shouting, et cetera. 6 Sometimes, every now and then, she throws things.”286 Mr. Soong saw her get mad at other 7 people.287 It usually took several hours before she calmed down but it sometimes lasted a day or 8 longer.288 Mr. Soong testified he helped her in other ways because of her hand issues.289 He will 9 open any cans or jars, and sometimes finish cutting or cooking for her.290 Lastly, Mr. Soong 10 helped the plaintiff with the rent.291 The ALJ then questioned Mr. Soong.292 He asked if there were any other issues that may affect 11 United States District Court Northern District of California Testimony of Ralston Soong 12 her ability to function.293 He testified she would become very angry if she was spoken to in a way 13 that bothered her.294 The ALJ asked about the plaintiff’s cancer treatment.295 Mr. Soong described 14 the plaintiff as moody and depressed during that time and said small things would set her off.296 15 Her energy level was low, and she was often at home laying down.297 Mr. Soong stated the biggest 16 17 18 19 20 21 22 23 24 25 26 27 28 283 AR 66. 284 AR 67. 285 286 287 288 289 290 291 292 293 294 295 296 297 Id. Id. AR 68. Id. Id. Id. AR 69. Id. Id. Id. Id. AR 70. Id. ORDER – No. 18-cv-03714-LB 31 United States District Court Northern District of California 1 impediment to the plaintiff’s holding a regular job is “the competitive nature of some of the job… 2 the way people talk to each other. A little curt, a little short will set her off.”298 3 3.3 Vocational Expert Testimony 4 Vocational expert Timothy Farrell testified at the hearing.299 Mr. Farrell had read portions of 5 the plaintiff’s claim file and listened to her testimony.300 He described the plaintiff’s past work as 6 a housecleaner to be “medium work, SVP-3 [specific vocational preparation].”301 The ALJ then 7 questioned Mr. Farrell by presenting hypothetical scenarios involving people with different sets of 8 limitations.302 9 The ALJ’s first hypothetical was a person of plaintiff’s age, education, and work history who 10 was “limited to lifting and carrying fifty pounds occasionally, twenty-five pounds frequently, sit, 11 stand, walk six hours in an eight-hour day. The individual is limited to frequent handling on the 12 left, and frequent fingering on the left. This individual can never climb ladders, ropes, and 13 scaffolds. This individual is further limited to performing simple, routine tasks, limited to simple 14 work-related decisions, and limited to interaction with the public only on a brief, [casual] basis, no 15 more than 10% of the time.”303 Mr. Farrell testified that this person could not do the past job of 16 house cleaner.304 Job options for this person could be a “laundry worker…medium work, SVP-2, 17 national numbers…24,000”, a “cleaner, industrial…medium work, SVP-2…national numbers are 18 41,000”, or a “cleaner/housekeeping… light work, SVP-2” with national numbers of 90,000 based 19 on the 10% contact limitation.305 20 21 22 23 24 25 26 27 28 298 AR 71. 299 AR 77–78. 300 AR 78. 301 AR 79. 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.” Cherwink v. Comm’r of Social Security, No. 17-cv-00082-JSC, 2018 WL 1050194, at *4 (N.D. Cal. Feb. 26, 2018). 302 AR 79. 303 AR 79–80. 304 AR 80. 305 AR 80–81. ORDER – No. 18-cv-03714-LB 32 The second hypothetical posed was “the same person from Hypothetical #1, but this person is United States District Court Northern District of California 1 2 further limited to lifting and carrying 20 pounds occasionally, 10 pounds frequently. This 3 individual is limited to only occasional interaction with co-workers, and this individual should 4 avoid concentrated exposure to hazards, including heavy machinery, toxic chemicals, and open 5 heat sources.”306 Mr. Farrell found this person able to be a “Final Inspector…light work, SVP-2, 6 and the numbers on that are 17,000”, or a lead former, which is a light work job, SVP-2 with 7 national numbers of 11,000 when adjusted for hand use limitations.307 Another job would be a 8 marker which involves light work, SVP-2, and number 46,000 nationally.308 Mr. Farrell ruled out 9 the previous cleaner/housekeeping job because of the potential exposure to chemicals.309 10 The third hypothetical involved the same person from Hypothetical #2 but limited to 11 occasional handling and fingering.310 Mr. Farrell testified that the person would become 12 unemployable.311 13 3.4 Administrative Findings 14 The ALJ followed the five-step sequential evaluation process to determine whether the 15 plaintiff was disabled and concluded that she was not from February 5, 2014, the date the 16 application was filed.312 At step one, the ALJ found that the plaintiff had not engaged in substantial gainful activity 17 18 since the application date of February 5, 2014.313 19 20 21 22 23 24 25 26 27 28 306 AR 81. 307 AR 81–82. 308 AR 82. 309 Id. 310 AR 82–83. 311 AR 83. 312 AR 19–20. 313 AR 21. ORDER – No. 18-cv-03714-LB 33 At step two, the ALJ found “[t]he claimant has the following severe impairments: anxiety 1 2 disorder, bipolar disorder, left De Quervain’s syndrome of the wrist and status post breast 3 cancer[.]”314 At step three, the ALJ found “[t]he claimant does not have an impairment or combination of 4 5 impairments that meets or medically equals the severity of one of the listed impairments[.]”315 He 6 wrote that the “[o]bjective evidence, clinical findings and treatment notes regarding the claimant’s 7 impairments do not support a finding that the severity of the claimant’s impairments meet or equal 8 a listing[.]”316 The ALJ found that listings 12.04 and 12.06 were not met.317 He considered the 9 “paragraph B” criteria.318 To satisfy these criteria [T]he mental impairment must result in at least one extreme or two marked limitations in a broad area of functioning, which are: understanding, remembering, or applying information; interacting with others; concentrating, persisting, or maintaining pace; or adapting or managing themselves. A marked limitation means functioning in this area independently, appropriately, effectively, and on a sustained basis is seriously limited. An extreme limitation is the inability to function independently, appropriately or effectively, and on a sustained basis.319 10 United States District Court Northern District of California 11 12 13 14 The ALJ found: 15 In understanding, remember, or applying information, the claimant has mild limitations. With regard to concentrating, persisting, or maintaining pace, the claimant has mild limitations. There is evidence of the claimant was [sic] a good historian at a psychological exam. The claimant was able to recall 3/3 words and correctly complete serial sevens. The claimant reported being independent in her activities of daily living, but with some restrictions due to physical health problems. The claimant said she is able to manage finances, read and listen to music. There is no evidence of more severe limits in these areas. 16 17 18 19 20 In interacting with others, the claimant has moderate limitations. As for adapting or managing oneself. The claimant has experienced moderate limitations. The claimant reported that she is often fatigued and irritable. The claimant appeared cooperative, 21 22 23 24 25 26 27 28 314 315 316 317 318 319 Id. Id. Id. AR 22. Id. Id. ORDER – No. 18-cv-03714-LB 34 but was tangential and difficult to redirect during a mental status exam. At times, she presented as grandiose. Her depression/anxiety symptoms were evident upon her mental health exam. There is insufficient evidence of marked limits in these areas[.]320 1 2 3 4 5 6 7 8 9 As a result, the ALJ held the plaintiff’s “mental impairments do not cause at least two ‘marked’ limitations or one ‘extreme’ limitation, [and] the ‘paragraph B’ criteria are not satisfied.”321 The ALJ likewise held the “paragraph C” criteria of listings “12.04, depressive bipolar and related disorders, 12.15, schizophrenia spectrum and other psychotic disorders, or 12.06, anxiety and obsessive compulsive disorders” were not met.322 He found that [t]here is insufficient evidence to establish the presence of a medically documented history of these disorders over a period of at least 2 years, and evidence of both: (1) Medical treatment, mental health therapy, psychosocial support(s), and a highly structured setting(s) that is ongoing and that diminishes the symptoms and signs of the mental disorder [ ]; and (2) Marginal adjustment, that is, minimal capacity to adapt to changes in the claimant’s environment or to demands that are not already part of the claimant’s daily life [ ].323 10 United States District Court Northern District of California 11 12 13 14 Before step four the ALJ determined the plaintiff had the residual function capacity 15 to perform light work… except lift and carry 20 pounds occasionally and 10 pounds frequently; sit, stand or walk for 6 hours each out of an 8-hour workday; can push/pull as much as can lift/carry; handle items frequently with the left hand; finger frequently with the left hand; never climb ladders, ropes, or scaffolds; avoid concentrated exposure to hazards including heavy machinery, caustic chemicals and open heat sources; understand, remember and carryout simple, routine tasks; judgment limited to simple work-related decisions; respond appropriately to coworkers occasionally; respond appropriately to public only a brief, casual basis, but no more than 10% of the time.324 16 17 18 19 20 The ALJ considered “all symptoms and the extent to which these symptoms can reasonably be 21 22 accepted as consistent with the objective medical evidence and other evidence[.]”325 The ALJ 23 24 25 26 27 28 320 321 322 323 324 325 Id. Id. Id. Id. AR 23. Id. ORDER – No. 18-cv-03714-LB 35 1 followed a two-step process.326 First, the ALJ determined that the plaintiff’s medically 2 determinable impairments could reasonably cause the alleged symptoms.327 Second, the ALJ 3 found that the intensity, persistence, and limiting effects of these symptoms, as alleged by the 4 plaintiff, were not consistent with the medical evidence in the record.328 Regarding the plaintiff’s mental impairments, the ALJ found the “objective evidence supports United States District Court Northern District of California 5 6 the diagnoses of bipolar disorder, and anxiety disorder (PTSD).”329 He observed the plaintiff had 7 never received inpatient treatment or been hospitalized for these conditions and had never been 8 prescribed psychotropic medications.330 He held that “[o]bjective clinical findings during the 9 relevant period do not, overall, support any mental functioning limits other than those detailed in 10 the residual functional capacity.”331 He said that the “post-hearing consultative examiner’s report 11 does not support a finding of disability” and provided an overview of the report.332 The subsequent 12 paragraphs summarized the reports of Dr. Kalich, Catherine Maggio, and the plaintiff’s exam by 13 Dr. Bledsoe in 2016.333 Following this overview, the ALJ found: 14 [T]he claimant’s conservative treatment history does not support any additional limits on her residual functional capacity. The claimant did not take psychotropic medication during the time at issue. There is evidence of a decrease in her PTSD symptoms after psychotherapy treatment. The treatment record as well as the claimant’s ability to work part-time as a housekeeper and freelance filmmaker is consistent with the residual functional capacity in this decision. Although there are clinical findings that include irritability, mood swings, spasmodic dysphonia (with improvement) and nervousness, the record also reveals normal or unremarkable clinical findings. For instance there is evidence of normal mood and affect, normal appearance, pleasant, cooperative, unremarkable thought content, full activities of 15 16 17 18 19 20 21 22 23 24 25 26 27 28 326 327 328 329 330 331 332 333 Id. AR 25. Id. Id. Id. Id. Id. AR 25–26. ORDER – No. 18-cv-03714-LB 36 daily living, no objective evidence of delusions or hallucinations, and good insight and judgment.334 1 2 3 4 5 6 7 8 He stated that the “opinion of Dr. Khoi as to [the plaintiff’s] mental impairments is given great weight because of the opportunity to examine the claimant, and the opinion is supported by the totality of the medical evidence and it is supported by a detailed explanation.”335 The ALJ said that Dr. Khoi’s opinion also contradicts that of Catherine Maggio.336 Ms. Maggio’s opinion was “overly reliant on the claimant’s subjective statements” and “not consistent with the medical record as a whole.”337 Furthermore, the ALJ held that Ms. Maggio’s opinion was given only partial weight because she was not an acceptable medical source.338 9 10 United States District Court Northern District of California 11 12 13 14 The ALJ gave little weight to the opinion of Dr. Kalich because “it is not consistent with the record [as] a whole and [was] internally inconsistent.”339 He stated, “Dr. Kalish noted marked limitation in concentration and stability but this was during a period the claimant was working at least part-time as a housekeeper and freelance filmmaker, which contradicts her assessment.”340 He also said there “is evidence that the claimant’s psychotherapy (more than 10 years) and her active mental health treatment have helped her to overcome the effects of PTSD.”341 15 16 17 18 The ALJ considered the administrative findings by the state-agency mental-impairment consultants and weighed them as statements from non-examining expert sources.342 He stated that the opinions of Dr. Franco and Dr. Flocks that the “claimant’s severe anxiety/depressive disorders resulted in moderate limitations in social functioning and in concentration, persistence or pace are 19 20 21 22 23 24 25 26 27 28 334 AR 26. 335 AR 27. 336 AR 28. 337 338 339 340 341 342 Id. Id. Id. Id. Id. AR 27. ORDER – No. 18-cv-03714-LB 37 1 given great weight as the opinions are supported by the medical record, by explanation and 2 consistent with another opinion.”343 3 Regarding the plaintiff’s physical impairments, the ALJ found that “the medical records and 4 objective evidence support the diagnoses of status post left breast cancer and left De Quervain’s 5 syndrome.”344 He then summarized the reports of Dr. Lewis and Dr. Bledsoe.345 The ALJ held that 6 “the opinion of examining consultative physician Dr. Lewis as to the claimant’s physical 7 limitations is afforded great weight as it is supported by explanation and by the relevant medical 8 evidence.”346 The ALJ afforded Dr. Godfrey’s opinion little weight because the doctor gave no “indication United States District Court Northern District of California 9 10 for the stand/walk limitation other than mental fatigue” and “[t]he handling and fingering 11 limitations are overstated and not supported by the claimant’s own reported activities.”347 The ALJ 12 found that “Dr. Godfrey relies on an assessment of mental limitations resulting from an 13 impairment for which he has never treated the claimant nor examined.”348 As to the state-agency medical physician, Dr. Herman, the ALJ weighed the opinion as a 14 15 statement from a non-examining expert source.349 Dr. Herman’s opinion – that “the claimant could 16 perform less than medium exertional level work” – was given only partial weight “as it is not 17 consistent with the records as a whole as it understates the claimant’s lift/carry limitation in light 18 of her De Quervain’s syndrome.”350 19 20 21 22 23 24 25 26 27 28 343 AR 27–28. 344 AR 26. 345 AR 26–27. 346 AR 27. 347 AR 28. 348 349 350 Id. Id. Id. ORDER – No. 18-cv-03714-LB 38 The opinion of Mr. Soong, the plaintiff’s roommate, was “given only some weight because the 1 2 objective evidence does not fully support his statement concerning the claimant’s inability to 3 work.”351 The ALJ also found this to be an area reserved for the Commissioner.352 Thus, the ALJ found that “[i]n sum, there are limitations, such as those that the undersigned 4 5 has found, but the claimant is still able to work despite them.”353 At step four, the ALJ found that the plaintiff was unable to perform any past relevant work 6 7 because her past job as a house cleaner was assigned a medium exertional level with a rating of 8 SVP-3.354 At step five, the ALJ determined that “[c]onsidering the claimant’s age, education, work United States District Court Northern District of California 9 10 experience, and residual functional capacity, there are jobs that exist in significant numbers in the 11 national economy that the claimant can perform.”355 The ALJ stated he was required to consider 12 the “claimant’s residual functional capacity, age, education, and work experience in conjunction 13 with the Medical-Vocational Guidelines[.]”356 He observed that “[i]f the claimant had the residual 14 functional capacity to perform the full range of light work, a finding of ‘not disabled’ would be 15 directed[.]”357 The ALJ, however, found that the “claimant’s ability to perform all or substantially 16 all of the requirements of this level of work has been impeded by additional limitations.”358 Given 17 these additional limitations, the ALJ asked the vocational expert what jobs were available and the 18 expert testified that some of the jobs that could be performed were final inspector, lead former, 19 and marker.359 20 21 22 23 24 25 26 27 28 351 352 353 354 355 356 357 358 359 AR 29. Id. Id. Id. Id. Id. Id. AR 30. Id. ORDER – No. 18-cv-03714-LB 39 Based on this information, the ALJ concluded that, “considering the claimant’s age, education, 1 2 work experience, and residual functional capacity, the claimant is capable of making a successful 3 adjustment to other work that exists in significant numbers in the national economy [and] [a] 4 finding of ‘not disabled’ is therefore appropriate under the framework of the above-cited rule.”360 5 Thus, the ALJ’s final ruling was that “[b]ased on the application for supplemental security income 6 protectively filed on February 5, 2014, the claimant is not disabled under section 1614(a)(3)(A) of 7 the Social Security Act.”361 8 STANDARD OF REVIEW 9 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 10 11 Commissioner if the claimant initiates a suit within sixty days of the decision. A court may set 12 aside the Commissioner’s denial of benefits only if the ALJ’s “findings are based on legal error or 13 are not supported by substantial evidence in the record as a whole.” Vasquez v. Astrue, 572 F.3d 14 586, 591 (9th Cir. 2009) (internal citation and quotation marks omitted); 42 U.S.C. § 405(g). 15 “Substantial evidence means more than a mere scintilla but less than a preponderance; it is such 16 relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” 17 Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). The reviewing court should uphold “such 18 inferences and conclusions as the [Commissioner] may reasonably draw from the evidence.” Mark 19 v. Celebrezze, 348 F.2d 289, 293 (9th Cir. 1965). If the evidence in the administrative record 20 supports the ALJ’s decision and a different outcome, the court must defer to the ALJ’s decision 21 and may not substitute its own decision. Tackett v. Apfel, 180 F.3d 1094, 1097– 98 (9th Cir. 1999). 22 “Finally, [a court] may not reverse an ALJ’s decision on account of an error that is harmless.” 23 Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). 24 25 26 27 28 360 361 Id. Id. ORDER – No. 18-cv-03714-LB 40 1 GOVERNING LAW 2 A claimant is considered disabled if (1) he or she suffers from a “medically determinable 3 physical or mental impairment which can be expected to result in death or which has lasted or can 4 be expected to last for a continuous period of not less than twelve months,” and (2) the 5 “impairment or impairments are of such severity that he [or she] is not only unable to do his 6 previous work but cannot, considering his age, education, and work experience, engage in any 7 other kind of substantial gainful work which exists in the national economy. . . .” 42 U.S.C. § 8 1382c(a)(3)(A) & (B). The five-step analysis for determining whether a claimant is disabled 9 within the meaning of the Social Security Act is as follows. Tackett, 180 F.3d at 1098 (citing 20 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 C.F.R. § 404.1520). 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-03714-LB 41 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 that the ALJ erred by (1) improperly weighing the medical evidence, (2) United States District Court Northern District of California 6 7 improperly weighing non-medical evidence, (3) finding that the plaintiff did not meet the B 8 criteria of any mental-health listing without substantial evidence, and (4) providing a residual- 9 function-capacity assessment that was not supported by substantial evidence.362 The plaintiff seeks 10 remand with instructions to award benefits, or alternatively, remand for further administrative 11 hearings.363 The court grants the plaintiff’s motion for summary judgment and remands the case 12 for further proceedings. 13 14 1. Whether the ALJ Erred by Discounting Medical-Opinion Evidence 15 The plaintiff contends that the ALJ failed to properly weigh the medical opinions in the record.364 16 Because the ALJ did not provide specific and legitimate reasons for discounting or affording little 17 weight to the opinions of Dr. Godfrey and Dr. Kalich, the court remands for reconsideration of this 18 medical evidence. 19 1.1 Legal Standard 20 The ALJ is responsible for “‘resolving conflicts in medical testimony, and for resolving 21 ambiguities.’” Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014) (quoting Andrews, 53 F.3d 22 at 1039). In weighing and evaluating the evidence, the ALJ must consider the entire case record, 23 including each medical opinion in the record, together with the rest of the relevant evidence. 24 20 C.F.R. § 416.927(b); see also Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (“[A] reviewing 25 26 27 28 362 Mot. – ECF No. 17 at 3–4. 363 Id. at 24. 364 Id. at 9–15. ORDER – No. 18-cv-03714-LB 42 1 court [also] must consider the entire record as a whole and may not affirm simply by isolating a 2 specific quantum of supporting evidence.”) (internal quotation marks and citation omitted). United States District Court Northern District of California 3 “In conjunction with the relevant regulations, [the Ninth Circuit has] developed standards that 4 guide [the] analysis of an ALJ’s weighing of medical evidence.” Ryan v. Comm’r of Soc. Sec., 528 5 F.3d 1194, 1198 (9th Cir. 2008) (citing 20 C.F.R. § 404.1527). Social Security regulations 6 distinguish between three types of physicians: (1) treating physicians; (2) examining physicians; 7 and (3) non-examining physicians. 20 C.F.R. § 416.927(c), (e); Lester v. Chater, 81 F.3d 821, 830 8 (9th Cir. 1995). “Generally, a treating physician’s opinion carries more weight than an examining 9 physician’s, and an examining physician’s opinion carries more weight than a reviewing [non- 10 examining] physician’s.” Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001) (citing 11 Lester, 81 F.3d at 830); Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996). 12 An ALJ may disregard the opinion of a treating physician, whether or not controverted. 13 Andrews, 53 F.3d at 1041. “To reject [the] uncontradicted opinion of a treating or examining 14 doctor, an ALJ must state clear and convincing reasons that are supported by substantial 15 evidence.” Ryan, 528 F.3d at 1198 (alteration in original) (internal quotation marks and citation 16 omitted). By contrast, if the ALJ finds that the opinion of a treating physician is contradicted, a 17 reviewing court will require only that the ALJ provide “specific and legitimate reasons supported 18 by substantial evidence in the record.” Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) 19 (internal quotation marks and citation omitted); see also Garrison, 759 F.3d at 1012 (“If a treating 20 or examining doctor’s opinion is contradicted by another doctor’s opinion, an ALJ may only reject 21 it by providing specific and legitimate reasons that are supported by substantial evidence.”) 22 (internal quotation marks and citation omitted). “The opinions of non-treating or non-examining 23 physicians may serve as substantial evidence when the opinions are consistent with independent 24 clinical findings or other evidence in the record.” Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 25 2002). 26 An ALJ errs when he “rejects a medical opinion or assigns it little weight” without explanation 27 or without explaining why “another medical opinion is more persuasive, or criticiz[es] it with 28 boilerplate language that fails to offer a substantive basis for his conclusion.” Garrison, 759 F.3d ORDER – No. 18-cv-03714-LB 43 1 at 1012–13. “[F]actors relevant to evaluating any medical opinion, not limited to the opinion of the 2 treating physician, include the amount of relevant evidence that supports the opinion and the 3 quality of the explanation provided[,] the consistency of the medical opinion with the record as a 4 whole [, and] the specialty of the physician providing the opinion . . . .” Orn, 495 F.3d at 631. 5 (citing 20 C.F.R. § 404.1527(d)(3)–(6)); see also Magallanes v. Bowen, 881 F.2d 747, 753 (9th 6 Cir. 1989) (an ALJ need not agree with everything contained in the medical opinion and can 7 consider some portions less significant than others). 1.2 8 1.2.1 9 Dr. Godfrey Dr. Godfrey’s opinions are contradicted by the opinions of the state-agency non-examining 10 United States District Court Northern District of California Application 11 physician and the post-hearing consultant. Thus, the ALJ was required to give specific and 12 legitimate reasons for discounting them. Reddick, 157 F.3d at 725. The ALJ gave little weight to 13 Dr. Godfrey’s opinion regarding the plaintiff’s physical limitations for the following reasons: Dr. Godfrey gave no indication for the stand/walk limitation other than mental fatigue. The handling and fingering limitations are overstated and not supported by the claimant’s own reported activities. Further, Dr. Godfrey relies on an assessment of mental limitations resulting from an impairment for which he has never treated the claimant nor examined.365 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The ALJ erred by discounting Dr. Godfrey’s opinion. “A treating physician’s opinion is not binding on the Commissioner with respect to the existence of an impairment or the ultimate issue of disability.” Alvala v. Colvin, SACV 12–0626 AJWW, 2013 WL 1620352, at *5 (C.D. Cal., Apr. 15, 2013) (citing Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001). “However, a treating physician’s medical opinion as to the nature and severity of an individual’s impairment is entitled to controlling weight when that opinion is well-supported and not inconsistent with other substantial evidence in the record.” Id. (citing Edlund v. Massanari, 253 F.3d 1152, 1157 (9th Cir. 2001); Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001)). “Even when not entitled to controlling weight, ‘treating source medical opinions are still entitled to deference and must be weighed’ in light of (1) the length of the treatment relationship; (2) the frequency of examination; 365 AR 28. ORDER – No. 18-cv-03714-LB 44 1 (3) the nature and extent of the treatment relationship; (4) the supportability of the diagnosis; (5) 2 consistency with other evidence in the record; and (6) the area of specialization. Id. (quoting 3 Edlund, 253 F.3d at 1157 & n.6). Dr. Godfrey treated the plaintiff for over two and a half years after she was diagnosed with United States District Court Northern District of California 4 5 breast cancer.366 Dr. Godfrey’s medical-opinion evidence also reflects and is consistent with the 6 reports of Dr. Lewis and Dr. Bledsoe. Dr. Godfrey listed diagnoses related to the plaintiff’s hand 7 and wrist issues and mental condition, and he prescribed treatment for each.367 He stated that the 8 primary reasons for not being able to work were her joint pain and mental condition.368 The 9 plaintiff’s wrist and hand issues are supported by the report of Dr. Lewis.369 Dr. Kalich, Dr. 10 Bledsoe, and Ms. Maggio, who each treated or examined the plaintiff, submitted reports that are 11 consistent with Dr. Godfrey’s diagnoses.370 Dr. Lewis noted that the plaintiff could not pick up a paperclip with her left hand and used a 12 13 splint on her left wrist at all times.371 She had reduced grip strength of three and a half out of five 14 on the left hand.372 Dr. Lewis diagnosed the plaintiff with De Quervain’s syndrome of the wrist 15 and recommended her workplace activities be limited because of the plaintiff’s decreased grip, 16 fine finger movement, De Quervain’s syndrome, wrist splint, and decreased motion in her wrist.373 17 Dr. Bledsoe found that the plaintiff’s leg issues were likely related to a functional-movement 18 disorder that was “temporally related to significant emotional stress.”374 This illustrates the 19 connection between the plaintiff’s physical symptoms and her mental health. 20 21 22 23 24 25 26 27 28 366 367 AR 450. Id. 368 AR 453. 369 AR 460–463. 370 AR 458–459, 587–590, 597. 371 AR 461–62. 372 AR 463. 373 AR 464. 374 AR 597. ORDER – No. 18-cv-03714-LB 45 Dr. Godfrey’s opinion is likewise consistent with the plaintiff’s and her roommate’s testimony. United States District Court Northern District of California 1 2 The ALJ found the claimant’s activities did not support the handling and fingering limitations 3 reported, but this is not accurate, and the ALJ does not provide specific analysis as to which of the 4 claimant’s activities did not accord with these limitations. The claimant testified to experiencing 5 numbness and stiffness in her fingers and reported having to stop working because of her hand and 6 wrist impairments.375 She had to stop writing in her journal and could type only for short 7 periods.376 Mr. Soong testified that the plaintiff’s impairment meant he had to help her with basic 8 chores, preparing food, shopping, and opening cans and jars for her.377 Her ability to dress, bathe, 9 care for her hair, feed herself, use the toilet, and use skin care products was also negatively 10 affected.378 The plaintiff responded to the ALJ’s question about whether she could do a job putting 11 things in a box by stating her hands would prevent her from doing so and expressing concern that 12 such a job also could lead to the further breakdown of her hands that could inhibit her ability to go 13 to the bathroom by herself or put herself to bed.379 The ALJ did not provide the specific and legitimate reasons supported by substantial evidence 14 15 necessary to discount Dr. Godfrey’s medical opinion. 1.2.2 16 The ALJ gave Dr. Kalich’s opinion “little weight” because it was “not consistent with the 17 18 Dr. Kalich record [as] a whole and [is] internally inconsistent.”380 He continued, Dr. Kali[c]h noted marked limitation in concentration and stability but this was during a period the claimant was working at least part-time as a housekeeper and freelance filmmaker, which contradicts her assessment. There is evidence that the claimant’s psychotherapy (more than 10 years) and her active mental health treatment have helped her to overcome the effects of PTSD.381 19 20 21 22 23 24 25 26 27 28 375 AR 24, 42. 376 AR 60. 377 AR 68, 285, 287. 378 AR 286. 379 AR 76–77. 380 AR 28. 381 Id. ORDER – No. 18-cv-03714-LB 46 1 “Occasional symptom free periods – and even the sporadic ability to work – are not 2 inconsistent with disability.” Lester, 81 F.3d at 833. “Generally, an ALJ should not consider 3 activities like taking care of oneself, household tasks, hobbies, school attendance, club activities, 4 or social programs to be substantial gainful activities.” Lewis v. Apfel, 236 F.3d 503, 516 (9th Cir. 5 2001). “[D]aily activities may be grounds for an adverse credibility finding ‘if a claimant is able to 6 spend a substantial part of his day engaged in pursuits involving the performance of physical 7 functions that are transferable to a work setting.” Orn, 495 F.3d at 639 (quoting Fair v. Bowen, 8 885 F.2d 597, 603 (9th Cir. 1989). The ALJ does not provide more specific details as to why working part-time as a housekeeper United States District Court Northern District of California 9 10 or freelance filmmaker is inconsistent with Dr. Kalich’s report indicating the plaintiff has a 11 marked limitation in concentration and stability. Furthermore, while Dr. Kalich reported “there 12 [was] insufficient evidence to indicate the presence of Posttraumatic Stress Disorder (PTSD)[,]” 13 she also diagnosed the plaintiff with “Unspecified Bipolar and Related Disorder,” which was not 14 analyzed by the ALJ.382 Again, because the ALJ did not specifically analyze how the plaintiff’s 15 activities were inconsistent with the reported limitations, the court remands for reconsideration of 16 this medical-opinion evidence. 17 18 2. Whether the ALJ Erred by Discounting Non-Medical Opinion Evidence 19 The plaintiff contends that the ALJ failed to properly weigh the opinion of Catherine Maggio, 20 MFT.383 The court finds that the ALJ did not provide sufficient reasons for assigning little weight 21 to Ms. Maggio’s opinion and remands for reconsideration. 22 2.1 Legal Standard 23 In addition to the medical opinions of the “acceptable medical sources” outlined above, the 24 ALJ must consider the opinions of other “medical sources who are not acceptable medical sources 25 and [the testimony] from nonmedical sources.” 20 C.F.R. § 404.1527(f). The ALJ is required to 26 27 28 382 AR 28, 458–59. 383 Mot. – ECF No. 17 at 17. ORDER – No. 18-cv-03714-LB 47 1 consider observations by “other sources” as to how an impairment affects a claimant’s ability to 2 work. Id. Nonetheless, an “ALJ may discount the testimony” or an opinion “from these other 3 sources if the ALJ gives . . . germane [reasons] for doing so.” Molina, 674 F.3d at 1111 (internal 4 quotations and citations omitted). “[A]n opinion from a medical source who is not an acceptable 5 medical source. . . may outweigh the medical opinion of an acceptable medical source[.]” 20 6 C.F.R. § 404.1527(f)(1). “For example, it may be appropriate to give more weight to the opinion 7 of a medical source who is not an acceptable medical source if he or she has seen the individual 8 more often than the treating source, has provided better supporting evidence and a better 9 explanation for the opinion, and the opinion is more consistent with the evidence as a whole.” Id. United States District Court Northern District of California 10 The ALJ must consider “other source” testimony and evidence from a layperson. Ghanim v. 11 Colvin, 763 F.3d 1154, 1161 (9th Cir. 2014); Molina, 674 F.3d at 1111; Bruce v. Astrue, 557 F.3d 12 1113, 1115 (9th Cir. 2009) (“In determining whether a claimant is disabled, an ALJ must consider 13 lay witness testimony concerning a claimant's ability to work.”) (internal quotation marks and 14 citation omitted). “Descriptions by friends and family members in a position to observe a 15 claimant’s symptoms and daily activities have routinely been treated as competent evidence.” 16 Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987). It is competent evidence and “cannot be 17 disregarded without comment.” Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996). 18 Moreover, if an ALJ decides to disregard the testimony of a lay witness, the ALJ must provide 19 “specific” reasons that are “germane to that witness.” Parra v. Astrue, 481 F.3d 742, 750 (9th Cir. 20 2007) (internal citations omitted). The Ninth Circuit has not “required the ALJ to discuss every 21 witness’s testimony on an individualized, witness-by-witness basis.” Molina, 674 F.3d at 1114. An 22 ALJ may “point to” reasons already stated with respect to the testimony of one witness to reject 23 similar testimony by a second witness. Id. 24 2.2 Application 25 As an MFT, Ms. Maggio qualifies as a “non-acceptable” medical source. As such, the ALJ 26 was required to give “germane” reasons for discounting her testimony. The ALJ’s stated reason 27 for giving little weight to Ms. Maggio’s opinion was that “her opinion appears to be overly reliant 28 ORDER – No. 18-cv-03714-LB 48 1 on the claimant’s subjective statements and her opinion is not consistent with the medical record 2 as a whole. Her opinion also is contradicted by psychologist Dr. Khoi.”384 First, in the Ninth Circuit, “[c]ontradictory medical evidence is not a germane reason to reject 3 4 lay witness testimony.” Burns v. Berryhill, 731 Fed. App’x 609, 613 (9th Cir. 2018) (citing 5 Diedrich v. Berryhill, 874 F.3d 634, 640 (9th Cir. 2017)). Second, Ms. Maggio’s opinion should be given additional weight based on her history with the United States District Court Northern District of California 6 7 plaintiff. As discussed above, a non-acceptable medical source’s opinion can outweigh that of an 8 acceptable medical source where the non-acceptable medical source has seen an individual more 9 than once. See 20 C.F.R. § 404.1527(f)(1). Here, Ms. Maggio held regular weekly sessions with 10 the plaintiff from November 2002 to December 2015.385 She has significantly more experience 11 with the plaintiff than any other medical source in the record. She provided detailed observations 12 of the plaintiff’s medical and mental history and the impacts of various increasing stressors that 13 have negatively impacted the plaintiff’s ability to work.386 Ms. Maggio reported an assortment of symptoms exhibited by the plaintiff: she was severely 14 15 limited in her ability to maintain attention for two-hour segments; she was unable to meet 16 competitive standards to maintain regular attendance and be punctual within customary tolerances, 17 accept instructions, respond appropriately to criticism, or interact appropriately with the general 18 public; she had no useful ability to function in coordination or in proximity to others without being 19 distracted; she could not complete a normal workday and workweek without interruptions from 20 her symptoms; she could not perform at a consistent pace without an unreasonable number of 21 breaks; she could not appropriately get along with co-workers or maintain socially appropriate 22 behavior; and she had no useful ability to deal with the stress of work.387 23 24 25 26 27 28 384 AR 28. 385 AR 585. 386 AR 572–574. 387 AR 587–588. ORDER – No. 18-cv-03714-LB 49 United States District Court Northern District of California 1 Furthermore, Ms. Maggio said that the plaintiff had “marked” difficulty in maintaining 2 concentration, persistence or pace, and “extreme” difficulties in maintaining social functioning 3 and restrictions of activities of daily living.388 4 Ms. Maggio’s observations and opinion were also consistent with the medical record as a 5 whole. Dr. Godfrey found that the plaintiff’s mental condition was a substantial limitation on her 6 ability to work.389 Dr. Kalich observed “signs of mania/hypomania, including rapid, tangential 7 speech, psychomotor agitation, a flight of ideas . . . [and] subtle paranoia.”390 She also reported the 8 plaintiff had marked impairments in concentration and social functioning, which “would create 9 significant instability in the workplace and [would] likely [ ] impede her ability to form and 10 maintain positive work relationships.”391 Dr. Khoi, the post-hearing evaluator, also found the 11 plaintiff to be very tangential and difficult to redirect.392 Lastly, regarding the plaintiff’s mental impairments, the ALJ supported his conclusion that 12 13 “[o]bjective clinical findings during the relevant period do not, overall, support any mental 14 functioning limits other than those detailed in the residual function capacity[,]” in part, by stating 15 that “the claimant never received inpatient treatment or psychiatric hospitalization.”393 Moreover, 16 he said, “[c]oncerning her mental impairments, the claimant’s conservative treatment history does 17 not support any additional limits on her residual functional capacity.”394 Following these 18 statements, he noted that the plaintiff had not been prescribed any psychotropic medications.395 19 The Ninth Circuit has stated, “we have particularly criticized the use of a lack of treatment to 20 reject mental complaints both because mental illness is notoriously underreported and because ‘it 21 is a questionable practice to chastise one with a mental impairment for the exercise of poor 22 23 24 25 26 27 28 388 AR 589. 389 AR 453. 390 AR 456. 391 AR 459. 392 AR 599. 393 AR 25. 394 AR 25. 395 AR 25–26. ORDER – No. 18-cv-03714-LB 50 1 judgment in seeking rehabilitation.’” Regennitter v. Comm’r Soc. Sec. Admin., 166 F.3d 1294, 2 1299–1300 (9th Cir. 1999) (quoting Nguyen v. Chater, 100 F.3d 1462, 1465 (9th Cir. 1996)). In 3 addition, the record indicated that the plaintiff did receive treatment from her therapist, Ms. 4 Maggio, from 2002 to 2015. 5 6 Given the generality of the reasons proffered by the ALJ, the court cannot properly assess whether they are germane and thus remands for reconsideration of this issue. 7 8 United States District Court Northern District of California 9 3. Whether the ALJ Erred by Finding the Plaintiff’s Condition Did Not Meet or Equal a Listing 10 At step three, the ALJ evaluated the plaintiff under two listed impairments: 12.04 (Depressive, 11 bipolar and related disorders) and 12.06 (Anxiety and obsessive-compulsive disorders). 20 C.F.R. 12 pt. 4, subpt. P, app’x 1. 13 3.1 Legal Standard 14 To meet the paragraph B criteria for listings 12.04 and 12.06, a claimant must demonstrate an 15 “[e]xtreme limitation of one, or marked limitation of two, of the following areas of mental 16 functioning: (1) Understand, remember, or apply information; (2) Interact with others; 17 (3) Concentrate, persist, or maintain pace; (4) Adapt or manage oneself.” Id. In order to meet the C 18 criteria for listings 12.04 and 12.06, a claimant must have a “mental disorder . . . [that] is ‘serious 19 and persistent’ . . .” and that there must be “evidence of both (1) Medical treatment, mental health 20 therapy, psychosocial support(s), or a highly structured setting(s) that is ongoing and that 21 diminishes the symptoms and signs of your mental disorder; and (2) Marginal adjustment, that is, 22 you have minimal capacity to adapt to changes in your environment or to demands that are not 23 already part of your daily life.” Id. 24 The claimant bears the burden of proving that an impairment or combination of impairments 25 meets or equals the criteria of a listing. Tackett v. Apfel, 180 F.3d 1094, 1100 (9th Cir. 1999). “An 26 ALJ must evaluate the relevant evidence before concluding that a claimant’s impairments do not 27 meet or equal a listed impairment. Lewis v. Apfel, 236 F.3d 503, 512 (9th Cir. 2001). Generally, a 28 “boilerplate finding is insufficient to support a conclusion that a claimant’s impairment does not ORDER – No. 18-cv-03714-LB 51 1 meet or equal a listing” unless the ALJ’s discussion of the relevant medical evidence adequately 2 supports the conclusion. Id. at 512–13; see also, e.g., Marcia v. Sullivan, 900 F.2d 172, 176 (9th 3 Cir. 1990) (noting that ALJ’s unexplained finding at step three was a reversible error). 4 3.2 5 Here, the ALJ concluded that the plaintiff’s impairments did not meet the paragraph B criteria 6 for either listing because her mental impairments did not cause at least two “marked” limitations 7 or one “extreme” limitation.396 He found: In understanding, remembering, or applying information, the claimant has mild limitations. With regard to concentrating, persisting, or maintaining pace, the claimant has mild limitations. There is evidence [that] the claimant was a good historian at a psychological exam. The claimant was able to recall 3/3 words and correctly complete serial sevens. The claimant reported being independent in her activities of daily living, but with some restrictions due to physical health problems. The claimant said she is able to manage finances, read and listen to music. There is no evidence of more severe limits in these areas. 8 9 10 11 United States District Court Northern District of California Application 12 16 In interacting with others, the claimant has moderate limitations. As for adapting or managing oneself, the claimant has experienced moderate limitations. The claimant reported that she is often fatigued and irritable. The claimant appeared cooperative, but was tangential and difficult to redirect during a mental status exam. At times, she presented as grandiose. Her depression/anxiety symptoms were evident upon her mental health exam. There is insufficient evidence of marked limits in these areas.397 17 In addition, the ALJ determined the plaintiff did not meet the C criteria for either listing 13 14 15 18 because there was insufficient evidence to establish the presence of a medically documented history of these disorders over a period of at least 2 years, and evidence of both: 19 20 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 the mental disorder [ ]; and 21 22 2. Marginal adjustment, that is, minimal capacity to adapt to changes in the claimant’s environment or to demands that are not already part of the claimant’s daily life [ ].398 23 24 25 26 27 28 396 397 398 AR 22. Id. Id. ORDER – No. 18-cv-03714-LB 52 While the ALJ provided evidence that he relied on for his paragraph B determination, he did 1 2 not provide more than conclusory remarks concerning the paragraph C criteria. Without more 3 information, the court cannot find there was sufficient evidence underlying the ALJ’s 4 determination that the plaintiff’s impairments did or did not meet the paragraph C criteria for 5 listing 12.04 and/or 12.06. Additionally, the court found above that the ALJ did not adequately 6 provide reasons for discounting medical and non-medical testimony. Therefore, the court remands 7 for reconsideration of this issue. 8 9 4. Whether the ALJ Erred by Assessing the Plaintiff’s Residual Function Capacity The ALJ found that the plaintiff had an RFC that allowed her to: 10 [P]erform light work… except lift and carry 20 pounds occasionally and 10 pounds frequently; sit, stand or walk for 6 hours each out of an 8-hour workday; can push/pull as much as can lift/carry; handle items frequently with the left hand; finger frequently with the left hand; never climb ladders, ropes, or scaffolds; avoid concentrated exposure to hazards including heavy machinery, caustic chemicals and open heat sources; understand, remember and carryout simple, routine tasks; judgment limited to simple work-related decisions; respond appropriately to coworkers occasionally; respond appropriately to public only a brief, casual basis, but no more than 10% of the time.399 United States District Court Northern District of California 11 12 13 14 15 16 As discussed above, the ALJ did not provide adequate reasons for discounting certain medical 17 18 19 20 testimony. Because the court remands for a reweighing of medical-opinion evidence, and the RFC assessment is built on the ALJ’s assessment at the prior steps in the sequential-evaluation process, the court remands here too. CONCLUSION 21 The court grants the plaintiff’s motion for summary judgment, denies the Commissioner’s 22 23 cross-motion, and remands the case for further proceedings consistent with this order. IT IS SO ORDERED. 24 Dated: July 12, 2019 25 26 ______________________________________ LAUREL BEELER United States Magistrate Judge 27 28 399 AR 23. ORDER – No. 18-cv-03714-LB 53
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