Wilkerson v. Colvin, No. 3:2016cv02757 - Document 26 (N.D. Cal. 2017)
Court Description: ORDER granting 23 Motion for Summary Judgment; denying 24 Motion for Summary Judgment.The court grants Mr. Wilkerson's summary-judgment motion, denies the Commissioner's cross-motion, and remands this case for further proceedings consistent with this order. (Beeler, Laurel) (Filed on 9/29/2017)
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Wilkerson v. Colvin 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 12 Case No. 16-cv-02757-LB KENNETH LOUIS WILKERSON, Plaintiff, 13 ORDER GRANTING PLAINTIFF’S SUMMARY-JUDGMENT MOTION AND DENYING DEFENDANT’S CROSS-MOTION v. 14 15 NANCY A. BERRYHILL, Defendant. 16 Re: ECF Nos. 23 & 24 17 18 INTRODUCTION 19 Plaintiff Kenneth Wilkerson seeks judicial review of a final decision by the Commissioner of 20 the Social Security Administration denying his claim for disability benefits under Title II and Title 21 XVI of the Social Security Act.1 He moved for summary judgment;2 the Commissioner opposed 22 the motion and filed a cross-motion.3 Under Civil Local Rule 16-5, the matter is deemed submitted 23 for decision by this court without oral argument. All parties consented to magistrate-judge 24 25 26 Compl. ECF No. 1 at 1 (¶ 4). Record citations refer to material in the Electronic Case File (“ECF”); pinpoint citations are to the ECF-generated page numbers at the top of documents. 1 27 2 Summary-Judgment Motion – ECF No. 23. 28 3 Cross-Motion – ECF No. 24. ORDER – No. 16-cv-02757-LB Dockets.Justia.com 1 jurisdiction.4 The court grants the plaintiff’s motion, denies the Commissioner’s cross-motion, and 2 remands for further proceedings. STATEMENT 3 4 1. Procedural History On November 10, 2011, Mr. Wilkerson, then age 47, filed claims for social-security disability 5 6 insurance (“SSDI”) benefits under Title II of the Social Security Act and supplemental security 7 income (“SSI”) benefits under Title XVI, alleging schizophrenia, glaucoma, back pain, and 8 hypertension.5 He alleges an onset date of August 12, 2010.6 The Commissioner denied his SSDI 9 and SSI claims initially and upon reconsideration.7 On January 25, 2013, Mr. Wilkerson timely 10 requested a hearing.8 On June 6, 2013, Administrative Law Judge Mary Parnow (the “ALJ”) held a hearing, and Mr. United States District Court Northern District of California 11 12 Wilkerson asked to continue it to allow his counsel to appear.9 Attorney Karen Woodley then 13 represented Mr. Wilkerson,10 and the ALJ rescheduled the hearing for October 3, 2013.11 The ALJ 14 heard testimony from Mr. Wilkerson and vocational expert Malcolm Brodzinsky,12 who 15 subsequently submitted a vocational interrogatory.13 The ALJ issued an unfavorable decision on 16 April 22, 2014.14 The Appeals Council denied Mr. Wilkerson’s request for review.15 Mr. 17 18 4 Consent Forms ECF Nos. 9, 10. 5 Administrative Record (“AR”) 61, 80. 20 6 Id. 21 7 19 22 AR 78, 120 (determinations on SSI claim); AR 97, 141 (determinations on SSDI claim); see also AR 145–49 (initial denial letter); AR 150–51 (request for reconsideration); AR 152–56 (second denial letter). 8 AR 157–58. 9 AR 53–60; see also AR 190 (request for continuance). 23 24 10 AR 194–97. 25 11 AR 198–210. 12 AR 34–52. 13 AR 391–95. 27 14 AR 13–33. 28 15 AR 5–7. 26 ORDER – No. 16-cv-02757-LB 2 1 Wilkerson timely filed this action on May 20, 201616 and moved for summary judgment.17 The 2 Commissioner opposed the motion and filed a cross-motion for summary judgment.18 Mr. 3 Wilkerson filed a response.19 4 5 2. Summary of Record and Administrative Findings 2.1 Medical Records 6 2.1.1 7 From August 2008 until July 2010, Dr. Salumaa — who was Mr. Wilkerson’s primary-care 8 9 Dr. Gunnar Salumaa: Primary-Care Physician – Treating physician — treated him (with the assistance of other Kaiser Permanente staff) for high blood pressure, high cholesterol, asthma, and occasional lower back pain.20 Dr. Salumaa prescribed an 11 United States District Court Northern District of California 10 inhaler for his asthma,21 a statin for his high cholesterol,22 and ibuprofen and methocarbamol (a 12 muscle relaxant) for his lower back pain.23 He recommended consistently that Mr. Wilkerson 13 improve his diet and quit smoking to reduce his blood pressure.24 In November 2009, Dr. Salumaa 14 diagnosed him with glaucoma and prescribed eye drops.25 15 2.1.2 16 Dr. Stephen Tanaka: Ophthalmologist – Treating On May 5, 2010, Mr. Wilkerson saw Dr. Tanaka (an ophthalmologist) because he had blurred 17 18 vision and headaches when he stopped taking his glaucoma medicine five months earlier (due to 19 its expense).26 Dr. Tanaka noted that Mr. Wilkerson had elevated intraocular pressure.27 Dr. 20 16 22 23 24 25 26 Compl. – ECF No. 1; AR 1–2 (granting extension of time to file civil action). 17 Summary-Judgment Motion – ECF No. 23. 18 Cross-Motion ECF No. 24. 19 Reply ECF No. 25. 20 21 AR 401–33, 436–52, 456–57, 463–74, 498–503, 506–07. 21 419, 430, 438. 22 419, 430, 438. 23 AR 405, 419, 430, 438. 24 27 AR 405, 437–38, 447–51. 25 AR 438. 28 26 AR 453–55, 458–61 (visual-field study results). ORDER – No. 16-cv-02757-LB 3 1 Tanaka refilled his glaucoma medicine and stressed the importance of taking it and keeping his 2 intraocular pressure under control.28 On May 7, 2010, Dr. Tanaka’s office called Mr. Wilkerson to 3 remind him to resume his eye drops and keep his upcoming appointment with Dr. Choe.29 Mr. 4 Wilkerson showed up for his appointment with Dr. Choe, but he left before being seen.30 5 2.1.3 6 On-Call Physicians at Kaiser-Permanente – Treating 7 On November 1, 2009, Mr. Wilkerson called and spoke with an on-call physician.31 Mr. 8 Wilkerson reported dizziness and numbness on the left side of his face, but no paresthesia of the 9 lips and hands, gait problems, visual changes, shortness of breath, palpitations, or chest pain.32 The physician recommended that he call or return to the clinic if his symptoms did not improve.33 11 United States District Court Northern District of California 10 On June 7 and 15, 2010, Mr. Wilkerson went to the emergency room for treatment of back 12 pain brought on by playing with his children. The treating physicians prescribed rest, ice, 13 ibuprofen, and Percocet.34 14 2.1.4 Alameda County Medical Center Physicians – Treating 15 16 From 2010 to 2013, Mr. Wilkerson saw different medical providers at Alameda County 17 Medical Center, primarily in the emergency department at the Highland Hospital location.35 In November 2010, an emergency physician refilled Mr. Wilkerson’s prescription for high- 18 19 cholesterol medicine and referred him to the ophthalmology department for his glaucoma.36 The 20 21 27 AR 454. 22 28 Id. 29 AR 462. 30 AR 504. 24 31 AR 434–35. 25 32 AR 434. 33 AR 435. 34 AR 475–97. 27 35 AR 530–558, 573–97, 604–98, 714–20. 28 36 AR 546–49; see also AR 660–61. 23 26 ORDER – No. 16-cv-02757-LB 4 1 chart notes state that Mr. Wilkerson “lost kaiser insurance,” had “a few days left of meds,” and 2 “ran out of chol[esterol] meds months ago.”37 In February 2011, an ophthalmologist examined Mr. Wilkerson twice.38 Mr. Wilkerson went 3 4 to the emergency room on February 24, 2011, and reported neck, back, head, and leg pain 5 following a car accident that day.39 After examination, the doctor discharged him with Vicodin, 6 ibuprofen, baclofen, and instructions to follow up with his doctor as needed.40 On April 25, 2011, Mr. Wilkerson drove himself to the emergency room because he 7 8 experienced chest pain after drinking alcohol and smoking marijuana that he suspected was laced 9 with cocaine.41 Mr. Wilkerson “eloped” before he could be discharged.42 On December 27, 2011, Mr. Wilkerson was treated for back-pain complaints.43 He noted a 11 United States District Court Northern District of California 10 history of back pain since February but indicated that it had been “improving with ibuprofen and 12 muscle relaxants” until he bent over the night before.44 Mr. Wilkerson reported that the pain 13 radiated down both of his thighs.45 He recounted his history of glaucoma, but he denied any vision 14 changes and said he did not need to refill his medicine.46 He said he “[w]ould like a work note” 15 (even though he claimed in his disability applications and later in testimony before the ALJ that he 16 had not worked since August 2010).47 The doctor prescribed ibuprofen and Flexeril and refilled 17 his cholesterol and blood-pressure medicine.48 18 37 AR 546. 38 AR 557–58. 20 39 AR 544; see also AR 665–70. 21 40 AR 544–45. 41 AR 672. 42 AR 673. 23 43 AR 537 24 44 Id. 45 Id. 46 Id. 19 22 25 26 27 28 47 Id.; AR 18 (ALJ noted that in his testimony at the October 2013 hearing and in his other filings, Mr. Wilkerson claimed that he had not been engaged in any substantial gainful activity since August 2010.) 48 AR 538. ORDER – No. 16-cv-02757-LB 5 On January 17, 2012, Dr. Yasumoto recorded the following impression of Mr. Wilkerson’s 1 2 lumbar spine based on an x-ray: 4 1. Diffuse degenerative changes seen throughout the thoracolumbar spine with anterior wedge deformity involving T12, which is likely remote. No acute appearing fractures or malalignment are seen. 5 2. Bilateral hip joint degenerative changes.49 3 There are additional progress notes dating from January through May 2012.50 In January, Mr. 6 7 Wilkerson presented with lower-back and buttock pain, indicating that he had been experiencing it 8 for 10 to 12 years and that it had returned in the past week as the result of his lifting a water 9 bucket.51 In May, Mr. Wilkerson presented with hip and chronic lower-back pain, noting its onset 10 “5 days” earlier and indicating that it had been “off and on.”52 Mr. Wilkerson went back to the ophthalmology department in 2012 and saw Dr. Chang,53 United States District Court Northern District of California 11 12 who concluded that Mr. Wilkerson had severe visual acuity loss in his left eye.54 On May 2, 2012, Mr. Wilkerson had a physical for “DMV form completion.”55 The chart 13 14 notes, written by a medical assistant, reflect he “used to be a commercial driver” but was currently 15 unemployed.56 The notes mention “vision 20/20” without additional elaboration.57 16 On May 15, 2012, Mr. Wilkerson saw an orthopedist, Dr. Patrick McGahan, and reported a 17 “long history of back pain and bilateral hip pain.”58 Dr. McGahan observed Mr. Wilkerson had 18 “mild tenderness to palpation” and could “flex and extend his back with minimum discomfort,” 19 but could not do straight leg raises without “pain in his lower back.”59 He had “5/5 strength from 20 49 AR 551, 586–87. 50 AR 580–82, 596. 22 51 AR 582. 23 52 AR 596. 53 AR 595, 597. 54 AR 597. 25 55 AR 578. 26 56 Id. 57 Id. 58 AR 654. 59 Id. 21 24 27 28 ORDER – No. 16-cv-02757-LB 6 1 L2-S1.”60 Mr. Wilkerson experienced “mild pain with flexion and internal rotation on the lateral 2 aspect of his hips.”61 Based on his exam and x-rays, Dr. McGahan diagnosed Mr. Wilkerson with 3 “bilateral mild hip osteoarthritis and lumbar degenerative di [sic] disease.”62 He recommended 4 Motrin and physical therapy.63 In August 2012, following his HIV diagnosis, Mr. Wilkerson met with a social worker, who 5 observed that he was “engaged, normally dressed, alert and oriented times 4, with normal speech, 7 sad affect and depressed mood.”64 The social worker administered a PHQ-9 questionnaire, and Mr. 8 Wilkerson “score[d] as mildly depressed.”65 Mr. Wilkerson reported “a history of crack use and 9 denied past psychiatric/mental health issues.”66 Mr. Wilkerson told the social worker that he lived 10 at Redemption and Recovery — a “transitional drug program” — but had to find his own housing 11 United States District Court Northern District of California 6 in two months.67 The social worker noted that Mr. Wilkerson “last worked as a Cal Trans heavy 12 equipment operator and was laid off in 2010.”68 The social worker provided an Axis I diagnosis of 13 major depression (recurrent-mild), deferred an Axis II diagnosis, gave an Axis III diagnosis of 14 HIV, and provided an Axis IV diagnosis of “[l]ack of financial resources, lack of housing, 15 unemployment.”69 16 Mr. Wilkerson saw a doctor to discuss his HIV diagnosis and schedule follow-up lab work in 17 October and December 2012.70 He described his interest in sports.71 She remarked that his “HIV 18 19 60 Id. 61 Id. 21 62 Id. 22 63 Id. 64 AR 609. 65 Id. 24 66 Id. 25 67 Id. 68 Id. 69 Id. 27 70 AR 611–13; see also AR 717–20 (labs). 28 71 AR 611, 613. 20 23 26 ORDER – No. 16-cv-02757-LB 7 1 [was] stable.”72 In November 2012, Mr. Wilkerson saw an orthopedist, Dr. Distefano, “for evaluation of lateral 2 3 hip pain in both hips.”73 Dr. Distefano diagnosed Mr. Wilkerson with lumbar degenerative disc 4 disease, mild hip arthritis, and iliotibial-band pain.74 Dr. Distefano observed that Mr. Wilkerson 5 had an “antalgic gait,” or limp, and could not squat due to hip pain.75 He could toe walk, heel 6 walk, and stand on each leg.76 Dr. Distefano noted that Mr. Wilkerson’s physical therapy “has 7 been helping” with his low back and recommended that he continue it (with physical therapy) “to 8 work on core hip and knee strengthening.”77 He prescribed Voltaren.78 Dr. Distefano noted that 9 Mr. Wilkerson had a history of substance abuse but had been “clean for over a year.”79 In 2012 and early 2013, Mr. Wilkerson continued to be monitored for his glaucoma.80 11 United States District Court Northern District of California 10 On April 23, 2013, Mr. Wilkerson went to the emergency room at Highland Hospital after a 12 car struck him while he was riding his bike (without a helmet).81 A CT scan showed no traumatic 13 injury but mild degenerative changes in the lumbar spine and thoracolumbar junction.82 He had no 14 traumatic injuries or complications, and the hospital discharged him the following day with “20 15 tabs of Vicodin, Motrin, and Tylenol.”83 The chart notes reflect Mr. Wilkerson’s history of drug 16 use and that he “ha[d] been clean for the last 18 months.”84 He went back to the emergency room 17 18 72 AR 613. 73 AR 622. 74 Id. 21 75 Id. 22 76 Id. 77 Id. 78 Id.; see also AR 624 (physical therapy referral). 24 79 AR 622. 25 80 AR 623, 625. 81 AR 650–53, 656–58, 686–98. 82 AR 697. 27 83 AR 651–52. 28 84 AR 652. 19 20 23 26 ORDER – No. 16-cv-02757-LB 8 1 on May 10, 2013, for a refill of his pain medication.85 He reported neck and back pain radiating 2 down both of his legs.86 The doctor remarked that he had “good range of motion,” “no deformity” 3 in his extremities, and a normal gait with use of his cane but “tenderness to palpation in the 4 muscles of the bilateral thighs of the iliotibial band.”87 The doctor refilled Mr. Wilkerson’s pain 5 medication and recommended that he schedule an appointment with his primary-care doctor and 6 chiropractor.88 7 On October 26, 2013, Mr. Wilkerson went to the emergency room because he smashed his 8 thumb while “moving this afternoon.”89 His thumb was “well dressed,” and nursing staff provided 9 emotional support.90 10 2.1.5 The Dancy Chiropractic Group – Treating United States District Court Northern District of California 11 12 After his bike accident, from late April to late May 2013, Mr. Wilkerson went for physical 13 therapy at the Dancy Chiropractic Group (apparently at the suggestion of his lawyer).91 Although 14 he could not pay for all of his therapy, they agreed to treat him until his pain was mild to slight.92 In his May 1, 2013 treatment notes, “[Mr. Wilkerson] reports that his position requires 15 16 physical work/ a lot of bending, lifting, stooping and sitting.”93 He “reports of an increase in low 17 back pain at the end of the day.”94 The May 3rd treatment notes reflect that Mr. Wilkerson again 18 reported “an increase in lumbar pain associated with prolonged standing and heavy lifting,” he had 19 “been placed on a light duty assignment while at work, and he was preluded “from lifting anything 20 21 85 AR 650. 22 86 Id. 87 Id. 88 Id. 24 89 AR 715–16. 25 90 Id. 91 AR 700–13. 92 AR 713. 27 93 AR 705. 28 94 Id. 23 26 ORDER – No. 16-cv-02757-LB 9 over 25 pounds without assistance.”95 The May 8th treatment notes state that he reported “an 2 increase in lumbar pain at the end of the day [because] his position requires excessive bending, 3 stooping and standing.”96 He denied “taking over the counter pain medication.”97 The May 13th 4 treatment notes say that Mr. Wilkerson reports that he was “performing activities which would 5 aggravate his condition” but that “prolong[ed] sitting, standing, stooping and bending are required 6 of his position.”98 The May 17th treatment notes state that “Mr. Wilkerson is frustrated with 7 aggravating his condition with the activities he is required to perform while at work. He reports 8 that bending and lifting are part of the position’s requirements. Mr. Wilkerson reports that he can’t 9 afford to take any time off from work. Yet, he reports that he is careful when he is required to 10 perform any activity which would aggravate his condition.”99 After several further treatment 11 United States District Court Northern District of California 1 sessions, Mr. Wilkerson reported “an overall improvement in his thoracic spine” and “denie[d] 12 any radiating sensations from his lumbar spine to his lower extremities.”100 His final evaluation 13 report on May 29, 2013 noted that he had “no motor or sensory deficit,” could walk “with a 14 normal gait and [ ] without the assistance of any walking device,” could get on and off the table 15 without help, and had normal muscle strength.101 The report concludes that his “prognosis is 16 good.”102 17 2.1.6 Dr. John Conger: Psychologist – Examining 18 In June 2011, Dr. Conger completed a one-page “Doctor’s Certificate” for Mr. Wilkerson’s 19 20 California disability-claim application.103 Dr. Conger identified the primary “ICD9 disease code” 21 95 AR 704. 96 Id. 97 Id. 24 98 AR 703. 25 99 AR 702. 22 23 100 Id. 101 AR 712–13. 27 102 AR 713. 28 103 AR 528. 26 ORDER – No. 16-cv-02757-LB 10 1 as 295.30 (paranoid schizophrenia) and remarked that “the patient hears voices, feels invaded, 2 wants to be alone, has paranoid ideation, [and] awkward and restless movements.”104 Dr. Conger 3 wrote, “I find the client very disturbed [and] uncomfortable.”105 Under “type of 4 treatment/medication rendered to patient,” Dr. Conger wrote “medication needed.”106 Dr. Conger 5 indicated that Mr. Wilkerson had been unable to perform his regular job since June 13, 2011, and 6 noted “[illegible] 2 years ago.”107 7 2.1.7 8 Dr. Eugene McMillan: Physician – Examining In February 2012, Dr. McMillan, at the request of the State agency, evaluated Mr. 9 Wilkerson.108 He reviewed Mr. Wilkerson’s medical history, conducted a physical examination, 11 United States District Court Northern District of California 10 and reported the following impressions: glaucoma, severe left-eye visual impairment, arthritis, and 12 low back pain with evidence of degenerative disease of the lumbar and thoracic spine.109 13 Dr. McMillan noted that Mr. Wilkerson reported that he had been told that he was “paranoid” 14 and “state[d] that he hears voices.”110 Mr. Wilkerson stated that he “stopped all of his medications 15 a couple of years ago.”111 Dr. McMillan noted that “[t]hroughout the exam[,] [Mr. Wilkerson] was 16 constantly looking out the door and checking to see if someone was attempting to enter the 17 room.”112 Dr. McMillan reported that he “did not feel comfortable shutting the examination room 18 door during the claimant’s exam.”113 He provided the following functional capacity assessment: 19 The claimant has history of a psychiatric disorder, which is not currently being treated. Standing and walking would be for six hours per day. Sitting would be for 20 21 104 Id. 22 105 Id. 106 Id. 107 Id. 24 108 AR 568–71. 25 109 AR 571. 110 AR 569. 111 Id. 27 112 AR 570. 28 113 Id. 23 26 ORDER – No. 16-cv-02757-LB 11 six hours per day. He is not currently using an assistive device. He would be able to occasionally lift and carry 20 pounds and frequently lift and carry 10 pounds. He does have significant visual problems with his left eye, but his visual acuity is corrected with glasses in the right eye. There would be no manipulative limitations. There would be no environmental limitations. He would be able to engage in activities that require bending, stooping and kneeling for at least four hours in an eight-hour workday.114 1 2 3 4 5 2.1.8 6 Dr. Cecilia Hardey: Psychologist – Examining In February 2012, Dr. Hardey, at the request of the State agency, evaluated Mr. Wilkerson.115 7 8 She administered a comprehensive psychological evaluation, including Wechsler Adult 9 Intelligence and Memory tests and the Bender Visual-Motor Gestalt test.116 Dr. Hardey concluded Mr. Wilkerson had cognitive abilities and memory in the low average to average range and 11 United States District Court Northern District of California 10 suffered no visual-motor integration impairments. She remarked, however, that she could not 12 complete the Wechsler testing and reached her conclusion without data on processing speed 13 because Mr. Wilkerson could not see the stimulus material clearly enough.117 Dr. Hardey observed that Mr. Wilkerson had normal speech and consciousness and was 14 15 oriented and cooperative.118 Mr. Wilkerson took public transportation, arrived early for his 16 appointment, dressed casually, and had good hygiene.119 He lost his glasses and could not afford 17 to replace them.120 He preferred being outdoors and enjoys riding his bike.121 She described him as 18 a “worried, hyper-vigilant individual who was looking around constantly, startling, looking at the 19 door, and appeared to be worried that someone would come in.”122 She remarked that there “did 20 not appear to be evidence of psychosis,” but Mr. Wilkerson’s “[m]ood was anxious and 21 114 Id. 115 AR 562–65. 116 AR 562. 24 117 AR 563. 25 118 AR 562. 119 Id. 120 Id. 27 121 Id. 28 122 Id. 22 23 26 ORDER – No. 16-cv-02757-LB 12 1 depressed.”123 She stated Mr. Wilkerson was a “poor historian” who had “a great deal of difficulty 2 remembering any of his history.”124 Mr. Wilkerson “denied any felony or misdemeanor convictions,” but reported that he 3 4 previously used marijuana and had been addicted to cocaine and stopped using all substances four 5 months earlier, when he began residing at a church-sponsored sober living facility called 6 Redemption and Recovery.125 He “had to quit working in 2010 because he was hearing voices” 7 but he had “never been prescribed [any] psychotropic medication to relieve this symptom.”126 He 8 recounted that he had glaucoma, blindness in his left eye, back pain, and hypertension.127 Dr. Hardey gave an Axis I diagnosis: (1) “Rule out psychotic disorder probably secondary to 10 poly-substance abuse”; (2) “Alcohol, cocaine, and cannabis dependency, in remission, status post 11 United States District Court Northern District of California 9 4 months per applicant — no corroborating medical records”; and (3) “Mood disorder, secondary 12 to substance abuse.”128 She did not give an Axis II diagnosis but gave an Axis III diagnosis of 13 hypertension, glaucoma, and back pain.129 14 Dr. Hardey ultimately concluded: This individual gave the impression of someone who has a psychotic process going on. He is hyper-vigilant. He appeared to be attending to internal stimuli at times during the assessment. He has at least low-average cognitive abilities. There was no evidence of memory or visual-motor integration deficits. He has been in a residential church-sponsored drug and alcohol recovery program for the last four months and alleges sobriety from that date. He has never been prescribed antipsychotic medication though a psychologist who saw him recently recommended it. This examiner also believes that this would probably be an appropriate referral. He probably cannot work at this point. At minimum, he needs a psychiatric consultation to determine the nature of his symptoms and, possibly prescribe appropriate medication.130 15 16 17 18 19 20 21 22 123 Id. 124 Id. 24 125 AR 562–63. 25 126 AR 563. 127 Id. 128 AR 564. 27 129 Id. 28 130 Id. 23 26 ORDER – No. 16-cv-02757-LB 13 Dr. Hardey opined that Mr. Wilkerson did not have the ability to manage his financial interests 1 2 in his own best interests due to his substance-abuse history and his psychotic symptoms.131 She 3 found that he had the following work-function impairments: moderate to severe impairments of 4 his abilities to (1) adapt to changes in job routine, (2) withstand the stress of a routine workday, 5 (3) maintain emotional stability and predictability, and (4) interact appropriately with coworkers, 6 supervisors, and the public on a regular basis.132 He had moderate impairments of his abilities to 7 (1) follow and remember complex and detailed instructions, (2) maintain adequate pace or 8 persistence to perform complex tasks, (3) maintain adequate attention and concentration, and 9 (4) communicate with others both verbally and in writing.133 He had mild to moderate impairments of his abilities to follow and remember simple instructions and maintain adequate 11 United States District Court Northern District of California 10 pace or persistence to perform simple repetitive tasks.134 12 2.1.9 13 Dr. Sokley Khoi: Psychologist – Examining 14 In November 2012, Dr. Khoi, at the request of the State agency, evaluated Mr. Wilkerson.135 15 She administered Wechsler Adult Intelligence and Memory tests and a Trail Making Test.136 She 16 generally found Mr. Wilkerson’s cognitive abilities were in the extremely low range but stated that 17 the “test results are likely to underestimate his cognitive functioning” because he “discontinued 18 tasks prematurely stating it was exacerbating his pain, that he could not see well, or it was ‘too 19 frustrating’ for him.”137 She remarked that his performance “was significantly affected by his 20 psychiatric symptoms.”138 Dr. Khoi observed that Mr. Wilkerson “was cooperative, but appeared hyper vigilant and 21 22 131 AR 564. 132 AR 564–65. 24 133 Id. 25 134 AR 564. 135 AR 600–603. 136 AR 600. 27 137 AR 601–03. 28 138 AR 603. 23 26 ORDER – No. 16-cv-02757-LB 14 1 paranoid.”139 Mr. Wilkerson was restless and fidgety, looking around the examination room; “[h]e 2 kept telling the examiner ‘I’m not crazy. I have no mental health problems. I just have pain.’”140 3 Mr. Wilkerson also “denied [any] auditory or visual hallucinations but appeared internally 4 preoccupied.”141 Dr. Khoi remarked that his “[a]ffect and mood were anxious and depressed,” but 5 that he had a linear and coherent thought process with “no indication of delusional ideation.”142 6 Mr. Wilkerson reported his glaucoma caused blindness in one eye and that he suffered from 7 pain in his back and hips, hypertension, high cholesterol, and HIV.143 Mr. Wilkerson “reported 8 symptoms of insomnia, decreased appetite, anhedonia, and low energy.”144 He said, “I’m sad a lot 9 and a lot of time I don’t feel good. I don’t feel like doing anything. I just stay in bed. I don’t like 10 being around people.”145 Mr. Wilkerson reported not having any “legal history” but “reported a history of significant United States District Court Northern District of California 11 12 substance abuse including alcohol, cocaine, and cannabis ‘for a long time.’”146 “He stated that he 13 stopped using drugs ‘maybe a year ago.’”147 He had been living at the church-sponsored 14 Redemption and Recovery since November 2011.148 Mr. Wilkerson reported that “he is able to 15 perform all activities of daily living with restrictions due to psychiatric symptoms” including 16 managing his finances.149 Dr. Khoi gave an Axis I diagnosis: “depressive disorder NOS, probable psychotic disorder 17 18 NOS, and polysubstance abuse/dependence, in remission for approximately one year per 19 20 139 AR 601. 21 140 Id. 22 141 Id. 142 Id. 143 AR 600–01. 24 144 AR 600. 25 145 Id. 146 AR 601. 147 Id. 27 148 AR 600. 28 149 AR 601. 23 26 ORDER – No. 16-cv-02757-LB 15 1 claimant.”150 She deferred any Axis II or Axis III diagnoses.151 Dr. Khoi’s findings “suggest 2 depression and possible psychosis,” and she remarked that Mr. Wilkerson “may benefit from 3 psychotropic medications and individual psychotherapy.”152 4 Dr. Khoi indicated that Mr. Wilkerson had marked limitations of his abilities to maintain 5 adequate pace or persistence to perform complex tasks and withstand the stress of a routine work 6 day.153 Mr. Wilkerson had moderate to marked limitations of his abilities to follow and remember 7 complex or detailed instructions, adapt to changes in job routine, and interact appropriately with 8 coworkers, supervisors, and the public.154 Mr. Wilkerson had mild to moderate limitations of his 9 abilities to follow and remember simple instructions and maintain adequate pace or persistence to 10 perform simple repetitive tasks.155 United States District Court Northern District of California 11 2.1.10 Save a Life Wellness Center 12 From May 2013 through October 2013, Mr. Wilkerson went to Save a Life Wellness Center in 13 14 Oakland for medical treatment and prescription refills.156 At intake on May 20, 2013, Mr. 15 Wilkerson reported hypertension, glaucoma, HIV, and hearing voices.157 He indicated that he had 16 been evaluated by a disability psychologist on two occasions, but had never been hospitalized for 17 psychiatric illness.158 He had a 15-year history of substance abuse that included incarceration for 18 drug-related crimes (from 1997 to 2000 and parole until 2002), but had been clean and sober for 19 19 months.159 He lived in a residential-treatment program, used public transportation, and had not 20 21 150 AR 602. 22 151 Id. 152 Id. 153 AR 603. 24 154 Id. 25 155 Id. 156 AR 628–31, 633–37, 722–28. 157 AR 635. 27 158 Id. 28 159 Id. 23 26 ORDER – No. 16-cv-02757-LB 16 1 worked for several years.160 The provider who completed the intake form diagnosed Mr. 2 Wilkerson with major depressive disorder and recommended antidepressants and therapy on a 3 “PRN” or as needed basis.161 This provider marked that Mr. Wilkerson was oriented, appropriate 4 in affect, cooperative, and not gravely disabled but was depressed, slow in psychomotor pace, and 5 questionably psychotic.162 At his follow-up appointments, Mr. Wilkerson received Celexa and 6 Risperdal for his mental health and medicine for his high blood pressure, high cholesterol, asthma, 7 glaucoma, and back pain.163 8 2.1.11 Sausal Creek Outpatient Stabilization Clinic 9 On May 29, 2013, Mr. Wilkerson went to Sausal Creek Outpatient Stabilization Clinic for 11 United States District Court Northern District of California 10 “medication and a referral.”164 A staff member (whose name is not legible but who appears to be 12 an “LVN” or licensed vocational nurse) completed a crisis-assessment form reflecting that Mr. 13 Wilkerson was depressed, had anxiety and decreased sleep, and was hearing voices (auditory 14 hallucinations) telling him that he was “worthless.”165 Mr. Wilkerson stated that “I am depressed, 15 diagnosed one year ago [with] HIV.”166 He wanted “medication for voices.”167 Mr. Wilkerson said 16 that he was “sick” and “wanted to die,” but had no “plan or intent.”168 He stated that he had been 17 “clean for 19 months,” and the “drug/alcohol screen” was “negative.”169 At the risk-screening 18 stage, a staff member marked that Mr. Wilkerson was not in danger of self-harm, harming others, 19 160 20 21 Id.; but compare AR 702–05 (May 2013 reports (same year and month) from Mr. Wilkerson’s chiropractor noting Mr. Wilkerson’s statements regarding his current work status and its physical requirements). 161 22 P.R.N. is an abbreviation for the Latin term “pro re nata” or “as circumstances require” or “as needed.” 162 AR 636. 163 AR 628–31, 633, 722–28. 24 164 AR 643. 25 165 Id. 166 Id. 167 Id. 27 168 Id. 28 169 AR 643–44. 23 26 ORDER – No. 16-cv-02757-LB 17 1 serious self-neglect, victimization, or alcohol and drug abuse.170 The staff member evaluated Mr. 2 Wilkerson’s mental status and indicated that he was alert, oriented, distracted, poorly to fairly 3 groomed, and had slow speech, anxious mood, flat affect, marginal insight, marginal judgment, an 4 internally preoccupied thought process, paranoia, and hallucinations.171 A staff member identified 5 as an “LVN” (or licensed vocational nurse) assessed Mr. Wilkerson with a GAF score of 45 and a 6 primary diagnosis code of “311,” which is the diagnostic code for depressive disorder.172 7 Later that morning, he presented to the psychiatrist with self-reported auditory hallucinations, 8 depression, anxiety, sleep issues, and feelings of being “very isolated.”173 He reported a history of 9 substance abuse and said that he “last used 19 months ago.”174 The psychiatrist, who had no prior relationship with Mr. Wilkerson, conducted a 15-minute mental status evaluation and circled 11 United States District Court Northern District of California 10 various “Mental Status” descriptors, finding that Mr. Wilkerson was sedated, oriented to person, 12 place, and time, avoidant, and poorly groomed and had slow speech, depressed mood, constricted 13 affect, poor insight, logical thought processes, and hallucinations.175 The psychiatrist primarily 14 diagnosed him with depressive disorder NOS (not otherwise specified) and prescribed Celexa and 15 Risperdal.176 The psychiatrist noted that it was “the client’s first contact with a psychiatrist” and 16 “first psychotic break.”177 The psychiatrist assigned Mr. Wilkerson an Axis V/GAF rating of 45 17 and did not provide any discussion of the reasons for that medical opinion.178 The facility discharged him shortly thereafter with prescriptions for Celexa and Risperdal and 18 19 20 170 AR 645. 21 171 AR 646. 22 172 23 Id. A GAF score purports to rate a subject’s mental state and symptoms; the higher the rating, the better the subject’s coping and functioning skills. See Garrison v. Colvin, 759 F.3d 995, 1002 n.4 (9th Cir. 2014) (“[A] GAF score between 41 and 50 describes ‘serious symptoms’ or ‘any serious impairment in social, occupational, or school functioning.’”). 24 173 AR 640. 25 174 AR 641. 175 AR 642. 176 Id. 27 177 Id. 28 178 Id. 26 ORDER – No. 16-cv-02757-LB 18 1 instructions to follow up in seven days for more medication and to “ASAP” schedule “a regular 2 psychiatrist appointment” through Alameda County Medi-Cal’s Access program.179 Other than his 3 ongoing follow-ups regarding the medications (Celexa and Risperdal) for his mental symptoms, it 4 does not appear that Mr. Wilkerson thereafter sought or received any “regular” psychiatric 5 treatment or therapy. 6 2.1.12 Dr. Lace: Psychologist – Consulting 7 In December 2013, after his October ALJ hearing, Dr. Lace completed a medical interrogatory 8 for the ALJ based on a review of Mr. Wilkerson’s medical records.180 Dr. Lace concluded Mr. 10 Wilkerson had an unspecified depressive disorder, major depressive disorder (recurrent-mild), 11 United States District Court Northern District of California 9 mood disorder secondary to substance abuse, and “poly-substance abuse/dependence in alleged 12 remission.”181 Dr. Lace concluded these impairments did not meet the applicable listings or 13 paragraph B and C criteria, and so he found Mr. Wilkerson had the following RFC: Setting with routine, simple, repetitive tasks with less than average emphasis on production quotas and speeded tasks. Limited to brief and superficial contact [with] supervisors, co-workers, and the general public. No contact with alcohol (or other illicit drugs) in job setting.”182 14 15 16 His notes state that Mr. Wilkerson had “no history of psychiatric hospitalizations,” “very few 17 18 GAF scores” (though he noted the GAF score of 45 from the Sausal Creek Outpatient Stabilization 19 Clinic), “little in terms of treatment,” “therapy [ ] recommended only PRN [as needed],” and 20 “polysubstance abuse/dependency remission not supported by ongoing [urinalysis].”183 Dr. Lace 21 stated that Mr. Wilkerson’s “stopping all medications 2 years ago [ ] may have led to paranoia and 22 ‘hearing voices.’”184 23 179 AR 639 (also filed as AR 626, 632). 180 AR 378–82 (also filed as AR 741–45). 25 181 AR 378. 26 182 AR 382. 183 AR 379. 24 27 184 28 Id.; see also AR 569 (Dr. McMillan noting that Mr. Wilkerson “stopped all of his medications a couple of years ago.”) ORDER – No. 16-cv-02757-LB 19 Dr. Lace completed a check-off report.185 He found that Mr. Wilkerson had marked limitations 1 2 of his ability to understand, remember, and carry out complex instructions.186 Mr. Wilkerson had 3 moderate limitations of his (1) ability to carry out simple instructions, (2) make judgments on both 4 simple and complex work-related decisions, (3) interact appropriately with coworkers, 5 supervisors, and the general public, and (4) respond appropriately to usual work situations and 6 changes.187 Dr. Lace opined that Mr. Wilkerson had mild limitations of his ability to understand 7 and remember simple instructions.188 Dr. Lace noted that Mr. Wilkerson would have “challenges 8 with complex tasks and stress management associated with the above [impairments].”189 9 2.2 Mr. Wilkerson’s Testimony 11 United States District Court Northern District of California 10 At the ALJ hearing, Mr. Wilkerson testified that he completed junior college in 1982.190 He 12 previously worked for Flow Serve in a “dangerous” and “labor intensive job” as a technician who 13 “stopped high pressure leaks in oil refineries.”191 He worked as a semi-truck driver but can no 14 longer have a Class A license because of the blindness in his left eye.192 Mr. Wilkerson testified 15 that his last job was from 2006 to 2010, when he worked for the California Department of 16 Transportation as a heavy-equipment operator tasked with using backhoes, tractors, trailers, and 17 excavating equipment.193 When he was arrested and jailed for public intoxication, he missed 18 worked and was fired for being “AWOL.”194 He stopped work because he “started hearing voices and started being very depressed.”195 He 19 20 185 22 23 24 25 26 AR 383–85 (also filed as AR 746–48). 186 AR 383. 187 AR 383–84. 188 AR 383. 189 21 Id. 190 AR 40. 191 AR 39. 192 Id. 193 27 AR 38–39. 194 AR 40–41. 28 195 AR 40. ORDER – No. 16-cv-02757-LB 20 1 hears voices telling him “terrible things or things that are not good.”196 The voices tell Mr. 2 Wilkerson that he is “worthless,” “people don’t want to be around [him],” “people are laughing at 3 [him] [and] talking about [him].”197 He hears voices and feels depressed every day.198 He tried to 4 get a job after he was fired, but “the voices became worse and [the] depression became worse.”199 5 On a scale of 1 to 10 Mr. Wilkerson indicated that he had back, hip, and leg pain of 8.5, 7, and 6 8 (respectively) during the hearing.200 He brought his cane (prescribed by his doctor) to the 7 hearing to help with his balance.201 Mr. Wilkerson is HIV positive but does not yet have AIDS. He 8 worries that he will get sick if he goes out in public, and so he likes to keep to himself.202 Mr. Wilkerson cooks for himself using a microwave, can walk between a half block and one 10 block to pick up light items from the store, and cleans occasionally when his pain is manageable 11 United States District Court Northern District of California 9 (but afterwards, he must lie down or sit with his legs elevated).203 He can sit for roughly 20 12 minutes and stand in place for 10 to 15 minutes at a time.204 Mr. Wilkerson has three or four bad 13 days each week; on these days, “pain is very excruciating where [he] [has] to normally pretty 14 much sit down with my legs elevated or lay down in the bed with my legs elevated.”205 Mr. Wilkerson goes to Save a Life206 every 30 days for his medication and Highland Hospital 15 16 every three months for HIV treatment, and he was resuming physical therapy for his back.207 At 17 the time of the hearing, Mr. Wilkerson had been clean for roughly two years.208 18 196 21 22 23 24 25 26 Id. 198 Id. 199 AR 41. AR 41–42. 201 AR 42, 48. 202 AR 43–44. 203 AR 44–45. 204 20 AR 43. 197 200 19 AR 45. 205 AR 46. 206 While the hearing transcript states Mr. Wilkerson goes to “Stable Life,” his medical records are actually from (the similar sounding) “Save a Life.” 27 207 AR 47. 28 208 AR 48. ORDER – No. 16-cv-02757-LB 21 1 2.3 Thai Ivery – Mr. Wilkerson’s Friend 2 In January 2012, Mr. Wilkerson’s friend, Thai Ivery, completed a third-party function 3 report.209 Mr. Ivery has known Mr. Wilkerson for 42 years and sees him “5–10 hours per week 4 and 4 hours on Sundays.”210 Mr. Wilkerson lives at Redemption and Recovery where he “does a 5 lot of reading, and praying while trying to control his issues.”211 Mr. Wilkerson has trouble 6 sleeping because of his pain and the voices he hears.212 Before Mr. Wilkerson got sick, he liked to 7 spend time with friends and family.213 Generally, Mr. Wilkerson can care for and groom himself, 8 but he sometimes needs reminders and has “a hard time washing his back.”214 Mr. Wilkerson does laundry and cleans the common areas at the rehabilitation facility three 9 times a week, but he cannot do all of the chores due to his severe pain.215 He can prepare 11 United States District Court Northern District of California 10 sandwiches, frozen food, and “complete meals.”216 With the other residents, Mr. Wilkerson eats 12 dinner, which is prepared as a group meal by the facility cook.217 Mr. Wilkerson drives and uses 13 public transportation, pays bills, goes to church, goes shopping once a week (although it takes him 14 awhile), and goes outside often.218 Mr. Ivery indicated that Mr. Wilkerson’s conditions impact his ability to lift, squat, bend, 15 16 stand, sit, kneel, hear, climb stairs, see, remember, complete tasks, concentrate, and get along with 17 others.219 When asked how Mr. Wilkerson’s conditions impact his abilities, Mr. Ivery wrote, 18 “back pain, and some motor skills and hearing voices, and seeing objects.”220 Mr. Wilkerson 19 209 AR 271–78. 210 AR 271. 21 211 Id. 22 212 AR 272. 213 Id. 214 AR 272–73. 24 215 AR 273–74. 25 216 AR 273. 217 Id. 218 AR 274–75. 27 219 AR 276. 28 220 Id. 20 23 26 ORDER – No. 16-cv-02757-LB 22 1 cannot walk very far before he needs to rest for “a few minutes.”221 He generally finishes what he 2 starts and can follow written instructions “well,” but his ability to pay attention “depends on his 3 focus.”222 He can follow spoken instructions “fair to good.”223 Mr. Wilkerson gets frustrated 4 sometimes because his conditions prevent him from doing things that he used to be able to do.224 5 Mr. Ivery “really dislike[s] that he hears voices or believes someone is talking and they are not.”225 6 Mr. Ivery wrote that Mr. Wilkerson needs glasses all the time.226 Mr. Ivery concluded by stating: 7 “I would be grateful when he gets the help his condition has him to need. I been around him for 8 over 42 years and he has changed drastically.”227 9 2.4 Vocational Expert Testimony 11 United States District Court Northern District of California 10 Malcolm Brodzinsky, a vocational expert, testified at the hearing on October 3, 2013. He 12 classified Mr. Wilkerson’s past work — as a heavy equipment operator, a heavy truck driver, and 13 a gas company technician — as skilled and semi-skilled jobs requiring medium physical 14 demands.228 In February 2014, the ALJ sent Mr. Brodzinsky a vocational interrogatory.229 15 The ALJ posed a hypothetical based on an individual born in 1964, with a high-school education, 16 English proficiency, Mr. Wilkerson’s past work experience, and the residual functional capacity to perform light work [ ] except sitting six hours in an eight-hour day, standing and walking for six hours in an eight-hour day, lifting and carrying 20 pounds occasionally and 10 pounds frequently, bending, stooping, and kneeling for four hours in an eight-hour day that does not require binocular vision and involves simple, repetitive tasks with less than average emphasis on production quotas and speeded tasks, limited to brief and superficial contact with supervisors, coworkers, and the general public and no contact with alcohol or illicit drugs in the job 17 18 19 20 21 221 Id. 222 Id. 223 Id. 24 224 AR 277. 25 225 Id. 226 Id. 227 AR 278. 27 228 AR 51. 28 229 AR 391–95. 22 23 26 ORDER – No. 16-cv-02757-LB 23 setting.230 1 2 Mr. Brodzinsky answered that such an individual could not perform Mr. Wilkerson’s past work 3 but could work as a “bottling line attendant” or “housekeeping cleaner.”231 4 5 2.5 Administrative Findings 6 The ALJ followed the five-step sequential evaluation process to determine whether Mr. 7 Wilkerson was disabled and concluded he was not.232 8 At step one, the ALJ found that that Mr. Wilkerson had not engaged in substantial gainful 9 activity since his alleged onset date of August 12, 2010, and met the insured status requirements 10 through December 31, 2015.233 United States District Court Northern District of California 11 At step two, the ALJ found that Mr. Wilkerson had the following severe impairments: 12 “degenerative disc disease of the lumbar spine, monocular vision secondary to a left eye visual 13 impairment, diabetes mellitus,234 a major depressive disorder with possible psychotic features, and 14 polysubstance abuse in reported remission.”235 15 At step three, the ALJ found that Mr. Wilkerson did not have an impairment or combination of 16 impairments that met or medically equaled the severity of a listed impairment.236 Mr. Wilkerson’s 17 degenerative disc disease did not meet Listing 1.04 because there was no evidence of “nerve root 18 compression characterized by pain, limitation of motion in the spine, motor loss and sensory or 19 reflex loss.”237 The evidence of Mr. Wilkerson’s visual impairments was not sufficient to 20 21 230 AR 393. 231 AR 394. 23 232 AR 18–26. 24 233 AR 18. 22 234 25 26 Metformin, a diabetes medicine, is listed in Mr. Wilkerson’s medication list for the period of July through August 2013. (AR 371.) There is no record of a diabetes diagnosis, and Mr. Wilkerson does not allege or argue this is one of his impairments. Thus, the court does not address it here. 235 Id. 27 236 AR 19. 28 237 Id. ORDER – No. 16-cv-02757-LB 24 1 “associate the criteria for any Listing level visual impairment under Section 2.00 et seq.”238 Mr. 2 Wilkerson’s mental impairments, individually or combined, did not meet Listings 12.03 or 12.04 3 and the paragraph B criteria because the evidence did not show repeated episodes of 4 decompensation and at least two marked functional limitations.239 Rather, Mr. Wilkerson had only 5 mild restrictions of his activities of daily living and moderate difficulties in social functioning and 6 “concentration, persistence, or pace.”240 At step four, the ALJ determined Mr. Wilkerson had the residual functional capacity (“RFC”) 7 8 to perform light work with sitting for 6 hours in an 8 hour day, standing/walking for 6 hours in an 8 hour day, lifting/carrying 20 pounds occasionally and 10 pounds frequently, and bending/stooping/kneeling for 4 hours in an 8 hour day, not requiring binocular vision, involving simple, repetitive tasks with less than average emphasis on production quotas and speeded tasks, no more than brief and superficial contact with supervisors, coworkers and the general public and no contact with alcohol or illicit drugs.241 9 10 United States District Court Northern District of California 11 12 13 14 At step five, the ALJ found Mr. Wilkerson could not perform his past relevant work as a 15 highway maintenance worker or a maintenance technician.242 The ALJ found that Mr. Wilkerson 16 could work as a “bottling line attendant” or “housekeeping cleaner.”243 The ALJ concluded that he 17 was not disabled.244 ANALYSIS 18 19 1. Standard of Review Under 42 U.S.C. § 405(g), district courts have jurisdiction to review any final decision of the 20 21 Commissioner if the claimant initiates a suit within sixty days of the decision. A court may set 22 aside the Commissioner’s denial of benefits only if the ALJ’s “findings are based on legal error or 23 238 Id. 24 239 AR 19–20. 25 240 AR 20. 241 Id. 242 AR 25. 27 243 AR 26. 28 244 Id. 26 ORDER – No. 16-cv-02757-LB 25 1 are not supported by substantial evidence in the record as a whole.” Vasquez v. Astrue, 572 F.3d 2 586, 591 (9th Cir. 2009) (internal citation and quotation marks omitted); 42 U.S.C. § 405(g). 3 “Substantial evidence means more than a mere scintilla but less than a preponderance; it is such 4 relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” 5 Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). The reviewing court should uphold “such 6 inferences and conclusions as the [Commissioner] may reasonably draw from the evidence.” Mark 7 v. Celebrezze, 348 F.2d 289, 293 (9th Cir. 1965). If the evidence in the administrative record 8 supports the ALJ’s decision and a different outcome, the court must defer to the ALJ’s decision 9 and may not substitute its own decision. Tackett v. Apfel, 180 F.3d 1094, 1097–98 (9th Cir. 1999). “Finally, [a court] may not reverse an ALJ’s decision on account of an error that is harmless.” 11 United States District Court Northern District of California 10 Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). 12 13 2. Applicable Law 14 A claimant is considered disabled if (1) he or she suffers from a “medically determinable 15 physical or mental impairment which can be expected to result in death or which has lasted or can 16 be expected to last for a continuous period of not less than twelve months,” and (2) the 17 “impairment or impairments are of such severity that he or she is not only unable to do his 18 previous work but cannot, considering his age, education, and work experience, engage in any 19 other kind of substantial gainful work which exists in the national economy. . . .” 42 U.S.C. 20 § 1382c(a)(3)(A) & (B). The five-step analysis for determining whether a claimant is disabled 21 within the meaning of the Social Security Act is as follows. Tackett, 180 F.3d at 1098 (citing 22 20 C.F.R. § 404.1520). 23 24 25 26 Step One. Is the claimant presently working in a substantially gainful activity? If so, then the claimant is “not disabled” and is not entitled to benefits. If the claimant is not working in a substantially gainful activity, then the claimant case cannot be resolved at step one, and the evaluation proceeds to step two. See 20 C.F.R. § 404.1520(a)(4)(i). 27 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). 28 Step Three. Does the impairment “meet or equal” one of a list of specified ORDER – No. 16-cv-02757-LB 26 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). 1 2 3 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). 4 5 6 11 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. 12 For steps one through four, the burden of proof is on the claimant. At step five, the burden 7 8 9 United States District Court Northern District of California 10 13 shifts to the Commissioner. Gonzales v. Sec’y of Health & Human Servs., 784 F.2d 1417, 1419 14 (9th Cir. 1986). 15 16 3. Application 17 Mr. Wilkerson contends the ALJ erred at step four in determining his RFC because she 18 improperly discounted or disregarded (1) the medical opinions of the psychiatrist at Sausal Creek 19 Outpatient Stabilization Clinic, Dr. Khoi, Dr. Hardey, and Dr. Conger regarding the severity of 20 Mr. Wilkerson’s mental impairments, (2) Mr. Wilkerson’s own testimony regarding the severity of 21 his impairments, and (3) the third-party statement of his close and long-time friend, Mr. Ivery.245 22 The court reviews each contention in turn. 23 24 25 26 27 28 245 Summary-Judgment Motion – ECF No. 23 at 9. ORDER – No. 16-cv-02757-LB 27 1 3.1 Medical Opinion Evidence 2 Mr. Wilkerson contends the ALJ provided insufficient reasons for rejecting the medical 3 opinions of the psychiatrist at Sausal Creek Outpatient Stabilization Clinic, Dr. Khoi, Dr. Hardey, 4 and Dr. Conger.246 The ALJ is responsible for “‘resolving conflicts in medical testimony, and for resolving 5 6 ambiguities.’” Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014) (quoting Andrews, 53 F.3d 7 at 1039). In weighing and evaluating the evidence, the ALJ must consider the entire case record, 8 including each medical opinion in the record, together with the rest of the relevant evidence. 9 20 C.F.R. § 416.927(b); see also Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (“[A] reviewing court [also] must consider the entire record as a whole and may not affirm simply by isolating a 11 United States District Court Northern District of California 10 specific quantum of supporting evidence.”) (internal quotation marks and citation omitted). “In conjunction with the relevant regulations, [the Ninth Circuit has] developed standards that 12 13 guide [the] analysis of an ALJ’s weighing of medical evidence.” Ryan v. Comm’r of Soc. Sec., 528 14 F.3d 1194, 1198 (9th Cir. 2008) (citing 20 C.F.R. § 404.1527). Social Security regulations 15 distinguish between three types of physicians (and other “acceptable medical sources”): 16 (1) treating physicians; (2) examining physicians; and (3) non-examining physicians. 20 C.F.R. 17 § 416.927(c), (e); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). “Generally, a treating 18 physician’s opinion carries more weight than an examining physician’s, and an examining 19 physician’s opinion carries more weight than a reviewing [non-examining] physician’s.” Holohan 20 v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001) (citing Lester, 81 F.3d at 830); Smolen v. 21 Chater, 80 F.3d 1273, 1285 (9th Cir. 1996). An ALJ, however, may disregard the opinion of a treating physician, whether or not 22 23 controverted. Andrews, 53 F.3d at 1041. “To reject [the] uncontradicted opinion of a treating or 24 examining doctor, an ALJ must state clear and convincing reasons that are supported by 25 substantial evidence.” Ryan, 528 F.3d at 1198 (alteration in original) (internal quotation marks and 26 citation omitted). By contrast, if the ALJ finds that the opinion of a treating physician is 27 28 246 Id. ORDER – No. 16-cv-02757-LB 28 1 contradicted, a reviewing court will require only that the ALJ provide “specific and legitimate 2 reasons supported by substantial evidence in the record.” Reddick v. Chater, 157 F.3d 715, 725 3 (9th Cir. 1998) (internal quotation marks and citation omitted); see also Garrison, 759 F.3d at 4 1012 (“If a treating or examining doctor’s opinion is contradicted by another doctor’s opinion, an 5 ALJ may only reject it by providing specific and legitimate reasons that are supported by 6 substantial evidence.”) (internal quotation marks and citation omitted). The opinions of non- 7 treating or non-examining physicians may serve as substantial evidence when the opinions are 8 consistent with independent clinical findings or other evidence in the record. Thomas v. Barnhart, 9 278 F.3d 947, 957 (9th Cir. 2002). An ALJ errs, however, when she “rejects a medical opinion or assigns it little weight” without explanation or without explaining why “another medical opinion is 11 United States District Court Northern District of California 10 more persuasive, or criticiz[es] it with boilerplate language that fails to offer a substantive basis 12 for [her] conclusion.” Garrison, 759 F.3d at 1012–13. 13 “If a treating physician’s opinion is not given ‘controlling weight’ because it is not ‘well- 14 supported’ or because it is inconsistent with other substantial evidence in the record, the [Social 15 Security] Administration considers specified factors in determining the weight it will be given.” 16 Orn, 495 F.3d at 631. “Those factors include the ‘[l]ength of the treatment relationship and the 17 frequency of examination’ by the treating physician; and the ‘nature and extent of the treatment 18 relationship’ between the patient and the treating physician.” Id. (quoting 20 C.F.R. 19 § 404.1527(d)(2)(i)–(ii)) (alteration in original). “Additional factors relevant to evaluating any 20 medical opinion, not limited to the opinion of the treating physician, include the amount of 21 relevant evidence that supports the opinion and the quality of the explanation provided[,] the 22 consistency of the medical opinion with the record as a whole[, and] the specialty of the physician 23 providing the opinion . . . .” Id. (citing 20 C.F.R. § 404.1527(d)(3)–(6)); see also Magallanes v. 24 Bowen, 881 F.2d 747, 753 (9th Cir. 1989) (ALJ need not agree with everything contained in the 25 medical opinion and can consider some portions less significant than others). 26 In addition to the medical opinions of the “acceptable medical sources” outlined above, the 27 ALJ must consider the opinions of other “medical sources who are not acceptable medical sources 28 and [the testimony] from nonmedical sources.” See 20 C.F.R. § 416.927(f)(1). An “ALJ may ORDER – No. 16-cv-02757-LB 29 1 discount the testimony” or opinion “from these other sources if the ALJ gives … germane 2 [reasons] . . . for doing so.” Molina, 674 F.3d at 1111 (internal quotations and citations omitted). 3 3.1.1 4 Sausal Creek Outpatient Stabilization Clinic Mr. Wilkerson contends that the ALJ failed to provide sufficient (or any) reasons for rejecting 5 6 medical-opinion evidence from the Sausal Creek Outpatient Stabilization Clinic psychiatrist and 7 other medical providers at the Clinic, including failing to consider the Global Assessment of 8 Functioning (“GAF”) score of 45 that was assigned to him by the psychiatrist and by the intake 9 nurse.247 “‘A GAF score is a rough estimate of an individual’s psychological, social, and occupational functioning used to reflect the individual’s need for treatment.’” Garrison, 759 F.3d 11 United States District Court Northern District of California 10 at 1002 n.4 (quoting Vargas v. Lambert, 159 F.3d 1161, 1164 n.2 (9th Cir. 1998)). “According to 12 the DSM–IV, a GAF score between 41 and 50 describes ‘serious symptoms’ or ‘any serious 13 impairment in social, occupational, or school functioning.’” Id. “Although GAF scores, standing 14 alone, do not control determinations of whether a person’s mental impairments rise to the level of 15 a disability (or interact with physical impairments to create a disability), they may be a useful 16 measurement.” Id.; see Graham v. Astrue, 385 F. App’x 704, 706 (9th Cir. 2010) (“[Claimant] 17 correctly points out that the GAF scores are not dispositive . . . [b]ut the GAF scores are 18 nonetheless relevant.”); see also Admin. Message 13066, sec. E (July 22, 2013) (noting that 19 “when [a GAF score] comes from an acceptable medical source,” the SSA considers that the 20 “GAF rating is a medical opinion” to be considered with “all of the relevant evidence in the case 21 file”); but see McFarland v. Astrue, 288 F. App’x 357, 359 (9th Cir. 2008) (“[t]he Commissioner 22 has determined [that] the GAF scale ‘does not have a direct correlation to the severity 23 requirements in [the Social Security Administration’s] mental disorders listings.’” (quoting 24 65 Fed. Reg. 50,746, 50,765) (Aug. 21 2001)). Here, the GAF scores and other mental-health assessments are from both “acceptable medical 25 26 27 247 28 Summary-Judgment Motion – ECF No. 23 at 13–14; see also AR 642 (psychiatrist assigning an Axis V /GAF score of 45); AR 646 (intake nurse also assigning a GAF score of 45). ORDER – No. 16-cv-02757-LB 30 1 source” and “other source” providers (though neither likely would qualify as “treating” medical 2 providers). Nevertheless, even if they were treated only as “examining” medical providers, the 3 ALJ has an obligation to consider these opinions in her decision. Garrison, 759 F.3d at 1012–13 4 (an ALJ errs if she “rejects a medical opinion or assigns it little weight” without explanation or 5 without explaining why “another medical opinion is more persuasive”). The court notes that these 6 GAF scores were the product of short, one-time observations and were not supported by additional 7 detailed clinical findings or explanations by the medical providers, but still, the failure of the ALJ 8 to specifically consider the GAF scores and the other medical opinions from the examinations or 9 provide an explanation for rejecting them was error. See id. Moreover, given that Mr. Wilkerson’s assigned GAF score of 45 equates to a finding of a “serious symptom” or an “impairment in 11 United States District Court Northern District of California 10 social, occupational, or school functioning,” id. at 1002 n.4 (internal quotations and citations 12 omitted), the court declines to find this error to be harmless. See Molina, 674 F.3d at 1111. 13 3.1.2 14 Dr. Khoi The ALJ gave “no weight” to Dr. Khoi’s conclusions, finding that they were (1) “inconsistent 15 16 with the claimant’s history of limited mental health treatment and [(2)] Dr. Khoi’s examination 17 was incomplete because the claimant did not complete psychological testing.”248 18 While a claimant’s lack of treatment can be evidence of the lack of severity of such claimant’s 19 reported symptoms, see, e.g., Orn, 495 F.3d at 636, the Ninth Circuit has cautioned that in the area 20 of mental health, the fact that a claimant “may have failed to seek psychiatric treatment for his [or 21 her] mental condition” should not be used to “chastise one with a mental impairment for the 22 exercise of poor judgment in seeking rehabilitation.” Nguyen v. Chater, 100 F.3d 1462, 1465 (9th 23 Cir. 1996) (internal quotation marks omitted); Ferrando v. Comm’r of Soc. Sec. Admin., 449 F. 24 App’x 610, 611–12 (9th Cir. 2011) (“[F]ailure to seek treatment for his mental illness . . . is not a 25 clear and convincing reason to reject his [treating] psychiatrist’s opinion, especially where that 26 failure to seek treatment is explained, at least in part, by [the claimant’s] degenerating condition.”) 27 28 248 AR 24. ORDER – No. 16-cv-02757-LB 31 1 (citing Regennitter v. Comm’r of Soc. Sec. Admin., 166 F.3d 1294, 1299–1300 (9th Cir. 1999). In Regennitter, the Ninth Circuit also held that if a claimant could not afford treatment, failure 2 3 to seek treatment was not a legitimate basis for rejecting a disability claim. 166 F.3d at 1297; 4 Gamble v. Chater, 68 F.3d 319, 321 (9th Cir. 1995) (“‘It flies in the face of the patent purposes of 5 the Social Security Act to deny benefits to someone because he is too poor to obtain medical 6 treatment that may help him.’”) (quoting Gordon v. Schweiker, 725 F.2d 231, 237 (4th Cir. 1984)). 7 Here, the ALJ did not undertake a specific assessment of whether Mr. Wilkerson’s limited 8 mental-health treatment history was based on the lack of severity of his impairments or instead 9 was at least in part attributable to his mental impairments and/or his financial constraints. The record does reflect that Mr. Wilkerson lost his insurance in 2010 and could not pay for his 11 United States District Court Northern District of California 10 physical therapy appointments with his chiropractor or for new eyeglasses.249 Whether his mental 12 health and financial issues also impacted his ability to seek (and comply with) mental-health 13 treatments is not clear. Under these circumstances, however, the court finds that the ALJ’s brief 14 and conclusory statements regarding Mr. Wilkerson’s limited treatment to be an insufficient basis 15 for rejecting Dr. Khoi’s opinion. 16 The ALJ’s second reason for discounting Dr. Khoi’s opinion — Mr. Wilkerson did not fully 17 complete all of the cognitive assessment tests — is not, in these circumstances, a legitimate reason 18 supported by substantial evidence in the record for disregarding Dr. Khoi’s opinion. Specifically, 19 Dr. Khoi administered numerous psychological tests and acknowledged that the test results “likely 20 [ ] underestimate [Mr. Wilkerson’s] cognitive functioning” because Mr. Wilkerson’s physical 21 impairments (vision, pain) and psychiatric symptoms prevented him from finishing all of the 22 tasks.250 Dr. Khoi accounted for this limitation, in part, by reconciling and adopting the prior 23 cognitive testing results from earlier that year to conclude that Mr. Wilkerson’s cognitive abilities 24 are “at least in the low average range.”251 Furthermore, Dr. Khoi’s psychological evaluation was 25 26 249 AR 546, 562, 713. 27 250 AR 601, 603. 28 251 AR 603. ORDER – No. 16-cv-02757-LB 32 1 based upon information beyond just the tests that were not fully completed and included not only 2 the psychological tests he was able to complete (incorporating the results of previous tests 3 conducted by others), but also her own observations, diagnoses, and assessments of Mr. 4 Wilkerson’s condition.252 In these circumstances, the court finds that the ALJ’s proffered reason 5 (of incomplete testing) to reject all of Dr. Khoi’s conclusions is not a sufficient or legitimate 6 reason to reject (and give no weight) her opinion (as an “acceptable medical source”). 7 3.1.3 8 Dr. Hardey The ALJ gave “limited weight to Dr. Hardey’s conclusions to the extent that they suggest that 9 the claimant would be limited in his capacity for work in the absence of substance abuse.”253 11 United States District Court Northern District of California 10 Specifically, the ALJ rejected Dr. Hardey’s finding that Mr. Wilkerson had moderate to severe 12 limitations in several areas254 because “she attributed his psychiatric symptoms to substance 13 abuse.”255 Mr. Wilkerson contends this is error because “Dr. Hardey’s diagnosis of alcohol and 14 drug dependency was based on [his] report of his past abuse, not on his medical records or her 15 observations” of present abuse.256 “A finding of ‘disabled’ under the five-step inquiry does not automatically qualify a claimant 16 17 for disability benefits.” Bustamante v. Massanari, 262 F.3d 949, 954 (9th Cir. 2001). “Under 42 18 U.S.C. § 423(d)(2)(C), a claimant cannot receive disability benefits ‘if alcoholism or drug 19 addiction would . . . be a contributing factor material to the Commissioner’s determination that the 20 individual is disabled.’” Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007) (quoting 42 U.S.C. 21 § 423(d)(2)(C)) (alteration in original). The Ninth Circuit has held that when a Social Security disability claim involves substance 22 23 abuse, the ALJ must first conduct the five-step sequential evaluation without determining the 24 252 AR 600–03. 253 AR 24. 254 See AR 564–65. 27 255 AR 24. 28 256 Summary-Judgment Motion – ECF No. 23 at 12. 25 26 ORDER – No. 16-cv-02757-LB 33 1 impact of substance abuse on the claimant. Bustamante, 262 F.3d at 954–55. If the ALJ finds that 2 the claimant is not disabled, then the ALJ proceeds no further. Id.at 955. If, however, the ALJ 3 finds that the claimant is disabled, then the ALJ conducts the sequential evaluation a second time 4 and considers whether the claimant would still be disabled absent the substance abuse. Id. (citing 5 20 C.F.R. §§ ; C.F.R. § 404.1535, 416.935); Parra, 481 F.3d. at 747 (under the Social Security 6 Act’s regulations, “the ALJ must conduct a drug abuse and alcoholism analysis” to determine 7 “which of the claimant’s disabling limitations would remain if the claimant stopped using drugs or 8 alcohol.” (citing 20 C.F.R. § 404.1535(b)). Here, by rejecting or discounting Dr. Hardey’s medical opinion based on Mr. Wilkerson’s 9 history of substance abuse, the ALJ failed to conduct the five-step sequential evaluation first 11 United States District Court Northern District of California 10 before determining the impact of substance abuse on the claimant. See Bustamante, 262 F.3d at 12 954–55. By doing so, it appears the ALJ prematurely assumed that substance abuse was material 13 to the severity of Mr. Wilkerson’s mental impairments and rejected Dr. Hardey’s opinion on that 14 basis. Dr. Hardey made an Axis 1 diagnosis of: (1) “Rule out psychotic disorder probably secondary 15 16 to poly-substance abuse”; (2) “Alcohol, cocaine, and cannabis dependency, in remission, status 17 post 4 months per applicant — no corroborating medical records”; and (3) “Mood disorder, 18 secondary to substance abuse.”257 Dr. Hardey used terms such as “probably” and stated that Mr. 19 Wilkerson’s substance abuse was “in remission.” She noted the absence of medical records to 20 support a finding of remission, but she did not make any affirmative findings of ongoing substance 21 abuse to contradict Mr. Wilkerson’s claim of remission.258 Moreover, in Mr. Wilkerson’s 22 encounters with other health providers, he consistently reported that he had been clean and sober 23 since October 2011, when he began living at Redemption and Recovery.259 24 25 26 257 AR 564. 27 258 Id. 28 259 AR 48, 562–63, 622, 635, 641, 644, 652. ORDER – No. 16-cv-02757-LB 34 Under Bustamente, the ALJ must not disregard medical evidence simply because it includes 1 2 diagnoses of impairments “secondary to” substance abuse at the initial stage of the disability 3 determination analysis. See 262 F.3d at 956. Instead, the ALJ must evaluate all of the evidence at 4 each step of the sequential evaluation process “without attempting to separate out the impact” of 5 substance abuse. Id. Then, only after making the underlying disability determination, the ALJ 6 must engage in a materiality analysis of the impact of substance abuse on Mr. Wilkerson’s 7 impairments. Id. 8 3.1.4 9 The ALJ gave no weight to Dr. Conger’s disability certificate because it was “not supported by 10 United States District Court Northern District of California 11 Dr. Conger [(i)] any prior treatment relationship or [(ii)] documented positive objective findings.”260 12 Dr. Conger examined Mr. Wilkerson sometime during the week of June 13 to June 20, 2011, 13 the period on the form that reflects that Mr. Wilkerson was under Dr. Conger’s care.261 As the ALJ 14 noted, it appears that there is no evidence of an ongoing treatment relationship or basis to consider 15 Dr. Conger as a “treating” medical provider. See Orn, 495 F.3d at 631 (ALJ considers length, 16 nature, and extent of treatment relationship and visit frequency); 20 C.F.R. § 404.1527(d)(2)(i)– 17 (ii). Nevertheless, as an “examining” psychologist providing a certificate for Mr. Wilkerson’s 18 California disability claim, the fact that Dr. Conger examined Mr. Wilkerson only once is not 19 surprising and does not by itself provide a legitimate basis for rejecting his opinion. See, e.g., 20 Wiggins v. Berryhill, No. 16-CV-41-GSA, 2017 WL 772142, at *8 (E.D. Cal. Feb. 27, 2017) 21 (noting that the examining medical opinion was “a one-time snapshot of [claimant’s] functioning,” 22 but concluding, “that is true of all consultative examiners and it is not a legitimate reason for 23 rejecting the opinion”); Smith v. Colvin, No. 14-CV-05082-HSG, 2015 WL 9023486, at *7 (N.D. 24 Cal. Dec. 16, 2015) (“By definition, an examining opinion is a one-time examination.”) “Adoption 25 of the ALJ’s reasoning would result in the rejection of virtually all examining opinions.” Smith, 26 27 260 AR 24. 28 261 AR 528. ORDER – No. 16-cv-02757-LB 35 1 2015 WL 9023486, at *7. The ALJ’s first stated reason is not a legitimate basis in itself for 2 rejecting Dr. Conger’s opinion. 3 The ALJ’s second reason — lack of “documented positive objective findings”262 — is not 4 supported by substantial evidence. The ALJ may consider “the amount of relevant evidence that 5 supports the opinion and the quality of the explanation provided.” Orn, 495 F.3d at 631 (citing 20 6 C.F.R. § 404.1527(d)(3)–(6)). Nevertheless, the ALJ’s statement — that Dr. Conger provided no 7 positive objective findings — is inaccurate. Dr. Conger’s certificate, although brief, states that he 8 found Mr. Wilkerson to be “very disturbed, uncomfortable.”263 In the space for providing a 9 “diagnosis,” “objective findings or a detailed statement of symptoms,” Dr. Conger wrote that his examination revealed that Mr. Wilkerson “hears voices, feels invaded, wants to be alone, [and] has 11 United States District Court Northern District of California 10 paranoid ideation, [with] awkward and restless movements.”264 Given that at least some of these 12 noted symptoms are based upon objective observations (as opposed to only subjective reporting by 13 Mr. Wilkerson), the ALJ’s stated reason for giving no weight to Dr. Conger’s medical opinion is 14 not supported by substantial evidence. Because the ALJ’s two reasons for rejecting Dr. Conger’s 15 medical opinion are either not legitimate or not supported by substantial evidence, the court finds 16 that the ALJ erred in giving no weight to Dr. Conger’s medical opinion. What weight the ALJ 17 ultimately gives to Dr. Conger’s assessment given his limited interaction with Mr. Wilkerson must 18 be determined by the ALJ on remand. 19 3.2 Lay Testimony 20 3.2.1 21 The Claimant – Mr. Wilkerson 22 Mr. Wilkerson contends that the ALJ erroneously discredited his testimony.265 In assessing a 23 claimant’s credibility, an ALJ must make two determinations. Molina, 674 F.3d at 1112. “‘First, 24 the ALJ must determine whether the claimant has presented objective medical evidence of an 25 262 AR 24. 263 AR 528. 27 264 Id. 28 265 Summary-Judgment Motion – ECF No. 23 at 18–19. 26 ORDER – No. 16-cv-02757-LB 36 1 underlying impairment which could reasonably be expected to produce the pain or other 2 symptoms alleged.’” Id. (quoting Vasquez, 572 F.3d at 591). Second, if the claimant produces that 3 evidence, and “there is no evidence of malingering,” the ALJ must provide “specific, clear and 4 convincing reasons for” rejecting the claimant’s testimony regarding the severity of the claimant’s 5 symptoms. Id. (internal quotation marks and citations omitted). “At the same time, the ALJ is not 6 ‘required to believe every allegation of disabling pain, or else disability benefits would be 7 available for the asking, a result plainly contrary to 42 U.S.C. § 423(d)(5)(A).’” Molina, 674 F.3d 8 at 1112 (quoting Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)). “Factors that an ALJ may 9 consider in weighing a claimant’s credibility include reputation for truthfulness, inconsistencies in testimony or between testimony and conduct, daily activities, and unexplained, or inadequately 11 United States District Court Northern District of California 10 explained, failure to seek treatment or follow a prescribed course of treatment.” Orn, 495 F.3d at 12 636 (internal quotation marks omitted). “The ALJ must identify what testimony is not credible and 13 what evidence undermines the claimant’s complaints.” Burrell v. Colvin, 775 F.3d 1133, 1138 (9th 14 Cir. 2014); see, e.g., Morris v. Colvin, No. 16-CV-0674-JSC, 2016 WL 7369300, at *12 (N.D. 15 Cal. Dec. 20, 2016). Here, the ALJ found that Mr. Wilkerson’s “medically determinable impairments could 16 17 reasonably be expected to cause the alleged symptoms; however [his] statements concerning the 18 intensity, persistence and limiting effects of these symptoms are not entirely credible. . . .”266 The 19 ALJ did not make any finding of malingering, but nonetheless discredited his testimony based 20 upon (i) the lack of ongoing, comprehensive treatment and/or the misuse of or failure to take 21 prescribed medicine or treatments (and the corresponding limited “objective medical findings” 22 supporting the severity of his impairments), (ii) the absence of urine toxicology results to support 23 his claim of substance abuse in remission, and (iii) purported inconsistencies between his prior 24 statements and testimony at the hearing.267 The court addresses each reason. First, as noted above, the ALJ failed to properly analyze and articulate whether Mr. 25 26 27 266 AR 25. 28 267 AR 24–25. ORDER – No. 16-cv-02757-LB 37 1 Wilkerson’s lack of ongoing comprehensive mental-health treatment and/or his failure to take 2 prescribed medicines or to pursue recommended mental-health treatment was (i) because of a lack 3 of severity of his impairments or (ii) at least in part, the result of his mental-health impairments 4 and/or his inability to pay for such treatments. See Nguyen, 100 F.3d at 1465; Regennitter, 5 166 F.3d at 1297–99. The court recognizes (as did the ALJ) that the “objective medical findings” 6 supporting Mr. Wilkerson’s disability claim are “limited.” 268 Absent this articulated analysis 7 noted above, however, it is not clear whether the ALJ’s reliance on this factor (i.e., the “minimal 8 treatment” and “the lack of ongoing comprehensive treatment”) to discredit the reported severity 9 of his impairments is legitimate and supported by clear and convincing evidence. See Molina, 10 674 F.3d at 1112. Second, given the lack of any evidence or indication in the record to the contrary, the ALJ’s United States District Court Northern District of California 11 12 (and the consulting psychologist Dr. Lace’s) discrediting of Mr. Wilkerson’s claim of poly- 13 substance abuse remission based upon the absence of toxicology results confirming remission 14 does not constitute a clear and convincing basis for finding that Mr. Wilkerson’s testimony is not 15 credible. See generally id. While the burden of proof at this step of the disability claims process is 16 on the claimant, Gonzales, 784 F.2d at 1419, the ALJ’s decision offered no specific basis in the 17 record for casting doubt on Mr. Wilkerson’s remission. Moreover, the record reflects that during 18 the relevant period of his alleged remission, Mr. Wilkerson was prescribed medication, including 19 opioid pain killers that were occasionally provided for back pain after his several accidents, with 20 no noted abuse.269 21 Finally, while inconsistencies in a claimant’s prior statements may be a legitimate basis for 22 discrediting a claimant’s testimony, see Orn, 495 F.3d at 636, the court finds that on balance those 23 inconsistencies specifically identified by the ALJ in her decision are not sufficient to justify 24 discrediting his testimony. See Haulot v. Astrue, 290 F. App’x 53, 55 (9th Cir. 2008) (“minor 25 26 268 27 269 28 See AR 24. See AR 650–52, 688–89; see also AR 644 (although it is not entirely clear whether this was based on his self-reporting or on actual lab tests, Mr. Wilkerson’s assessment notes from May 29, 2013, indicate that his “Drug/Alcohol Screen” was negative). ORDER – No. 16-cv-02757-LB 38 1 discrepancies in [claimant’s] testimony were not enough to establish clear and convincing 2 evidence that [claimant’s testimony] is incredible.”) (citing Robbins v. Soc. Sec. Admin., 466 F.3d 3 880, 884 (9th Cir.2006)). 4 First, the ALJ analysis in this area conflates and then finds inconsistent Mr. Wilkerson’s 5 statements regarding why he can “no longer work[ ] as a heavy equipment operator” (which the 6 ALJ states that Mr. Wilkerson attributes to his being blind in one eye and to his back pain) with 7 the reason he no longer works at his previous job as a heavy-equipment operator (which he 8 attributes to his hearing voices, depression, and his arrest for public intoxication, which caused 9 him to miss work resulting in his termination).270 But the reasons for his termination in 2010 and the underlying impairments preventing him from working as a heavy-equipment operator are 11 United States District Court Northern District of California 10 distinct issues, and Mr. Wilkerson’s statements about them are not necessarily going to be 12 consistent. Thus, the fact that those reasons may not always match or overlap does not necessarily 13 impugn his credibility. Moreover, because Mr. Wilkerson suffers from multiple impairments, his 14 statements that he stopped working due to psychiatric symptoms (such as depression and hearing 15 voices), substance abuse, and back pain also are not necessarily inconsistent. Mr. Wilkerson told 16 both Dr. Hardey in February 2012 and the ALJ in October 2013 that he stopped working because 17 he was “hearing voices.”271 He also reported to Dr. Conger in June 2011 (as part of his claim for 18 California disability) that he “stopped working” because of “severe depression – substance abuse 19 problem – back pain” and claimed to hear voices.272 He similarly testified at the ALJ hearing in 20 October 2013 that he stopped working because he “started hearing voices and started being very 21 depressed” and was fired for being “AWOL” after he was arrested and jailed for public 22 intoxication and missed work.273 The ALJ makes a point of noting that Mr. Wilkerson had reported to his social worker that he 23 24 270 25 26 AR 25; see also Summary-Judgment Motion – ECF No. 23 at 17 (noting that Mr. Wilkerson’s testimony was actually that he could no longer work as a semi-truck driver — something he had done in the past — because he was blind in his left eye); AR 39. 271 AR 40, 563. 27 272 AR 526, 528. 28 273 AR 40–41. ORDER – No. 16-cv-02757-LB 39 1 was “laid off in 2010”274 presumably to show that it was inconsistent with his actually having been 2 fired. Given these circumstances and reviewing the record as a whole, the court finds that this 3 discrepancy (to the extent that it is can be characterized as such) is at most a minor and collateral 4 inconsistency and is not a clear and convincing basis for rejecting his testimony regarding the 5 severity of his impairments.275 See Haulot, 290 F. App’x at 55. Second, the ALJ noted an inconsistency between Mr. Wilkerson’s alleged physical disability 6 7 due, in part, to his acute glaucoma and limited vision problems in his left eye and Mr. Wilkerson’s 8 undertaking a physical on May 2, 2012, for “DMV form completion,” and his acknowledgement 9 during his testimony before the ALJ that he currently has his Class A commercial drivers’ license.276 The ALJ also noted that Mr. Wilkerson’s longtime friend, Mr. Ivery, reported that Mr. 11 United States District Court Northern District of California 10 Wilkerson spent a lot of time reading.277 The ALJ did not, however, note the uncontested findings 12 of Mr. Wilkerson’s severe visual-acuity loss in his left eye.278 Mr. Wilkerson’s May 2012 physical 13 exam for DMV purposes and his testimony in October 2013 confirming his commercial Class A 14 license status do raise questions both about the severity of his vision impairment and his 15 underlying overall disability. Third, the ALJ also identified several purported inconsistencies, such as Mr. Wilkerson’s 16 17 alleged lower-back impairments and his indication in February 2012 that he enjoyed riding his 18 bike and was riding it in April 2013 (before being struck by a car).279 Although it is possible that 19 his ability to ride a bike is not inhibited by his lower-back infirmities that otherwise prevent him 20 from working, it does arguably call into question the veracity of the other physical limitations that 21 he asserted during his testimony before the ALJ (such as his claim that he could only sit for 20 22 minutes at a time or stand only for 10 to 15 minutes without his leg going numb).280 23 274 24 25 26 AR 609. 275 AR 25, 38. 276 AR 24–25, 39–40, 578. 277 AR 25, 271. 278 27 AR 597. 279 AR 562, 650–53. 28 280 AR 44–45. ORDER – No. 16-cv-02757-LB 40 Finally, as part of the court’s overall review of the record, it appears that there are several 1 2 notable inconsistencies that the ALJ did not cite in her review of this matter. They relate to various 3 treatment notes generated after Mr. Wilkerson’s bike accident in April 2013, when Mr. Wilkerson 4 (at his lawyer’s suggestion)281 went for physical therapy at the Dancy Chiropractic Group.282 5 Those notes reflect that Mr. Wilkerson was working during the course of his treatment throughout 6 May 2013, and as such, appear inconsistent with his claim and testimony before the ALJ that he 7 had not worked since 2010.283 If these work activities constitute “substantial gainful activities,” a 8 finding of disability would be precluded under step one of the five-step evaluation process based 9 on this work activity.284 For example, the May 1, 2013, treatment notes from the chiropractor state that “[Mr. 10 United States District Court Northern District of California 11 Wilkerson] reports that his position requires physical work/ a lot of bending, lifting, stooping and 12 sitting.”285 The treatment note then states that he “reports of an increase in low back pain at the 13 end of the day.”286 The May 3rd treatment notes state that Mr. Wilkerson again reports “an 14 increase in lumbar pain associated with prolonged standing and heavy lifting” and that he had 15 “been placed on a light duty assignment while at work” and that “[h]e is precluded from lifting 16 anything over 25 pounds without assistance.”287 The May 8th treatment notes state that Mr. Wilkerson also reported “an increase in lumbar 17 18 pain at the end of the day [because] his position requires excessive bending, stooping and 19 standing.”288 He denied “taking over the counter pain medication.”289 20 281 21 AR 650 (follow-up treatment notes from hospital that “[Mr. Wilkerson] is seeing a chiropractor per his lawyer”). 22 282 AR 700–13. 283 AR 38 (Mr. Wilkerson claiming that his last job was with Caltrans ending in 2010). 284 See AR 17. 23 24 25 285 AR 705 (these treatment notes do not specifically identify the type of work or the name of his employer). 286 Id. 26 287 AR 704. 27 288 Id. 289 28 Id. (the context for this observation is unclear, but to the extent that it is accurate, it supports a finding that Mr. Wilkerson was not following the treatment regime prescribed by his treating ORDER – No. 16-cv-02757-LB 41 At his May 13th appointment, Mr. Wilkerson stated he is “performing activities which would 1 2 aggravate his condition,” but that “prolong[ed] sitting, standing, stooping and bending are required 3 of his position.”290 4 The May 17th treatment notes state that “Mr. Wilkerson is frustrated with aggravating his 5 condition with the activities he is required to perform while at work. He reports that bending and 6 lifting are part of the position’s requirements. Mr. Wilkerson reports that he can’t afford to take 7 any time off from work. Yet, he reports that he is careful when he is required to perform any 8 activity which would aggravate his condition.”291 After several further treatment sessions, Mr. Wilkerson reported “an overall improvement in 9 his thoracic spine” and “denie[d] any radiating sensations from his lumbar spine to his lower 11 United States District Court Northern District of California 10 extremities.”292 His final evaluation report on May 29, 2013 noted that he had “no motor or 12 sensory deficit,” could walk “with a normal gait and [ ] without the assistance of any walking 13 device,” could get on and off the table without help, and had normal muscle strength.293 The report 14 concludes that his “prognosis is good.”294 15 The treatment notes do not identify Mr. Wilkerson’s employer or the type of job position he 16 held. In an earlier separate instance dating back to December 2011, Mr. Wilkerson was treated for 17 back pain complaints.295 At that visit, Mr. Wilkerson asked for “a work note” from his treatment 18 provider.296 Again, given his testimony and assertion that he has not worked since 2010, the 19 request in December 2011 appears to be inconsistent with those assertions. Given the “work” nature of these inconsistencies, these various treatment notes call into 20 21 question not only the veracity of Mr. Wilkerson’s testimony but also the legitimacy of his 22 23 physicians – see AR 651–52). 290 AR 703. 24 291 AR 702. 25 292 Id. 293 AR 712–13. 294 AR 713. 27 295 AR 537 28 296 Id. 26 ORDER – No. 16-cv-02757-LB 42 1 disability claim. 2 Moreover, it appears that Mr. Wilkerson has not been consistent in reporting his criminal 3 history either. As part of his examination in February 2012 with Dr. Hardey at the request of the 4 State agency, Dr. Hardey specifically noted that Mr. Wilkerson “denied any felony or 5 misdemeanor convictions.”297 In November 2012, as part of his examination with Dr. Khoi, again 6 at the request of the State agency, Mr. Wilkerson reported not having any “legal history.”298 In 7 May 2013, however, Mr. Wilkerson reported that he had a 15-year history of substance abuse that 8 included incarceration for drug-related crimes (from 1997 to 2000 and parole until 2002).299 In sum, given these apparent inconsistencies, the court finds that the appropriate action is to 9 10 remand the case to the ALJ to consider these matters. United States District Court Northern District of California 11 3.2.2 12 Mr. Ivery The ALJ did not give distinct reasons for rejecting the statements that Mr. Ivery made in his 13 14 third-party function report. Instead, she incorporated by reference the reasons for rejecting Mr. 15 Wilkerson’s testimony.300 Mr. Wilkerson contends the ALJ erred because she did not give 16 specific, germane reasons for rejecting Mr. Ivery’s statements.301 The ALJ is required to consider “other source” testimony and evidence from a layperson. 17 18 Ghanim v. Colvin, 763 F.3d 1154, 1161 (9th Cir. 2014); Molina, 674 F.3d at 1111; Bruce v. 19 Astrue, 557 F.3d 1113, 1115 (9th Cir. 2009) (“In determining whether a claimant is disabled, an 20 ALJ must consider lay witness testimony concerning a claimant’s ability to work”) (internal 21 quotation marks and citation omitted). “Descriptions by friends and family members in a position 22 to observe a claimant’s symptoms and daily activities have routinely been treated as competent 23 evidence.” Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987). It is competent evidence and 24 297 AR 563. 298 AR 601. 299 AR 635. 27 300 AR 24. 28 301 Summary-Judgment Motion – ECF No. 23 at 16–17. 25 26 ORDER – No. 16-cv-02757-LB 43
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