Wright v. Berryhill, No. 3:2017cv01476 - Document 30 (N.D. Cal. 2018)

Court Description: ORDER granting 28 Plaintiff's Motion Summary-Judgment Motion, Denying Defendant's Cross-Motion, and Remanding for Further Proceedings. (Beeler, Laurel) (Filed on 6/25/2018)
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Wright v. Berryhill Doc. 30 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 RANDELL WRIGHT, 12 Plaintiff, Case No. 17-cv-01476-LB ORDER GRANTING PLAINTIFF’S SUMMARY-JUDGMENT MOTION AND DENYING DEFENDANT’S CROSS-MOTION v. 13 14 NANCY A. BERRYHILL, Defendant. 15 Re: ECF Nos. 28, 29 16 17 INTRODUCTION Plaintiff Randell Wright seeks judicial review of a final decision by the Commissioner of the 18 19 Social Security Administration denying his claim for disability benefits under Title II and Title 20 XVI of the Social Security Act.1 He moved for summary judgment;2 the Commissioner opposed 21 the motion and filed a cross-motion.3 Under Civil Local Rule 16-5, the matter is submitted for 22 decision by this court without oral argument. All parties consented to magistrate-judge 23 24 25 26 27 28 1 Compl. ECF No. 1 at 1. 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. 2 Summary-Judgment Motion – ECF No. 28. 3 Cross-Motion – ECF No. 29. ORDER – No. 17-cv-01476-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. 3 4 5 STATEMENT 1. Procedural History 6 On April 11, 2012, Mr. Wright, then age 50, filed claims for Social- Security disability 7 insurance (“SSDI”) benefits under Title II of the Social Security Act and supplemental security 8 income (“SSI”) benefits under Title XVI, alleging degenerative-disc disease, pinched nerves, 9 sciatica, and a back injury5 and submitting medical records documenting his obesity and mentalhealth treatments.6 He alleged an onset date of February 24, 2011 and met the insured status 11 United States District Court Northern District of California 10 requirements through December 31, 2011.7 The Commissioner denied his SSDI and SSI claims 12 initially and on reconsideration.8 On November 6, 2013, Mr. Wright timely requested a hearing.9 13 On May 29, 2015, Administrative Law Judge John Heyer (the “ALJ”) held a hearing.10 14 Attorney Eva Chan represented Mr. Wright.11 The ALJ heard testimony from Mr. Wright and 15 vocational expert Roxane Minkus.12 The ALJ issued an unfavorable decision on August 5, 2015.13 16 The Appeals Council denied Mr. Wright’s request for review.14 Mr. Wright timely filed this action 17 18 4 Consent Forms ECF Nos. 11, 15. 5 Administrative Record (“AR”) 228–29, 233. Mr. Wright’s date of birth is October 22, 1961. AR 228. 6 21 AR 4. 7 AR 14, 228. 22 8 19 20 23 24 AR 85 (determinations on SSI claim); AR 84 (determinations on SSDI claim); AR 138–39 (request for reconsideration); AR 119 (reconsideration determinations on SSDI claim); AR 118 (reconsideration determination on SSI claim). 9 AR 158–59. 10 25 AR 29–54. 11 AR 29. 26 12 27 28 Id. 13 AR 9–28. 14 AR 1–3. ORDER – No. 17-cv-01476-LB 2 1 on March 18, 2017 and moved for summary judgment.15 The Commissioner opposed the motion 2 and filed a cross-motion for summary judgment.16 3 4 2. Summary of Record and Administrative Findings 5 2.1 6 Medical Records 2.1.1 John D. Warbritton II, M.D. — Examining On January 11, 2012, Mr. Wright saw Dr. Warbritton (an orthopedist) as part of an evaluation 7 for a workers-compensation claim related to injuries he sustained in a motor-vehicle accident.17 9 Mr. Wright complained of a constant sharp, stabbing, shooting pain in his neck, lower back, and 10 right shoulder.18 He was not taking any medications at the time.19 Dr. Warbritton reviewed Mr. 11 United States District Court Northern District of California 8 Wright’s medical records and performed a physical examination.20 Mr. Wright was 6’ 1.5” tall, 12 weighed over 300 pounds, and needed to use a cane.21 Dr. Warbritton noted limited movement in 13 Mr. Wright’s neck, lateral bending, true-lumbar spine-flexation angle, extension from the neural 14 position, and lateral bending.22 Movement in his neck and back was associated with slight to 15 moderate pain.23 His neck had a “slight to moderate cervical paraspinal muscle spasm,” and his 16 lower back had a “moderate lumbar paraspinal muscle spasm.”24 Dr. Warbritton diagnosed Mr. 17 Wright with the following: (1) lumbar strain, moderate, chronic; (2) degenerative-disc disease, 18 lumbar spine, slight to moderate; (3) bilateral L5 and S1 radiculopathies; (4) cervical strain, slight 19 20 15 Compl. – ECF No. 1; Summary-Judgment Motion – ECF No. 28. 16 22 Cross-Motion ECF No. 29. 17 AR 412. 23 18 AR 414. 19 AR 415. 20 25 AR 419–422. 21 AR 419. 26 22 AR 419–420. 21 24 27 28 23 24 Id. AR 420. ORDER – No. 17-cv-01476-LB 3 1 to moderate, chronic; (5) cervical spondylosis, slight; (6) right C6 and C7 radiculopathies; and (7) 2 myofascial-pain syndrome.25 In the impairment assessment, Dr. Warbritton concluded that Mr. Wright “demonstrates 3 impairment referable to the cervical spine that most clearly responds to a DRE Cervical Category 5 II, contemplating a fifteen to eighteen percent impairment of the whole person.”26 He “experiences 6 a substantial compromise with regard to his ability to perform a wide range of activities of daily 7 living or work activities, as confirmed based upon the completion of a two page ‘Questions 8 Concerning Activities of Daily Living’ form in my office.”27 Nonetheless, Dr. Warbritton 9 provided Mr. Wright with a “work release” because he “strongly desires to attempt to return to his 10 usual and customary job duties.”28 He recommended strengthening and stretching exercises, visits 11 United States District Court Northern District of California 4 with a personal trainer or physical therapist, and ongoing use of multiple medications, including 12 anti-inflammatory agents, muscle relaxants, and narcotic analgesics.29 13 2.1.2 Albert V. Retodo, M.D. — Examining Following a referral from Dr. Warbritton, on January 11, 2012, Mr. Wright saw Dr. Retodo 14 15 (who is board certified in physical medicine, rehabilitation and neuromuscular and 16 electrodiagnostic medicine) for his severe neck and back pain.30 Dr. Retodo performed motor- 17 nerve, sensory-nerve, F-Wave, and EMG studies.31 He concluded that these studies were 18 “abnormal.”32 19 20 21 22 25 AR 421. 23 26 AR 422. 27 Id. (emphasis in original). 28 25 AR 425. 29 AR 426–27. 26 30 AR 403. 31 AR 403–05. 32 AR 406. 24 27 28 ORDER – No. 17-cv-01476-LB 4 2.1.3 1 2 3 4 5 6 7 8 Mr. Wright attended appointments at South of Market Health Center from April 29, 2009 to September 19, 2012.33 The progress notes documented that he weighed 331 pounds on February 25, 2011 and 365 pounds on October 3, 2012.34 The progress note from October 3, 2012 stated that Mr. Wright was going through “mental difficulties.”35 The progress notes included regular physical assessments, such as blood pressure readings, and notes about lab tests.36 He received medication refills, although the notes are difficult to read and do not clearly show the medications prescribed.37 2.1.4 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 South of Market Health Center — Treating San Francisco General Hospital 2012 — Treating On November 5, 2012, Mr. Wright was admitted to San Francisco General Hospital Psychiatric Emergency Services department after he used crack cocaine in a purported suicide attempt.38 He stated to the admitting nurse that he had been clean and sober for 10 years before this relapse.39 He stated that he “fell off the wagon”: drank alcohol, smoked marijuana, and then “decided to end it all by heart attack” and smoked crack cocaine.40 He was “depressed and angry” and had been “depressed for several months.”41 He had never attempted suicide before.42 He stated he had AH [auditory hallucinations] occasionally, but usually was not bothered by the voices.43 The nurse noted: “Believes they are unreal; Stated voice content doesn’t bother him; sometimes 18 19 33 AR 437–475. 34 AR 438, 442. 35 22 AR 438. 36 AR 437–475. 23 37 AR 447. 38 AR 524. 39 25 AR 527. 40 AR 524. 26 41 AR 524–25. 42 AR 524. 20 21 24 27 28 43 Id. ORDER – No. 17-cv-01476-LB 5 1 has long conversations with the voices.”44 He reported experiencing chronic lower-back and neck 2 pain.45 He reported that he was prescribed and was taking Vicodin.46 Eric Bender, M.D. examined Mr. Wright and diagnosed him with the following: a mood 3 4 disorder; cocaine, alcohol, and cannabis abuse; a personality disorder not otherwise specified 5 (“NOS”); obesity; hypertension; lower-extremity edema; chest pain; and chronic back pain.47 He 6 assigned Mr. Wright a Global Assessment of Functioning (“GAF”) score of 38.48 Sebastien 7 Fromont, M.D. completed a Physician Summary that included the same diagnoses and GAF 8 score.49 9 2.1.5 Douglas Peter-Frank, PhD — Treating Dr. Peter-Frank completed a psychiatric evaluation of Mr. Wright on November 29, 2012.50 11 United States District Court Northern District of California 10 He noted that Mr. Wright “had an uncomfortable looking posture while sitting” but “ambulated 12 without assistance.”51 He found that Mr. Wright “to be a reliable historian.”52 Mr. Wright stated 13 that he “had been depressed somewhat before” his car accident and “has been much more 14 depressed since that time since he has been unable to work” and [was] going through a divorce.53 15 He stated that “in the last six months, he has been hearing voices telling him to hurt himself and 16 people talking about him and wanting to get him.”54 He stated that he had been “outgoing and 17 18 44 19 AR 525. 45 AR 527. 20 46 AR 528. 21 22 23 24 47 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.’”). 49 AR 529. 50 AR 532. 25 51 26 52 27 28 Id. 48 Id. Id. 53 AR 532–33. 54 AR 533. ORDER – No. 17-cv-01476-LB 6 1 carefree and more recently has become an introvert and increasingly angry.”55 He had trouble 2 sleeping and a loss of appetite.56 He reported that he had attempted suicide by taking crack cocaine 3 four weeks ago and that he had intentionally hurt himself by cutting his wrists five months ago.57 4 He participated in outpatient therapy at SF General since the crack-cocaine overdose.58 He 5 reported that he was clean and sober for ten years before attempting suicide using crack cocaine.59 6 He stated he could not clean or do yard work.60 He could not stand for long enough to cook.61 He 7 needed help dressing because he could not put on his socks and shoes.62 He was able to manage 8 funds on his own.63 He enjoyed playing chess, pool, and dominos and going to the ocean “to feel 9 better.”64 He had “limited” memory and insight, a “moderate” fund of knowledge and information, and 10 United States District Court Northern District of California 11 “good” calculations, concentration, abstract thinking, and judgment.65 As to effort, persistence, 12 and pace, he “put forth good effort during the mental status exam,” “was moderately persistent and 13 worked at a variable pace, sometimes moderate, sometimes slow,” and “did not correct his 14 errors.”66 15 16 17 18 19 55 20 56 21 57 58 22 59 23 60 24 61 62 25 63 26 64 27 28 Id. Id. Id. Id. AR 534. Id. Id. Id. Id. Id. 65 AR 535–36. 66 AR 536. ORDER – No. 17-cv-01476-LB 7 Dr. Peter-Frank diagnosed Mr. Wright with “major depressive disorder with psychotic 1 2 features” and “cocaine dependence in remission.”67 He assigned Mr. Wright a GAF score of 55.68 3 Dr. Peter-Frank provided the following prognosis: Mr. Wright’s mental health condition appears to have stemmed from his accident in 2011 or to be exacerbated by his medical condition and unemployment that followed his accident. His condition may abate on its own within a one year period though he would likely benefit from continuing mental health treatment and possibly starting medications. His overall prognosis is fair.69 4 5 6 7 8 9 10 United States District Court Northern District of California 11 12 13 14 He concluded that Mr. Wright was “unimpaired” with respect to his ability to perform simple and repetitive tasks, perform detailed and complex tasks, accept instructions from supervisors, interact with co-workers and the public, perform work activities on a consistent basis without special or additional instructions, and deal with the usual stress encountered in the workplace.70 With respect to his ability to maintain regular attendance in the workplace and complete a normal workday and workweek without interruptions of a psychotic condition, Dr. Peter-Frank concluded that Mr. Wright was “mildly impaired due to the episodic nature of depression.”71 2.1.6 15 16 17 18 Sunset Mental Health Center — Treating Mr. Wright received care at Sunset Mental Health Center from November 2012 to February 2013.72 Yim Chan, M.D. first assessed on November 19, 2012.73 The assessment of Mr. Wright’s “History of Present Illness” states: 51 [year old] divorced [African American] male with no prior psychiatric history …. [Patient] states that he is feeling depressed and anxious since he started using crack cocaine one month ago. He reports celebrating the Giants win and start to drink alcohol mixed with marijuana and then crack cocaine. [Patient] reports that he is undergoing a divorce after a marriage of two years. He reports problems with 19 20 21 22 23 24 67 68 Id. Id. 69 25 AR 536–37. 70 AR 537. 26 71 27 28 Id. 72 AR 539, 887. 73 AR 539. ORDER – No. 17-cv-01476-LB 8 sleep but his appetite is good. He denies any other symptoms for now and reports no use of substance for past month.74 1 2 3 The assessment states that he “now presents with depression and physical disability” and that he 4 consented “for trial of antidepressants.”75 Dr. Chan diagnosed him with Major Depressive 5 Disorder Single Episode Moderate.76 Dr. Chan assigned Mr. Wright a Current GAF rating of 55 6 (“moderate symptoms or difficulty in functioning”), a Highest Level Last 12 Months GAF rating 7 of 61 (“mild symptoms or difficulty in functioning”), and a Lowest Level Last 12 Months GAF 8 rating of 51 (“moderate symptoms or difficulty in functioning”).77 He prescribed Mr. Wright 20 9 mg of Celexa per evening and planned to follow up in one month to evaluate Mr. Wright’s 10 response to the medication.78 Mr. Wright saw Raul Reyes, R.N. from November 30, 2012 to February 12, 2013. During his United States District Court Northern District of California 11 12 intake evaluation, Nurse Reyes noted that Mr. Wright presented with depression.79 Mr. Wright 13 was staying in an emergency hotel bed, was destitute, and was trying to find a source of income.80 14 He “reported being unable to work because of knee and back pain due to [a motor vehicle 15 accident] sustained in 2011.”81 Nurse Reyes diagnosed him with “depressive disorder.”82 Mr. 16 Wright saw Nurse Reyes for follow-up appointments. He denied suicidal ideation or substance 17 abuse.83 He was “using a cane.”84 Nurse Reyes noted that he “remains depressed . . . .”85 On 18 19 74 20 75 AR 542. 76 AR 555. 77 22 AR 555. 78 AR 542, 557. 23 79 AR 543. 21 24 80 81 25 82 26 83 27 28 Id. Id. Id. Id. Id. 84 AR 550. 85 AR 544. ORDER – No. 17-cv-01476-LB 9 1 January 8, 2013, Mr. Wright missed an appointment with Nurse Reyes.86 On February 12, 2013, 2 Nurse Reyes completed a discharge diagnosis and diagnosed Mr. Wright with “major depressive 3 disorder single episode moderate.”87 Nurse Reyes’s progress notes also documented that Mr. 4 Wright was homeless and lived at temporary hotels and shelters, and the notes discussed Mr. 5 Wright’s attempts to stabilize his housing situation.88 6 2.1.7 Ritter Health Center — Treating Ritter Health Center treated Mr. Wright from February 6, 2013 to June 25, 2013. During his 7 8 first visit on February 6, 2013 with Cia Byrnes, Nurse Practitioner (“N.P.”) he reported that he 9 was following up because he had been told at the South of Market Clinic that he was hypertensive and pre-diabetic.89 He wanted to lose weight and return to work as a driver.90 He weighed 340 11 United States District Court Northern District of California 10 pounds and had a Body Mass Index (“BMI”) of 45.06.91 He reported chronic back pain.92 He was 12 not prescribed any additional medications.93 He saw N.P. Byrnes for follow-up appointments. He 13 continued to have “excessive back pain.”94 She prescribed 250 mg of Soma four times daily.95 On June 19, 2013, he saw Carmen Carrouche, R.N. for an initial evaluation of schizophrenia 14 15 and/or bipolar disorder.96 He complained of depression and chronic pain and said that he heard 16 voices.97 Nurse Carrouche noted that Mr. Wright “has a currently undetermined bipolar type and 17 18 19 86 AR 553. 20 87 AR 887. 88 AR 546–552. 89 AR 585. 21 22 90 23 91 24 92 93 Id. Id. Id. Id. 25 94 AR 581. 26 95 AR 582. 96 AR 567. 27 28 97 Id. ORDER – No. 17-cv-01476-LB 10 1 [h]as three to four swings from mania to depression in a course of a year.98 She prescribed 2 Bupropion HCI and Ziprasidone.99 On June 25, 2013, Mr. Wright saw Nurse Carrouche for a 3 drop-in visit and complained of side effects from his medications, including increased voices, 4 agitations, and irritability.100 She took him off bupropion but continued him on 20 mg of 5 Ziprasidone.101 She advised him to come in again if his agitation continued.102 6 2.1.8 Dr. Zheutlin, Dr. Brode, Dr. Pham, & Dr. Pereyra — Consulting A disability-determination-explanation report for Mr. Wright’s SSDI included the physical and 7 8 mental assessments of various state agency consultants who reviewed Mr. Wright’s medical 9 records.103 On November 14, 2012, J. Zheutlin, M.D. found that Mr. Wright was capable of performing “medium” “unskilled” work.104 On January 16, 2013, Tawnya Brode, PsyD found that 11 United States District Court Northern District of California 10 Mr. Wright had “moderate” restrictions of daily living, difficulties in maintaining social 12 functioning, and difficulties in maintaining concentration, persistence, or pace.105 Her notes state 13 that she “agree[d] that simple tasks [are] more appropriate” and she “recommend[ed] some social 14 considerations based on [claimant’s] [history] and current social concerns.”106 The disability-determination-explanation report for Mr. Wright’s SSI application also included 15 16 state-agency-consultant assessments.107 It included Dr. Zheutlin’s November 14, 2012 report and 17 an additional residual-functional-capacity (“RFC”) assessment that stated that Mr. Wright had the 18 following limitations: occasionally lift and/or carry 50 pounds, frequently lift/and or carry 25 19 pounds, stand and/or walk about 6 hours, sit for about 6 hours, push and/or pull unlimited (other 20 21 98 99 Id. AR 568. 22 100 AR 564. 23 101 AR 565. 102 AR 565. 103 25 AR 55–67. 104 AR 66. 26 105 AR 63. 106 AR 64. 107 AR 68–83. 24 27 28 ORDER – No. 17-cv-01476-LB 11 than limits for lift and carry), frequently climb ramps/stairs, occasionally climb 2 ladders/ropes/scaffolds, balance frequently, stoop frequently, kneel frequently, crouch frequently, 3 and crawl frequently.108 The report also contained Dr. Brode’s January 16, 2013 finding that Mr. 4 Wright had “moderate” restrictions of daily living, difficulties in maintaining social functioning, 5 and difficulties in maintaining concentration, persistence, or pace.109 It included additional 6 assessments from Dr. Brode that Mr. Wright was “able to understand and remember simple 7 routines and instructions,” had “sustained concentration and persistence limitations,” was “able to 8 maintain/sustain a workday/workweek schedule in a low demand setting,” was “able to be 9 supervised, able to interact with coworkers, and able to handle public contact in a superficial 10 manner,” was “able to adapt to typical stress and simple changes,” and was not significantly 11 United States District Court Northern District of California 1 limited in his ability to “carry out very short and simple instructions,” “sustain an ordinary routine 12 without special supervision,” or “make simple work-related decisions.”110 13 The disability-determination-explanation report on reconsideration of Mr. Wright’s SSDI 14 claim also included state-agency-consultant physical-and-mental assessments.111 On August 30, 15 2013, H. Pham, M.D. adjusted Mr. Wright’s physical limitations as follows: occasionally lift 16 and/or carry 20 pounds; frequently lift/and or carry 10 pounds; occasionally climb ramps/stairs; 17 never climb ladders/ropes/scaffold; and “environmental limitations.”112 On September 11, 2013, 18 Rosalia Pereyra, PsyD reviewed Mr. Wright’s mental-health treatment and concluded: “Prior 19 assessment is affirmed as written.”113 The disability-determination-explanation report for Mr. Wright’s SSI claim on reconsideration 20 21 also includes state-agency-consultant assessments.114 On September 11, 2013, Dr. Pereyra 22 108 AR 78–79. 109 AR 76. 110 25 AR 79–80. 111 AR 86–100. 26 112 AR 96–98. 113 AR 93. 114 AR 101–117. 23 24 27 28 ORDER – No. 17-cv-01476-LB 12 1 completed an RFC assessment and concluded that Mr. Wright was capable of performing “semi- 2 skilled” “light” work.115 She found, however, that Mr. Wright had only “mild” restrictions in 3 activities of daily living and maintaining social functioning and had difficulties in maintaining 4 concentration, persistence, or pace.116 5 2.1.9 San Francisco General Hospital 2013 — Treating Mr. Wright was admitted to the San Francisco General Hospital Psychiatric Emergency 6 7 Services department for a second time on August 2, 2013 after he tried to commit suicide by 8 overdosing on over-the-counter sleeping medications.117 After the hospital admitted Mr. Wright, 9 Pamela Swedlow, M.D. evaluated him. He reported that he tried to kill himself after his car was impounded.118 He had been living in his car and was using his car to make money by giving 11 United States District Court Northern District of California 10 people rides.119 Dr. Swedlow diagnosed him with a Mood Disorder, Cocaine Abuse, Alcohol 12 Abuse, Cannabis Abuse, and obesity.120 13 Sharon Morrow, R.N. also evaluated Mr. Wright and diagnosed him with Bipolar Disorder I, 14 Most Recent Episode Depressed, With Psychotic Features, and obesity.121 Her assessment noted 15 several anxiety symptoms: “excessive uncontrolled worry, [a]pprehension, restlessness, sleep 16 disturbance, [i]nterpersonal anxiety.” 122 Attending resident Jessica Ross, M.D. completed a Psychiatry Attending/Resident Progress 17 18 note, a mental-status exam, and a discharge evaluation.123 Mr. Wright denied any paranoia or 19 delusions.124 Dr. Ross diagnosed him with Psychosis NOS and depression with suicidal 20 115 AR 116–117. 116 22 AR 110. 117 AR 619–21, 677. 23 118 AR 622. 21 24 119 Id. 120 25 AR 620. 121 AR 625. 26 122 AR 623. 123 AR 631, 673. 124 AR 632–635. 27 28 ORDER – No. 17-cv-01476-LB 13 1 ideation.125 Dr. Ross prescribed Abilify for auditory hallucinations and depression, Celexa for 2 depression, Trazadone for sleep, and Vicodin for pain.126 His Abilify prescription was increased to 3 30 mg daily for “psychotic symptoms including command auditory hallucinations.”127 He 4 gradually improved with respect to suicidal ideation and mood and reported a reduction in 5 auditory hallucinations with Abilify.128 The hospital discharged Mr. Wright on August 9, 2013.129 2.1.10 La Posada Crisis Residential Program — Treating 6 Mr. Wright received care from August 9, 2013 to August 27, 2013 at the La Posada Crisis 7 8 Residential Program.130 Jessica Martinez (occupation and degree not specified) completed a 9 clinical assessment.131 Her notes stated that Mr. Wright arrived at the residential-treatment program “from unit 7A at San Francisco General Hospital.”132 When he arrived, he disclosed only 11 United States District Court Northern District of California 10 that “I fucked up, tried to kill myself, it didn’t work.”133 The assessment notes also stated that Mr. 12 Wright “hears voices which tell him to ‘get out of here’ and that he is not worthy.”134 Ms. 13 Martinez assigned Mr. Wright a GAF score of 35.135 While in the program, Mr. Wright worked on developing a living-arrangement and treatment 14 15 plan.136 The closing summary stated: “Staff explored client feelings of self-worth and productivity 16 to reduce symptoms of depression, including feelings of hopelessness, derogatory and command 17 auditory hallucinations, and self-destructive behaviors that impair client’s motivation to seek and 18 19 125 20 126 AR 632. Id. 127 AR 672. 128 22 AR 672–73. 129 AR 671 (Psychiatric Transfer Summary: Admission date 8/3/2013; Discharge date 8/9/2013). 23 130 AR 599–614 131 AR 601–604. 132 AR 601. 21 24 25 133 26 134 27 28 Id. Id. 135 AR 603. 136 AR 607–612. ORDER – No. 17-cv-01476-LB 14 1 maintain stable living arrangements.”137 La Posada discharged him on August 27, 2013, with a 2 plan to stay at the Salvation Army Shelter and with a 3-day supply of “psychotropic” 3 medications.138 4 2.1.11 Mission Mental Health — Treating 5 Mr. Wright received care at Mission Mental Health from December 2013 to February 2016. 6 Mr. Wright saw Israel Katz, M.D. (a psychiatrist) for mental-health treatment. Dr. Katz completed 7 a psychiatric evaluation on February 19, 2014.139 Mr. Wright reported a history of depressive and 8 psychotic symptoms since age seven and auditory hallucinations since childhood.140 He reported 9 that he had not had auditory hallucinations for several weeks.141 Dr. Katz diagnosed Mr. Wright with “Schizoaffective Disorder, Depressed Type; Alcohol and Cocaine Dependence in Remission 11 United States District Court Northern District of California 10 for 8 Months, In Controlled Environment; Hx Spine Fracture; Hx Arthritis of Back, Hands, Knees; 12 Financial and Social Stressors.”142 Dr. Katz noted that Mr. Wright “did not seem to meet [the] 13 criteria for psychopathic personality disorder.”143 He saw him again on March 5, 2014, and Mr. 14 Wright reported “ongoing [auditory hallucinations] that at times tell him he is useless and 15 worthless.”144 On March 17, 2014, he denied feeling tired or sedated but stated that he “continues 16 to hear voices.”145 On April 7, 2014, he reported that he felt “a bit less depressed, and that he has 17 been hearing voices less often.”146 On May 5, 2015, he had been out of medication for one to two 18 weeks and reported “ongoing depression and [auditory hallucinations] but states that these have 19 20 21 137 138 AR 599. Id. 22 139 AR 850–51. 23 140 AR 850. 24 141 142 Id. AR 851. 25 143 26 144 AR 854. 145 AR 856. 146 AR 859. 27 28 Id. ORDER – No. 17-cv-01476-LB 15 1 decreased.”147 He missed several appointments.148 On August 4, 2014, Dr. Katz called Mr. Wright, 2 and Mr. Wright said it was difficult for him to make his appointments due to headaches and 3 pain.149 Dr. Katz called Mr. Wright on February 23, 2015, and Mr. Wright stated that he still had 4 auditory hallucinations.150 Dr. Katz told him that he needed to show up if he wanted to continue to 5 be prescribed medications.151 Mr. Wright saw Dr. Katz for several more appointments through 6 September 2015.152 His last appointment with Dr. Katz was on September 2, 2015. Mr. Wright 7 reported that he had gone off his medication because he “felt overmedicated.”153 He reported 8 increased depression and having auditory hallucinations for four to five days telling him to kill 9 himself.154 Dr. Katz restarted him on Wellbutrin XL, Risperdal, and Hydroxyzine.155 Mr. Wright saw Jennifer Landivar, a licensed clinical-social worker at Mission Mental Health 10 United States District Court Northern District of California 11 from 2013 to 2016. She diagnosed him with Depressive Disorder Not Elsewhere Classified, 12 Observation for Other Suspected Mental Condition, Other Unspecified Nonorganic Psychosis, 13 Cocaine Abuse Unspecified, and Alcohol Abuse Unspecified.156 She helped him with housing 14 support, scheduling appointments, and getting medications refilled.157 She also documented his 15 mental-health status.158 In December 2015, he told Ms. Landivar that he did not want to meet with 16 17 18 19 147 AR 860. 20 148 AR 876, 881, 884. 149 AR 868. 21 150 22 151 23 152 24 153 154 Id. Id. AR 1142. Id. Id. 25 155 26 156 AR 845. 157 AR 1130, 1132–1137, 1140. 27 28 158 Id. Id. ORDER – No. 17-cv-01476-LB 16 1 Dr. Katz again because he “does not trust him,” and in February 2016, he again stated that he 2 “doesn’t want to see [Dr. Katz] anymore.”159 2.1.12 UCSF Medical Center — Treating 3 Mr. Wright saw several practitioners at UCSF Medical Center for regular appointments from 4 July 2014 through March 2016.160 He saw Amy Chen, M.D. as a primary-care physician for his 6 first appointment on July 22, 2014.161 He saw her primarily for back and knee pain.162 She noted a 7 diagnosis of depression.163 She discussed surgical and non-surgical treatment options for back and 8 knee pain, referred him to orthopedic surgery, and told him to begin physical therapy because he 9 had not tried it previously.164 She noted that his severe knee pain was likely exacerbated by his 10 weight.165 She saw him for multiple follow-up appointments.166 At an appointment in January 11 United States District Court Northern District of California 5 2015, she noted that “if knees still hurt then he’s going to get knee replacement.”167 In January 12 2015, she listed anxiety as an active problem and noted “Psychiatrist is prescribing psych meds, 13 advised to follow up with him and pt amenable to doing this.”168 Mr. Wright saw Sandra Kamholz Oza, M.D. at UCSF Medical Center on July 24, 2014 and 14 15 had follow-up appointments with her.169 She diagnosed him with depression and treated him for 16 knee and back pain and trouble with sleeping.170 17 18 19 159 AR 1151. 20 160 AR 719. 21 161 162 Id. Id. 22 163 23 164 AR 717, 722. 165 AR 718. 166 25 AR 752, 823. 167 AR 824. 26 168 AR 827. 169 AR 715, 719. 170 AR 717–18. 24 27 28 Id. ORDER – No. 17-cv-01476-LB 17 Mr. Wright saw David A. Besio, Registered Dietician (“R.D.”) for his obesity and weight 1 2 management.171 He suggested changes that Mr. Wright could make to his diet and suggested 3 walking for exercise and continuing physical therapy.172 Mr. Wright saw R.D. Besio for follow-up 4 appointments to monitor his diet and weight.173 Mr. Wright began physical therapy on August 13, 2014 and attended multiple physical-therapy 5 6 sessions from August 2014 to January 2015.174 He canceled an appointment in March 2015 7 “secondary to reports of extreme pain.”175 8 He received steroid injections for his knees and back in 2014 and 2015. 176 9 He saw Ana M. Padula, M.D. in December 2014 and January 2015 for worsening knee pain.177 10 She noted that he had had injections for knee pain and was awaiting more injections.178 He saw Aparajita Singh, M.D. for a new consultation for obesity on April 6, 2015.179 He was United States District Court Northern District of California 11 12 considering a surgical evaluation for gastric-bypass surgery.180 He weighed 353 pounds and had a 13 45.94 BMI.181 Dr. Singh noted that he had a history of obesity.182 Dr. Singh’s progress notes listed 14 an anxiety diagnosis in Mr. Wright’s past medical history.183 15 Mr. Wright was referred to Andrew Posselt, M.D. at UCSF Bariatric Surgery Center. 184 He 16 saw Dr. Posselt on April 14, 2015, and Dr. Posselt noted that he had “morbid obesity and obesity- 17 171 AR 908. 172 19 AR 739–40, 780–81. 173 AR 908. 20 174 AR 727, 732, 738, 740, 750, 761, 766. 175 AR 918. 176 22 AR 807, 808, 812, 822, 903. 177 AR 813. 23 178 AR 814. 179 AR 937. 18 21 24 180 Id. 25 181 AR 939. 26 182 AR 937. 27 28 183 184 Id. AR 945. ORDER – No. 17-cv-01476-LB 18 1 related comorbidities,” including diabetes, osteoarthritis (painful joints), and depression.185 He 2 weighed 358 pounds and had a BMI of 46.59.186 Dr. Posselt concluded that he satisfied the criteria 3 for bariatric surgery.187 Dr. Posselt’s notes listed an anxiety diagnosis in Mr. Wright’s past 4 medical history.188 5 Mr. Wright began seeing Cindy Lai, M.D. in April 2015 as a transfer case from Dr. Chen for 6 assistance completing the steps to undergo bariatric surgery.189 Her notes stated that he was seen 7 recently by “ortho spine who evaluated his films which are consistent with degenerative 8 disease.”190 He reported that his “pain is stable and he is happy with his current regimen.”191 Dr. 9 Lai noted that Mr. Wright’s “Depression/schizophrenia” was managed by Dr. Katz at Mission Mental Health and that Mr. Wright “is stable, but states that he is depressed. . . .”192 Mr. Wright 11 United States District Court Northern District of California 10 stated that “it is difficult that he is unable to work due to his medical problems.”193 12 Mr. Wright saw Gregory Summerville, M.D. from September to October 2015.194 Dr. 13 Summerville’s treatment notes stated that Mr. Wright presented with schizophrenia and back 14 pain.195 His notes stated that he was “[s]till having many positive symptoms of schizophrenia with 15 auditory hallucinations” and “[s]ome symptoms of depression, lack of pleasure.”196 Mr. Wright 16 reported that he had not taken his medication for depression and schizophrenia for the last two 17 18 19 185 AR 941–42. 20 186 AR 945. 21 187 Id. 188 22 AR 942. 189 AR 949. Bariatric surgery is a surgery performed on the stomach to induce weight loss. 23 190 AR 960. 24 191 192 Id. Id. 25 193 26 194 AR 1011, 1021. 195 AR 1002. 196 AR 1021. 27 28 Id. ORDER – No. 17-cv-01476-LB 19 1 months because it made him “all messed up,” clouded his judgment, and made him too sleepy.197 2 Mr. Wright reported hearing clusters of voices telling him to kill himself.198 Dr. Summerville 3 called Mr. Wright’s treating psychiatrist — Dr. Katz — and in a follow-up appointment noted that 4 Dr. Katz had changed Mr. Wright’s medication regimen.199 Mr. Wright reported to Dr. 5 Summerville, however, that on his new medication regimen, he did not have any change in 6 symptoms, he continued to hear clusters of voices, and the voices were no longer telling him to 7 kill himself.200 8 Dr. Summerville noted that Mr. Wright received spine injections “with 10% improvement in 9 symptoms.”201 Mr. Wright’s knee and back pain were still bothering him.202 Mr. Wright had not yet obtained a walker, but a prescription for a walker was provided to him.203 At a later 11 United States District Court Northern District of California 10 appointment, Dr. Summerville noted, “[f]our wheel walker and cane” related to knee pain.204 12 Mr. Wright saw Arjun Sinha, M.D. from January 2016 to March 2016 for follow-up 13 appointments and medication refills.205 She noted that he was using a walker and that he was 14 approved for an electric wheelchair.206 She documented a diagnosis of 15 depression/schizophrenia.207 She noted in January 2016 that Mr. Wright stopped taking his 16 medications, he did not like psychiatrist Dr. Katz, and he had not been able to get in touch with 17 him.208 Mr. Wright reported that his auditory hallucinations were “worse, they just chatter,” he 18 19 197 AR 987. 20 198 AR 1002. 199 AR 1002. 21 200 Id. 22 201 AR 1000. 23 202 AR 1002. 24 203 204 Id. Id. 25 205 AR 1037, 1045, 1057. 26 206 AR 1035, 1039. 207 AR 1043. 27 28 208 Id. ORDER – No. 17-cv-01476-LB 20 1 was having some visual hallucinations, and he was able to differentiate between hallucinations and 2 reality.209 Mr. Wright also reported that he was having more knee and back pain, despite going to 3 pool therapy and losing weight.210 Her last treatment note from March 1, 2016 stated that his 4 depression/schizophrenia was “not well controlled” but that he had no signs of “disorganized 5 thought, SI or HI.”211 6 2.2 7 Other Opinion Records212 2.2.1 Ralph Ortiz, D.C. — Treating On March 2, 2011, Mr. Wright saw Ralph Ortiz (a chiropractor) for pain and stiffness in his 9 neck and back related to the motor-vehicle accident described above.213 Mr. Ortiz performed x- 10 rays on Mr. Wright and concluded that he sustained “a whiplash injury resulting in a sprain and 11 United States District Court Northern District of California 8 strain of the cervical, thoracic and lumbosacral spine which was compounded with degenerative 12 joint disease of the cervical spine.”214 He concluded that Mr. Wright had “intervertebral disc 13 syndrome of the cervical spine.”215 Mr. Wright “experienced pain, spasms and stiffness to the 14 cervical, thoracic and lumbar spine and surrounding soft tissue with decreased range of motion to 15 these areas, as well as cervicocranial syndrome with headaches and occipital pain.”216 Mr. Wright 16 had “pain with sitting, walking and standing.”217 Dr. Ortiz prescribed pain medication.218 Dr. Ortiz 17 18 19 209 Id. 210 20 AR 1050. 211 AR 1056. 21 212 22 23 24 As discussed infra, in addition to the medical opinions of the “acceptable medical sources,” the ALJ must consider the opinions of other “medical sources who are not acceptable medical sources and [the testimony] from nonmedical sources.” See 20 C.F.R. § 416.927(f)(1). “Other sources” include nurse practitioners, chiropractors, physicians’ assistants, therapists, teachers, social workers, spouses and other non-medical sources. 20 C.F.R. § 404.1513(d). 213 AR 372. 214 AR 373. 25 215 26 216 27 28 Id. Id. 217 AR 374. 218 AR 372. ORDER – No. 17-cv-01476-LB 21 1 advised Mr. Wright to not work for one month.219 Mr. Wright did not return for further evaluation 2 because he did not want to run up a bill; nonetheless he was still in pain from the accident.220 2.2.2 3 Brian W. Crawford, D.C. — Treating 4 Mr. Wright saw Brain W. Crawford (a chiropractor) between June 6, 2011 and July 27, 5 2011.221 Mr. Wright reported that he had “moderate to severe low back pain radiating into both 6 legs with numbness and tingling, constant moderate to severe mid-back pain, constant moderate to 7 severe upper back pain, constant moderate to severe neck pain radiating into both arms, and 8 constant moderate bilateral knee pain with stiffness.”222 Dr. Crawford diagnosed Mr. Wright with 9 “disc displacement w/o MYE [Myelopathy],” “cervicobrachial syndrome,” “pain in thoracic spine,” “lumbago,” “inflammation of SI joint,” and “subluxation of SI [sacroiliac] joint.”223 Mr. 11 United States District Court Northern District of California 10 Crawford found Mr. Wright incapacitated from work due to “severe neck and back pain” from 12 June 6, 2011 to July 12, 2011 and July 20, 2011 to August 3, 2011.224 Mr. Crawford recommended 13 a series of chiropractic treatments.225 On August 2, 2011, Mr. Crawford issued a report stating that 14 Mr. Wright was able to return to work with the following restrictions through September 16, 2011: 15 may not lift/push/pull/carry more than 10 pounds at any time; may not engage in prolonged 16 bending or stooping; may not engage in prolonged or repetitive climbing, kneeling, or squatting; 17 may not climb ladders or work at heights; and may not sit more than 2 hours/minute without 18 getting up.226 He noted that the restrictions should be observed until September 16, 2011 and then 19 be reevaluated.227 20 21 219 AR 374. 22 220 23 221 AR 377. 222 AR 384, 386. 223 25 AR 384–85. 224 AR 392, 394–95 26 225 AR 386. 226 AR 391. 24 27 28 227 Id. Id. ORDER – No. 17-cv-01476-LB 22 2.3 1 2 3 4 5 6 7 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 Mr. Wright’s Testimony At the ALJ hearing, Mr. Wright testified that he last worked on December 13, 2010 as a driver.228 He testified that he had not sought work since then because he had “been in too much pain . . . and depression.”229 He testified that he could not lift more than 5 pounds, or sit, stand, or walk for more than ten minutes at a time.230 He testified that he could walk about “20, 30 steps” before he had to hold onto a wall.231 Mr. Wright testified that in the morning, if he had an appointment, he would get dressed and had to use a bent hanger to put his socks on and put his pants on because he could not bend down all the way.232 He said that he microwaved himself breakfast.233 If he did not have an appointment, he stayed in bed because of his pain.234 He might “eat something”, “attempt to read the Bible,” or “watch TV.”235 He did not get a lot of company.236 He might call his sister or somebody else if he were depressed or angry.237 He took “a couple naps throughout the day” because he was “up all night using the bathroom or in pain, getting up.”238 He said that he did not sweep, vacuum, do laundry, grocery shop, or use a computer.239 He used to hike, shoot pool, play dominos, play basketball, and swim.240 He said that he loved the ocean but had not been for a while because he had no vehicle.241 17 18 228 AR 33. 229 AR 34. 19 230 20 231 21 232 233 22 234 23 235 24 236 237 25 238 26 239 27 28 240 241 Id. Id. AR 35. Id. Id. Id. AR 36. Id. Id. Id. Id. AR 37. ORDER – No. 17-cv-01476-LB 23 He used a cane and testified that a doctor prescribed the cane.242 He could not initially 1 2 remember the name of the doctor who prescribed the cane, but then he stated, “it was the doctor 3 before Amy Chan,” and he thought that it was “at General Hospital.”243 He said that he used a 4 Paratransit to get around that doctors set up for him.244 5 He testified that he heard voices every day.245 If he took his medication, he heard them “a little 6 bit.” He did not want to be around people when he was on his medication or in pain.246 On days of 7 appointments, he purposely did not take his medication until after the appointments so that he 8 could attend his appointments.247 He did not take his medication the day of the hearing and 9 testified that the voices were “talking to me bunches right now.”248 He testified that he would wake up at night “seeing smoke” and that he would then call his case manager or psychiatrist, who 11 United States District Court Northern District of California 10 would set him up with an extra appointment and “talk him through it.”249 He testified that he took Seroquel for “the voices and schizophrenia,” Norco for pain, 12 13 Risperdal for depression, “different kinds of muscle relaxers,” and other medications for “mood 14 swings,” “anger,” “depression,” “sleeping,” “arthritis,” “antibiotics,” and “back medications.”250 15 He said that his medication made him feel “pretty zonked out where it renders [him] from doing 16 normal tasks, but it does stop the voices and [he will] be too zonked out to — to be sad.”251 He 17 received physical therapy for his knees and his back but had to cancel because it was “starting to 18 19 20 21 242 243 AR 38. Id. 22 244 AR 43. 23 245 AR 45. 246 AR 46. 247 AR 45. 24 25 248 26 249 27 28 Id. Id. 250 AR 39–40. 251 AR 40. ORDER – No. 17-cv-01476-LB 24 1 hurt too much to do it.”252 He got five steroid injections in his knees but “they didn’t work.”253 He 2 was supposed to be getting steroid injections in his back in three weeks.254 He was “supposed to 3 be getting gastric bypass” surgery and “two knee replacements and back surgery” but his doctors 4 first wanted him to “lose some weight” so he “[wouldn’t] be in so much pain.”255 He testified that he last used cocaine “two and a half, three years ago” and last used alcohol 5 6 “about a year and a half, two years” ago.256 He asked for a release to go back to work but was unable to work because he could not sit for 7 8 long periods of time, his knees would hurt, and he had to stop the vehicle to stretch.257 2.4 9 Roxane Minkus, a vocational expert, testified at the hearing on May 29, 2010.258 She classified 10 United States District Court Northern District of California 11 Vocational Expert (“VE”) Testimony Mr. Wright’s past work: He’s worked as a heavy truck driver, [Dictionary of Occupational Titles (“DOT”)] 905.663-014. The SVP259 is 4. It is classified as a medium occupation, however, in one instance, he performed at the sedentary level, which in others, performed at the heavy level. He worked as a light truck driver, the DOT 906.683.022. The SVP is 3. It is a medium occupation, however, it appears he performed at the heavy level. He’s worked as a chauffeur, DOT 913.663-010. The SVP is 3. It is a light occupation, however, it appears he performed at the very heavy level. And lastly, he’s worked as a companion, DOT 309.677-101. The SVP is 3. It is a light occupation. Based on the record, it appears he may have performed at the very heavy level, but I will have to clarify that. Certainly, the heavy to very heavy level.260 12 13 14 15 16 17 18 19 20 21 252 253 254 AR 44. Id. Id. 22 255 AR 44–45. 23 256 AR 41. 257 AR 42–43. 258 AR 46. 24 25 26 27 28 259 Special 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.” Dictionary of Occupational Titles (“DOT”), App. C, 1991 WL 688702 (4th ed. 1991). 260 AR 47. ORDER – No. 17-cv-01476-LB 25 The ALJ posed a hypothetical: 1 I’d like you to consider an individual that can lift 20 pounds, can give a — can complete an eight-hour workday if given the option to alternate between sitting and standing, so that’s needed in 30-minute increments, and who’s limited to simple repetitive tasks because of depressive symptoms. I know the Dictionary of Occupational Titles does not discuss the sit/stand option. Is there something that gives you the expertise to identify [jobs] that permit a sit/stand option? 261 2 3 4 5 6 Ms. Minkus responded to the question regarding the DOT and the sit/stand option: Yes, not only my extensive training but my experience working with disabilities for the past 15 years now, over 11 years testifying in Court. My extensive experience and knowledge of the labor market.262 7 8 9 The ALJ asked whether such an individual would be able to perform any of Mr. Wright’s past work.263 Ms. Minkus answered no.264 The ALJ asked if there were other jobs that such an 11 United States District Court Northern District of California 10 individual could perform.265 Ms. Minkus responded: So, with that hypothetical, the person would be able to work as a bench assembler. It is a light occupation. The DOT also notes that this is called — or called small products assembler or bench assembler. The DOT code is 706.684-022. Again, it is a light occupation, unskilled . . . the person would be able to work as an electrical equipment sub-assembler. It is another light occupation. Also unskilled, SVP 2. The DOT code is 729.684-054 . . . the person would be able to work as cashier II at the sedentary level. This is an occupation that the DOT classifies as light. However, the reality is there are sedentary cashier IIs in the labor market today. Examples are parking lot booths toll booths, ticket counters, and similar situations. The DOT code is 211.462-010, and, again, this is an unskilled occupation.266 12 13 14 15 16 17 18 2.5 19 The ALJ followed the five-step sequential evaluation process to determine whether Mr. Wright 20 Administrative Findings was disabled and concluded that he was not.267 21 22 23 24 261 262 AR 47–48. 263 AR 48. 25 264 26 265 27 28 Id. Id. Id. 266 AR 48–49. 267 AR 12–23. ORDER – No. 17-cv-01476-LB 26 1 At step one, the ALJ found that that Mr. Wright had not engaged in substantial gainful activity 2 since his alleged onset date of February 24, 2011, and met the insured status requirements through 3 December 31, 2011.268 At step two, the ALJ found that Mr. Wright had the following severe impairments: “affective 4 5 disorder, substance abuse, spinal abnormalities, degenerative changes of the bilateral knees, and 6 obesity.”269 At step three, the ALJ found that Mr. Wright did not have an impairment or combination of 7 8 impairments that met or medically equaled the severity of a listed impairment.270 Mr. Wright did 9 not meet listing 1.02 (major dysfunction of a joint) because he did not demonstrate that he was unable to ambulate effectively or unable to perform fine and gross movements effectively.271 Mr. 11 United States District Court Northern District of California 10 Wright’s degenerative-disc disease did not meet Listing 1.04 (disorders of the spine) because the 12 record did not demonstrate “compromise of a nerve root (including cauda equine) or the spinal 13 cord” with the required additional findings.272 As to Mr. Wright’s obesity (an issue in dispute), the ALJ stated: 14 The claimant’s obesity, while not stated by any physician to be disabling, was considered in terms of its possible effects on the claimant’s ability to work and perform activities of daily living. . . . I have earlier found claimant’s obesity to be severe, but the signs, symptoms and laboratory findings of their obesity are not of such severity as found in any listing. Claimant’s limitations due to obesity are reflected in the below residual functional capacity.273 15 16 17 18 With respect to Mr. Wright’s mental impairments (another issue in dispute), the ALJ found 19 20 that individually or combined, his impairments did not meet Listings 12.04 (depressive, bipolar, 21 22 23 268 AR 14. 269 25 AR 15–16. 270 AR 16–17. 26 271 AR 16. 24 27 28 272 273 Id. AR 17. ORDER – No. 17-cv-01476-LB 27 1 and related disorders) or 12.09 (substance-addiction disorders).274 The ALJ considered whether the 2 paragraph B criteria were satisfied. He concluded: In activities of daily living, the claimant has mild restrictions. Claimant is able to microwave meals, read, watch television, talk to others on the phone, and attend doctor’s appointments. 3 4 In social functioning, the claimant has mild difficulties. Claimant lived with others in a group house. He is able to relate to his health care providers. 5 6 With regard to concentration, persistence or pace, the claimant has moderate difficulties. Claimant’s depressive and anxiety symptoms would limit him to simple repetitive tasks (Exhibit 16F [Mission Mental Health medical records]). 7 8 As for episodes of decompensation, the claimant has experienced no episodes of decompensation, which have been of extended duration. Claimant was hospitalized for a week in 2013 due to his mental impairments, and was seen in the emergency room in 2012 after a crack overdose. Neither of these episodes were 2 weeks or longer.275 9 10 United States District Court Northern District of California 11 12 At step four, the ALJ first determined Mr. Wright had the RFC to perform light work with the 13 following limitations: “lift 20 pounds; can complete an eight hours workday, if given the option to 14 alternative between sitting and standing, as needed, in thirty minute increments; and who is 15 limited to simple repetitive tasks.”276 The ALJ found that based on this RFC, Mr. Wright could not 16 perform his past relevant work as a heavy truck driver, light truck driver, chauffeur, or 17 companion.277 18 19 At step five, the ALJ found that Mr. Wright could work as a “bench assembler,” “electrical equipment assembler,” and “cashier II.”278 The ALJ held that Mr. Wright was not disabled.279 20 21 22 23 24 25 26 27 28 274 Id. On September 26, 2015, the SSA published new rules that eliminated the listing 12.09 for substance addiction disorders. 20 CFR Parts 404, 416. 275 AR 17. 276 AR 18. 277 AR 21. 278 AR 22. 279 AR 23. ORDER – No. 17-cv-01476-LB 28 1 STANDARD OF REVIEW 2 Under 42 U.S.C. § 405(g), district courts have jurisdiction to review any final decision of the Commissioner if the claimant initiates a suit within sixty days of the decision. A court may set 4 aside the Commissioner’s denial of benefits only if the ALJ’s “findings are based on legal error or 5 are not supported by substantial evidence in the record as a whole.” Vasquez v. Astrue, 572 F.3d 6 586, 591 (9th Cir. 2009) (internal citation and quotation marks omitted); 42 U.S.C. § 405(g). 7 “Substantial evidence means more than a mere scintilla but less than a preponderance; it is such 8 relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” 9 Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). The reviewing court should uphold “such 10 inferences and conclusions as the [Commissioner] may reasonably draw from the evidence.” Mark 11 United States District Court Northern District of California 3 v. Celebrezze, 348 F.2d 289, 293 (9th Cir. 1965). If the evidence in the administrative record 12 supports the ALJ’s decision and a different outcome, the court must defer to the ALJ’s decision 13 and may not substitute its own decision. Tackett v. Apfel, 180 F.3d 1094, 1097–98 (9th Cir. 1999). 14 “Finally, [a court] may not reverse an ALJ’s decision on account of an error that is harmless.” 15 Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). 16 GOVERNING LAW 17 18 A claimant is considered disabled if (1) he or she suffers from a “medically determinable 19 physical or mental impairment which can be expected to result in death or which has lasted or can 20 be expected to last for a continuous period of not less than twelve months,” and (2) the 21 “impairment or impairments are of such severity that he or she is not only unable to do his 22 previous work but cannot, considering his age, education, and work experience, engage in any 23 other kind of substantial gainful work which exists in the national economy. . . .” 42 U.S.C. 24 § 1382c(a)(3)(A) & (B). The five-step analysis for determining whether a claimant is disabled 25 within the meaning of the Social Security Act is as follows. Tackett, 180 F.3d at 1098 (citing 26 20 C.F.R. § 404.1520). 27 28 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 ORDER – No. 17-cv-01476-LB 29 1 2 3 4 5 6 7 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 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). Step Two. Is the claimant’s impairment (or combination of impairments) severe? If not, the claimant is not disabled. If so, the evaluation proceeds to step three. See 20 C.F.R. § 404.1520(a)(4)(ii). Step Three. Does the impairment “meet or equal” one of a list of specified impairments described in the regulations? If so, the claimant is disabled and is entitled to benefits. If the claimant’s impairment does not meet or equal one of the impairments listed in the regulations, then the case cannot be resolved at step three, and the evaluation proceeds to step four. See 20 C.F.R. § 404.1520(a)(4)(iii). Step Four. Considering the claimant’s RFC, is the claimant able to do any work that he or she has done in the past? If so, then the claimant is not disabled and is not entitled to benefits. If the claimant cannot do any work he or she did in the past, then the case cannot be resolved at step four, and the case proceeds to the fifth and final step. See 20 C.F.R. § 404.1520(a)(4)(iv). Step Five. Considering the claimant’s RFC, age, education, and work experience, is the claimant able to “make an adjustment to other work?” If not, then the claimant is disabled and entitled to benefits. See 20 C.F.R. § 404.1520(a)(4)(v). If the claimant is able to do other work, the Commissioner must establish that there are a significant number of jobs in the national economy that the claimant can do. There are two ways for the Commissioner to show other jobs in significant numbers in the national economy: (1) by the testimony of a vocational expert or (2) by reference to the Medical-Vocational Guidelines at 20 C.F.R., part 404, subpart P, app. 2. For steps one through four, the burden of proof is on the claimant. At step five, the burden 18 shifts to the Commissioner. Gonzales v. Sec’y of Health & Human Servs., 784 F.2d 1417, 1419 19 (9th Cir. 1986). 20 ANALYSIS 21 22 23 24 25 26 27 Mr. Wright contends that the ALJ erred by: (1) failing at step two to evaluate the plaintiff’s schizophrenia/psychotic and anxiety disorders as severe impairments; (2) making material factual errors by discrediting Mr. Wright’s pain symptoms on the ground that his doctors did not suggest surgery (when in fact his doctors did contemplate surgery), by finding that anxiety was not a medically determinable impairment because no medical source diagnosed Mr. Wright with anxiety (when in fact doctors did discuss his anxiety symptoms), and by stating that the claimant had no episodes of extended decompensation and that his hospitalization in 2013 28 ORDER – No. 17-cv-01476-LB 30 did not last two weeks or longer (when in fact there was treatment that lasted longer than two weeks); 1 2 (3) failing to apply a multiple-factor analysis concerning the effects of obesity on the plaintiff’s RFC; 3 (4) not providing specific, clear, and convincing reasons to support his finding that the plaintiff’s daily activities were inconsistent with more than mild restrictions in daily living and social functioning; 4 5 (5) improperly weighing medical opinions by failing to properly weight Dr. Warbritton’s opinion, rejecting the GAF scores provided by Dr. Bender, Dr. Fromont, Dr. Ross, and Jessica Martinez, and assigning little weight to the opinion of chiropractor Crawford. 6 7 8 (6) failing to address Mr. Wright’s need for a cane, his psychotic hallucinations, and his limited capacity for social interaction in his RFC; 9 (7) failing to resolve major discrepancies between the VE testimony and DOT; and 10 (8) failing to include a limitation of being off-task fifteen percent of the day, which would preclude employment. United States District Court Northern District of California 11 12 13 14 1. Whether the ALJ Erred at Step Two by Failing to Evaluate Mr. Wright’s Schizophrenia/Psychotic and Anxiety Disorders Mr. Wright argues that the ALJ erred by not evaluating the severity of his 15 16 schizophrenia/psychotic disorder and anxiety disorder at step two of the sequential-evaluation 17 process.280 Mr. Wright argues that “[b]ecause the ALJ excluded psychotic and anxiety symptoms 18 from consideration in his assessment of Plaintiff’s RFC and instead characterized his diagnoses as 19 an affective disorder and substance abuse exclusively, the residual functional capacity 20 determination was incomplete, flawed, and not supported by substantial evidence in the record.”281 At step two of the five-step sequential inquiry, the ALJ determines whether the claimant has a 21 22 medically severe impairment or combination of impairments. Smolen v. Chater, 80 F.3d 1273, 23 1290 (9th Cir. 1996). The ALJ must consider the record as a whole, including evidence that both 24 supports and detracts from its final decision. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998). 25 An impairment is not severe if it does not significantly limit the claimant’s mental or physical 26 27 28 280 Mot. – ECF No. 28 at 1–2. 281 Id. at 2. ORDER – No. 17-cv-01476-LB 31 1 abilities to do basic work activities. 20 C.F.R. § 404.1521(a).282 Basic work activities are “abilities 2 and aptitudes necessary to do most jobs,” including, for example, “walking, standing, sitting, 3 lifting, pushing, pulling, reaching, carrying, or handling.” 20 C.F.R. § 404.1521(b). To determine 4 the severity of a mental impairment specifically, the ALJ must consider four broad functional 5 areas: activities of daily living; social functioning; concentration, persistence, and pace; and 6 episodes of decompensation. 20 C.F.R. § 404.1520a. 7 The burden at Step Two is relatively light. In particular, the Ninth Circuit has held that “the 8 step two inquiry is a de minimis screening device to dispose of groundless claims.” Smolen, 80 9 F.3d at 1290 (citing Bowen v. Yuckert, 482 U.S. 137 at 153–54 (1987)). Thus, “[a]n impairment or combination of impairments can be found ‘not severe’ only if the evidence establishes a slight 11 United States District Court Northern District of California 10 abnormality that has no more than a minimal effect on an individual[’]s ability to work.” Id. 12 (internal quotation marks omitted) (citing SSR 85–28; Yuckert v. Bowen, 841 F.2d 303, 306 (9th 13 Cir.1988)). 14 As to the first issue of Mr. Wright’s schizophrenia/psychotic disorder, the Ninth Circuit’s 15 decision in Hill v. Astrue, 698 F.3d 1153, 1161 (9th Cir. 2012), is instructive. In Hill, the ALJ 16 concluded at step two that the claimant had severe mental impairments that included bipolar 17 disorder, mixed personality disorder, anxiety, and borderline intellectual functioning. Id. The 18 claimant also was diagnosed with panic disorder and testified at the ALJ hearing that he had 19 symptoms of panic attacks. Id. The ALJ excluded panic disorder from the claimant’s list of 20 impairments and characterized her diagnosis as anxiety alone. Id. The Ninth Circuit concluded that 21 because the ALJ excluded panic disorder, “the residual functional capacity determination was 22 incomplete, flawed, and not supported by substantial evidence in the record.” Id. Similarly, here the ALJ identified Mr. Wright’s mental impairment only under the term 23 24 “affective disorder.”283 In reaching that conclusion, the ALJ cited to the following medical 25 26 27 28 282 The Social Security Administration promulgated new regulations, including a new § 404.1521, effective March 27, 2017. The previous version, effective to March 26, 2017, governs based on the date of the ALJ’s hearing, May 29, 2015. 283 AR 15. ORDER – No. 17-cv-01476-LB 32 1 records: treating psychiatrist Dr. Katz’s diagnosis of “schizoaffective disorder;”284 treating 2 physician Dr. Bender’s diagnosis of “mood disorder [not otherwise specified]”; and treating 3 physician Dr. Peter-Frank diagnosis of “major depressive disorder with psychotic features.”285 The 4 medical record, however, includes additional diagnoses that refer specifically to schizophrenia and 5 psychosis. These include treating physician Dr. Summerville’s diagnosis of “schizophrenia,” 286 6 treating physician Dr. Sinha’s diagnosis of “Depression/schizophrenia,”287 and treating physician 7 Dr. Ross’s diagnosis of “Psychosis NOS.”288 The ALJ did recognize that the medical records 8 documented Mr. Wright’s schizophrenia symptoms, noting that Mr. Wright reported “hearing 9 voices” and had “a long history of . . . auditory hallucinations.”289 Despite acknowledging these symptoms, ALJ did not explain why he labeled Mr. Wright’s mental impairment a severe 11 United States District Court Northern District of California 10 “affective disorder” but not schizophrenia or a psychotic disorder. 12 Nonetheless, the Commissioner argues that the ALJ acknowledged that Mr. Wright received 13 multiple diagnoses for his symptoms related to schizophrenia and used the broader-level diagnosis 14 of affective disorder at step two.290 The ALJ’s step-three analysis, however, demonstrates that the 15 ALJ did not treat “affective disorder” as a broader-level disorder that included schizophrenia. At 16 step three, the ALJ considered only whether Mr. Wright’s impairments met the criteria listings of 17 12.04 (“Depressive, Bipolar and Related Disorders”) and 12.09 (“Substance Addiction 18 19 284 20 AR 851. 285 AR 15–16. 21 286 22 23 24 AR 960. Mr. Wright submitted Dr. Summerville’s treatment notes — as well as other updated medical records from UCSF — to the Appeals Council (Exhibits 18F–20F, AR 983–1072). Although this evidence was not before the ALJ, the Ninth Circuit has held “that when a claimant submits evidence for the first time to the Appeals Council, which considers that evidence in denying review of the ALJ’s decision, the new evidence is part of the administrative record, which the district court must consider in determining whether the Commissioner’s decision is supported by substantial evidence.” Brewes v. Comm’r Soc. Sec. Admin. 682 F.3d 1157, 1159-60 (9th Cir. 2012) (adopting Ramirez v. Shalala, 8 F.3d 1449, 1451-52 (9th Cir. 1993)). 25 287 AR 1043. 26 288 AR 632. 289 AR 15–16. 290 Opp. – ECF No. 29 at 10. 27 28 ORDER – No. 17-cv-01476-LB 33 1 Disorders”). The ALJ did not consider whether Mr. Wright’s impairments met the criteria listings 2 of 12.03 (“Schizophrenia Spectrum and Other Psychotic Disorders”)291 In addition, in his analysis 3 of Mr. Wright’s limitations, the ALJ’s only discussion of Mr. Wright’s mental impairments was 4 that Mr. Wright’s “depressive and anxiety symptoms would limit him to simple repetitive 5 tasks.”292 Despite Mr. Wright’s testimony that he hears voices “every day”293 and his treating 6 medical providers’ accounts of his auditory hallucinations,294 the ALJ did not explain how his 7 analysis accounted for Mr. Wright’s schizophrenia or psychotic symptoms. Given these circumstances, the ALJ improperly limited Mr. Wright’s list of impairments, 8 which resulted in an incomplete analysis in the sequential analysis. See Hill, 698 F.3d at 1161. 10 Because the ALJ excluded schizoaffective disorder and/or psychosis from Mr. Wright’s list of 11 United States District Court Northern District of California 9 impairments and instead characterized his diagnosis as an “affective disorder” alone, the residual- 12 functional-capacity determination was incomplete, flawed, and not supported by substantial 13 evidence in the record. See id. The court declines to find this error harmless. See Molina, 674 F.3d 14 at 1111. As to the issue of anxiety, Mr. Wright argues that the ALJ failed to consider anxiety as a 15 16 severe impairment at step two and also makes the similar argument that the ALJ made the fact 17 error of finding that Mr. Wright “alleges anxiety” and that “[n]o acceptable medical source has 18 diagnosed [Mr. Wright] with anxiety.” 295 The ALJ’s finding that Mr. Wright was not diagnosed with anxiety failed to account for the 19 20 following significant evidence in the record: (1) San Francisco General Hospital Nurse Morrow’s 21 August 3, 2013 assessment that noted anxiety symptoms of “excessive uncontrolled worry, 22 [a]pprehension, restlessness, sleep disturbance, [and] [i]nterpersonal anxiety;” 296 (2) UCSF 23 24 291 292 AR 17. Id. 25 293 AR 45. 26 294 AR 524, 599, 632, 844, 1021, 1142. 295 Mot. – ECF No. 28 at 1–3. 296 AR 623. 27 28 ORDER – No. 17-cv-01476-LB 34 1 primary-care physician Dr. Chen’s January 5, 2015 progress notes that listed anxiety as an active 2 problem and noted that “Psychiatrist is prescribing psych meds, advised to follow up with him and 3 pt amenable to doing this;”297 (3) UCSF Bariatric Surgery Center Dr. Posselt’s April 15, 2015 4 progress notes that listed an anxiety diagnosis in Mr. Wright’s past medical history;298 and (4) 5 UCSF Dr. Singh’s April 6, 2015 progress notes that listed an anxiety diagnosis in Mr. Wright’s 6 past medical history during his consultation for obesity.299 On remand, the ALJ must reconsider the indicia of clinical anxiety from the medical record, 7 8 including at step two in the analysis. The court notes that the UCSF medical records from January 9 2015 to March 2016 were submitted to the appeals counsel. See AR 895–1072. The ALJ can review these records as part of its reconsideration of Mr. Wright’s anxiety. 300 The ALJ also can 11 United States District Court Northern District of California 10 reconsider the finding that no acceptable medical source diagnosed Mr. Wright with anxiety in 12 light of the medical records. 13 14 2. Whether the ALJ Made Material Fact Errors Mr. Wright argues that the ALJ made material factual errors by (1) discrediting Mr. Wright’s 15 16 pain symptoms on the grounds that his “doctors have not suggested surgical treatment,” (2) 17 finding that anxiety was not a medically determinable impairment on the grounds that no medical 18 source diagnosed Mr. Wright with anxiety, and (3) incorrectly stating that the claimant had no 19 episodes of extended decompensation and that his hospitalization in 2013 did not last two weeks 20 or longer. 21 First, Mr. Wright’s treating physicians did contemplate surgical treatments for Mr. Wright’s 22 knee and back pain.301 Mr. Wright’s treating physician at UCSF, Dr. Chen, referred Mr. Wright to 23 24 297 AR 912. 25 298 AR 942. 26 299 AR 937. 300 See supra n.285. 301 AR 717–18, 824. 27 28 ORDER – No. 17-cv-01476-LB 35 1 orthopedic surgery, discussed surgical treatment options for knee and back pain with Mr. Wright, 2 and noted that Mr. Wright would get knee replacement surgery if his knee pain did not improve.302 3 Additionally, Mr. Wright testified that he is “supposed to be getting . . . two knee replacements 4 and back surgery” but his doctors first wanted him to “lose some weight” so he “won’t be in so 5 much pain.”303 On remand, the ALJ must consider the evidence that Mr. Wright’s treating 6 physician considered surgical-treatment options for his back and knee pain. Second, as the court discussed above in its analysis of the ALJ’s findings at step two, the 7 8 record contains significant and probative evidence regarding Mr. Wright’s anxiety symptoms, 9 which the ALJ can consider on remand. Third, section 12.00 of the Social Security regulations defines “repeated episodes of 10 United States District Court Northern District of California 11 decompensation, each of extended duration” as three episodes within one year, or an average of 12 once every four months, each lasting at least two weeks. 20 C.F.R. Pt. 404, Subpt. P, App.1, § 13 12.00(C)(4). Mr. Wright was hospitalized at San Francisco General Hospital first on November 5, 14 2012, and then again from August 2, 2013 to August 9, 2013 (7 days).304 After his second stay at 15 San Francisco General Hospital, he was transferred to a residential-treatment program at La 16 Posada Crisis Residential Program from August 9, 2013 to August 27, 2013 (18 days).305 Mr. 17 Wright is correct that the ALJ failed to consider his time at La Posada as potentially an episode of 18 decompensation that lasted more than two weeks.306 The ALJ can consider the hospitalizations in 19 his overall analysis on remand. 20 21 22 23 24 302 Id. 303 AR 44–45. 304 26 AR 524, 671. 305 AR 599–614. 27 306 25 28 Any analysis of the interplay between hospitalization and residential treatment is for the ALJ in the first instance. ORDER – No. 17-cv-01476-LB 36 1 2 3 4 5 6 7 8 9 10 United States District Court Northern District of California 11 3. Whether the ALJ Failed to Apply a Multiple-Factor Analysis Concerning the Effects of Obesity on Mr. Wright’s RFC Mr. Wright contends that the ALJ did not properly consider the limitations caused by his obesity.307 “While obesity is no longer listed among the Listing of Impairments, it is still classified as a medically determinable impairment that must be considered in disability assessments.” Browning v. Colvin, 228 F. Supp. 3d 932, 942 (N.D. Cal. 2017) (citing SSR 02–1p, 2002 WL 34686281). “In evaluating obesity to determine a claimant’s RFC, the ALJ’s assessment ‘must consider an individual's maximum remaining ability to do sustained work activities in an ordinary work setting on a regular and continuing basis.’” Id. (quoting Burch v. Barnhart, 400 F.3d 676, 683 (9th Cir. 2005)). “As with other impairments, the ALJ should explain how he determined whether obesity caused any physical or mental impairments.” Id. (citing SSR 02–1p). Furthermore, SSR 96–8p provides: 12 In assessing RFC, the adjudicator must consider only limitations and restrictions imposed by all of an individual’s impairments, even those that are not “severe.” While a “not severe” impairment(s) standing alone may not significantly limit an individual's ability to do basic work activities, it may—when considered with limitations or restrictions due to other impairments—be critical to the outcome of a claim. 13 14 15 16 17 18 19 20 21 22 23 24 Id. (quoting SSR 96–8p). Here, the ALJ found obesity to be a severe impairment308 and stated that he considered both Mr. Wright’s obesity in combination with his other impairments and its impact on his ability to work.309 The ALJ, however, failed to consider and adequately explain how obesity exacerbated Mr. Wright’s other impairments, including his knee pain, spinal abnormalities, depression, and anxiety. See Celaya v. Halter, 332 F.3d 1177, 1182–83 (9th Cir. 2003); see also Marica v. Sullivan, 900 F.2d 172, 176 (“[T]he ALJ must explain adequately his evaluation of alternative tests and the combined effects of the impairments.”). 25 26 27 28 307 Mot. – ECF No. 28 at 4. 308 AR 15. 309 AR 17. ORDER – No. 17-cv-01476-LB 37 In Celaya, the ALJ excluded the claimant’s obesity from his analysis, and the Ninth Circuit 1 2 remanded and directed the ALJ to complete a step-three analysis “that explicitly accounts for the 3 direct and marginal effects of the [claimant’s] obesity during the period in question and that 4 culminates in reviewable, on-the-record findings.” 332 F.3d at 1183. The court observed that “it 5 was clear from the record that [the claimant’s] obesity was at least close to the listing criterion, 6 and was a condition that could exacerbate her reported illness,” which included diabetes and 7 hypertension. Id. at 1182. Thus, the ALJ “was responsible for determining the effect of [the 8 claimant’s] obesity upon her other impairments, and its effect on her ability to work and general 9 health, given the presence of those impairments.” Id. On the one hand, the case here is similar to Celaya because Mr. Wright’s obesity was a 10 United States District Court Northern District of California 11 condition that could exacerbate his degenerative knee problems, depression, and anxiety. Indeed, 12 treating physician Amy Chen, M.D. at UCSF noted that Mr. Wright’s severe knee pain was likely 13 exacerbated by his weight.310 Andrew Posselt, M.D. (at UCSF Bariatric Surgery Center) 14 diagnosed Mr. Wright with “morbid obesity and obesity-related comorbidities,” including 15 diabetes, osteoarthritis (painful joints), and depression.311 His medical records document treating- 16 physician diagnoses of morbid obesity from 2011 to 2016.312 The medical records also show that 17 he stood at 6’ 1.5” tall, between February 25, 2011 and March 2016 his weight ranged from 327 to 18 365 pounds, and his BMI ranged from 45.06 to 46.59.313 On the other hand, the case here is different from Celaya because Mr. Wright was represented 19 20 by counsel and the ALJ did not wholly ignore obesity. Here the ALJ found obesity to be a severe 21 impairment, stated that he considered Mr. Wright’s obesity in combination with other severe 22 impairments, and stated that the “signs, symptoms and laboratory findings of [Mr. Wright’s] 23 obesity are not of such severity as found in any listing.”314 But the ALJ did not explain how he 24 25 26 27 28 310 AR 718. 311 AR 585, 937, 941–42. 312 See, e.g., AR 419, 529, 941. 313 See, e.g., AR 438, 442, 585, 937, 941–42, 1055. 314 AR 15, 17. ORDER – No. 17-cv-01476-LB 38 1 analyzed Mr. Wright’s obesity in combination with his other impairments, and he did not identify 2 which signs, symptoms, and lab findings he relied on. Given that the record indicates that Mr. 3 Wright’s obesity exacerbated his other impairments, the ALJ’s analysis is not sufficient. Celaya, 4 332 F.3d at 1182; Marica, 900 F.2d at 176; cf. Burch, 400 F.3d at 682 (distinguishing Celaya and 5 concluding that the ALJ properly analyzed obesity when the record did not indicate that obesity 6 exacerbated other impairments). On remand, the ALJ can consider these medical issues related to obesity and can address the 7 8 combined effect of Mr. Wright’s obesity on his related impairments, including his knee pain, 9 depression, and anxiety. 10 United States District Court Northern District of California 11 12 4. Whether the ALJ Erred by Assigning Mr. Wright Mild Restrictions in Activities of Daily Living and Social Functioning 13 Mr. Wright argues that the ALJ erred by finding that Mr. Wright had only “mild” restrictions 14 in activities of daily living and social functioning.315 On this issue, Mr. Wright contends that the 15 ALJ improperly concluded that Mr. Wright’s testimony about the severity of his symptoms was 16 “not entirely credible.”316 Mr. Wright contends that the ALJ’s conclusion about his credibility was 17 improper because it was based on (1) Mr. Wright’s ability “to microwave meals, read, watch 18 television, talk to others on the phone, and attend doctor’s appointments,”317 and (2) the fact that 19 Mr. Wright “lived with others in a group house” and “is able to relate to his health care 20 providers.”318 The Commissioner responds that the ALJ did not rely solely on Mr. Wright’s report 21 of daily activities in his credibility analysis and instead concluded that Mr. Wright was “not 22 entirely credible” because: 23 24 25 315 26 316 27 28 317 318 Mot. – ECF No. 28 at 4. Id. AR 17. Id. ORDER – No. 17-cv-01476-LB 39 (i) treatment was effective and reduced his auditory hallucinations, (ii) he received conservative treatment, (iii) Plaintiff’s daily activities, including working at the Salvation Army, were inconsistent with disability, (iv) he attempted to return to work, (v) he failed to follow prescribed treatment, and (vi) he made inconsistent statements regarding his symptoms and drug use (AR 119–20).319 1 2 3 4 5 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 The next sections address the law governing credibility assessments and then each factor that the Commissioner raises. In assessing a claimant’s credibility, an ALJ must make two determinations. Molina, 674 F.3d at 1112. “‘First, the ALJ must determine whether the claimant has presented objective medical evidence of an underlying impairment which could reasonably be expected to produce the pain or other symptoms alleged.’” Id. (quoting Vasquez, 572 F.3d at 591). Second, if the claimant produces that evidence, and “there is no evidence of malingering,” the ALJ must provide “specific, clear and convincing reasons for” rejecting the claimant’s testimony regarding the severity of the claimant’s symptoms. Id. (internal quotation marks and citations omitted). “At the same time, the ALJ is not ‘required to believe every allegation of disabling pain, or else disability benefits would be available for the asking, a result plainly contrary to 42 U.S.C. § 423(d)(5)(A).’” Molina, 674 F.3d at 1112 (quoting Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)). “Factors that an ALJ may 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 explained, failure to seek treatment or follow a prescribed course of treatment.” Orn v. Astrue, 495 F.3d 625, 636 (9th Cir. 2007) (internal quotation marks omitted). “The ALJ must identify what testimony is not credible and what evidence undermines the claimant’s complaints.” Burrell v. Colvin, 775 F.3d 1133, 1138 (9th Cir. 2014); see, e.g., Morris v. Colvin, No. 16-CV-0674-JSC, 2016 WL 7369300, at *12 (N.D. Cal. Dec. 20, 2016). Here, at the first step, the ALJ found that Mr. Wright presented objective medical evidence that his underlying impairments could reasonably be expected to produce the pain and other 26 27 28 319 Cross-Mot. – ECF No. 29 at 13. ORDER – No. 17-cv-01476-LB 40 1 symptoms alleged.320 At the second step, the ALJ found that Mr. Wright’s statements concerning 2 the intensity, persistence, and limiting effects of his symptoms were “not entirely credible.”321 The 3 Commissioner argues that this conclusion is proper because it relied on the six factors quoted 4 above. 5 On the first point regarding effective treatment, the ALJ found that “the claimant has improved 6 with medication, and is less depressed and hears voices less often.”322 In so finding, the ALJ relied 7 on Dr. Katz’s progress notes from (1) January 17, 2014 noting that Mr. Wright “states he has been 8 feeling a little better, a little less depressed” but that he “continues to hear voices,”323 (2) April 7, 9 2014 noting that he “has felt a bit less depressed, and that he has been hearing voices less often,”324 and (3) January 1, 2015 noting that Mr. Wright reported he “was having some anxiety” 11 United States District Court Northern District of California 10 and “having less depression and less psychosis.”325 The ALJ did not address Dr. Katz’s progress 12 notes from February 19, 2015 that stated that Mr. Wright reported “feeling very anxious due to 13 [auditory hallucinations] and having difficulty sleeping at night.” Dr. Katz called Mr. Wright on 14 February 23, 2015 to check in after he had missed appointments and Mr. Wright stated that “he 15 still has [auditory hallucinations].”326 On the second point of conservative treatment, as discussed above, the ALJ incorrectly 16 17 concluded that Mr. Wright had not considered surgical treatment for his physical impairments. Mr. 18 Wright’s treating physicians did contemplate surgical treatments for Mr. Wright’s knee and back 19 20 21 22 23 24 320 321 322 AR 19. Id. Id. 25 323 AR 856. 26 324 AR 859. 325 AR 879. 326 AR 884. 27 28 ORDER – No. 17-cv-01476-LB 41 1 pain.327 Mr. Wright also received steroid injections for knee and back pain, which he reported to 2 be ineffective at managing pain for more than few days.328 On the third point regarding daily activities and social functioning (the main point that Mr. 3 Wright focuses on), the ALJ noted that Mr. Wright is able “to microwave meals, read, watch 5 television, talk to others on the phone, and attend doctor’s appointments,” and that Mr. Wright 6 “lived with others in a group house” and “is able to relate to his health care providers.”329 While a 7 claimant’s daily activities may provide a specific and legitimate basis for a finding of 8 inconsistency with her disabling conditions, see Molina, 674 F.3d at 1113 and Curry v. Sullivan, 9 925 F.2d 1127, 1130 (9th Cir. 1991), the Ninth Circuit has “repeatedly warned that ALJs must be 10 especially cautious in concluding that daily activities are inconsistent with testimony about pain” 11 United States District Court Northern District of California 4 and thus are inconsistent with eligibility for disability benefits. Garrison v. Colvin, 759 F.3d 995, 12 1016 (9th Cir. 2014). In Garrison, the Ninth Circuit recognized that disability claimants should 13 not be penalized for attempting to lead normal lives in the face of their limitations, concluding that 14 “only if [the] level of activity were inconsistent with [a claimant’s] claimed limitations would 15 these activities have any bearing on her credibility.” Id. (alterations in original) (internal 16 quotations omitted); see also Orn, 495 F.3d at 639 (watching television is an activity that is “so 17 undemanding that [it] cannot be said to bear a meaningful relationship to the activities of the 18 workplace”); Smolen, 80 F.3d at 1284 n.7 (“The Social Security Act does not require that 19 claimants be utterly incapacitated to be eligible for benefits, and many home activities may not be 20 easily transferable to a work environment where it might be impossible to rest periodically or take 21 medication.”); Fair, 885 F.2d at 603 (“[M]any home activities are not easily transferable to what 22 may be the more grueling environment of the workplace, where it might be impossible to 23 periodically rest or take medication.”). 24 25 26 27 28 327 AR 717–18, 824. 328 AR 807, 808, 812, 823–27, 903, 1050. 329 AR 17. ORDER – No. 17-cv-01476-LB 42 On the fourth point of Mr. Wright’s attempt to return to work, the ALJ discredited Mr. 1 2 Wright’s testimony because he “has made several statements indicating a desire (and therefore the 3 perceived ability) to return to work.”330 The ALJ cites Mr. Wright’s request for a release to return 4 to work from Dr. Warbritton (the workers-compensation examining doctor)331 and his statement to 5 nurse Cia Byrnes (at Ritter Health Center) that he wanted to “begin a program to become a 6 phlebotomist.”332 But “[i]t is disingenuous to argue that the desire to return to work can be held 7 against a claimant. . . . [D]esire to work does not equal ability to work.” Littlejohn v. Colvin, No. 8 16-CV-3380 (BMC), 2017 WL 1049505, at *3 (E.D. N.Y. Mar. 18, 2017); see also Blakesley v. 9 Colvin, No. C14-137-JLR, 2014 WL 4804507, at *5 (W.D. Wash. Sept. 26, 2014) (a claimant’s desire to work is not a legitimate reason to discount her opinion). Moreover, Dr. Warbritton’s 11 United States District Court Northern District of California 10 notes stated that Mr. Wright “strongly desires to attempt to return to his usual and customary job 12 duties,” and did not address whether Mr. Wright believed he was able to work.333 While arguably 13 allowing Mr. Wright to attempt to return to work implies that Dr. Warbritton believed Mr. Wright 14 was capable of working, several times, Mr. Wright acknowledged that he was unable to work 15 (adding that his inability to work made him feel depressed).334 On the fifth point regarding Mr. Wright’s failure to follow prescribed treatment, the ALJ found 16 17 that Mr. Wright had “missed several mental health appointments.”335 The ALJ did not address 18 whether Mr. Wright missed several mental-health appointments because his impairments were not 19 severe or because of other circumstances. See Nguyen v. Chater, 100 F.3d 1462, 1465 (9th Cir. 20 1996); Regennitter v. Comm’r of Social Sec. Admin, 166 F.3d 1294, 1297–98 (9th Cir. 1999). The 21 ALJ cites Mr. Wright’s missed appointments with his psychiatrist, Dr. Katz. But Mr. Wright told 22 clinical social worker Jennifer Landivar that he did “not trust” Dr. Katz and did not want to 23 330 AR 20. 331 25 AR 20, 425. 332 AR 20, 578. 26 333 AR 425 (emphasis added). 334 AR 532–33, 960. 335 AR 20. 24 27 28 ORDER – No. 17-cv-01476-LB 43 1 continue to see him.336 In addition, Mr. Wright’s mental-health impairments, his inability to pay, 2 and his homelessness and unstable housing situation are documented in the record.337 The ALJ did 3 not address whether these circumstances, rather than a lack of severe impairments, precluded Mr. 4 Wright from keeping appointments. Absent a more explicit analysis, the court cannot assess 5 whether the ALJ’s reliance on this factor to discredit the reported severity of his impairments is 6 legitimate and supported by clear and convincing evidence. See Molina, 674 F.3d at 1112. On the sixth point of inconsistent statements, the ALJ pointed to the discrepancy between (1) 7 Mr. Wright’s statement on November 5, 2012 at San Francisco General Hospital Psychiatric 9 Emergency Department that he overdosed on alcohol, marijuana, and crack cocaine because he 10 was depressed and angry,338 and (2) his statement on December 13, 2012 during a mental-health 11 United States District Court Northern District of California 8 appointment with Dr. Chan at Sunset Mental Health Center that he used those substances while 12 celebrating a Giants win “and denied any suicide attempts.”339 While inconsistencies in a 13 claimant’s prior statements may be a legitimate basis for discrediting a claimant’s testimony, see 14 Orn, 495 F.3d at 636, on this record, and considering the ALJ’s articulated reasons, the court 15 cannot assess whether, on balance, the inconsistency identified by the ALJ justifies discrediting 16 Mr. Wright’s testimony. See Robbins v. Soc. Sec. Admin., 466 F.3d 880, 884 (9th Cir. 2006) 17 (concluding that ALJ’s adverse credibility finding based on a claimant’s single inconsistent 18 statement about his alcohol dependence and abuse was unjustified). In sum, given the errors identified above, the ALJ did not provide “specific, clear and 19 20 convincing reasons for” rejecting Mr. Wright’s testimony regarding the severity of his symptoms. 21 See Molina, 674 F.3d at 1112. On remand, the ALJ can reassess Mr. Wright’s credibility. 22 23 24 25 26 27 28 336 AR 1148, 1151. 337 AR 543–552. 338 AR 20; AR 524. 339 AR 20; AR 539. ORDER – No. 17-cv-01476-LB 44 1 5. Whether the ALJ Properly Weighed Medical Opinions Mr. Wright contends that the ALJ erred with respect to weighing the medical-opinion evidence 2 3 by: (1) rejecting the GAF scores340 of Eric Bender, M.D. (San Francisco General Hospital Psychiatric Emergency Services), Sebastien Fromont, M.D. (San Francisco General Hospital Psychiatric Emergency Services), Jessica Ross, M.D. (San Francisco General Hospital Psychiatric Emergency Services), and Jessica Martinez (occupation and degree not specified) (La Posada Residential Treatment Program); 4 5 6 7 (2) rejecting the opinion of John D. Warbritton, M.D. (an orthopedic surgeon) on the grounds that he is a workers-compensation doctor; 8 9 (3) ignoring the opinions of Brian Crawford, D.C. (a chiropractor) and Jessica Martinez (occupation undefined in the record) on the ground that they were not acceptable medical sources; and 10 United States District Court Northern District of California 11 (4) giving little weight to the GAF score given by Raul Reyes, R.N. (Sunset Mental Health) and ignored his treatment notes.341 12 The court first discusses the law governing the ALJ’s weighing of medical-opinion evidence 13 14 and then analyzes the medical-opinion evidence under the appropriate standard. 15 The ALJ is responsible for “‘resolving conflicts in medical testimony, and for resolving 16 ambiguities.’” Garrison, 759 F.3d at 1010 (quoting Andrews, 53 F.3d at 1039). In weighing and 17 evaluating the evidence, the ALJ must consider the entire case record, including each medical 18 opinion in the record, together with the rest of the relevant evidence. 20 C.F.R. § 416.927(b); see 19 also Orn, 495 F.3d at 630 (“[A] reviewing court must consider the entire record as a whole and 20 may not affirm simply by isolating a specific quantum of supporting evidence.”) (internal 21 quotation marks and citation omitted). 22 Section 404.1513(a) of Title 20 C.F.R. requires evidence “from accepted medical sources to 23 establish whether you have a medically determinable impairment.” “Accepted medical sources” 24 25 26 27 28 340 As noted above, a Global Assessment of Functioning (“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, 759 F.3d at 1002 n.4 (“[A] GAF score between 41 and 50 describes ‘serious symptoms’ or ‘any serious impairment in social, occupational, or school functioning.’”). 341 Mot. – ECF No. 28 at 6. ORDER – No. 17-cv-01476-LB 45 1 include licensed physicians, licensed psychologists, licensed optometrists, licensed podiatrists, and 2 qualified speech-language pathologists. Id. 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 (and other “acceptable medical sources”): 7 (1) treating physicians; (2) examining physicians; and (3) non-examining physicians. 20 C.F.R. 8 § 416.927(c), (e); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). “Generally, a treating 9 physician’s opinion carries more weight than an examining physician’s, and an examining physician’s opinion carries more weight than a reviewing [non-examining] physician’s.” Holohan 11 United States District Court Northern District of California 10 v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001) (citing Lester, 81 F.3d at 830); Smolen, 80 F.3d 12 at 1285. 13 “To reject [the] uncontradicted opinion of a treating or examining doctor, an ALJ must state 14 clear and convincing reasons that are supported by substantial evidence.” Ryan, 528 F.3d at 1198 15 (alteration in original) (internal quotation marks and citation omitted). By contrast, if the ALJ 16 finds that the opinion of a treating physician is contradicted, a reviewing court will require only 17 that the ALJ provide “specific and legitimate reasons supported by substantial evidence in the 18 record.” Reddick, 157 F.3d at, 725 (internal quotation marks and citation omitted); see also 19 Garrison, 759 F.3d at 1012 (“If a treating or examining doctor’s opinion is contradicted by 20 another doctor’s opinion, an ALJ may only reject it by providing specific and legitimate reasons 21 that are supported by substantial evidence.”) (internal quotation marks and citation omitted). 22 The opinions of non-treating or non-examining physicians may serve as substantial evidence 23 when the opinions are consistent with independent clinical findings or other evidence in the 24 record. Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). An ALJ errs, however, when she 25 “rejects a medical opinion or assigns it little weight” without explanation or without explaining 26 why “another medical opinion is more persuasive, or criticiz[es] it with boilerplate language that 27 fails to offer a substantive basis for [her] conclusion.” Garrison, 759 F.3d at 1012–13. 28 ORDER – No. 17-cv-01476-LB 46 1 “If a treating physician’s opinion is not given ‘controlling weight’ because it is not ‘well- 2 supported’ or because it is inconsistent with other substantial evidence in the record, the [Social 3 Security] Administration considers specified factors in determining the weight it will be given.” 4 Orn, 495 F.3d at 631. “Those factors include the ‘[l]ength of the treatment relationship and the 5 frequency of examination’ by the treating physician; and the ‘nature and extent of the treatment 6 relationship’ between the patient and the treating physician.” Id. (quoting 20 C.F.R. 7 § 404.1527(d)(2)(i)–(ii)) (alteration in original). “Additional factors relevant to evaluating any 8 medical opinion, not limited to the opinion of the treating physician, include the amount of 9 relevant evidence that supports the opinion and the quality of the explanation provided[,] the consistency of the medical opinion with the record as a whole[, and] the specialty of the physician 11 United States District Court Northern District of California 10 providing the opinion . . . .” Id. (citing 20 C.F.R. § 404.1527(d)(3)–(6)); see also Magallanes v. 12 Bowen, 881 F.2d 747, 753 (9th Cir. 1989) (ALJ need not agree with everything contained in the 13 medical opinion and can consider some portions less significant than others). 14 In addition to the medical opinions of the “acceptable medical sources” outlined above, the 15 ALJ must consider the opinions of other “medical sources who are not acceptable medical sources 16 and [the testimony] from nonmedical sources.” See 20 C.F.R. § 416.927(f)(1). “Other sources” 17 include nurse practitioners, physicians’ assistants, therapists, teachers, social workers, spouses and 18 other non-medical sources. 20 C.F.R. § 404.1513(d). The ALJ is required to consider observations 19 by “other sources” as to how an impairment affects a claimant’s ability to work, id.; nontheless, an 20 “ALJ may discount the testimony” or an opinion “from these other sources if the ALJ gives . . . 21 germane [reasons] . . . for doing so.” Molina, 674 F.3d at 1111 (internal quotations and citations 22 omitted). 23 5.1 24 Eric Bender, M.D., Sebastien Fromont, M.D., and Jessica Ross, M.D. are treating physicians at 25 Eric Bender, M.D., Sebastien Fromont, M.D., and Jessica Ross, M.D. San Francisco General Hospital Psychiatric Emergency Services.342 Dr. Bender and Dr. Fromont 26 27 28 342 AR 528–29, 662. ORDER – No. 17-cv-01476-LB 47 1 both assigned Mr. Wright a GAF of 38.343 Dr. Ross assigned Mr. Wright a GAF of 30.344 The ALJ 2 gave “little weight” to the GAF scores they assigned because 3 a GAF score, as its name indicates, is a global assessment, and paints a rather broad picture, not definitive with respect to particular aspects of workplace functioning. These scores are highly subjective ratings that can easily vary from one practitioner to the next and generally represent only a “snapshot” of the presentation of information available from a subject on the day of assessment.345 4 5 6 7 Dr. Bender, Dr. Fromont, and Dr. Ross arguably are treating medical doctors with contradicted 8 opinions because each physician assigned a different GAF score. Assuming the their opinions are 9 contradicted, the ALJ had to provide “specific and legitimate reasons supported by substantial evidence in the record” for assigning little weight to their opinions, rather than the more- 11 United States District Court Northern District of California 10 deferential standard for uncontradicted opinions. See Reddick, 157 F.3d at 725. Even under the 12 less-deferential standard for contradicted opinions, the ALJ failed to give adequate reasons for 13 discounting their opinions. 14 The ALJ’s only reason for discrediting the GAF scores of Dr. Bender, Dr. Fromont, and Dr. 15 Ross was that GAF scores generally are highly subjective and not definitive. The Ninth Circuit has 16 observed that “GAF scores, standing alone, do not control determinations of whether a person’s 17 mental impairments rise to the level of a disability (or interact with physical impairments to create 18 a disability);” nonetheless, “they may be a useful measurement.” Garrison, 769 F.3d at 1003 n.4. 19 Given the Garrison court’s holding regarding the potential usefulness of GAF scores, the ALJ 20 cannot wholly reject the GAF scores assigned by Dr. Bender, Dr. Fromont, and Dr. Ross — 21 acceptable treating medical sources — merely on the basis that they are GAF scores. Moreover, 22 the ALJ did not discuss other portions of their opinions or address whether he adopted or rejected 23 them. In sum, the ALJ did not provide sufficient reasons for discounting these treating physicians’ 24 opinions. 25 26 27 28 343 AR 528–29. 344 AR 672. 345 AR 20–21. ORDER – No. 17-cv-01476-LB 48 1 5.2 Jessica Martinez 2 Jessica Martinez completed a clinical assessment at La Posada Crisis Residential Treatment Program. Her occupation and degree are not readily apparent from the medical record. She 4 completed a clinical assessment on August 9, 2013.346 She assigned Mr. Wright a GAF of 35.347 5 The ALJ gave two reasons for assigning “little weight” to the GAF score she assigned. The first 6 reason mirrored the ALJ’s rejection of the San Francisco General Hospital doctors’ GAF scores: 7 the GAF score was “not definitive with respect to particular aspects of workplace functioning” and 8 was “highly subjective.” The second reason was that “[t]here is no information given about 9 whether Jessica Martinez is an acceptable medical source.”348 On this record, the court concludes 10 that Ms. Martinez is an “other opinion” non-medical source. See 20 C.F.R. § 404.1502(a) (listing 11 United States District Court Northern District of California 3 types of acceptable medical sources). As a non-medical source, the ALJ was required to give 12 germane reasons for rejecting Ms. Martinez’s opinion. See Molina, 674 F.3d at 1111. The ALJ’s first reason for assigning little weight to her opinion is that GAF score is not useful. 13 14 Again, for the reasons stated above, this alone is not a germane reason because the Ninth Circuit 15 has held that GAF scores may be useful when considered in combination with other medical 16 evidence. See Garrison, 769 F.3d at 1003 n.4. The ALJ’s second reason for discrediting her 17 opinion — that the record does not indicate whether she is an acceptable medical source — is not 18 sufficient either. Assuming that Ms. Martinez was a non-medical source, the ALJ had to consider 19 her observations and give germane reasons for discounting her opinions. 20 C.F.R. § 404.1513(d); 20 see also Molina, 674 F.3d at 1111. He did not. 21 5.3 22 John Warbritton, M.D. is an examining orthopedist. He opined that Mr. Wright’s spine 23 John D. Warbritton, M.D. impairment is “a fifteen to eighteen percent impairment of the whole person.”349 He also opined 24 25 26 27 28 346 AR 601–604. The ALJ incorrectly reported that Ms. Martinez assigned the GAF score on March 4, 2013. AR 21. Ms. Martinez assigned the GAF score in her assessment on August 9, 2013. AR 603–04. 347 AR 603. 348 AR 21. 349 AR 422. ORDER – No. 17-cv-01476-LB 49 1 that Mr. Wright “experiences a substantial compromise with regard to his ability to perform a wide 2 range of activities of daily living or work activities, as confirmed based upon the completion of a 3 two page ‘Questions Concerning Activities of Daily Living’ form in my office.”350 The ALJ 4 assigned “little weight” to his opinions because he “phrases his opinion on the claimant’s 5 limitations in workers compensation language, and does not specify what functions claimant can 6 or cannot do.”351 As a controverted opinion of an examining physician, the ALJ had to provide 7 “specific and legitimate reasons supported by substantial evidence in the record” for assigning 8 little weight to Dr. Warbritton’s opinion. See Reddick, 157 F.3d at 725. Here, the ALJ’s first reason for rejecting Dr. Warbritton’s opinions — that they did not state 9 Mr. Wright’s functional limitations352 — is factually inaccurate. And regardless of whether his 11 United States District Court Northern District of California 10 assessment included functional limitations, the ALJ must assess the evidence and provide specific 12 and legitimate reasons for rejecting it. Id. 13 The ALJ’s second reason for assigning little weight to Dr. Warbritton’s opinions — that his 14 assessment is phrased in workers-compensation language — is not specific and legitimate. “[T]he 15 ALJ may not disregard a physician’s medical opinion simply because it was initially elicited in a 16 state workers-compensation proceeding, or because it is couched in the terminology used in such 17 proceedings.” Booth v. Barnhart, 181 F. Supp. 2d 1099, 1105 (C.D. Cal. 2002) (collecting cases); 18 see also Gonzales v. Colvin, No. CV 15-00272-RAO, 2015 WL 6673685, at *3 (C.D. Cal. Oct. 30, 19 2015) (holding that the ALJ’s decision to reject evidence — on the ground that it was elicited in 20 the context of workers compensation — was not specific or legitimate). Moreover, the ALJ may 21 translate terms of art contained in such medical opinions into the corresponding Social Security 22 terminology in order to accurately assess the implications of those opinions. Id.; see also Marci v. 23 Chater, 93 F.3d 540, 544 (9th Cir. 1996) (holding that an ALJ analyzing medical opinions using 24 workers-compensation terminology can “draw inferences” logically flowing from the evidence). 25 26 27 28 350 Id. (emphasis in original). 351 AR 20. 352 AR 422. ORDER – No. 17-cv-01476-LB 50 1 In sum, the ALJ failed to provide specific and legitimate reasons for rejecting Dr. Warbritton’s 2 opinion. See Booth, 181 F. Supp. 2d at 1105. 5.4 4 Brian Crawford is a treating chiropractor.353 He opined that Mr. Wright could not do the 5 following: lift/push/pull/carry more than 10 pounds at any time; engage in prolonged bending or 6 stooping; engage in prolonged or repetitive climbing, kneeling, or squatting; climb ladders or work 7 at heights; and sit more than 2 hours/minute without getting up.354 The ALJ gave little weight to 8 the opinion of Dr. Crawford because he “is not an acceptable medical source,” his “‘back pain 9 disability index’ gives no information on claimant’s functional limitations,” and his “disability 10 slips reflection only short-term, time-limited restrictions.”355 As a chiropractor, Mr. Crawford is 11 United States District Court Northern District of California 3 “other source” evidence. 20 C.F.R. § 404.1513(d). The ALJ had to give germane reasons for 12 rejecting Mr. Crawford’s opinion. See Molina, 674 F.3d at 1111. Brian Crawford, D.C. As the court discussed in the preceding section, these reasons — Mr. Crawford is not an 13 14 acceptable medical source and the extent of his assessment of Mr. Wright’s functional limitations 15 — are not, without more, legitimate reasons for rejecting Mr. Crawford’s opinions. 20 C.F.R. § 16 404.1513(d); see Molina, 674 F.3d at 1111. The additional reason the ALJ cites for rejecting Mr. 17 Crawford’s opinion — that he assigned only short-term and time-limited restrictions — may or 18 may not be sufficient. On remand, the ALJ must consider the issue in his overall assessment of the 19 medical-opinion evidence. 20 5.5 21 Raul Reyes is a treating registered nurse that Mr. Wright saw at Sunset Mental Health 22 Raul Reyes, R.N. Center.356 Nurse Reyes assigned Mr. Wright a GAF score of 55.357 The ALJ assigned “little 23 24 353 25 AR 377. 354 AR 391. 26 355 AR 20. 356 AR 546–552. 357 AR 887. 27 28 ORDER – No. 17-cv-01476-LB 51 1 weight” to the GAF score because “there is no information given about whether [R]aul Reyes358 2 examined or treated Mr. Wright, or whether he is an acceptable medical source.”359As a R.N., 3 Nurse Reyes is “other source” evidence. 20 C.F.R. § 404.1513(d). The ALJ had to give germane 4 reasons for rejecting Nurse Reyes’s opinion. See Molina, 674 F.3d at 1111. The ALJ’s articulated 5 reasons for rejecting Nurse Reyes’s opinions are insufficient. The ALJ stated that there is no 6 evidence about whether he is an acceptable medical source but the medical records identify Nurse 7 Reyes as a registered nurse, and thus he is an “other source.” 360 20 C.F.R. § 404.1513(d). That 8 requires the assessment described above. The ALJ also stated that there is no evidence about 9 whether Nurse Reyes examined or treated Mr. Wright, but the medical records show that he examined Mr. Wright in person several times from November 11, 2012 to December 14, 2012.361 11 United States District Court Northern District of California 10 Under the applicable legal standard, the ALJ did not articulate germane reasons for rejecting 12 Nurse Reyes’s opinion. The court thus remands this issue to the ALJ. 13 14 6. Whether the ALJ Erred in Determining Mr. Wright’s RFC The ALJ determined Mr. Wright had the RFC to perform light work with the following 15 16 limitations: “lift 20 pounds; can complete an eight hours workday, if given the option to 17 alternative between sitting and standing, as needed, in thirty minute increments; and who is 18 limited to simple repetitive tasks.”362 Mr. Wright argues that ALJ erred in his RFC analysis 19 because he excluded from his RFC determination the need for a cane, the impact of auditory 20 hallucinations, and the limitation to superficial interactions with the public.363 Mr. Wright makes 21 the related argument that the ALJ committed multiple legal errors, which caused the ALJ to 22 23 358 The ALJ refers to Nurse Raul Reyes as “Paul Reyes.” AR 20. 359 25 AR 20. 360 AR 542. 26 361 AR 546–552. 362 AR 18. 363 Mot. – ECF No. 28 at 6. 24 27 28 ORDER – No. 17-cv-01476-LB 52 1 overlook material functional limitations and render a flawed RFC.364 Mr. Wright raises these as 2 separate issues.365 Given the similarity of the issues, the court addresses them together here. “[T]he ALJ is responsible for translating and incorporating clinical findings into a succinct 3 4 RFC.” Rounds v. Comm’r of Social Sec. Admin., 807 F.3d 996, 1006 (9th Cir. 2015); see also 5 Vertigan v. Halter, 260 F.3d 1044, 1049 (9th Cir. 2001) (“it is the responsibility of the ALJ, not 6 [a] physician, to determine residual functional capacity [RFC]”). The ALJ’s determination of a 7 claimant’s RFC must be based on the medical opinions and the totality of the record. 20 C.F.R. §§ 8 404.1527(d), 404.1546(c). Moreover, the ALJ is responsible for “‘resolving conflicts in medical 9 testimony, and for resolving ambiguities.’” Garrison, 759 F.3d at 1010 (quoting Andrews, 53 F.3d at 1039). In weighing and evaluating the evidence, the ALJ must consider the entire case record, 11 United States District Court Northern District of California 10 including each medical opinion in the record, together with the rest of the relevant evidence. 20 12 C.F.R. § 416.927(b); see also Orn, 495 F.3d at 630 (“[A] reviewing court must consider the entire 13 record as a whole and may not affirm simply by isolating a specific quantum of supporting 14 evidence.”) (internal quotation marks and citation omitted). The RFC assessment is built on the ALJ’s assessment at the prior steps in the sequential 15 16 evaluation process and his weighing of the medical evidence. Because the court remands based on 17 the analysis in the prior steps, the court remands here too. On remand, the ALJ can reconsider the 18 RFC assessment at step five after it considers its analysis in the earlier steps. 19 20 21 7. Whether the ALJ Erred by Failing to Identify and Resolve Discrepancies Between VE Testimony and the ALJ’s RFC Assessment 22 Mr. Wright contends that the ALJ erred at step five because he failed to identify and resolve 23 inconsistencies between the job descriptions for the DOT jobs that the VE identified and the ALJ’s 24 RFC.366 The VE testified that Mr. Wright could perform the following jobs: bench assembler, 25 26 27 28 364 Id. at 7. 365 Id. at 6–7. 366 Mot. – ECF No. 28 at 7. ORDER – No. 17-cv-01476-LB 53 1 DOT 706.684-022; electrical equipment sub-assembler, DOT 729.684-054; and cashier II, DOT 2 211.462-010.367 Mr. Wright argues that the DOT job descriptions for the jobs are inconsistent with 3 his need to use a cane and his need to alternate between sitting and standing.368 The issue of the VE testimony is predicated on the ALJ’s RFC assessment. The court has held 4 5 that the ALJ erred in evaluating Mr. Wright’s mental impairments, his use of a cane, and his 6 weighing of the medical evidence. On remand, the ALJ’s assessment at step five will rest on his 7 reconsideration of the issues. This may change the RFC assessment and the formulation of the 8 hypotheticals posed to the VE, and the VE’s resulting responses regarding DOT jobs. The court 9 remands on this issue. 10 United States District Court Northern District of California 11 12 8. Whether the ALJ Should Have Limited Mr. Wright to Being Off-Task Fifteen Percent of the Day and Found That His Limitations Preclude Employment Mr. Wright’s final argument is that the ALJ should have found that his limitations — 13 14 specifically, his need to alternate between sitting and standing, his use of a cane, and his auditory 15 hallucinations — required him to be off-task fifteen percent of the day, and that such a limitation 16 precluded him from employment.369 17 As the court discussed in the preceding sections, the hypotheticals posed to the VE and the 18 VE’s assessments (including her responses) are predicated on the ALJ’s weighing and evaluation 19 of the medical records. Because the court remands on those issues, the court remands on this issue 20 too. The ALJ’s evaluation of Mr. Wright’s mental impairments, use of a cane, and the medical 21 evidence affect the formulation of the hypotheticals to the VE and her responses. 22 23 24 25 26 27 28 367 AR 48–49. 368 Mot. – ECF No. 28 at 7. 369 Id. at 9. ORDER – No. 17-cv-01476-LB 54 CONCLUSION 1 2 3 The court grants Mr. Wright’s summary-judgment motion, denies the Commissioner’s crossmotion, and remands this case for further proceedings consistent with this order. 4 IT IS SO ORDERED. 5 Dated: June 25, 2018 ______________________________________ LAUREL BEELER United States Magistrate Judge 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 ORDER – No. 17-cv-01476-LB 55