Hampton v. Commissioner of Social Security, No. 3:2017cv02004 - Document 20 (N.D. Cal. 2018)

Court Description: ORDER granting 16 Motion for Summary Judgment. The court grants Mr. Hampton's summary-judgment motion, denies the Commissioner's cross-motion, and remands this case for further proceedings consistent with this order. (Beeler, Laurel) (Filed on 6/8/2018)
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Hampton v. Commissioner of Social Security Doc. 20 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 DENNIS L. HAMPTON, Plaintiff, 12 v. 13 14 NANCY A. BERRYHILL, Acting Commissioner of Social Security, 15 Defendant. 16 17 Case No. 17-cv-02004-LB ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Re: ECF No. 16 INTRODUCTION 18 Plaintiff Dennis L. Hampton seeks judicial review of a final decision by the Commissioner of 19 the Social Security Administration (“Commissioner”) denying his claim for disability benefits 20 under Title II of the Social Security Act.1 Mr. Hampton moved for summary judgment;2 the 21 Commissioner opposed the motion and filed a cross-motion for summary judgment.3 Under Civil 22 Local Rule 16-5, the case is submitted for decision without oral argument. All parties have 23 24 25 26 27 28 1 Compl. ECF No. 1 at 2 (¶ 9). Record citations refer to material in the Electronic Case File (“ECF”); pinpoint citations are to the ECF-generated page numbers at the top of the documents. 2 Mot. ECF No. 16. 3 Mot. ECF No. 19. ORDER – No. 17-cv-02004-LB Dockets.Justia.com 1 consented to magistrate jurisdiction.4 The court grants the plaintiff’s motion, denies the 2 Commissioner’s cross-motion, and remands for further proceedings. 3 4 5 STATEMENT 1. Procedural History and Prior Administrative and Judicial Rulings In 2004, Mr. Hampton, then age 35, filed an application for Social Security disability 7 insurance (“SSDI”) benefits under Title II of the Social Security Act, alleging a back injury, 8 arthritis in his back, and depression.5 He also filed a claim for supplemental security income 9 (“SSI”) benefits under Title XVI.6 The Commissioner denied his SSDI and SSI claims,7 and Mr. 10 Hampton timely requested a hearing before an Administrative Law Judge (“ALJ”).8 On August 11 United States District Court Northern District of California 6 30, 2005, the ALJ heard testimony from Mr. Hampton.9 On December 29, 2005, the ALJ found 12 that Mr. Hampton was not disabled because he could perform his past work as an office worker.10 13 Mr. Hampton reapplied for SSDI benefits on February 2, 2007 and December 31, 2008.11 The 14 Commissioner denied those applications.12 On July 7, 2010, Mr. Hampton, then age 41, filed another application for SSDI benefits, 15 16 alleging back and neck injury, arthritis, fibromyalgia, bipolar, severe depression, and anxiety.13 He 17 18 19 20 21 22 23 24 25 26 27 28 4 Consents ECF Nos. 4, 8. 5 AR 110, 849. 6 Id. 7 AR 110. 8 AR 110, 849. 9 AR 110. 10 AR 119, 121. 11 AR 181. 12 Id. 13 AR 123, 126, 178. The application was filed on July 7, 2010 (AR 123) and completed on July 19, 2010 (AR 178). ORDER – No. 17-cv-02004-LB 2 1 alleged an onset date of December 26, 2006.14 On December 3, 2010, the Commissioner denied 2 his claim.15 3 Mr. Hampton timely appealed the Commissioner’s decision and requested an ALJ hearing.16 4 On September 19, 2011, ALJ K. Kwon held the hearing and heard testimony from Mr. Hampton 5 and a vocational expert.17 On November 5, 2011, the ALJ issued an unfavorable decision (“2011 6 ALJ decision”), holding that Mr. Hampton was not disabled because despite his limitations, he 7 was capable of working at jobs that exist in the national economy.18 The Appeals Council denied 8 Mr. Hamilton’s request for review on June 19, 2013.19 On October 4, 2013, Mr. Hampton appealed the 2011 ALJ decision to this court.20 Mr. 10 Hampton argued that the ALJ erred by (1) improperly rejecting the medical evidence from the 11 United States District Court Northern District of California 9 examining psychologist, Dr. Zipperle, and (2) failing to provide legally sufficient reasons to reject 12 Mr. Hampton’s testimony.21 On August 12, 2014, the district judge remanded the case for further 13 administrative proceedings. Hampton v. Colvin, No. 13-cv-04624-MEJ, 2014 WL 3962618 (N.D. 14 Cal. Aug. 12, 2014) (“Hampton I”). For the first issue (the “limited weight” that the ALJ gave to 15 examining psychologist Dr. Zipperle’s opinion), the court held that the ALJ provided “a specific 16 and legitimate reason to discount Dr. Zipperle’s opinion.” Id. at *7. For the second issue (the 17 ALJ’s assessment of the credibility of Mr. Hampton’s testimony about his symptoms), the court 18 held that the ALJ “failed to provide legally sufficient reasons to reject . . . [Mr. Hampton]’s 19 testimony.”22 The court observed that in evaluating Mr. Hampton’s credibility, the ALJ could 20 discredit Mr. Hampton’s testimony based on his reported activities, his treatment records, and his 21 22 23 24 25 26 27 28 14 AR 178. 15 AR 123, 126 30. 16 AR 110, 145 46, 849. 17 AR 38 105, 849. 18 AR 23 33. 19 AR 7 9. 20 AR 871 73. 21 Id.; AR 891. 22 Id. ORDER – No. 17-cv-02004-LB 3 1 treatment-seeking history; the court held, however, that the ALJ, “was required to provide clear 2 and convincing reasons for discrediting [Mr. Hampton’s] subjective complaints” about the 3 severity of his symptoms and had not done so.23 The court directed the following: “on remand the 4 ALJ must reassess the evidence in the record, and if the ALJ continues to discount any of 5 Plaintiff’s subjective complaints, must provide clear and convincing reasons for doing so 6 consistent with this order.”24 On August 10, 2015, ALJ Kwon held a supplemental hearing on remand.25 Mr. Hampton and 7 vocational expert Stephen P. Davis testified at the hearing.26 On November 23, 2015, the ALJ 9 issued her decision (“2015 ALJ decision”).27 The ALJ noted that the Social Security Act required 10 Mr. Hampton to establish his disability on or before the expiration of his coverage on December 11 United States District Court Northern District of California 8 31, 2011 (and sometime after his alleged onset date of December 26, 2006) (the “relevant 12 period”).28 The ALJ denied Mr. Hampton disability benefits because his impairments during the 13 relevant period were not severe enough to keep him from performing his past relevant work as a 14 vending machine attendant.29 In the alternative, the ALJ found that “[b]ased on the testimony of 15 the vocational expert” and “considering [Mr. Hampton’s] age, education, work experience, and 16 residual functional capacity (“RFC”), [Mr. Hampton] was capable of making a successful 17 adjustment to other work that existed in significant numbers in the national economy” during the 18 relevant period. The Appeals Council denied Mr. Hampton’s request for review.30 Mr. Hampton 19 20 21 22 23 24 25 26 27 28 23 24 25 26 Id. Id. AR 806–45. Id. 27 AR 788 99. 28 AR 789, 791. 29 AR 797 99. 30 AR 776 79, 784. ORDER – No. 17-cv-02004-LB 4 1 timely appealed the 2015 ALJ decision and moved for summary judgment.31 The Commissioner 2 opposed the motion and filed a cross-motion for summary judgment.32 3 4 2. Summary of Medical Evidence 5 2.1.1 Dr. John Pendleton: Primary-Care Physician — Treating 6 Mr. Hampton began seeing Dr. John Pendleton at the Petaluma Health Center in 2005.33 Dr. 7 Pendleton’s treatment notes show a history of depression, chronic pain, insomnia fibromyalgia, 8 syncope (fainting), degenerative disc disease, anxiety, and hypertension.34 In 2008, Mr. Hampton was struggling with obesity, insomnia, chronic pain, and anxiety.35 Dr. 9 Pendleton prescribed the following medications: Effexor, Remeron, Ambien, and Klonopin.36 In 11 United States District Court Northern District of California 10 late 2009, Dr. Pendleton reported that Mr. Hampton was using marijuana twice a day for his 12 anxiety and depression.37 Dr. Pendleton started Mr. Hampton on Vistaril and Xanax to treat his 13 anxiety.38 14 In early 2010, Dr. Pendleton began treating Mr. Hampton for fibromyalgia, irritable-bowel 15 syndrome, hypertension, and lower-back syndrome (in addition to treating Mr. Hampton’s chronic 16 pain, anxiety disorder, and bipolar disorder).39 Dr. Pendleton prescribed Mr. Hampton the 17 following medications: Dilaudid, Methadone, Klefex, and Baclofen for pain management; Ambien 18 for insomnia; Albuterol; Xanax or Cymbalta for anxiety; Terazosin; Phenegran, Indomethacin; 19 20 21 22 23 24 25 26 27 28 31 Mot. ECF No. 16. 32 Mot. ECF No. 19. 33 AR 472. 34 AR 296–367, 436 60, 1296 1304. 35 AR 340 48. 36 37 38 39 Id. AR 315. Id. AR 297 309. ORDER – No. 17-cv-02004-LB 5 1 Lyrica; Lisinopril; Klonopin; Donnotal; Effexor or Tegretol for bipolar; and Metropolol for 2 hypertension.40 Dr. Pendleton’s notes from June 2010 indicate a “red flag” when Mr. Hampton was “unable to 3 4 give [a] urine sample” and were notated to: “follow opiate use carefully.”41 In August 2010, Dr. 5 Pendleton stated that Mr. Hampton was “not sleeping well,” had “increased depression,” and was 6 “trying to do on-line school.”42 On March 3, 2011, Dr. Pendleton completed a Cervical Spine Residual Functional Capacity 7 8 Questionnaire43 and diagnosed Mr. Hampton with degenerative-disc disease and chronic neck- 9 and-back pain.44 Dr. Pendleton noted that Mr. Hampton was “quite impaired by chronic insomnia, anxiety, [and] depression.”45 He described the severity of Mr. Hampton’s pain as “daily pain for 11 United States District Court Northern District of California 10 most of the day.”46 Mr. Hampton experienced side effects of dizziness and drowsiness from 12 Dilaudid/Klonopin that “may have implications for working.”47 Dr. Pendleton said that Mr. 13 Hampton could sit, stand, or walk for a total of two hours within an eight-hour working day48 and 14 must include five minutes of walking every 30 minutes during his work day.49 Dr. Pendleton noted 15 that he would need to do an “O.T. evaluation” to answer the questions about how much weight 16 Mr. Hampton could carry in a competitive work situation or how long Mr. Hampton could sit or 17 stand at one time.50 Dr. Pendleton stated that the description of symptoms and limitations applied 18 as early as 2007.51 19 20 21 22 23 24 25 26 27 28 40 AR 297 309. 41 AR 440. 42 AR 299. 43 AR 472 76. 44 AR 472. 45 AR 476. 46 AR 472. 47 AR 473. 48 AR 475. 49 Id. 50 AR 474 75. 51 AR 476. ORDER – No. 17-cv-02004-LB 6 1 2.1.2 Dr. Ken Weinstock: Psychiatrist — Treating 2 Dr. Ken Weinstock is a psychiatrist at Petaluma Health Center and is Dr. Pendleton’s 3 colleague. Dr. Weinstock saw Mr. Hampton on October 19, 201152 and April 11, 201253 (after the 4 November 2011 ALJ hearing). In his October 2011 notes, Dr. Weinstock indicated that Mr. 5 Hampton had a history of bipolar disorder, had an assessment of personality disorder, and was in 6 remission for amphetamine dependency.54 Dr. Weinstock noted that Mr. Hampton’s mood was 7 “irritable and frustrated” and that his demeanor was “friendly, calm, and not at all sedated.”55 He 8 reported that Mr. Hampton was irritated by his wife’s “change in personality” when she returned 9 from rehab.56 Mr. Hampton was taking Metroprolo, Listinopril, Ventolin, Ambien, Tenezosin, Remeron, Klonophin, Tegretol, Carbmarsepine, Pentanyl, and Percocet.57 Mr. Hampton’s 11 United States District Court Northern District of California 10 “medications and general affect [were] well regulated to his baseline.”58 Dr. Weinstock had no 12 acute psychiatric concerns that day.59 In April 2012, Dr. Weinstock noted that Mr. Hampton “recently filed divorce papers” from his 13 14 fourth wife and was “smoking [marijuana] occasionally.”60 Dr. Weinstock’s psychiatric exam 15 noted that Mr. Hampton had a “friendly and calm” demeanor and a “frustrated” mood. Dr. 16 Weinstock recommended that Mr. Hampton “continue Remeron, Effexor, [and] Tregretol.”61 17 18 19 20 21 22 23 24 25 26 27 28 52 AR 1191. 53 AR 1187. 54 AR 1191. 55 56 57 58 59 60 61 Id. Id. Id. Id. Id. AR 1187. Id. ORDER – No. 17-cv-02004-LB 7 1 2.1.3 Dr. John Alchemy: Family Practitioner — Examining 2 On October 24, 2010, Dr. John Alchemy completed a comprehensive internal-medicine 3 evaluation.62 He diagnosed Mr. Hampton with “chronic low back and neck pain, uncontrolled 4 substance, . . . [h]ypertension, not controlled, . . . [and] [o]ngoing tobacco abuse.”63 Dr. Alchemy 5 did not evaluate Mr. Hampton’s history of bipolar, depression, and anxiety.64 Dr. Alchemy found 6 that Mr. Hampton had “[n]o limitations” for “sitting, walking, standing, or lifting,”65 but he noted 7 that Mr. Hampton “walk[ed] in a slightly flexed posture with a cane . . . [and] moans when he 8 stands up from a chair.”66 While Dr. Alchemy was testing Mr. Hampton’s range of motion, Mr. Hampton momentarily 9 lost consciousness when he “turn[ed] his head to the right side and titlt[ed] back.”67 Mr. Hampton 11 United States District Court Northern District of California 10 “close[d] his eyes and list[ed] backward.”68 During this episode, Mr. Hampton “[was] easily 12 supported and his eyes open[ed] within 2 3 seconds.”69 Mr. Hampton and his wife reported that 13 “this [was] [a] normal event [for Mr. Hampton] with neck motion.”70 Dr. Alchemy could not 14 provide a reason “related to an objective documented condition” for Mr. Hampton’s “brief 15 momentary loss of consciousness.”71 Dr. Alchemy found that Mr. Hampton should “no[t] work at 16 heights, around heavy machinery, at extreme temperatures, or in safety-sensitive work 17 environments.”72 Dr. Alchemy imposed “workplace environmental activity limitations” due to Mr. 18 Hampton’s “stated loss of consciousness.”73 Dr. Alchemy concluded that Mr. Hampton should 19 20 21 22 23 24 25 26 27 28 62 AR 379 83, 459 64. 63 AR 382, 463. 64 Id. 65 AR 382-83, 464. 66 AR 381, 462. 67 AR 381. 68 69 70 71 72 73 Id. AR 381, 462. Id. Id. AR 383, 464. Id. ORDER – No. 17-cv-02004-LB 8 “no[t] climb[] or balance[]” and should “continue using the cane” for comfort, but he could not 2 “document a condition [] which would necessitate the use of a cane.”74 3 2.1.4 Dr. Marion-Isabelle Zipperle: Psychologist — Examining 4 On October 28, 2010, Dr. Marion-Isabelle Zipperle, a clinical psychologist, performed a 5 comprehensive psychiatric evaluation of Mr. Hampton.75 During the examination, Mr. Hampton 6 claimed that he was “in chronic pain, [] depressed[,] and moody.”76 Dr. Zipperle reported that Mr. 7 Hampton “need[ed] help to bathe and dress”77 and did not perform yard work or help clean the 8 house because “he c[ould] not bend.”78 Mr. Hampton also stated that he “very rarely dr[ove],” but 9 Dr. Zipperle’s staff saw Mr. Hampton drive himself away after the examination.79 Mr. Hampton 10 had trouble walking and brought a cane to the examination.80 Mr. Hampton was cooperative and 11 United States District Court Northern District of California 1 “[d]epressed, quiet, coherent, and logical” and “despairing.”81 Dr. Zipperle noted no deficits in 12 intellectual functioning.82 Dr. Zipperle diagnosed Mr. Hampton with a “pain disorder, post-traumatic stress disorder, 13 14 bipolar disorder, panic disorder with agoraphobia, amphetamine dependence in remission, and a 15 personality disorder.”83 Dr. Zipperle gave the following prognosis: The claimant’s prognosis is poor due to the fact that he has mood swing keeping him from functioning correctly. He is expansive, has racing thoughts, is impulsive, does things he regrets, has poor judgment, had an accident in which that he re-lives, flashbacks, nightmares, intrusive thoughts, becomes equally depressed, no motivation, no energy, withdrawn, crying, helpless, hopeless, feeling self-esteem, self-confidence, suicidal with no plan, nightmares, anxiety about going out and being in crowds and open spaces. He does not have any apparent cognitive impairment. 16 17 18 19 20 21 22 23 24 25 26 27 28 74 AR 383. 75 AR 386 89. 76 AR 386. 77 AR 387. 78 Id. 79 AR 386. 80 AR 387. 81 AR 387 88. 82 AR 388. 83 Id. ORDER – No. 17-cv-02004-LB 9 His impairments are emotional, psychological, and they would not improve in 12 months. He is in therapy periodically.84 1 2 Dr. Zipperle described Mr. Hampton’s functional assessment as follows: 3 The claimant can manage his own money. 4 The claimant can perform simple and repetitive tasks. 5 The claimant could not accept instructions from supervisors or interact with coworkers and the public. 6 The claimant would need special or additional instructions to work. He could not maintain regular attendance in a workplace and he would have problems completing a workday because of his performance issue from his psychiatric problems. 7 8 The claimant has impaired ability to handle stress in a workplace.85 9 2.1.5 Dr. Norman Zukowsky: Psychiatric Consultant (PhD) — Consulting 11 United States District Court Northern District of California 10 On November 17, 2010, Dr. Norman Zukowsky, PhD, the state-agency psychiatric consultant, 12 completed two checklist forms, a Psychiatric Review Technique and a Mental Residual Functional 13 Capacity Assessment.86 In the Psychiatric Review Technique, Dr. Zukowsky found that Mr. 14 Hampton had mild restriction of activities in daily living, moderate difficulties in maintaining 15 social functioning, moderate difficulties maintaining concentration, persistence, and pace, and no 16 repeated episodes of decompensation.87 17 In the Mental Residual Functional Capacity Assessment, Dr. Zukowsky found that Mr. 18 Hampton was moderately limited in the following: “ability to understand and remember detailed 19 instructions;” “ability to carry out detailed instructions;” and “ability to interact appropriately with 20 the general public.”88 Dr. Zukowsky said that Mr. Hampton could “understand and remember 1- 21 and 2-step instructions,” “accept supervision[,] and generally get along with others.”89 He noted 22 that Mr. Hampton’s “psychiatric symptoms may interfere with interactions with others at times, so 23 24 25 26 27 28 84 85 AR 389. Id. 86 AR 393 406. 87 AR 401. 88 AR 404 05. 89 AR 406. ORDER – No. 17-cv-02004-LB 10 1 [Mr. Hampton] should not interact with the public consistently.”90 Dr. Zukowsky said that Mr. 2 Hampton was “most likely” to have “employment success . . . if assigned 1- or 2-step duties in a 3 non-public setting.”91 4 As part of Mr. Hampton’s case analysis, Dr. D. Pong, MD, reported that Dr. Zukowsky had 5 noted that (1) the accuracy of Mr. Hampton’s (and his wife’s) “ADL” (Activities of Daily Living) 6 questionnaire was uncertain based in part on Mr. Hampton’s claim that he did not drive but was 7 seen driving away from his appointment with Dr. Zipperle;92 (2) Dr. Zipperle’s assessment 8 “confuses what [Mr. Hampton] has reported and what she [Dr. Zipperle] observe[d] or 9 conclude[d],” (3) the “diagnoses and deficits in [Mr. Hampton’s] work abilities appear largely unsupported except by [Mr. Hampton’s] allegation[s],”93 and (4) “because [Mr. Hampton] [was] 11 United States District Court Northern District of California 10 able to drive/travel independently when necessary, [was] fulfilling requirements of an online 12 school, and interact[ed] with others in an acceptable fashion,” Mr. Hampton “c[ould] at least 13 perform duties of a few steps in a competitive, nonpublic work setting.”94 14 15 3. Mr. Hampton’s Testimony — 2011 and 2015 Hearings At the September 19, 2011 hearing, Mr. Hampton testified that he worked as a truck driver 16 17 from 1999 to December 26, 2006, the date of a syncope-related accident, and had not worked 18 since.95 At the time of the hearing, Mr. Hampton was living with his third wife,96 “living off of 19 family loans, [his] wife’s trust fund, and [a] worker’s comp claim.”97 In 2010, Mr. Hampton 20 enrolled in online classes at the Art Institute in Pittsburg and took one class every six weeks.98 Mr. 21 22 23 24 25 26 27 28 90 91 92 93 94 Id. Id. AR 409. The attribution to Dr. Zukowsky of these obstacles is in a report signed by “D. Pong MD.” Id. Id. 95 AR 934 35. 96 AR 934. 97 AR 936. 98 AR 939. ORDER – No. 17-cv-02004-LB 11 1 Hampton testified that he had four to five assignments per week and spent roughly ten hours a 2 week on his assignments — roughly an hour and a half a day.99 He failed a class “due to an 3 inability to spend that much time on a computer,”100 and his prescribed medication made him 4 drowsy.101 The ALJ asked Mr. Hampton what was keeping him from working.102 Mr. Hampton testified 5 that his back and neck caused him a lot of pain so he “constantly had to change [his] position, 7 can’t sit upright in a chair for very long, [and] had to be able to get up and walk around . . . about 8 every 10 to 20 minutes . . . or lean against a wall . . . and then lay down . . . at least a half an hour 9 of every hour.”103 Mr. Hampton testified that he saw his primary care physician, Dr. Pendleton, 10 once a month.104 Dr. Pendleton prescribed his medications “for the last couple of years.”105 Mr. 11 United States District Court Northern District of California 6 Hampton reported that the medications “cover about 75% of the pain.”106 Mr. Hampton 12 acknowledged that he had not sought treatment for the rest of the pain.107 He reported that an 13 average day consisted of his waking up at “10 or 10:30 a.m.,” taking his medication, sitting “in 14 bed for two hours [un]til the medicine takes effect,” “get[ting] out of bed . . . [to] sit in his recliner 15 for part of the day, . . . and then, about halfway through the day, I end up back in the bedroom 16 again laying down because the recliner started to hurt my back, so I need to change positions.”108 17 If it is a “good day,” Mr. Hampton would get dressed and goes with his wife to the grocery 18 19 20 21 22 23 24 25 26 27 28 99 AR 940 41, 943. 100 AR 944. 101 AR 960. 102 AR 946. 103 AR 946 47. 104 AR 950. 105 AR 960. 106 AR 947. 107 AR 948. 108 AR 961. ORDER – No. 17-cv-02004-LB 12 1 store.109 Mr. Hampton testified about the side effects from the medications, such as his being 2 “lethargic, sleepy, dizzy” and having “diarrhea.”110 Regarding his syncope, Mr. Hampton said that he passed out “once every two, three days,”111 3 4 requiring either trips to the emergency room (mostly) or crawling back into bed (sometimes) 5 because112 “it’s not worth sitting in the emergency room for seven hours.”113 Mr. Hampton 6 testified that he could carry up to 10 pounds,114 was pursuing a hobby in photography,115 and 7 “visit[ed] his parents weekly.116 He said that he did not drive except for in “a rare emergency” 8 such as when his wife was really sick.117 On August 10, 2015, Mr. Hampton testified on remand before ALJ Kwon at a supplemental 9 hearing.118 The ALJ questioned Mr. Hampton about matters including his marital status, living 11 United States District Court Northern District of California 10 situation, education level, daily living activities, medical conditions, and work history.119 Mr. 12 Hampton testified that he was now divorced and living with his parents (but had been living with 13 his ex-wife during the relevant period).120 Mr. Hampton completed high school and a year and a 14 half of college credits as a part-time student but was unable to finish his degree because of the side 15 effects of his medications, which “fuzz[ed] his brain.”121 Mr. Hampton testified that he last worked as commercial truck driver but had not worked since 16 17 December 26, 2006, when he was in a traffic accident after a syncope episode where he “blacked 18 19 20 21 22 23 24 25 26 27 28 109 AR 962. 110 AR 960. 111 AR 950 51. 112 Id. 113 AR 951. 114 AR 964. 115 AR 965. 116 AR 967. 117 AR 938. 118 AR 806 08. 119 AR 811 36. 120 AR 811. 121 AR 811, 822 23, 840. ORDER – No. 17-cv-02004-LB 13 1 out behind the wheel and hit a guy head-on” in his truck and lost his commercial driver’s license; 2 he eventually lost his regular driver’s license too because of his medical condition.122 Mr. 3 Hampton testified that he had blacked out a few times before the accident123 and “once every two 4 to three months” after the accident.124 Mr. Hampton described a syncope episode as “hit[ting] the 5 floor and out cold for . . . 30 seconds.”125 Mr. Hampton said that he was now better able to 6 recognize an upcoming syncope episode, which includes “tingling up the back of [his] neck” and 7 “lightheadedness.”126 He testified that his current medications stabilized his syncope and bipolar 8 symptoms and that he had not had an episode for approximately one year or more.127 Mr. Hampton testified that he spent most of his time at home128 and that his parents assisted 9 him with laundry and cooking129 (although he did “laundry a couple times” and “occasionally 11 United States District Court Northern District of California 10 cook[ed] a meal.”130 Mr. Hampton said that he did not now do any grocery shopping131 but made 12 his bed and took care of personal care: “dressing, showering and all that. . . . .”132 Mr. Hampton 13 testified that he had a girlfriend and occasionally saw friends.133 Mr. Hampton testified that he had not driven since 2006, except for once when he “drove [his] 14 15 girlfriend home because she had a little too much to drink.”134 Family members gave him rides, 16 17 18 19 20 21 22 23 24 25 26 27 28 122 AR 811 14. 123 AR 813. 124 AR 814 15. 125 AR 816. 126 AR 817. 127 AR 815, 818. 128 AR 826. 129 130 Id. Id. 131 AR 827. 132 AR 826. 133 AR 827. 134 AR 813 14. ORDER – No. 17-cv-02004-LB 14 1 and he took the bus.135 Mr. Hampton testified he did photography “occasionally . . . once every 2 two to three months” between 2006 and 2011.136 He testified that a psychiatrist at Petaluma Health Center first prescribed him medication, but 3 4 he could not recall her name.137 Then, Mr. Hampton’s primary-care physician, Dr. Pendleton, 5 started monitoring Mr. Hampton’s medications because Mr. Hampton did not have a good 6 relationship with the psychiatrist.138 The ALJ asked Mr. Hampton how he managed his pain.139 7 Mr. Hampton responded that from 2006 to 2011, he took Dilauded, Percocet, Tegretol, and 8 Morphine for pain management.140 He said that he spent lots of time in bed and was often fatigued 9 during the day,141 napping between two to four hours every day.142 Mr. Hampton tried physical therapy unsuccessfully for six months.143 He tried acupuncture, which gave him temporary relief 11 United States District Court Northern District of California 10 for one to two hours after each appointment.144 Mr. Hampton testified that he started using a 12 fentanyl pain patch on his back in October 2011,145 which was more effective for pain 13 management than pills, which he described as a “pill rollercoaster.”146 Mr. Hampton testified that 14 he changed positions often throughout the day to manage the pain.147 15 The ALJ asked Mr. Hampton about his experience “ghost hunting” in 2008.148 Mr. Hampton 16 explained he got into “ghost hunting” in early 2008 through a friend and “quit going four months 17 18 19 20 21 22 23 24 25 26 27 28 135 AR 827. 136 AR 828. 137 AR 820. 138 AR 820 21. 139 AR 831. 140 AR 838. 141 Id. 142 AR 839. 143 AR 830. 144 AR 831. 145 Id. 146 AR 831, 1303. 147 AR 831. 148 AR 831–32. ORDER – No. 17-cv-02004-LB 15 1 later.”149 He described “ghost hunting” as answering house calls for people who believe that their 2 house is haunted150 and using monitoring equipment to detect paranormal activity.151 Mr. 3 Hampton’s role was watch the monitor to give the group members bathroom or other breaks, and 4 he was an active participant for 10 to 15 minutes at a time.152 5 6 4. Vocational Expert Stephen P. Davis’s Testimony — 2015 Stephen P. Davis, a vocational expert (“VE”), testified at the ALJ hearing on remand on 7 August 10, 2015.153 The ALJ asked Mr. Davis to classify Mr. Hampton’s past work.154 Mr. Davis 9 stated that Mr. Hampton had been a truck driver, dump-truck driver, warehouse worker, title clerk, 10 vending machine attendant, and dishwasher.155 The ALJ posed a hypothetical question to the VE: 11 United States District Court Northern District of California 8 whether an individual of Mr. Hampton’s age, education, and vocational history could perform any 12 of his past relevant work if that person had the following limitations: could “perform light work;” 13 was precluded from “jobs that require climbing ladders, ropes, and scaffolding;” could do “no 14 work at heights or with heavy and hazardous machinery or driving;” was restricted to jobs that 15 “remain simple and routine with a maximum [Special Vocational Preparation] SVP of 2;” could 16 perform no jobs with “interaction with the general public in terms of the primary duties of the 17 job;” and could not do “teamwork projects.”156 Mr. Davis testified that such a person could 18 perform Mr. Hampton’s past work as a “vending machine vendor.”157 The ALJ then asked the VE 19 to “give three [additional] examples that would fit [the] hypothetical.”158 Mr. Davis stated that 20 21 22 23 24 25 26 27 28 149 AR 832. 150 AR 831 833. 151 Id. 152 AR 834. 153 AR 806, 841 45. 154 AR 842. 155 AR 852. 156 AR 842 43. 157 AR 843. 158 Id. ORDER – No. 17-cv-02004-LB 16 1 such a person also could work as an “assembler of electrical equipment,” a “shipping and 2 receiving weigher,” and a “lamination inspector.”159 3 Then the ALJ posed a second hypothetical, adding that the person would either “miss work 4 three days or more every single month or be off task while they are at work, one or the other, on a 5 25% or more chronic basis.”160 Mr. Davis testified that a person with those limitations could not 6 perform the above-mentioned work, and the limitations “would rule out all work” in the national 7 economy.161 8 Mr. McCaskell, Mr. Hampton’s representative, asked the VE, “if the person [from the first 9 hypothetical] was unable to concentrate for two-hour windows at a time to do simple repetitive 10 tasks, would they be able to perform any of that work.”162 Mr. Davis testified, “no.”163 United States District Court Northern District of California 11 ANALYSIS 12 13 1. Standard of Review Under 42 U.S.C. § 405(g), district courts have jurisdiction to review any final decision of the 14 15 Commissioner if the claimant initiates a suit within sixty days of the decision. A court may set 16 aside the Commissioner’s denial of benefits only if the ALJ’s “findings are based on legal error or 17 are not supported by substantial evidence in the record as a whole.” Vasquez v. Astrue, 572 F.3d 18 586, 591 (9th Cir. 2009) (internal citation and quotation marks omitted); 42 U.S.C. § 405(g). 19 “Substantial evidence means more than a mere scintilla but less than a preponderance; it is such 20 relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” 21 Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). The reviewing court should uphold “such 22 inferences and conclusions as the [Commissioner] may reasonably draw from the evidence.” Mark 23 v. Celebrezze, 348 F.2d 289, 293 (9th Cir. 1965). If the evidence in the administrative record 24 25 26 27 28 159 AR 843 44. 160 AR 844. 161 162 163 Id. Id. Id. ORDER – No. 17-cv-02004-LB 17 1 supports the ALJ’s decision and a different outcome, the court must defer to the ALJ’s decision 2 and may not substitute its own decision. Tackett v. Apfel, 180 F.3d 1094, 1097–98 (9th Cir. 1999). 3 “Finally, [a court] may not reverse an ALJ’s decision on account of an error that is harmless.” 4 Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). 5 6 2. Applicable Law 7 A claimant is considered disabled if (1) he or she suffers from a “medically determinable 8 physical or mental impairment which can be expected to result in death or which has lasted or can 9 be expected to last for a continuous period of not less than twelve months,” and (2) the “impairment or impairments are of such severity that he or she is not only unable to do his 11 United States District Court Northern District of California 10 previous work but cannot, considering his age, education, and work experience, engage in any 12 other kind of substantial gainful work which exists in the national economy. . . .” 42 U.S.C. 13 § 1382c(a)(3)(A) & (B). “To determine whether or not a claimant is disabled, [the] ALJ follows a 14 five-step evaluation.” Zavalin v. Colvin, 778 F.3d 842, 846 n.1 (9th Cir. 2015) (citing 20 C.F.R. § 15 416.920(a)(4)). This five-step analysis is as follows. Tackett, 180 F.3d at 1098 (citing 20 C.F.R. § 16 404.1520). 17 18 19 20 21 22 23 24 25 26 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 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). ORDER – No. 17-cv-02004-LB 18 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. 1 2 3 4 5 For steps one through four, the burden of proof is on the claimant. At step five, the burden 6 7 shifts to the Commissioner. Gonzales v. Sec’y of Health & Human Servs., 784 F.2d 1417, 1419 8 (9th Cir. 1986). 9 3. Application On remand, the ALJ followed the five-step sequential evaluation process to determine whether 10 United States District Court Northern District of California 11 Mr. Hampton was disabled and concluded that he was not.164 12 At step one, the ALJ found the Mr. Hampton did not engage in substantial gainful activity 13 during the relevant period (from his alleged onset date of December 26, 2006 through his last day 14 of coverage on December 31, 2011).165 At step two, the ALJ found that Mr. Hampton had the following severe impairments: “arthritis, 15 16 headaches, fibromyalgia, obesity, depressive disorder, [and] anxiety disorder.”166 The ALJ found 17 that Mr. Hampton’s “medically established disorders more than minimally affect[ed] [his] ability 18 to perform work related activities, and . . . [were] severe.”167 The ALJ noted there was evidence of 19 other impairments in Mr. Hampton’s medical records, such as, “hypertension, asthma, bronchitis, 20 appendicitis, and obesity” but found that there was “no evidence [that the] impairments 21 interfere[d] with [Mr. Hampton]’s ability to work.”168 22 23 24 25 26 27 28 164 AR 789; see also 20 CFR 404.1520(a). 165 AR 791. 166 167 168 Id. Id. Id. ORDER – No. 17-cv-02004-LB 19 1 At step three, the ALJ found that Mr. Hampton did not have an impairment or combination of 2 impairments that met or medically equaled a listed impairment.169 The ALJ found that the record 3 did not support the existence of any such functional limitations, and “no treating or examining 4 physician [] reported findings, which either [met] or [were] equivalent in severity to the criteria of 5 any listed impairment.”170 The ALJ found that Mr. Hampton’s mental impairments — individually 6 and combined — did not meet Listings 12.04 and 12.06 because Mr. Hampton did not have 7 “marked” limitations in daily living, social functioning, or concentration, persistence, or pace.171 8 The ALJ found only mild restrictions in daily living because Mr. Hampton “testified he [was] 9 able to pursue his hobby of photographing families and landscapes from his car, use[d] Photoshop to edit pictures, . . . and [was] able to cook, do laundry, and carry light groceries.”172 The ALJ 11 United States District Court Northern District of California 10 noted that Mr. Hampton “was actively part of a ghost hunting group, enrolled as a part time 12 student for most of the period at issue, and was able to drive independently.”173 The ALJ found mild to moderate difficulties in social functioning based on the assessment of 13 14 Mr. Hampton’s examining psychologist.174 In addition, giving Mr. Hampton the “benefit of the 15 doubt,” the ALJ found “moderate limitations” with concentration, persistence and pace even 16 though Mr. Hampton “testified he is able to read, watch TV, and take online university classes for 17 photography”175 and — according to his examining and non-examining psychiatric evaluations — 18 was “able to carry out simple instructions without difficulties.”176 The ALJ found no episodes of 19 decompensation of an extended duration.177 20 21 22 23 24 25 26 27 28 169 170 171 172 173 174 175 176 177 Id. Id. AR 792. Id. Id. Id. Id. Id. Id. ORDER – No. 17-cv-02004-LB 20 Before considering whether Mr. Hampton was able to do any work that he had done in the past 1 2 under step four of the evaluation process, the ALJ followed a two-step process to determine (1) 3 “whether there [was] an underlying medically determinable physical or mental impairment(s) … 4 that could reasonably be expected to produce [Mr. Hampton’s] pain or other symptoms” and (2) 5 the extent to which “the intensity, persistence, or functionally limiting effects of pain or other 6 symptoms” limit Mr. Hampton’s functioning. 178 In doing so, the ALJ found that Mr. Hampton’s 7 “medically determinable impairments could reasonably be expected to cause his symptoms; 8 however [his] statements concerning the intensity, persistence, and limiting effects of [his] 9 symptoms [were] not entirely credible.”179 Specifically, the ALJ found that Mr. Hampton’s testimony was inconsistent with his 10 United States District Court Northern District of California 11 “treatment-seeking history, mild findings on examination, and activities of daily living.”180 The 12 ALJ said that Mr. Hampton’s allegations that he was “in constant pain, unable to do most daily 13 activities,” and “pass[ing] out every 2 3 days” were “belied by the medical record.”181 The ALJ 14 observed that “despite regular office visits, [Mr. Hampton] did not report frequent syncope 15 episodes at any of his appointments in 2009, 2010 or 2011.”182 The ALJ noted that Mr. Hampton 16 was an active participant in a “ghost hunting group . . . which likely required physical and mental 17 activity inconsistent with the level of pain and fatigue [Mr. Hampton] allege[d].”183 The ALJ 18 stated that Mr. Hampton had “generally reported good relief from pain medication” and testified 19 that he “visit[ed] his parents weekly and [was] able to cook, shop, do laundry, and carry groceries 20 weighing less than 10 pounds, as well as drive.”184 The ALJ noted that Mr. Hampton had told the 21 consultative psychiatric examiner, Dr. Zipperle, that “he very rarely drives;” “however, after the 22 23 24 25 26 27 28 178 AR 793. 179 AR 794. 180 181 182 183 184 Id. AR 795. Id. Id. Id. ORDER – No. 17-cv-02004-LB 21 1 examination, [Mr. Hampton] was observed driving away in his truck.”185 The ALJ determined that 2 Mr. Hampton’s symptoms were not “as severe and limiting as alleged” and were not supported by 3 the medical record.186 The ALJ determined that Mr. Hampton had the RFC 4 8 to perform light work as defined in 20 C.F.R. 404.1567(b) except the claimant cannot climb ladders, ropes or scaffolding, no work at heights, or around heavy or hazardous machinery or driving. The claimant can perform work that is simple and routine with a maximum Specific Vocational Preparation (SVP) of 2. The claimant should avoid interaction with the general public as a primary duty of the job and no teamwork projects with coworkers.187 9 Applying this RFC and the other factors at step four, the ALJ found that Mr. Hampton was 10 “capable of performing past relevant work as a vending machine attendant.”188 The ALJ noted that 11 such a finding was sufficient to find Mr. Hampton “not disabled” but nevertheless also analyzed 12 his claim under step five as an “alternative” basis for her decision finding no disability.189 5 6 United States District Court Northern District of California 7 13 At step five, the ALJ found that “[b]ased on the testimony of the vocational expert” and 14 “considering [Mr. Hampton’s] age, education, work experience, and RFC, [Mr. Hampton] was 15 capable of making a successful adjustment to other work that existed in significant numbers in the 16 national economy,”190 specifically as an electrical equipment assembler, shipping-and-receiving 17 weigher, or laminator inspector.191 Ultimately, the ALJ found that Mr. Hampton was not disabled 18 any time during the relevant period from December 26, 2006 through December 31, 2011.192 19 20 21 22 23 24 25 26 27 28 185 Id. 186 Id. AR 793 (emphasis added). 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). 188 AR 797 98. 189 AR 798. 190 AR 799. 191 Id. 192 Id. 187 ORDER – No. 17-cv-02004-LB 22 In his pending motion for summary judgment, Mr. Hampton contends that the ALJ’s decision 1 2 is not supported by substantial evidence because the ALJ “implicitly” rejected the opinion of state- 3 agency psychiatric consultant, Dr. Norman Zukowsky (PhD), despite the ALJ’s purporting to give 4 it “great weight.”193 Specifically, Mr. Hampton contends that the ALJ erred by effectively 5 equating Dr. Zukowsky’s assessment that Mr. Hampton could “understand and remember 1- and 6 2-step instructions” with the ALJ’s RFC determination that Mr. Hampton “can perform work that 7 is simple and routine.”194 Before reviewing the merits of this contention, the court addresses whether Mr. Hampton is 8 9 barred from raising this issue because the court conclusively adjudicated it in Hampton I. 3.1 11 United States District Court Northern District of California 10 Law of the Case Doctrine Does Not Bar Mr. Hampton’s Action In its cross-motion for summary judgment, the Commissioner contends that Mr. Hampton is 12 barred from raising his challenge to the ALJ’s decision based on principles of “res judicata (or 13 claim preclusion)”195 because the district court’s prior decision in Hampton I “resulted in a final 14 decision on the merits” that affirmed the ALJ’s weighting and assessment of the medical evidence, 15 including Dr. Zukowsky’s assessment.196 Although couched as an issue of res judicata or claim preclusion, the Commissioner’s 16 17 argument is based in the doctrine of the “law of the case.” Under the law-of-the-case doctrine, a 18 court is precluded from revisiting issues that have been decided — either explicitly or implicitly 19 — in a previous decision of the same court or a higher court. Hall v. City of L.A., 697 F.3d 1059, 20 1067 (9th Cir. 2012); Thomas v. Bible, 983 F.2d 152, 154 (9th Cir. 1993). Thus, under the law-of- 21 the-case doctrine, “the decision of an appellate court on a legal issue must be followed in all 22 subsequent proceedings in the same case.” United States v. Cote, 51 F.3d 178, 181 (9th Cir. 1995) 23 24 25 26 27 28 193 Mot. ECF No. 16 at 6. 194 Id. at 5 9. 195 The Supreme Court uses the term “res judicata” to refer collectively to claim preclusion and issue preclusion. See, e.g., Taylor v. Sturgell, 553 U.S. 880, 892 (2008). 196 Mot. – ECF No. 19 at 6-7. ORDER – No. 17-cv-02004-LB 23 1 (quoting Herrington v. Cty. of Sonoma, 12 F.3d 901, 904 (9th Cir. 1993) (internal quotations 2 omitted)). 3 In the context of Social Security benefits determinations, the Ninth Circuit has held that the 4 law-of-the-case doctrine applies. Stacy v. Colvin, 825 F.3d 563, 567 (9th Cir. 2016). Moreover, 5 “as a general principle, the United States Supreme Court has recognized that an administrative 6 agency is bound on remand to apply the legal principles laid down by the reviewing court.” Ischay 7 v. Barnhart, 383 F.Supp.2d 1199, 1213–14 (C.D. Cal. 2005) (citations omitted); see Sullivan v. 8 Hudson, 490 U.S. 877, 886 (1989) (deviation from the court’s remand order in a subsequent 9 administrative proceedings is itself legal error, subject to reversal on further judicial review). Thus, “[w]hen acting under an appellate court’s mandate, an inferior court is bound by the decree 11 United States District Court Northern District of California 10 as the law of the case.” Vizcaino v. U. S. Dist. Court, 173 F.3d 713, 719 (9th Cir. 1999) (internal 12 quotation marks omitted). In Smith v. Berryhill, No. 2:17-CV-00873-DWC, 2018 WL 1633822, at 13 *2–3 (W.D. Wash. Apr. 5, 2018), the district court summarized the relevant Social Security 14 regulations as follows: 15 16 17 18 19 20 21 22 23 When a Federal court remands a case to the Commissioner for further consideration, the Appeals Council, acting on behalf of the Commissioner, may make a decision, or it may remand the case to an administrative law judge with instructions to take action and issue a decision or return the case to the Appeals Council with a recommended decision. If the case is remanded by the Appeals Council, the procedures explained in [20 C.F.R.] § 404.977 will be followed. 20 C.F.R. § 404.983 (emphasis added). Under 20 C.F.R. § 404.977, when the Appeals Council remands a case to the ALJ, the ALJ “shall take any action that is ordered by the Appeals Council and may take any action that is not inconsistent with the Appeals Council’s remand order.” Accordingly, on remand, the ALJ must follow the specific instructions of the reviewing court. See Stacy, 825 F.3d at 567-69. The Ninth Circuit has described the law-of-the-case doctrine as “a judicial invention designed 24 to aid in the efficient operation of court affairs . . . . Further, the doctrine serves to advance the 25 principle that in order to maintain consistency during the course of a single lawsuit, 26 reconsideration of legal questions previously decided should be avoided.” United States v. Smith, 27 389 F.3d 944, 948 (9th Cir. 2004) (citations and internal quotation marks omitted). Moreover, in 28 Stacy, the Ninth Circuit explained that the doctrine of the law of the case “is concerned primarily ORDER – No. 17-cv-02004-LB 24 1 with efficiency, and should not be applied when the evidence on remand is substantially different, 2 when the controlling law has changed, or when applying the doctrine would be unjust.” 825 F.3d 3 at 567. In Hampton I, Mr. Hampton challenged the ALJ decision on the grounds that (1) the ALJ 4 5 improperly gave “limited weight” to medical evidence opinion given by the examining 6 psychologist, Dr. Zipperle, and (2) the ALJ failed to provide legally sufficient reasons to reject 7 Mr. Hampton’s testimony.197 2014 WL 3962618, at *6. 8 On the first issue, the court upheld the ALJ’s decision to give only “limited weight” to Dr. 9 Zipperle’s opinion, finding that it was supported by “specific and legitimate reason[s].” 2014 WL 3962618, at *9. As such, this determination is now law of the case. See Stacy, 825 F.3d at 567; 11 United States District Court Northern District of California 10 Hall, 697 F.3d at 1067. Likewise, on the second issue, the court found that the ALJ had “failed to 12 provide “clear and convincing reasons for discrediting [Mr. Hampton’s] subjective complaints” 13 about the severity of his symptoms and remanded the case to allow the ALJ to “reassess the 14 evidence in the record, and if the ALJ continues to discount any of Plaintiff’s subjective 15 complaints, … [to] provide clear and convincing reasons for doing so consistent with this order.” 16 2014 WL 3962618, at *10-11. Accordingly, this court must determine whether these determinations (or any determinations 17 18 implicit in them) bar either party from pursuing any particular challenge to or defense of the 19 subsequent 2015 ALJ decision. See Stacy, 825 F.3d at 567; Hall, 697 F.3d at 1067. In the present action, Mr. Hampton’s only argument is his contention that the ALJ erred by 20 21 failing to explain or provide a legally sufficient basis to support her RFC determination that Mr. 22 Hampton “can perform work that is simple and routine,” given Dr. Zukowsky’s assessment that 23 Mr. Hampton could “understand and remember 1- and 2-step instructions,” which Mr. Hampton 24 contends is a lower functional limitation than the “simple and routine” limitation in the ALJ’s 25 RFC.198 In Hampton I, the court reviewed and discussed Dr. Zukowsky’s opinion, but only in the 26 27 28 197 AR 891. 198 Mot. ECF No. 16 at 5-9. ORDER – No. 17-cv-02004-LB 25 1 context of the extent to which the ALJ could appropriately rely on Dr. Zukowsky’s opinion as a 2 contradictory medical opinion to support her decision to give only limited weight to Dr. Zipperle’s 3 medical opinion. 2014 WL 3962618, at *6 9. In these circumstances, the court declines to find 4 that Mr. Hampton’s current issue on review (relating to Dr. Zukowsky’s opinion regarding Mr. 5 Hampton’s ability to “understand and remember 1- and 2-step instructions”) is barred under the 6 doctrine of the law of the case, given that that element was not a substantive part of the court’s 7 decision in Hampton I. See Ortega v. O’Connor, 50 F.3d 778, 780 (9th Cir. 1995) (“‘[A] judgment 8 of reversal by an appellate court is an adjudication only of matters expressly discussed and 9 decided.”’) quoting Hansen & Rowland v. C.F. Lytle Co., 167 F.2d 998, 999 (9th Cir. 1948). The court now turns to the merits of Mr. Hampton’s argument in this action. 11 United States District Court Northern District of California 10 3.2 12 “[T]he ALJ is responsible for translating and incorporating clinical findings into a succinct Inconsistency between ALJ’s RFC and Dr. Zukowsky’s Assessment 13 RFC.” Rounds v. Com’r of Social Sec. Admin., 807 F.3d 996, 1006 (9th Cir. 2015); see also 14 Vertigan v. Halter, 260 F.3d 1044, 1049 (9th Cir. 2001) (“it is the responsibility of the ALJ, not 15 [a] physician, to determine residual functional capacity [RFC]”). The ALJ’s determination of a 16 claimant’s RFC must be based on the medical opinions and the totality of the record. 20 C.F.R. §§ 17 404.1527(d), 404.1546(c). Moreover, the ALJ is responsible for “‘resolving conflicts in medical 18 testimony, and for resolving ambiguities.’” Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014) 19 (quoting Andrews, 53 F.3d at 1039). In weighing and evaluating the evidence, the ALJ must 20 consider the entire case record, including each medical opinion in the record, together with the rest 21 of the relevant evidence. 20 C.F.R. § 416.927(b); see also Orn v. Astrue, 495 F.3d 625, 630 (9th 22 Cir. 2007) (“[A] reviewing court must consider the entire record as a whole and may not affirm 23 simply by isolating a specific quantum of supporting evidence.”) (internal quotation marks and 24 citation omitted). 25 26 As noted above, Mr. Hampton contends that the ALJ erred in formulating her RFC assessment because the ALJ “implicitly” rejected the medical opinion of the non-examining psychiatric 27 28 ORDER – No. 17-cv-02004-LB 26 1 consultant, Dr. Zukowsky.199 Specifically, Mr. Hampton argues that although the ALJ stated that 2 she gave “great weight” to Dr. Zukowsky’s opinion, her RFC assessment (finding that Mr. 3 Hampton could perform work that is “simple and routine within a maximum Specific Vocational 4 Preparation (SVP) of 2”) was not supported by Dr. Zukowsky’s medical opinion (which assessed 5 Mr. Hampton as being able to “understand and remember 1- and 2-step instructions” and 6 concluded that “[e]mployment success [is] most likely if assigned 1- or 2-step duties in a non- 7 public setting”).200 Mr. Hampton asserts that while these two assessments (in the ALJ’s RFC and 8 in Dr. Zukowsky’s report) “may seem consistent,” they are “not the same.”201 The court agrees. As a preliminary matter, Mr. Hampton notes that the ALJ’s finding that Mr. Hampton was 9 limited to work with a “maximum SVP of 2”202 “is not the determinative factor in assessing 11 United States District Court Northern District of California 10 whether the ALJ’s RFC determination is consistent with Dr. Zukowsky’s opinion.”203 The court 12 agrees. “The SVP level is not [] synonymous with the simplicity of a task.” Ferguson v. Colvin, 13 No. 3:15-CV-01532-SU, 2016 WL 7042076, at *2–3 (D. Or. Dec. 2, 2016) (citing Smith v. Colvin, 14 No. 3:14-cv-01210-PA, 2016 WL 680535, at *11 (D. Or. Feb. 19, 2016) (finding that the “ALJ 15 conflated two separate vocational considerations in formulating the RFC …: the SVP level and the 16 simplicity or complexity of the task”)). 17 Instead, Mr. Hampton contends, the DOT’s general education development (“GED”) 18 Reasoning Level is the “relevant vocational factor” by which to assess a claimant’s ability to 19 20 21 22 23 24 25 26 27 28 199 Id. at 5–6. 200 Id. at 5–6 (quoting AR 793 & 406). 201 Id. at 6. The Social Security Administration uses (and has taken administrative notice of) the DOT, which gives detailed physical requirements for a variety of jobs. See 20 C.F.R. §§ 416.966(d)(1), 15666(d)(1). The DOT defines “significant vocational preparation” or “SVP” 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.” DOT, App. C, § 2, 1991 WL 688702 (4th ed. 1991). “The higher the SVP rating, the more time it takes to equal average performance in that occupation.” Nava v. Colvin, No. 3:14-cv-01348-AA, 2015 WL 5854074, at *5 (D. Or. Oct. 6, 2015). An SVP of 2 means “anything beyond a short demonstration up to and including 1 month.” See Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1230 (9th Cir. 2009). 203 Mot. ECF No. 16 at 6. 202 ORDER – No. 17-cv-02004-LB 27 1 perform a given job.204 In support of his argument, he cites Hiblar v. Colvin, No. C15-5093-BJR- 2 MAT, 2015 WL 5254276, at *6 (W.D. Wash. Aug. 11, 2015), report and recommendation 3 adopted, No. C15-5093-BJR, 2015 WL 5285806 (W.D. Wash. Sept. 9, 2015) (finding that “[t]he 4 relevant vocational factor would be, instead [of the SVP level], the general education development 5 reasoning level, which measures the level of general education required to perform particular job 6 tasks”). The Ninth Circuit took a similar approach in Rounds and observed: 7 There are six GED Reasoning Levels that range from Level One (simplest) to Level Six (most complex). The lowest two levels are: 8 9 Level 1: Apply commonsense understanding to carry out simple one- or twostep instructions. Deal with standardized situations with occasional or no variables in or from these situations encountered on the job. 10 United States District Court Northern District of California 11 Level 2: Apply commonsense understanding to carry out detailed but uninvolved written or oral instructions. Deal with problems involving a few concrete variables in or from standardized situations. 12 13 14 807 F.3d at 1002–03 (citations omitted). 15 In Rounds, the Ninth Circuit remanded an appeal from the denial of disability when the ALJ 16 (and the VE) failed to “address[] whether Rounds’ limitation to one- to two-step tasks [as stated in 17 the RFC] was consistent with jobs requiring Level Two reasoning and, if so, why.” 807 F.3d at 18 1003. The court noted that “[t]here was an apparent conflict between Rounds’ RFC, which limits 19 her to performing one- and two-step tasks, and the demands of Level Two reasoning, which 20 requires a person to ‘[a]pply commonsense understanding to carry out detailed but uninvolved 21 written or oral instructions;’” the court noted that “[t]he conflict between Rounds’ RFC and Level 22 Two reasoning is brought into relief by the close similarity between Rounds’ RFC and Level One 23 reasoning. Level One reasoning requires a person to apply commonsense understanding to carry 24 out simple one- or two-step instructions.” 807 F.3d at 1003 (internal quotation marks and citation 25 omitted). 26 27 28 204 Id. at 7. ORDER – No. 17-cv-02004-LB 28 Here, Mr. Hampton’s contention is a similar, but slightly precursor, argument. Mr. Hampton 1 2 contends that the ALJ erred because she gave “great weight” to Dr. Zukowsky’s assessment, 3 including specifically noting Dr. Zukowsky’s assessment that Mr. Hampton could “understand and 4 remember to one- and two-step instructions,” but failed to explicitly consider or reflect that in her 5 RFC (or explain with appropriate reasons why she was not incorporating that medical assessment 6 into her RFC).205 The court agrees. Specifically, Mr. Hampton, relying on Rounds, argues that (1) 7 Dr. Zukowsky’s assessment of Mr. Hampton’s ability to “understand and remember 1- and 2-step 8 instructions” matches the Level 1 standard of “carry[ing] out simple one- or two-step instructions” 9 and is exceeded by the Level 2 standard of “carry[ing] out detailed but uninvolved written or oral instructions,” and (2) the jobs that the ALJ determined (in consultation with the VE) that Mr. 11 United States District Court Northern District of California 10 Hampton was capable of performing were all GED Level 2 or even Level 3 positions (an assertion 12 that the Commissioner does not dispute).206 Applicable regulations, rulings, and case law require that an ALJ’s determination of a 13 14 claimant’s RFC must be based on the medical opinions and the totality of the record and that if the 15 ALJ’s RFC assessment “conflicts with an opinion from a medical source, the adjudicator must 16 explain why the opinion was not adopted.” Social Security Ruling 96–8p;207 20 C.F.R. §§ 17 404.1546(c), 416.927(b) (ALJ must consider the entire case record, including each medical 18 opinion in the record, together with the rest of the relevant evidence); Lubin v. Comm’r of Soc. 19 Sec. Admin, 507 Fed. Appx. 709, 712 (9th Cir. 2013) (“ALJ must include all restrictions in the 20 residual functional capacity [RFC] determination”); see Lusardi v. Astrue, 350 Fed. Appx. 169, 21 173 (9th Cir. 2009) (in determining claimant’s RFC, the ALJ must not reject “significant probative 22 evidence” without explanation); Nguyen v. Chater, 100 F.3d 1462, 1464 (9th Cir. 1996) (an ALJ 23 24 25 26 27 28 205 Id. at 6 (citing AR 797). 206 Id. at 6-9; see generally Mot. ECF No. 19. 207 “Social Security Rulings (SSRs) ‘do not carry the “force of law,” but they are binding on ALJs nonetheless.’ Bray v. Comm’r Soc. Sec. Admin., 554 F.3d 1219, 1224 (9th Cir.2009). They “‘reflect the official interpretation of the [SSA] and are entitled to some deference as long as they are consistent with the Social Security Act and regulations.”’ Id. (alteration in original) (quoting Avenetti v. Barnhart, 456 F.3d 1122, 1124 (9th Cir. 2006)).” Molina, 674 F.3d at 1114. ORDER – No. 17-cv-02004-LB 29 1 errs when he rejects a medical opinion by ignoring it or failing to provide specific and legitimate 2 reasons for crediting a different opinion over the one in question); Rounds, 807 F.3d at 1006 (ALJ 3 is responsible for reviewing and incorporating medical “findings into a succinct RFC”); Garrison, 4 759 F.3d at 1010 (ALJ is responsible “for resolving ambiguities” in the record and errs if she 5 “rejects a medical opinion or assigns it little weight” without explanation or without explaining 6 why) (internal quotation marks and citation omitted); see also Huntsberry v. Berryhill, 2017 WL 7 2438527, at *9 (N.D. Cal. June 6, 2017) (citing Magallanes v. Bowen, 881 F.2d 747, 753 (9th Cir. 8 1989) (ALJ, however, “is not required ‘to agree with everything [that a non-treating, non- 9 examining physician] says in order to find that his testimony contains ‘substantial evidence’ 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 supporting the ALJ’s determination”). Moreover, the Ninth Circuit has held: A hypothetical question [to the VE] should set out all of the claimant’s impairments. If the [RFC and] the “assumptions [upon which] the hypothetical are [based are] not supported by the record, the opinion of the vocational expert that claimant has a residual working capacity has no evidentiary value. The most appropriate way to insure the validity of the hypothetical question posed to the vocational expert is to base it upon evidence appearing in the record, whether it is disputed or not. . . . Unless there is record evidence to adequately support this assumption, the opinion expressed by the vocational expert is meaningless. [If] neither the hypothetical nor the answer properly set forth all of [the claimant’s] impairments, the vocational expert’s testimony cannot constitute substantial evidence to support the ALJ’s findings. Gallant v. Heckler, 753 F.2d 1450, 1456 (9th Cir. 1984) (internal quotation marks and citation omitted); Lubin v. Comm’r of Soc. Sec. Admin, 507 Fed. Appx. 709, 712 (9th Cir. 2013) (“ALJ must include all restrictions in . . . the hypothetical question posed to the vocational expert [VE]”). Here, the Commissioner resists the obvious similarity between Dr. Zukowsky’s assessment and the GED Reasoning Level 1 and the apparent discrepancy between Dr. Zukowsky’s “1- and 2step instructions” assessment and the ALJ’s RFC assessment by raising various counterarguments, including, inter alia, the following: (1) Dr. Zukowsky “merely” found that Mr. Hampton could follow “1- and 2-step instructions,” not that this was necessarily the limit of his capability; (2) other evidence in the record as a whole supports the ALJ’s RFC, including Dr. Zipperle’s assessment (that Mr. Hampton could “perform simple and repetitive tasks,” an assessment previously given only “limited weight” by the ALJ); and (3) Dr. Zukowsky found that ORDER – No. 17-cv-02004-LB 30 Mr. Hampton could “‘at least perform duties of a few steps in a competitive, nonpublic work 2 setting,’” 208 implying that Mr. Hampton could “perform[] at least three step tasks.”209 While these 3 various explanations and rationales offered by the Commissioner may or may not have merit, the 4 ALJ did not adopt or reference them or otherwise adequately articulate her reasonings. The court 5 declines the Commissioner’s entreat to undertake such an endeavor on behalf of the ALJ. The 6 court instead finds that the ALJ failed to articulate an adequate reason for her decision to 7 incorporate (or not) this part of Dr. Zukowsky’s assessment into her RFC assessment and that her 8 failure to do so in these circumstances was an error. See generally Garrison, 759 F.3d at 1012–13. 9 On remand, the ALJ may be able to offer reasons, but the court “cannot affirm the decision of an 10 agency on a ground that the agency did not invoke in making its decision.” Rounds, 807 F.3d 996, 11 United States District Court Northern District of California 1 1003–04 (9th Cir. 2015) (internal quotation marks and citations omitted). An ALJ does not have to 12 address all grounds for its decision for a court to uphold the ALJ’s decision as supported by 13 substantial evidence in the record as a whole. Molina, 674 F.3d at 1122 (failure to discuss certain 14 evidence was inconsequential to the ultimate disability determination). And an error — viewed in 15 the context of the record as a whole — can be harmless. Id. at 1111, 1122. But the omitted 16 considerations here — the interplay between Dr. Zukowsky’s assessment of Mr. Hampton’s 17 ability and the jobs that the ALJ identified (after consulting with the VE) that appear to be GED 18 Reasoning Level 2 or higher — are material considerations, and the court cannot find the ALJ’s 19 failure to consider them explicitly to be harmless. See id. at 1115; see also Zavalin v. Colvin, 778 20 F.3d 842, 848 (9th Cir. 2015); Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 21 2006) (holding that the ALJ’s failure to reconcile apparent conflict between the RFC and DOT 22 was not harmless error). It is the ALJ’s job to determine the RFC based on the medical opinions 23 and the totality of the record and to resolve any ambiguities. 20 C.F.R. §§ 404.1527(d), 24 25 26 27 28 208 Mot. ECF No. 19 at 8 (quoting from AR 409). The court finds some ambiguity regarding whether it is appropriate to attribute this finding (and others from this same AR citation) to Dr. Zukowsky. The Commissioner and the district court in Hampton I all attributed it to Dr. Zukowsky. See e.g., AR 896. The document itself appears to be a summary of various medical evidence that was signed by a “D. Pong, MD.” On remand, it may be possible to clarify and resolve this ambiguity and determine to what extent, if any, this affects the analysis of Mr. Hampton’s claim. 209 Mot. ECF No. 19 at 8. ORDER – No. 17-cv-02004-LB 31 1 404.1546(c); Garrison, 759 F.3d at 1010. 2 3.3 3 Finally, the ALJ concluded, based on the medical evidence, that Mr. Hampton has “moderate The ALJ’s Failure to Consider All of Mr. Hampton’s Limitations in the RFC 4 difficulties” with regard to “concentration, persistence or pace.”210 The ALJ did not address this 5 limitation in her RFC analysis or her questions to the VE,211 and it is an additional basis for 6 remand. As previously discussed, the ALJ concluded that Mr. Hampton can perform “light work” that 7 8 is “simple and routine with a maximum Specific Vocational Preparation (SVP) of 2.”212 This RFC 9 does not explicitly account for the moderate limitations that the ALJ assigned to Mr. Hampton regarding concentration, persistence, and pace. See Friesth v. Berryhill, 2017 WL 901882, at *5 11 United States District Court Northern District of California 10 (C.D. Cal. Mar. 7, 2017) (the ALJ erred when the ALJ determined that the claimant was 12 moderately limited in maintaining concentration, persistence, or pace, but the RFC only limited 13 the claimant to simple, repetitive work); Jahnsen v. Berryhill, 265 F. Supp. 3d 992, 999 (D. Alaska 14 July 13, 2017). Similarly, in her first hypothetical question to the VE, the ALJ did not explicitly 15 incorporate any limitations in concentration, persistence, or pace.213 See Brink v. Comm’r of Soc. 16 Sec. Admin., 343 Fed. Appx. 211, 212 (9th Cir. 2009) (accepting medical evidence that claimant 17 had moderate difficulty maintaining concentration, persistence, or pace and holding that posing the 18 hypothetical question to vocational expert referencing “simple, repetitive work” was error). 19 20 21 22 23 24 25 26 27 28 210 AR 792. 211 Mr. Hampton does not raise this issue explicitly in his summary-judgment motion. Ordinarily, a court “will not consider any claims that were not actually argued in appellant’s opening brief.” Indep. Towers of Wash. v. Washington, 350 F.3d 925,929 (9th Cir. 2003). But the “court [has a] duty to make ‘a full review of the facts’ and ‘an independent determination as to whether the [Commissioner’s] findings are supported by substantial evidence.’” Farley v. Colvin, 231 F. Supp. 3d 335, 339 & n.5 (N.D. Cal. 2017) (quoting Stone v. Heckler, 761 F.2d 530, 532 (9th Cir. 1985) (In Farely, the district court raised an issue sua sponte in a Social Security denial-of-benefits case despite the normal presumptions against the court’s sua sponte raising non-jurisdictional claims and provided a summary of other similar decisions in other districts);Vasquez, 572 F.3d at 591(court has the obligation to review the record for findings that are based on legal error or that are not supported by substantial evidence in the record as a whole). 212 AR 793. 213 AR 842–44. ORDER – No. 17-cv-02004-LB 32 An ALJ’s failure to explicitly consider concentration, persistence, and pace limitations is not 1 2 necessarily error. Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 2015). In Stubbs- 3 Danielson, for example, the Ninth Circuit held that the ALJ translated the plaintiff’s condition — 4 including the pace and mental limitations — into a physician’s assessment of a restriction to 5 “simple tasks.” Id. (following other circuits and holding that an ALJ’s assessment of a claimant 6 adequately captures restrictions related to concentration, persistence, or pace where the assessment 7 is consistent with restrictions identified in the medical testimony). But here, given the omission 8 regarding the interplay between Dr. Zukowsky’s assessment of Mr. Hampton’s ability and the jobs 9 identified by the ALJ that appear to be GED Reasoning Level 2 or higher (considerations that the court deems material), the ALJ on remand should specifically address the limitations related to 11 United States District Court Northern District of California 10 concentration, persistence, or pace in the RFC determination and the questions posed to the VE. 12 See Lubin v. Comm’r of Soc. Sec. Admin, 507 Fed. Appx. 709, 712 (9th Cir. 2013) (“ALJ must 13 include all restrictions in the residual functional capacity [RFC] determination and the 14 hypothetical question posed to the vocational expert [VE], including moderate limitations in 15 concentration, persistence, or pace”); Brink v. Comm’r of Soc. Sec. Admin., 343 Fed. Appx. 211, 16 212 (9th Cir. 2009). On this record, the court does not find the error harmless. See Molina, 674 17 F.3d at 1115. CONCLUSION 18 The court grants Mr. Hampton’s summary-judgment motion, denies the Commissioner’s 19 20 cross-motion, and remands this case for further proceedings consistent with this order.214 21 IT IS SO ORDERED. 22 Dated: June 8, 2018 23 ______________________________________ LAUREL BEELER United States Magistrate Judge 24 25 26 27 28 214 The court has “discretion to remand a case either for additional evidence and findings or for an award of benefits.” McCartey v. Massanari, 298 F.3d 1072, 1076 (9th Cir. 2002) (citing Smolen v. Charter, 80 F.3d 1273, 1292 (9th Cir. 1996); McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989)) (“[t]he decision whether to remand for further proceedings or simply to award benefits is within the discretion of [the] court”). Generally, “‘[i]f additional proceedings can remedy defects in the original administrative proceeding, a social security case should be remanded.’” Garrison, 759 F.3d at 1019 (quoting Lewin v. Schweiker, 654 F.2d 631, 635 (9th Cir. 1981)) (alteration in original). ORDER – No. 17-cv-02004-LB 33