Lennon v. Berryhill, No. 3:2017cv03437 - Document 23 (N.D. Cal. 2018)

Court Description: ORDER granting 17 Motion for Summary Judgment; denying 21 Motion for Summary Judgment.The court grants Mr. Lennon'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 7/26/2018)
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Lennon v. Berryhill Doc. 23 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 TRAVIS CLINTON LENNON, Plaintiff, 12 v. 13 14 NANCY A. BERRYHILL, Defendant. 15 Case No. 17-cv-03437-LB ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S CROSS-MOTION Re: ECF Nos. 17, 21 16 17 INTRODUCTION 18 Plaintiff Travis Lennon seeks judicial review of a final decision by the Commissioner of the 19 Social Security Administration denying his claim for disability benefits under Title XVI1 of the 20 Social Security Act.2 He moved for summary judgment;3 the Commissioner opposed the motion 21 and filed a cross-motion.4 Under Civil Local Rule 16-5, the matter is submitted for decision 22 without oral argument. All parties consented to magistrate-judge jurisdiction.5 The court grants 23 24 25 26 27 28 1 Administrative Record (“AR”) 97; Mot. – ECF No. 17. 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 Compl. ECF No. 1 at 1. 3 Mot. – ECF No. 17. 4 Cross-Mot. – ECF No. 21. 5 Consents – ECF Nos. 10, 11. ORDER – No. 17-cv-03437-LB Dockets.Justia.com 1 Mr. Lennon’s summary-judgment motion, denies the Commissioner’s cross-motion, and remands 2 this case for further proceedings consistent with this order. 3 4 5 STATEMENT 1. Procedural History On July 25, 2011, Mr. Lennon — who was born on March 5, 1992 — filed for supplemental 6 Social Security income benefits under Title XVI of the Social Security Act alleging an onset date 8 of March 5, 20106 and alleging disabilities of “Bi polar” and “mental health.”7 The Social Security 9 Administration denied the application initially and on reconsideration.8 On May 23, 2012, Mr. 10 Lennon timely requested a hearing.9 On March 22, 2013, Administrative Law Judge (“ALJ”) 11 United States District Court Northern District of California 7 Maxine Benmour held a hearing in San Rafael, California.10 Mr. Lennon and Linda Ferrer, a 12 vocational expert, testified.11 ALJ Benmour held a supplemental hearing on August 2, 2013.12 At 13 the supplemental hearing, medical expert Dr. Betty Borden testified by telephone,13and Mr. 14 Lennon and his mother testified in person.14 ALJ Benmour issued an unfavorable decision on 15 October 21, 2013.15 The plaintiff asked the Appeals Counsel to review the decision. The Appeals Council denied 16 17 the request initially16 but vacated its order on January 19, 2016 and remanded the case for further 18 19 6 AR 321. Mr. Lennon’s father, David Lennon, filed for benefits on Mr. Lennon’s behalf. 7 AR 150. 8 22 AR 202–07, 211–16. 9 AR 225. 23 10 20 21 24 11 AR 43. Id. 12 25 AR 73. 13 AR 76. 26 14 AR 82. 15 AR 174–89. 16 AR 190–93. 27 28 ORDER – No. 17-cv-03437-LB 2 proceedings and a new decision.17 The grounds for remand were as follows. First, the ALJ’s 2 decision did not address the claimant’s mother’s testimony and the father’s report about the 3 claimant’s symptoms.18 In reaching this decision, the Appeals Council noted the claimant’s “clear 4 longitudinal history of mental health symptoms with ongoing treatment” and an updated 5 November 2015 letter from the parents documenting “a continuation of troublesome symptoms. 6 These opinions should be evaluated pursuant to Social Security Ruling 06-3p.”19 Second, the 7 ALJ’s decision improperly discounted the medical opinion of his long-term treating physician 8 John Leipsic on the ground that he had not seen the patient since March 2010.20 The Council 9 observed that Dr. Leipsic’s opinion showed the continuity and stability of the diagnosis of Bipolar 10 Disorder and Mr. Lennon’s best (and current) medication response; it also was dated in 2013 and 11 United States District Court Northern District of California 1 thus apparently was based on records “during the period at issue, not only through the end of his 12 treatment,”21 and — considered in the context of the record, including new records submitted with 13 the request for review — “show[ed] the perpetual and persistent nature of the claimant’s 14 symptoms over the last decade.”22 The Council concluded, “Further consideration and 15 development of the claimant’s condition is warranted.”23 The Appeals Council directed the ALJ to 16 do the following on remand: 17 18 19 20 Obtain additional evidence concerning the claimant’s mental impairments in order to complete the administrative record in accordance with the regulatory standards regarding consultative examinations and existing medical evidence (20 CFR 416.912-913). The additional evidence may include, if warranted and available, a consultative mental examination and medical source statements about what the claimant can still do despite the impairments. 21 22 23 24 25 26 27 28 17 AR 194–98. 18 AR 196. 19 20 21 22 23 Id. Id. Id. Id. AR 196–97. ORDER – No. 17-cv-03437-LB 3 1 2 3 4 5 6 7 8 9 10 United States District Court Northern District of California 11 12 13 14 If warranted and available, obtain additional evidence from a medical expert to clarify the nature and severity of the claimant’s mental impairments (20 CFR 416.927(e) and Social Security Ruling 96-6p). Give further consideration to the claimant’s maximum residual functional capacity during the entire period at issue and provide [a] rationale with specific references to evidence of record in support of assessed limitations (Social Security Ruling 968p). In so doing, evaluate the treating source opinion and third party opinions pursuant to the provisions of 20 CFR 416.927 and Social Security Rulings 96-2p, 96-5p, and 06-3p, and explain the weight given to such opinion evidence. As appropriate, the Administrative Law Judge may request the treating source to provide additional evidence and/or further clarification of the opinion (20 CFR 416.912). If warranted by the expanded record, obtain supplemental evidence from a vocational expert to clarify the effect of the assessed limitations on the claimant’s occupational base (Social Security Ruling 83-14). The hypothetical questions should reflect the specific capacity/limitations established by the record as a whole. The Administrative Law Judge will ask the vocational expert to identify examples of appropriate jobs and to state the incidence of such jobs in the national economy (20 CFR 416.966). Further, before relying on the vocational expert evidence the Administrative Law Judge will identify and resolve any conflicts between the occupational evidence provided by the vocational expert and information in the Dictionary of Occupational Titles (DOT) and its companion publication, the Selected Characteristics of Occupations (Social Security Ruling 00-4p).24 ALJ Kwon (“the ALJ”) held a new hearing on July 11, 201625 and issued an unfavorable 15 16 decision on October 5, 2016.26 Mr. Lennon asked the Appeal Council to review the decision.27 On 17 April 21, 2017, the Appeals Council denied his request for review.28 Mr. Lennon timely filed this 18 action on June 14, 2017 and moved for summary judgment.29 The Commissioner opposed the 19 motion and filed a cross-motion for summary judgment.30 20 21 22 24 AR 197. 25 AR 290–94. 26 25 AR 18–42. 27 AR 16–17. 26 28 AR 1–6. 29 Mot. – ECF No. 17. 30 Cross Mot. – ECF No. 21. 23 24 27 28 ORDER – No. 17-cv-03437-LB 4 1 2. Summary of Record and Administrative Findings 2 2.1 3 Medical Records 2.1.1 John Leipsic, M.D. — Treating 4 Dr. Leipsic was Mr. Lennon’s sole treating psychiatrist for ten years from February 2000, 5 when Mr. Lennon was eight, until March 2010, when he turned eighteen.31 He is board certified in 6 psychiatry and adolescent psychiatry, and at the time he submitted his letter on August 1, 2013, he 7 was an Assistant Professor of Child Psychiatry in the Department of Pediatrics and Psychiatry at 8 the University of Arizona Medical Center.32 Dr. Leipsic began treating Mr. Lennon because of 9 “challenging behaviors at home and school.”33 Dr. Leipsic diagnosed Mr. Lennon with a Bipolar Affective Disorder that remained stable from ages eight to eighteen.34 Mr. Lennon had prior 11 United States District Court Northern District of California 10 treatment since age three with a developmental pediatrician, who treated him for ADHD and 12 anxiety.35 The earlier diagnosis of ADHD and treatment with stimulants “dropped off as he 13 reached upper adolescence.36 “Records of his ten year medication tracking . . . demonstrate the 14 challenge of these multiple medication trials and combinations.”37 Dr. Leipsic noted, “Most salient 15 in the reading of his extensive treatment records is the continuity and stability of Travis’[s] 16 diagnosis of Bipolar Disorder. Further, Travis’[s] medication response has been the best to dual 17 antipsychotic mood stabilizers Seroquel and Abilify, a medication regime started in 2005, on 18 which he remains to this day.”38 In his letter summarizing Mr. Lennon’s treatment, Dr. Leipsic 19 20 21 22 23 24 31 AR 803. Dr. Leipsic followed Mr. Lennon “from my private office, to the Children’s Day Treatment Center, to his outpatient care at the County of Sonoma Mental Health until we transferred his care back to my private office.” Id. Other records show some of Mr. Lennon’s treatment and issues during this time period. See, e.g., AR 795–802. 32 AR 803, 863. 33 AR 810. 34 AR 803. 25 35 26 36 27 28 37 38 Id. Id. Id. Id. ORDER – No. 17-cv-03437-LB 5 1 stated, “As Travis Lennon’s treating psychiatrist for ten years, I support his application for Social 2 Security Disability Insurance and recommend he be qualified for SSDI.”39 3 2.1.2 4 Until he moved to live with his father in Humboldt County in November 2010,40 Mr. Lennon 5 6 Sonoma County Department of Health Services, Mental Health Division — Treating lived with his mother in Sonoma County and received care through Sonoma County.41 Sonia Beck, M.F.T., Ph.D., treated Mr. Lennon from 2009 to 2011.42 In April 2010, Dr. Beck 7 8 diagnosed Mr. Lennon with Bipolar NOS and listed his cannabis abuse.43 In subsequent months, 9 she met with Mr. Lennon and his mother, traveled to his school to assess him there, reported that he did relatively well on his prescribed medications of Abilify, Seroquel, and Wellbutrin, 11 United States District Court Northern District of California 10 documented his difficulties (including his mother’s asking him to leave for several days for not 12 following the rules), coached him on his drug use (including the dangers of overdoing it), and 13 talked with his teachers, among other interventions.44 In October 2010, Dr. Beck assigned him a 14 GAF of 53 and documented his deterioration, including his dropping out of his school, trying to 15 find another school, and being asked to leave his mother’s house.45 In January 2011, Dr. Beck 16 documented that Mr. Lennon had moved to Fortuna to live with his father and had begun to attend 17 18 19 20 21 22 23 24 39 Id. 40 AR 573. 41 AR 443. 42 AR 440–79. Dr. Beck’s treatment was supplemented during this time period by Jasper Hollingsworth, M.D., who prescribed medications to Mr. Lennon. See, e.g., AR 447. 43 25 AR 477. 44 AR 448–54. 26 45 27 28 AR 448, 473. 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.’”). ORDER – No. 17-cv-03437-LB 6 1 school there while maintaining his responsibilities and following the house rules set by his 2 father.46 In January 2011, she assigned a GAF of 65.47 Other medical records show his prescriptions for Abilify, Wellbutrin, and Seroquel and Mr. 3 4 Lennon’s appointments with Jasper Hollingsworth, M.D.48 2.1.3 Humboldt County Mental-Health Services — Treating 5 In November 2010, Mr. Lennon moved to Humboldt County to live with his father, and he 6 thereafter received care with various medical providers through Humboldt County’s Department 8 of Health & Human Services, Mental Health Branch, from January 2011 through March 2015.49 9 Mr. Lennon met with Jeremy Nilsen, MFT, on January 4, 2011, with a follow-up school 10 observation on January 11.50 Mr. Lennon was referred for an assessment about “whether mental 11 United States District Court Northern District of California 7 health symptoms related to ‘emotional disturbance’ [we]re interfering with the client’s ability to 12 progress academically.”51 “Client records indicate that the client has displayed mood swings, 13 severe irritability, and decreased concentration.”52 Mr. Lennon reported use of marijuana one or 14 two times daily, which he said helped him concentrate.53 Client records state that Travis has been designated as emotionally disturbed and historically had difficulty profiting from his Special Education program due to aggressive and impulsive behaviors in the classroom. Behavior problems in school reportedly began in the first grade, and these include extreme emotional sensitivity, difficulty with transitions, mood swings, aggression, and impulsivity. Client records also stated that the client has historically been depressed, has feelings of 15 16 17 18 19 20 46 AR 443. 21 47 AR 446. 48 AR 447, 454. 49 AR 443, 568–692, 823. 22 23 24 25 26 27 28 50 AR 629–33. 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). 51 52 53 AR 629. Id. Id. ORDER – No. 17-cv-03437-LB 7 worthlessness, and flat affect. The client historically had a number of diagnoses, including ADHD, Depression, and Bipolar Disorder.54 1 2 During the County’s observation of three classes (art, health, and physical education), Mr. 3 Lennon worked on an art project, on task and well, followed the teacher’s instructions to clean up, 4 transitioned well into the health class, accepted a teacher’s directive to put away his head phones, 5 was at times uninterested but not disruptive, and was active in physical education.55 A teacher 6 reported that Mr. Lennon had not exhibited any significant behavioral problems, seemed to 7 respond well to the school’s flexible schedule, had worked on academics but had not turned in any 8 work yet, and been irritable on two minor instances.56 Among other things, Mr. Nilsen recommended medication support to monitor Mr. Lennon’s 10 response to his current medication.57 Mr. Lennon then met with Orm Aniline, M.D., on January 11 United States District Court Northern District of California 9 24, 2011.58 In a check-the-box form that reflected his mental-status exam, Dr. Aniline observed 12 that Mr. Lennon was peculiar (with careless grooming) in appearance, was evasive, guarded, and 13 agitated (with poor eye contact) in his behavior, was normal in his psychomotor activity, was 14 articulate and normal in his speech, was irritable and neutral in his mood, was full in his affect, 15 and was organized and goal-directed in his thought form.59 Dr. Aniline diagnosed Mr. Lennon 16 with an impulsive disorder and assigned a GAF of 42.60 Dr. Aniline continued Mr. Lennon’s 17 prescription for Seroquel and discontinued the Abilify.61 18 19 Mr. Lennon began meeting with Paula Edwalds, M.D., a psychiatrist, on June 28, 2011.62 Mr. Lennon reported that he stopped taking his Seroquel in March and was using marijuana daily.63 20 21 54 55 Id. Id. 22 56 AR 629–30. 23 57 AR 633. 58 AR 601. 59 25 AR 601–02. 60 AR 603. 26 61 24 27 28 62 63 Id. AR 596. Id. ORDER – No. 17-cv-03437-LB 8 1 Mr. Lennon’s father reported that Mr. Lennon had been more depressed and angry over the past 2 few weeks preceding the visit.64 Among other observations in the check-the-box form that 3 reflected her mental-status exam, Dr. Edwalds noted that Mr. Lennon was threatening, hostile, and 4 uncooperative (with poor eye contact) in his behavior, was loud in his speech, and was angry in 5 his mood.65 Dr. Edwalds convinced Mr. Lennon to restart the Seroquel.66 Her report reflects an 6 Axis I diagnosis of Impulse Control Disorder.67 Mr. Lennon’s father called Humboldt County Mental Health Branch on June 29, 2011.68 He 7 reported that Mr. Lennon was “upset at ‘lo[]sing his cell phone’ and that he is ‘lo[]sing it’ and 9 ‘bright red in the face.’”69 He also reported that Mr. Lennon had moved in with him in November, 10 2010, that his son “gets out of control,” and that he had “kicked his son out a few times since he’s 11 United States District Court Northern District of California 8 moved in with him for behavior issues.”70 The staff member who took the call “[s]trongly 12 suggested that if his son got ‘out of control and physically violent that [Mr. Lennon’s father] call 13 the police.’”71 Mr. Lennon’s father stated that he did not want to call the police for a welfare check 14 because “he doesn’t trust the Fortuna police and ‘my son would see that as a betrayal.’”72 Over the course of the next several months, some of Dr. Edwalds’s relevant observations are 15 16 as follows. September 19, 2011: Mr. Lennon was calm and cooperative at their meeting,73 was 17 losing his temper less frequently, remained anxious in crowds, and was smoking marijuana daily; 18 Dr. Edwalds increased his Seroquel dose (and noted that Mr. Lennon had already increased his 19 20 21 64 Id. 65 22 AR 596–97. 66 AR 596. 23 67 AR 595. 68 AR 573. 24 69 25 70 26 71 27 28 72 73 Id. Id. Id. Id. AR 587. ORDER – No. 17-cv-03437-LB 9 1 dose).74 December 5, 2011: Mr. Lennon reported that his mood had been fairly stable on the 2 medication, and Dr. Edwalds observed that he was well groomed, calm, and cooperative.75 March 3 13, 2012: Mr. Lennon reported that Seroquel left him feeling sedated, and he slept too much, but 4 he did not want to decrease his dosage.76 Mr. Lennon’s father called Humboldt County Mental Health Division on May 2, 2012 and 5 6 spoke with the resident nurse.77 He reported that Mr. Lennon was having a meltdown because of 7 his SSI application and asked to speak with Dr. Edwalds about what happened at Mr. Lennon’s 8 last appointment.78 The resident nurse was unable to answer the father’s question because Mr. 9 Lennon had not signed a form allowing release of information.79 Dr. Edwalds saw Mr. Lennon on June 12, 2012.80 Mr. Lennon reported irritability and ongoing 10 United States District Court Northern District of California 11 mood swings.81 Dr. Edwalds noted in her progress notes that Mr. Lennon displayed slowed 12 thinking, smelled strongly of marijuana, and had an irregular sleep pattern.82 Mr. Lennon asked to 13 increase his dosage of Seroquel.83 Her Axis I diagnoses were Impulse Control Disorder, Bipolar 14 Disorder, and Cannabis Dependence.84 She assigned a GAF of 40 and increased the Seroquel 15 dosage.85 16 17 18 74 AR 587, 589. 19 75 AR 584. 20 21 76 AR 579. Treatment records reflect separate visits with other medical professionals (such as a registered nurse) on the same schedule (and sometimes more) as the appointments with Dr. Edwalds. See, e.g., AR 604–16. Overall, the records show visits from January 2011 to July 2013. AR 524, 780. 77 22 78 23 79 24 80 81 25 82 26 83 27 28 84 85 AR 668. Id. Id. AR 665. Id. Id. Id. AR 667. Id. ORDER – No. 17-cv-03437-LB 10 On July 19, 2012, C. Amen, a senior resident nurse (“SRN”), performed the initial interview 1 2 and observed in the progress notes that Mr. Lennon had an attitude, was angry, showed decreased 3 weight, and was not in a receptive mood.86 Dr. Edwalds noted that Mr. Lennon was sullen and 4 irritable and that he reported that he was feeling better with the increased dosage of Seroquel.87 5 Mr. Lennon reported “[l]ots of stress” including a temporary and unpleasant roommate staying 6 with his father and the possibility that Mr. Lennon’s father might relocate to Santa Rosa for 7 work.88 In her mental-status exam, Dr. Edwalds checked — among other boxes — uncooperative 8 for behavior and angry and irritable for mood.89 Dr. Edwalds assigned Mr. Lennon a GAF of 41.90 On October 9, 2012, Mr. Lennon reported to Dr. Edwalds that his father had moved out, and 9 he was adjusting well to living on his own.91 Dr. Edwalds noted in her “response to medications” 11 United States District Court Northern District of California 10 report that Mr. Lennon’s psychiatric condition was improving.92 12 Dr. Edwalds saw Mr. Lennon on December 11, 2012.93 SRN C. Amen performed the initial 13 interview and noted that Mr. Lennon was working odd jobs, had gained weight, was sleeping fine, 14 and was cooperative though evasive when answering his mood assessment.94 Mr. Lennon was not 15 interested in counseling options.95 Dr. Edwalds spoke with Mr. Lennon’s mother, who reported 16 that her son did well on Abilify in the past; Dr. Edwalds added that prescription and continued the 17 Seroquel prescription.96 She noted that Mr. Lennon was using marijuana daily, up to every 20 18 19 20 21 86 AR 664. 87 AR 661. 88 Id. 22 89 AR 661–62. 23 90 AR 663. 91 AR 658. 92 25 AR 659. 93 AR 653. 26 94 AR 656. 95 AR 653. 96 AR 653, 655. 24 27 28 ORDER – No. 17-cv-03437-LB 11 1 minutes, and her mental-status exam noted that he smelled like marijuana during the meeting.97 2 Her Axis I diagnoses was Impulse Control Disorder, Bipolar Disorder, and Cannabis Dependence, 3 and in her Axis IV diagnosis Dr. Edwalds noted that Mr. Lennon had “problems related to social 4 environment” and was “anxious in crowds.”98 5 Mr. Lennon spoke with SRN C. Amen on February 4, 2013 and stated that he needed a refill 6 for his Seroquel and Abilify.99 The SRN noted in the report that Mr. Lennon did not appear to be 7 compliant.100 The SRN spoke with Dr. Edwalds, who authorized a one-time refill.101 Dr. Edwalds saw Mr. Lennon on March 7, 2013.102 Mr. Lennon reported that his medications 8 9 10 were working well.103 Mr. Lennon also reported that he had a new girlfriend, was feeling better with Abilify, and was no longer breaking things or losing his temper as easily.104 On July 9, 2013, Mr. Lennon reported that he was having problems managing his anger105 and United States District Court Northern District of California 11 12 was managing to stay active by riding his bike and helping his uncle with yard work.106 Dr. 13 Edwalds assigned Mr. Lennon a GAF of 46.107 Her Axis I diagnoses remained Impulse Control 14 Disorder, Bipolar Disorder, and Cannabis Dependence.108 Her Axis IV notes reflected that Mr. 15 Lennon was “living in poverty.”109 16 17 18 97 19 AR 653. 98 AR 655. 20 99 AR 785. 21 100 101 Id. Id. 22 102 AR 781. 23 103 AR 784. 104 AR 781. 105 AR 777. 24 25 106 26 107 AR 779. 108 AR 783. 27 28 109 Id. Id. ORDER – No. 17-cv-03437-LB 12 2.1.4 1 Sonoma County Department of Health Services, Mental Health Division — Treating 2 Mr. Lennon moved back to Sonoma County in June 2015 and resumed treatment through the 3 4 County.110 Accompanied by his mother, Mr. Lennon had an assessment interview on June 15, 5 2015 with Elizabeth Ehrmann-Subia, LMFT, and Mary Killian, LMFT.111 He reported that he was 6 couch-surfing with friends and periodically staying with his mother.112 “He present[ed] as 7 extremely agitated and uncooperative, and both he and his mom agree that this is his baseline.”113 8 Mr. Lennon declined referrals to counseling and the Department of Rehabilitation.114 The 9 assessment reflects his reporting of his present symptoms, including lack of motivation, indecisiveness, racing thoughts, impulsivity, difficulty sleeping, and anxiety symptoms such as 11 United States District Court Northern District of California 10 excessive worrying, feeling easily tired, difficulty concentrating, irritability, and outbursts of 12 anger.115 He reported disliking people, anger, and frustration, and his resulting tendency to isolate 13 himself.116 His mother reported that he began drinking alcohol and smoking marijuana at age 16, 14 and Mr. Lennon reported he used nitris (but was unsure when he did or when he last used it), and 15 tried methamphetamine at age 20.117 His mother reported the family’s history of mental-health 16 issues, including alcoholism on both sides, the recent ending of Mr. Lennon’s almost-two-year 17 relationship, the recent deaths of Mr. Lennon’s friends, his daily use of marijuana, and his interest 18 in building things and working on machines.118 When the interviewers asked about work, Mr. 19 Lennon reported that he was interested in working but did not want to have a boss, and he believed 20 21 110 22 111 23 112 24 113 114 25 115 26 116 27 28 AR 822. Id. Id. Id. Id. Id. Id. 117 AR 823. 118 AR 823–24. ORDER – No. 17-cv-03437-LB 13 1 that no one would hire someone without an education or work experience.119 The assessment 2 reflected his diagnoses of Bipolar Disorder (since his youth), Impulse Control Disorder, and 3 Cannabis Dependence (with heavy, daily use and withdrawal symptoms when not using).120 It 4 documents his medications.121 It summarizes his records beginning as a child, including in the 5 time periods 2010 and 2011.122 The report concludes, “Client was angry and guarded. Client had 6 so much difficulty completing the assessment that his mother had to answer questions for him with 7 the stipulation that he make corrections if the information shared was inaccurate.”123 Mr. Lennon was referred to Ari Harrison, M.D., a board-certified psychiatrist. Dr. Harrison 9 saw him on July 13, 2015.124 Dr. Harrison’s report documented Mr. Lennon’s medical history, 10 diagnoses, and medications.125 He described his appearance: “yelling, angry self serving with 11 United States District Court Northern District of California 8 intense affect.” 126 The diagnosis section reads: “mood do nos,” “self reports bipolar,” “self reports 12 adhd,” “thc use d/o,” and “pd nos”.127 The diagnosis section further states, “transitional age youth 13 with a life-long hostile temperament, insomnia, unhappy. Worse x years, but never in control. 14 numerous med trials — no clear efficacy.”128 It also reflects “thc active use” and “wanting only 15 meds at this time, but appears far more impaired and lacking resources.”129 Dr. Harrison 16 prescribed Seroquel and Clonidine.130 17 18 19 119 AR 824. 20 120 AR 823 (citing Humboldt County Records from 7/20/2014). 21 121 Id. 122 22 AR 835. 123 AR 831. 23 124 AR 835–36. 125 AR 835. 126 AR 836. 24 25 127 26 128 27 28 129 130 Id. Id. Id. AR 837. ORDER – No. 17-cv-03437-LB 14 On August 6, 2015, Dr. Harrison performed a full 90-minute evaluation of Mr. Lennon.131 The 1 evaluation referenced medical records from Humboldt County in 2014 and Sonoma County from 3 childhood and through 2010 and 2011.132 It also includes documentation of a full reporting of Mr. 4 Lennon’s mental-health history and treatment in Sonoma and Humboldt Counties.133 Mr. Lennon 5 reported that he never took the Clonidine, did not want new medications, was continuing the 6 Seroquel, was “doing a little better,” and was less irritable.134 Mr. Lennon’s mother reported that 7 there had been no outbursts for two weeks.135 Dr. Harrison noted that Mr. Lennon’s mood at the 8 evaluation was tired, irritable, and sullen, and he continued to display poor impulse control, but 9 relative to the last visit, he was improved.136 Dr. Harrison increased the dosage of Seroquel.137 Dr. 10 Harrison’s diagnoses were as follows: mood disorder; “self reports bipolar . . . [and] adhd;” THC 11 United States District Court Northern District of California 2 use disorder, and a learning disorder.138 He lists treatment goals that include building rapport, 12 clarifying dx (which presumably means diagnosis), identifying the best rx (meaning, the best 13 prescription), focusing on harm reduction, including trying for sobriety and decreasing caffeine, 14 and tracking Kaiser labs.139 15 Dr. Harrison met with Mr. Lennon for 30 minutes on September 10, 2015.140 His progress 16 notes documented their interactions, including the following. Mr. Lennon felt calmer than he had 17 18 131 19 132 20 AR 840–41. AR 842. The reference is to the years “200” to 2011 and includes specific references to 3/31/2010 and 8/27/2010. Id. From the context (including a reference to “kid”, “200” is a typographical error that likely is 2000, which is the beginning of Mr. Lennon’s treatment with Dr. Leipsic. See supra. 133 AR 842. 134 22 AR 841. 135 AR 840–41. 23 136 AR 843. 137 AR 844. 138 25 AR 843. 139 AR 843–44. 26 140 21 24 27 28 AR 845. Other evaluations took place during the visits. For example, the practice included targeted case management from Nadine Van Vraken Kemper, LCSW, on September 10, 2011, her subsequent briefing of Dr. Harrison, and the plan for another visit and thereafter a stepdown to transition Mr. Lennon to Kaiser. AR 849; cf. AR 848 (referencing Kaiser). ORDER – No. 17-cv-03437-LB 15 1 in prior months but still declined “offer of any services other than to continue meds.”141 Dr. 2 Harrison’s diagnosis and charting of Mr. Lennon’s symptoms included earlier diagnoses but added 3 “bipolar nos” (omitting the qualifying “self-reported”).142 Dr. Harrison noted that Mr. Lennon was 4 less hostile on the higher dose of Seroquel but was still reactive and sullen with no goals.143 It was 5 unclear whether medication changes could improve Mr. Lennon’s situation.144 Dr. Harrison met with Mr. Lennon and his mother for 30 minutes on October 5, 2015.145 They 6 7 reported that Mr. Lennon had no outbursts since their last meeting, spent his time at home, and 8 avoided doing anything.146 Mr. Lennon again refused case management or therapy.147 Dr. Harris 9 noted that the diagnosis “was uncertain — appears most consistent with bipolar spectrum with prior ODD and explosive temperament. [T]hc use present but almost certainly not causal. 11 United States District Court Northern District of California 10 significant improvement [with] seroquel xr 600. unclear if med changes could improve 12 situation.”148 Because Mr. Lennon declined additional services, it was “hard to justify TAY 13 referral — which I think is otherwise clinically indicated. ? kaiser v. brookwood after next appt if 14 situation unchanged.”149 The diagnosis included Bipolar nos, THC use disorder, and a learning 15 disorder.150 Dr. Harrison noted that Mr. Lennon smelled of cannabis and was in an irritable 16 mood.151 The report concluded, “pt at anticipated baseline and unwilling to engage in any 17 [prescription] other than med management, despite [symptom] severity[;] we are left having to 18 19 20 21 141 AR 846. 142 AR 847. 143 Id. 22 144 AR 848. 23 145 AR 850. 24 146 147 25 148 26 149 27 28 150 151 Id. Id. Id. Id. AR 851. Id. ORDER – No. 17-cv-03437-LB 16 1 refer him back to Kaiser Psych.”152 Dr. Harrison said that he would make a six-week follow-up 2 appointment as a safety net to avoid having Mr. Lennon fall through the cracks “but then will 3 close once at kaiser.”153 Dr. Harrison prepared a medical-opinion statement dated October 12, 2015 that reflected a 4 start date for treatment of June 15, 2015 and the following diagnoses: Axis I: Bipolar NOS; and 6 Axis II: Personality Disorder NOS.154 He assigned a GAF of 51.155 He said that the impairment 7 would last at least twelve months, the patient was not a malingerer, and the patient was complaint 8 with treatment.156 Dr. Harrison identified the following diagnostically and clinically significant 9 signs and symptoms for his diagnoses of Bipolar Disorder, ADHD, and Intermittent Explosive 10 Disorder:157 (1) Bipolar Disorder: (a) Criteria for a Manic or Hypomanic Episode: irritability, 11 United States District Court Northern District of California 5 distractibility, agitation, impulsiveness, restlessness, and mood disturbance severe enough to cause 12 noticeable difficulty at work, school, socially, or in relationships; and (b) Criteria for a Major 13 Depressive Episode: depressed mood, irritability, loss of interest or pleasure in all/most activities, 14 decreased ability to think or concentrate, restlessness or slowed behavior, feelings of 15 worthlessness or guilt, and mood disturbance severe enough to cause noticeable difficulty at work, 16 school, socially, or in relationships; (2) Criteria for ADHD: difficulty listening and/or following 17 instructions, difficulty completing tasks, impulsivity, and inappropriate comments or physical 18 gestures without regard for consequences; and (3) Criteria for Intermittent Explosive Disorder: 19 difficulty controlling impulses that lead to aggressive behavioral outbursts (either verbal or 20 behavioral), recurrent outbursts out of proportion to the magnitude of the stressor and without 21 22 23 24 152 153 25 154 26 155 27 28 156 157 AR 852. Id. AR 854. Id. Id. Id. ORDER – No. 17-cv-03437-LB 17 1 thought to consequences, rage or irritability, shouting, and outbursts that cause impairments in 2 functioning.158 For the impacts of the disability, Dr. Harrison checked the following: marked difficulties in 4 maintaining social functioning, marked difficulties in maintaining concentration, persistence, or 5 pace, and repeated episodes of decompensation, each of extended duration.159 He also checked the 6 alternative “Medically documented history of a chronic affective disorder of at least 2 years’ 7 duration that has caused more than a minimal limitation of ability to do basic work activities, with 8 symptoms or signs currently attenuated by medication or psychosocial support, and one of the 9 following: . . . Repeated episodes of decompensation, each of extended duration.”160 The 10 assessment reflects Mr. Lennon’s prescribed Seroquel and answers “Yes” to the following 11 United States District Court Northern District of California 3 questions: (1) does your patient use drugs or alcohol, (2) if so, would he still be disabled and 12 unable to work if he stopped using drugs or alcohol, and (3) are your patient’s mental limitations 13 the direct result of his mental illness.161 14 Dr. Harrison completed a residual-functional-capacity assessment and found the following 15 limitations in the following areas: (1) Understanding and Memory: a moderate limitation in the 16 ability to understand and remember detailed instructions and no limitation in the ability to 17 understand and remember very short and simple instructions; (2) Sustained Concentration and 18 Persistence: (a) extreme limitations in the ability to carry to carry out detailed instructions, 19 maintain attention and concentration for extended periods, sustain an ordinary routine without 20 special supervision, work in coordination with or proximity to others without being distracted by 21 them, and complete a normal workday and workweek without interruptions from psychologically 22 based symptoms and to perform at a consistent pace without an unreasonable number of and 23 length of rest periods; (b) a marked limitation in the ability to perform activities within a 24 schedule, maintain regular attendance, and function within customary tolerances; and (c) mild 25 26 27 28 158 AR 855–57. 159 AR 858. 160 161 Id. Id. ORDER – No. 17-cv-03437-LB 18 1 limitations in the ability to carry out short and simple instructions and make simple work-related 2 decisions; (3) Social Interaction: extreme limitations in the ability to interact with the general 3 public, ask simple questions or request assistance, accept instructions and respond appropriately to 4 criticism from supervisors, get along with co-workers or peers without distracting them or 5 exhibiting behavioral extremes, and maintain socially appropriate behavior and adhere to basic 6 standards of neatness and cleanliness; and (4) Adaptation: (a) an extreme limitation in the ability 7 to tolerate normal levels of stress; (b) a marked limitation in the ability to respond appropriately to 8 changes in the work setting; (c) a moderate limitation in the ability to travel to unfamiliar places or 9 use public transportation, and (d) a mild limitation in the ability to be aware of normal hazards and 10 take appropriate precautions.162 United States District Court Northern District of California 11 Dr. Harrison’s assessment was that Mr. Lennon would miss all days of work each month 12 because of his mental impairment or for treatment of the mental impairment.163 In response to the 13 question, “Do you believe the patient can manage his own funds?”, Dr. Harrison answered “No” 14 and explained, “Too irritable, no skills.”164 15 2.1.5 Kaiser Records — Treating Mr. Lennon transferred back to Kaiser from Sonoma County services in November 2015.165 16 17 On December 1, 2015, he saw Christine Bilbrey, M.D., a psychiatrist.166 Her report noted his 18 refusal for treatment other than medications, documented his prior medical history, identified his 19 daily marijuana use (and his refusal to cut it back), reviewed his family history, reviewed his 20 “systems” (such as cardiovascular, gastrointestinal, musculoskeletal, and neurologic systems, 21 among others), documented her mental-status exam, discussed his lab results and other diagnostic 22 studies, and documented her assessment and diagnosis.167 She diagnosed Mr. Lennon with Bipolar 23 24 162 AR 859–61. 163 AR 861. 25 164 26 165 AR 876. 166 AR 879. 167 AR 880–82. 27 28 Id. ORDER – No. 17-cv-03437-LB 19 1 Disorder type I and continued his medication (albeit under a different brand name).168 Mr. Lennon 2 refused any other treatments, including a baseline EKG.169 Mr. Lennon reported that he was doing 3 well on Seroquel compared to past medications.170 Mr. Lennon and his mother reported that his 4 mood was much steadier and more stable following the increased Seroquel dosage that Dr. 5 Harrison prescribed.171 Dr. Bilbrey noted in her progress notes that Mr. Lennon had a history of 6 “compulsive behaviors over the years with spending,” but that it had become more controlled 7 lately.172 Mr. Lennon reported that his overall mood and energy were better as of late and that he 8 was sleeping well.173 Dr. Bilbrey observed that Mr. Lennon became more irritable with 9 questioning and could not complete his psychological history, but she also was able to redirect his irritability (such that he was smiling by the end of the interview).174 Mr. Lennon’s attention and 11 United States District Court Northern District of California 10 concentration were intact.175 She scheduled once-a-month follow-up appointments and gave 12 contact numbers for the clinic so that Mr. Lennon and his mother could call for earlier 13 appointments “as needed.”176 Mr. Lennon met again with Dr. Bilbrey on January 6, 2016.177 Mr. Lennon and his mother 14 15 reported that his mood was more stable since the last visit, and he reported that he had no major 16 mood swings lately, other than intense anxiety that would come on suddenly.178 Dr. Bilbrey noted 17 that Mr. Lennon had a longstanding poor frustration tolerance.179 Mr. Lennon reported feeling 18 19 168 20 169 21 170 171 22 172 23 173 24 174 175 AR 882. Id. AR 880. Id. Id. Id. AR 881. Id. 25 176 AR 882. 26 177 AR 888. 27 28 178 179 Id. Id. ORDER – No. 17-cv-03437-LB 20 1 tired when he took Seroquel, which allowed him to sleep.180 Mr. Lennon was not interested in 2 other treatment options or support at the time, and he raised his voice when the doctor 3 recommended an EKG.181 Dr. Bilbrey noted that Mr. Lennon’s insight and judgment were 4 chronically impaired.182 5 Mr. Lennon met with Dr. Bilbrey on March 23, 2016; Dr. Bilbrey noted his mood was 6 relatively steady.183 Dr. Bilbrey observed that he seemed calmer during the session because he 7 showed no major outbursts and raised his voice only once.184 Mr. Lennon claimed to have a verbal 8 altercation with a neighbor because Mr. Lennon believed the neighbor was monitoring him with a 9 cell phone.185 Dr. Bilbrey thought that this was not a psychotic episode and that the neighbor was 10 really trying to film Mr. Lennon.186 United States District Court Northern District of California 11 2.1.6 Richard Palmer, Ph.D. — Examining 12 Richard Palmer, Ph.D., a licensed psychologist, performed a psychiatric evaluation of Mr. 13 Lennon on November 28, 2011.187 His evaluation contains his general observations (including Mr. 14 Lennon’s friendly manner, good eye contact, and depressed facial expression),188 Mr. Lennon’s 15 chief complaints (including ADHD, lack of focus, hyperactivity, impulsivity, irritability in 16 crowds, and distractibility), and Mr. Lennon’s reporting regarding the following categories: 17 medication history (and current medication of Seroquel to sleep and focus), psychiatric history, 18 drug and alcohol use (cannabis use since age 16, used that morning, and reported as medicinal), 19 family history of mental illness (reported as none), medical history, family and social history 20 21 22 23 24 180 181 AR 888–89. 182 AR 889. 183 AR 898. Kaiser records show other records by providers such as Julie Mercer, MA, regarding prescriptions. AR 894. 184 25 185 26 186 27 28 Id. 187 188 AR 898. Id. Id. AR 545. Id. ORDER – No. 17-cv-03437-LB 21 1 (including his girlfriend’s dumping him the past Saturday and his couch-surfing and homeless 2 status), educational history (through 10th grade), employment history, stressors, and his level of 3 functioning (independent for basic activities of living, no help needed with meals, and able to 4 manage finances).189 The evaluation also reflects Dr. Palmer’s mental-status examination, 5 diagnosis, and functional assessment.190 Dr. Palmer’s mental-status exam, among other things, noted Mr. Lennon’s appearance 6 (including good grooming), cooperative attitude, good eye contact, alert and fully oriented status, 8 intact intelligence, adequate attention, good concentration, good calculation, good memory, intact 9 ability to abstract, poor judgment, more insight, labile mood, logical and sequential thought 10 process, and unremarkable thought process.191 Dr. Palmer’s Axis I diagnosis was Attention 11 United States District Court Northern District of California 7 Deficit/Hyperactivity Disorder and Intermittent Explosive Disorder, and his Axis IV diagnosis 12 noted the following: “Problems related to: Coping with psychological condition; unable to work; 13 homeless; financial hardship.”192 He assigned a GAF of 50.193 Dr. Palmer’s functional assessment was as follows: 14 Based on the results of the requested mental status exam and clinical interview, including personal history and accompanying documents, it is my opinion that from a psychological standpoint alone, the following statements reasonably reflect Mr. Lennon’s abilities: 15 16 17 Given the assessment and diagnosis, Mr. Lennon currently: 18 19 20 21 22 23 Is questionably capable of managing funds as evidenced by a history of impulsivity and poor decision making. Is able to adequately perform one or two step simple repetitive tasks and is able to adequately perform complex tasks as there are no noted intellectual impairments at this time. Has a poor ability to accept instructions from supervisors and interact with coworkers and the public. There are significant social impairments at this time. 24 25 26 27 28 189 AR 546–47. 190 AR 547–50. 191 AR 547–48 192 AR 548. 193 AR 549. ORDER – No. 17-cv-03437-LB 22 1 2 3 4 5 6 7 8 Has a poor ability to maintain regular attendance in the workplace as mental health symptoms will impact attendance. Has a poor ability to complete a normal workday or workweek without interruptions from a psychiatric condition as mental health symptoms will impact attendance. Has a poor ability to handle normal work related stress from a competitive work environment. Mental health symptoms will impact Mr. Lennon’s ability to handle work related stress. Given Mr. Lennon’s psychiatric and treatment history and results of this evaluation, it appears that the mental health symptoms are chronic in nature. Given the current diagnosis and past mental health involvement, it appears that Mr. Lennon’s current mental health condition may not abate on its own within a one year period. Mr. Lennon may benefit from starting therapy and starting psychiatric medication to address and manage current mental health symptoms. Overall Mr. Lennon’s prognosis is guarded.194 9 10 11 United States District Court Northern District of California Is able to perform work activities on a consistent basis without special or additional instructions as there are no noted intellectual impairments at this time. 12 2.1.7 13 Herbert Tanenhaus, M.D. — Examining 14 Herbert Tanenhaus, M.D., examined Mr. Lennon on May 1, 2013.195 His evaluation contains 15 his general observations (including Mr. Lennon’s unkempt appearance, entering the interview with 16 “an attitude,”196 and increasing cooperativeness as the interview progressed), Mr. Lennon’s chief 17 complaints (anger and lack of trust), his prior diagnoses, his medical history (including being 18 beaten into unconsciousness a year ago, resulting slower thinking197), his medication (Seroquel 19 and Abilify, and his report that without his medication, “he punches walls”), his activities of daily 20 living (lives in a shack with cooking facilities, heat, and water, prepares his own food, keeps the 21 place clean, shops and showers every other day, and spends long periods of time in bed with his 22 thoughts racing), his education and work history (including his being in special education, his 23 24 194 25 195 AR 763. Mr. Lennon’s father accompanied him. AR 765. 196 AR 766 (emphasis in original). 26 27 28 Id. 197 This incident is reflected in the record at AR 680–84 and shows that Mr. Lennon was punched in the face and received sutures. Victor Wallenkampf, M.D., treated Mr. Lennon’s wounds and concluded that no head CT was necessary because Mr. Lennon was neurologically intact. ORDER – No. 17-cv-03437-LB 23 1 desire to become a mechanic, and trimming of marijuana during the two-month season), and his 2 use of marijuana (described by Mr. Lennon as daily use and medicinal).198 Dr. Tanenhaus’s mental-status examination reflects the following: (1) Mr. Lennon’s reported 3 4 depressed mood and score of 38 on the Beck Inventory of Depression, warranting considering 5 treatment with antidepressants; and (2) Mr. Lennon’s cognition (alert and oriented, correct 6 responses, recall after five minutes, adequate fund of information, and average intelligence).199 He 7 diagnosed Mr. Lennon as follows: Axis 1 (Mood Disorder; “I did not elicit a history of bipolar 8 disorder”); and Axis II (Intermittent Explosive Disorder by history and reasonably controlled with 9 medications) and ADHD.200 His diagnosis also stated the following: 10 His activities of daily living were unimpaired by his history. United States District Court Northern District of California 11 He had no significant difficulty registering, understanding, recalling, and executing complicated constructions. However, he was unwilling to discuss certain areas of his life, when requested, as well as refusing to attempt to arithmetic problems. 12 13 His work history of trimming marijuana suggested a reasonable degree of competence in dealing with coworkers and with accepting supervision. However, his almost global mistrust of others suggested that he was capable of only limited contact with coworkers or with the public. He did not describe difficulty being in public when he shops. 14 15 16 18 In judging his impairments with concentration, persistence, and pace, his daily activities suggested some impairment in this area of functioning, perhaps due to lack of motivation, to work regularly. 19 Mr. Lennon is competent to manage his funds. 20 Please note that this report of my psychiatric evaluation of Travis Lennon was based on a single interview. It should be considered as supplemental to other health information available to the division of disability determinations, which will make the final decision about the applicant’s capacity for gainful employment based on their guidelines. 201 17 21 22 23 24 25 198 AR 764–65. 26 199 AR 766–67. 200 AR 767. 201 Id. (emphasis in original). 27 28 ORDER – No. 17-cv-03437-LB 24 2.2 1 2 Other Records 2.2.1 David Lennon (Father) — Report In October 2011, David Lennon submitted a “Third Party Function Report” that discussed Mr. 3 4 Lennon’s health conditions.202 Mr. Lennon was living in a homeless camp at the time.203 In 5 describing Mr. Lennon’s daily activities, David Lennon stated that Mr. Lennon would shower, 6 play video games, and head out to see friends.204 Mr. Lennon’s condition affected his sleep, and 7 Mr. Lennon needed reminders to maintain dental hygiene and take his medications.205 Mr. Lennon 8 sometimes had no appetite, and David Lennon would have to make sure that Mr. Lennon did not 9 burn his frozen meals.206 In response to the question, “[i]f the disabled person doesn’t do house or yard work explain why not,” David Lennon answered, “[c]an not stay focused more than an 11 United States District Court Northern District of California 10 hour.”207 David Lennon reported that Mr. Lennon did not drive because “he won’t study the 12 written test,” Mr. Lennon could leave the house on his own, Mr. Lennon did not shop often 13 because he did not do well in crowds, and Mr. Lennon had no income.208 There were no places that Mr. Lennon went on a regular basis, and Mr. Lennon would 14 15 sometimes need someone to accompany him to doctor appointments.209 Mr. Lennon had problems 16 getting along with others, and David Lennon gave the following examples: “he and his sister don’t 17 get along,” and “if he makes a friend it will end in two or three months.”210 In the “Information 18 About Abilities” section, David Lennon indicated that Mr. Lennon’s condition affected the 19 following categories: memory, completing tasks, concentration, understanding, following 20 21 202 22 AR 360–67. 203 AR 367. 23 204 24 205 206 25 207 26 208 27 28 Id. AR 365. Id. AR 364. Id. 209 AR 363. 210 AR 362. ORDER – No. 17-cv-03437-LB 25 1 instructions, and getting along with others.211 Mr. Lennon could pay attention for “one or two 2 hours,” did not finish things he started, did not follow written instructions, and had a “fair” ability 3 to follow spoken instructions.212 David Lennon reported that Mr. Lennon had never had a job and 4 did not handle changes in routine well, and that he had not noticed any unusual behavior or fears 5 in Mr. Lennon.213 In response to the question “[h]ow well does the disabled person handle 6 stress?,” David Lennon answered, “[n]ot well at all he will cry or go into a sleep mode.”214 7 2.2.2 In describing Mr. Lennon’s childhood, Mr. Lennon’s parents wrote: 8 9 By age 5 we had taken Travis to a doctor because of his behavior — he had horrendous tantrums, he couldn’t sit still or do what he was told. We needed to get him help. He was diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) and put on Ritalin. 10 11 United States District Court Northern District of California Declaration of Michelle Lengjel and David Lennon By the 2nd Grade his medical care was transferred to a specialist, Dr. Leipsic, M.D. who treated Travis until age 18. At age 7, Dr. Leipsic diagnosed Travis with commencing Bipolar Disorder and ADHD. Even with medication and the care of specialists, he struggled daily and required our constant attention. 12 13 14 At school he was frequently pulled out of classes and sent to the principal’s office because of his disruptive behavior. At home, his tantrums included him pounding his head against walls and floors with great force, requiring us to physically restrain him in very tight “bear hugs.” Even as a small child he didn’t sleep at night and was constantly into things. We had to lock all interior and exterior doors at the top where he couldn’t reach. 15 16 17 Travis changed schools 3 times until he ended up at North Valley School which provided a therapeutic setting. There was a significant individualized attention for each student and they were allowed to physically restrain kids — which was a weekly occurrence for Travis. 18 19 20 Unable to meet the demands of high school because of his mental illness and with no support from Humboldt County services, Travis dropped out of school by age 17. His illness and life have not improved since.215 21 Mr. Lennon’s parents described Mr. Lennon’s adulthood as follows: 22 23 24 25 26 27 28 211 212 213 214 215 Id. Id. AR 361. Id. AR 402. ORDER – No. 17-cv-03437-LB 26 Travis is still highly volatile and quick to get upset about the simplest things. He has a tantrum at least once a day that lasts 20-30 minutes. These tantrums will happen when he can’t find something, something of his is moved, the family dog bothers him or the doctor’s office calls to schedule an appointment. In seconds he will start screaming, yelling and throwing things. There is no way to reach him or reason with him. When it’s over he can’t stay awake — he passes out. It’s like his body goes into complete overload. 1 2 3 4 At least once a month Travis has tantrums that we call “episodes” because they are more intense and severe than his daily tantrums. His episodes have caused our neighbors to call the police 3 times since he moved back home in June. The most recent episode was triggered by me, his mom, turning off the TV believing he was done using it. Travis immediately began jumping up and down on his bed, screaming, throwing stuff against the wall and pounding his fists on the walls and yelling “stay away from me, don't come near me.” He went downstairs and starting pacing and rubbing his head saying, “make it stop, make it stop.” Eventually I got him in a bear hug, he calmed down and instantly fell asleep. 5 6 7 8 9 Travis is also deeply depressed all the time and multiple times a year he gets even more depressed and suicidal. Travis’[s] mood is never up, you’d never think of him as a happy person. And when he gets really depressed he feels deeply lonely. He’ll ask himself, “why am I even here?” About a year ago, his sister was so concerned that she called the police to check on him when he was living in Humboldt County. We have both blocked his Face book on occasion because of the constant depressive thoughts and talk of suicide.216 10 United States District Court Northern District of California 11 12 13 Mr. Lennon’s parents described his medications and side effects as follows: 14 Travis is terrified to go without his mediations. As the date of refill approaches his anxiety skyrockets — he’s scared he'll run out of meds even though a refill requires just a phone call. 15 16 The most significant side effect we’ve seen is from the antipsychotic, Seroquel, which he's been on since the 4th or 5th grade. It makes waking up nearly impossible. It's hard for him to get up and then he's in a “fog” for about 1 to 2 hours — he can't really think or talk. 17 18 19 Travis also takes medical marijuana daily and we have seen how essential it is to his wellbeing. We have witnessed all of the following benefits: calmer/more relaxed, improved mood, and reduced anxiety. It is also essential to helping him sleep and improving his appetite. Without it his Bipolar Disorder is noticeably worse. 20 21 22 The medications help to stabilize Travis so that the highs and lows aren't as extreme but they have not, in any way, allowed him to live an even remotely normal or functional life.217 23 Mr. Lennon’s parents described his concentration and focus as follows: 24 25 Ever since Travis was a baby he could not concentrate well or follow directions. And to make it worse, when he gets frustrated or confused he is immediately 26 27 28 216 217 AR 403. Id. ORDER – No. 17-cv-03437-LB 27 overwhelmed and has to walk away. Once overwhelmed and frustrated, he’ll almost never return to that task or topic, he’ll abandon it completely or for months at a time. 1 2 We ask him to complete simple, household tasks like taking out the garbage, but, even with prompting he’ll fail to complete it or forget all together. He can only stay on task for 15-20 minutes before getting distracted or needing to take a long break We have tried to get him working on a few occasions, but he never made it through even one day. 3 4 5 We’ve also noticed that he takes a long time to understand and process new information. He needs everything explained slowly and step by step. We recently had to fill out a release form and every detail had to be explained before he would sign it — this took 30 minutes.218 6 7 8 2.3 9 Mr. Lennon’s Testimony 2.3.1 10 March 22, 2013 Hearing Mr. Lennon testified at the March 22, 2013 hearing before ALJ Maxine Benmour.219 His last United States District Court Northern District of California 11 job was working in a school cafeteria around 2006.220 Mr. Lennon testified that he dropped out of 12 school because he was homeless, and school was “hard to do while being homeless.”221 Starting in 13 second grade, Mr. Lennon was in special education at school. 222 Mr. Lennon believed he was in 14 special education “[b]ecause I was a bipolar child who blew up a lot and I needed — they needed 15 to hold me down sometimes because of it.”223 Mr. Lennon later testified that this meant “[t]wo 16 staff one on each arm and leg” and that this had happened since he was in the third grade.224 Mr. 17 Lennon was taking Seroquel and Abilify at the time of the hearing, but testified that the 18 medication “helps but I still blow — I tend to blow up.”225 He explained that when he blows up: “I 19 throw stuff. I punch walls. I can’t control myself. I yell a lot.”226 Mr. Lennon had been living on 20 21 22 23 24 218 AR 404. 219 AR 47. The court summarizes Mr. Lennon’s testimony at the March 22, 2013 hearing because ALJ Kwon said that she would review all the evidence in the record. See AR 96. 220 AR 47. 221 AR 48. 222 Id. 25 223 26 224 AR 63–64. 225 AR 50. 226 AR 51. 27 28 Id. ORDER – No. 17-cv-03437-LB 28 1 his own for six months in Fortuna.227 He testified that his episodes of throwing things and 2 punching walls were better when he was alone.228 Mr. Lennon believed that his “blow outs” had 3 caused the recent end of a relationship, and that he would “flip out” around his friends which had 4 led to fighting with them physically.229 5 Mr. Lennon had tried to find a job repairing dirt bikes, but he had been asked by stores if he 6 had certifications, and he was not sure if he could get a certification because he did not know if he 7 could put his mind to it.230 He testified that he would spend his time helping out his “other Mom,” 8 riding his bike, and listening to music.231 2.3.1 9 August 2, 2013 Hearing Mr. Lennon testified at a supplemental hearing before ALJ Maxine Benmour on August 2, 10 United States District Court Northern District of California 11 2013 in San Rafael, California.232 Mr. Lennon testified that he had never had a job grooming 12 marijuana plants and said he used marijuana daily to help him calm down, sleep, and to “help[] me 13 to keep from exploding.”233 14 2.3.2 July 11, 2016 Hearing At the hearing before ALJ Kwon, in response to the ALJ’s questioning, Mr. Lennon testified 15 16 as follows. He was living with his mother, and he previously lived with his father for about a year 17 or two in Humboldt County, stayed up there another five years, moved back, and moved in with 18 his mother roughly a year and a half ago.234 He left Humboldt because he was unsatisfied with the 19 medical services he was receiving but he thought the services were tenfold better in Sonoma 20 21 22 227 AR 52. 23 228 AR 53. 229 AR 54–55. 230 25 AR 56–57. 231 AR 60–61. 26 232 AR 73. 233 AR 81–82. 234 AR 99–100. 24 27 28 ORDER – No. 17-cv-03437-LB 29 1 County.235 For the five years he lived in Humboldt County, he had his own place, but his parents 2 paid the rent.236 He was in special-education classes his entire life, went through 12th grade, and 3 never graduated.237 He was not confident in his reading abilities, believed he read at a 5th grade 4 level, did not know math, and failed his driver’s license test (apparently because he could not 5 read).238 He was seeing a mental-health specialist once a month (and had been for five months) for 6 medications, had cognitive behavioral therapy as a child but not after age 18 because it did not 7 help, and took Seroquel every day because it controlled his bipolar disorder (with symptoms that 8 he described as explosions) and without it, he was unable to sleep.239 He was uninterested in 9 college courses, even as a hobby, because he was not able to graduate from high school, was horrible with books, and could last only five or ten minutes before flipping out because he could 11 United States District Court Northern District of California 10 not handle being in public in general, and hid inside all day long.240 In a normal day, he did “[n]othing really, just lay there and do something and then if I do come 12 13 across a task it don’t last that long and it takes me pretty much the whole day to a week to 14 finish.”241 He was able to feed himself (through microwaving, but he did not cook) and could 15 dress and care for himself (although he sometimes went a week without showering because he 16 found the whole world overwhelming and could not find the energy to shower).242 He sometimes 17 stayed in bed for a week.243 He had one friend but never left his home for more than thirty minutes 18 because his social anxiety and big crowds of people overwhelmed him.244 His prescribed 19 marijuana helped his anxiety, and he smoked it five to six times a day, depending on how stressful 20 21 235 Id. 236 22 AR 100. 237 AR 101. 23 238 AR 102. 239 AR 104. 240 25 AR 103–05. 241 AR 106. 26 242 24 27 28 Id. 243 AR 106–07. 244 AR 108. ORDER – No. 17-cv-03437-LB 30 1 the day was, but it did not allow him to leave the house but kept him from “slamming stuff and 2 punching holes in the walls and stuff like that.”245 He was not able to take public transportation 3 because it put him close to too many people; his mother drives him.246 For hobbies, Mr. Lennon liked working on motors (such as gas scooters and small motors) but 4 5 lately had not because he had no energy.247 His last job was a year and a half ago, through his 6 father, who got him a job digging post holes, but he lasted only one day on the job,248 flipping out 7 because he was overwhelmed, felt pressured, and could not stay still for too long.249 He generally 8 did not shop but did previously (apparently in Humboldt, when he could walk to Safeway) at off 9 hours such as 2:00 a.m., but sometimes it would take him three days to “prep” himself to go out 10 shopping.250 When he had a computer in the past, he sometimes would check Facebook.251 In response to questioning by his attorney, Mr. Lennon testified as follows. He flipped out or United States District Court Northern District of California 11 12 had an outburst “any day. It could be every day.”252 At school, they restrained him physically 13 when he had an outburst, but he had learned to remove himself from a situation and walk away.253 14 His cool-down period could sometimes take all day.254 His bipolar disorder affected his sleep, he 15 had problems sleeping all of his life, and smoking marijuana helped with sleep.255 He woke up in a 16 fog each morning at around 11 a.m. or noon; the fog could last for a few hours up to all day, and it 17 made it very difficult to talk and think, and it “play[ed] into bipolar outbursts because I get 18 19 20 21 245 AR 109–10. 246 AR 111. 247 Id. 22 248 AR 111–12. 23 249 AR 112–13. 250 AR 114–15. 251 25 AR 115. 252 AR 118. 26 253 24 27 28 Id. 254 AR 119. 255 AR 119–20. ORDER – No. 17-cv-03437-LB 31 1 frustrated because I don’t know how to express myself that well.”256 He took all day to clean the 2 house before his mother returned from vacation, and he could work on his scooter for roughly 3 twenty to thirty minutes before he needed to take a break.257 4 2.4 Michelle Lengjel (Mr. Lennon’s Mother) — Testimony 5 Michelle Lengjel — Mr. Lennon’s mother — testified at the July 11, 2016 hearing.258 In 6 response to the ALJ’s questions, she testified as follows. Travis lived with her for almost a year.259 7 He previously lived in a rented room (that she paid for) with his uncle in Humboldt County but his 8 uncle complained about his habits (including a dirty bathroom and kitchen and screaming inside 9 his room) and couldn’t take it anymore, so he moved back with her.260 Mr. Lennon could dress, feed, and bathe himself.261 She occasionally took Mr. Lennon grocery shopping around midnight, 11 United States District Court Northern District of California 10 and Mr. Lennon went shopping himself only once every month or two.262 Mr. Lennon has two 12 friends who come to the house.263 He worked on his Goped, a scooter with a motor on it, every 13 two or three weeks if it had problems.264 He saw a psychiatrist for medication and panics without 14 it because “he knows what he’ll be like if he doesn’t take his medication.”265 His medication was 15 Seroquel, and he used therapeutic oils and marijuana for anxiety, smoking three or four times a 16 day.266 She believed that Mr. Lennon’s marijuana use was helpful because it replaced the Abilify: 17 18 19 256 20 AR 120–21. 257 AR 121–22. 21 258 22 259 AR 124. 23 260 AR 124–27. 261 AR 127. 262 25 AR 128–29. 263 AR 129. 26 264 AR 130. 265 AR 133. 266 AR 133–34. 24 27 28 Ms. Lengjel also testified at the August 2, 2013; see AR 82–91. Her testimony was consistent with her testimony at the July 11, 2016 hearing. ORDER – No. 17-cv-03437-LB 32 1 “I’ve seen what he’s been like on Abilify and what he’s been like off the Abilify”.267 Marijuana 2 helped relax her son’s anxiety, tension, and panicking.268 Mr. Lennon spent his days listening to music or playing video games, and occasionally (“[n]ot 3 4 very often . . . because it gets him upset”), he checked Facebook on his smartphone.269 Ms. 5 Lengjel prepared Mr. Lennon weeks in advance for medical appointments to mitigate his anxiety, 6 using night tea among other efforts.270 In response to questioning by Mr. Lennon’s attorney, Ms. Lengjel testified as follows. Mr. 7 8 Lennon never had a therapist as an adult because he did not find them helpful as a child.271 She 9 remarked, “he’s gotten all the therapy he could possible get [from age five] . . . [s]hov[ed] down his throat you might want to say.”272 By age three, Mr. Lennon was prescribed Ritalin, and by age 11 United States District Court Northern District of California 10 eight, he was diagnosed with bipolar disorder and had been treated for it ever since.273 She was 12 worried that Mr. Lennon might hurt himself given his depression and the family history of bipolar 13 disorder.274 14 2.5 15 Jeffrey Malmouth, a vocational expert (“VE”), testified at the hearing on July 11, 2016 via Vocational Expert Testimony — July 11, 2016 Hearing 16 telephone.281 The ALJ noted that Mr. Lennon had no SGA.282 The ALJ then posed the following 17 hypothetical to the VE: 18 267 AR 135. 268 20 AR 140. 269 AR 136. 21 270 AR 137. 271 AR 138–39. 272 23 AR 139. 273 AR 140–42. 24 274 AR 143. 281 AR 144. 19 22 25 26 27 28 282 AR 145. “SGA” stands for substantial gainful activity, which is a part of the first step in determining disability. If the claimant has an SGA, then the claimant is “not disabled” and is not entitled to benefits. If the claimant has no SGA, then the claimant case cannot be resolved at step one, and the evaluation proceeds to step two, which looks to the severity of the claimant’s impairment. See 20 C.F.R. § 404.1520(a)(4)(i)-(ii). ORDER – No. 17-cv-03437-LB 33 “[L]et’s assume we have an individual with the claimant’s age, education, and background. Hypothetical individual does not have any restrictions from an exertional standpoint but has the following non-exertional limitations. The job should be limited to simple, routine tasks, equivalent to a maximum SVP of 2. There should be no interaction with the general public in terms of the primary duties of the job. There should be up to occasional interaction with the supervisor and no team work projects with other co-workers, again, as part of the primary duties of the job. I want to focus or narrow the range of jobs to those that an individual can perform pretty much after a simple demonstration certainly within 30 days and is performed regularly on their own so something that doesn’t require coordination with others and being around lots of people. Can you give me three examples with numbers for California and the nation, please?”283 1 2 3 4 5 6 7 The VE replied: 8 “Yes . . . the first example I have would be an electrical accessories assembler. The DOT code is 729.687-010. This is light with an SVP of 2. Nationally there are approximately 37,000 jobs and in California approximately 4,400 jobs. A second example is a mail sorter. The DOT code is 209.687-026. This is light with an SVP of 2. Nationally there are approximately 50,000 jobs and statewide approximately 4,000 jobs. A third example is an inspector and hand packager. The DOT code is 559.687-074. Also light with an SVP of 2, nationally there are approximately 29,000 jobs and in California approximately 3,200 jobs. These are all light exertional strength. I have medium if you’d like as well.”284 9 10 United States District Court Northern District of California 11 12 13 The ALJ then posed a second hypothetical: 14 “I added to my first set of restrictions that the hypothetical individual would be off task on a chronic basis. They are off task 25 percent of work time and this is happening every single day beyond the probationary period and so forth. What does that do to the representative three jobs and to competitive work in general?”285 15 16 17 The VE replied: 20 “Well, it would eliminate the three jobs that I discussed. It would also eliminate my opinion on all other jobs. If the individual were off task fully 25 percent of the day that means essentially that they would be unable to perform the essential functions of any job two hours, 25 percent off task is equivalent to two hours a day or a day in a quarter every week. I don’t believe that that would be tolerated by any employer in a competitive labor market.”286 21 The ALJ then asked the VE if his testimony was consistent with the DOT. The VE replied: 22 In part, Your Honor. The part about no public interaction, occasional supervision and no team work, that is based primarily on my experience. Also maybe to a lesser degree it’s based on quantification of data, people, things in the DOT. With respect to the second hypothetical, being off task to 25 percent I would analogize that to a 18 19 23 24 25 283 26 284 27 28 285 286 AR 145. Id. Id. Id. ORDER – No. 17-cv-03437-LB 34 level of absenteeism or to absenteeism on which there’s actually then labor market surveys and in my opinion the amount of time off task would essentially equate to almost five days a month that the individual would be unable to perform the essential functions. For that particular piece of information I often turn to or rely on a publication, the Journal of Forensic Vocational Analysis where this labor market survey was published in support of my opinion on this particular issue.287 1 2 3 4 2.6 5 The ALJ followed the five-step sequential evaluation process to determine whether Mr. 6 Lennon was disabled and concluded he was not.288 At step one, the ALJ found that Mr. Lennon had not engaged in substantial gainful activity 7 8 Administrative Findings since June 29, 2011.289 At step two, the ALJ found that Mr. Lennon had the following severe impairments: “bipolar 9 disorder, attention deficit hyperactivity disorder (ADHD), cannabis dependence, impulse control 11 United States District Court Northern District of California 10 disorder, and intermittent explosive disorder.”290 At step three, the ALJ found that Mr. Lennon did not have an impairment or combination of 12 13 impairments that met or medically equaled the severity of one of the listed impairments.291 Mr. 14 Lennon’s mental impairments, both individually and combined, did not meet or medically equal 15 listings 12.04, 12.06, and 12.09.292 Mr. Lennon’s mental impairments also did not satisfy the 16 “paragraph B” criteria because the evidence did not show at least two marked functional 17 limitations or one marked limitation and repeated episodes of decompensation.293 Mr. Lennon had 18 only mild restrictions on activities of daily living (citing his activities of riding a bicycle, watching 19 television, going on Facebook, riding and repairing a scooter, doing laundry, caring for his 20 personal hygiene and grooming, and living alone in Humboldt County for a period of time that 21 22 23 24 287 AR 145–47. 288 AR 22–36. 289 AR 23. 25 290 26 291 27 28 292 293 Id. AR 24. Id. AR 25. ORDER – No. 17-cv-03437-LB 35 1 required him to be independent in shopping and cleaning).294 He had moderate difficulties with 2 social functioning (including disruptive and inappropriate behavior in school, emergency-room 3 records of injuries suffered in altercations, and issues with crowds, irritability, anger and 4 frustration) (but he also interacted with friends, girlfriends, and parents, showing some degree of 5 ability to socialize with others); he also had moderate difficulties with “concentration, persistence, 6 or pace.”295 Mr. Lennon’s mental impairments did not satisfy the “paragraph C” requirements 7 because the evidence did not show a history of chronic affective disorder that lasted at least two 8 years causing more than a minimal limitation of ability to do basic work activities.296 Mr. 9 Lennon’s impairments also lacked one of the following under “paragraph C”: (1) repeated episodes of decompensation of extended duration; (2) a residual-disease process that has resulted 11 United States District Court Northern District of California 10 in such marginal adjustment that even a minimal increase in mental demands or change in the 12 environment would be predicted to cause the individual to decompensate; or (3) a current history 13 of one or more years’ inability to function outside a highly supportive living arrangement.297 14 At step four, the ALJ determined that Mr. Lennon had the residual-functional capacity 15 (“RFC”) to perform a full range of work at all exertional levels, with the following nonexertional 16 limitations: [H]e is limited to simple, repetitive tasks equivalent to unskilled work with a maximum specific vocational preparation (SVP) of 2, no interaction with the public, and no team work projects with coworkers that requires coordinating with others; so that work is performed largely independently.298 17 18 19 The ALJ then found that Mr. Lennon had no past relevant work experience and proceeded to 20 21 step five.299 22 23 24 294 295 25 296 26 297 27 28 298 299 AR 24. Id. AR 25. Id. Id. AR 34–35. ORDER – No. 17-cv-03437-LB 36 At step five, the ALJ determined that, given Mr. Lennon’s RFC, a significant number of jobs 1 2 existed in the national economy that he could perform.300 The ALJ concluded that Mr. Lennon was 3 not disabled.301 ANALYSIS 4 5 1. Standard of Review Under 42 U.S.C. § 405(g), district courts have jurisdiction to review any final decision of the 6 7 Commissioner if the claimant initiates a suit within sixty days of the decision. A court may set 8 aside the Commissioner’s denial of benefits only if the ALJ’s “findings are based on legal error or 9 are not supported by substantial evidence in the record as a whole.” Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009) (internal citation and quotation marks omitted); 42 U.S.C. § 405(g). 11 United States District Court Northern District of California 10 “Substantial evidence means more than a mere scintilla but less than a preponderance; it is such 12 relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” 13 Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). The reviewing court should uphold “such 14 inferences and conclusions as the [Commissioner] may reasonably draw from the evidence.” Mark 15 v. Celebrezze, 348 F.2d 289, 293 (9th Cir. 1965). If the evidence in the administrative record 16 supports the ALJ’s decision and a different outcome, the court must defer to the ALJ’s decision 17 and may not substitute its own decision. Tackett v. Apfel, 180 F.3d 1094, 1097–98 (9th Cir. 1999). 18 “Finally, [a court] may not reverse an ALJ’s decision on account of an error that is harmless.” 19 Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). 20 21 2. Applicable Law 22 A claimant is considered disabled if (1) he or she suffers from a “medically determinable 23 physical or mental impairment which can be expected to result in death or which has lasted or can 24 be expected to last for a continuous period of not less than twelve months,” and (2) the 25 “impairment or impairments are of such severity that he or she is not only unable to do his 26 27 28 300 AR 35. 301 AR 36. ORDER – No. 17-cv-03437-LB 37 1 previous work but cannot, considering his age, education, and work experience, engage in any 2 other kind of substantial gainful work which exists in the national economy. . . .” 42 U.S.C. § 3 1382c(a)(3)(A) & (B). The five-step analysis for determining whether a claimant is disabled 4 within the meaning of the Social Security Act is as follows. Tackett, 180 F.3d at 1098 (citing 20 5 C.F.R. § 404.1520). 6 7 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 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). 22 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. 23 For steps one through four, the burden of proof is on the claimant. At step five, the burden 18 19 20 21 24 shifts to the Commissioner. Gonzales v. Sec’y of Health & Human Servs., 784 F.2d 1417, 1419 25 (9th Cir. 1986). 26 27 28 ORDER – No. 17-cv-03437-LB 38 1 3. Application Mr. Lennon contends that the ALJ erred at step five in determining his RFC because (1) the 2 3 ALJ posed a hypothetical question to the VE that omitted the ALJ’s limitations regarding his 4 interactions with the public and co-workers, (2) the ALJ did not follow the Appeals Council’s 5 directive to ensure that the VE’s testimony was consistent with the Selected Characteristics of 6 Occupations (“SCO”) (in addition to the Dictionary of Occupational Titles (“DOT”)), and (3) the 7 ALJ erred by giving only minimal weight to the medical opinion of his treating physician, Dr. 8 Harrison.302 9 3.1 Whether the ALJ Erred in Formulating the Hypothetical Posed to the VE Mr. Lennon contends that the ALJ erred by posing a hypothetical to the VE that did not reflect 11 United States District Court Northern District of California 10 the final limitations the ALJ included in the RFC.303 Specifically, Mr. Lennon alleges that the final 12 RFC included a restriction from any interaction with the public and with co-workers, but the 13 hypothetical posed to the VE stated only that the job should not include interaction with the public 14 or co-workers as a “primary job duty.”304 For the reasons stated below, the court remands on this 15 issue. The ALJ assigned an RFC to Mr. Lennon that included “no interaction with the public, and no 16 17 team work projects with co-workers that requires coordinating with others; so that work is 18 performed largely independently.”305 In the ALJ’s hypothetical to the VE, the ALJ stated: “[t]here 19 should be no interaction with the general public in terms of the primary duties of the job. There 20 should be up to occasional interaction with the supervisor and no team work projects with other 21 co-workers, again, as part of the primary duties of the job. I want to focus or narrow the range of 22 jobs to those that an individual can perform pretty much after a simple demonstration certainly 23 24 25 302 Reply – ECF No. 22 at 2–3. 26 303 Mot. – ECF No. 17 at 17. 27 28 304 305 Id. AR 25. ORDER – No. 17-cv-03437-LB 39 1 within 30 days and is performed regularly on their own so something that doesn’t require 2 coordination with people or being around lots of people.”306 The Ninth Circuit has held generally: 3 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. 4 5 6 7 8 9 Gallant v. Heckler, 753 F.2d 1450, 1456 (9th Cir. 1984) (internal quotation marks and citation 11 United States District Court Northern District of California 10 omitted); see Lubin v. Comm’r of Soc. Sec. Admin, 507 Fed. Appx. 709, 712 (9th Cir. 2013) (“ALJ 12 must include all restrictions in . . . the hypothetical question posed to the vocational expert”); Hill 13 v. Astrue, 698 F.3d 1153, 1162 (9th Cir. 2012) (“If a vocational expert’s hypothetical does not 14 reflect all the claimant’s limitations, then the expert’s testimony has no evidentiary value to 15 support a finding that the claimant can perform jobs in the national economy.”). 16 The ALJ’s final RFC arguably contains a stricter limitation on interactions with the public and 17 co-workers than the restrictions the ALJ posed in her hypothetical to the VE because she added the 18 words “primary duties of the job.” Any error may be harmless for two reasons. First, the VE 19 apparently interpreted the ALJ’s hypothetical to mean no interaction with the public: when asked 20 whether his testimony was consistent with the DOT, the VE replied, “The part about no public 21 interaction, occasional supervision and no team work, that is based primarily on my 22 experience.”307 Second, the government sets out the job duties for the three jobs that the VE 23 identified.308 The government argues persuasively that the job duties do not involve working with 24 25 26 27 28 306 AR 145–46. 307 AR 147. 308 Cross-Mot. – ECF No. 21 at 5–6 & n.4. ORDER – No. 17-cv-03437-LB 40 1 people and instead involve working with things.309 But Mr. Lennon counters that the jobs require 2 taking instruction according to the SCO grouping “687,” with 8 being the “People category.”310 3 Given that the court remands to the ALJ for further weighing of the medical-opinion evidence, 4 the court remands on this issue too. On remand, the ALJ can reconsider her hypothetical to the VE 5 in light of the parties’ arguments. 6 3.2 7 Whether the ALJ Erred by Failing to Ask the VE if His Testimony Was Consistent With the Selected Characteristics of Occupations 8 Mr. Lennon argues that the ALJ erred by failing to ask whether the VE’s testimony was 9 consistent with the Selected Characteristics of Occupations (“SCO”).311 The Appeals Council ordered the ALJ to “identify and resolve any conflicts between the occupational evidence provided 11 United States District Court Northern District of California 10 by the vocational expert and information in the Dictionary of Occupational Titles (DOT) and its 12 companion publication, the Selected Characteristics of Occupations (Social Security Ruling 00- 13 4p).”312 Mr. Lennon argues that the ALJ’s failure to ask explicitly about the SCO was error 14 because the three jobs that the VE identified — electrical accessories assembler, mail sorter, and 15 inspector and hand packager — require “Taking Instructions — Helping” under the SCO, and her 16 RFC is not consistent with a job that requires taking instructions.313 Mr. Lennon argues that the 17 instructions involve interactions with the public or co-workers.314 Again, any error may be harmless. While the VE did not reference the SCO, he testified that 18 19 the three jobs he identified — electrical accessories assembler, mail sorter, and inspection and 20 hand packager — were consistent with the DOT and included “no public interaction, occasional 21 supervision and no team work” based on the VE’s experience.”315 But because the court remands 22 309 Id. at 5–6. 310 Reply – ECF No. 22 at 8. 311 25 Mot. – ECF No. 17 at 18. 312 AR 197. 26 313 Reply – ECF No. 22 at 8. 23 24 27 28 314 315 Id. AR 147. ORDER – No. 17-cv-03437-LB 41 1 for further weighing of the medical-opinion evidence, the ALJ can reconsider her hypothetical and 2 questions to the VE and the parties’ arguments on this issue. 3 3.3 Whether the ALJ Erred in Evaluating and Weighing Dr. Harrison’s MedicalOpinion Evidence 4 Mr. Lennon contends that the ALJ erred when she assigned “minimal weight” to Dr. 5 6 Harrison’s opinion.316 The ALJ’s full discussion of the weight that she afforded Dr. Harrison’s 7 opinion is as follows: Dr. Harrison was of the opinion the claimant was unable to perform work activity on a sustained basis due to the emotional disorder. His opinion is based on a very short period of treatment from June 2015 through October 5, 2015 while the claimant has alleged an inability to work since March 2010. Thus, Dr. Harrison had no knowledge of claimant’s emotional status since March 2010 and five months of treatment does not provide longitudinal knowledge supporting a loss of ability for all work activity. Minimal weight is given Dr. Harrison’s opinion.317 8 9 10 United States District Court Northern District of California 11 12 13 14 The court first discusses the law governing the ALJ’s weighing of medical-opinion evidence 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 v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014) (quoting Andrews, 53 F.3d 17 at 1039). In weighing and evaluating the evidence, the ALJ must consider the entire case record, 18 including each medical opinion in the record, together with the rest of the relevant evidence. 20 19 C.F.R. § 416.927(b); see also Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (“[A] reviewing 20 court [also] must consider the entire record as a whole and may not affirm simply by isolating a 21 specific quantum of supporting evidence.”) (internal quotation marks and citation omitted). 22 23 “In conjunction with the relevant regulations, [the Ninth Circuit has] developed standards that guide [the] analysis of an ALJ’s weighing of medical evidence.”318 Ryan v. Comm’r of Soc. Sec., 24 25 26 27 28 316 Mot. – ECF No. 17 at 19. 317 AR 33. 318 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, July 11, 2016. ORDER – No. 17-cv-03437-LB 42 1 528 F.3d 1194, 1198 (9th Cir. 2008) (citing 20 C.F.R. § 404.1527). Social Security regulations 2 distinguish between three types of physicians (and other “acceptable medical sources”): (1) 3 treating physicians; (2) examining physicians; and (3) non-examining physicians. 20 C.F.R. § 4 416.927(c), (e); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). “Generally, a treating 5 physician’s opinion carries more weight than an examining physician’s, and an examining 6 physician’s opinion carries more weight than a reviewing [non-examining] physician’s.” Holohan 7 v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001) (citing Lester, 81 F.3d at 830). 8 9 An ALJ, however, may disregard the opinion of a treating physician, whether or not controverted. Andrews, 53 F.3d at 1041. “To reject [the] uncontradicted opinion of a treating or examining doctor, an ALJ must state clear and convincing reasons that are supported by 11 United States District Court Northern District of California 10 substantial evidence.” Ryan, 528 F.3d at 1198 (alteration in original) (internal quotation marks and 12 citation omitted). By contrast, if the ALJ finds that the opinion of a treating physician is 13 contradicted, a reviewing court will require only that the ALJ provide “specific and legitimate 14 reasons supported by substantial evidence in the record.” Reddick v. Chater, 157 F.3d 715, 725 15 (9th Cir. 1998) (internal quotation marks and citation omitted); see also Garrison, 759 F.3d at 16 1012 (“If a treating or examining doctor’s opinion is contradicted by another doctor’s opinion, an 17 ALJ may only reject it by providing specific and legitimate reasons that are supported by 18 substantial evidence.”) (internal quotation marks and citation omitted). The opinions of non- 19 treating or non-examining physicians may serve as substantial evidence when the opinions are 20 consistent with independent clinical findings or other evidence in the record. Thomas v. Barnhart, 21 278 F.3d 947, 957 (9th Cir. 2002). An ALJ errs, however, when she “rejects a medical opinion or 22 assigns it little weight” without explanation or without explaining why “another medical opinion is 23 more persuasive, or criticiz[es] it with boilerplate language that fails to offer a substantive basis 24 for [her] conclusion.” Garrison, 759 F.3d at 1012–13. 25 “If a treating physician’s opinion is not given ‘controlling weight’ because it is not ‘well- 26 supported’ or because it is inconsistent with other substantial evidence in the record, the [Social 27 Security] Administration considers specified factors in determining the weight it will be given.” 28 Orn, 495 F.3d at 631. “Those factors include the ‘[l]ength of the treatment relationship and the ORDER – No. 17-cv-03437-LB 43 1 frequency of examination’ by the treating physician; and the ‘nature and extent of the treatment 2 relationship’ between the patient and the treating physician.” Id. (quoting 20 C.F.R. § 3 404.1527(d)(2)(i)–(ii)) (alteration in original). “Additional factors relevant to evaluating any 4 medical opinion, not limited to the opinion of the treating physician, include the amount of 5 relevant evidence that supports the opinion and the quality of the explanation provided[,] the 6 consistency of the medical opinion with the record as a whole[, and] the specialty of the physician 7 providing the opinion . . . .” Id. (citing 20 C.F.R. § 404.1527(d)(3)–(6)); see also Magallanes v. 8 Bowen, 881 F.2d 747, 753 (9th Cir. 1989) (ALJ need not agree with everything contained in the 9 medical opinion and can consider some portions less significant than others). Dr. Harrison is a board-certified psychiatrist and therefore is an acceptable medical source.319 10 United States District Court Northern District of California 11 He was Mr. Lennon’s treating physician at Sonoma County Behavioral Health Department.320 His 12 opinion, including his conclusion that Mr. Lennon would miss all days of work per month due to 13 Mr. Lennon’s mental impairment, is contradicted by Dr. Tanenhaus’s opinion.321 The ALJ 14 therefore was required to give “specific and legitimate reasons” for rejecting his opinion. 15 Garrison, 759 F.3d at 1012. Mr. Lennon challenges the ALJ’s according minimal weight to Dr. Harrison’s medical opinion 16 17 on the ground that five months of treatment in 2015 did not provide “longitudinal knowledge 18 supporting a loss of ability for all work activity” for a claimant who alleged an inability to work 19 since 2010.322 He also argues that the ALJ erroneously referenced Dr. Harrison’s lack of 20 “knowledge of the claimant’s emotional status since March 2010. . . .”323 Preliminarily, the length of the treatment relationship is relevant. The Social Security 21 22 Administration regulations instruct ALJs to consider the “[l]ength of the treatment relationship 23 24 319 25 AR 862. 320 AR 835 61. 26 321 AR 767. 322 Mot. – ECF No. 17 at 24 (quoting AR 33). 27 28 323 Id. ORDER – No. 17-cv-03437-LB 44 1 and the frequency of examination” as one factor in assigning weight to medical opinions, 2 explaining: Generally, the longer a treating source has treated you and the more times you have been seen by a treating source, the more weight we will give to the source's medical opinion. When the treating source has seen you a number of times and long enough to have obtained a longitudinal picture of your impairment, we will give the medical source's medical opinion more weight than we would give it if it were from a nontreating source.324 3 4 5 6 See also Lusardi v. Astrue, 350 Fed. Appx. 169, 171–72 (9th Cir. 2009) (holding that the ALJ 8 satisfied the clear and convincing standard when they assigned minimal weight to a treating 9 physician’s opinion because the ALJ noted the doctor’s infrequent visits with the claimant); Puga 10 v. Colvin, No. 13–cv–03485–JSC , 2014 WL 2452699, at *8 (N.D. Cal. May 30, 2014) (upholding 11 United States District Court Northern District of California 7 the ALJ’s decision to assign minimal weight to a treating physician because the ALJ considered a 12 decrease in the claimant’s treatment schedule with the treating physician); Grande v. Colvin, No. 13 5:14-cv-05181-PSG , 2015 WL 7454154, at *4 (N.D. Cal. Nov. 24, 2015) (reasoning that the ALJ 14 could assign less weight, but not completely reject, a treating doctor’s opinion because the 15 doctor’s relationship with the patient had only lasted five months). 16 Furthermore, the Ninth Circuit has noted, “Section 404.1502 neither explicitly forbids nor 17 requires crediting a physician ‘treating’ status whose patient contact is thus limited. Its language 18 suggests that ‘a few times’ or contact as little as twice a year would suffice, but it does not state 19 that this frequency of patient contact represents a floor.” Benton ex rel. Benton v. Barnhart, 331 20 F.3d 1030, 1035–36 (9th Cir. 2003). “Rather, the standard it applies is that the claimant must have 21 seen ‘the source with a frequency consistent with accepted medical practice for the type of 22 treatment and/or evaluation required for your medical condition(s).’” Id. 23 Here, the record reflects that Dr. Harrison’s treatment was part of a team approach that 24 included assessments by other Sonoma County mental-health providers in 2015.325 His reports 25 26 324 27 325 28 20 C.F.R. § 404.1527 (c)(2)(i). AR 840–53; see supra Statement (summarizing the Sonoma County Mental Health Division records). ORDER – No. 17-cv-03437-LB 45 1 show his review of records from Humboldt County and earlier Sonoma County record dating back 2 to 2010.326 He conducted a full mental-health assessment in August 2015.327 Mr. Harrison’s 3 mother was there and with Mr. Lennon, provided his full history.328 Given that the County’s mental-health assessment took place over a treatment period that 4 5 spanned June to October 2015 and was based on a full assessment that included Dr. Harrison’s 6 review of Mr. Lennon’s full medical history and records from childhood, the ALJ’s cursory 7 explanation for according the opinion minimal weight was not a “specific and legitimate” reason 8 for rejecting it, especially given the ALJ’s giving significant weight to the 2013 one-time 9 examination by Dr. Tanenhaus.329 Garrison, 759 F.3d at 1012–13. The court remands for the ALJ 10 to reconsider the medical opinion. United States District Court Northern District of California 11 12 CONCLUSION The court grants Mr. Lennon’s summary-judgment motion, denies the Commissioner’s cross- 13 14 motion, and remands this case for further proceedings consistent with this order. 15 IT IS SO ORDERED. 16 Dated: July 26, 2018 ______________________________________ LAUREL BEELER United States Magistrate Judge 17 18 19 20 21 22 23 24 25 26 27 28 326 AR 842. 327 AR 840–41. 328 AR 841–42. 329 AR 32. ORDER – No. 17-cv-03437-LB 46