Jones v. Berryhill, No. 3:2018cv01857 - Document 25 (N.D. Cal. 2019)

Court Description: ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT Signed by Judge William H. Orrick on 09/24/2019. (jmdS, COURT STAFF) (Filed on 9/24/2019)

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Jones v. Berryhill Doc. 25 1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SHARON JONES, 7 Plaintiff, 8 v. 9 NANCY A. BERRYHILL, 10 Defendant. United States District Court Northern District of California 11 Case No. 18-cv-01857-WHO ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Re: Dkt. Nos. 19, 20 12 The parties have filed cross-motions for summary judgment in this Social Security appeal. 13 14 Based upon my review of the parties’ papers and the administrative record, I GRANT plaintiff’s 15 motion, DENY defendant’s motion, and the matter is remanded for further proceedings. 16 17 BACKGROUND I. PROCEDURAL HISTORY 18 On February 6, 2014, plaintiff Sharon Jones applied for Supplemental Security Income 19 (“SSI”) under Title XVI of the Social Security Act, alleging a disability onset date of June 15, 20 2010. Administrative Record (“AR”) 262. Her application was denied initially and again on 21 reconsideration. AR 185–89, 194–98. She requested a hearing and appeared with counsel before 22 Administrative Law Judge (“ALJ”) Evangelina P. Hernandez on June 28, 2016. AR 98–131. On 23 September 12, 2016, the ALJ denied her claim for benefits. AR 10–27. On November 4, 2016, 24 Jones appealed. AR 258. The ALJ’s September 2016 denial became the Commissioner’s final 25 decision when the Appeals Counsel declined review on January 24, 2018. AR 1–4. On March 27, 26 2018, Jones filed this action for judicial review pursuant to 42 U.S.C. § 405(g). Dkt. No. 1. Jones 27 filed a motion for summary judgment on November 21, 2018, and the Commissioner filed a cross- 28 motion for summary judgment on December 19, 2018. Dkt. Nos. 19, 20. Dockets.Justia.com United States District Court Northern District of California 1 On June 17, 2019, Jones filed a request for judicial notice of a Notice of Award dated May 2 28, 2019, from the Social Security Administration.1 Dkt. No. 24. After the adverse decision from 3 ALJ Hernandez, Jones filed a subsequent application for SSI benefits. That subsequent 4 application ended up with a decision that Jones was entitled to SSI benefits as of November 2016 5 “based on being disabled.” Id. Therefore, the only time period covered by this appeal is whether 6 plaintiff was disabled and entitled to benefits between June 15, 2010 and October 2016. 7 II. JONES’S IMPAIRMENTS 8 A. 9 On October 4, 2011, Dr. Sokley Khoi, a psychologist who was not performing a physical Physical Impairments 10 examination or an eye test, noted that Jones “walked slowly” and had “difficulty with visual 11 tasks.” AR 405. On October 24, 2011, at the request of the Social Security Administration, Jones 12 was examined by Dr. Farah M. Rana. AR 409. Dr. Rana reported that although Jones was 13 uncooperative during her vision testing, which was not completed, she was able to walk around 14 the examination room without problem and could fill out part of the information sheet. AR 410. 15 Dr. Rana noted that on her previous test Jones’s vision was 20/70 on the right and 20/100 on the 16 left. AR 411. While Jones reported tenderness in her upper chest, there was no lower back 17 tenderness noted and she had the full range of motion for all of her joints. AR 410. Dr. Rana 18 concluded that Jones did not have any sitting, standing, walking, weight carrying, or postural 19 limitations. AR 411. In April 2014, Jones was examined Dr. Manuel Hernandez. AR 592. In his notes, Dr. 20 21 Hernandez reported that Jones’s right eye vision was 20/30 and that she could not see out of the 22 center part of her left eye. AR 593. He noted that in 2011 while Jones complained of blurry 23 vision, she did not report being unable to see out of the center part of her eye. AR 593. Dr. 24 Hernandez reported that Jones was able to fill out the intake form without problem and was able to 25 walk around the room. AR 593. She was also able to get on and off the exam table without issue. 26 27 28 1 The Commissioner has not opposed the request for judicial notice. I GRANT the request. See Fed. R. Evid. 201(b) (“The court may judicially notice a fact that is not subject to reasonable dispute because it . . . can be accurately and readily determined from sources whose accuracy cannot be reasonably questioned.”). 2 1 AR 594. Based on his observations, Dr. Hernandez found that Jones had no exertional, sitting, or 2 standing limitations. AR 596. United States District Court Northern District of California 3 In a May 2014 Disability Determination Explanation, state physician I. Newton MD 4 reviewed Jones’s medical records and found Jones’s symptoms to be “nonsevere” without 5 explaining why. AR 158. After Jones requested reconsideration of her initial denial of benefits, 6 Dr. Joan Bradus, MD conducted a second review of Jones’s medical records in October 2014. AR 7 173, 176–77. Bradus determined that Jones’s near acuity was limited in her left eye, her far acuity 8 was limited in both eyes, her field of vision was limited, and she was blind in her left eye. AR 9 176–77. She opined that Jones was still able to do jobs that did not require fine discrimination at a 10 distance or constant use of eyes for close work. AR 176–77. She also noted that Jones should 11 “[a]void even moderate exposure” to hazards such as machinery and heights. AR 177. 12 Dr. Matthew Fentress, Jones’s treating physician, examined Jones on four occasions: 13 December 14, 2015; December 21, 2015; February 23, 2016; and March 24, 2016. AR 790, 787, 14 769, 814. On her first visit, Jones reported pain and numbness in her feet, blindness in her left 15 eye, blurriness in her right eye, and low back pain. AR 790. Dr. Fentress assessed Jones as 16 having “[l]ow back pain without sciatica, unspecified back pain laterality,” and suspected 17 “peripheral polyneuropathy.” AR 792. He recommended that Jones increase her daily gabapentin 18 dosage from one tablet in the morning, afternoon, and evening, to one in the morning and 19 afternoon and two in the evening. AR 792. 20 On December 21, Dr. Fentress noted that Jones’s foot pain improved after he increased her 21 dosage of gabapentin and that there had been no recent change in her vision. AR 787. At this 22 visit, Dr. Fentress diagnosed her with peripheral polyneuropathy and chronic vision loss in her left 23 eye. AR 789. He also referred her to Optometry. AR 789. 24 Dr. Fentress examined Jones’s vision during the February 23, 2016 visit. He noted that 25 Jones experienced blurriness in her right eye one to two times per week, “especially when she 26 goes outside,” and that she had permanent vision loss in her left eye, but that she was able to read 27 a digital clock from across the room. AR 769. On her last visit to Dr. Fentress, Jones complained 28 about nausea and poor appetite, and she “[reported] ongoing pain, throbbing, pins and needles 3 1 feeling in glove and stocking distribution.” AR 814. Jones had noted that gabapentin was helping 2 but she had run out of them. Id. Fentress re-prescribed her with gabapentin at this visit. AR 817. United States District Court Northern District of California 3 Dr. Fentress completed a Physical Medical Source Statement on June 23, 2016. AR 821- 4 824. He listed Jones’s physical diagnoses as peripheral neuropathy, permanent visual loss left eye, 5 low back pain, and major depressive disorder. AR 821. He estimated that Jones could walk only 6 two city blocks without rest or severe pain, could not sit for more than two hours at a time, could 7 not stand for more than two hours at a time, and could sit and stand/walk for at least six hours 8 during an eight-hour work day. AR 822. Dr. Fentress stated that Jones’s pain or numbness would 9 cause her to take two to three unscheduled breaks during a workday, she would need to rest 20 10 minutes before returning to work, and she would likely be absent more than four days per month. 11 AR 822, 824. Fentress noted that Jones’s psychological limitations (discussed below) are more 12 significant and limiting than her physical limitations. AR 824. 13 Dr. Andrea De Souza, O.D. examined Jones on May 20, 2016, and completed a Vision 14 Impairment Medical Source Statement the same day. AR 801. She listed Jones’s diagnoses as 15 “macular scar of left eye and decrease vision of right eye of unknown etiology” and listed Jones’s 16 visual acuity after best correction as 20/60 in her right eye and 20/HM in her left. AR 801. Dr. 17 De Souza opined that Jones was not capable of avoiding ordinary hazards in the workplace, such 18 as boxes on the floor, and that she had difficulty walking up or down stairs. AR 802. She stated 19 that Jones would “rarely” be able to lift less than ten pounds. AR 802. While Dr. De Souza did 20 not think Jones would need to take unscheduled breaks during an eight-hour work day, she did 21 estimate that Jones would spend more than 25% of the work day “off task” because of her 22 symptoms. AR 803. 23 When Jones applied for SSI in 2014, she alleged a disability onset date of June 15, 2010. 24 AR 262. Her reported physical impairments at the time were back pain and central eye blindness. 25 AR 607. Jones’s medical records do not state the cause of these impairments, though at her 26 hearing she speculated that her back pain may have begun after falling down a hill when she 27 worked as a construction worker. AR 116. In her Function Report, Jones claimed that she could 28 not “stand for a long period of time” and that she could not see out of her left eye. AR 327. She 4 1 stated that her pain affected her ability to sleep, cook for herself, and walk. AR 328–29, 332. 2 After her initial application was denied, Jones appealed the decision and claimed that her vision 3 had worsened and that her back pain had spread down to her ankle, affecting her ability to move, 4 walk, and see. AR 351–52, 355. At her hearing in front of the ALJ on June 28, 2016, Jones testified that she cannot see out United States District Court Northern District of California 5 6 of her left eye and that her vision in her right eye sometimes “gets to the point where it gets so 7 blurry” that she cannot see out of it. AR 104–05. The last time she experienced this blurriness 8 had been the night before the hearing, when she could not see anything “for minutes.” AR 105. 9 Jones also testified that she had ongoing pain in her back, in her buttocks, and in her feet, but that 10 if she took medication for the pain, she was able to walk around. AR 105, 111–12, 113–14. Jones 11 guessed that she would be able to carry a bag of groceries, weighing five or ten pounds, from the 12 car to her apartment with one of her hands, but not the other because she was afraid of the veins in 13 her other wrist popping out. AR 118. She speculated that she would be able to make multiple 14 trips between the car and her apartment if her feet were not hurting her, but could not lift more 15 than ten pounds because her back might go out. AR 118–19. Jones testified that the pain in her 16 feet made her fall “quite a few times” in the last month and that she uses a cane for balance. AR 17 124. 18 B. 19 In 2011, Jones was examined by Dr. Sokley Khoi at the request of the Social Services Mental Impairments 20 Administration. AR 404–08. Dr. Khoi’s notes from this evaluation indicate that Jones was 21 cooperative; oriented to person, time, and situation; and “had no obvious speech articulation or 22 language comprehension difficulties.” AR 405. Her mood was depressed and at times during the 23 examination she appeared tearful. AR 405. Dr. Khoi noted that Jones tested as either “extremely 24 low” or “borderline” on the WAIS-IV and WMS-IV tests he conducted, and tested as a low level 25 of ability on the Bender-Gestalt test. 2 AR 405–06. After completing a series of tests, Dr. Khoi 26 27 28 2 “The Wechsler Adult Intelligence Scale, Fourth Edition is designed to assess cognitive functioning with specific subtests focused on memory, knowledge, problem solving, calculation, abstract thinking, spatial orientation, planning, and speed of mental processing.” AR 601. The WMS-IV and WMS-IV (LMVR) measure memory and the Bender Gestalt II measures visual 5 United States District Court Northern District of California 1 concluded that Jones appeared to be “experiencing significant symptoms of depression.” AR 406. 2 He noted that she would likely have marked impairments in the following work-related abilities: 3 ability to understand and remember detailed instructions, ability to carry out detailed instructions, 4 ability to maintain adequate pace and persistence to perform complex/detailed tasks, ability to 5 adapt to changes in job routine, ability to withstand the stress of a routine work day, and ability to 6 interact appropriately with co-workers, supervisors, and the public on a regular basis. AR 407. 7 He also noted that she would have moderate difficulties with her ability to carry out short and 8 simple instructions and her ability to maintain adequate pace and persistence to perform simple 9 tasks. AR 407. In addition, he reported that Jones would have mild to moderate difficulties with 10 her ability to understand and remember short and simple instructions. AR 407. He concluded that 11 although she had alcohol dependency issues, she would continue to have these impairments even 12 without substance abuse. AR 407. On August 22, 2012, Jones was examined by a psychiatrist at the Sausal Creek Outpatient 13 14 Stabilization Clinic. AR 413–26. Jones came to the clinic because her father had passed away a 15 few days prior and she had begun hearing voices daily. AR 414. She also reported that after her 16 husband died in 2005, “everything fell apart” and she became homeless. AR 414. At this 17 assessment, the nurse noted that Jones had never been prescribed psychiatric medications before. 18 AR 415. The psychiatrist documented her history of suicide attempts; once by drinking bleach 19 and the other by drinking ammonia. AR 422. The psychiatrist assigned Jones a Global 20 Assessment of Functioning (“GAF”) score of 40 and prescribed her medication.3 AR 423. 21 On the same day, Sausal Creek referred Jones to the Alameda County Medical Center to 22 assess her for “suicidality” and to make prescription recommendations. AR 742. Milton Lorig, 23 M.D. examined her and noted her depressed mood, poor appetite, and thoughts of suicide. AR 24 25 26 27 28 motor abilities. AR 404–05. 3 “A GAF score is a rough estimate of an individual’s psychological, social, and occupational functioning used to reflect the individual’s need for treatment.” Vargas v. Lambert, 159 F.3d 1161, 1164 n.2 (9th Cir. 1998). “[A] GAF score between 41 and 50 describes ‘serious symptoms’ or ‘any serious impairment in social, occupational, or school functioning.’” Garrison v. Colvin, 759 F.3d 995, 1002 n.4 (9th Cir. 2014) (quoting Diagnostic and Statistical Manual of Mental Disorders, 4th ed.) 6 United States District Court Northern District of California 1 742. Dr. Lorig found that Sausal Creek’s recommended psychiatric medication regimen did not 2 “adequately address” her symptoms and prescribed other medication. AR 742. He diagnosed her 3 with “Major Depressive Disorder, Single Episode, Unspecified” and noted her admission GAF as 4 45. AR 743. 5 In December 2012, Jones was examined by LCSW Rudolph C. Smith at the Save a Life 6 Wellness Center. He noted that Jones had marked limitations in the following areas: ability to 7 remember work-like procedures, ability to maintain attention for extended periods, ability to 8 maintain regular attendance and be punctual within customary tolerances, ability to sustain 9 ordinary routine without special supervision, ability to work in coordination with others without 10 being unduly distracted by them, ability to make work-related decisions, ability to complete a 11 normal workday and work-week without interruptions from psychologically based symptoms and 12 to perform consistent pace without an unreasonable number and length of rest periods, ability to 13 accept instructions and respond appropriately to criticism from supervisors, ability to get along 14 with co-workers and peers without unduly distracting them or exhibiting behavioral extremes, and 15 ability to respond appropriately to changes in a routine work setting. AR 638. Smith opined that 16 Jones’s mental health impairments would prevent her from working and that she should also be 17 referred for a physical examination because of her lumbar problems. AR 639. 18 Jones was examined by Dr. Aliyeh Kohbod on three occasions in 2014, after she was 19 referred by an advocacy specialist at the Mental Health Association of Alameda County to 20 determine her eligibility for disability benefits. AR 598. Dr. Kohbod noted that while records 21 from Jones’s hospital stays did not reference her mental health issues, she had been assessed in 22 2012 at an outpatient facility after hearing voices, where she was given the diagnosis of “Psychotic 23 Disorder NOS” (Not Otherwise Stated) and “Mood Disorder NOS.” AR 599. She pointed out 24 that these notes were “not made by psychiatric professionals,” and that later notes “indicate the 25 presence of auditory and visual hallucinations.” AR 605. Dr. Kohbod concluded that Jones’s 26 symptoms met the criteria of Schizophrenia, paranoid type and that this psychosis would likely 27 prevent her from engaging in meaningful employment unless her current symptoms could be 28 “controlled through psychotropic medication and extensive rehabilitative therapy.” AR 606. 7 United States District Court Northern District of California 1 In June 2014, an SSA psychological and medical consultant, Heather Barrons, Psy. D, 2 reviewed Jones’s medical records. AR 151–65. Dr. Barrons stated that as of June 2014, Jones had 3 “no [psychiatric] hospitalizations and minimal [psychiatric therapy],” though Dr. Barrons also 4 noted that there were two complete psychiatric evaluations in Jones’s file, one from 2011 and one 5 from 2014. AR 159. She opined that Jones’s symptoms moderately restricted her activities of 6 daily living, her ability to maintain social functioning, and her ability to maintain concentration, 7 persistence, and pace. AR 159. She found Dr. Kohbod’s assessment of Jones to be not supported 8 by the “overall [evidence] in file” and assigned great weight to Dr. Hernandez’s assessment of her 9 physical abilities. AR 160. She determined that Jones was not disabled and was capable of 10 maintaining concentration, pace, and persistence for simple routines throughout a normal workday 11 and week. AR 162, 165. 12 After Jones requested reconsideration of her initial denial, Dr. Lucila, MD reviewed her 13 medical records in October 2014. AR 167–82. Dr. Lucila affirmed Dr. Barrons’s initial findings 14 (AR 174) and found that Jones would be able to “understand and perform simple one-two step 15 instructions,” “maintain adequate attention, concentration, persistence, and pace to perform routine 16 tasks,” and “interact appropriately with supervisors, co-workers, and the public on a limited 17 basis.” AR 179. 18 On December 1, 2015, James M. Relchmuth, M.D. and another health care provider 19 examined Jones and prescribed her with Risperdal to treat her psychosis. AR 755–67. He listed 20 her relevant past psychiatric history as two hospitalizations (at least one of which was in 2012) 21 and two suicide attempts, both followed by hospitalizations. AR 757. Her recorded symptoms 22 included hearing voices, low appetite, and sleep problems. AR 759. The other mental health care 23 provider speculated that Jones was suffering from psychosis. AR 759. Dr. Relchmuth assigned 24 Jones a GAF score of 45. AR 758. The other health care provider assigned her a risk assessment 25 score of 86 for “serious self-neglect.” AR 761. 26 At the end of 2015, Jones began receiving treatment for her physical and mental 27 impairments at Lifelong Trust Health Center. AR 769–830. She received treatment from Dr. 28 Matthew Fentress and Shana Green, a Nurse Practitioner. Green examined Jones on four 8 1 occasions in 2016, after Dr. Fentress referred her for a psychiatric assessment (AR 781): January 2 4, February 5, February 23, and March 22. AR 781, 777, 772, 810. At the initial visit, Jones 3 reported to Green that she had been hearing voices, experiencing thoughts of suicide, having 4 trouble sleeping, and experiencing a loss of appetite. AR 781–82. Green’s notes document 5 Jones’s history of trauma, including sexual abuse as a child (AR 782), physical abuse from her 6 mother (AR 782), and a suicide attempt (AR 783). In their conversations, Green noted that Jones 7 forgot her thoughts mid-sentence and that her recent and remote memory was inconsistent. AR 8 784. Green advised that Jones maintain taking Risperidone and start attending therapy. AR 785. United States District Court Northern District of California 9 The second time Green assessed Jones, she noted that Jones had “multiple no 10 shows/cancellations,” that Jones attributed to having difficulties with transportation, forgetfulness, 11 and her fear of leaving the house. AR 777–78. Jones stated that her fear of leaving the house 12 came from what might happen if she suddenly lost sight. AR 778. She characterized driving a car 13 as “always difficult,” and that she drove with her friend John sometimes, but panics when she 14 does. AR 778. She also found it difficult to take the bus because of her difficulty being in crowds 15 due to her eyesight. AR 778. Jones reported that the Risperidone stopped her from hearing voices 16 and that she was able to sleep without leaving the television on to drown out the voices. AR 778. 17 However, Jones still reported thoughts of suicide, low mood, and low appetite. AR 778. 18 At her third appointment, Jones reported her situation was “a little better,” her appetite was 19 still poor, she was still experiencing suicidal thoughts, and had low energy and motivation. AR 20 773. Green noted that Jones’s concentration and focus had improved, that her judgment had 21 improved, and that her recent and remote memory was average. AR 773–74. At this appointment, 22 Dr. Fentress prescribed Jones with Cymbalta, after Green recommended it. AR 770, 780. 23 During the fourth appointment, though she was taking Risperidone and Cymbalta, Jones 24 continued to report feeling depressed, experiencing “high anxiety,” having difficulty leaving her 25 home, and having suicidal thoughts. AR 811. When Jones visited Dr. Fentress on March 24, he 26 observed that she was “very anxious,” “easily excitable,” “tearful and despondent about her life,” 27 and became fixated on the idea that she might have cancer. AR 814. He diagnosed her with 28 9 United States District Court Northern District of California 1 “episode of recurrent major depressive disorder” and prescribed her with an albuterol inhaler.4 2 AR 816–17. 3 In his June 23, 2016 Physical Medical Source Statement, Dr. Fentress identified “major 4 depressive disorder” as Jones’s mental diagnosis. AR 821–24. He stated that emotional factors 5 contributed to the severity of Jones’s symptoms and functional limitations. AR 821. At the end of 6 the assessment, he wrote, “The patient’s psychological limitations are more significant than her 7 physical limitations. Her functional impairments in attention and concentration related history of 8 trauma and depression will make it very difficult or impossible for her to maintain regular 9 employment.” AR 824. Because of her “mental status, disorganized state, and inability to 10 regularly follow through with appointments and other instructions,” Dr. Fentress estimated that 11 she was incapable of even low stress work and was likely to spend 20% of the workday off-task. 12 AR 824. In her application for SSI, Jones reported mental impairments of depression and anxiety 13 14 with schizophrenia. AR 607. She claimed that because of her anxiety, she got “scared and 15 nervous” around people. AR 327. She reported that she watched television all day long because 16 she was “scared to go outside.” AR 328. When her initial application was denied, Jones appealed 17 the decision, arguing that her mental health conditions had not improved since her initial 18 application and she still suffered from schizophrenia and anxiety. AR 350. She also claimed that 19 she heard voices if she did not take medication and kept the television on so that she did not hear 20 them. AR 351. At the ALJ hearing, Jones testified that she does not think she would be able to return to 21 22 work because she does not know whether her “feet might go out or [her] eye sight might go,” 23 which gives her anxiety. AR 104. The unpredictable blurriness of her right eye makes her “scared 24 and nervous.” AR 104–05. She testified that she is scared to go out by herself, that during the day 25 she watches television, and makes Hungry-Man meals for herself in the microwave. AR 104–05, 26 27 28 4 Jones reported to Maria Aguilar at Highland Wellness in September 2015 that she has “frequent, often once-daily anxiety attacks” that she treats with an albuterol inhaler. AR 668. However, Dr. Aguilar conducted a pulmonary function test and found that it was normal, indicating that Jones does not have asthma. Id. 10 United States District Court Northern District of California 1 108. She reported that she often experiences low appetite and if she tries to eat during these 2 periods, “[i]t’s like [the food] gets struck in [her] throat.” AR 108. Jones testified that on the day 3 of her hearing, it had been four days since she last ate, when her niece came to visit her. AR 108– 4 09. Though her niece had come to visit her, Jones stated that “people rarely come over.” AR 110. 5 Since starting to take medication in 2015, Jones stopped hearing voices and was able to 6 sleep in silence, but still could not sleep through the night. AR 111, 758. She reported that she 7 sometimes forgets to take her medication, but remembers if her feet and back start hurting. AR 8 111–12. Jones also testified that she has trouble remembering her appointments and does not go 9 anywhere by herself. AR 112. She discussed feeling depressed, having good days and bad days, 10 and that her anxiety was better now that she was taking medication. AR 117, 121. 11 III. JONES’S ACTIVITIES OF DAILY LIVING Jones has testified to a limited set of daily life activities. She has stated that she spends the 12 13 majority of her time alone in her apartment, watching television. AR 108, 328. She does not go 14 out alone because she is scared to go outside. AR 330. The only places she reports going on a 15 regular basis are the store, where she goes shopping once a month, and her doctors appointments. 16 AR 330–31. The only “housework” she reports doing is “[making]” the couch she sleeps on, 17 which she estimates takes ten minutes. AR 329. She uses a microwave to prepare her meals 18 because she “can’t stand long” enough to cook other food. AR 329. However, most days Jones 19 has little interest in eating, needs reminders to eat, or does not eat at all. See AR 108, 329. While 20 Jones has testified to receiving visits from her niece and visiting her daughter in Sacramento, she 21 has stated that she spends most of her time alone. 22 IV. 23 THE ALJ’S DECISION On September 12, 2016, the ALJ rendered a decision finding that Jones has not been under 24 a disability as of her application date, January 22, 2014. AR 13. The ALJ decided that Jones had 25 a number of severe impairments: alcohol abuse, anxiety disorder, major depressive disorder, loss 26 of vision, peripheral neuropathy, and schizophrenia, but after considering three separate medical 27 listings, held that Jones’s impairments did not satisfy their criteria. AR 15–17. 28 At step one, the ALJ determined that Jones has not engaged in substantial gainful 11 1 employment since her application date. AR 15. At step two, the ALJ determined that Jones has 2 the following severe impairments: alcohol abuse, anxiety disorder, major depressive disorder, loss 3 of vision, peripheral neuropathy, and schizophrenia, paranoid type. AR 15. The ALJ also 4 determined that Jones has non-severe impairments as well, such as back pain and ankle pain, but 5 because there was evidence in the record Jones had a “normal back with a normal range of 6 motion” and “normal extremities,” these impairments did not more than minimally affect her 7 ability to perform basic work activities. AR 15–16. The ALJ noted that, nevertheless, she would 8 account “for all impairments in the residual functional capacity, as necessary, taking into account 9 the totality of the record.” AR 16. At step three, the ALJ found that Jones did not suffer from an impairment or combination United States District Court Northern District of California 10 11 of impairments that met or equaled one of the listed impairments in 20 C.F.R. Part 404, Subpart P, 12 Appendix 1. AR 16. The ALJ specifically considered listings 11.14 (peripheral neuropathy), 2.02 13 (loss of central visual acuity), 12.04 (depressive, bipolar and related disorders), and 12.06 (anxiety 14 and obsessive-compulsive disorders). AR 16–17; 20 C.F.R. Part 404, Subpart P, Appendix 1. 15 The ALJ found 11.14 was not met because she found Jones did not demonstrate 16 “significant and persistent disorganization of motor function in two extremities resulting in 17 sustained disturbance of gross and dexterous movements, or gait and station.” AR 16. The ALJ 18 rejected 2.02 because “the claimant’s corrected vision in the better eye is 20/50.” 5 AR 16. When determining whether Jones’s impairments medically equaled listings 12.04 and 19 20 12.06, the ALJ considered whether the “paragraph B” criteria were satisfied. AR 17. To satisfy 21 these criteria, the mental impairments must result in at least two of the following: marked 22 restriction of activities of daily living; marked difficulties in maintaining social functioning; 23 marked difficulties in maintaining concentration, persistence, or pace; or repeated episodes of 24 decompensation. AR 17. The ALJ found that Jones had mild restriction of activities of daily 25 living because she was able to prepare her own meals, watch television, be by herself most of the 26 time, “make her couch, which she sleeps in,” and drive. AR 17. Because the ALJ found that 27 28 5 Listing 2.02 requires remaining vision in the better eye after best correction to be 20/200 or less. 20 CFR Part 404, Subpart P, Appendix 1. 12 United States District Court Northern District of California 1 Jones was able to go shopping for food, use public transportation, live in an apartment with a 2 friend, spend time with her niece, and visited her daughter in Sacramento, the ALJ assessed that 3 Jones had only moderate difficulties in maintaining social functioning. AR 17. The ALJ 4 concluded that Jones had only moderate difficulties in concentration, persistence, or pace because 5 she was able to use public transportation to travel, pay bills, count change, and watch television. 6 AR 17. Finally, the ALJ noted that Jones has not experienced any episodes of decompensation. 7 AR 17. 8 Prior to step four, the ALJ determined that Jones had the RFC to “perform medium work 9 as defined in 20 C.F.R. 419.967(c) with the following limitations: never climb ladders, ropes, or 10 scaffolds; kneeling and crawling would be occasional; has to avoid concentrated use of hazardous 11 machinery and concentrated exposure to unprotected heights; limited to occupations that do not 12 require complex written or verbal communication; work is limited to simple as defined in DOT as 13 SVP levels 1 and 2, routine and repetitive; can work in a low stress job defined as having only 14 occasional decision making and only occasional changes in the work setting; can have only 15 occasional interaction with the general public; and only occasional interaction with co-workers.”6 16 AR 18. In making this assessment, the ALJ “considered all symptoms and the extent to which 17 18 these symptoms can reasonably be accepted as consistent with the objective medical evidence and 19 other evidence,” including opinion evidence. AR 18. The ALJ noted that Jones’s medical records 20 reflected physical diagnoses of loss of vision in the left eye, reduced vision in the right eye, and 21 peripheral neuropathy, and mental diagnoses of major depressive disorder, anxiety, and 22 schizophrenia, paranoid type. AR 19. The ALJ considered Jones’s symptoms and found that her medically determinable 23 24 impairments could reasonably be expected to cause her alleged symptoms, but that Jones’s 25 “statements concerning the intensity, persistence, and limiting effects of these symptoms are not 26 entirely consistent with the medical evidence and other evidence” in the record. AR 20. 27 28 6 “Medium work involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds.” 20 C.F.R. § 416.967(c). 13 The ALJ first found that Jones had “described activities of daily living that are not as United States District Court Northern District of California 1 2 limited as one would expect given [her] complaints of disabling symptoms and limitations.” AR 3 20. In particular, the ALJ found that Jones’s allegation that she was too afraid to go outside and 4 spends most of her time alone was inconsistent with her activities of daily living because Jones 5 went outside for walks, received “frequent” visits from her niece, and was able to visit her 6 daughter in Sacramento. AR 20. The ALJ also noted that Jones “reported being able to go 7 shopping in stores, being able to prepare her own meals, being able to drive a car, and spending 8 her days watching television.” AR 20. Because driving involves constant and complex 9 coordination and driving and watching television “require[] good visual abilities,” the ALJ 10 determined that these activities were inconsistent with the alleged severity of Jones’s impairments. 11 AR 20. 12 Next, the ALJ determined that there was “evidence in the record that [Jones] had not been 13 entirely compliant in taking her prescribed medications,” and that “the record reflects that her 14 medications help to alleviate the claimant’s reports of disabling symptoms.” AR 20. The ALJ 15 cited to three notes in Jones’s medical records that indicated she had not been compliant in taking 16 medication, she had multiple no shows and cancellations at one of her providers, did not start 17 therapy, took one risperidone pill per day instead of the prescribed two, and ran out of baclofen 18 and gabapentin and did not obtain a refill. AR 20. Further, because “the record reflect[ed] that 19 [Jones’s] medications help to alleviate” her reports of disabling symptoms, the ALJ found that this 20 suggested her symptoms may have not been as limiting Jones alleged. AR 20. 21 When assessing opinion evidence, the ALJ assigned significant weight to Dr. Bradus’s 22 “environment workplace limitations because they were based on a review of the records and 23 account for [Jones’s] severe vision loss.” AR 21. The ALJ assigned “reduced weight” to Dr. 24 Bradus’s limitation that Jones could not perform jobs requiring fine discrimination at a distance or 25 constant use of the eyes for close work because of her “ability to spend her days watching 26 television, ability to drive a car, ability to use public transportation to travel, and [her] ability to go 27 shopping in stores.” AR 21. 28 The ALJ assigned reduced weight to Dr. De Souza’s limitation that Jones could lift rarely, 14 1 carry less than 10 pounds, stoop rarely, and would be off-task 25 percent of a workday or more. 2 AR 22. The ALJ assigned reduced weight to these limitations because “they were not based on a 3 long treating relationship, appear to be overly reliant on [Jones’s] subjective reports, and are 4 inconsistent with [Jones’s] activities of daily living, which include cooking, traveling, shopping, 5 and spending time with others.” AR 22. United States District Court Northern District of California 6 The ALJ assigned “significant weight” to Dr. Fentress’s finding that Jones was “able to sit, 7 stand, and/or walk at least 6 hours each because this finding is consistent with [her] activities of 8 daily living, her improvement of neuropathic symptoms with medications, and her unremarkable 9 physical examination findings.” AR 23. The ALJ assigned “reduced weight” to Dr. Fentress’s 10 statement that Jones could walk only 2 city blocks without resting or severe pain, his opinion that 11 Jones would likely take two to three unscheduled breaks in a workday for 20 minutes each “due to 12 pain/paresthesias and numbness,” his estimation that Jones would be off-task for 20 percent of a 13 typical workday due to her symptoms, his statement that Jones was incapable of even low stress 14 jobs, and his note that Jones’s psychological limitations were more significant than her physical 15 and that her “functional impairments in attention and concentration related to her history of trauma 16 and depression would make it very difficult or impossible for [her] to maintain regular 17 employment.” AR 22–23. The ALJ assigned reduced weight to these findings because she found 18 they were “overly restrictive and inconsistent with the evidence as a whole and treatment notes 19 indicating that the claimant had improved concentration and focus when on psychotropic 20 medication.” AR 23. 21 The ALJ assigned significant weight to Dr. Khoi’s opinion that Jones would continue to 22 have “mental functioning limitations” even in the absence of substance abuse because the ALJ 23 found this opinion was “consistent with [Jones’s] continued mood complaints” even after 24 maintaining relative sobriety. AR 24. However, the ALJ assigned “little weight” to Dr. Khoi’s 25 diagnoses and his opinions as to Jones’s marked, moderate, and mild impairments, because the 26 ALJ found these limitations were “overly restrictive, not based on a long treating relationship, and 27 inconsistent with [Jones’s] activities of daily living and minimal mental health treatment.” AR 24. 28 The ALJ also assigned little weight to the opinion of LCSW Smith because “a social 15 1 worker is not an acceptable medical source, his findings were not based on a long treating 2 relationship with [Jones], and his limitations touch[ed] upon subject matter reserved to the 3 Commissioner.” AR 24. Smith’s opinion included that Jones had “moderate to marked 4 limitations in understanding and memory, sustained concentration and persistence, social 5 interaction, and adaptation,” that Jones had mental health conditions that prevented her from 6 working, that she could not work, and that she had major lumbar problems. AR 24. The ALJ assigned little weight to Dr. Kohbod’s opinion. AR 25. Dr. Kohbod diagnosed United States District Court Northern District of California 7 8 Jones with schizophrenia, paranoid type; alcohol dependence; cannabis abuse; and assigned her a 9 GAF score of 50, “suggesting serious impairments in social, occupational or school functioning.” 10 AR 24. Dr. Kohbod also opined that Jones did not have adequate coping mechanisms or internal 11 cohesion to deal with stress, and that her schizophrenia would prevent her from performing her 12 past work or engaging in job related activities. AR 24. The ALJ found that Dr. Kohbod’s opinion 13 was “overly restrictive and inconsistent with [Jones’s] activities of daily living and her minimal 14 mental health treatment of record.” AR 25. The ALJ found that “[i]n spite of Dr. Kohbod’s 15 findings,” Jones received “regular” visits from her niece, was able to visit her daughter in 16 Sacramento, was able to live in an apartment with a friend, and was able to go shopping for food. 17 AR 25. 18 The ALJ additionally assigned significant weight to the findings of examining physician 19 Dr. Rana (that Jones was able to walk around the examination room, was able fill out the 20 information sheet, that her gait was stable, and that she had normal strength throughout, and 21 opined that she did not have any physical limitations) because the ALJ considered them consistent 22 with Jones’s activities of daily living and based on a physical examination and objective medical 23 findings. AR 21. However, the ALJ noted that she assigned “greater functional limitations” to 24 Jones than the ones suggested by Dr. Rana because of the evidence at the hearing level and “some 25 of” Jones’s subjective complaints. AR 21. The ALJ then limited Jones to “less than medium 26 exertional work” because it was consistent with her reports that she is able to walk a mile without 27 problem and carry 30 pounds without issue. AR 21. 28 16 1 United States District Court Northern District of California 2 The ALJ also gave significant weight to the opinions of examining physician Dr. 3 Hernandez, who opined that Jones “had no exertional limitations, no sitting or standing 4 limitations, no pushing or pulling limitations, no manipulative limitations, no visual limitations, no 5 communicative limitations, and no environmental workplace limitations.” AR 22. The ALJ 6 assigned significant weight to this opinion because it was “consistent with Dr. Rana’s opinion and 7 [Jones’s] activities of daily living.” AR 22. As with Dr. Rana’s opinion, the ALJ stated she 8 accounted for greater physical limitations in the RFC to account for evidence available at the 9 hearing level and “some of” Jones’s subjective complaints. AR 22. 10 The ALJ assigned significant weight to the opinions of non-examining physicians Dr. 11 Barrons and Dr. Lucila, finding few limitations on Jones’s ability to work, because they were 12 “based on thorough reviews of the claimant’s medical records” and they were “consistent with 13 [Jones’s] activities of daily living.” AR 23. 14 The ALJ assigned no weight to the third-party statements of Jones’s roommate, John Iles, 15 because his statement gave “no opinion about [her] limitations or work abilities” and he said he 16 did not know much about Jones’s activities. AR 21. The ALJ assigned little weight to the opinion 17 of non-examining physician Dr. Newton, who opined that Jones’s physical impairments were non- 18 severe because “this finding is inconsistent with the evidence made available at the hearing level 19 and [Jones’s] subjective complaints.” AR 21. The ALJ also assigned little weight to the GAF 20 scores assigned to Jones by Dr. Milton Lorig, Dr. James Relchmuth, and a first-time evaluating 21 psychiatrist because “GAF scores standing alone without any explanation provide little probative 22 value” and the scores were assigned to Jones “when she was dealing with the loss of her father and 23 close friends.” AR 24. 24 Based on the weights the ALJ assigned to the opinion evidence, at step four, the ALJ 25 determined that Jones was not able to perform any of her past work and therefore at step five 26 relied on the testimony of vocational expert Jose L. Chaparro to find that Jones has the residual 27 functional capacity to perform medium work with the following limitations: never climb ladders, 28 ropes, or scaffolds; kneeling and crawling would be occasional; has to avoid concentrated use of 17 United States District Court Northern District of California 1 hazardous machinery and concentrated exposure to unprotected heights; limited to occupations 2 that do not require complex written or verbal communication; work is limited to simple as defined 3 in DOT as SVP levels 1 and 2, routine and repetitive; can work in a low stress job defined as 4 having only occasional decision making and only occasional changes in the work setting; can have 5 only occasional interaction with the general public; and only occasional interaction with co- 6 workers. AR 18, 123. Because there are jobs that exist in significant numbers in the national 7 economy that Jones can perform, such as machine packager and laboratory equipment cleaner, the 8 ALJ found that Jones was not disabled and not entitled to SSI. AR 26. At the hearing, the ALJ 9 also asked the vocational expert what jobs Jones would be able to perform if Dr. Fentress’s 10 limitation that she would have to miss four days of work per month because of her impairments 11 was true. AR 128. In that case, the vocational expert testified that Jones would not be able to 12 perform any work at all. AR 128. 13 Jones filed this action on March 27, 2018. Shortly thereafter, Jones was notified that based 14 on a subsequent application Jones submitted following the adverse decision she appeals from here, 15 she was determined to be disabled and awarded benefits as of November 4, 2016. Dkt. No. 24. 16 17 18 LEGAL STANDARD I. DISABILITY DETERMINATION A claimant is “disabled” as defined by the Social Security Act if: (1) “he is unable to 19 engage in any substantial gainful activity by reason of any medically determinable physical or 20 mental impairment which can be expected to result in death or which has lasted or can be expected 21 to last for a continuous period of not less than twelve months,” and (2) the impairment is “of such 22 severity that he is not only unable to do his previous work but cannot, considering his age, 23 education, and work experience, engage in any other kind of substantial gainful work which exists 24 in the national economy.” 42 U.S.C. §§ 1382c(a)(3)(A)–(B); Hill v. Astrue, 698 F.3d 1153, 1159 25 (9th Cir. 2012). To determine whether a claimant is disabled, an ALJ engages in a five-step 26 sequential analysis as required under 20 C.F.R. § 404.1520(a)(4)(i)–(v). 27 28 In the first two steps of the evaluation, the claimant must establish that he or she (1) is not performing substantial gainful activity, and (2) is under a “severe” impairment. Id. § 18 United States District Court Northern District of California 1 416.920(a)(4)(i)–(ii). An impairment must have lasted or be expected to last 12 months in order to 2 be considered severe. Id. § 416.909. In the third step, the claimant must establish that his or her 3 impairments meets or medically equals a listed impairment described in the administrative 4 regulations. Id. § 416.920(a)(4)(iii). If the claimant’s impairment does not meet or equal one of 5 the listed impairments, before proceeding to the fourth step, the ALJ is to make a residual 6 functional capacity determination based on all the evidence in the record; this determination is 7 used to evaluate the claimant’s work capacity for steps four and five. Id. § 416.920(e). In step 8 four, the claimant must establish that his or her impairment prevents the claimant from performing 9 relevant work he or she did in the past. Id. § 416.920(a)(4)(iv). The claimant bears the burden to 10 prove steps one through four, as “[a]t all times, the burden is on the claimant to establish [his] 11 entitlement to disability insurance benefits.” Id. (alterations in original). Once the claimant has 12 established this prima facie case, the burden shifts to the Commissioner to show at the fifth step 13 that the claimant is able to do other work, and that there are a significant number of jobs in the 14 national economy that the claimant can do. Id. §§ 416.920(a)(4)(v), (g); 416.060(c). The SSA has found Jones to be disabled as of November 4, 2016. 15 16 17 II. STANDARD OF REVIEW Under 42 U.S.C. § 405(g), this Court reviews the ALJ's decision to determine whether the 18 ALJ's findings are supported by substantial evidence and free of legal error. See Smolen v. Chater, 19 80 F.3d 1273, 1279 (9th Cir.1996); see also DeLorme v. Sullivan, 924 F.2d 841, 846 (9th Cir. 20 1991) (ALJ's disability determination must be supported by substantial evidence and based on the 21 proper legal standards). Substantial evidence means “‘more than a mere scintilla,’ but less than a 22 preponderance.” See Saelee v. Chater, 94 F.3d 520, 521–22 (9th Cir. 1996) quoting Richardson v. 23 Perales, 402 U.S. 389, 401 (1971). Substantial evidence is “such relevant evidence as a 24 reasonable mind might accept as adequate to support a conclusion.” See Richardson, 402 U.S. at 25 401 (internal quotation marks and citation omitted). 26 This Court must review the record as a whole and consider adverse as well as supporting 27 evidence. See Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006). Where evidence is 28 susceptible to more than one rational interpretation, the ALJ's decision must be upheld. See 19 1 Morgan v. Comm'r of the Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999). “However, a 2 reviewing court must consider the entire record as a whole and may not affirm simply by isolating 3 a ‘specific quantum of supporting evidence.’” See Robbins, 466 F.3d at 882 quoting Hammock v. 4 Bowen, 879 F.2d 498, 501 (9th Cir. 1989)); see also Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 5 2007). 6 DISCUSSION Jones argues that the ALJ committed six errors: (i) the ALJ improperly omitted Jones’s United States District Court Northern District of California 7 8 lower back pain as a severe impairment at Step Two; (ii) the ALJ rejected Jones’s statements 9 about her symptoms and ability to function without providing specific, clear, or convincing 10 reasons supported by substantial evidence; (iii) the ALJ improperly rejected the opinions of 11 Jones’s treating and examining physicians; (iv) the ALJ erred by rejecting a non-examining 12 physician’s opinion without reference to specific evidence in the record; (v) the RFC does not 13 accurately reflect Jones’s limitations and is not supported by substantial evidence; and (vi) the 14 ALJ relied on vocational expert testimony based on an incomplete hypothetical. Mot. at 9. 15 I. LOWER BACK PAIN At Step Two, the ALJ concluded that Jones’s reported back and ankle pain were non- 16 17 severe impairments because “imaging studies of the claimant’s lumbar spine revealed only mild 18 disc degeneration at L5-S1” and “numerous musculoskeletal examinations revealed a normal back 19 with a normal range of motion, normal extremities, no evidence of steroid injections, and minimal 20 physical therapy treatment related to a personal injury claim.” AR 15–16. Jones argues that by 21 doing so, the ALJ assessed her with a RFC that does not include all of her limitations. Mot. at 10– 22 11. 23 An impairment is not severe if it does not significantly limit the claimant’s physical ability 24 to do basic work activities. Smolen, 80 F.3d at 1290. “An impairment or combination of 25 impairments can be found not severe only if the evidence establishes a slight abnormality that has 26 no more than a minimal effect on an individual’s ability to work.” Id. At the step two inquiry, the 27 ALJ must consider the claimant’s subjective symptoms in determining severity. Id. This step is a 28 “de minimis screening device to dispose of groundless claims.” Id. (citing Bowen v. Yuckert, 482 20 1 U.S. 137, 153–54 (1987)). The medical evidence in the administrative record and Jones’s testimony demonstrate that United States District Court Northern District of California 2 3 Jones’s back pain significantly limits her physical ability to do basic work activities.7 The 4 Commissioner relies on Pederson v. Comm’r Soc. Sec. Admin., 405 Fed. App’x 117, 119 (9th Cir. 5 2010) (unpublished) to argue first that the ALJ has made a harmless error because she considered 6 the collective impact of all of Jones’s impairments when assessing the RFC and, therefore, the 7 failure to include back pain as an RFC as not-severe was at most harmless error. Oppo. at 2. But 8 in Pederson, the claimant’s limitations omitted from the Step Two analysis were “covered by the 9 hypothetical ultimately presented to the vocational expert.” See Pederson, 405 Fed. App’x at 119. 10 Here, the ALJ presented the vocational expert with a hypothetical that assessed Jones with the 11 ability to do medium work, without consideration of significant back pain and which was at odds 12 with the limitations she reports and her treating physician’s opinion that her pain would force her 13 to take two to three unscheduled breaks of 20 minutes each during a working day. AR 126 14 (Jones’s 2016 hearing testimony), 822 (Dr. Fentress’s 2016 Medical Source Statement). In 15 addition, there is no evidence in the decision itself showing that the ALJ considered or addressed 16 how Jones’s lower back pain was assessed. See Oppo. at 2; AR 19. The Commissioner also argues that the ALJ did not err because the medical evidence does 17 18 not corroborate Jones’s self-reported complaints of back pain. Oppo. at 3. But this argument 19 ignores the medical evidence in the record that shows Jones received treatment on multiple 20 occasions for her back pain. See AR 608 (Barbara Turner NP diagnosing back pain as a “chronic 21 condition” and prescribing medication in August 2014), 627–36 (receiving treatment at Save A 22 Life Wellness Center in January 2013 for back pain rated 7/10 to 9/10 and receiving prescription 23 of Baclofen, Norco, and Vicodin), 642 (receiving treatment at Save A Life Wellness Center in 24 25 26 27 28 7 In Opposition, the Commissioner argues that the alleged error is not reversible because pain is a symptom and not an impairment. Oppo. at 3. However, ALJs routinely find pain to be a severe impairment under the Step Two analysis. See, e.g., DeLozano v. Colvin, No. 13-cv-03726-JCS, 2015 WL 1431755, *6 (N.D. Cal. Mar. 27, 2015) (noting ALJ found pain to be a severe impairment); Gaona v. Colvin, No. 13-cv-03204 JCS, 2014 WL 1614846, *6 (N.D. Cal. Apr. 21, 2014) (same); Hann v. Colvin, No. 12-cv-06234-JCS, 2014 WL 1382063, *11 (N.D. Cal. Mar. 28, 2014) (same); Reed v. Astrue, Comm’r of Soc. Sec., No. C 07-3198 CW, 2008 WL 3925643 (N.D. Cal. Aug. 22, 2008) (same). 21 United States District Court Northern District of California 1 December 2012 for back pain that made her “unable to walk at times” and that got “worse with 2 standing”), 653 (Barbara Turner NP assessing Jones as having “back pain unspecified” in June 3 2015), 668–71 (receiving treatment for “chronic low back pain” from Maria Aguilar, MD in 4 September 2015), 790–93 (Dr. Fentress diagnosing Jones with “[l]ow back pain without sciatica, 5 unspecified back pain laterality” and prescribing baclofen). Given the de minimis nature of the 6 step two inquiry and that the ALJ assessed Jones for an RFC that does not obviously account for 7 or address her lower back pain, the ALJ’s error was not harmless. 8 II. JONES’S STATEMENTS 9 Jones also argues that the ALJ improperly discounted her statements as to her symptoms 10 and limitations by mischaracterizing and overemphasizing Jones’s testimony about her daily life 11 activities. To determine whether a claimant’s testimony is credible, an ALJ must engage in a two- 12 step analysis. Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014). “First, the ALJ must 13 determine whether the claimant has presented objective medical evidence of an underlying 14 impairment which would reasonably be expected to provide the pain or other symptoms alleged.” 15 Lingenfelter v. Astrue, 504 F. 3d 1028, 1035–36 (9th Cir. 2007) (internal quotation marks 16 omitted). “If the claimant satisfies the first step of the analysis, and there is no evidence of 17 malingering, ‘the ALJ can reject the claimant’s testimony about the severity of her symptoms only 18 by offering specific, clear and convincing reasons for doing so.’” Garrison, 759 F.3d at 1014–15 19 (quoting Smolen, 80 F.3d at 1281). “[T]he ALJ must give ‘specific, clear, and convincing reasons 20 for rejecting’ the testimony by identifying ‘which testimony [the ALJ found not credible’ and 21 explain ‘which evidence contradicted that testimony.” Laborin v. Berryhill, 867 F.3d 1151, 1155 22 (9th Cir. 2017) (quoting Brown-Hunter v. Colvin, 806 F.3d 487, 498, 494 (9th Cir. 2015) 23 (alterations in original). “The clear and convincing standard is the most demanding required in 24 Social Security cases.” Moore v. Comm’r of Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002). 25 While the ALJ found that Jones’s medically determinable impairments could reasonably be 26 expected to cause her symptoms, she concluded that Jones’s statements “concerning the intensity, 27 persistence and limiting effects of these symptoms are not entirely consistent with the medical 28 evidence and other evidence in this record.” AR 20. The ALJ, however, rejected Jones’s 22 United States District Court Northern District of California 1 statements about her symptoms because the ALJ determined that Jones’s reported activities of 2 daily living were “not as limited as one would expect” and that Jones was not compliant in taking 3 her prescribed medications, suggesting that her symptoms were not as limiting as she alleged. AR 4 20. 5 A. 6 As an initial matter, I find that the ALJ’s determination that Jones’s reported symptoms are Jones’s activities of daily living 7 inconsistent with her activities of daily living is based on an inaccurate and incomplete 8 characterization of the evidence by the ALJ and, therefore, is not supported by substantial 9 evidence. The evidence of daily activities relied on by the ALJ included the facts that although 10 Jones alleged that she is too afraid to leave her house and does not spend time with others, Jones 11 admitted that she “goes outside for walks, receives frequent visits from her niece, and is able to 12 visit her daughter in Sacramento.” AR 20. In addition, the ALJ noted that Jones reported “being 13 able to go shopping in stores, being able to prepare her own meals, being able to drive a car, and 14 spending her days watching television.” AR 20. While the Commissioner argues in Opposition 15 that Jones’s activities of daily living contradict the limitations she alleged, Jones’s testimony and 16 other evidence in the record is consistent with her allegation that she is too afraid to leave her 17 house and does not spend time with others. See Oppo. at 4. 18 Jones has repeatedly reported to her medical providers that she spends most of her time 19 alone and is scared to leave the house. AR 414 (reporting to Sausal Creek Medical Center in 20 August 2012), 601 (reporting to Dr. Kohbod during visits in 2014), 759 (reporting to Sausal Creek 21 Medical Center in December 2015), 778 (reporting to NP Green in February 2016), 782 (reporting 22 to NP Green in January 2016), 811 (reporting to NP Green on March 22, 2016). In addition, Jones 23 testified at her hearing and has reported in the past that this is because she is afraid of what might 24 happen if she suddenly cannot see. AR 107 (testifying at hearing in June 2016 that she does not 25 leave her house because she does not know when her eyesight will “go out”), 778 (telling NP 26 Green in February 2016 that she continues to be afraid of leaving the house because she is “scared 27 of what might happen.”). In her March 2014 Function Report, she reported that in fact she does 28 not go anywhere on a regular basis, but only goes to the grocery store once a month. AR 330–31. 23 United States District Court Northern District of California 1 Jones actually confirmed at her hearing that she does not go anywhere by herself and has 2 previously stated that she finds it difficult to take the bus because she does not like to be around 3 crowds due to her eyesight. AR 112 (testifying at June 2016 hearing), 778 (reporting to NP Green 4 in February 2016). In 2014 Jones indicated that she “sometimes” drives, but in 2016 she said she 5 did so only with her roommate and rarely because she starts to panic about other cars hitting her 6 while doing so. AR 330 (2014 Function Report), 778 (reporting to NP Green in 2016). As to 7 going out more generally, at the hearing, Jones described the last time she left her house to go on a 8 walk on an unspecified date, but during the walk her eyesight blurred, she heard a dog, became 9 afraid, and ran back to her house. AR 106–07. She then explained that if someone walks with 10 her, she does not get afraid and that is why she does not go out by herself. AR 107. Because 11 Jones is afraid to leave her house, she spends her days watching television. See AR 121, 331. Jones also testified that though her niece came to visit her and that she went to go visit her 12 13 daughter, “people rarely come over” and that she is “always by [herself]. AR 109–10, 117, 120. 14 Although the ALJ has characterized the visits from her niece as “frequent,” there is no evidence in 15 the record as to what that means or facts that support it. Similarly, although there is evidence that 16 Jones has seen her daughter who lives in Sacramento, there is little evidence about how frequently 17 those visits take place, whether they take place at Jones’s home or whether Jones travels to 18 Sacramento. If Jones does travel to Sacramento to visit her daughter, there is no evidence in the 19 record demonstrating how she gets there. These sporadic visits with and from a very limited pool 20 of relatives and minimal interactions with the public is not significant much less substantial 21 evidence on which the ALJ could have relied to discount her subjective statements as to her 22 limitations or undercut the opinion evidence of Dr. Fentress, Dr. Kohbod, Dr. Khoi, and Dr. De 23 Souza. 24 In addition, although the ALJ found that Jones’s ability to prepare her own meals was 25 evidence that her activities of daily living were inconsistent with her reported impairments, Jones 26 has repeatedly stated that she makes only microwave dinners for herself that take two or three 27 minutes to prepare because she “can’t stand long.” AR 109 (June 2016 hearing testimony), 329 28 (March 2014 Function Report). Further, Jones has consistently reported experiencing low appetite 24 1 and testified at the hearing in front of the ALJ that she had not eaten in four days. AR 109 (June 2 2016 hearing testimony), 742 (August 2012 consultation with Dr. Milton Lorig), 759 (December 3 2015 Sausal Creek Crisis Assessment), 773 (February 23, 2016 visit with NP Green), 778 4 (February 2, 2016 visit with NP Green), 781–82 (January 2016 visit with NP Green), 814 (March 5 2016 visit with Dr. Fentress). And while the ALJ used Jones’s ability to drive as evidence that her 6 visual impairments are not as severe as she alleged, the record in context indicates that Jones does 7 not drive frequently and never alone because she is afraid of her vision blurring while behind the 8 wheel. AR 330 (March 2014 Function Report), 778 (February 2016 visit with NP Green). United States District Court Northern District of California 9 Finally, although Jones admitted to spending time with family and that she goes to the 10 store once a month, the Ninth Circuit has recognized the disability claimants “should not be 11 penalized for attempting to lead normal lives in the face of their limitations.” Reddick v. Chater, 12 157 F.3d 715, 722 (9th Cir. 1998). The Ninth Circuit has also held that “the mere fact that a 13 plaintiff has carried on certain daily activities . . . does not in any way detract from her credibility 14 as to [] overall disability.” Orn, 495 F.3d at 639 (internal quotations and citation omitted). An 15 adverse credibility finding based on activities may be proper “if a claimant engages in numerous 16 daily activities involving skills that could be transferred to the workplace.” Id. “The ALJ must 17 make “specific findings relating to [the daily] activities” and their transferability to conclude that a 18 claimant’s daily activities warrant an adverse credibility determination.” Id. The ALJ did not do 19 so here, but instead described activities “so undemanding that they cannot be said to bear a 20 meaningful relationship to the activities of the workplace.” See id. 21 Therefore, the ALJ’s conclusion that Jones’s activities of daily living are inconsistent with 22 the alleged severity of her impairments is not supported by specific, clear, or convincing evidence. 23 Instead, the ALJ mischaracterized the extent, nature, and significance of her consistently reported 24 and very limited daily life activities. 25 B. 26 The ALJ similarly relied on an incomplete reading of Jones’s medical history to conclude Compliance with Medication 27 that Jones had not been compliant in taking her medication and holding that non-compliance 28 against her as evidence that her symptoms and conditions were not as severe or limiting as Jones’s 25 1 claimed. Though an “unexplained, or inadequately explained, failure to seek treatment or 2 following a prescribed course of treatment” can be evidence sufficient to discredit a claimant’s 3 testimony, the ALJ’s determination that Jones was not compliant in taking her medication is not 4 supported by substantial evidence. See Orn, 495 F. 3d at 638 (holding that if a “good reason” 5 applies, failing to seek treatment or to follow a course of treatment cannot be the basis for an 6 adverse credibility finding.). United States District Court Northern District of California 7 The ALJ cites four examples from Jones’s medical history to show Jones’s non- 8 compliance. The first comes from Dr. Kohbod’s assessment that reads in full: “[Jones] is 9 motivated to receive treatment, though in the past she has not always been medication compliant.” 10 AR 600. The ALJ also relied on NP Shana Green’s observation that since Jones’s initial visit to 11 the clinic, she had “multiple no shows/cancellations and did not start with therapy. AR 777. But 12 the ALJ omitted Green’s observation from the following page that Jones was experiencing 13 problems with “transportation and forgetfulness” that could explain her non-compliance. AR 14 777–78. The ALJ then relied on Jones’s admission to NP Green on February 5, 2016 that she only 15 takes one risperidone pill at night rather than two during the day, but failed to mention that NP 16 Green discussed with Jones that she may continue to take only one pill at night if that dosage 17 allowed “for the remission of voices.” AR 780. Additionally, at a follow up visit with NP Green 18 on February 23, 2016, Jones’s prescription was adjusted down to one risperidone pill each day. 19 AR 773. Finally, the ALJ noted that Jones had run out of baclofen and gabapentin and did not 20 follow up with her primary care provider. However, the ALJ ignored the following comment from 21 NP Green on March 22, 2016, which said that Jones had not followed up with her primary care 22 provider because she mistook the date of her appointment and came to the clinic on a day it was 23 closed. AR 811. 24 In sum, this is not substantial evidence that Jones has a demonstrated history of non- 25 compliance with her prescribed course of treatment. Rather, this provides more evidence of her 26 marked mental impairments, including forgetfulness. AR 407, (Dr. Khoi finding Jones has 27 “marked” impairment in ability to understand and remember detailed instructions in 2011), 600– 28 01 (Dr. Kohbod describing Jones’s memory as “below average” in 2014), 774 (NP Green 26 1 conducting mental status exam in February 2016 and finding that Jones “has difficulty with 2 dates/times”), 777–78 (reporting to NP Green that Jones missed her appointments due to 3 “forgetfulness”), 784 (NP Green conducting mental status evaluation in January 2016 and finding 4 Jones’s recent and remote memory is “inconsistent”), 811 (NP Green noting Jones mistook the 5 date of her appointment in March 2016), 824 (Dr. Fentress noting Jones’s “inability to regularly 6 follow-through with appointments and other instructions” in June 2016). As the Ninth Circuit has 7 recognized, “[w]e do not punish the mentally ill for occasionally going off their medication when 8 the record affords compelling reason to view such departures from prescribed treatment as part of 9 the claimants’ underlying mental afflictions.” Garrison, 759 F.3d at 1018 n.24. Additionally, though the ALJ found that Jones’s condition improves when she takes United States District Court Northern District of California 10 11 medication, the record does not support that her improvements obviate any limitations. With 12 respect to her physical conditions, even when Jones reported generally feeling well after taking 13 medication, she still experienced ongoing tingling in her feet. AR 668 (September 2015 visit to 14 Alameda Health System), 701 (September 2015 visit to Alameda County Medical Center), 759 15 (December 2015 visit to Sausal Creek). Further, even when Jones stops hearing voices and shows 16 improved concentration and focus on her medications, her anxiety and depression still remain. 17 AR 773 (reporting in February 2016 to NP Green that she continues to struggle with depression), 18 787 (December 2015 reporting feelings of anxiety to Dr. Fentress), 812 (reporting in March 2016 19 to NP Green that her symptoms of depression have not improved or worsened and endorsing high 20 anxiety since starting Cymbalta). Jones’s alleged medication non-compliance is not supported 21 sufficient to be a specific, clear, and convincing reason for rejecting Jones’s testimony as to her 22 symptoms and limitations.8 23 24 25 26 27 28 8 In Opposition, the Commissioner argues two points to support the ALJ’s decision to discount Jones’s testimony regarding the debilitating effects of her impairments: first, that the two-year time period between Jones’s alleged disability onset date and the date she was first prescribed psychotropic medication, Oppo. at 5; and second, that gaps in Jones’s mental health treatment did not “cause any exacerbations or result in emergency medical or psychiatric care.” Id. However, the ALJ did not raise either of these points in her decision. See AR 20. Because I am “constrained to review the reasons the ALJ asserts,” I need not analyze these arguments. See Stout v. Commissioner, Social Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006) 27 1 2 3 4 5 6 7 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 III. EXAMINING AND TREATING SOURCES Jones argues that the ALJ impermissibly discounted treating and examining opinion evidence in favor of the opinions of consultants who did not even examine Jones. The Ninth Circuit classifies the three types of physicians that can provide information on a claimant as: “(1) those who treat the claimant (treating physicians); (2) those who examine but do not treat the claimant (examining physicians); and (3) those who neither examine not treat the claimant (nonexamining physicians).” Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). The weight that the ALJ must give each of those categories of opinions and when the ALJ can disregard opinions from each of those sources vary. A. Dr. Fentress and Shana Green, N.P. Jones argues that the ALJ erred by rejecting key portions of the opinion of Jones’s treating physician, Dr. Fentress, and by implicitly rejecting in full the opinion of his nurse practitioner, Shana Green. Mot. at 16. “As a general rule, more weight should be given to the opinion of a treating [physician] than to the opinion of doctors who do not treat the claimant.” Lester, 81 F.3d at 830. Where a treating physician’s opinion is not contradicted by another doctor, it may be rejected only for “clear and convincing” reasons. Id. Where the opinion is contradicted, it may be rejected only by providing “specific and legitimate reasons supported by substantial evidence in the record for doing so.” Id. (internal quotation marks omitted). When an ALJ fails to provide adequate reasons for rejecting the opinion of a treating or examining physician, the Ninth Circuit credits the opinion as true as a matter of law. Id. at 834. The ALJ assigned “partial weight” to Dr. Fentress’s opinion. AR 23. Significant weight was given to Dr. Fentress’s opinion that Jones “is able to sit, stand, and/or walk at least 6 hours each” because it was consistent with Jones’s activities of daily living, that her condition improved with medication, and her “unremarkable physical examination findings.” AR 23. The ALJ gave “reduced weight” to the remainder of Dr. Fentress’s findings, including his opinion that Jones’s “functional impairments in attention and concentration related [to her] history of trauma and depression” would make it “very difficult or impossible” for her to work, because they were 28 1 “overly restrictive” and “inconsistent with the evidence as a whole and treatment notes indicating 2 that the claimant had improved concentration and focus when on psychotropic medications.” See 3 AR 23; 824. The ALJ cited to one piece of evidence to show that Jones’s condition improved with United States District Court Northern District of California 4 5 treatment and to reject all of Dr. Fentress’s findings but his opinion that Jones would be able to sit, 6 stand, and walk for at least six hours during a normal working day; namely the improvement in 7 Jones’s mental health symptoms when she was on her medicine. AR 23. The Commissioner cites 8 to this same piece of evidence in Opposition to argue that the ALJ properly found Jones’s 9 condition improved with psychotropic medication. Oppo. at 7. Though NP Green commented 10 that Jones had “improved concentration and focus” with medication, but NP Green also noted that 11 Jones still experienced “difficulty with dates/times” and “low mood, poor motivation, transient 12 suicidal ideations, and poor appetite.” AR 774. Jones’s hearing testimony is consistent with this 13 finding, where she reported she still needed reminders to make her appointments and take her 14 medications, had little interest in eating, and spent her days watching the television despite being 15 compliant with her medications. AR 108, 111–12. Further, because Jones has testified that she 16 experiences “bad days and good days,” it was error for the ALJ to pick out one instance of 17 temporal improvement as evidence that Jones is capable of working consistently. See AR 117; 18 Garrison, 759 F.3d at 1017 (“Cycles of improvement and debilitating symptoms are a common 19 occurrence, and in such circumstances it is error for an ALJ to pick out a few isolated instances of 20 improvement over a period of months or years and treat them as a basis for concluding a claimant 21 is capable of working.”).9 Jones also argues that the ALJ erred in wholly ignoring NP Green’s psychiatric 22 23 24 25 26 27 28 9 The ALJ also rejected the majority of Dr. Fentress’s findings because they were “overly restrictive.” AR 23. But this on its own is not a specific and legitimate reason supported by substantial evidence for rejecting the portions of his opinion that detail Jones’s limitations. “An ALJ can satisfy the ‘substantial evidence’ requirement by ‘setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and making findings.” Garrison, 759 F.3d at 1012 (quoting Reddick, 157 F.3d at 725). “[A]n ALJ errs when [he or she] rejects a medical opinion or assigns it little weight while doing nothing more than ignoring it, asserting without explanation that another medical opinion is more persuasive, or criticizing it with boilerplate language that fails to offer a substantive basis for his conclusion.” Id. at 1012–13. 29 United States District Court Northern District of California 1 assessment, although the ALJ did use a note from a visit with NP Green to support her conclusion 2 that Jones’s condition improved with medication. See AR 23, 774. As noted, Dr. Fentress 3 referred Jones to NP Green for a psychiatric assessment. AR 781. NP Green’s visit notes support 4 Dr. Fentress’s opinion that Jones’s mental impairments are more limiting than her physical ones 5 and, despite improvements on medications, would still make it near impossible for her to maintain 6 employment. See AR 824. NP Green administered PHQ-9 and GAD-7 tests during her initial 7 visit with Jones, finding that Jones had “severe depression” and her anxiety was also “severe.” 8 AR 784. At this initial visit, NP Green also noted that Jones exhibited “symptoms of Post 9 Traumatic Stress Disorder . . . panic and anxiety, anger and fear, [and] anhedonia” and 10 recommended that Jones start on Cymbalta. AR 784–85. At a visit in March, NP Green listed 11 Jones’s diagnosis as “Episode of recurrent major depressive disorder, unspecified depression 12 episode severity.” AR 812. NP Green’s visit notes detail Jones’s feelings of depression (AR 774, 13 778, 784, 811), fears about leaving her house (AR 774, 779, 782, 811), and thoughts of suicide 14 (773, 778, 811). These findings are consistent with the mental limitations that Dr. Fentress opined 15 Jones had. Because the ALJ’s opinion did not account for NP Green’s findings and observations, 16 her rejection of Dr. Fentress’s opinion is not supported by substantial evidence in the 17 administrative record.10 The Commissioner argues in Opposition that the ALJ properly weighed the medical- 18 19 opinion evidence generally but does not argue why the ALJ was justified in discounting the 20 opinion of Dr. Fentress specifically. See Oppo. at 6. Instead, the Commissioner contends that the 21 ALJ “settled in the middle ground” between medical opinions that found Jones had few or no 22 limitations (such as Dr. Hernandez’s opinion) and medical opinions that found Jones was 23 incapable of even low-stress work (including Dr. Fentress’s opinion). Id. But as a treating 24 physician, the ALJ needed to discount Dr. Fentress’s testimony with specific and legitimate 25 26 27 28 10 The ALJ also used Jones’s “activities of daily living” to accept Dr. Fentress’s opinion that Jones was able to sit, stand, and/or walk at least 6 hours each. AR 23. However, because Jones’s activities of daily living are not as substantive or as frequent as the ALJ characterized them, as discussed above, her activities of daily living corroborate much more of Dr. Fentress’s findings than what the ALJ accepted. 30 United States District Court Northern District of California 1 evidence from the record that was supported by substantial evidence. See Lester, 81 F.3d at 830. 2 The ALJ did not do so here. 3 B. 4 Jones argues that the ALJ erred by assigning “reduced weight” to examining optometrist Dr. Andrea De Souza 5 Dr. Andrea De Souza’s opinion. “The opinion of an examining physician is . . . entitled to greater 6 weight than the opinion of a non-examining physician.” Lester, 81 F.3d at 830. As with treating 7 physicians, the ALJ must provide “clear and convincing” reasons for rejecting the uncontradicted 8 opinion of an examining physician and “specific and legitimate reasons that are supported by 9 substantial evidence” for rejecting the contradicted opinions of an examining doctor. Id. 10 Dr. De Souza opined that Jones would be unable to avoid ordinary workplace hazards, 11 would have difficulty walking up and downstairs, and would be off-task 25% of a workday or 12 more. AR 802–03. The ALJ rejected Dr. De Souza’s limitations because her observations were 13 not based on a long treating relationship, appeared overly reliant on Jones’s subjective reports, and 14 were inconsistent with Jones’s activities of daily living. 15 Length of treating relationship is one factor ALJs consider when evaluating medical source 16 opinions in a disability determination. 20 U.S.C. § 404.1527(c)(2). However, while this would be 17 a reason to give less weight to Dr. De Souza’s opinion than to the opinion of a treating physician, 18 it is not a reason to give preference to the opinion of a doctor who has not examined Jones. See 19 Lester, 81 F.3d at 832. Here, the ALJ assigned “significant weight” to the opinion of Dr. Lucila, a 20 state agency medical consultant who never examined Jones and determined that Jones was able to 21 be aware of usual workplace hazards and to travel by public transportation. AR 23, 179. This 22 reason for discrediting Dr. De Souza’s findings is not clear and convincing, specific or legitimate, 23 or supported by substantial evidence. 24 The ALJ also found Dr. De Souza’s opinion to be “overly reliant” on Jones’s subjective 25 complaints, and the Commissioner argues that Dr. De Souza relied on Jones’s claims because she 26 did not “describe or submit any medical findings explaining or supporting her opinion.” See AR 27 22; Oppo. at 7. “[A]n ALJ does not provide clear and convincing reasons for rejecting an 28 examining physician’s opinion by questioning the credibility of the plaintiff’s complaints where 31 1 the doctor does not discredit those complaints and supports his ultimate opinion with his own 2 observations.” Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1199–1200 (9th Cir. 2008). Here, 3 there is evidence that De. Souza’s opinions were based on her own independent testing. United States District Court Northern District of California 4 For example, the record includes Dr. De Souza’s Optometry Chart Note from the day she 5 examined Jones; it shows that De Souza conducted a visual acuity test and an external 6 examination and made an ophthalmology impression/plan that day. AR 804–08. These notes 7 indicate that Jones’s visual acuity test in her right eye was 20/50 and was 20/HM in her left. AR 8 805. Dr. De Souza also diagnosed Jones with a macular scar in her left eye, vision loss of right 9 eye, glaucoma suspect of right eye, hyperopia, and astigmatism. AR 807. These findings are 10 consistent with others in Jones’s medical record, support De Souza’s opinions, and were not 11 addressed by the ALJ. See AR 614 (2014 diagnosis from Tanya Gill, O.D. that Jones had 12 “reduced vision” and a visual acuity of 20/60 in her right eye and “loss of vision” and a visual 13 acuity of 20/HM in her right), 661–64 (2015 diagnosis from Oakland Vision Center showing a 14 visual acuity of 20/60 in her right eye and 20/HM in her left), 827 (2016 visual acuity test from 15 Jane Loman, O.D. showing a visual acuity of 20/80 in her right eye and 20/400 in her left and 16 noting that Jones “can’t see” out of her left eye). The “overly reliant” reason for rejecting Dr. De 17 Souza’s testimony is not supported by substantial evidence. 18 Though Dr. Hernandez observed that Jones was “able to fill out the patient intake form 19 correctly” and “seemed to ambulate well about the room without any problem,” this piece of 20 testimony is not a specific and legitimate reason supported by substantial evidence to discount Dr. 21 De Souza’s opinion. AR 593. Dr. De Souza is a specialist in optometry and “[w]e generally give 22 more weight to the medical opinion of a specialist about medical issues related to his or her area of 23 specialty than to the medical opinion of a source who is not a specialist.” 20 C.F.R. § 24 404.1527(c)(5); see Garrison, 759 F.3d at 1013. Further, Dr. Hernandez assessed that Jones had 25 “no visual limitations,” which is not supported by the undisputed evidence in Jones’s medical 26 record. AR 596. 27 Finally, the ALJ discredited Dr. De Souza’s findings because they were inconsistent with 28 Jones’s activities of daily living, which include “cooking, traveling, shopping, and spending time 32 1 with others.” AR 22. As I have discussed above, the ALJ mischaracterized Jones’s activities of 2 daily living, which are not as substantial or frequent as the ALJ considered them to be. 3 United States District Court Northern District of California 4 Because the ALJ did not provide specific and legitimate reasons, supported by substantial evidence for rejecting Dr. De Souza’s opinion, she committed legal error. 5 C. 6 Jones also challenges the ALJ’s assignment of “little weight” to certain opinions of Dr. Sokley Khoi and Dr. Aliyeh Kohbod 7 examining psychologists Dr. Sokley Khoi and Dr. Aliyeh Kohbod. AR 23–24. While the ALJ 8 assigned significant weight to Dr. Khoi’s October 2011 finding that Jones would have 9 impairments even without substance abuse, she assigned little weight to the majority of Dr. Khoi’s 10 functional limitations because they were “overly restrictive, not based on a long treating 11 relationship, and inconsistent with the claimant’s activities of daily living and minimal mental 12 health treatment.” AR 24. These limitations included marked impairments in the ability to: 13 understand and remember detailed instructions; carry out detailed instructions; maintain adequate 14 pace and persistence to perform complex/detailed tasks; and, withstand the stress of a routine work 15 day. AR 407. The ALJ assigned little weight to the entirety of Dr. Kohbod’s May 2014 opinion 16 because it was “overly restrictive and inconsistent with the claimant’s activities of daily living and 17 her minimal mental health treatment of record.” AR 25. 18 As stated above, rejecting the majority of Dr. Khoi’s assessment because Jones did not 19 have a longstanding treating relationship with him is not a specific and legitimate reason to do so, 20 particularly because the ALJ assigned significant weight to other doctors who never examined 21 Jones. See AR 23. 22 The ALJ’s assessment that Drs. Khoi and Kohbod’s findings are inconsistent with Jones’s 23 activities of daily life is not supported by substantial evidence because, as discussed above, the 24 ALJ mischaracterized Jones’s activities of daily living. The ALJ states that “in spite of Dr. 25 Kohbod’s findings,” Jones receives visits from her niece, visits her daughter in Sacramento, lives 26 in an apartment with a friend, and goes shopping. AR 25. But the frequency and conditions under 27 which those activities occurred – rarely and usually supported by relatives or friends – were 28 ignored by the ALJ. In addition, it is not clear that any of these limited activities conflict with Dr. 33 United States District Court Northern District of California 1 Kohbod’s findings that Jones lacks the ability to deal with stress, isolates herself from most social 2 relationships, and suffers from schizophrenia. AR 600, 604–05. The ALJ did not specify any 3 activity of daily living that was particularly inconsistent with Dr. Khoi’s findings. 4 Dr. Khoi assessed Jones as suffering from major depressive disorder, having marked 5 impairments in understanding and memory, and having marked impairments in the ability to 6 withstand the stress of a routine work day and interact appropriately with coworkers. Jones has 7 continually reported symptoms consistent with this assessment. For example, at her hearing, she 8 testified that she is depressed, that she forgets to take her medication and attend appointments, and 9 that she became so scared at the sound of a dog barking that she returned home. AR 106–07, 111– 10 12, 117. Rejecting Drs. Khoi and Kohbod’s opinions for being inconsistent with Jones’s activities 11 of daily living is not supported by substantial evidence. 12 Finally, the ALJ rejected the majority of Drs. Khoi and Kohbod’s opinions because of 13 Jones’s “minimal mental health treatment.” AR 23, 25. This statement is contrary to the evidence 14 in the record, which demonstrates that Jones has received mental health treatment – albeit 15 somewhat sporadic and at times of crisis – from numerous providers over the course of years. AR 16 413–26 (August 2012 Crisis Assessment at Sausal Creek), 638 (December 2012 visit to Save a 17 Life Wellness Center), 742 (August 2012 assessment at Alameda County Medical Center), 755–67 18 (December 2015 visit to Sausal Creek Outpatient Stabilization Clinic), 772 (February 2012 visit to 19 Lifelong Medical Care), 777 (February 2016 visit to Lifelong Medical Care), 781 (January 2016 20 visit to Lifelong Medical Care), 810 (March 2016 visit to Lifelong Medical Care). Further, the 21 Ninth Circuit has “particularly criticized the use of a lack of treatment to reject mental health 22 complaints both because mental illness is notoriously underreported and because ‘it is a 23 questionable practice to chastise one with a mental impairment for the exercise of poor judgment 24 in seeking rehabilitation.’” Regennitter v. Comm’r of Soc. Sec. Admin., 166 F.3d 1294, 1299–300 25 (9th Cir. 1999) (quoting Nguyen v. Chater, 100 F.3d 1462, 1465 (9th Cir. 1996)). In addition, 26 there is evidence in the medical record that Jones’s impairments contribute to gaps in her 27 treatment. See AR 668 (misunderstanding her medication in 2015), 777 (missing appointments in 28 2016 due to forgetfulness and her fear of leaving the house), 811 (missing an appointment because 34 1 2 United States District Court Northern District of California 3 she mistook the dates in 2016). Therefore, the ALJ’s reasoning for rejecting the opinions of Drs. Khoi and Kohbod is not supported by substantial evidence. 4 D. 5 Jones argues that the ALJ erred by assigning “little weight” to the entirety of LCSW LCSW Rudolph Smith 6 Rudolph Smith’s opinion. AR 24. Smith evaluated Jones in December 2012 and opined that she 7 had marked limitations in the ability to remember work-like procedures, maintain attention for 8 extended periods, maintain regular attendance, sustain ordinary routine without special 9 supervision, make simple work-related decisions, and get along with co-workers and peers without 10 unduly distracting them or exhibiting behavioral extremes. AR 638. He also opined that she had 11 moderate restrictions in her ability to understand and remember very short and simple instructions, 12 to carry out very short and simple instructions, and to be aware of normal hazards and take 13 appropriate precautions. AR 638. Smith finally opined that Jones’s mental health conditions 14 prevented her from working. AR 639. 15 The ALJ rejected Smith’s opinion for three reasons: a social worker is not an acceptable 16 medical source; Smith’s findings were not based on a long treating relationship; and Smith’s 17 limitations “touch upon subject matter reserved to the Commissioner.” The Commissioner argues 18 that Smith’s opinion is a “non-medical opinion from a non-medical source” and argues that the 19 ALJ provided specific and legitimate reasons for discounting it. Oppo. at 7. 20 Like a nurse practitioner, a social worker is not an acceptable medical source, but is an 21 “other source” whose opinion must be evaluated and discounted with a “germane reason” for 22 doing so. See Ghanim v. Colvin, 763 F.3d 1154, 1161, 1169 (9th Cir. 2014); see also Johnson v. 23 Berryhill, No. 17-cv-06561-DMR, 2019 WL 1369933, at *12 (N.D. Cal. Mar. 26, 2019) (noting 24 that an ALJ must give reasons “germane to” each lay witness, including licensed clinical social 25 workers, before discounting their testimony). Simply stating that a social worker is not an 26 acceptable medical source is not a germane reason for discounting Smith’s opinion. Similarly, 27 though Smith examined Jones only once, this is not in and of itself a germane reason for assigning 28 little weight to his opinion. See Lester, 81 F.3d at 832. 35 United States District Court Northern District of California 1 That Smith’s limitations “touch upon subject matter reserved to the Commissioner” is not a 2 reason germane to rejecting Smith’s findings that Jones had moderate to marked limitations in 3 understanding and memory, sustained concentration and persistence, social interaction, and 4 adaptation, and a mental health condition that would prevent her from working. AR 638–39. 5 These findings are consistent with reports from Dr. Fentress, NP Green, Dr. Kohbod, and Dr. 6 Khoi. The ALJ’s decision to assign little weight to Smith’s opinion is not supported by substantial 7 evidence. AR 407 (October 2011 visit with Dr. Khoi), 606 (2014 visits with Dr. Kohbod, 773–74 8 (February 2016 visit with NP Green), 784 (January 2016 visit with NP Green), 824 (June 2016 9 Medical Source Statement from Dr. Fentress). 10 E. 11 Dr. Bradus, a state agency medical consultant, reviewed Jones’s medical records and Dr. Bradus 12 opined that Jones could “perform jobs that did not require fine discrimination at a distance or 13 constant use of the eyes for close work.” AR 177. “The Commissioner may reject the opinion of 14 a non-examining physician by reference to specific evidence in the medical record.” Sousa v. 15 Callahan, 143 F.3d 1240, 1244 (9th Cir. 1998) (citation omitted). The ALJ assigned reduced 16 weight to this opinion “given the claimant’s ability to spend her days watching television, ability 17 to drive a car, ability to use public transportation to travel, and the claimant’s ability to go 18 shopping in stores.” AR 21. 19 This assertion is not supported by substantial evidence because, as stated above, the ALJ 20 mischaracterized Jones’s activities of daily living. Though Jones reported in 2014 that she uses 21 public transportation, more recently, to NP Green in 2016 and at her hearing in front of the ALJ, 22 she has stated that she does not use public transportation to travel because of her concerns about 23 her eyesight. AR 112, 330, 778. Further, this characterization of Jones’s activities does not 24 mention that Jones does not go anywhere by herself. AR 112. Though she does watch television 25 and go shopping once a month for twenty minutes, the ALJ failed to make any specific findings 26 about how these abilities would translate to a workplace environment. See Fair, 885 F.2d at 603. 27 Jones also argues that while the ALJ stated she assigned “significant weight” to Dr. 28 Bradus’s opinion that Jones should avoid even moderate exposure to hazards, the ALJ implicitly 36 1 rejected this opinion in assessing Jones with an RFC that does not include any vision limitations, 2 despite finding Jones’s loss of vision to be a severe impairment at Step Two. Mot. at 22–23; see 3 AR 15, 18. I agree. Because the ALJ did not reject this portion of Dr. Bradus’s opinion with 4 reference to specific evidence in the record and did not include this opinion in the eventual RFC 5 assessment, the ALJ has committed legal error. See Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 6 1219, 1228 (9th Cir. 2009) (citing 20 C.F.R. §§ 404.1523, 416.923) (“If the ALJ finds a severe 7 impairment at step two, that impairment must be considered in the remaining steps of the 8 sequential analysis.”). 9 IV. United States District Court Northern District of California 10 JONES’S RESIDUAL FUNCTIONAL CAPACITY A claimant’s residual functional capacity is the most she can still do despite limitations. 11 20 C.F.R. § 416.945(a)(1). When assessing a claimant’s RFC, the ALJ must consider all 12 medically determinable impairments, including those that are not severe. § 416.945(a)(2). 13 The ALJ found that Jones had the residual functional capacity to perform “medium work” 14 with the following limitations: “never climb ladders, ropes, or scaffolds; kneeling and crawling 15 would be occasional; has to avoid concentrated use of hazardous machinery and concentrated 16 exposure to heights; limited to occupations that do not require complex written or verbal 17 communication; work is limited to simple . . . , routine and repetitive; can work in a low stress job 18 defined as having only occasional decision making and only occasional changes in the work 19 setting; can have only occasional interaction with the general public; and only occasional 20 interaction with co-workers.” AR 18. The ALJ stated that this assessment was supported by 21 medical evidence, the claimant’s activities of daily living, and partially supported by some of the 22 opinions of the State agency medical consultants and examining physicians. AR 25. The 23 Commissioner argues that the ALJ’s RFC assessment was supported by substantial evidence. 24 Oppo. at 8. 25 As discussed above, the ALJ did not provide adequate reasons for rejecting the opinions of 26 Dr. Fentress, Dr. De Souza, Drs. Khoi and Kohbod, and LCSW Smith. Because the ALJ did not 27 account for these opinions in the RFC assessment, the RFC does not include the limitations they 28 assessed and is not supported by substantial medical evidence. The ALJ failed to include all of 37 1 Jones’s impairments in determining her residual functional capacity. Therefore, the ALJ asked an 2 incomplete hypothetical question of the vocational expert. The hypothetical did not take account 3 of Jones’s limitations because of her mental impairments; specifically, the hypothetical ignored 4 Dr. Fentress’s opinion that Jones’s mental impairments would cause require her to take two to 5 three unscheduled 20 minute breaks each day and would cause her miss more than four days of 6 work each month. AR 822–24. The ALJ also used an inaccurate and incomplete version of Jones’s activities of daily United States District Court Northern District of California 7 8 living to reject Jones’s subjective complaints, as discussed above. Because the ALJ failed to find 9 specific and legitimate reasons for finding Jones’s alleged symptoms not credible, the ALJ was 10 “therefore required to include these limitations in this assessment of [Jones’s] RFC. Because the 11 ALJ did not do so, substantial evidence does not support the ALJ’s RFC assessment . . . .” See 12 Lingenfelter v. Astrue, 504 F.3d at 1055. 13 V. 14 REMEDY “The decision whether to remand a case for additional evidence, or simply to award 15 benefits is within the discretion of the court.” Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir. 16 1987). Jones asks that I apply the credit-as-true rule and remand for an award of benefits. Reply 17 at 10 [Dkt. No. 23]. There are three steps to the credit-as-true rule. First, courts ask whether “the 18 ALJ has failed to provide legally sufficient reasons for rejecting evidence, whether claimant 19 testimony or medical opinion.” Garrison, 759 F.3d at 1020. Next, if the ALJ has erred, courts 20 determine “whether the record has been fully developed, whether there are outstanding issues that 21 must be resolved before a determination of disability can be made, and whether further 22 administrative proceedings would be useful.” Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 23 1090, 1101 (9th Cir. 2014) (internal quotation marks and citations omitted). Finally, if there are 24 no outstanding issues and further proceedings would not be useful, courts may apply the credit as 25 true rule and find the relevant testimony credible as a matter of law and determine whether the 26 record, “taken as a whole, leaves not the slightest uncertainty as to the outcome of the 27 proceeding.” Id. (internal quotation marks omitted). 28 When evaluating whether the record has been fully developed, courts “consider whether 38 United States District Court Northern District of California 1 the record as a whole is free from conflicts, ambiguities, or gaps, whether all factual issues have 2 been resolved, and whether the claimant’s entitlements to benefits is clear under the applicable 3 legal rules.” Id. at 1103. “Where there is conflicting evidence, and not all essential factual issues 4 have been resolved, a remand for an award of benefits is inappropriate.” Id. at 1101 (remanding 5 where the record contained significant factual conflicts between plaintiff’s testimony and objective 6 medical evidence). 7 As noted above, the ALJ did not provide legally sufficient reasons for rejecting Jones’s 8 testimony and numerous medical source opinions. However, the record here has not been fully 9 developed and a remand for an award of benefits would be improper. While the ALJ relied on an 10 inaccurate characterization of Jones’s activities of daily living to reject Jones’s testimony and the 11 opinions of Dr. Fentress, Dr. Kohbod, Dr. Khoi, and Dr. De Souza, there are factual issues to be 12 resolved in the record, the most significant of which being the date on which Jones’s limitations 13 may have been disabling. 14 15 CONCLUSION For the foregoing reasons, I GRANT plaintiff’s motion for summary judgment and DENY 16 the government’s motion. This matter is remanded to the SSA for further proceedings consistent 17 with this Order. 18 19 IT IS SO ORDERED. Dated: September 24, 2019 20 21 William H. Orrick United States District Judge 22 23 24 25 26 27 28 39

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