Pahalad v. Berryhill, No. 3:2018cv06122 - Document 21 (N.D. Cal. 2019)

Court Description: ORDER granting 18 Motion for Summary Judgment.In the attached order, the court grants the plaintiff's motion for summary judgment, denies the Commissioner's cross-motion for summary judgment, and remands for further proceedings consistent with the order. (Beeler, Laurel) (Filed on 8/30/2019)

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Pahalad v. Berryhill Doc. 21 1 2 3 4 5 United States District Court Northern District of California 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9 San Francisco Division 10 ROMIKA PAHALAD, 11 Plaintiff, v. 12 13 NANCY A. BERRYHILL, Acting Commissioner of Social Security, 14 Defendant. 15 16 Case No. 18-cv-06122-LB ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S CROSS-MOTION FOR SUMMARY JUDGMENT Re: ECF Nos. 18 & 19 INTRODUCTION 17 The plaintiff Romika Pahalad seeks judicial review of a final decision by the Commissioner of 18 the Social Security Administration denying her claim for disability benefits under Title II of the 19 Social Security Act (“SSA”).1 She moved for summary judgment.2 The Commissioner opposed 20 the motion and filed a cross-motion for summary judgment.3 Under Civil Local Rule 16-5, the 21 matter is submitted for decision by this court without oral argument. All parties consented to 22 magistrate-judge jurisdiction.4 The court grants the plaintiff’s motion, denies the Commissioner’s 23 motion, and remands for further proceedings consistent with this order. 24 25 26 27 28 1 Motion for Summary Judgment (“Mot.”) – ECF No. 18. Citations refer to material in the Electronic Case File (“ECF”); pinpoint citations are to the ECF-generated page numbers at the top of documents. 2 Mot. – ECF No. 18-1 at 1. 3 Cross Motion for Summary Judgment (“Cross Mot.”) – ECF No. 19. 4 Consent Forms – ECF Nos. 8, 10. ORDER – No. 18-cv-06122-LB Dockets.Justia.com STATEMENT 1 United States District Court Northern District of California 2 1. Procedural History 3 On October 10, 2013, the plaintiff, then age 46, filed a claim for social-security disability 4 insurance (“SSDI”) benefits under Title II of the SSA.5 She alleged the following impairments: a 5 damaged right leg, arthritis in her knee, a back injury, a traumatic-brain injury, depression, chronic 6 severe headaches, fatigue, and insomnia.6 Her alleged onset date originally was October 1, 2012, 7 but was amended to May 3, 2011 at the administrative hearing.7 The Commissioner denied the 8 plaintiff’s SSDI claim initially and on reconsideration.8 The plaintiff timely requested a hearing.9 9 On February 1, 2017, Administrative Law Judge David R. Mazzi (the “ALJ”) held a hearing.10 10 Attorney Harvey P. Sackett represented the plaintiff.11 The ALJ heard testimony from the plaintiff 11 and vocational expert (“VE”) Joel M. Greenberg.12 On September 15, 2017, the ALJ issued an 12 unfavorable decision.13 The plaintiff timely appealed the decision to the Appeals Council on 13 November 1, 2017.14 The Appeals Council denied her request for review on July 31, 2018.15 On 14 October 4, 2018, the plaintiff timely filed this action for judicial review and subsequently moved 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 AR 56, 287. Administrative Record (“AR”) citations refer to the page numbers in the bottom-right hand corner of the AR. 6 These are the impairments that the plaintiff asserted in her initial Disability Determination Explanation. AR 56. In the plaintiff’s memorandum to the ALJ, she asserted bilateral-knee osteoarthritis, lumbar-degenerative-disc-disease, and anxiety/depression. AR 287–91. The ALJ found that the plaintiff had the following severe impairments: “osteoarthritis of the knees, morbid obesity, opioid dependence, degenerative disc disease, and affective disorders with diagnosis including depression.” AR 19. The plaintiff’s motion alleges “osteoarthritis of both knees, morbid obesity, degenerative disc disease, and affective disorder.” Mot. – ECF No. 18 at 8. 7 AR 56; see AR 16, 52. 8 AR 62, 76. 9 AR 92–93. 10 AR 38–55. 11 AR 40. 12 AR 38–55. 13 AR 12, 29. 14 AR 152–53. 15 AR 1–6. ORDER – No. 18-cv-06122-LB 2 1 for summary judgment on March 29, 2019.16 The Commissioner opposed the motion and filed a 2 cross-motion for summary judgment on April 26, 2019.17 The plaintiff filed a reply on May 10, 3 2019.18 4 5 2. Summary of the Administrative Record Mission Peak Orthopaedics (Knee Surgery) — Treating 6 The plaintiff received treatment for her right knee at Mission Peak Orthopaedics (“Mission 7 8 Peak”) from February 2011 to August 2011.19 On February 17, 2011, Ashay Kale M.D., evaluated the plaintiff for chronic pain in her right United States District Court Northern District of California 9 10 knee.20 She could not remember a recent specific injury to her knee, but the pain was so severe 11 that she had to go the emergency room.21 Dr. Kale found the following in an examination: In general, she is a morbidly obese female in no acute distress, height is 5 feet 3 inches. Weight is reported at 184 pounds, but she appears heavier upon inspection. Examination of her right knee show morbid obesity about the soft tissue. She has tenderness to palpation diffusely around the knee, not localized to any particular area. There is tenderness over both medial and lateral joint line. There is discomfort with attempted active and passive range of motion. There is no instability in the knee. Distal neurovascular status intact.22 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 X-rays showed “moderate narrowing of the medial joint space and patellofemoral joint space.”23 Dr. Kale found that the plaintiff had “moderate osteoarthritis of [the] right knee with probable degenerative meniscal tears.”24 She counseled the plaintiff “as to the importance of weight loss to unload the joint including the knee joints” and recommended that plaintiff receive a corticosteroid 16 Compl. – ECF No. 1; Mot. – ECF No. 18-1. 17 Cross Mot. – ECF No. 19. 18 Reply – ECF No. 20. 19 AR 646–653. 20 AR 652–53. 21 AR 652. 22 23 24 Id. AR 653. Id. ORDER – No. 18-cv-06122-LB 3 1 injection and an MRI scan to evaluate the menisci and the articular cartilage.25 She gave the 2 plaintiff the injection on that date.26 On May 3, 2011, the plaintiff, following the corticosteroid injection in her knee, reported pain 3 4 in her right knee and said that the injection only temporarily relieved her symptoms and she had to 5 go the ER several times because of the pain.27 Dr. Kale found that the plaintiff had signs of a torn 6 meniscus and chronic chondromalacia of the patella.28 Dr. Kale also noted that there were arthritic 7 changes in the knee.29 The plaintiff had arthroscopy on May 11, 2011 to repair a torn meniscus 8 and chondromalacia patella in her right knee.30 The plaintiff had a follow-up visit nine days after surgery with physician’s assistant (“PA”) United States District Court Northern District of California 9 10 Aklil Rostai.31 He noted that the plaintiff’s incisions were healing well and discussed the 11 importance of physical therapy and home exercise.32 He prescribed her 40 Norco pills because her 12 previous medication, MS Contin, upset her stomach.33 By June 6, 2011, the incisions had healed, 13 and the plaintiff had “excellent active and passive ranges of motion.”34 There was “still mild-to 14 moderate tenderness over the medial and lateral joint line, but this [was] much improved 15 compared to prior to surgery,” according to Dr. Kale.35 16 On June 29, 2011, a supplemental report said that the plaintiff’s meniscus tear and joint 17 damage occurred on March 17, 2011, when she twisted her right knee while walking on a wet 18 19 20 21 22 23 24 25 26 27 28 25 26 27 28 29 Id. Id. AR 651. Id. Id. 30 AR 661–2. 31 AR 650. 32 33 34 35 Id. Id. AR 649. Id. ORDER – No. 18-cv-06122-LB 4 1 floor.36 The report attributed twenty percent of the plaintiff’s pre-surgery symptoms to 2 patellofemoral joint-degenerative joint disease and eighty percent “due to lateral meniscus tear and 3 exacerbation of patellofemoral pain after her fall.”37 Findings at the time of the arthroscopy were 4 “a complex tear of the lateral meniscus and significant chondromalacia and degenerative changes 5 in the patellofemoral joint.”38 The surgery was successful, the plaintiff’s symptoms had improved 6 significantly, and she had “full active and passive range of motion” in her right knee.39 There was 7 “mild discomfort over the lateral joint line and some mild anterior crepitus with range of motion 8 of the patella.”40 Dr. Kale told the plaintiff that she should continue physical therapy and could be 9 prescribed pain medications only for six weeks to two months more.41 After that, she would be 10 referred to a pain management specialist.42 On August 4, 2011, Dr. Kale noted that the plaintiff’s knee had some residual swelling but a United States District Court Northern District of California 11 12 normal range of motion.43 Her incisions were healed, and her distal neurovascular status was 13 intact.44 She had “patellofemoral arthrosis,” which she had to address “if she desire[d] to have a 14 pain free knee.”45 Dr. Kale referred “her to pain management consisting of evaluation by Dr. 15 Schuchard” and noted that the plaintiff would follow up with her on “an as needed basis.”46 16 17 18 19 20 21 22 23 24 25 26 27 28 36 37 38 39 40 41 42 43 44 45 46 AR 647. Id. Id. Id. Id. AR 648. Id. AR 646. Id. Id. Id. There are no records of an evaluation or treatment by Dr. Schuchard. ORDER – No. 18-cv-06122-LB 5 St. Rose Hospital (Physical Therapy) — Treating 1 From June 2011 to October 2011, the plaintiff had physical therapy at St. Rose Hospital 2 United States District Court Northern District of California 3 following the arthroscopy.47 4 On June 22, 2011, physical therapist (“PT”) Shannon McGann “trained [the plaintiff for] use 5 and self-application of ace wrap for edema.”48 PT McGann’s treatment plan was to “assess [the] 6 efficacy of ace wrap and self [massage]” and to obtain an order for a knee brace.49 The plaintiff 7 filled out a “Patient Information Record” form.50 She rated her pain (from lowest to highest) as a 8 three to eight on a scale of one to ten.51 On an “Activities of Daily Living Assessment,” she 9 reported being “unable” to reach her bra strap, put on pants or shorts, reach her back pocket, clean, 10 wash dishes, do laundry, get out of bed, carry, push or pull five to 100 pounds, do yardwork, or do 11 other recreational activities.52 With “great difficulty,” she could put on a shirt or jacket, cook, 12 grocery shop, walk on level and uneven surfaces, walk up and down stairs, walk over curbs and up 13 ramps, get out of the shower or tub, get out of the car, sit for 30 minutes, stand for 40 minutes, 14 bend, lift or reach below her waist, and bend, lift or reach above shoulder level.53 She reported 15 “moderate difficulty” brushing her hair, brushing her teeth, shaving, bathing, driving, and bending, 16 lifting or reaching overhead.54 She had “some difficulty” typing on a keyboard.55 On June 23, 2011, the plaintiff had an appointment with PT David Cattanach.56 Her pain level 17 18 was a seven out of ten, and her knee was tender to palpation.57 His instructions were “the gym at 19 20 21 22 23 24 25 26 27 28 47 AR 374–398. 48 AR 391. 49 AR 392. 50 AR 393–96. 51 AR 394. 52 AR 395–96. 53 54 Id. Id. 55 AR 396. 56 AR 389–390. 57 AR 389. ORDER – No. 18-cv-06122-LB 6 1 home: functional walking.”58 On July 1, 2011, the plaintiff saw PT Gary Tom, who noted that she 2 had improved from her last visit.59 She was “unable to recall why [her] knee was so painful” on 3 the last visit.60 Her pain level was still seven out of ten.61 On July 6, 2011, PT McGann noted that the plaintiff could stand and walk following the 4 5 arthroscopy and could perform “light house cleaning.”62 Her “initial transition [from] sit [to] stand 6 [and the] first steps to follow [were] generally difficult.”63 According to PT McGann, “good relief 7 [was] achieved,” and “[the] plaintiff would benefit from a stable wrap around knee brace to 8 prevent medical rotation [] while relieving patellar compression.”64 On July 8, 2011, PT McGann had the plaintiff do “gait training on [a] treadmill.”65 She applied United States District Court Northern District of California 9 10 tape to the plaintiff’s tibia to “support patellar decompression.”66 She gave the plaintiff “written 11 instructions for [removing the tape]” and “cautioned [the plaintiff] to limit walking on the 12 treadmill for 10 minutes.”67 On August 2, 2011, the plaintiff had a pain level of five out of ten.68 She was “walking 10–20 13 14 [minutes and] completing [her] exercises daily.”69 The edema “throughout [the plaintiff’s] joint 15 [was] mild compared to [the] last appointment.”70 The emphasis of the physical therapy was “to 16 release adhesions and begin patellar retraining,” but edema limited the plaintiff’s tolerance to 17 18 19 20 21 22 23 24 25 26 27 28 58 59 60 Id. AR 388. Id. 61 AR 387. 62 AR 385. 63 Id. 64 AR 384. 65 AR 383. 66 67 68 69 70 Id. Id. AR 381. Id. Id. ORDER – No. 18-cv-06122-LB 7 1 physical therapy.71 Her treatment plan was “functional activity training, [a] home exercise 2 program, manual therapy, taping, therapeutic exercise and injury prevention technology.”72 On October 25, 2011, PT McGann terminated the plaintiff’s physical-therapy services because 3 4 the plaintiff did not return for her scheduled appointment.73 In her report, PT McGann noted that 5 the plaintiff had increased her range of motion, increased her muscle performance, increased her 6 functional status for home, recreation, and community, decreased her pain, improved her joint 7 alignment and stability, improved her ability to self-manage symptoms, and reduced her risk of 8 reinjury.74 Bhupinder N. Bhandari, M.D. — Treating 9 Bhupinder N. Bhandari, M.D., at Mission Primary Care Group, treated the plaintiff from May 10 United States District Court Northern District of California 11 5, 2011 to January 15, 2014.75 On November 29, 2011, PA Muhammad Khan and Dr. Bhandari noted that the plaintiff’s 12 13 existing problems were “menopause, depression, hypertension, GERD, obesity and 14 hyperlipidemia.”76 The plaintiff said that she felt sad and gloomy “more often than not[,]” had 15 blurry vision, insomnia, and tinnitus and occasionally lost her hearing.77 Her treatment plan was a 16 low-salt diet, exercise to lose weight, and a prescription of Lexapro.78 On February 2, 2012, the plaintiff complained that her legs and feet were swollen.79 On 17 18 February 15, 2012, she said that “if she skips the Norco she feels restless [and has] hand 19 20 21 22 23 24 25 26 27 28 71 72 73 74 AR 376. Id. AR 375. Id. 75 AR 399–500. The records contain hand-written notes that are illegible. 76 AR 425, 438. 77 AR 437. 78 AR 438. 79 AR 464. ORDER – No. 18-cv-06122-LB 8 1 tremors.”80 Dr. Bhandari noted that the plaintiff’s behavior showed the potential for drug abuse.81 2 He prescribed her 90 Norco pills and 30 Ambien pills.82 On February 28, 2012, the plaintiff told 3 Dr. Bhandari that “her prescription was stolen in a car theft.”83 His note said that she was “on 4 medications that cause[d] her to be forgetful[,]” namely, Norco, Ambien, Diclofenae, and 5 Phenegan.84 On August 16, 2012, the plaintiff reported feeling depressed to PA Khan and wanted extra United States District Court Northern District of California 6 7 medication for her leg pain.85 PA Khan prescribed her Paxil.86 On August 23, 2012, she 8 complained of knee pain and was prescribed Norco.87 On August 30, 2012, she asked for an early 9 refill of her medications because “by mistake she threw all her meds in [the] garbage.” 88 PA Khan 10 noted that her “existing problems [were] insomnia, knee pain and depression.”89 He prescribed her 11 Ambien and recommended weight management, diet and exercise.90 On November 15, 2012, PA 12 Khan noted that the plaintiff suffered from headaches and depression.91 On February 20, 2013, the plaintiff said she had pain in her right knee, and asked PA Khan for 13 14 an early refill of her prescription for a trip to Canada.92 PA Khan prescribed her 120 Norco pills 15 and 60 famotidine pills.93 On May 1, 2013, the plaintiff said that she was “sad and gloomy” and 16 17 18 19 20 21 22 23 24 25 26 27 28 80 81 82 AR 463. Id. Id. 83 AR 460. 84 AR 497. The note is addressed to “To whom it may concern[.]” 85 AR 447. 86 Id. 87 AR 446. 88 AR 445. 89 90 Id. Id. 91 AR 427. 92 AR 419. 93 AR 420. ORDER – No. 18-cv-06122-LB 9 United States District Court Northern District of California 1 wanted to “start taking Zoloft for her depression.”94 He prescribed her Zoloft, Ambien and 2 Norco.95 She told Dr. Bhandari on June 20, 2013 that she felt “depressed, sad and gloomy most of 3 the time, [and endured] stomach aches for two days, [with] stabbing pain.”96 He prescribed her 4 Norco, Paxil, and omeprazole.97On July 11, 2013, the plaintiff reported to PA Khan that she fell 5 and injured her head and leg.98 Her existing problems were “LBP [and] obesity.”99 He “referred 6 her to [the] ER for [a] checkup” and prescribed her Vicodin and ibuprofen.100 7 On September 18, 2013, X-rays of the plaintiff’s legs revealed the following: “[her] tarsal 8 bones show[ed] normal alignment and signal intensity pattern;” “[her] tendoachilles show[ed] 9 normal intensity pattern[, n]o obvious tear seen;” she had “small superior and inferior calcaneal 10 spurs;” the “muscle groups around [her] ankle [were] normal;” and “[n]o obvious mass lesion 11 seen.”101 Her major tendons and neurovascular bundle were normal.102 Impressions of the X-rays 12 also included “[a] mild chronic sprain of deltoid and posterior talofibular ligament” and “DJD with 13 fluid accumulation at talonavicular joint.”103 14 On September 12, 2013, the plaintiff told PA Khan that she fell from a second floor.104 She 15 reported that her leg was swollen and her back and head hurt.105 On December 9, 2013 she had 16 radiating leg pain, heartburn, and headaches.106 PA Khan noted that her existing problems were 17 18 19 20 21 22 23 24 25 26 27 28 94 AR 433. 95 AR 434. 96 AR 435. 97 AR 436. 98 AR 414. 99 AR 415. 100 101 102 103 104 105 106 Id. AR 416. Id. Id. AR 410. Id. AR 404. ORDER – No. 18-cv-06122-LB 10 1 “LBP, OA [and] insomnia.”107 He prescribed Norco and Ambien.108 On December 23, 2013, the 2 plaintiff told PA Khan that she needed a refill of her pain medication because “her apartment 3 caught on fire and all her stuff, including her pain medications [burned].”109 Her existing problems 4 were trauma in her right knee, hyperlipidemia, and obesity.110 He prescribed her Ambien and 5 tramadol.111 On January 2, 2014, the plaintiff had the flu and wanted a glucose test.112 St Rose Hospital (Emergency Department) — Treating 6 The plaintiff visited the emergency department at St. Rose multiple times from March 2012 to 7 8 October 2013.113 On March 13, 2012, Dimpi Kalira, M.D., treated the plaintiff.114 She had pain and tenderness United States District Court Northern District of California 9 10 in her right knee.115 Her condition was “exacerbated by movement . . . [and] walking” and was 11 “relieved by prescription medications, Norco–Vicodin.”116 During the visit, the plaintiff was 12 “oriented to person, place and time.”117 The plaintiff said that she was “active and exercising 13 routinely[,]” denied an “inability to bear weight or ambulate,” and said that she was planning a trip 14 to Canada to get a knee replacement.118 On examination, her right knee had “no swelling,” a 15 normal range of motion, and “[d]iffuse, non-localized mild tenderness.”119 The plaintiff’s pain was 16 17 18 19 20 21 22 23 24 25 26 27 28 107 Id. 108 AR 405. 109 AR 403. 110 AR 411. 111 Id. 112 AR 401. 113 AR 299–398. 114 AR 367. 115 AR 368. 116 Id. 117 AR 369. 118 AR 368. 119 AR 369. ORDER – No. 18-cv-06122-LB 11 1 “level [nine], using numeric pain scoring.”120 Dr. Kalira’s diagnosis was “arthralgia” in the right 2 knee.121 She prescribed Norco and Vicodin and discharged the plaintiff.122 On June 25, 2012, the plaintiff told Tony H. Yuan, M.D., that she was running out of pain 3 4 medication.123 Dr. Yuan found that she was ambulatory, had a steady gait, and was “oriented to 5 person place and time.”124 She had a history of musculoskeletal disorder, sciatica, and 6 osteoarthritis in her left hip and right knee.125 Her range of motion and motor strength in her lower 7 extremities was “normal.” 126 He diagnosed her with sciatica and leg pain and prescribed 20 Norco 8 pills.127 On November 23, 2012, Jeremy Graff, M.D., treated the plaintiff in the emergency United States District Court Northern District of California 9 10 department.128 The plaintiff fell between 4:00 p.m. and 5:00 p.m. that afternoon and had pain in 11 her right knee radiating down her leg.129 She reported “chronic arthritis and arthralgias in [her] 12 right knee and hip.”130 She told Dr. Graff that she ran out of medication and that her primary-care 13 doctor told her to get her prescriptions filled in the emergency room.131 She rated her pain as a ten 14 out of ten.132 Dr. Graff’s diagnosis was osteoarthritis.133 He noted that there were “[n]o red flags” 15 and refilled her prescription for Norco.134 16 17 18 19 20 21 22 23 24 25 26 27 28 120 AR 370. 121 AR 369. 122 AR 371. 123 AR 362. 124 AR 364. 125 AR 362. 126 AR 363. 127 AR 363−65. 128 AR 355. 129 130 131 Id. Id. Id. 132 AR 355−57. 133 AR 356 134 AR 356, 358. ORDER – No. 18-cv-06122-LB 12 1 On May 27, 2013, the plaintiff presented for a refill of her pain medication.135 She had dull, 2 throbbing pain in her knee, and her symptoms were “severe.”136 Her condition was exacerbated by 3 movement and walking and was relieved by prescription medications.137 Dr. Graff’s diagnosed her 4 with joint pain.138 He noted that a hospital report showed “multiple MDs rx opiates.”139 He 5 “confronted [the plaintiff] and [she] underst[ood] no more pain meds from the emergency 6 department.”140 He prescribed her 12 tablets of Norco.141 On July 7, 2013, the plaintiff entered the emergency department with “shooting” pain in her United States District Court Northern District of California 7 8 back and right leg after “falling off” two steps of stairs the previous day.142 David A. Wei, M.D., 9 treated her.143 She reported a pain level of “9/10” and said that she had run out of Norco three days 10 before and her primary-care physician was out of town.144 An examination of her back “included 11 findings of [a] normal inspection[.]”145 She had a “normal range of motion, despite some 12 tenderness.”146 She had a normal range of motion in her lower extremities.147 She “tolerated the 13 [procedure] well.”148 Dr. Wei diagnosed her with a “back pain injury” and recommended back 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 135 136 137 138 139 140 AR 348. Id. Id. AR 349. Id. Id. 141 AR 351. 142 AR 340. 143 AR 339. 144 AR 340. 145 AR 341. 146 147 148 Id. Id. AR 343. ORDER – No. 18-cv-06122-LB 13 1 exercises.149 She was administered Norco (hydrocodone Bit/Acetaminophen) and given a 2 prescription for 20 “10mg−325mg” tablets.150 On July 11, 2013, the plaintiff reported that she “was walking [on] the patio, [the] patio broke United States District Court Northern District of California 3 4 and her foot got caught between the wood[,]” and she “pass[ed] out for [an] unknown amount of 5 time.”151 She reported low-back pain and head pain.152 At the emergency department, she was 6 ambulatory.153 She rated her pain as a ten out of ten and said that she “put on braces to her legs to 7 deal with the pain.”154 Dr. Graff found that her back and right leg were “tender to palpation” but 8 that she had a full range of motion.155 Her X-rays were “normal.”156 They revealed no acute 9 findings: the plaintiff had degenerative change and osteophytes in her right knee, a mild 10 degenerative disc in her L3 L4 vertebrae, and no fracture or dislocation in her ankle.157 Dr. Graff 11 diagnosed the plaintiff with a back strain and a knee contusion.158 He prescribed 12 tablets of 12 Norco and noted that the plaintiff received 20 tablets of Norco at the emergency department “just 13 this weekend.”159 Armando Samaniego, M.D., examined the plaintiff on August 1, 2013.160 The plaintiff 14 15 reported pain in her right knee at a level of “8/10.”161 Her condition was exacerbated by 16 walking.162 She requested a refill of her pain medication because her primary-care physician was 17 18 19 20 21 22 23 24 25 26 27 28 149 AR 343–44. 150 AR 344. 151 AR 324, 327. 152 AR 327. 153 Id. 154 AR 324. 155 AR 325. 156 AR 326. 157 AR 335–37. 158 AR 326. 159 AR 326, 330. 160 AR 315. 161 162 Id. Id. ORDER – No. 18-cv-06122-LB 14 1 out of town.163 She was “unable to take ibuprofen because [it] cause[d] [her] stomach [to be] 2 upset,” but Norco did not have those side effects.164 He diagnosed her with knee pain and a knee 3 contusion and dispensed one Norco pill.165 On August 26, 2013, the plaintiff went to the emergency department after she fell through a United States District Court Northern District of California 4 5 “patched hole” on the second floor of her apartment complex.166 She reported dull pain at a level 6 10 radiating from her right hip to right foot that was relieved by “nothing.”167 She was “running 7 out of [] pain medication.”168 A nursing assessment noted that she arrived ambulatory with a 8 steady gait and appeared in distress due to pain.169 An inspection of her right lower extremity 9 resulted in findings of numbness and signs of infection.170 Edris Afzali, M.D., diagnosed her with 10 joint pain in her ankle and foot.171 He prescribed 12 tablets of Norco.172 The plaintiff refused to 11 wait to get fitted for a postop-shoe and left the emergency department.173 On October 2, 2013, the plaintiff went to the emergency department using a crutch and 12 13 complained of pain and swelling in her right leg.174 She told Tan Nguyen, M.D., that she “was sent 14 [t]here by Dr. Cheung to get a long leg brace for her right leg that was injured in a fall from the 15 balcony of her apartment complex on July 11, 2013.”175 Dr. Nguyen found that both the plaintiff’s 16 “knee and ankle [had] good ROM[,]” with mild swelling in her right ankle.176 Dr. Nguyen called 17 18 19 20 21 22 23 24 25 26 27 28 163 164 Id. Id. 165 AR 317−319. 166 AR 309. 167 AR 307, 309. 168 AR 307. 169 AR 309. 170 Id. 171 AR 308. 172 AR 310. 173 Id. 174 AR 301, 303. 175 AR 300−301. 176 AR 301. ORDER – No. 18-cv-06122-LB 15 1 Dr. Cheung, who “said he did not tell the patient to come to [the] ER for [a] long leg splint” and 2 that “she might have [had,] at most an ankle sprain, which would not need a long leg splint.”177 3 Dr. Nguyen recommended an X-ray of the plaintiff’s ankle, tibia and fibula.178 The plaintiff agreed 4 but left immediately against medical advice.179 5 Norman Cheung, M.D. — Treating 6 The plaintiff saw Norman Cheung, M.D., an orthopedist, from April 16, 2012 to December 1, 7 2014 for pain in her lower extremities.180 Dr. Bhandari referred the plaintiff to Dr. Cheung.181 Dr. 8 Cheung treated the plaintiff, among other things, by injecting corticosteroid into the plaintiff’s 9 knees.182 On April 16, 2012, Dr. Cheung ordered an MRI.183 On August 10, 2012 and October 2, 2012, 10 United States District Court Northern District of California 11 he recommended that the plaintiff get X-rays.184 On August 19, 2014, the plaintiff, who received a cortisone injection in May, reported to Dr. 12 13 Cheung that the pain in her knees was returning.185 On examination, the plaintiff’s gait was 14 normal, and her right knee had a “full range of motion with pain,” “no instability,” and mild 15 tenderness from palpation on the medial jointline, lateral jointline and peripatellar.186 Her right 16 ankle had no ecchymosis or redness, “minimal to mild swelling[,]” and “mild tenderness to 17 palpation [of the] lateral ligaments.”187 Dr. Cheung diagnosed her with a “sprain and strain of [the] 18 19 20 21 22 23 24 25 26 27 28 177 178 179 180 Id. AR 302−304. Id. AR 527–548, 554–573. The records of this treatment contain hand-written notes that are illegible. 181 AR 535–539. Letters from Dr. Cheung addressed to Dr. Bhandari state, “Dear Dr. Bhandari, Bhupinder… Thank you for allowing me to see your patient, [the plaintiff] …Thank you again for your kind referral.” 182 AR 528–529, 531. 183 AR 548. 184 AR 540, 545. 185 AR 528. 186 187 Id. Id. ORDER – No. 18-cv-06122-LB 16 1 tibiofibular (ligament) [and] primary localized osteoarthritis, lower leg.”188 He administered a 2 cortisone injection in her right knee and gave her an ankle brace.189 The plaintiff asked for a refill 3 of her Norco prescription, but Dr. Cheung said she could not receive narcotics from two medical 4 providers and noted that the CURES report showed that Dr. Rowley prescribed her 120 tablets of 5 Norco on July 31, 2014.190 He scheduled a follow-up appointment in six weeks.191 On September 24, 2014, the plaintiff reported that her right knee felt better after an injection in United States District Court Northern District of California 6 7 August, but her right ankle hurt and she wanted surgery.192 Dr. Cheung found that the plaintiff’s 8 knees were “stable,” she was walking “without an assisted device,” and she had “pain on palpation 9 diffusely.”193 He diagnosed her with “primary localized osteoarthritis.”194 He administered a 10 cortisone injection in her left knee and recommended podiatry.195 He reviewed her medications 11 with her, “taking Norco 5-325 MG Tablet[,] 1 tablet as needed every 8 hrs.”196 12 On December 1, 2014, the plaintiff complained of pain in her left knee.197 He diagnosed her 13 with primary localized arthritis in her left leg.198 Dr. Cheung said he could not give her another 14 cortisone injection because it was too soon after the September 24 injections.199 Her records 15 reflected the same Norco prescriptions.200 16 17 18 19 20 21 22 23 24 25 26 27 28 188 189 AR 529. Id. 190 Id. CURES is an acronym for California’s Controlled Substance Utilization Review and Evaluation System. CURES contains, among other things, the records of all prescriptions for controlled substances dispensed in California. See United States of America v. State of California, No.: 18cv2868-L-MDD, 2019 WL 2498316, at *1 (S.D. Cal. Mar. 5, 2019). 191 192 193 194 195 196 197 198 199 200 Id. AR 531. Id. Id. Id. Id. AR 533. Id. Id. Id. ORDER – No. 18-cv-06122-LB 17 Hayward Family Care — Treating United States District Court Northern District of California 1 2 The plaintiff was treated at Hayward Family Care from May 2014 to November 2016.201 3 On May 6, 2014, PA Linda Deivert reported that the plaintiff “was on a second story patio 4 which collapsed in [July 2013 and] injured her right shoulder, knees, and back.”202 The plaintiff 5 had “severe pain since the accident.”203 She took “Norco 325 10-mg dose 4 times per day, 6 tramadol and medication for sleeping.”204 PA Deivert diagnosed the plaintiff with a backache, and 7 noted she would “continue care with Drs. Cheung and Hua” and continue Norco and tramadol.205 8 On June 5, 2014, the plaintiff followed up with PA Deivert about back pain from her fall from her 9 second story patio.206 The plaintiff “[h]ad an MRI which was abnormal” and “Dr. Hua [had] 10 recommended surgery, possibly a laminectomy.”207 PA Deivert referred her to a neurosurgeon “for 11 a second opinion concerning lumbar surgery” and told her to continue Norco, zolpidem, and 12 tramadol.208 On June 23, 2014, the plaintiff saw Robert Rowley, M.D..209 The plaintiff was “using 13 14 hydrocodone regularly [] for pain from [a] fall, including headaches, sensation of blurred vision 15 and eyes hurting, and right-sided pain.”210 She used a cane for assistance.211 She complained of 16 depression.212 “A neurosurgeon [was] planning on doing interventions on [her] L-spine and C- 17 18 19 20 21 22 23 24 25 26 27 28 201 AR 574–633, 713–803. 202 AR 596. 203 204 205 206 207 208 209 210 211 212 Id. Id. Id. AR 594. Id. Id. AR 593. Id. Id. Id. ORDER – No. 18-cv-06122-LB 18 1 spine.”213 Dr. Rowley “[d]iscussed risks of worsening of dependence and addiction with continued 2 use of Norco as a monotherapy.”214 He diagnosed the plaintiff with major-depressive disorder in a 3 single episode and a backache and prescribed naproxen for inflammation and sertraline 4 hydrochloride for depression.215 On July 16, 2014, the plaintiff saw Raul Gentini, M.D., after cutting her finger on a blender.216 United States District Court Northern District of California 5 6 She had a small one-centimeter laceration on her right fingertip.217 She had “no pain in [her] 7 muscles or joints, no limitation of range of motion[, and] no paresthesia or numbness.”218 She 8 asked for Norco for “pain control.”219 Dr. Gentini noted that she had a prescription on July 3, and 9 the plaintiff said that she had not picked it up yet.220 He diagnosed the plaintiff with “Laceration of 10 finger, Major depressive disorder, single episode [to a] severe degree, [and a] Backache.”221 He 11 prescribed Keflex.222 12 On July 31, 2014, the plaintiff had swelling and pain in her lower extremities and also 13 complained of heartburn and nausea.223 PA Deivert diagnosed the plaintiff with “Insomnia, [a] 14 Headache, Reflux Esophagitis [and] Lumbosacral radiculitis.”224 The plaintiff was told to continue 15 Norco and zolpidem and to start verapamil and omeprazole.225 16 17 18 19 20 21 22 23 24 25 26 27 28 213 214 215 216 217 218 219 220 221 222 223 224 225 Id. The record does not indicate this surgery happened. Id. Id. AR 591. Id. Id. Id. Id. Id. Id. AR 590. Id. Id. ORDER – No. 18-cv-06122-LB 19 United States District Court Northern District of California 1 On September 3, 2014, the plaintiff asked for a refill of Norco from Dr. Gentini because she 2 forgot her prescription in Oregon.226 She said she had scheduled back surgery that month.227 Dr. 3 Gentini did not prescribe Norco “this visit” (noting that her prescription was not due until 4 September 19) and recommended the plaintiff begin taking Naproxen for pain.228 He diagnosed 5 her with a “Backache, [] Insomnia, [] Major depressive disorder, single episode, severe degree, 6 without mention of psychotic behavior [and] Lumbosacral radiculitis.”229 7 On September 5, 2014, the plaintiff asked for a refill of Norco for her back and leg pain 8 because she forgot her pills in Oregon.230 PA Deivert declined to refill the prescription and 9 diagnosed her with “Lumbosacral radiculitis.”231 10 On October 3, 2014, the plaintiff asked to see a podiatrist because she had “right ankle pain 11 and numbness of the distal extremity and foot.”232 She used a cane to walk.233 The plaintiff had 12 “tenderness with palpation of [her] right lateral maleolus.”234 PA Deivert diagnosed the plaintiff 13 with ankle-joint pain. 235 She told the plaintiff that her “lower extremity, ankle, and foot symptoms 14 are probably related to the chronic back pain” and referred her to Dr. Ternus.236 On October 10, 2014, the plaintiff requested Norco, tramadol, and zolpidem prescriptions 15 16 because she was planning a trip to Canada.237 There was tenderness in the plaintiff’s right ankle, 17 18 19 20 21 22 23 24 25 26 27 28 226 227 228 229 230 231 232 233 234 235 236 237 AR 589. Id. Id. Id. AR 588. Id. AR 587. Id. Id. Id. Id. AR 586. ORDER – No. 18-cv-06122-LB 20 United States District Court Northern District of California 1 and she used a cane while walking.238 Dr. Gentini diagnosed her with “Combined opioid with 2 other drug dependence [and a] Backache unspecified.”239 He told her to continue tramadol and 3 gave her 120 Norco pills.240 4 On October 24, 2014, the plaintiff reported pain in her back and both lower extremities.241 She 5 said that Sherwin Hua, M.D., had recommended surgery, but she was seeking a second opinion.242 6 PA Deivert diagnosed the plaintiff with “Back and lower extremity pain post-fall, Insomnia, 7 Lumbosacral radiculitis, [and] Combined opioid with other drug dependence.”243 She prescribed 8 gabapentin and told the plaintiff to continue zolpidem and Norco.244 9 On October 24, 2014 the plaintiff said that “Dr. Hua, the neurosurgeon, was going to be on 10 vacation for one month.”245 The plaintiff “[c]ontacted [Hayward Family Care] on 10-30 stating 11 that [she] brought in all her pain medication to Dr. Tse, the pain medication specialist, but had lost 12 the medication in [Dr. Tse’s] office.”246 PA Deivert contacted both doctors and determined that 13 Dr. Hua was not on vacation and was not going on vacation, and the plaintiff had not been to Dr. 14 Tse’s office.247 On November 4, 2014, the plaintiff saw PA Deivert to discuss the use of pain medication.248 15 16 She “discussed with the [plaintiff] at length if [she] was having increased pain or was taking 17 medication for other reasons but [the plaintiff] did not reply.”249 PA Deivert told the plaintiff to 18 19 20 21 22 23 24 25 26 27 28 238 239 240 241 242 243 244 245 246 247 248 249 Id. Id. Id. AR 582. Id. Id. Id. AR 581. Id. Id. Id. Id. ORDER – No. 18-cv-06122-LB 21 1 continue naproxen and gabapentin and noted that she would check with the pharmacy about when 2 the plaintiff’s prescription for Norco was to be refilled.250 She also gave the plaintiff a “lab order 3 for fasting comprehensive metabolic panel, CBC, TSH, and a lipid panel.”251 On November 20, 2014, the plaintiff arrived wearing a brace and using a cane, reported United States District Court Northern District of California 4 5 increased pain in her left knee, and asked to see an orthopedist.252 Her shoulders and hips had no 6 tenderness and good ranges of motion.253 There was “no crepitus, tenderness or erythema” in her 7 knees, but there was “pain on palpation” in the left knee.254 Both ankles were normal and had a 8 good range of motion.255 PA Deivert “referred [her to] an orthopedist at Mission Peak” and told 9 her to continue Norco and zolpidem.256 10 On December 3, 2014, the plaintiff complained of back pain and asked for a refill of Norco.257 11 The plaintiff’s lower back had “no spasms or bony abnormalities[, a] decreased [range of motion] 12 and SI joint tenderness.”258 Dr. Gentini diagnosed her with “Low back pain [and] Opioid 13 dependence” and prescribed her 10 Norco pills.259 She returned two days later for “severe back 14 pain.”260 PA Deivert’s diagnosis was “Low back pain [and] Opioid dependence.”261 She instructed 15 the plaintiff to continue Norco and gabapentin.262 16 17 18 19 20 21 22 23 24 25 26 27 28 250 251 252 253 254 255 Id Id. AR 615−16. Id. Id. Id. 256 AR 615. See section 2.7 for the plaintiff’s treatment at Mission Peak. 257 AR 617–19. 258 AR 619. 259 AR 619−620. 260 AR 623. 261 262 Id. 623−624. ORDER – No. 18-cv-06122-LB 22 1 On January 30, 2015, the plaintiff said she had decided to forgo surgery and that she had 2 “chronic back pain with radiation to the lower extremities.”263 The plaintiff had scheduled an 3 epidural with Dr. Co Banh and had begun taking fluoxetine, which made her feel better.264 PA 4 Deivert diagnosed her with “Low back pain with radiation[,] Opioid dependence, [and] Depressive 5 disorder-Improved.”265 PA Deivert recommended she continue Norco and fluoxetine and see a 6 therapist.266 On March 4, 2015, the plaintiff said she had fallen “from the third stair of [a] stairway.”267 She United States District Court Northern District of California 7 8 complained of “trauma on her lower back and leg [] and [a] lack of energy.”268 Dr. Gentini 9 diagnosed her with “Low back pain,” instructed her to “stay active and return to normal activities, 10 limit bed rest,” and suggested “heat wrap therapy combined with short session ice therapy.”269 He 11 prescribed 30 tablets of baclofen.270 12 On December 7, 2015, the plaintiff told PA Deivert that while she “was supposed to be 13 working at the front desk of a hotel but instead was cleaning the bathrooms and doing laundry,” 14 “[a] cart flipped while she was pushing it,” and she had “chronic back and knee pain after a 15 fall.”271 She quit her job two weeks earlier but wanted “to try again without restrictions.”272 She 16 had “an appointment with Dr. Molina for knee injections.”273 There was “tenderness and pain on 17 palpation” in both knees and “tenderness on palpation” of her spine.274 PA Deivert’s diagnosis was 18 19 20 21 22 23 24 25 26 27 28 263 AR 719. 264 Id. See section 2.7 for Dr. Banh’s treatment of the plaintiff’s spine at Mission Peak. 265 266 267 268 Id. Id. AR 715. Id. 269 AR 715–16. 270 AR 715. 271 AR 793. 272 Id. 273 Id. See section 2.7 for Dr. Molina’s treatment of the plaintiff’s knees at Mission Peak. 274 AR 793. ORDER – No. 18-cv-06122-LB 23 1 “Low back pain [and] Knee pain[.]” PA Deivert gave the plaintiff a note saying the plaintiff could 2 return to work and said that she would follow up during the week “to determine if [the plaintiff] 3 had returned to work, filled out disability forms and had a return to work date.”275 She prescribed 4 the plaintiff hydrocodone-acetaminophen and amoxicillin.276 On February 11, 2016, the plaintiff asked PA Deivert for a disability note, stating “the last day United States District Court Northern District of California 5 6 she was able to work.”277 The plaintiff was “wearing bilateral knee braces.”278 She said that she 7 was injured at work and had “chronic back and knee pain after a fall from a second story 8 balcony.”279 “Mainly [she] was having knee pain.”280 The injections she received from Dr. Molina 9 “[had] not been not helpful.”281 PA Deivert diagnosed the plaintiff with “Fatigue, Knee pain [and] 10 Low back pain” and issued a note that said the plaintiff “was unable to work beginning on 11-14- 11 15.”282 She directed the plaintiff to “continue [her] care with Dr. Molina” and to continue 12 hydrocodone-acetaminophen. 283 13 On April 5, 2016, the plaintiff came to an appointment wearing dual knee braces and reported 14 that her ankle had been painful and swollen since November 14, 2016, when a laundry cart fell on 15 it.284 PA Deivert diagnosed the plaintiff with ankle and knee pain, told her to continue 16 hydrocodone-acetaminophen, and referred her for X-rays.285 17 18 19 20 21 22 23 24 25 26 27 28 275 AR 794. 276 AR 794−795. 277 AR 782−783. PA Deivert’s notes do not indicate any other details about the plaintiff’s request. 278 AR 784. 279 AR 783. 280 281 282 283 284 285 Id. Id. AR 784. Id. AR 774. Id. ORDER – No. 18-cv-06122-LB 24 On April 26, 2016, the plaintiff asked for a refill of her prescription for hydrocodone- 1 2 acetaminophen because she was going to Canada to see her chronically ill sister.286 She reported 3 that she had an appointment with Dr. Cheung in May.287 PA Deivert diagnosed the plaintiff with 4 “Knee pain, Low back pain, Opioid dependence [and] Insomnia” and advised her that she “could 5 not give her a refill of hydrocodone-acetaminophen at [that] time.”288 On May 31, 2016, the plaintiff asked for a refill of her hydrocodone-acetaminophen and United States District Court Northern District of California 6 7 gabapentin prescriptions.289 She “stated that [she] had a scheduled appointment with Dr. [Cheung] 8 in May . . . [but] his office never contacted her.”290 She was also fired from her job at the Holiday 9 Inn.291 She had “hired a lawyer and [would] be filing a [w]orkers’ compensation claim.”292 PA 10 Deivert diagnosed the plaintiff with “Knee pain, Low back pain, Dental caries, Opioid 11 dependence, Hyperglycemia [and] Hazy vision” and told her to see “Dr. Cheung as soon as 12 possible.”293 She directed the plaintiff to continue hydrocodone-acetaminophen and gabapentin 13 and to start amoxicillin.294 14 On June 22, 2016, the plaintiff asked for an early refill of pain medication from Dr. Gentini 15 because she had forgot her medication in Canada the week before.295 Dr. Gentini evaluated the 16 plaintiff’s psychiatric state as “active and alert,” “good judgment,” oriented “to time, place and 17 18 19 20 21 22 23 24 25 26 27 28 286 287 288 289 290 291 292 293 294 295 AR 772. Id. Id. AR 770. Id. Id. Id. Id. Id. AR 766–67. ORDER – No. 18-cv-06122-LB 25 1 person,” and normal recent and remote memory.296 He diagnosed her with “Knee pain and 2 Vitamin deficiency” and told her to continue hydrocodone-acetaminophen and amoxicillin.297 On August 26, 2016, the plaintiff said that she had begun seeing Darien Behravan, D.O., at United States District Court Northern District of California 3 4 Bay Area Pain and Spine Institute for shoulder and ankle pain resulting from a work-related 5 incident.298 She was wearing bilateral knee braces and using a cane.299 PA Deivert gave her a “lab 6 order for a fasting comprehensive metabolic panel, CBC, TSH, hemoglobin A1c, and a lipid 7 panel.”300 She advised the plaintiff to continue hydrocodone-acetaminophen and temazepam, and 8 to schedule “an appointment with Dr. Behravan specifically for chronic back and knee pain.”301 9 On September 20, 2016, PA Deivert asked the plaintiff why she had not discussed her back 10 and knee injuries with Dr. Behravan.302 “The [plaintiff] stated that Dr. Behravan did not accept her 11 insurance.”303 PA Deivert diagnosed her with knee and back pain, and insomnia.304 She prescribed 12 the plaintiff 30 tablets of temazepam for insomnia, 180 tablets of hydrocodone-acetaminophen for 13 her low back and knee pain, and 60 capsules of gabapentin.305 On October 12, 2016, the plaintiff asked PA Aryn Earnhardt for a replacement prescription of 14 15 Norco because her pharmacy was only able to fill half her prescription because it ran out of 16 Norco.306 Her pain from chronic sciatica and her fall in 2013 were terrible.307 Her back was 17 18 19 20 21 22 23 24 25 26 27 28 296 297 298 299 300 301 AR 768. Id. AR 761. Id. Id. Id. 302 AR 758. 303 AR 759. 304 305 306 307 Id. Id. AR 756. Id. ORDER – No. 18-cv-06122-LB 26 1 “killing her.”308 The plaintiff was ambulating normally, had “no contractures, malalignment, 2 tenderness or bony abnormalities and [had] normal movement of all extremities.”309 PA Earnhardt 3 called the pharmacy and was told that the plaintiff had been prescribed the full 180 tablets on her 4 refill date, September 21, 2016, and that the pharmacy “had problems with [the plaintiff] in [the] 5 past with going to different pharmacies and different providers.”310 PA Earnhart diagnosed the 6 plaintiff with “Chronic pain [and] Opioid dependence” and told her that no additional 7 prescriptions would be prescribed that day.311 On November 8, 2016, PA Deivert and the plaintiff discussed the provider’s policy on 8 9 10 controlled medications and the “qualities of addiction,” and she offered to contact the plaintiff’s insurance “concerning [a] program for opioid addiction.”312 Mission Peak Orthopaedics (Spine-and-Knee Injections) — Treating United States District Court Northern District of California 11 The plaintiff had treatment for her spine and knees at Mission Peak from November 2014 to 12 13 June 2016.313 For her spine, she had a single round of bilateral-transforaminal-epidural steroid 14 injections administered by Co Bahn, M.D., on December 12, 2014, and she was prescribed various 15 medications.314 She had a series of bilateral-cortisone injections administered to her legs by 16 Ricardo Molina, M.D., from December 2014 to June 2016.315 The next paragraphs provide more 17 detail about this treatment. In an initial consultation on November 18, 2014, with PA Victoria Tung, the plaintiff 18 19 described her fall from her patio and the pain she experienced.316 The pain was “sharp, burning [] 20 21 22 23 24 25 26 27 28 308 309 310 311 Id. Id. AR 757. Id. 312 AR 754. 313 AR 634–645, 675–712. 314 AR 640. 315 AR 702–706, 675, 677. 316 AR 643. ORDER – No. 18-cv-06122-LB 27 1 and constant,” and she had “numbness and weakness in her lower extremities.”317 On examination, 2 there was “moderate tenderness to palpation of the lumbar spine[,]” “moderate pain on palpation 3 of the bilateral lumbar paraspinal and bilateral gluteus musculature, left greater than right[,]” a 4 “mild restriction of range of motion for all planes,” the plaintiff’s “straight leg raise [was] positive 5 bilaterally,” and her strength in her lower extremities was “4/5 on right dorsiflexion.”318 She could 6 not “stand on [her] heels and toes due to pain in the lower extremities.”319 An MRI take of the 7 plaintiff’s lumbar spine on May 13, 2014 showed the following: [E]qual and suturing of the lumbar vertebrae. The L5-S1 disc is moderate to markedly narrowed with degenerative endplate changes and circumferential 3-mm to 5-mm disc bulge and osteophyte, greater in the midline. There is a 5% spinal canal stenosis and 25−50% bilateral recess and foraminal narrowing at L5-S1. Osteophytes contact both S1 nerve roots in the lateral recesses at L5-S1. At L4-4, there is 25% central canal stenosis, and 25% foraminal narrowing.320 8 9 10 United States District Court Northern District of California 11 12 The plaintiff elected “to proceed with bilateral L5-S1 transforaminal epidural steroid 13 injections.”321 No medications were prescribed but she could “continue with Norco 10/325 [] and 14 tramadol 50 mg [] as needed.”322 Dr. Banh administered the injections on December 12, 2014.323 15 On December 2, 2014, Dr. Molina had an initial consultation with the plaintiff for knee 16 pain.324 The plaintiff recounted her history (falling through a balcony floor and having knee 17 surgery on May 11, 2011) and said she had “difficulty walking or standing for more than twenty 18 minutes at time.”325 Her medications were “Norco, gabapentin and tramadol.”326 Both knees were 19 20 21 22 23 24 25 26 27 28 317 318 319 320 321 Id. AR 644. Id. Id. Id. 322 AR 645. 323 AR 640. 324 AR 641–42. 325 AR 641. 326 Id. ORDER – No. 18-cv-06122-LB 28 United States District Court Northern District of California 1 stable to varus and valgus stress, and she had a full range of motion.327 There was “medial joint 2 line tenderness[,] left great than right” in her lower-extremities and they were “[n]eurovascularly 3 intact distally.”328 Dr. Molina concluded from bilateral X-rays that the plaintiff had “mild-to- 4 moderate osteoarthritis” and “joint space narrowing” in both knees.329 He recommended “bilateral 5 knee cortisone injections” based on his “moderate degenerative findings” and administered the 6 injections that day, noting that he would “see her back in 3 to 4 months.”330 7 On January 7, 2015, the plaintiff saw PA Tung for a follow-up visit after receiving the 8 injections on December 12, 2014.331 The injections gave her “50–60% relief of her . . . lower 9 extremity pain,” and she had been able to decrease her use of Norco and tramadol.332 The plaintiff 10 said she took gabapentin with “no relief, and she had chest pressure and heart palpitations[.]”333 11 Her bilateral lower extremity pain [] improved and she “no longer ha[d] lower extremity weakness 12 or urinary incontinence.”334 An examination of her lumbar spine found: [M]inimal restriction in range-of-motion in all planes. There is minimal pain with flexion and extension, but no pain is elicited on palpation of the lumbar spine. There is mild pain on palpation of the bilateral lumbar paraspinal musculature. Straight-leg raise is positive bilaterally. Strength in bilateral lower extremities is full throughout. [The plaintiff] is able to momentarily stand on heels and toes, and she ambulates with an antalgic gait with the use of a cane.335 13 14 15 16 17 The plaintiff was to return in one month for another evaluation.336 18 19 20 21 22 23 24 25 26 27 28 327 328 Id. Id. 329 AR 641–42. 330 AR 642. 331 AR 634–36. 332 AR 634. 333 334 Id. Id. 335 AR 635. 336 AR 636 ORDER – No. 18-cv-06122-LB 29 On February 13, 2015, in a follow-up visit, with PA Tung, the plaintiff reported falling 1 2 backwards down a flight of stairs after a spell of dizziness.337 “Her pain began to return to a 3 moderate level (4-6/10) around the end of January 2015.”338 She had “severe difficulty 4 standing.”339 PA Tung’s findings from her examination were: 8 [A s]evere restriction in range-of-motion in all planes [ ] as well as inability for lumbar extension. There is severe pain with flexion and extension with severe pain elicited in palpation of the bilateral lumbar paraspinal musculature. Straight-leg raise is positive bilaterally. Strength in bilateral lower extremities is full throughout. The [plaintiff] is unable to stand beyond one minute, and she ambulates with an antalgic gait with the use of a cane.340 9 X-rays of her lumbar spine “show[ed] slight anterolisthesis of L5 on S1[,]” “[d]egenerative 5 6 United States District Court Northern District of California 7 10 changes [] throughout the lumbar spine[,]” and disc space narrowing at the L5-S1 disc space.341 11 PA Tung recommended physical therapy and gait-training to strengthen the plaintiff’s lower- 12 bilateral extremities.342 She prescribed the plaintiff 50 mg of tramadol, 120 tables of Norco, a 13 Medrol Pak, and 25 tablets of cyclobenzaprine for lumbar strain and muscle tightness.343 On March 10, 2015, Dr. Molina found that the plaintiff’s knees were stable to varus and valgus 14 15 stress, and she had a full range of motion in her lower extremities without crepitus. 344 Dr. Molina 16 administered another round of bilateral-steroid injections in the plaintiff’s knees on the same 17 day.345 18 On March 12, 2015, the plaintiff told PA Tung that her “her bilateral lower extremity pain 19 extend[ed] down to her ankle, and [was] more severe on the right.”346 There was severe restriction 20 21 22 23 24 25 26 27 28 337 338 339 340 341 342 343 AR 699. Id. AR 700. Id. Id. AR 701. Id. 344 AR 698. 345 AR 698, 706. 346 AR 695. ORDER – No. 18-cv-06122-LB 30 United States District Court Northern District of California 1 in range-of-motion in all planes, as well as inability for lumbar extension.347 There was severe 2 pain in her lumbar spine on flexion, extension, and palpation.348 PA Tung recommended physical 3 therapy and a second round of epidurals, but the plaintiff declined the injections.349 PA Tung 4 prescribed her 50 mg of tramadol, 180 Norco pills, a Medrol Pak, 25 cyclobenzaprine pills, and 30 5 amitriptyline pills for sleep.350 6 On April 9, 2015, the plaintiff had a follow-up visit with PA Tung.351 Her bilateral extremity 7 pain at the time was “9–10/10 with no alleviating factors [and m]uscle spasms in her back [were] 8 affecting her sleep.”352 PA Tung found a severe restriction in the range of motion in her back and 9 strength throughout her bilateral extremities.353 The plaintiff chose to not receive epidurals.354 PA 10 Tung strongly advised the plaintiff to begin physical therapy and prescribed her 50 mg of 11 tramadol, 180 Norco pills, a Medrol Pak, 25 cyclobenzaprine pills for muscle spasms, and 30 12 amitriptyline pills.355 On May 21, 2015, the plaintiff reported to Dr. Molina that she had acute knee pain.356 The 13 14 plaintiff reported “difficulty sleeping because of the pain and difficulty standing or walking for 15 more than 20 minutes.”357 He diagnosed her with moderate osteoarthritis and administered steroid 16 injections to her knees that day.358 He did not prescribe any medications.359 17 18 19 20 21 22 23 24 25 26 27 28 347 348 349 350 351 352 AR 696. Id. AR 697. Id. AR 691. Id. 353 AR 692. 354 AR 693. 355 356 357 Id. AR 689. Id. 358 AR 689, 705. 359 AR 689. ORDER – No. 18-cv-06122-LB 31 On June 2, 2015, the plaintiff saw Dr. Banh.360 She “never started the Medrol Pak or 1 2 amitriptyline prescribed to her because she actually discarded the medications.”361 Dr. Molina’s 3 cortisone injection gave her good relief.362 She complained of persistent pain that radiated down 4 her lower back to lower extremities.363 It started “8/10” in the morning and improved to “6/10 5 after she move[d] around.”364 She “cut down her use of Norco to 4 times per day.”365 An 6 examination of the plaintiff’s spine showed the following: 10 [M]oderate pain with lumbar flexion and extension. There is moderate pain on palpation of the bilateral lumbar paraspinal musculature, left greater than right. There is moderate pain on palpation of the right greater trochanter. Straight-leg raise is positive bilateral. Strength in the bilateral lower extremities is full throughout. The [plaintiff] ambulates with an antalgic gait and she is not using a cane today.366 11 Dr. Banh’s diagnosis was “Lumbar spinal stenosis, Levoscoliosis of the lumbar spine, Lumbar 12 radiculopathy, Gait abnormality and Lumbar strain.”367 He recommended that the plaintiff receive 13 another round of epidurals and recommended physical therapy.368 They had a “long discussion 14 regarding the use of her narcotic pain medication” and he advised her to reduce her use of the 15 medication.369 He prescribed her 120 Norco pills and 60 Flexeril pills.370 7 8 United States District Court Northern District of California 9 16 17 18 19 20 21 22 23 24 25 26 27 28 360 AR 686–688. 361 AR 686. 362 363 364 365 366 367 368 369 370 Id. Id. Id. Id. AR 687. Id. Id. Id. AR 688. ORDER – No. 18-cv-06122-LB 32 On August 5, 2015, the plaintiff denied pain her lower left extremity and told PA Tung that 1 2 her “pain is worse in the morning at 8/10 and improved 6/10 with movement and activity.”371 The 3 6 plaintiff’s lumbar examination showed the following: [M]oderate pain with lumbar flexion and extension. There is moderate pain on palpation of the bilateral lumbar paraspinal musculature, left greater than right. There is no pain on palpation of the right greater trochanter. Straight-leg raise is negative bilaterally today. Strength in the bilateral lower extremities is full throughout. The [plaintiff] ambulates with an antalgic gait, and she is not using a cane today.372 7 PA Tung diagnosed the plaintiff with lumbar spinal stenosis, levoscoliosis of the lumbar spine, 8 lumbar radiculopathy, gait abnormality, and a lumbar strain.373 PA Tung recommended that the 9 she receive another round of epidurals, but the plaintiff declined.374 She prescribed the plaintiff 4 5 United States District Court Northern District of California 10 120 Norco pills and 60 Flexeril pills.375 11 The plaintiff received bilateral injections in her knees on September 17, 2015 and again on 12 December 15, 2015.376 In both appointments, the plaintiff reported “difficulty sleeping because of 13 the pain and difficulty standing or walking for more than twenty min[utes.]”377 Dr. Molina noted 14 both times that she had “moderate bilateral knee osteoarthritis.”378 15 On March 22, 2016 and June 21, 2016, the plaintiff saw Dr. Molina and reported that she had 16 difficulty sleeping because of pain and difficulty standing or walking for more than 20 minutes.379 17 She was experiencing acute knee pain (worse in her left knee) and some locking and popping in 18 19 20 21 22 23 24 25 26 27 28 371 AR 687. 372 AR 684. 373 374 Id. Id. 375 AR 685. 376 AR 679, 681, 704. 377 378 379 Id. Id. AR 675, 677. ORDER – No. 18-cv-06122-LB 33 1 her left knee.380 On both occasions, Dr. Molina recommended an MRI to rule out meniscal tears 2 and repeated the steroid injections in her knees.381 Eden Medical Center — Treating 3 The plaintiff visited the emergency room at Eden Medical Center multiple times between 4 United States District Court Northern District of California 5 January 2014 and November 2016.382 6 On January 19, 2014, the plaintiff complained of leg pain and was treated by Jonathan Scott 7 McWhorter, M.D..383 She felt like she had a foreign body in her left foot.384 Dr. McWhorter found 8 her to be a good historian.385 She “ran out of [] Vicodin and [did not] have an appointment with 9 [her] PMD for another few weeks.”386 She was negative for back pain, joint swelling, and leg 10 swelling and positive for arthralgia.387 The range of motion in her knee was “90 degrees with 11 minimal pain.”388 He noted that the plaintiff was prescribed “~260 pills of Norco/Vicodin” since 12 the “beginning of December” and advised checking again if the plaintiff requested prescriptions in 13 the future.389 He diagnosed her with “chronic pain, osteoarthritis[, and] drug seeking behavior” 14 and prescribed Norco and ibuprofen.390 15 On January 28, 2014, the plaintiff presented with left knee pain and was treated by PA David 16 King.391 Her left knee had moderate tenderness and normal strength and muscle tone.392 She was 17 18 19 20 21 22 23 24 25 26 27 28 380 Id. 381 AR 675, 677, 703. 382 AR 501–526, 804–902. 383 AR 504. 384 385 386 Id. Id. Id. 387 AR 505–06. 388 AR 506. 389 AR 507. 390 Id. 391 AR 514. 392 AR 516. ORDER – No. 18-cv-06122-LB 34 1 oriented to time and place and had a normal mood and affect.393 He administered Zofran and 2 hydromorphone and prescribed her 20 Norco pills.394 On April 21, 2014, the plaintiff reported consistent dull non-radiating pain in her right leg after United States District Court Northern District of California 3 4 “falling out of a second story last year” and requested a refill of her pain medication because her 5 treating physician was out of town.395 Amy Grubert, M.D., stated that the plaintiff “appeared well” 6 and found “no swelling over the right leg.”396 She diagnosed the plaintiff with right-leg pain and 7 discharged her with prescriptions of hydrocodone/acetaminophen and Norco.397 Dr. Grubert noted 8 that “[p]otential duplicate medications [were] found.”398 9 On September 12, 2015, the plaintiff returned for a refill of Norco.399 PA Daoud Hamidi 10 conducted a head-to-toe examination and “no injuries were found.”400 The plaintiff’s alignment 11 was good and there was no “significant evidence [of an injury] that would require immediate 12 surgical intervention.”401 “[O]ccult fractures, ligament injury, tendon injury, [and] cartilage injury 13 [had] been considered and [could not] be completely excluded.”402 He diagnosed her with “Pain of 14 the lower extremity…and abrasion, foot.”403 He prescribed 15 Norco pills.404 On March 6, 2016, the plaintiff saw Benjamin Meeks, M.D., for chronic bilateral-knee and 15 16 lower-back pain.405 Dr. Meeks found “diffuse tenderness to palpation in both knees” with no 17 18 19 20 21 22 23 24 25 26 27 28 393 Id. 394 AR 516−517. 395 AR 521. 396 AR 523. 397 398 Id. Id. 399 AR 809. 400 AR 811. 401 402 403 404 405 Id. Id. AR 812. Id. AR 837. ORDER – No. 18-cv-06122-LB 35 United States District Court Northern District of California 1 swelling, a good range of motion, and normal muscle tone.406 The plaintiff’s sensation was intact, 2 her “motor [was] 5 out of 5 to heel and toe raise,” and she had a “slight decreased range of motion 3 due to secondary pain.”407 She was alert and oriented to place and time, and she had a normal 4 mood and affect.408 Dr. Meeks reviewed the plaintiff’s CURES history and found that she received 5 other prescriptions for narcotic medications from other providers, in addition to the 120 to 180 6 tablets of Norco and Percocet a month she received from PA Deivert.409 He diagnosed her with 7 “Bilateral low back pain without sciatica [and] Chronic pain of both knees.”410 He prescribed 20 8 tablets of Norco.411 9 On November 9, 2016, the plaintiff reported “sharp, severe, constant, non-radiating” dental 10 pain.412 She denied a new injury or a change in back pain.413 She took ibuprofen with “minimal 11 relief” and hydrocodone with “good relief.”414 The plaintiff said she was a sales coordinator and 12 had two children.415 PA King diagnosed her with “Pain due to dental caries [and] Elevated blood 13 pressure.”416 PA King noted that the plaintiff was seen “multiple times in the past for pain related 14 complaints” and her CURES report showed “multiple narcotic pain medication prescriptions of 15 hydrocodone . . . in quantities of 180 every month [and] also multiple opiate prescriptions from 16 different providers.”417 Her record contained a pop-up note saying that she was “obtaining 17 18 19 20 21 22 23 24 25 26 27 28 406 407 408 AR 840. Id. Id. 409 AR 843. 410 AR 841. 411 412 413 414 415 Id. AR 732, 871. Id. Id. Id. 416 AR 875 417 AR 874–875. ORDER – No. 18-cv-06122-LB 36 1 controlled substances from different providers.”418 The plaintiff told PA King that she did not pick 2 up her most recent Norco prescription.419 She “show[ed] no clinical signs of opiate toxicity or 3 withdrawal.”420 PA King advised her that she would be given a prescription for pain medication 4 that day, but “in the future[,] she [would] not receive a prescription from the ED for opiate pain 5 medication (unless for acute injury or condition such as fracture) given prior frequent pain 6 medications [and] that she need[ed] to obtain future prescriptions for narcotic pain meds from a 7 single medical provider.”421 He dispensed her 8 Norco pills and 40 penicillin pills.422 She was also 8 “[a]dvised not to drive or operate heavy machinery while taking medication.”423 [The plaintiff] 9 verbalized understanding of this plan and agreed.”424 She said that she would “take the bus home 10 because her ride cancelled.”425 Darien Behravan, M.O. — Examining United States District Court Northern District of California 11 On July 28, 2016, Dr. Behravan, a workers’ compensation doctor, examined the plaintiff for a 12 13 shoulder injury that occurred on October 1, 2015 and an ankle injury on November 16, 2015.426 14 The plaintiff told him that she had sustained an injury to her right shoulder while working as a 15 front-desk associate at a Holiday Inn Express.427 She “hit her shoulder against an open door while 16 17 18 19 20 21 22 23 24 25 26 27 28 418 419 420 421 422 423 424 425 426 427 AR 875. Id. Id. Id. Id. AR 876. Id. Id. AR 743. Id. ORDER – No. 18-cv-06122-LB 37 1 she was walking out.”428 She did not see anyone for the injury, just her primary-medical 2 doctor.”429 “[T]he pain was tingling and constant” in her shoulder during the examination.430 3 Dr. Behravan found the following in an examination of the plaintiff’s right shoulder: Movements are painful with flexion beyond 170 degrees and abduction beyond 160 degrees. Neer, Hawkins, Empty Cans and shoulder crossover tests are negative. Belly press, Lift of tosses and Jobe tests are negative ruling out pathology of the glenoidal labrum. Apprehension test, anterior press test, posterior stress test and Jobe relocation test are negative ruling out any joint instability. Drop arm test is negative.431 4 5 6 United States District Court Northern District of California 7 8 Her right shoulder maneuvers were also “positive for AC joint crepitus and [her] spencer 9 maneuvers [were] restricted.”432 For her right elbow, he found that valgus and varus stress tests 10 were negative and “tenderness to palpation [was] noted over the lateral epicondyle.”433 He 11 diagnosed the plaintiff with “pain in right shoulder,” “other sprain of right shoulder,” and “other 12 bursitis of elbow.”434 He also found that she had various postural deficiencies.435 Dr. Behravan examined X-rays and MRI’s of the plaintiff’s knees, chest, and back from 2010, 13 14 2011 and 2012.436 X-rays of her knees from 2012 showed “osteoarthritis of the right patellar 15 femoral joint, [and] mild degenerative changes of the medial compartments.”437 An MRI of her 16 right knee from 2011 showed “slight blunting of the medial meniscal edge, mild chronic 17 chondromalacia patella[,] and bursitis in the right knee.”438 An MRI of her spine from 2010 18 showed an “annular disc bulge with left paracentral protrusion and peripheral annular fissure at 19 20 21 22 23 24 25 26 27 28 428 429 430 431 432 433 434 435 436 437 438 Id. Id. Id. AR 745. Id. Id. Id. Id. Id. Id. Id. ORDER – No. 18-cv-06122-LB 38 United States District Court Northern District of California 1 L5 S1, resulting in moderate narrowing of the central canal and bilateral foramina; an extension 2 of disc into left S1 lateral recess with abutment of the descending left S1 nerve root; another bulge 3 with focal central protrusion at L4 5 resulting in moderate narrowing of the central canal and mild 4 to moderate bilateral foraminal encroachment; and [an] annular bulge with focal central 5 protrusions and hypertrophy of the ligament flavum at L3 4, resulting in mild moderate narrowing 6 of the central canal and mild bilateral neural foraminal stenosis.”439 7 Dr. Behravan recommended that the plaintiff “continue with work restrictions of no pushing, 8 pulling or lifting over 15 pounds with the right hand and no lifting above shoulder level with the 9 right hand more than 1/3 of the shift[,]” attend “an aggressive course of physical 10 therapy…dedicated to the right shoulder and elbow[,]” lose weight, and if the pain continued, 11 receive “stem cell therapy or PRP injection into the right shoulder.”440 Kim Goldman, Psy.D. — Examining 12 On February 18, 2015, Kim Goldman, Psy.D., performed a psychological evaluation on the 13 14 plaintiff, using the Wechsler Adult intelligence Scale IV and the Wechsler Memory Scale IV, in 15 Hayward, California.441 The plaintiff “was driven to the appointment by a friend.”442 She was identified by her driver’s 16 17 license.443 “She independently completed a preprinted five-page history form.”444 18 [S]he was born in the Fiji Islands and came to the United States 30 years ago. She had been married once and was widowed five years ago. She has two children, ages 7 and 20. She lives with her children in an apartment. Her source of income is general assistance and food stamps. Her older child is employed as a security guard.445 19 20 21 22 23 24 25 26 27 28 439 AR 746. 440 AR 746–47. 441 AR 671–74. 442 AR 671. 443 444 445 Id. Id. AR 671–72. ORDER – No. 18-cv-06122-LB 39 The plaintiff complained that she was “very depressed, emotional,” “had black outs” “[the] 1 2 desire to sleep a lot[,]” and “[was] unable to sleep at night.”446 She began to experience the 3 symptoms “after she injured herself in a fall from a second-floor window.”447 The plaintiff’s educational and vocational history were as follows: 4 [The plaintiff] is a high school graduate. She was never in special education classes in high school. She received a B grade average. She holds an associate’s degree in hotel hospitality. She worked at a hotel in customer service. The longest time she stayed at one job was over the course of 15 years on a full-time basis in hotel customer service. The job ended eight years ago. “My husband was sick. I quit. I was taking care of him.” She has not worked since reportedly due to depression.448 5 6 7 8 The plaintiff described her daily functioning.449 She “stopped driving 2–3 years” before.450 She United States District Court Northern District of California 9 10 was “able to shower, bathe, groom, and dress herself without help” and could “pay bills and keep 11 track of money without help from other people.”451 The plaintiff said that she could not do much 12 with her current condition: “I can’t move[;] I like to sit in the sun.”452 She “was prescribed an 13 unknown type of psychotropic mediation by a provider through Hayward Family Care reportedly 14 due to depression…[which] helps [her] get things done in the absence of negative side effect.”453 Dr. Goldman found that the plaintiff “presented as a questionable historian.”454 The plaintiff 15 16 was “pleasant, but only superficially[,] and cooperative throughout the evaluation.”455 She 17 followed instructions without the need for clarification or repetition but “did not make an adequate 18 effort on the tasks presented to her.”456 She was coherent, the rate of her speech was normal, her 19 20 21 22 23 24 25 26 27 28 446 447 448 449 450 451 452 453 AR 671. Id. AR 672. Id. Id. Id. Id. Id. 454 AR 671. 455 AR 672. 456 AR 673. ORDER – No. 18-cv-06122-LB 40 1 verbalizations were clear and 100% intelligible, and she was alert and aware. 457 Dr. Goldman 2 canceled the evaluation because, although the plaintiff paid attention to instructions, “she appeared 3 to make a volitional effort to simulate cognitive impairment.”458 Thus, although she found that the 4 plaintiff had several disorders, Dr. Goldman deferred her testing because of “malingering.”459 Disability Determination Explanation 5 During the administrative process, non-examining doctors generated two disability United States District Court Northern District of California 6 7 determination explanations (“DDE”), one related to the plaintiff’s initial application and one at the 8 reconsideration level. 9 At the initial level, Tawnya Brode, Psy.D., analyzed the plaintiff’s mental-health records and 10 concluded that the plaintiff had an affective disorder rated as severe, but that this impairment did 11 not “precisely satisfy the diagnostic criteria of 12.04.”460 She noted that there was evidence that 12 the plaintiff was “depressed and [had] some difficulties regard[ing] memory and concentration.”461 13 The plaintiff did not provide sufficient evidence for the ‘B’ or ‘C’ criteria of the listings.462 14 She also failed to put forward sufficient medical or opinion evidence to evaluate her residual 15 functional capacity (“RFC”) and thus was determined “not disabled.”463 16 On reconsideration, Kim Morris, Psy.D., found that there was insufficient evidence to 17 substantiate “organic mental disorders” and an impairment was present that did not precisely 18 satisfy the diagnostic criteria for “affective disorders” in the ‘A’ criteria listings.464 There was also 19 insufficient evidence to establish ‘B’ or ‘C’ criteria listings.465 20 21 22 23 24 25 26 27 28 457 458 Id. Id. 459 AR 674. 460 AR 61. 461 462 Id. Id. 463 AR 62. 464 AR 73 465 Id. ORDER – No. 18-cv-06122-LB 41 Linda Pancho, M.D., assessed the plaintiff’s RFC.466 She found that the plaintiff could do the 1 2 following: occasionally lift or carry twenty pounds; frequently lift or carry ten pounds; stand or 3 walk six hours out of an eight-hour work day push or pull an unlimited amount; and climb 4 ramps/stairs, climb ladders/ropes/scaffolds, and balance, stoop, kneel, crouch, or crawl only 5 occasionally.467 She found that the plaintiff did not have any manipulative, visual, communicative 6 or environmental limitations.468 The plaintiff was determined not disabled.469 7 8 3. Administrative Hearing The plaintiff’s testimony 9 On February 1, 2017, the plaintiff testified at a hearing before the ALJ.470 The ALJ examined 10 United States District Court Northern District of California 11 the plaintiff first. 12 The ALJ asked the plaintiff whether she was working, and if so, whether it was full or part- 13 time.471 The plaintiff was working part-time, making $1,000 a month.472 She took pain medication 14 for her knees and back.473 When asked about reported self-employment income in 2015, the 15 plaintiff said that she was part of a trucking company in 2015, but she “never saw that money, 16 [she] was just added on the business.”474 It was her husband’s business, but he died and she could 17 not operate it herself because of her health.475 18 19 20 21 22 23 24 25 26 27 28 466 AR 74–76 467 AR 74−75. 468 AR 75. 469 AR 76. 470 AR 38–53. 471 AR 43. 472 AR 45. 473 AR 44. 474 475 Id. AR 44–45. ORDER – No. 18-cv-06122-LB 42 The plaintiff worked twenty-five to thirty hours a week in a hotel as a PBX operator (one who United States District Court Northern District of California 1 2 routes incoming calls to the correct department of a business).476 The plaintiff’s jobs the year 3 before were the same, but she could not manage them full time because standing was difficult for 4 her due to her sore knee “all the time.”477 When asked whether she could sit and whether sitting 5 caused her trouble, the plaintiff responded “[w]ell, I could sit for a little bit and then I have to get 6 up because I have a back issue as well.”478 7 The plaintiff’s attorney examined her next. The plaintiff “made about $1000 a month.”479 Her 8 knee pain was worse than her back.480 She worked at the front desk, usually for eight hours a day, 9 and had to stand three to four times a day and “they let [her] sit and… move around.”481 Her pain 10 level was the worst when she got home from work and that is when she needed “to take a pain 11 pill.”482 After she took the pain pill, her pain level was “about five to six.”483 The plaintiff did not 12 take her pain medication at work because it would make her fall asleep.484 Sometimes her pain 13 worsened throughout the work day.485 The plaintiff used a cane to climb the stairs at work and at home and wore knee braces 14 15 (prescribed by a doctor) all the time.486 When asked whether she saw a doctor, and if so, whether 16 the doctor knew that she had returned to work, the plaintiff replied that she had “a very good 17 doctor” who was “very concerned about [her] working.”487 The plaintiff stopped working in April 18 19 20 21 22 23 24 25 26 27 28 476 AR 45. 477 AR 45−46. 478 AR 46. 479 Id. 480 AR 48. 481 AR 48–49. 482 AR 49. 483 484 485 486 487 Id. Id. AR 50. Id. AR 50–51. ORDER – No. 18-cv-06122-LB 43 1 2011.488 In response to a question about whether her pain caused her difficulty focusing, the 2 plaintiff responded that “[her] pain gets so bad that [she] has to crawl on the floor sometimes.”489 3 The onset of her disability was May 3, 2011, when she had her knee arthroscopy.490 Vocational Expert Testimony 4 The VE classified the plaintiff's work from 1993 to 2011 as “a hotel clerk.”491 When ALJ 5 6 asked the VE to characterize “the hotel work in vocational terms,” the VE said that the “DOT code 7 [is] 238.367-038, exertion level is light, and SVP is 4.”492 The VE said that the plaintiff’s other job 8 was “a PBX or a telephone switchboard operator…DOT code 235.662, exertion level [] sedentary 9 and the SVP is 3.”493 He testified that some but not all PBX or telephone switchboard operators 10 are permitted to sit and stand at will, “especially if they have headsets.”494 Administrative Findings United States District Court Northern District of California 11 The ALJ followed the five-step sequential evaluation process to determine if the plaintiff was 12 13 disabled and concluded that she was not.495 At step one, the ALJ found that the plaintiff “did not engage in work activity commensurate 14 15 with substantial gainful activity from April 2011 until November 2016.”496 16 At step two, the ALJ determined that the plaintiff had the following severe impairments: 17 “osteoarthritis of the knees, morbid obesity, opioid dependence, degenerative disc disease, and 18 affective disorders with diagnoses including depression.”497 19 20 21 22 23 24 25 26 27 28 488 489 AR 51. Id. 490 AR 52–53. 491 AR 54. 492 493 494 Id. Id. Id. 495 AR 15–29. 496 AR 19. 497 Id. ORDER – No. 18-cv-06122-LB 44 1 The plaintiff “initially alleged the severe impairments of traumatic brain injury, a damaged 2 right leg, and arthritis of the knee, a back injury, depression, chronic severe headaches, fatigue and 3 insomnia” and “later alleged [] bilateral knee osteoarthritis, lumbar degenerative disc disease, 4 anxiety and depression.”498 Regarding these alleged impairments the ALJ held: 5 Pain, fatigue and insomnia are signs of symptoms, not medically determinable impairments. Lumbago and sciatica are Latin words for different types of pain. Traumatic brain injury, chronic severe headaches, and a damaged right knee are not established as medically determinable impairments in this case. Nevertheless, neither those conditions nor medically determinable impairments including hyperlipidemia, hypertension, history of gastric bypass in 2004, dental caries, are not severe impairments because there is no probative evidence that limitations from these impairments lasted more than twelve months, or there is simply no evidence that they more than minimally affect the claimant’s ability to perform basic work functions.499 6 7 8 9 United States District Court Northern District of California 10 11 The ALJ found that obesity was a severe impairment “when combined with the musculoskeletal 12 impairments.”500 The ALJ stated the following of substance abuse: 13 With or without substance use during the relevant period, the record does not support a finding of a more reduced residual functional capacity than assessed herein for any twelve-month period or of disability as defined by the Social Security Act; accordingly, a substance dependence disorder is not found to be a factor material to a determination of disability in this case.501 14 15 16 17 18 19 At step three, the ALJ held that none of the plaintiff’s impairments or combination thereof met or medically equaled the severity of those listed in “C.F.R. Part 404, Subpart P, Appendix 1 for the requisite period (20 C.F.R. § 404.1520(d), 404.1526).”502 20 21 The ALJ found that the plaintiff did not meet the requirements of Listing Section 1.03 because of the following: 22 23 24 25 26 27 28 498 499 500 501 502 AR 20. Id. AR 19. Id. AR 20. ORDER – No. 18-cv-06122-LB 45 3 The evidence must show reconstructive surgery or surgical arthrodesis of a major weight-bearing joint with an inability to ambulate effectively, and a return to effective ambulation did not occur or is not expected to occur within twelve months of onset. The claimant is not unable to ambulate effectively within the meaning of the regulation, and her condition does not meet or equal the criteria of Section 1.03.503 4 The ALJ ruled that plaintiff’s spinal impairment did not meet the criteria of Listing Section 1 2 5 1.04 for the following reason: 6 [A] disorder of the spine must be corroborated by medically acceptable clinical and imaging studies supporting evidence of compromise of a nerve root (including cauda equina) or the spinal cord with: evidence of nerve root compression characterized by neuro-anatomic distribution of pain, limitation of motion of the spine, motor loss (atrophy with associated muscle weakness or muscle weakness) accompanied by sensory or reflex loss and, if there is involvement of the lower back, positive straightleg raising test (sitting and supine); or spinal arachnoiditis, confirmed by an operative not or pathology report of tissue biopsy, or by appropriate medically acceptable imaging, manifested by severe burning or painful dysesthesia, resulting in the need for changes in position or posture more that once every two hours; or lumbar spinal stenosis resulting in pseudo-claudication, established by findings on appropriate medically acceptable imaging, manifested by chronic non-radicular pain and weakness, and resulting in inability to ambulate effective, as defined in 1.00B2b. The medical evidence of record does not support a finding that the claimant’s spinal impairment meets or equals the criteria of Listing Section 1.04.504 7 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 The ALJ held that the plaintiff’s mental impairment did not meet or equal the severity required in Listing Section 12.04 or any section.505 18 19 To satisfy the criteria in “paragraph B,” the plaintiff’s mental impairment had to result in at least one extreme or two marked limitations in the following areas of functioning: Understanding, remembering, or applying information; interacting with others; concentrating, persisting, or maintaining pace; or adapting or managing themselves. A marked limitation means functioning in this area independently, appropriately, effectively, and on a sustained basis is seriously limited. An extreme limitation is the inability to function independently, appropriately or effectively, and on a sustained basis.506 20 21 22 23 24 25 26 27 28 503 Id. 504 AR 20–21. 505 AR 21. 506 Id. ORDER – No. 18-cv-06122-LB 46 1 The ALJ found that in “understanding, remembering, or applying information, [the plaintiff] had 2 mild to moderate limitations[,]” that “[i]n interacting with others, the [plaintiff] has had no to mild 3 limitations[,]” and that “[w]ith regard to concentrating, persisting, or maintaining pace, [the 4 plaintiff] has had mild to moderate limitations.”507 The ALJ held that the plaintiff did not satisfy 5 the “paragraph B” criteria because her mental impairment “did not cause at least two ‘marked’ 6 limitations or one ‘extreme’ limitation.”508 He also said that he had considered whether the “paragraph C” criteria were satisfied but United States District Court Northern District of California 7 8 determined that they were not because the plaintiff had not submitted the requisite evidence to 9 make such a determination.509 10 Before step four, the ALJ determined that the plaintiff “had the residual functional capacity to 11 perform the full range of sedentary work, as defined in 20 C.F.R. § 404.1567(a), and [was] able to 12 perform simple routine tasks equating to unskilled work.”510 He considered “all symptoms and the 13 extent to which these symptoms [could] reasonably be accepted as consistent with the objective 14 medical evidence and other evidence[.]”511 He “considered opinion evidence in accordance with 15 the requirements of 20 C.F.R. § 404.1527 and SSRs 96-2p, 96-5p, 96-6p and 06-3p.”512 The ALJ determined that the plaintiff’s medically determinable impairments could reasonably 16 17 cause the alleged symptoms and that her statements concerning the intensity, persistence, and 18 limiting effects of these symptoms were not consistent with the medical evidence in the record.513 He said the following about the plaintiff’s statements concerning her impairments: 19 The claimant has denied significant side effects from her numerous prescribed medications. Although, as noted above, there is evidence of some adverse side- 20 21 22 23 24 25 26 27 28 507 508 Id. AR 22. 509 Id. According to the ALJ, such “paragraph C” evidence could consist of evidence of “mental health therapy, psychological support, or need for an ongoing, highly structured setting to diminish symptoms or signs of a mental disorder.” 510 511 512 513 Id. Id. Id. AR 23–28. ORDER – No. 18-cv-06122-LB 47 effects, there is no probative evidence to support a finding of a more reduced residual functional capacity for any twelve-month period on that basis. She alleged she was very emotional and experienced blackouts. As discussed above the claimant testified at the February 2017 hearing that she was working part-time as a telephone switching system operator at a hotel. She said she previously had returned to work in 2015 but had stopped. She explained that she was working to take care of her child, but that she experienced pain in her knee and back while working. The claimant said that she still takes pain medication for her back and knee. She testified that her knee was worse than her back. She alleged that she used a cane at work and at home.514 1 2 3 4 5 United States District Court Northern District of California 6 7 Then, the ALJ explained that the objective diagnostic tests and imaging did not support a 8 finding of disability.515 They showed “no impairments to mild abnormalities [] consistent with the 9 plaintiff’s complaints” until imaging of the plaintiff’s knees and spine in 2014.516 Imaging of her 10 spine showed “no significant protrusions, central canal or neural foraminal narrowing” in 2010, 11 mild degenerative disc disease in 2013, and disc extrusions causing spinal stenosis in 2014.517 12 Imaging of her knees showed abnormalities in her right knee leading to arthroscopy in 2011, 13 moderate osteoarthritis in both knees in 2012, and degenerative changes, osteophytes, and joint 14 space narrowing in her right knee in 2013.518 In 2014, the plaintiff’s spine and knee impairments 15 “were at least partially successfully treated with cortisone injections and transforaminal steroid 16 injections.”519 The ALJ next said that “[a] preponderance of the objective medical evidence [did] not support 17 18 a more restrictive functional capacity,” but “[b]ased on the record as a whole…. the claimant is 19 found limited to sedentary work.”520 The evidence suggested “an addiction to opioid medications” 20 but “a substance use disorder is not a factor material to a determination of disability in this case 21 22 23 24 25 26 27 28 514 515 516 517 518 519 520 AR 23. Id. Id. Id. Id. Id. Id. ORDER – No. 18-cv-06122-LB 48 United States District Court Northern District of California 1 because the above residual functional capacity finding [was] supported with or without substance 2 abuse during the relevant period.”521 3 The ALJ described the records of the plaintiff’s different medical providers about her physical 4 impairments. 522 He accorded reduced weight to the opinion of the State’s medical consultant, Dr. 5 Pancho, because she “did not give enough consideration to the limitations due to [the plaintiff’s] 6 combined obesity and knee arthritis.”523 The ALJ afforded weight to Dr. Behravan’s opinion “only 7 to the extent consistent with [the ALJ’s] findings” because there was no “probative medical 8 evidence to support the right arm limitations [described by Dr. Behravan] for a continuous period 9 of twelve months.”524 He also gave little weight to PA Deivert because her opinion was “not 10 consistent with the record as a whole, including the [plaintiff’s] work activity or the medical 11 evidence.”525 The ALJ also summarized records about the plaintiff’s psychological impairments. He found 12 13 “the medical evidence suggested some episodes of depression with short periods of prescribed 14 psychotropic medication, but no psychiatric hospitalizations, no significant ongoing treatment 15 with a psychiatrist or psychologist, and no treatment with a counselor or therapist.”526 The plaintiff 16 did not return functional reports for a psychologist she consulted in 2015 despite repeated attempts 17 to obtain them from her.527 After reviewing the evaluating psychologists’ assessments, “the record 18 reasonably can be interpreted as showing no severe mental impairment.”528 “[B]ased on the record 19 as whole, considering non-physical limitations, complaints of significant depression and some 20 21 22 23 24 25 26 27 28 521 AR 24. 522 AR 24–27. 523 AR 26. 524 AR 27. 525 526 527 528 Id. Id. Id. AR 28. ORDER – No. 18-cv-06122-LB 49 1 reported concentration limitations due to pain or medication side-effects…[the plaintiff is] 2 reasonably limited to simple routine tasks equating to unskilled work.”529 At step four, the ALJ held that based on his assessment of the plaintiff’s residual functional 3 4 capacity, the plaintiff’s prior work as a hotel clerk and PBX operator were precluded because her 5 work as a hotel clerk was “light, semi-skilled work with and SVP of 4” and her work as a PBX 6 was “sedentary, semi-skilled with and SVP of 4.”530 At step five, the ALJ found that the plaintiff had the ability to perform work at the full United States District Court Northern District of California 7 8 sedentary exertional level but was compromised by a non-exertional limitation.531 He stated that 9 “[i]f the claimant has solely non-exertional limitations, Section 204.00 in the Medical-Vocational 10 Guidelines provides a framework for decision-making (SSR 85-15).”532 The ALJ ruled that this 11 non-exertional limitation had “no effect on the occupational base of unskilled work at the 12 sedentary exertional levels.”533 The ALJ therefore held: A finding of “not disabled” is therefore appropriate under the framework of MedicalVocational Rule 201.28 and Section 204.00 in the Medical-Vocational Guidelines, which take administrative notice on of unskilled jobs. These jobs ordinarily involve dealing primarily with objects, rather than with data or people, and they generally provide substantial vocational opportunity for persons with solely mental impairments who retain the capacity to meet the intellectual and emotional demands of such jobs on a sustained basis (SSR 81-15). Thus, even with a limitation to simple routine tasks equating to unskilled work, the claimant has not been precluded from performing jobs existing in significant numbers in the economy.534 13 14 15 16 17 18 19 STANDARD OF REVIEW 20 21 22 23 24 25 26 27 28 Under 42 U.S.C. § 405(g), district courts have jurisdiction to review any final decision of the Commissioner if the claimant initiates a suit within sixty days of the decision. A court may set aside the Commissioner’s denial of benefits only if the ALJ’s “findings are based on legal error or 529 530 Id. Id. 531 AR 28–29. 532 AR 29. 533 534 Id. Id. ORDER – No. 18-cv-06122-LB 50 United States District Court Northern District of California 1 are not supported by substantial evidence in the record as a whole.” Vasquez v. Astrue, 572 F.3d 2 586, 591 (9th Cir. 2009) (internal citation and quotation marks omitted); 42 U.S.C. § 405(g). 3 “Substantial evidence means more than a mere scintilla but less than a preponderance; it is such 4 relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” 5 Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). The reviewing court should uphold “such 6 inferences and conclusions as the [Commissioner] may reasonably draw from the evidence.” Mark 7 v. Celebrezze, 348 F.2d 289, 293 (9th Cir. 1965). If the evidence in the administrative record 8 supports the ALJ’s decision and a different outcome, the court must defer to the ALJ’s decision 9 and may not substitute its own decision. Tackett v. Apfel, 180 F.3d 1094, 1097–98 (9th Cir. 1999). 10 “Finally, [a court] may not reverse an ALJ’s decision on account of an error that is harmless.” 11 Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). 12 GOVERNING LAW 13 14 A claimant is considered disabled if (1) she suffers from a “medically determinable physical or 15 mental impairment which can be expected to result in death or which has lasted or can be expected 16 to last for a continuous period of not less than twelve months,” and (2) the “impairment or 17 impairments are of such severity that. . . [she] is not only unable to do [her] previous work but 18 cannot, considering [her] age, education, and work experience, engage in any other kind of 19 substantial gainful work which exists in the national economy. . . .” 42 U.S.C. § 1382c(a)(3)(A) & 20 (B). The five-step analysis for determining whether a claimant is disabled within the meaning of 21 the Social Security Act is as follows. Tackett, 180 F.3d at 1098 (citing 20 C.F.R. § 404.1520). 22 23 24 25 26 27 28 Step One. Is the claimant presently working in a substantially gainful activity? If so, then the claimant is “not disabled” and is not entitled to benefits. If the claimant is not working in a substantially gainful activity, then the claimant case cannot be resolved at step one, and the evaluation proceeds to step two. See 20 C.F.R. § 404.1520(a)(4)(i). Step Two. Is the claimant’s impairment (or combination of impairments) severe? If not, the claimant is not disabled. If so, the evaluation proceeds to step three. See 20 C.F.R. § 404.1520(a)(4)(ii). Step Three. Does the impairment “meet or equal” one of a list of specified impairments described in the regulations? If so, the claimant is disabled and is ORDER – No. 18-cv-06122-LB 51 entitled to benefits. If the claimant’s impairment does not meet or equal one of the impairments listed in the regulations, then the case cannot be resolved at step three, and the evaluation proceeds to step four. See 20 C.F.R. § 404.1520(a)(4)(iii). 1 2 Step Four. Considering the claimant’s RFC, is the claimant able to do any work that he or she has done in the past? If so, then the claimant is not disabled and is not entitled to benefits. If the claimant cannot do any work he or she did in the past, then the case cannot be resolved at step four, and the case proceeds to the fifth and final step. See 20 C.F.R. § 404.1520(a)(4)(iv). 3 4 5 Step Five. Considering the claimant’s RFC, age, education, and work experience, is the claimant able to “make an adjustment to other work?” If not, then the claimant is disabled and entitled to benefits. See 20 C.F.R. § 404.1520(a)(4)(v). If the claimant is able to do other work, the Commissioner must establish that there are a significant number of jobs in the national economy that the claimant can do. There are two ways for the Commissioner to show other jobs in significant numbers in the national economy: (1) by the testimony of a vocational expert or (2) by reference to the Medical-Vocational Guidelines at 20 C.F.R., part 404, subpart P, app. 2. 6 7 8 9 10 United States District Court Northern District of California 11 For steps one through four, the burden of proof is on the claimant. Gonzales v. Sec’y of Health 12 & Human Servs., 784 F.2d 1417, 1419 (9th Cir. 1986). At step five, the burden shifts to the 13 Commissioner. Id. 14 15 ANALYSIS 16 The plaintiff contends that the ALJ erred by (1) improperly rejecting the opinions of her 17 treating and examining doctors and her treating physician’s assistant, (2) rejecting her testimony, 18 and (3) failing to base his step-five finding on substantial evidence. For the reasons below, the 19 court grants the plaintiff’s motion for summary judgment, denies the Commissioner’s motion for 20 summary judgment, and remands for further proceedings consistent with this order. 21 22 1. Whether the ALJ Improperly Weighed Medical-Opinion Evidence 23 The plaintiff argues that the ALJ erred by (1) affording no weight to the limitations Dr. 24 Behravan found for the plaintiff’s right arm, (2) failing to address Dr. Bhandari’s letter stating that 25 the plaintiff’s cocktail of medications made her forgetful, and (3) giving little weight to PA 26 Deivert’s opinion.535 The ALJ erred in weighing this evidence. 27 28 535 Mot. – ECF No. 18 at 10–12; see also Reply – ECF No. 20 at 1–4. ORDER – No. 18-cv-06122-LB 52 Legal Standard 1 The ALJ is responsible for “‘resolving conflicts in medical testimony and for resolving United States District Court Northern District of California 2 3 ambiguities.’” Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014) (quoting Andrews, 53 F.3d 4 at 1039). In weighing and evaluating the evidence, the ALJ must consider the entire case record, 5 including each medical opinion in the record, together with the rest of the relevant evidence. 6 20 C.F.R. § 416.927(b); see Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (“[A] reviewing 7 court must consider the entire record as a whole and may not affirm simply by isolating a specific 8 quantum of supporting evidence.”) (internal quotation marks and citation omitted). 9 “In conjunction with the relevant regulations, [the Ninth Circuit has] developed standards that 10 guide [the] analysis of an ALJ’s weighing of medical evidence.” Ryan v. Comm’r of Soc. Sec., 528 11 F.3d 1194, 1198 (9th Cir. 2008) (citing 20 C.F.R. § 404.1527).536 Social Security regulations 12 distinguish between three types of physicians: (1) treating physicians; (2) examining physicians; 13 and (3) non-examining physicians. 20 C.F.R. § 416.927(c), (e); Lester v. Chater, 81 F.3d 821, 830 14 (9th Cir. 1995). “Generally, a treating physician’s opinion carries more weight than an examining 15 physician’s, and an examining physician’s opinion carries more weight than a reviewing [non- 16 examining] physician’s.” Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001) (citing 17 Lester, 81 F.3d at 830); Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996). An ALJ, may disregard the opinion of a treating physician, whether or not controverted. 18 19 Andrews, 53 F.3d at 1041. “To reject [the] uncontradicted opinion of a treating or examining 20 doctor, an ALJ must state clear and convincing reasons that are supported by substantial 21 evidence.” Ryan, 528 F.3d at 1198 (alteration in original) (internal quotation marks and citation 22 omitted). By contrast, if the ALJ finds that the opinion of a treating physician is contradicted, a 23 reviewing court will require only that the ALJ provide “specific and legitimate reasons supported 24 by substantial evidence in the record.” Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) 25 (internal quotation marks and citation omitted); see Garrison, 759 F.3d at 1012 (“If a treating or 26 27 28 536 The Social Security Administration promulgated new regulations, including a new § 404.1521, effective March 27, 2017. The previous version, effective to March 26, 2017, applies based on the date of the ALJ’s hearing, February 1, 2017. ORDER – No. 18-cv-06122-LB 53 1 examining doctor’s opinion is contradicted by another doctor’s opinion, an ALJ may only reject it 2 by providing specific and legitimate reasons that are supported by substantial evidence.”) (internal 3 quotation marks and citation omitted). “The opinions of non-treating or non-examining physicians 4 may serve as substantial evidence when the opinions are consistent with independent clinical 5 findings or other evidence in the record.” Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). United States District Court Northern District of California 6 An ALJ errs when he “rejects a medical opinion or assigns it little weight” without explanation 7 or without explaining why “another medical opinion is more persuasive, or criticiz[es] it with 8 boilerplate language that fails to offer a substantive basis for [his] conclusion.” Garrison, 759 F.3d 9 at 1012–13. “[F]actors relevant to evaluating any medical opinion, not limited to the opinion of the 10 treating physician, include the amount of relevant evidence that supports the opinion and the 11 quality of the explanation provided[,] the consistency of the medical opinion with the record as a 12 whole[, and] the specialty of the physician providing the opinion . . . .” Orn, 495 F.3d at 631. 13 (citing 20 C.F.R. § 404.1527(d)(3)–(6)); see also Magallanes v. Bowen, 881 F.2d 747, 753 (9th 14 Cir. 1989) (an ALJ need not agree with everything contained in the medical opinion and can 15 consider some portions less significant than others). 16 The ALJ also must consider the opinions of other “medical sources who are not acceptable 17 medical sources and [the testimony] from nonmedical sources.” 20 C.F.R. § 404.1527(f). The ALJ 18 is required to consider observations by “other sources” as to how an impairment affects a 19 claimant’s ability to work. Id. Nonetheless, an “ALJ may discount [the] testimony” or an opinion 20 “from these other sources if the ALJ gives . . . germane [reasons] for doing so.” Molina, 674 F.3d 21 at 1111 (internal quotations and citations omitted). “[A]n opinion from a medical source who is 22 not an acceptable medical source. . . may outweigh the medical opinion of an acceptable medical 23 source[.]” 20 C.F.R. § 404.1527(f)(1). “For example, it may be appropriate to give more weight to 24 the opinion of a medical source who is not an acceptable medical source if he or she has seen the 25 individual more often than the treating source, has provided better supporting evidence and a 26 better explanation for the opinion, and the opinion is more consistent with the evidence as a 27 whole.” Id. 28 ORDER – No. 18-cv-06122-LB 54 Dr. Behravan 1 2 Dr. Behravan, a workers’ compensation doctor, examined the plaintiff on July 28, 2016, for 3 injuries that she suffered to her right shoulder (October 1, 2015) and right ankle (November 16, 4 2015).537 He recommended aggressive physical therapy and stem-cell therapy or injections for the 5 shoulder if pain continued, and opined that she should continue with work restrictions of no 6 pushing, pulling, or lifting more than 15 pounds and no lifting above shoulder level for more than 7 one third of her work shift.538 Because Dr. Behravan is an examining medical source and his 8 opinion is uncontradicted, the ALJ was required to give clear and convincing reasons supported by 9 substantial evidence to reject his opinion. Ryan, 528 F.3d at 1198. The ALJ did not satisfy this 10 burden. The ALJ accorded weight to Dr. Behravan’s opinion mentioning the arm limitations, but noted United States District Court Northern District of California 11 12 that there was no probative evidence to support the right-arm limitations at that time or for a 13 continuous period of twelve months.539 Unless an “impairment is expected to result in death, it 14 must have lasted or must be expected to last for a continuous period of at least 12 months.” 20 15 C.F.R § 404.1509. This is known as the “duration requirement.” Id. It is true that Dr. Behravan did 16 not state that he expected the arm limitation to last a year.540 But it is not unsurprising that a 17 workers’ compensation doctor speaks only to the injury in front of him and not an SSI-disability 18 duration requirement that was not before him. At a physical examination at Eden Medical Center on March 6, 2016, the plaintiff exhibited a 19 20 “normal range of motion” and did not complain of any soreness in her right upper extremity.541 21 But that examination was for the plaintiff’s knee and lower-back.542 She still complained of 22 shoulder pain, and the medical records show complaints of shoulder pain, at least through 23 24 25 26 27 28 537 AR 743. 538 AR 746−747. 539 AR 27. 540 AR 747; Cross Mot. – ECF No. 19 at 7. 541 AR 837–40. 542 AR 837. ORDER – No. 18-cv-06122-LB 55 1 November 2016.543 Thus, the ALJ erred because the reason he provided for rejecting Dr. 2 Behravan’s opinion was not supported by substantial evidence in the record. Dr. Bhandari 3 Dr. Bhandari treated the plaintiff from May 5, 2011 to January 15, 2014 and his opinions are United States District Court Northern District of California 4 5 not contradicted.544 Thus, the ALJ must state clear and convincing reasons supported by 6 substantial evidence to disregard his opinion. See Alcala v. Colvin, SACV 12–0626 AJWW, 2013 7 WL 1620352, at *5 (C.D. Cal. Apr. 15, 2013) (citing Edlund v. Massanari, 253 F.3d 1152, 1157 8 (9th Cir. 2001); Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001). On February 28, 9 2012, Dr. Bhandari opined that the plaintiff’s cocktail of medications caused forgetfulness.545 The 10 plaintiff claims that the ALJ did not mention this opinion in his decision and gave no reasons for 11 rejecting it.546 12 But the ALJ did address Dr. Bhandari’s letter, noting that the plaintiff had mild to moderate 13 limitations in “understanding, remembering and applying information” (in his determination for 14 the “paragraph B” criteria).547 He stated “[a] doctor wrote in February 2012 that the claimant was 15 on medications that cause her to be forgetful; she does take narcotic medications daily.”548 The 16 ALJ factored in the findings from the letter in later parts of his decision. In assessing the plaintiff’s 17 RFC, the ALJ found that “there is evidence of some adverse side-effects” from those 18 medications.549 He determined that the plaintiff had non-exertional limitations that compromised 19 her ability to function at the full sedentary level: [B]ased on the record, considering non-physical limitations, complaints of significant depression and some reported concentration limitations due to pain 20 21 22 23 24 25 26 27 28 543 AR 754. 544 AR 399–500. 545 AR 497. 546 Mot. – ECF No. 18 at 11; Reply – ECF No. 20 at 3–4. 547 AR 21. 548 549 Id. AR 23. ORDER – No. 18-cv-06122-LB 56 medication side-effects, I find the claimant reasonably limited to simple routine tasks equating to unskilled work.550 1 2 3 4 The ALJ thus addressed the Dr. Bhandari’s letter and gave it weight. This is not a ground for remand. PA Deivert 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 PA Deivert qualifies as an “other source.” Molina, 674 F.3d at 1111. She opined that the plaintiff was unable to work as of November 14, 2015 and treated the plaintiff for knee pain, back pain and fatigue from May 2014 to November 2016. 551 The ALJ referenced only her note from 2016 that the plaintiff had been unable to work beginning November 2015.552 The ALJ gave little weight to her opinion: “I give little weight to the physician assistant’s opinion because it is not consistent with the record as a whole, including the claimant’s work activity or the medical evidence.”553 But as the plaintiff contends, PA Deivert treated her, and her opinion was not inconsistent with the record, which shows ongoing treatment for knee and back pain and fatigue.554 First, in the Ninth Circuit, “[c]ontradictory medical evidence is not a germane reason to reject lay witness testimony.” Burns v. Berryhill, 731 Fed. App’x 609, 613 (9th Cir. 2018) (citing Diedrich v. Berryhill, 874 F.3d 634, 640 (9th Cir. 2017)). Second, PA Deivert’s opinion should be given additional weight as a treating source. See 20 C.F.R. § 404.1527(f)(1). In Olmstead v. Colvin, the court held that an ALJ’s failure to provide germane reasons for discounting a nurse practitioner’s opinion was “especially egregious where the nurse practitioner saw Plaintiff on several occasions and her records make direct references to Plaintiff's limitations and ability to work.” No. 15-cv-02656-NJV, 2016 WL 3611881, at *4 (N.D. Cal. July 6, 2016). Here, PA Deivert saw the plaintiff at least 13 times from May 2014 to 550 AR 28. 551 AR 574–633, 713–803. 552 AR 27. 553 554 Id. Mot. – ECF No. 18 at 11; Reply – ECF No. 20 at 3. ORDER – No. 18-cv-06122-LB 57 1 November 2016.555 The ALJ held that PA Deivert’s opinion was “not consistent with the record as 2 whole, including the claimant’s work activity or the medical evidence.”556 He did not explain 3 specifically what parts of PA Deivert’s opinion were inconsistent with the record or how they 4 were inconsistent. This is insufficient. 5 6 2. Whether the ALJ Improperly Rejected the Plaintiff’s Testimony 7 The plaintiff argues that the ALJ erred by rejecting the plaintiff’s testimony and failed to 8 identify which parts of the plaintiff’s testimony, if any, were inconsistent with the medical record 9 or otherwise not credible.”557 The court agrees. The ALJ found the following about the plaintiff’s testimony: 10 After careful consideration of the evidence, I find that the claimant’s medically determinable impairments could possibly cause the type of alleged symptoms or limitations. However, the claimant’s statements concerning the intensity, persistence and limiting effects of these symptoms are not found consistent with the medical evidence and other evidence in the record to the extent inconsistent wit this finding for the reasons explained in this decision.558 United States District Court Northern District of California 11 12 13 14 In assessing a claimant’s credibility, an ALJ must make two determinations. Molina, 674 F.3d 15 16 at 1112. “First, the ALJ must determine whether [the claimant has presented] ‘objective medical 17 evidence of an underlying impairment which could reasonably be expected to produce the pain or 18 other symptoms alleged.’” Id. (quoting Vasquez, 572 F.3d at 591). Second, if the claimant 19 produces that evidence, and “there is no evidence of malingering,” the ALJ must provide 20 “specific, clear and convincing reasons for” rejecting the claimant’s testimony regarding the 21 severity of the claimant’s symptoms. Id. (internal quotation marks and citations omitted). “At the same time, the ALJ is not ‘required to believe every allegation of disabling pain, or 22 23 else disability benefits would be available for the asking, a result plainly contrary to 42 U.S.C. § 24 423(d)(5)(A).’” Id. at 1112 (quoting Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)). “Factors 25 26 27 28 555 AR 581, 588, 590, 594, 596, 615, 720, 762, 771, 773, 774, 784, 794. 556 AR 27. 557 Mot. – ECF No. 18 at 12–13; see also Reply – ECF No. 20 at 4–5. 558 AR 23. ORDER – No. 18-cv-06122-LB 58 1 that an ALJ may consider in weighing a claimant’s credibility include reputation for truthfulness, 2 inconsistencies in testimony or between testimony and conduct, daily activities, and unexplained, 3 or inadequately explained, failure to seek treatment or follow a prescribed course of treatment.” 4 Orn, 495 F.3d at 636 (internal punctuation omitted). “[T]he ALJ must identify what testimony is 5 not credible and what evidence undermines the claimant’s complaints.” Burrell v. Colvin, 775 6 F.3d 1133, 1138 (9th Cir. 2014); see, e.g., Morris v. Colvin, No. 16-CV-0674-JSC, 2016 WL 7 7369300, at *12 (N.D. Cal. Dec. 20, 2016). 8 9 10 Because the ALJ discredited the plaintiff’s testimony in part on his assessment of the medicalopinion evidence, including Dr. Behravan’s medical opinion, the court remands on this ground too. The ALJ can reassess the plaintiff’s credibility in context of the entire record. United States District Court Northern District of California 11 12 3. Whether the ALJ’s Step-Five Determination Is Supported by Substantial Evidence The plaintiff argues that the ALJ’s findings at step five were not supported by substantial 13 14 evidence.559 The ALJ called the VE at the hearing and did not ask any hypotheticals about the 15 plaintiff’s ability to perform work. The ALJ found that the plaintiff “had the residual functional 16 capacity to perform the full range of sedentary work, as defined in 20 C.F.R. § 404.1567(a), and 17 [was] able to perform simple routine tasks equating to unskilled work.”560 At step five the ALJ determined “considering the claimant’s age, education, work experience, 18 19 and residual functional capacity, there were jobs that existed in significant numbers in the national 20 economy that the [plaintiff] could have performed.”561 21 Because the court remands for a reweighing of medical-opinion evidence and the plaintiff’s 22 testimony, and because the RFC and non-exertional limitation determinations were based on those 23 assessments, the court remands on this ground. 24 25 26 27 28 559 Mot. – ECF No. 28 at 14–15; Reply−ECF No. 20 at 5−6. 560 AR 22. 561 AR 28. ORDER – No. 18-cv-06122-LB 59 1 United States District Court Northern District of California 2 4. Whether the Court Should Remand for Further Proceedings or Determination of Benefits The court has “discretion to remand a case either for additional evidence and findings or for an 3 award of benefits.” McCartey v. Massanari, 298 F.3d 1072, 1076 (9th Cir. 2002) (citing Smolen, 4 80 F.3d at 1292); McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989) (“The decision whether 5 to remand for further proceedings or simply to award benefits is within the discretion of [the] 6 court.”) (citing Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1987)). Generally, “‘[i]f additional 7 proceedings can remedy defects in the original administrative proceeding, a social security case 8 should be remanded.’” Garrison, 759 F.3d at 1019 (quoting Lewin v. Schweiker, 654 F.2d 631, 9 635 (9th Cir. 1981)) (alteration in original); see also Dominguez v. Colvin, 808 F.3d 403, 407 (9th 10 Cir. 2015) (“Unless the district court concludes that further administrative proceedings would 11 serve no useful purpose, it may not remand with a direction to provide benefits.”); McCartey, 298 12 F.3d at 1076 (remand for award of benefits is discretionary); McAllister, 888 F.2d at 603 (remand 13 for award of benefits is discretionary); Connett, 340 F.3d at 876 (finding that a reviewing court 14 has “some flexibility” in deciding whether to remand). 15 For the reasons described above, the court finds that remand is appropriate so as to “remedy 16 defects in the original administrative proceeding.” Garrison, 759 F.3d at 1019 (quoting Lewin v. 17 Schweiker, 654 F.2d at 635 (alteration in original)). 18 19 20 21 CONCLUSION The court grants the plaintiff’s motion, denies the Commissioner’s cross-motion, and remands for further proceedings consistent with this order. 22 23 IT IS SO ORDERED. 24 Dated: August 30, 2019 25 ______________________________________ LAUREL BEELER United States Magistrate Judge 26 27 28 ORDER – No. 18-cv-06122-LB 60

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