Leonard v. Berryhill, No. 5:2016cv03988 - Document 22 (N.D. Cal. 2017)

Court Description: ORDER GRANTING IN PART AND DENYING IN PART 16 PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT; GRANTING IN PART AND DENYING IN PART 20 DEFENDANT'S MOTION FOR SUMMARY JUDGMENT; AND REMANDING TO THE AGENCY. Signed by Judge Beth Labson Freeman on 7/24/2017. (blflc4, COURT STAFF) (Filed on 7/24/2017)

Download PDF

1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA 3 SAN JOSE DIVISION 4 5 JOSEPH L. LEONARD, Case No. 16-cv-03988-BLF Plaintiff, 6 10 ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION FOR SUMMARY JUDGMENT; AND REMANDING TO THE AGENCY 11 [Re: ECF 16, 20] v. 7 8 NANCY A. BERRYHILL, Defendant. United States District Court Northern District of California 9 12 Plaintiff Joseph L. Leonard appeals a final decision of Defendant Nancy A. Berryhill, 13 Acting Commissioner of Social Security, denying his application for a period of disability and 14 disability benefits under Title II of the Social Security Act. Before the Court are the parties’ cross- 15 motions for summary judgment, which have been fully briefed. See Pl.’s Mot., ECF 16; Def.’s 16 Mot., ECF 20. Upon consideration of the briefing and for the reasons set forth below, the Court 17 GRANTS IN PART and DENIES IN PART Plaintiff’s motion and GRANTS IN PART and 18 DENIES IN PART Defendant’s cross motion, and REMANDS the case to the Agency for further 19 proceedings. 20 21 I. BACKGROUND Leonard, a United States citizen, was born on July 6, 1977. Admin R. (“AR”) 34. He 22 graduated from high school and attended some junior college. Id. at 35. Most recently, Leonard 23 worked as a regional facilities manager for a law firm in Mountain View, California. Id. at 35. In 24 this role, he was responsible for budgeting for the facilities needs of the firm’s five offices, ran the 25 day-to-day operations for cleanliness, ensured mechanical systems functioned properly, assisted 26 with ergonomic issues, reconfigured and built furniture, oversaw security, and oversaw the 27 security programing. Id. at 36. On September 25, 2012, Leonard filed an application for a period 28 of disability and disability insurance benefits, alleging disability beginning September 23, 2011. 1 Id. at 124–25. Leonard claims disability resulting from headaches, numbness in his hands, 2 depression, and poor memory. Id. at 68. Leonard was 34 years old on his alleged onset date. Id. 3 at 124. Leonard was denied benefits initially and upon reconsideration. Id. at 68–72, 76–80. He 4 5 requested and received a hearing before an administrative law judge (“ALJ”) on September 30, 6 2014. During that hearing, Leonard advised the ALJ that he was seeking benefits only for a closed 7 period from September 23, 2011, through March 7, 2014. Id. at 33. At the hearing, ALJ Betty 8 Roberts Barbeito heard testimony from Leonard himself; Dr. Keith Holan, an impartial medical 9 expert; and Victoria Rei, an impartial vocational expert (“VE”). Id. at 11, 28–65 (transcript). On January 16, 2015, ALJ Barbeito issued a written decision finding Leonard not disabled and thus 11 United States District Court Northern District of California 10 not entitled to benefits. Id. at 11–23. The ALJ’s decision was affirmed by the Appeals Council on 12 May 13, 2016, making the ALJ’s decision the final decision of the Commissioner of Social 13 Security. Id. at 1–6. Leonard now seeks judicial review of the denial of benefits. 14 15 16 II. LEGAL STANDARD A. Standard of Review District courts “have power to enter, upon the pleadings and transcript of the record, a 17 judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, 18 with or without remanding the cause for a rehearing.” 42 USC § 405(g). However, “a federal 19 court’s review of Social Security determinations is quite limited.” Brown-Hunter v. Colvin, 806 20 F.3d 487, 492 (9th Cir. 2015). Federal courts “‘leave it to the ALJ to determine credibility, 21 resolve conflicts in the testimony, and resolve ambiguities in the record.’” Id. (quoting Treichler 22 v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1098 (9th Cir. 2014)). 23 A court “will disturb the Commissioner’s decision to deny benefits only if it is not 24 supported by substantial evidence or is based on legal error.” Brown-Hunter, 806 F.3d at 492 25 (internal quotation marks and citation omitted). “Substantial evidence is such relevant evidence as 26 a reasonable mind might accept as adequate to support a conclusion, and must be more than a 27 mere scintilla, but may be less than a preponderance.” Rounds v. Comm’r of Soc. Sec. Admin., 28 807 F.3d 996, 1002 (9th Cir. 2015) (internal quotation marks and citations omitted). A court 2 1 “must consider the evidence as a whole, weighing both the evidence that supports and the 2 evidence that detracts from the Commissioner’s conclusion.” Id. (internal quotation marks and 3 citation omitted). If the evidence is susceptible to more than one rational interpretation, the ALJ’s 4 findings must be upheld if supported by reasonable inferences drawn from the record. Id. 5 Finally, even when the ALJ commits legal error, the ALJ’s decision will be upheld so long 6 as the error is harmless. Brown-Hunter, 806 F.3d at 492. However, “[a] reviewing court may not 7 make independent findings based on the evidence before the ALJ to conclude that the ALJ’s error 8 was harmless.” Id. The court is “constrained to review the reasons the ALJ asserts.” Id. 9 B. Standard for Determining Disability Disability benefits are available under Title II of the Social Security Act when an eligible 10 United States District Court Northern District of California 11 claimant is unable “to engage in any substantial gainful activity by reason of any medically 12 determinable physical or mental impairment which can be expected to result in death or which has 13 lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 14 423(d)(1)(A). “To determine whether a claimant is disabled, an ALJ is required to employ a five-step 15 16 sequential analysis, determining: (1) whether the claimant is doing substantial gainful activity; (2) 17 whether the claimant has a severe medically determinable physical or mental impairment or 18 combination of impairments that has lasted for more than 12 months; (3) whether the impairment 19 meets or equals one of the listings in the regulations; (4) whether, given the claimant’s residual 20 functional capacity, the claimant can still do his or her past relevant work; and (5) whether the 21 claimant can make an adjustment to other work.” Ghanim v. Colvin, 763 F.3d 1154, 1160 (9th 22 Cir. 2014) (internal quotation marks and citations omitted). The residual functional capacity 23 (“RFC”) referenced at step four is what a claimant can still do despite his or her limitations. Id. at 24 1160 n.5. “The burden of proof is on the claimant at steps one through four, but shifts to the 25 Commissioner at step five.” Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 26 2009). 27 III. 28 DISCUSSION The ALJ determined that Leonard had acquired sufficient quarters of coverage to remain 3 1 insured through December 31, 2016. AR 11. At step one, the ALJ determined that Leonard had 2 not engaged in substantial gainful activity since his alleged onset date of September 23, 2011. Id. 3 at 13. At step two, the ALJ found that Leonard had the following severe impairments: 4 degenerative disc disease of the cervical spine, obstructive sleep apnea, and bilateral carpal tunnel 5 syndrome. Id. However, the ALJ found that Leonard’s obesity and his medically determinable 6 mental impairment of depression were not severe impairments. Id. at 14. At step three, the ALJ concluded that Leonard did not have an impairment or combination 7 of impairments that meets or medically equals the severity of one of the listed impairments in 20 9 C.F.R., Part 404, Subpart P, Appendix 1 (20 C.F.R. 404.1520(d), 404.1525, and 404.1526). Id. at 10 16. Between steps three and four, the ALJ found that Leonard had the RFC to perform light work 11 United States District Court Northern District of California 8 as defined in 20 C.F.R. 404.1567(b), except that Leonard “can lift and/or carry 20 pounds 12 occasionally and 10 pounds frequently; he can stand and/or walk for six hours out of an eight-hour 13 workday with regular breaks; he can sit for six hours out of an eight-hour workday with regular 14 breaks; he can repetitively push and pull with the upper extremities; he can never climb ropes or 15 scaffolds; he is limited to occasional overhead reaching; he has no visual or communicative 16 limitations; and he must avoid hazardous machinery, extreme cold, wetness, and vibrations.” Id. 17 at 16–17. At step four, the ALJ found that Leonard was unable to perform any past relevant work 18 (“PRW”). Id. at 21. At step five, the ALJ determined that Leonard could perform other work 19 existing in significant numbers in the national economy. Id. at 22. Thus, the ALJ concluded that 20 Leonard had not been under a disability, as defined in the Social Security Act, from September 23, 21 2011, through the date of the decision. Id. at 23. Leonard challenges the ALJ’s step five determination, asserting that substantial evidence 22 23 does not support the ALJ’s decision. Leonard further argues that the ALJ failed to properly 24 evaluate Leonard’s activities of daily living; failed to appropriately consider Leonard’s hearing 25 testimony in assessing Leonard’s mental abilities; erroneously evaluated the opinions of Drs. 26 David Cahn and Keith Holan. 27 28 A. The ALJ Erred in Her Step Five Determination Leonard first argues that the ALJ erred at step five because her transferable-skills finding 4 1 rests on her misstatement or misunderstanding of the vocational expert’s testimony, and as such, 2 substantial evidence does not support the ALJ’s transferable-skills finding. Pl.’s Mot. 9–10. In 3 light of this purported error, Leonard asks this Court to remand the case and order the ALJ to base 4 any transferable skills step-five decision on transferable skills as defined by SSR 82-41. Reply 5. 5 Leonard also asks the Court to permit him to cross-examine the ALJ about any vocational 6 knowledge and expertise she might have if she intends to rely on that knowledge and/or expertise 7 to render a decision at step five. Id. The Commissioner disagrees, and contends that substantial 8 evidence supports the ALJ’s determination because she properly identified Leonard’s transferable 9 skills and the specific occupations to which the skills were transferable and relied on VE testimony to find that those jobs existed in significant numbers in the national economy. Def.’s 11 United States District Court Northern District of California 10 Mot. 3. 12 At step five, the Commissioner bears the burden “to show that the claimant can perform 13 some other work that exists in ‘significant numbers’ in the national economy, taking into 14 consideration the claimant’s [RFC], age, education, and work experience.” Tackett v. Apfel, 180 15 F.3d 1094, 1100 (9th Cir. 1999) (quoting 20 C.F.R. § 404.1560(b)(3)). A claimant must be able to 16 perform the full range of jobs within a given category of work (e.g., light work, medium work), 17 and exertional and non-exertional impairments must be considered. Id. at 1102. The 18 Commissioner can meet his burden in two ways: “(1) by the testimony of a vocational expert, or 19 (2) by reference to the Medical-Vocational Guidelines at 20 C.F.R. pt. 404, subpt. P, app. 2.” Id. 20 at 1099. 21 Here, the VE classified Plaintiff’s PRW as (1) maintenance supervisor, Dictionary of 22 Occupational Titles (“DOT”) 891.137-010, which is skilled light work with a specific vocational 23 preparation (“SVP”) of 7; and (2) data entry clerk, DOT 203.582-054, which is semi-skilled 24 sedentary work with an SVP of 4. AR 60. The VE testified that a person with Leonard’s RFC, 25 age, education, and work experience could not perform his PRW, but had skills that were 26 transferable to other work, including (1) customer order clerk, which is sedentary work with an 27 SVP of 4, with 1,500,000 jobs in the United States and 23,200 jobs in California; (2) information 28 clerk, which is sedentary work with an SVP of 4, with 1,600,000 jobs in the United States and 5 1 16,600 in California; and (3) telemarketing, which is sedentary work with an SVP of 3, with 2 2,600,000 jobs in the United States and 18,400 jobs in California. AR 62–63. In her decision, the ALJ found that Leonard could not perform his PRW but had acquired 3 4 transferable skills, including telephone, computer, and communication skills. AR 22. Leonard 5 contends, and the Commissioner concedes, that in so finding, the ALJ mistakenly stated that the 6 VE found that Leonard’s PRW included customer order clerk, information clerk, and 7 telemarketing. Def.’s Mot. 4; Pl.’s Mot. 9–10. Instead, those were other jobs that the VE testified 8 Leonard could perform and not his PRW, as reflected later in the ALJ’s decision and in the 9 hearing transcript. AR 22–23, 62–63. Leonard argues that because the ALJ’s transferable-skills finding rests on this misstatement or misunderstanding of the VE’s testimony, it cannot be 11 United States District Court Northern District of California 10 supported by substantial evidence. Pl.’s Mot. 9. Because the Commissioner has conceded error, the Court must next determine whether the 12 13 mistake was harmless. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (“A decision of the 14 ALJ will not be reversed for errors that are harmless.”). While the ALJ’s error could be as 15 insignificant as a typographical error, it could be as serious as a mistaken assumption on which the 16 ALJ based her decision. Attorney argument alone is not sufficient to cure the record or to 17 demonstrate harmless error. Thus, without more, the Court cannot find that the ALJ’s mistake 18 was harmless. Accordingly, remand is required for the ALJ to reconsider the VE’s testimony and 19 base her step five decision on substantial evidence. However, this Court does not approve the 20 request to cross-examine the ALJ. 21 22 23 24 25 26 27 B. Substantial Evidence Does Not Support the ALJ’s Evaluation of Leonard’s Activities of Daily Living Second, Leonard argues that the ALJ unreasonably relied on his “admitted” activities of daily living as direct evidence that he could perform full-time work. Pl.’s Mot. 12–14. Leonard takes issue with the ALJ’s reliance in four respects: First, the ALJ mischaracterized his activities. Id. at 13. Second, the ALJ relied on “obviously false assumptions.” Id. Third, the ALJ erroneously ruled that Leonard’s daily activities were “[s]ome of the physical and mental abilities and social interactions as those necessary for maintaining employment.” Id. (citing and quoting 28 6 1 AR 18). Fourth, Leonard asserts that such reliance was contrary to Ninth Circuit precedent. Id. 2 As a result, Leonard contends that the ALJ’s reliance on Leonard’s activities of daily living as 3 direct evidence of his ability to perform full-time semi-skilled work is not supported by substantial 4 evidence. Id. at 14. The Commissioner disputes Leonard’s assertion, and asserts that there is no 5 merit to Leonard’s contention because the ALJ properly considered Leonard’s activities of daily 6 living and found them inconsistent with his allegations of disability. Def.’s Mot. 8. 7 Here, the ALJ found that “despite his impairments,” Leonard “has engaged in a somewhat normal level of daily activity and interaction.” AR 18. From this, the ALJ concluded that 9 Leonard’s ability to participate in these activities diminished his credibility with respect to his 10 functional limitations. Id. On the one hand, the ALJ could reasonably conclude that Leonard’s 11 United States District Court Northern District of California 8 admitted activities of daily living—caring for his son, caring for his personal hygiene, preparing 12 simple meals, completing basic household chores, driving short distances, occasionally socializing 13 with friends and family, watching television, riding his bike, and reading—involved the same 14 physical and mental abilities and social interactions required for obtaining and maintaining 15 employment. Id. at 52–55, 203–11, 224–32; see Molina v. Astrue, 674 F.3d 1104, 1112–13 (9th 16 Cir. 2012) (“[T]he ALJ may discredit a claimant’s testimony when the claimant reports 17 participation in everyday activities indicating capacities that are transferable to a work setting.”); 18 id. at 1113 (affirming ALJ’s decision without requiring her specify which ability was 19 demonstrated by claimant’s participation in everyday activities). On the other hand, however, the 20 ALJ appears to have completely ignored Leonard’s claims that he slept all day. See, e.g., AR 203– 21 11, 224–25. Indeed, in his Function Report, Leonard wrote that after he took his son to school, he 22 went back to sleep for approximately five or six hours. Id. at 225. Without providing an adequate 23 explanation, the ALJ may not “cherry-pick” the evidence. Scott v. Astrue, 647 F.3d 734, 739–40 24 (7th Cir.2011) (“The ALJ [is] not permitted to ‘cherry-pick’ from [ ] mixed results to support a 25 denial of benefits.” (citation omitted)) (cited with approval in Garrison v. Colvin, 759 F.3d 995, 26 1018 (9th Cir. 2014). 27 28 Nevertheless, the Court does not agree that the ALJ’s consideration of Leonard’s daily activities ignores Ninth Circuit precedent. See Pl.’s Mot. 13–14. Indeed, contrary to Leonard’s 7 1 assertion, consideration of a claimant’s activities of daily living is not prohibited by Ninth Circuit 2 precedent—the ALJ is tasked with considering all of the evidence and making a determination as 3 to whether the evidence supports the claimant’s allegations of disability. That Leonard does not 4 agree with the conclusion does not make it contrary to Ninth Circuit precedent. Thus, while the Court concludes that consideration of Leonard’s activities of daily living 5 6 was not inconsistent with Ninth Circuit precedent, it finds unsupported by substantial evidence the 7 ultimate conclusion that Leonard could perform work consistent with the ALJ’s residual 8 functional capacity assessment. Accordingly, remand is required for the ALJ to consider the 9 entirety of the record and set forth legally sufficient reasons for rejecting portions of it. 10 The ALJ Properly Considered Leonard’s Hearing Testimony in Assessing His Mental Abilities C. 11 United States District Court Northern District of California Third, Leonard contends that the ALJ unreasonably relied on her observations of him at the 12 13 hearing even though he did not allege that he was disabled at that time. Pl.’s Mot. 14–15. The Commissioner disagrees, and maintains that the ALJ properly found that Leonard’s ability to 14 testify about the treatment, testing, and examinations he underwent between 2011 and 2013 belied 15 his contention that he had disabling memory and concentration problems prior to March 2014. 16 Def.’s Mot. 11. 17 In her decision, the ALJ noted that although Leonard alleged that he had difficulty 18 19 20 21 22 23 concentrating during the closed period, at the hearing, Leonard “did not demonstrate or manifest any difficulty concentrating.” AR 18. The ALJ recognized that Leonard was not claiming disability as of the time of the hearing, but nonetheless observed that Leonard “was able to recall activities and tests performed during the consultative examination in September 2013[.]” Id. at 18–19. From this, the ALJ extrapolated that Leonard’s “memory and concentration were intact during that examination,” which took place during the period for which Leonard seeks disability. 24 Id. at 19. 25 Again, contrary to Leonard’s contentions, the ALJ properly relied on Leonard’s demeanor 26 and recollection as a basis for discounting his testimony regarding the severity of his symptoms 27 and their limiting effects. See, e.g., Cotton v. Astrue, 374 Fed. Appx. 769, 771 (9th Cir. 2010) 28 8 1 (holding that the ALJ’s own observations indicating that “the claimant exaggerated the extent of 2 her hearing loss” were a specific, convincing reason for discrediting the claimant’s testimony); 3 Fanale v. Astrue, 322 Fed. Appx. 566, 567 (9th Cir. 2009) (claimant’s demeanor at hearing 4 amounted to clear and convincing reason for discrediting her subjective complaints); Matney on 5 Behalf of Matney v. Sullivan, 981 F.2d 1016, 1020 (9th Cir. 1992) (holding that district court 6 properly affirmed the ALJ where ALJ’s credibility finding was based on claimant’s daily 7 activities, “his demeanor and appearance at the hearing” as well as his well-documented 8 motivation to obtain social security benefits”). 9 D. The ALJ Erred in Her Evaluation of the Opinion of Dr. David Cahn Fourth, Leonard argues that the ALJ erroneously evaluated treating internist Dr. Cahn’s 11 United States District Court Northern District of California 10 opinions for several reasons. Pl.’s Mot. 16–18. The crux of Leonard’s position is that the ALJ 12 inappropriately considered Leonard’s credibility when determining the weight to give Dr. Cahn’s 13 opinions and did not afford Dr. Cahn’s opinions the deference they were owed. The 14 Commissioner, however, asserts that the ALJ properly evaluated Dr. Cahn’s opinion and rejected 15 his assessment of extreme functional limitation. Def.’s Mot. 11–15. Specifically, the 16 Commissioner states that the ALJ provided several valid bases for affording little weight to Dr. 17 Cahn’s opinion. Id. at 13–15. 18 “Generally, the opinion of a treating physician must be given more weight than the opinion 19 of an examining physician, and the opinion of an examining physician must be afforded more 20 weight than the opinion of a reviewing physician.” Ghanim, 763 F.3d at 1160. “If a treating 21 physician’s opinion is well-supported by medically acceptable clinical and laboratory diagnostic 22 techniques and is not inconsistent with the other substantial evidence in the case record, it will be 23 given controlling weight.” Id. (internal quotation marks, citation, and brackets omitted). 24 However, the Ninth Circuit has held that an ALJ may discount the opinions of treating and 25 examining physicians if the ALJ offers “specific and legitimate reasons” for doing so that are 26 supported by substantial evidence. Cain v. Barnhart, 74 Fed. Appx. 755, 757–58 (9th Cir. 2003); 27 see also Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995), as amended (Apr. 9, 1996) (describing 28 the standards for evaluating treating, examining, and non-examining physicians). In evaluating 9 1 whether the ALJ provided “specific and legitimate” reasons supported by substantial evidence for 2 discounting or partially discounting these opinions, the Court’s role is not to make a de novo 3 determination whether Leonard is entitled to benefits. Instead, “if evidence exists to support more 4 than one rational interpretation, [the Court] must defer to the Commissioner’s decision.” Batson v. 5 Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004). 6 Dr. Cahn, an internist, served as Leonard’s primary care physician from July 2011 onward. AR 321. Dr. Cahn treated Leonard approximately every two to three months. Id. at 367. At his 8 first appointment with Leonard, Dr. Cahn noted that Leonard experienced depression and anxiety 9 and had a family history of bipolar disease. Id. His condition appears to have remained stable 10 until September 2011, when Dr. Cahn noted that Leonard was also experiencing hypogonadism 11 United States District Court Northern District of California 7 restriction by deficiency and a vitamin D deficiency. Id. In November 2011, Dr. Cahn reported 12 that Leonard was suffering from sleep apnea and hypertension. Id. In July 2012, Dr. Cahn opined 13 that Leonard had been disabled since July 2011. Id. at 321. 14 One year later, on July 2, 2013, Dr. Cahn noted that Leonard suffered from Chronic 15 Fatigue Syndrome and was experiencing the following symptoms: self-reported impairment in 16 short-term memory or concentration, tender cervical or axillary lymph nodes, muscle pain, 17 multiple joint pain without joint swelling or redness, unrefreshing sleep, post-exertional malaise 18 lasting more than 24 hours, persistent reproducible muscle tenderness, depression, and 19 comprehension problems, among other symptoms. See id. at 367–69. In his report, Dr. Cahn 20 stated that these symptoms were “constantly” severe enough to interfere with the attention and 21 concentration needed to perform simple work tasks. Id. at 369. Dr. Cahn also reported that 22 Leonard could only sit or stand for 15 minutes at one time and requires a job that permits shifting 23 positions from sitting, standing, or walking. Id. at 370. Finally, Dr. Cahn noted that Leonard 24 could occasionally lift less than 10 pounds, could rarely lift 10 pounds, and could never lift 25 anything greater than 20 pounds, and could occasionally twist, stoop, crouch/squat, and climb 26 stairs, but could never climb ladders. Id. at 370–71. In September 2014, Dr. Cahn stated that as of 27 March 7, 2014, all of the restrictions he set forth earlier were “lifted,” because Leonard felt better 28 once his medication was adjusted. Id. at 426. 10 1 The ALJ found that Dr. Cahn’s opinion was entitled to little weight because “it is brief, conclusory, and inadequately supported by clinical findings.” Id. at 21. After reviewing the 3 medical records, the ALJ found that “Dr. Cahn primarily summarized in the treatment notes 4 [Leonard’s] subjective complaints, diagnoses, and treatment, but he did not provide medically 5 acceptable clinical or diagnostic findings to support the functional assessment.” Id. The ALJ also 6 noted that Dr. Cahn’s opinions were inconsistent with: (1) the objective medical evidence, which 7 showed, among other things, minimal treatment and no tests supporting Leonard’s alleged levels 8 of cognitive deficits; (2) Dr. Cahn’s “own treatment records that document routine and 9 conservative treatment”; and (3) Leonard’s admitted activities of daily living (discussed above). 10 Id. Finally, the ALJ found that the nature of Leonard’s impairments are outside the area of Dr. 11 United States District Court Northern District of California 2 Cahn’s specialty. Id. 12 The Court finds that the ALJ failed to provide specific and legitimate reasons for rejecting 13 Dr. Cahn’s assessment that are supported by the entire record. First, the ALJ improperly 14 discounted Dr. Cahn’s assessment after finding that it was essentially a summary of Leonard’s 15 “subjective complaints,” which the ALJ determined were not credible. While “[a]n ALJ may 16 reject a treating physician’s opinion if it is based ‘to a large extent’ on a claimant’s self-reports 17 that have been properly discounted as incredible,” Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th 18 Cir. 2008) (citation omitted), as discussed above, the ALJ’s opinion does not make clear that she 19 properly considered all of the evidence before discounting Leonard’s claims. See supra at III.B. 20 Second, the ALJ’s finding that Dr. Cahn’s assessment of Leonard was not supported by the 21 objective medical evidence is inconsistent with her own findings. For example, the ALJ stated 22 that “the objective medical evidence . . . shows mild physical findings, diagnostic evidence of mild 23 bilateral carpal tunnel syndrome and mild cervical disc disease, minimal treatment, and no tests 24 supporting the claimant’s alleged level of cognitive deficits.” AR 21, 280 (noting that Leonard’s 25 brain MRI scan was mostly normal and that Leonard appeared to be “cognitively intact” during an 26 October 2012 appointment), 384 (mental health evaluator found that Leonard was a “fair 27 historian” in September 2013). The ALJ also noted that “[t]he lack of more aggressive treatment, 28 such as surgical intervention or the prescription of a CPAP machine, suggest the claimant’s 11 1 symptoms and limitations were not as severe as he alleged.” Id. at 18; see also AR 354, 358 2 (although Leonard requested a referral for a sleep study, he did not make an appointment). 3 Despite this, the ALJ found these impairments severe in her step three determination. AR 13. 4 Given this inconsistency, the Court cannot conclude that the ALJ’s determination with respect to 5 this aspect of Dr. Cahn’s opinion was based on substantial evidence. Finally, although it is proper for the ALJ to consider a doctor’s area of specialization in 6 7 determining that his opinion merits little weight, see 20 C.F.R. § 404.1527(c)(5) (ALJ considers 8 physician’s specialization in evaluating medical opinions); Kennelly v. Astrue, 313 Fed. Appx. 9 977, 978 (9th Cir. 2009), the ALJ did not explain what aspect of Dr. Cahn’s area of specialization made him ill equipped to provide any portion of his opinion. Thus, without more, the Court 11 United States District Court Northern District of California 10 cannot say that the ALJ’s determination to give Dr. Cahn’s opinion minimal weight was 12 warranted. 13 E. The ALJ Erred in Her Evaluation of Dr. Keith Holan’s Opinion 14 Finally, Leonard contends that the ALJ erred by incorrectly rejecting Dr. Holan’s finding 15 that he could perform occasional fingering and feeling. In particular, he argues that the ALJ did 16 not give legally sufficient reasons for rejecting Dr. Holan’s finding. Pl.’s Mot. 18–20. The 17 Commissioner disagrees, and asserts that the ALJ provided valid reasons for discounting Dr. 18 Holan’s opinion on this issue. Def.’s Mot. 16. In particular, the Commissioner states that the ALJ 19 properly found that Leonard’s treatment records and the objective medical evidence did not 20 support limitations on fingering and feeling as Dr. Holan opined. Id (citing AR 20–21). 21 Dr. Holan is board certified in internal medicine. AR 37. Dr. Holan reviewed the record 22 in this case and testified via telephone during the hearing as an impartial medical expert. Dr. 23 Holan testified that Leonard had the following medically determinable impairments: disorders of 24 the spine with no evidence of nerve root compression, sleep-related breathing disorders without 25 evidence of pulmonary artery or organic mental disorders, and bilateral carpel tunnel syndrome, as 26 evidenced by an EMG study. AR 39. He opined that the impairments neither singly nor in 27 combination met or equaled a medical listing. Id. at 39–40. Based on his review of the medical 28 record, he indicated that Leonard “would be able to occasionally lift and carry 20 pounds, 12 1 frequently lift and carry 10 pounds, stand or walk for a total of six hours in an eight-hour day; sit 2 for six hours in an eight-hour day; and frequent or repetitive pushing and pulling would be limited 3 with the upper extremities.” Id. Dr. Holan also detailed various postural and environmental 4 limitations. Id. at 40. The ALJ gave significant weight, but not full weight, to Dr. Holan’s opinions. Id. at 20. 5 She noted that she did not adopt Dr. Holan’s opinion that Leonard should be limited to occasional 7 fingering and feeling, as the “limitations were not supported by the record as a whole.” Id. at 21. 8 The ALJ based her conclusion on the fact that Leonard’s carpal tunnel syndrome, which would 9 have contributed to the purported limitations, was “mild” and rarely mentioned throughout the 10 record. Id. As with the ALJ’s consideration of Dr. Cahn’s opinions, the ALJ’s decision to give 11 United States District Court Northern District of California 6 this aspect of Dr. Holan’s opinion minimal weight is suspect because despite this assertion, the 12 ALJ found that Leonard’s bilateral carpal tunnel syndrome was a severe impairment at step three 13 of the sequential analysis. AR 13. This inconsistency suggests that perhaps the ALJ was making 14 medical diagnoses without having substantial evidence in the record. Accordingly, remand is 15 required for the ALJ to set forth legally sufficient reasons for rejecting this aspect of Dr. Holan’s 16 opinions. 17 F. Remand is Warranted 18 The decision whether to remand for further proceedings or order an immediate award of 19 benefits is within the district court’s discretion. Harman v. Apfel, 211 F.3d 1172, 1175–78 (9th 20 Cir. 2000). Where no useful purpose would be served by further administrative proceedings, or 21 where the record has been fully developed, it is appropriate to exercise this discretion to direct an 22 immediate award of benefits. Id. at 1179 (“[T]he decision of whether to remand for further 23 proceedings turns upon the likely utility of such proceedings.”). However, where, as here, the 24 circumstances of the case suggest that further administrative review could remedy the 25 Commissioner’s errors, remand is appropriate. McLeod v. Astrue, 640 F.3d 881, 888 (9th Cir. 26 2011). 27 Since the ALJ erred in her step five determination and failed to identify substantial 28 evidence to support her findings with respect to Leonard’s activities of daily living and her 13 1 evaluation of the opinions of Drs. Cahn and Holan, remand is appropriate. Because outstanding 2 issues must be resolved before a determination of disability can be made, and “when the record as 3 a whole creates serious doubt as to whether the [Plaintiff] is, in fact, disabled within the meaning 4 of Social Security Act,” further administrative proceedings would serve a useful purpose and 5 remedy defects. Burrell v. Colvin, 775 F.3d 1133, 1141 (9th Cir. 2014) (citations omitted). 6 Accordingly, the Court will remand this action to the agency for further consideration. 7 IV. For the foregoing reasons, the Court GRANTS Plaintiff Joseph Leonard’s motion for 8 9 CONCLUSION summary judgment on issues 1, 2, 4, and 5 as set forth in his statement of issues, Pl. Mot. 2, and GRANTS Defendant Berryhill’s motion for summary judgment on issue 3. Def. Mot. 10. The 11 United States District Court Northern District of California 10 Court DENIES the cross motions on all remaining issues presented. 12 13 V. ORDER For the foregoing reasons, IT IS HEREBY ORDERED that the decision of the 14 Commissioner is reversed, and the matter is remanded for further proceedings consistent with this 15 Order. The Court notes that it makes no determination on whether the ALJ’s ultimate conclusion 16 with respect to a finding of nondisability was correct. Moreover, through this Order, the Court is 17 not intending to approve or allow the cross examination of the ALJ by Leonard, his counsel, or 18 any other representatives. 19 20 21 22 Dated: July 24, 2017 ______________________________________ BETH LABSON FREEMAN United States District Judge 23 24 25 26 27 28 14

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.