Estrada v. Colvin, No. 5:2016cv06998 - Document 19 (N.D. Cal. 2018)

Court Description: ORDER granting 14 Motion for Summary Judgment; denying 17 Motion for Summary Judgment. Judgment will be entered in favor of Plaintiff and the Clerk shall close this file. Signed by Judge Edward J. Davila on 3/19/2018. (ejdlc2S, COURT STAFF) (Filed on 3/19/2018)
Download PDF
1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 GRACIELA LIZARDI ESTRADA, 8 Case No. 5:16-cv-06998-EJD Plaintiff, 9 v. 10 NANCY A. BERRYHILL, 11 United States District Court Northern District of California Defendant. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANT’S CROSS-MOTION FOR SUMMARY JUDGMENT Re: Dkt. Nos. 14, 17 12 13 Plaintiff Graciella Lizardi Estrada (“Plaintiff”) brings this action pursuant to 42 U.S.C. 14 15 § 405(g) to obtain review of a final decision by the Commissioner of the Social Security 16 Administration1 denying her claim for Disability Insurance Benefits (“DIB”) benefits. In a 17 Motion for Summary Judgment, Plaintiff seeks an order reversing the decision and awarding 18 benefits, or alternatively, remanding the action to the Commissioner for further administrative 19 proceedings. Dkt. No. 14. The Commissioner opposes Plaintiff’s motion and seeks summary 20 judgment affirming the decision denying benefits. Dkt. No. 17. For the reasons discussed below, 21 Plaintiff’s motion is GRANTED and the Commissioner’s motion is DENIED. The action is 22 VACATED and REMANDED to the Commissioner for further administrative proceedings. 23 I. BACKGROUND 24 A. 25 Plaintiff applied for DIB on November 13, 2013, alleging a disability onset of December 1, 26 27 28 1 Procedural History The current acting Commissioner of Social Security, Nancy A. Berryhill, is automatically substituted as defendant in place of her predecessor. Fed. R. Civ. Proc. 25(d). Case No.: 5:16-cv-06998-EJD ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANT’S CROSS-MOTION FOR SUMMARY JUDGMENT 1 1 2011. Tr., Dkt. No. 13, at 74. She seeks benefits beginning from the onset date. Plaintiff’s claim 2 was initially denied by the Commissioner on February 12, 2014. Id. at 102. Plaintiff requested 3 reconsideration of that decision, which was denied by the Commissioner on June 9, 2014. Id. at 4 110, 111. 5 Plaintiff subsequently requested a hearing before an administrative law judge (“ALJ”), 6 which occurred before ALJ Brenton L. Rogozen on June 17, 2015. Id. at 25-34. Plaintiff, 7 represented by counsel, testified on her own behalf. Id. at 51-73. The ALJ also heard testimony 8 from James C. Westman, a vocational expert. Id. In a written decision dated June 26, 2015, the 9 ALJ ultimately found that Plaintiff was not disabled. Id. at 25-34. 10 Plaintiff sought administrative review of the ALJ’s determination. Id. at 17-18. On United States District Court Northern District of California 11 October 18, 2016, the Appeals Council denied the request for review, and the ALJ’s decision 12 became the final decision of the Commissioner. Id. at 1. Plaintiff then commenced this action, 13 and the instant summary judgment motions followed. 14 B. 15 According to her application for benefits, Plaintiff was born on December 22, 1964, and Plaintiff’s Personal, Vocational and Medical History 16 was 46 years old at the time of the hearing. Id. at 165. Plaintiff has a first grade education, which 17 she completed in 1980. Id. at 185. Plaintiff is fluent only in Spanish and has limited ability to 18 read and write. Id. at 53, 63. From 2002 to 2011, Plaintiff worked as a seasonal agricultural 19 laborer. Id. at 202. In 2005, Plaintiff also worked at a restaurant, where she washed dishes, 20 cleaned bathrooms, and made salads. Id. at 203. 21 Plaintiff began receiving psychological treatment in 2008, and, since at least 2009, has 22 been taking medication for schizophrenia and depression. See id. at 60, 232. Her doctors report 23 that some of the side effects of this medication include dizziness, blurry vision, and headaches. 24 See id. at 232, 332. 25 26 27 28 In the summer of 2011, Plaintiff experienced several fainting episodes while working in the fields in hot weather. See id. at 331; see also id. at 60-61. Plaintiff testified at the hearing that, Case No.: 5:16-cv-06998-EJD ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANT’S CROSS-MOTION FOR SUMMARY JUDGMENT 2 1 while working, she “would feel dizzy, tired” and that she fell two times. Id. at 60. When she saw 2 her psychiatrist, Dr. Guiroy, that following January, she expressed worry that she may not be able 3 to return to work the coming season. Id. at 331. 4 The following winter, Plaintiff continued to experience faintness and dizziness. Id. at 332. 5 At her February 23, 2012 appointment, Dr. Guiroy noted that “side effects” from her medication 6 included “faintness and dizziness” and being “unable to adjust body temperature to outside 7 temperature.” Id. He also explained to Plaintiff that “Abilify or any antipsychotic mood stabilizer 8 can cause[] her inability of her body to adjust to outside temperature” and suggested that she slow 9 down and stay in the shade. Id. Plaintiff did not return to work that summer. See id. at 202, 333. 10 Plaintiff continued to see Dr. Guiroy on a monthly or bi-monthly basis throughout 2012. United States District Court Northern District of California 11 Id. at 333-38. For the most part, Dr. Guiroy reported that Plaintiff was mentally stable: she had no 12 delusions or hallucinations, her mood and affect were “good,” and her insight and judgment were 13 intact. See id. She did, however, experience weight gain as a result of her medications, so Dr. 14 Guiroy adjusted her prescriptions to try to curb those effects. Id. at 334, 336, 337. 15 In late November 2012, however, Plaintiff’s depression worsened. Id. at 340. When she 16 saw Dr. Guiroy in December, Plaintiff recounted that her son had recently gotten stabbed, she 17 witnessed her daughters physically assaulting each other, and that her mother in law was suffering 18 from psychotic episodes and recently started a fire in their house. Id. at 340-41. Plaintiff reported 19 that, since then, she had been feeling anxious and could not sleep well, worrying that something 20 could happen to her children. Id. Dr. Guiroy increased the dosages on her medications and 21 prescribed new ones. Id. 22 The following year, Plaintiff continued to experience depressive episodes but eventually 23 made progress towards managing her symptoms with medication. When Dr. Guiroy saw her in 24 March 2013, he noted that Plaintiff reported feeling depressed and showed signs of paranoia. Id. 25 at 342. In May 2013, Dr. Alia Karim, another treating psychiatrist who took over for Dr. Guiroy, 26 reported that Plaintiff continued to experience panic attacks, feelings of dread and foreboding, and 27 28 Case No.: 5:16-cv-06998-EJD ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANT’S CROSS-MOTION FOR SUMMARY JUDGMENT 3 1 fears for her children. Id. at 344-45. In July 2013, Dr. Karim reported that “coping is difficult at 2 this time but [Plaintiff] does try to manage . . . . [S]he accepts her illness and believes treatment is 3 helpful.” Id. at 346. In August 2013, Dr. Karim reported that “[w]hile medication is adequate for 4 management of psychosis, agitation and impulsivity,” Plaintiff “still has difficulty with 5 apprehension, anger, and coping.” Id. at 351. In October 2013, Dr. Karim reported that Plaintiff 6 was relatively stable, but “continue[d] to need support with problem solving and ha[d] stress 7 vulnerability. Id. at 355. 8 9 This trend continued throughout 2014 and 2015. In January 2014, Dr. Karim again reported that she seemed relatively stable—she was “[n]icely dressed,” “fully oriented,” had “good” attention/recall, and was “more involved in activities at home and in the community.” Id. 11 United States District Court Northern District of California 10 at 357-58. In April 2014, Dr. Karim reported that Plaintiff was “feeling very pleasant, that her 12 “[c]oping has improved,” and that she “continues to benefit from medication.” Id. at 476. In 13 October 2014, Dr. Karim reported that Plaintiff was “comfortable at home” and “is in control of 14 her home and family.” Id. at 515. In January 2015, Dr. Joan Danserau, another treating 15 psychiatrist who took over for Dr. Karim, reported that Plaintiff was “overall . . .doing well” and 16 that her “[d]epression and irritability are much better now than before.” Id. at 528. In April 2015, 17 Dr. Danserau reported that, although Plaintiff continued to have periods of anxiety, her overall 18 clinical status was stable and her paranoia and depression had significantly improved. Id. at 535. 19 In June 2015, the final treatment note submitted by Plaintiff from her psychiatrists, Dr. Danserau 20 reported that Plaintiff’s symptoms were controlled “for the most part” and was “able to cope” with 21 them. Id. at 545. 22 Nevertheless, even with her symptoms generally under control, Plaintiff was not entirely 23 free of depressive episodes. For example, in March 2014, Plaintiff’s social worker noted that 24 Plaintiff had “feelings of depression and anxiety.” Id. at 454. In July 2014, Dr. Karim reported 25 that “when [Plaintiff] is off her medication . . . she gets so depressed and demotivated that she 26 doesn’t get up, change her clothes or bathe for days at a time.” Id. at 476. In June 2015, Dr. 27 28 Case No.: 5:16-cv-06998-EJD ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANT’S CROSS-MOTION FOR SUMMARY JUDGMENT 4 1 Danserau reported that Plaintiff still “at times hear[d] voices” and that she had “bouts of anxiety.” 2 Id. at 545. The records also reveal that Plaintiff was general timid about accepting responsibility 3 or interacting with the outside world. For example, in March 2014, Plaintiff’s social worker 4 reported that Plaintiff was worried because her family expected her to care for her grandchildren, 5 but Plaintiff “felt uncomfortable providing care for her grandchildren due to her mental health 6 conditions.” Id. at 457. Her social worker also noted that Plaintiff “gets very nervous and forgets 7 to report important information to her health care providers.” Id. In September 2014, Dr. Karim 8 reported that Plaintiff was “hesitant to move forward without reassurance” and that she was 9 “fearful and hesitant to proceed on her own.” Id. at 504. In June 2015, Dr. Danserau reported that 10 United States District Court Northern District of California 11 Plaintiff’s mood was “slightly anxious with a constricted affect.” Id. at 545. II. LEGAL STANDARD 12 A. 13 Pursuant to 42 U.S.C. § 405(g), the district court has authority to review an ALJ decision. Standard for Reviewing the ALJ’s Decision 14 The court’s jurisdiction, however, is limited to determining whether the denial of benefits is 15 supported by substantial evidence in the administrative record. 42 U.S.C. § 405(g). A district 16 court may only reverse the decision if it is not supported by substantial evidence or if the decision 17 was based on legal error. Id.; Vertigan v. Halter, 260 F.3d 1044, 1049 (9th Cir. 2001). 18 “Substantial evidence” is more than a scintilla, but less than a preponderance. Thomas v. 19 Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). This standard requires relevant evidence that a 20 “[r]easonable mind might accept as adequate to support a conclusion.” Vertigan, 260 F.3d at 1049 21 (citing Richardson v. Perales, 402 U.S. 389, 401 (1971)). A court must review the record as a 22 whole and consider adverse as well as supporting evidence. Robbins v. Soc. Sec. Admin., 466 F.3d 23 880, 882 (9th Cir. 2006). The court must affirm the ALJ’s conclusion so long as it is one of 24 several rational interpretations of the evidence. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 25 2005); Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992). However, the court reviews 26 “only the reasons provided by the ALJ in the disability determination and may not affirm the ALJ 27 28 Case No.: 5:16-cv-06998-EJD ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANT’S CROSS-MOTION FOR SUMMARY JUDGMENT 5 1 on a ground upon which he [or she] did not rely.” Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2 2014). 3 B. 4 The Social Security Act defines disability as the “inability to engage in any substantial Standard for Determining Disability 5 gainful activity by reason of any medically determinable physical or mental impairment which can 6 be expected to result in death or which has lasted or can be expected to last for a continuous period 7 of not less than twelve months.” 42 U.S.C. § 423(d)(1)(A). The impairment must also be so 8 severe that a claimant is unable to do previous work, and cannot “engage in any other kind of 9 substantial gainful work which exists in the national economy,” given the claimant’s age, 10 education, and work experience. 42 U.S.C. § 423(d)(2)(A). United States District Court Northern District of California 11 “The claimant carries the initial burden of proving a disability.” Ukolov v. Barnhart, 420 12 F.3d 1002, 1004 (9th Cir. 2005); Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987) (observing that 13 the claimant must satisfy the burden on the first four steps of the evaluative process). If the 14 claimant proves a prima facie case of disability, then the Commissioner has the burden of 15 establishing the claimant can perform “a significant number of other jobs in the national 16 economy.” Thomas, 278 F.3d at 955; Bowen, 482 U.S. at 146 n.5 (“[T]he Secretary bears the 17 burden of proof at step five, which determines whether the claimant is able to perform work 18 available in the national economy.”). “The Commissioner can meet this burden through the 19 testimony of a vocational expert or by reference to the Medical Vocational Guidelines at 20 C.F.R. 20 pt. 404, subpt. P, app. 2.” Thomas, 278 F.3d at 955. 21 22 The ALJ evaluates Social Security disability cases using a five-step evaluation process. 20 C.F.R. § 416.920. The steps require the following analysis: 23 (1) The ALJ must first determine whether the claimant is presently engaged in 24 substantially gainful activity. 20 C.F.R. § 416.920(b). If so, the claimant is not disabled; 25 otherwise the evaluation proceeds to step two. 26 (2) The ALJ must determine whether the claimant has a severe impairment or combination 27 28 Case No.: 5:16-cv-06998-EJD ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANT’S CROSS-MOTION FOR SUMMARY JUDGMENT 6 1 of impairments. 20 C.F.R. § 416.920(c). If not, the claimant is not disabled; otherwise the 2 evaluation proceeds to step three. 3 (3) The ALJ must determine whether the claimant’s impairment or combination of 4 impairments meets or medically equals the requirements of the Listing of Impairments. 20 5 C.F.R. § 416.920(d). If so, the claimant is disabled; otherwise the analysis proceeds to step 6 four. 7 (4) The ALJ must determine the claimant’s residual functional capacity despite limitations 8 from the claimant’s impairments. 20 C.F.R. § 416.920(e). If the claimant can still perform 9 work that the individual has done in the past, the claimant is not disabled. If the claimant cannot perform the work, the evaluation proceeds to step five. 20 C.F.R. § 416.920(f). 11 United States District Court Northern District of California 10 (5) In this step, the Commissioner has the burden of demonstrating that the claimant is not 12 disabled. Considering a claimant’s age, education, and vocational background, the 13 Commissioner must show that the claimant can perform some substantial gainful work in 14 the national economy. 20 C.F.R. § 416.920(g). 15 III. DISCUSSION The ALJ made the following findings and conclusions on the five steps: (1) for step one, 16 17 the ALJ determined that Plaintiff had not engaged in substantial gainful activity since December 1, 18 2011; (2) for step two, the ALJ determined that Plaintiff had the severe impairments of 19 schizophrenia and a panic attack disorder; (3) for step three, the ALJ determined that Plaintiff does 20 not have an impairment or combination of impairments that meets or medically equals the 21 requirements of the Listing of Impairments; (4) for step four, the ALJ determined that Plaintiff had 22 the residual functional capacity to perform medium work as defined in 20 C.F.R. 404.1537(c) with 23 some exceptions,2 but that she was not capable of performing past relevant work; and (5) for step 24 2 25 26 27 28 Specifically, the ALJ found that Plaintiff could: lift, carry, push, and/or pull 50 pounds occasionally and 25 pounds frequently; stand and/or walk for about six hours in an eight-hour workday; and sit for about six hours in an eight-hour workday with normal breaks. Tr. 29. However, the ALJ found that Plaintiff was limited to the performance of work involving simple repetitive tasks in a Spanish-speaking environment that does not require any reading. Id. The ALJ also found that Plaintiff must avoid all exposure to extreme heat or cold. Id. Case No.: 5:16-cv-06998-EJD ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANT’S CROSS-MOTION FOR SUMMARY JUDGMENT 7 1 five, the ALJ determined that other jobs exist in significant numbers in the national economy that 2 Plaintiff can perform. Tr. 25-34. 3 In her motion, Plaintiff argues: (1) the ALJ erred in assessing Plaintiff’s credibility 4 regarding the intensity, persistence, and limiting effects of the symptoms resulting from her 5 impairments; (2) the ALJ did not give the requisite weight to the opinions of Plaintiff’s treating 6 psychologists; and (3) the ALJ failed to consider all of Plaintiff’s impairments and their combined 7 effects. Mot. 8-10. The Court considers each in turn. 8 9 A. The ALJ Did Not Provide “Specific, Clear and Convincing” Reasons for Discrediting Plaintiff’s Testimony Plaintiff first challenges the ALJ’s assessment of her credibility. In her application, 10 Plaintiff reported symptoms of high blood pressure, high cholesterol diabetes, depression, and 11 United States District Court Northern District of California panic attacks, and alleged that these symptoms caused difficulties with communication, memory, 12 task completion, concentration, understanding, following instructions, and getting along with 13 others. Id. at 205-12. Plaintiff also reported that her symptoms restricted her ability to sustain 14 gainful employment, complete activities of daily living, and engage in normal social functioning. 15 Id. In determining Plaintiff’s residual functional capacity under step four, the ALJ found that 16 Plaintiff’s statements concerning the intensity, persistence, and limiting effects of her symptoms 17 18 were “not entirely credible,” as they conflicted with record evidence that (1) Plaintiff could perform “a wide range of activities of daily living;” and (2) Plaintiff had a normal relationship 19 with her family and occasionally attended church services. Id. at 30. 20 In her motion, Plaintiff argues that the ALJ’s assessment of her credibility was erroneous, 21 as it ignores other evidence which supports Plaintiff’s characterization of her symptoms, including 22 that Plaintiff is unable to function without medication, Plaintiff only assists other members of her 23 household with activities of daily living, and Plaintiff is only able to attend church when 24 accompanied by others. Mot. 8. 25 The ALJ must engage in a two-step analysis when evaluating a claimant’s credibility. 26 Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007). First, the ALJ determines 27 28 Case No.: 5:16-cv-06998-EJD ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANT’S CROSS-MOTION FOR SUMMARY JUDGMENT 8 1 “whether the claimant has presented objective medical evidence of an underlying impairment 2 which could reasonably be expected to produce the pain or other symptoms alleged.” Id. at 1036 3 (internal quotations omitted). Second, if the claimant has met the first step and there is no 4 evidence of malingering, “the ALJ can reject the claimant’s testimony about the severity of her 5 symptoms only by offering specific, clear and convincing reasons for doing so.” Id. (internal 6 quotations omitted); Burrell v. Colvin, 775 F.3d 1133, 1136 (9th Cir. 2014); Garrison, 759 F.3d at 7 1014-15. An ALJ must “specifically identify what testimony is credible and what testimony 8 undermines claimant’s complaints.” Morgan, 169 F.3d at 599. The ALJ may consider many factors when weighing credibility, including “reputation for 10 truthfulness, inconsistencies in testimony or between testimony and conduct, daily activities, and 11 United States District Court Northern District of California 9 unexplained, or inadequately explained, failure to seek treatment or follow a prescribed course of 12 treatment.” Orn v. Astrue, 495 F.3d 625, 636 (9th Cir. 2007) (internal quotations omitted). An 13 ALJ’s assessment of a claimant’s credibility and pain severity is entitled to great weight. See 14 Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 1989). “If the ALJ’s credibility finding is 15 supported by substantial evidence in the record, [the reviewing court] may not engage in second- 16 guessing.” Id. (citing Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999)). 17 Here, the ALJ found under step one that Plaintiff’s “medically determinable impairments 18 could reasonably be expected to cause the alleged symptoms.” Tr. 30. The ALJ also made no 19 finding that there had been any evidence of malingering. See id. Thus, in order to reject 20 Plaintiff’s testimony regarding the severity of her symptoms under step two, the ALJ was required 21 to provide “specific, clear and convincing reasons for doing so.” Lingenfelter, 504 F.3d at 1036. 22 The ALJ failed to meet this standard. First, his reasons for rejecting Plaintiff’s testimony 23 are not specific. The ALJ refers generally to Plaintiff’s “alleged functional limitations” and 24 describes at a high-level the difficulties that Plaintiff claims her symptoms have caused. Tr. 30. 25 However, the ALJ does not “specifically identify what testimony is credible.” Morgan, 169 F.3d 26 at 599. As such, his assessment amounts to a generalized doubting of Plaintiff’s credibility, which 27 28 Case No.: 5:16-cv-06998-EJD ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANT’S CROSS-MOTION FOR SUMMARY JUDGMENT 9 1 2 falls short of the specificity the Ninth Circuit requires. Second, although the ALJ gives more generalized reasons for “question[ing]” Plaintiff’s 3 credibility, they are not clear and convincing. The ALJ’s first reason is that Plaintiff’s alleged 4 inability to sustain gainful employment conflicts with evidence that she “can perform a wide range 5 of activities of daily living, such as preparing basic meals, washing dishes, laundering clothes, 6 sweeping, mopping, and grocery shopping, without significant issue.” Tr. 30. However, the Ninth 7 Circuit has repeatedly cautioned against penalizing a disability claimant simply because that 8 person has attempted to maintain some semblance of a normal daily life. Reddick v. Chater, 157 9 F.3d 715, 722 (9th Cir. 1998) (“Several courts, including this one, have recognized that disability claimants should not be penalized for attempting to lead normal lives in the face of their 11 United States District Court Northern District of California 10 limitations.”); see also Orn, 495 F.3d at 639; Vertigan, 260 F.3d at 1050. Indeed, “[m]any home 12 activities are not easily transferable to . . . the more grueling environment of the workplace, where 13 it might be impossible to periodically rest or take medication.” Fair v. Bowen, 885 F.2d 597, 603 14 (9th Cir. 1989). Here, the ALJ made no attempt to determine whether the “wide range of activities 15 of daily living” which he found that Plaintiff could perform were transferrable to the “more 16 grueling environment of the workplace.” Id. As such, the ALJ rested his assessment on an 17 activity level which may or may not support an ability to perform in a workplace environment. 18 This is not clear and convincing. 19 Further, the ALJ’s conclusion that Plaintiff could perform a “wide range of activities of 20 daily living . . . without significant issue” is misleading and not supported by substantial evidence. 21 Plaintiff admits that she can perform certain activities of daily living. See, e.g., Tr. 194-95, 247- 22 48. However, the ALJ overstates the extent to which Plaintiff engages in these activities, or can 23 do so “without significant issue.” According to the same functional report relied on by the ALJ, 24 Plaintiff only “assists” her daughters with “some” dishwashing, laundering, and mopping and 25 needs reminders to do these things. Id. at 194. The functional report also indicates that Plaintiff 26 cannot go outside on her own but must be “supervised” by her husband or daughters. Id. at 195. 27 28 Case No.: 5:16-cv-06998-EJD ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANT’S CROSS-MOTION FOR SUMMARY JUDGMENT 10 1 Further, when she does go shopping, the functional report clarifies that she “goes with [her] 2 husband who selects what is needed.” Id. at 195. Other functional reports in the record paint an 3 even more limited picture of Plaintiff’s abilities. See, e.g., id. at 207-08 (2014 functional report 4 submitted by Plaintiff indicating that only her husband and/or daughters prepare meals, do 5 housework, or go shopping); id. at 247-48 (2015 functional report submitted by Petra Mansfield, 6 Plaintiff’s social worker, indicating that: Plaintiff “can cook for herself,” but is assisted by her 7 family and “cannot cook meals that are too time consuming;” Plaintiff’s attention span and lack of 8 focus interfere with her ability to complete household chores; and Plaintiff goes grocery shopping 9 “with her family”). Accordingly, the ALJ’s view of the evidence is skewed and not supported by 10 substantial evidence. The ALJ’s second reason for doubting Plaintiff’s credibility is that Plaintiff’s alleged United States District Court Northern District of California 11 12 limitations in social functioning were “unsupported by the record, which suggests that [Plaintiff] 13 has a normal relationship with her husband and occasionally attends church services.” Id. at 30. 14 This too is not a clear and convincing reason. The ALJ made no attempt to show or explain why a 15 normal relationship with her husband or occasionally attending church services is inconsistent 16 with Plaintiff’s claimed limitations in social functioning. Indeed, they may very well be 17 consistent: the former requires no interaction with the outside world, and the latter could be 18 accomplished with little or no communication with other people.3 As such, this rationale is not 19 clear and convincing. In sum, the ALJ does not specifically identify which of Plaintiff’s testimony is credible, 20 21 relies on misleading interpretations of record evidence, and ultimately justifies his credibility 22 3 23 24 25 26 27 28 In fact, Plaintiff’s records appear to illustrate this point. The functional report relied on by the ALJ states that Plaintiff only attends church services “with [her] husband [her] side.” Id. at 209. In addition, in that same section of that same form, Plaintiff also indicates that she does not spend time with people other than her family and that she is “afraid to go out unless my husband goes with me.” Id. Although the precise nature of Plaintiff’s activities are factual determinations left for the ALJ and it does appear here that there is substantial evidence that Plaintiff “has a normal relationship with her husband and occasionally attends church services,” see, e.g., id. at 209, it is sufficient for this Court to conclude here that because “ha[ving] a normal relationship with her husband and occasionally attend[ing] church services” is not inconsistent with limited social functioning, the ALJ’s reasoning is not clear and convincing. Case No.: 5:16-cv-06998-EJD ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANT’S CROSS-MOTION FOR SUMMARY JUDGMENT 11 1 determination on observations which may not be inconsistent with Plaintiff’s claimed limitations. 2 Because such reasoning cannot be “specific, clear and convincing,” the ALJ erred in discounting 3 Plaintiff’s credibility in terms of the intensity, persistence, and limiting effects of his symptoms. 4 On remand, should the ALJ conclude that Plaintiff is not credible, he must (1) specifically 5 identify which of Plaintiff’s statements regarding her symptoms he does not believe, and 6 (2) provide “specific, clear and convincing” reasons for his conclusions. Otherwise, the ALJ must 7 fully credit Plaintiff’s allegations and incorporate them accordingly into the disability inquiry. 8 9 B. The ALJ Did Not Provide “Specific and Legitimate Reasons” for Giving “Little Weight” to Plaintiff’s Treating Physicians Next, Plaintiff argues that the ALJ erred in determining that certain medical opinions 10 should be entitled to less weight than others. In support of her application, Plaintiff submitted 11 United States District Court Northern District of California Mental Impairment Questionnaires (“MIQ”) from two of her treating psychiatrists, Dr. Karim and 12 Dr. Danserau. Id. at 222-29, 374-79. In determining Plaintiff’s residual functional capacity under 13 14 15 step four, the ALJ “afforded little weight” to both of these opinions because they were “inconsistent with the relevant medical evidence of record, including longitudinal records from the Monterey County Health Department – Behavioral Health Division at Exhibits 2F and 5F-8F.” Id. 16 at 31. These exhibits include annual psychosocial assessments from 2013-15 and progress notes 17 from various practitioners, including Dr. Guiroy, Dr. Karim, Dr. Danserau, and several of 18 Plaintiff’s social workers. See id. at 331-59, 380-566. 19 In her motion, Plaintiff argues that it was error for the ALJ to discount Dr. Karim’s and Dr. 20 Danserau’s MIQ opinions, as both doctors are treating physicians, and, as such, are entitled to 21 more weight under 20 CFR § 404.1527. 22 In the context of Social Security determinations, the weight prescribed to medical opinions 23 depends in part on whether they are offered by treating, examining, or non-examining 24 professionals. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). “As a general rule, more weight 25 should be given to the opinion of a treating source than to the opinion of doctors who do not treat 26 the claimant.” Id. A treating doctor’s opinion, if not contradicted by another doctor, may only be 27 28 Case No.: 5:16-cv-06998-EJD ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANT’S CROSS-MOTION FOR SUMMARY JUDGMENT 12 1 rejected for “clear and convincing” reasons. Id. “Even if the treating doctor’s opinion is 2 contradicted by another doctor, the Commissioner may not reject this opinion without providing 3 ‘specific and legitimate reasons’ supported by substantial evidence in the record for so doing.” Id. 4 (quoting Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983)). “This can be done by setting out 5 a detailed and thorough summary of the facts and conflicting clinical evidence, stating his 6 interpretation thereof, and making findings.” Reddick, 157 F.3d at 725 (quoting Magallanes, 881 7 F.2d at 751). “The ALJ must do more than offer his conclusions.” Id. “He must set forth his own 8 interpretations and explain why they, rather than the doctors’, are correct.” Id. (citing Embrey v. 9 Bowen, 849 F.2d 418, 421-22 (9th Cir.1988)). 10 Here, Dr. Karim’s and Dr. Danserau’s opinions are contradicted by the opinions of Dr. United States District Court Northern District of California 11 Rudick, a state agency medical who provided a recommendation used in Plaintiff’s initial 12 disability determination (Exhibit 1A at 6, Tr. 80), and Dr. Bilik, a state agency psychological 13 consultant who provided a recommendation used in Plaintiff’s disability determination on 14 reconsideration (Exhibit 3A at 6-7, Tr. 92-93). Both Dr. Karim and Dr. Danserau found that 15 Plaintiff had “marked” limitations in her restriction of activities of daily living, “marked” 16 difficulties in maintaining social functioning, and “marked” difficulties in maintaining 17 concentration, persistence, or pace. Tr. 228, 378. Dr. Rudick and Dr. Bilik, on the other hand, 18 both found that Plaintiff had “mild” limitations in her restriction of activities of daily living, 19 “moderate” difficulties maintaining social functioning, and “moderate” difficulties in maintaining 20 concentration, persistence, or pace. Id. at 90, 92. In addition, with respect to the number of 21 episodes of decompensation Plaintiff experienced within a 12-month period, Dr. Karim concluded 22 that Plaintiff had three, Dr. Danserau concluded that Plaintiff had two, and Dr. Rudick and Dr. 23 Bilik both concluded that Plaintiff had none. Id. at 80, 92, 228, 378. 24 Thus, because Dr. Karim’s and Dr. Danserau’s opinions are contradicted, the ALJ needed 25 to provide “specific and legitimate reasons” to reject them. Lester, 81 F.3d at 830. The ALJ did 26 not do this. Instead, he simply stated that Dr. Karim’s and Dr. Danserau’s opinions were 27 28 Case No.: 5:16-cv-06998-EJD ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANT’S CROSS-MOTION FOR SUMMARY JUDGMENT 13 1 “inconsistent with the relevant medical evidence of record” and then pointed to five exhibits 2 (Exhibits 2F and 5F-8F) which collectively span over 200 pages. These 200 pages cover a period 3 of nearly three and a half years and range from psychological assessments, to social worker notes, 4 to medical records. This is not a specific reason. 5 In addition, the ALJ made no attempt to account for the fact that Dr. Karim and Dr. 6 Danserau are treating physicians, and, as such, their opinions should be entitled to “more weight” 7 than those of Dr. Rudick and Dr. Bilik, who are non-examining physicians. Lester, 81 F.3d at 8 830. It may be that, if Dr. Karim’s and Dr. Danserau’s opinions are indeed contradicted by record 9 evidence, this in and of itself could provide a sufficient basis to give these opinions “little weight.” However, without specific findings on this point, the Court cannot conclude that this is the case 11 United States District Court Northern District of California 10 here. Finally, the Court notes that, at least at first blush, there is some reason to doubt the ALJ’s 12 13 general conclusion that Dr. Karim’s and Dr. Danserau’s opinions conflict with record evidence. 14 For example, Dr. Karim opined in her MIQ, dated April 24, 2014, that Plaintiff had “marked”4 15 difficulties in maintaining concentration, persistence, or pace. Id. at 228. This is not inconsistent 16 with Dr. Karim’s progress notes from around the same period, which observe that Plaintiff had 17 “good” comprehension and “fair” insight, but “need[ed] support with planning and prioritizing.” 18 Id. at 358. As another example, Dr. Danserau opined in his MIQ, dated June 5, 2015, that Plaintiff 19 had “marked” limitations in maintaining social functioning. Id. at 378. This too is not 20 inconsistent with Dr. Danseau’s notes from around the same period, which indicate that Plaintiff’s 21 mood was “slightly anxious with a constricted affect.” Id. at 545. Accordingly, even if the Court 22 were to accept the ALJ’s rationale—inconsistency with medical evidence of record—as a “specific 23 and legitimate reason,” there is at least some doubt that it is supported by substantial evidence. In sum, the ALJ’s decision to afford little weight to Dr. Karim’s and Dr. Danserau’s 24 25 26 27 28 4 According to the MIQ form, “[m]arked means more than moderate but less than extreme.” Tr. 545. “A marked limitation may arise when several activities or functions are impaired or even when only one is impaired, so long as the degree of limitation is such as to seriously interfere with the ability to function independently, appropriately, effectively, and on a sustained basis.” Id. Case No.: 5:16-cv-06998-EJD ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANT’S CROSS-MOTION FOR SUMMARY JUDGMENT 14 1 opinions is not based on specific and legitimate reasons supported by substantial evidence in the 2 record. On remand, should the ALJ conclude that the opinions of Dr. Karim and Dr. Danserau 3 should be given less weight, he must provide “specific and legitimate reasons” for doing so. 4 C. 5 Finally, Plaintiff argues that the ALJ erred in determining that several of Plaintiff’s 6 impairments were not severe and, as such, failed to consider them in making his disability 7 determination. Mot. 9-10. In determining whether Plaintiff had a “severe impairment or 8 combination of impairments” under step two, the ALJ determined that Plaintiff’s hypertension, 9 pure hypercholesterolemia, and diabetes mellitus, type II were nonsevere impairments. Tr. 27. He The ALJ Properly Considered All of Plaintiff’s Impairments also determined that Plaintiff’s obesity, considered alone or in combination with Plaintiff’s other 11 United States District Court Northern District of California 10 impairments, was not severe. Id. at 28. 12 In her motion, Plaintiff argues that these findings were erroneous because the medical 13 evidence of record sufficiently documents the negative effects that Plaintiff has suffered from 14 these conditions. Mot. 10. 15 “An impairment or combination of impairments may be found not severe only if the 16 evidence establishes a slight abnormality that has no more than a minimal effect on an individual’s 17 ability to work.” Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2006) (internal quotation marks 18 omitted). To determine whether or not an impairment is severe, the ALJ must decide whether a 19 claimant’s impairment or combination of impairments significantly limits his or her physical or 20 mental ability to do “basic work activities.” 20 C.F.R. §§ 404.1521(a), 416.921(a); see Webb, 433 21 F.3d at 686-687. Basic work activities are the “abilities and aptitudes necessary to do most jobs,” 22 such as (1) physical functions like walking, standing, sitting, lifting, pushing, pulling, reaching, 23 carrying, and handling; (2) the capacity for seeing, hearing, speaking, understanding, carrying out, 24 and remembering simple instructions; (3) the use of judgment; and (4) the ability to respond 25 appropriately to supervision, co-workers, and usual work situations. 20 C.F.R. § § 404.1521(b), 26 416.921(b). 27 28 Case No.: 5:16-cv-06998-EJD ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANT’S CROSS-MOTION FOR SUMMARY JUDGMENT 15 1 The lack of a severe impairment must be “clearly established by medical evidence.” Webb, 2 433 F.3d at 687 (quoting SSR 85-28). The ALJ is required to consider the claimant’s subjective 3 symptoms in making a severity determination, provided that the claimant “first establishes by 4 objective medical evidence (i.e., signs and laboratory findings) that he or she has a medically 5 determinable physical or mental impairment(s) and that the impairment(s) could reasonably be 6 expected to produce the alleged symptom(s).” SSR 96-3p. 7 Substantial evidence supports the ALJ’s determination that Plaintiff’s hypertension, pure 8 hypercholesterolemia, and diabetes mellitus, type II were nonsevere impairments. For example, a 9 number of medical records suggest that, despite these physical ailments, Plaintiff is not significantly limited in physical functions like walking or standing. See, e.g., Tr. 504 (July 2014 11 United States District Court Northern District of California 10 note by Dr. Karim that Plaintiff “denies change in gait, posture”); id. at 355 (January 2014 note by 12 Dr. Karim that Plaintiff “is using the treadmill 2x per day”); id. at 351 (August 2013 note by Dr. 13 Karim that Plaintiff’s posture is well-maintained, “gait is heel and toe,” and “balance is intact”); 14 id. at 337 (September 2012 note by Dr. Guiroy that Plaintiff “continue[s] physical activities when 15 she can”). 16 The ALJ also did not err in concluding that Plaintiff’s obesity was a nonsevere impairment. 17 “As obesity is not a separately listed impairment, a claimant will be deemed to meet the 18 requirements if ‘there is an impairment that, in combination with obesity, meets the requirements 19 of a listing.’” Burch, 400 F.3d at 682 (quoting SSR 02-01p). Here, the ALJ considered obesity in 20 combination with Plaintiff’s other physical ailments. Tr. 28; see also id. at 32. Because, as 21 discussed above, substantial evidence supports the ALJ’s determination that these physical 22 ailments were nonsevere, substantial evidence also supports the ALJ’s determination that obesity 23 was nonsevere. 24 Finally, the Court notes that, here, the ALJ resolved step two in Plaintiff’s favor (finding 25 Plaintiff’s schizophrenia and depression severe) and continued in the five-step sequential 26 evaluation. Thus, even if the Court were to find that the ALJ erred at step two (it does not), this 27 28 Case No.: 5:16-cv-06998-EJD ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANT’S CROSS-MOTION FOR SUMMARY JUDGMENT 16 1 error is harmless. Burch, 400 F.3d at 682; see also Gray v. Comm’r of Soc. Sec. Admin., 365 Fed. 2 Appx. 60, 61 (9th Cir. 2010) (rejecting argument that the ALJ erred at step two by determining 3 certain impairments were nonsevere, because any alleged error was harmless since “the ALJ 4 concluded that [claimant’s] other medical problems were severe impairments”); Mondragon v. 5 Astrue, 364 Fed. Appx. 346, 348 (9th Cir. 2010) (“Any alleged error at step two was harmless 6 because step two was decided in [claimant]’s favor with regard to other ailments.”). Accordingly, 7 the ALJ’s decision cannot be reversed or remanded on this basis. 8 IV. 9 ORDER Based on the foregoing, Plaintiff’s Motion for Summary Judgment is GRANTED and the Commissioner’s Motion for Summary Judgment is DENIED. The Commissioner’s final decision 11 United States District Court Northern District of California 10 is VACATED and the case is REMANDED for further administrative proceedings consistent with 12 this order. See Garrison, 759 F.3d at 1019 (“[I]f additional proceedings can remedy defects in the 13 original administrative proceeding, a social security case should be remanded.”). 14 Judgment will be entered in favor of Plaintiff and the Clerk shall close this file. 15 IT IS SO ORDERED. 16 17 18 Dated: March 19, 2018 ______________________________________ EDWARD J. DAVILA United States District Judge 19 20 21 22 23 24 25 26 27 28 Case No.: 5:16-cv-06998-EJD ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANT’S CROSS-MOTION FOR SUMMARY JUDGMENT 17