Alvarado v. Berryhill, No. 5:2018cv04803 - Document 24 (N.D. Cal. 2019)
Court Description: ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT'S CROSS-MOTION FOR SUMMARY JUDGMENT; REMANDING FOR PAYMENT OF BENEFITS. Re: Dkt. Nos. 18 , 23 . Signed by Judge Nathanael Cousins. (lmh, COURT STAFF) (Filed on 4/9/2019)
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Alvarado v. Berryhill Doc. 24 1 2 3 4 5 UNITED STATES DISTRICT COURT 6 NORTHERN DISTRICT OF CALIFORNIA 7 8 Case No. 18-cv-04803-NC 9 10 CHRISTINA A., Plaintiff, 11 United States District Court Northern District of California v. 12 13 NANCY A. BERRYHILL, Defendant. 14 15 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S CROSS-MOTION FOR SUMMARY JUDGMENT; REMANDING FOR PAYMENT OF BENEFITS Re: Dkt. Nos. 18, 23 16 17 Plaintiff Christina A. seeks judicial review of the Commissioner of Social Security 18 Nancy A. Berryhill’s denial of her application for disability benefits under the Social 19 Security Act. See Dkt. No. 18. Plaintiff argues that the Administrative Law Judge 20 (“ALJ”) failed to properly apply res judicata by finding that she had not rebutted the 21 presumption of nondisability, and failed to properly reject medical opinions and witness 22 testimony. The Court finds that the ALJ erred in weighing medical opinions and in 23 discounting Christina A.’s and her daughter’s testimony. Accordingly, the Court 24 GRANTS Christina A.’s motion for summary judgment and DENIES the Commissioner’s 25 cross-motion for summary judgment. The Court REVERSES the decision of the ALJ and 26 remands for payment of benefits beginning at the alleged onset date. 27 28 Dockets.Justia.com 1 Background 2 A. Christina A. 3 Christina A. experiences musculoskeletal pain, depression, anxiety, and panic 4 disorder including daily panic attacks. AR 765. These impairments were caused in part by 5 an accident in 2010 involving the metal door of a garbage compactor at her apartment 6 complex falling on her. AR 765. Christina A. was born in 1968 and completed eighth 7 grade but did not obtain a GED. AR 225, 244. She lives with her daughter and two 8 grandchildren. AR 48. 9 United States District Court Northern District of California I. B. Procedural History 10 Christina A. filed a social security disability claim on June 9, 2010, alleging 11 disability beginning August 10, 2009. AR 72–86. An ALJ denied this claim on December 12 6, 2012. Id. The Appeals Council denied Christina A.’s request for review on June 11, 13 2014, and Christina A. did not appeal this finding. Id. 14 Christina A. filed a new claim on July 21, 2014, alleging disability beginning June 15 2, 2013. AR 225–233. An ALJ denied this application on July 6, 2017. TR 14–16. The 16 Appeals Council denied Christina A.’s request for review of the ALJ’s decision on June 17 28, 2018. AR 1–5. Christina A. now seeks judicial review of this ALJ’s decision. See 42 18 U.S.C. §§ 405(g) and 1383(c). Both parties consented to the jurisdiction of a magistrate 19 judge pursuant to 28 U.S.C. § 636(c). See Dkt. Nos. 8, 12. 20 C. Undisputed Facts 21 The parties submitted separate statements of the administrative record because they 22 were unable to agree on a joint statement under the Court’s Procedural Order for Social 23 Security Review Actions. Dkt. Nos. 7, 18, 19. The Commissioner does not dispute the 24 facts presented by Christina A., but provides additional facts for a more complete 25 reproduction of the record. Dkt. No. 19. 26 27 28 1. Medical Evidence a. Musculoskeletal Pain Christina A. had surgery on her right shoulder in August 2014 following a partial 2 1 rotator cuff tear in June 2013. AR 122. This somewhat improved her shoulder but 2 Christina A. still had limited range of motion, abnormal gait, and tenderness. Id. She 3 avoided exercise due to the pain for two years. AR 1334. She had conflicts with her 4 treating physician over noncompliance with pain medication. AR 1568, 1578. Her pain 5 reduced by 50% between August and November 2015 and she was able to go swimming. 6 AR 1352, 1364. Christina A. repeatedly reported concerns about reduction in her pain 7 medication and once ran out of pain medication due to taking more than prescribed. AR 8 1230, 1232, 1376, 1394. She also experienced neck and low back pain which were not 9 helped by injections or physical therapy. AR 1209. 10 United States District Court Northern District of California 11 b. Anxiety and Depression Christina A. became anxious and depressed in 2010. AR 765. She reported 12 phobias and suicidal thoughts. AT 1161. She had panic attacks. AR 766. She had low 13 intellectual functioning. AR 767, 1159. 14 c. Doctors’ Opinions 15 Three treatment providers submitted opinion evidence for Christina A.’s ALJ 16 hearing: Genevieve Monks, Psy. D.; Barbara Saint Clair, MFT; Cynthia Pena, M.D.; and 17 Tamara Lee, MSN, APRN. 18 i. Dr. Monks 19 Dr. Monks provided a comprehensive psychiatric evaluation of Christina A. in 20 January 2015. AR 765–770. She diagnosed Christina A. with mild major depressive 21 disorder and panic disorder, and reported that Christina A. reported daily panic attacks that 22 she treated with lorazepam and counseling. AR 760. Dr. Monks opined that Christina A. 23 was poor at sustaining an ordinary routine without special supervision, completing a 24 normal workday or week without interruptions, interacting with coworkers, and dealing 25 with changes in the work setting. AR 770. Dr. Monks opined that there was a high 26 likelihood of Christina A. emotionally deteriorating in a work environment. Id. 27 28 ii. MFT Saint Clair MFT Saint Clair had thirty bi-weekly sessions with Christina A. between March 3 1 2015 and May 2016. AR 1159. She diagnosed Christina A. with recurrent moderate major 2 depressive disorder and unspecified anxiety disorder with panic attacks. AR 1159, 1181. 3 She reported moderately impaired judgment, phobias, suicidal thoughts, and inability to 4 take care of herself. AR 1161. She opined that Christina A. had a substantial loss in the 5 abilities to: understand, remember, and carry out simple instructions; respond appropriately 6 to supervision, co-workers, and usual work situations; make judgments that are 7 commensurate with the functions of unskilled work; and deal with changes in a routine 8 work setting. AR 1184–1185. 9 United States District Court Northern District of California 10 iii. Dr. Pena and MSN Lee Dr. Pena, Christina A.’s treating physician, and MSN Lee, Christina A.’s treating 11 nurse practitioner, opined that Christina A. had severe limitations in: maintaining attention 12 and concentration for extended periods; performing activities within a schedule and 13 maintaining regular punctual attendance; and completing a normal workday and workweek 14 at a consistent pace without interruptions. TR 1585. They opined that the onset of these 15 limitations was November 2010. Id. 16 17 iv. State Agency Experts Four state agency experts reviewed Christina A.’s records: B. Vaghaiwalla, M.D.; 18 Robert Liss, Ph.D; Beverly Morgan, M.D.; and Harvey Bilik, Psy. D. Dr. Vaghaiwalla 19 opined that the records showed no significant change since the December 2012 denial of 20 benefits. AR 107. Dr. Liss opined that Dr. Monks’s opinion overestimated the severity of 21 Christina A.’s symptoms. AR 109. Dr. Liss opined that Christina A. could maintain 22 memory and concentration for simple tasks over a workweek, adapting to ordinary 23 workplace change. AR 108. Dr. Morgan opined that the new evidence did not provide a 24 basis for changing any earlier assessment. AR 119. Dr. Morgan also noted Christina A.’s 25 history of right shoulder surgery leading to some pain improvement. AR 122. Bilik, 26 Psy.D., opined that the evidence did not show worsening symptoms. AR 119. Bilik also 27 found that Dr. Monks’s opinion overestimated the severity of Christina A.’s symptoms. 28 Id. Dr. Bilik opined that Christina A. could carry out both simple and detailed instructions 4 1 2 3 2. ALJ Hearing At the ALJ hearing on February 22, 2017, Christina A. and a vocational expert 4 testified. TR 43–70. Christina A.’s daughter, Jessica A., completed a “Function Report” 5 at the Commissioner’s request. TR 269–277. 6 United States District Court Northern District of California but would benefit from reduced interaction with the public. AR 124–125. a. Christina A.’s Testimony 7 Christina A. testified that she lived with her daughter and two grandchildren. AR 8 48. She had not provided childcare for the last two and a half years. AR 50. She could 9 not drive due to difficulty concentrating and pain in her neck and back. AR 48. This pain 10 began when a door fell on her in 2010. AR 49. She was not responsible for any 11 housework. AR 51. Her daughter shopped, cooked, and cleaned. AR 51–52. Christina A. 12 rarely left her room, even eating dinner alone while lying in her bed, and only sitting in the 13 living room infrequently. AR 53–56. 14 15 b. The Vocational Expert’s Testimony The vocational expert testified that a hypothetical individual of Christina A.’s age, 16 education, and work background could perform light work, but never climb ladders, ropes, 17 or scaffolds; could occasionally balance, stoop, kneel, crouch, and crawl; could frequently 18 handle, finger, and feel; and could perform simple, routine tasks with only occasional 19 public contact. AR 66–67. The VE testified that this individual could work as a hand 20 packer, garment sorter, or cleaner. AR 67. The VE testified that the same individual with 21 the added limitation of restriction to sedentary work could work as a sorter, weight tester, 22 or table worker. AR 68. The VE testified that no work is available for the same 23 individual with the added limitation of inability to work for 20% of the day. AR 68. 24 25 c. Jessica A.’s Testimony Jessica A., Christina A.’s daughter, completed a report in December 2014. TR 269. 26 She wrote that Christina A. has difficulty with “anxiety, focusing, concentrating, 27 weakness, and pain.” AR 269. She reported that Christina A. does no household chores, 28 yard work, or caring for other people. AR 270. She reported that Christina A. cannot sit 5 1 2 3 3. ALJ’s Decision To qualify for disability benefits under the Social Security Act, a claimant alleging 4 disability must be unable “to engage in any substantial gainful activity by reason of any 5 medically determinable physical or mental impairment which can be expected to result in 6 death or which has lasted or can be expected to last for a continuous period of not less than 7 12 months.” 48 U.S.C. § 1382c(a)(3)(A). An ALJ uses a five-step sequential evaluation 8 process to determine whether a claimant is disabled. 20 C.F.R. § 416.920(a)(1). If the 9 ALJ finds the claimant disabled or not disabled at one of the steps, the ALJ makes her 10 11 United States District Court Northern District of California up very long or pay attention very long. AR 273–274. determination and does not proceed in her evaluation. 20 C.F.R. § 416.920(a)(4). At step one, the ALJ determines whether the claimant engaged in any substantial 12 gainful activity since applying for disability under 20 C.F.R. 404.1520(b). At step two, the 13 ALJ determines whether the claimant suffers from any severe impairments under 20 14 C.F.R. 404.1520(c). At step three, the ALJ determines whether the claimant has an 15 impairment or combination of impairments that meet or medically equal the severity of 16 one of the listed impairments in 20 C.F.R. 404(P), Appendix 1. Next, the ALJ determines 17 the claimant’s residual functional capacity (RFC). The RFC is an individual’s ability to do 18 physical and mental work activities on a sustained basis despite limitations from 19 impairments, including impairments that are not severe. 20 C.F.R. 414.1520(e); 404.1545. 20 At step four, the ALJ determines if the claimant has the RFC to perform any of his or her 21 past work under 20 C.F.R. 404.1520(f). Finally, at step five, the ALJ determines whether 22 the claimant is able to do any other work considering his or her RFC, age, education, and 23 work experience. 20 C.F.R. 404.1520(g). 24 25 26 27 28 a. Steps 1–3 At step one, the ALJ found that Christina A. did not engage in any substantial gainful activity since July 21, 2014, the application date. AR 19. At step two, the ALJ found that Christina A. had the following severe impairments: degenerative disc disease of the cervical and lumbar spine, degenerative joint disease of 6 1 the right shoulder, status post right fractured fibula, depression, and anxiety disorder. AR 2 20. At step three, the ALJ found that no impairment or combination of impairments met 3 4 or medically equaled the severity of one of the listed impairments in 20 CFR Part 404, 5 Subpart P, App. 1. AR 20. b. Residual Functional Capacity 6 Before proceeding to step four and five, an ALJ must determine the claimant’s 7 8 residual functional capacity (“RFC”). 20 C.F.R. § 416.945(a)(4)(iv). To determine RFC, 9 an ALJ considers all of the claimant’s severe impairments collectively. Id. § 10 416.945(a)(2). Here, the ALJ found that Christina A. had the RFC to perform light work as defined United States District Court Northern District of California 11 12 in 20 C.F.R. 416.967(b) except that she cannot climb ladders, ropes and scaffolds, can 13 perform occasional posturals, can frequently handle, finger and feel and is limited to 14 simple routine tasks with occasional public contact. AR 21. c. Steps 4–5 15 At step four, the ALJ found that Christina A. had no past relevant work. AR 25. At 16 17 step five, the ALJ found that Christina A. could perform jobs that exist in significant 18 numbers in the national economy based on her age, education, work experience, and RFC. 19 AR 25. 20 21 II. Legal Standard A district court has the “power to enter, upon the pleadings and transcript of the 22 record, a judgment affirming, modifying, or reversing the decision of the Commissioner of 23 Social Security, with or without remanding the case for a rehearing.” 42 U.S.C. § 405(g). 24 Summary judgment is proper where there is no genuine issue as to any material fact 25 and the moving party is entitled to a judgment as a matter of law. Fed. R. Civ. P. 56(c); 26 Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). 27 28 The decision of the Commissioner should only be disturbed if it is not supported by substantial evidence or if it is based on legal error. Burch v. Barnhart, 400 F.3d 676, 679 7 United States District Court Northern District of California 1 (9th Cir. 2005). Substantial evidence is evidence that a reasonable mind would accept as 2 adequate to support the conclusion. Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 3 2005) (“[It] is more than a mere scintilla but less than a preponderance.”). Even when the 4 ALJ commits legal error, the decision must be upheld if the error is harmless. Treichler v. 5 Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1099 (9th Cir. 2014). However, “[a] 6 reviewing court may not make independent findings based on the evidence before the ALJ 7 to conclude that the ALJ’s error was harmless.” Brown-Hunter v. Colvin, 806 F.3d 487, 8 492 (9th Cir. 2015) (citing Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th 9 Cir. 2006)). 10 III. 11 A. The ALJ Misapplied Res Judicata 12 Discussion The doctrine of res judicata applies to administrative decisions, though less rigidly 13 than to judicial proceedings. Chavez v. Bowen, 844 F.2d 691, 693 (9th Cir. 1988). When a 14 claimant’s disability claim is denied and she brings a new claim, she must overcome a 15 presumption of continuing nondisability by proving changed circumstances indicating a 16 greater disability. Id. Changed circumstances can include increased severity of 17 impairments, changed age category, new impairment not previously considered, or a 18 change in the criteria for determining disability. Lester v. Chater, 81 F.3d 821, 827 (9th 19 Cir. 1995); Acquiescence Ruling 97-4(9). Application of res judicata is inappropriate 20 where the claimant was not represented by counsel at the time of the prior claim. Id. 21 Here, the ALJ applied res judicata, stating that “a presumption of continuing 22 disability is applied” and “[i]n order to overcome the presumption of continuing non- 23 disability, the claimant must prove changed circumstances indicating a greater disability.” 24 AR 17. Ultimately, the ALJ found that Christina A. did not rebut this presumption. Id. 25 Application of res judicata was inappropriate in this case for two reasons. First, 26 Christina A. was not represented by counsel at her prior hearing. The ALJ decision from 27 Christina A.’s 2012 hearing indicated that “Debbie Leigh-Mingo, a non-attorney 28 representative, represents the client.” AR 75. Second, criteria for determining Christina 8 United States District Court Northern District of California 1 A.’s disabilities changed between the two proceedings. The first ALJ’s determination was 2 decided in 2012. Id. In January 2017, the Commissioner issued the “Revised Medical 3 Criteria for Evaluating Mental Disorders.” 81 Fed. Reg. 66138 (September 26, 2016), 4 which instructed federal courts to “use these final rules on and after their effective date, in 5 any case in which we make a determination or decision.” Id. at n.1. The instant appeal is 6 based on an ALJ decision rendered on July 6, 2017. AR 26. 7 However, the Court finds that this error is harmless. Had the ALJ relied 8 substantially on the previous ALJ’s opinion without making renewed disability 9 determinations based on a comprehensive review of the record, this error would be more 10 significant. Here, though, the ALJ made findings of disability based on Christina A.’s 11 medical records and witness testimony. She came to new conclusions independent of the 12 prior decision. AR 22–23. Because “the ALJ also conducted a thorough review of the 13 medical records and testimony to make an independent nondisability finding,” the 14 misapplication of res judicata was harmless. Plummer v. Berryhill, 747 Fed. Appx. 631, 15 632 (9th Cir. 2019); Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 16 17 B. The ALJ Improperly Weighed the Medical Evidence “The ALJ is responsible for resolving conflicts in the medical record.” Carmickle 18 v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008). Ninth Circuit 19 precedent distinguishes three types of physician opinions: (1) those written by physicians 20 who treat the claimant (treating physicians); (2) those written by physicians who only 21 examine the claimant (examining physicians); and (3) those written by physicians who 22 neither treat nor examine the claimant (non-examining physicians). See Garrison v. 23 Colvin, 759 F.3d 995, 1012 (9th Cir. 2014). Generally, a treating physician’s opinion 24 carries greater weight than that of an examining physician, and an examining physician’s 25 opinion carries greater weight than that of a non-examining physician. Holohan v. 26 Massanari, 246 F.3d 1195, 1202 (9th Cir. 2011). An ALJ must provide “clear and 27 convincing reasons that are supported by substantial evidence” to reject uncontradicted 28 opinions of a treating or examining doctor. Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 9 1 1198 (9th Cir. 2008) (quoting Bayliss, 427 F.3d at 1216). Contradicted opinions of a 2 treating or examining doctor may be rejected by “specific and legitimate reasons that are 3 supported by substantial evidence.” Id. The ALJ must “give good reasons” for its 4 decision as to the weight given to a treating source’s opinion. 20 C.F.R. § 404.1527(c)(2). 5 6 “partial weight” to the opinion of Dr. Monks, and “great weight” to the findings of the 7 state agency experts. AR 24–25. The Court finds that the ALJ provided appropriate 8 reasons to give little weight to Dr. Pena’s opinion and great weight to the state agency 9 experts. The ALJ erred in weighing the opinions of Dr. Monks and MFT Saint Clair. 10 11 United States District Court Northern District of California The ALJ gave “little weight” to the opinions of Dr. Pena and MFT Saint Clair, 12 13 If an ALJ improperly rejects medical opinion evidence, that evidence is credited as true as a matter of law. Lester, 81 F.3d 821 at 834. 1. Dr. Pena Dr. Pena was Christina A.’s treating physician and her opinion was contradicted by 14 the state agency experts, so her opinion should be afforded the highest weight and may 15 only be rejected with “specific and legitimate reasons that are supported by substantial 16 evidence.” Ryan, 528 F.3d at 1198. The ALJ gave Dr. Pena’s opinion little weight 17 because it was “overly restrictive and inconsistent with the treatment record,” noting 18 Christina A.’s mild MRI findings, normal electromyography neuromuscular testing, mildly 19 abnormal gate, and helpful injections. AR 24. These reasons are specific, legitimate, and 20 supported. 21 2. Dr. Monks 22 Dr. Monks was an examining physician whose opinion was contradicted by the 23 state agency experts, so discounting this opinion also required “specific and legitimate 24 reasons that are supported by substantial evidence.” Ryan, 528 F.3d at 1198. The ALJ 25 provided similar reasons for giving partial weight to Dr. Monks’s opinion, calling the 26 assessment “overly restrictive” and “inconsistent with treatment records.” AR 25. Dr. 27 Monks diagnosed Christina A. with “panic disorder and mild major depressive disorder” 28 and opined that Christina A. therefore had a “poor ability to sustain a routine and complete 10 1 a normal workday and week, deal with coworkers and adapt to changes.” AR 24. The 2 ALJ discounted this opinion because of “exam findings showing normal exam but for 3 depressed and anxious mood and limited recent memory and fund of knowledge.” AR 25. 4 Indeed, those findings were precisely the grounds for Dr. Monks’s opinion. The Court 5 struggles to understand why the ALJ discounted Dr. Monks’s opinion on the same bases 6 that Dr. Monks rendered it. A normal exam but for depression and anxiety is at least 7 theoretically consistent with the finding of disability due to the impairments of depression 8 and anxiety. This reason is not legitimate. Therefore, Dr. Monks’s opinion is credited as 9 true as a matter of law. 10 United States District Court Northern District of California 11 3. MFT Saint Clair MFT Saint Clair is not an acceptable medical source because she is a marriage and 12 family therapist and not a medical doctor, so 20 C.F.R. § 416.927(f) governs consideration 13 of her opinion. One factor that the ALJ may consider in assessing such an opinion is the 14 length of the treatment relationship. 20 C.F.R. § 416.927(c)(1)-(6). The ALJ may 15 discount an opinion like MFT Saint Clair’s with “specific, germane reasons.” Bruce v. 16 Astrue, 557 F.3d 1113, 1116 (9th Cir. 2009). The ALJ discounted MFT Saint Clair’s 17 opinion in part because she “had only be[en] treating [Christina A.] for a couple of months 18 before rendering these assessments . . . the treatment history is quite brief.” AR 24. This 19 is inaccurate. MFT Saint Clair provided an assessment in May 2016, after 30 bi-weekly 20 sessions with Christina A. beginning in March 2015. AR 1159. This is not a germane 21 reason to discount MFT Saint Clair’s testimony. 22 23 4. State Experts The state agency experts were all non-examining. The ALJ afforded these opinions 24 “great weight” because they “reviewed a sizeable portion of the medical evidence in 25 rendering their assessments, they cited specific medical findings to support their 26 determinations and have a thorough understanding of the Administration’s disability 27 programs and evidentiary requirements.” AR 25. These are appropriate reasons to give 28 great weight to these assessments. 20 C.F.R. § 404.1527(c)(2). 11 1 United States District Court Northern District of California 2 C. The ALJ Improperly Discounted Christina A.’s Testimony When assessing a disability claimant’s testimony regarding the subjective intensity 3 of symptoms, an ALJ must engage in a two-step analysis. Molina v. Astrue, 674 F.3d 4 1104, 1112 (9th Cir. 2012). The ALJ must first “determine whether there is ‘objective 5 medical evidence of an underlying impairment which could reasonably be expected to 6 produce the pain or other symptoms alleged.’” Id. (quoting Vasquez v. Astrue, 572 F.3d 7 586, 591 (9th Cir. 2009)). If the claimant has presented evidence of an underlying 8 impairment and there is no affirmative evidence of malingering, the ALJ must give 9 “specific, clear and convincing reasons” to reject the claimant’s testimony about the 10 severity of his symptoms. Burrell v. Colvin, 775 F.3d 1133, 1136 (9th Cir. 2014). “[T]he 11 ALJ is not ‘required to believe every allegation of disabling pain, or else disability benefits 12 would be available for the asking, a result plainly contrary to 42 U.S.C. § 423(d)(5)(A).’” 13 Id. (quoting Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)). “Factors that an ALJ may 14 consider in weighing a claimant’s credibility include reputation for truthfulness, 15 inconsistencies in testimony or between testimony and conduct, daily activities, and 16 unexplained, or inadequately explained, failure to seek treatment or follow a prescribed 17 course of treatment.” Orn v. Astrue, 495 F.3d 625, 636 (9th Cir. 2007) (internal quotation 18 marks omitted). Even if the claimant’s testimony suggests he may have some difficulty 19 functioning, it can still “be grounds for discrediting the claimant’s testimony to the extent 20 that they contradict claims of a totally debilitating impairment.” Id. at 1113 (citing Turner 21 v. Comm’r of Soc. Sec., 513 F.3d 1217, 1225 (9th Cir. 2012)). Where an ALJ improperly 22 rejects the claimant’s testimony regarding his or her own limitations, and the claimant 23 would be disabled if credited, that testimony is credited as true as a matter of law. Varney 24 v. Secretary of Health and Human Srvcs., 859 F.2d 1396, 1401 (9th Cir. 1988). 25 Here, the ALJ found that Christina A.’s medically determinable impairments could 26 reasonably be expected to cause the alleged symptoms. AR 23. The ALJ made no 27 subsequent finding of malingering. Id. Thus, the ALJ was required to make specific, 28 clear, and convincing findings to support a rejection of Christina A.’s testimony. Burrell, 12 1 United States District Court Northern District of California 2 775 F.3d at 1136. The ALJ found that Christina A.’s “statements concerning the intensity, persistence 3 and limiting effects of these symptoms are not entirely consistent with the medical 4 evidence.” AR 23. She noted that “medications have been relatively effective in 5 controlling the claimant’s symptoms” but did not specify which medications, which 6 symptoms, or which impairments. The ALJ failed to identify what testimony she found 7 not to be credible and failed to explain exactly what evidence undermined that testimony. 8 Holohan v. Massanari, 246 F.3d 1195 (9th Cir. 2001). The ALJ also found that the 9 records did not “fully corroborate” Christina A.’s allegations of “staying at home in her 10 bedroom” without pointing to any particular records contradicting that allegation. AR 23. 11 Finally, the ALJ questioned whether Christina A.’s unemployment was “actually due to 12 medical impairments” because Christina A. “worked only sporadically prior to the alleged 13 disability onset date.” Id. This observation does not go to rebut any of Christina A.’s 14 specific testimony. 15 16 17 18 The ALJ’s reasons for discounting Christina A.’s testimony were not specific, clear, and convincing. Therefore, her testimony is credited as true as a matter of law. D. The ALJ Failed to Consider Jessica A.’s Testimony To reject the opinion of a lay witness, the ALJ must provide specific reasons that 19 are germane to that witness. Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996). Lay 20 witness testimony “cannot be disregarded without comment.” Id. 21 Jessica A., Christina A.’s daughter, provided written testimony. TR 269–277. The 22 ALJ made no reference to Jessica’s testimony anywhere in her opinion. The 23 Commissioner argues that this error was harmless because Jessica’s testimony mirrored 24 Christina A.’s own allegations. Dkt. No. 20 at 9 (citing Molina v. Astrue, 674 F.3d 1104, 25 1122 (9th Cir. 2012) (finding failure to discuss family members’ statements harmless 26 because they did not describe any limitations beyond those that the claimant had already 27 described)). Indeed, even Christina A. acknowledges that her “daughter’s report generally 28 is consistent with Christina A.’s own reports and testimony.” Dkt. No. 18 (Plaintiff’s 13 1 Separate Statement of the Administrative Record) at 12. But this fact is only relevant if 2 “the ALJ’s well-supported reasons for rejecting the claimant’s testimony apply equally 3 well to the lay witness testimony.” Molina, 674 F.3d at 1117. Here, the Court has found 4 above that the ALJ did not give specific, clear, convincing reasons for discounting 5 Christina A.’s testimony. Even if the reasons had been specific, clear, and convincing, it is 6 not obvious that the same reasons would necessarily apply to discounting Jessica’s 7 testimony. Therefore the ALJ erred in disregarding Jessica’s testimony. 8 United States District Court Northern District of California 9 E. The Errors Were Not Harmless Because Christina A. Was Prejudiced The harmless error standard applies to social security cases. Molina, 674 F.3d at 10 1114. An ALJ’s error is harmless when the Court can conclude from the record that, 11 absent the error, the ALJ would have reached the same result. Id. Errors are not harmless 12 if they impact the ALJ’s decision. Id. Generally, an ALJ’s error is harmless where it is 13 “inconsequential to the ultimate nondisability determination.” Carmickle, 533 F.3d at 14 1164. Whether an error is harmless is determined by looking at the record as a whole to 15 see whether the error altered the outcome of the case. Molina, 674 F.3d at 1115. 16 Here, that the ALJ’s errors were not harmless is clear from the ALJ’s hypothetical 17 question to the vocational expert. The ALJ asked the expert whether a hypothetical 18 individual of Christina A.’s age, education, and past work who “could perform light work, 19 but never climb ladders, ropes, or scaffolds; could occasionally balance, stoop, kneel, 20 crouch, and crawl; could frequently handle, finger, and feel; and could perform simple, 21 routine tasks with only occasional public contact” could perform work. AR 66–67. The 22 VE testified that this individual could work as a hand packer, garment sorter, or cleaner. 23 AR 67. Next, the ALJ asked if that the same individual with the added limitation of 24 restriction to sedentary work could work. AR 68. The VE testified that this individual 25 could work as a sorter, weight tester, or table worker. AR 68. 26 The ALJ then asked if the same individual, with the added limitation of inability to 27 work for 20% of the day, could perform work. AR 68. The VE testified that no work is 28 available for that hypothetical individual. Id. According to the opinions of Dr. Monks and 14 1 MFT Saint Clair and the testimony of Christina A. and Jessica A., Christina A. had the 2 added limitation of inability to work for at least 20% of the day. See AR 25, 1185, 765. 3 Had the ALJ credited these opinions, she would have made a finding of disability. Therefore, the ALJ’s errors in improperly weighing the medical opinion evidence 4 5 United States District Court Northern District of California 6 and discounting Christina A.’s and Jessica A.’s testimonies were not harmless. F. The Court Remands for Calculation of Benefits 7 If the Court finds that the ALJ made a legal error and further finds that all essential 8 factual issues have been resolved, it may remand the case for calculation of benefits. See 9 Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1001 (9th Cir. 2014). Ninth 10 Circuit precedent supports so doing when the record has been fully developed, the ALJ 11 failed to supply legally sufficient reasons for rejecting a medical opinion or claimant’s 12 testimony, and the ALJ would have been required to find the claimant disabled by 13 accepting that evidence as true. Garrison, 759 F.3d at 1014–15. 14 Here, the record includes extensive medical evidence, seven doctors’ opinions, and 15 the ALJ hearing with three witnesses. Moreover, the parties do not dispute the facts. See 16 Dkt. No. 19 at 1. No further fact-finding is necessary; the record is fully developed. The 17 ALJ failed to supply legally sufficient reasons for discounting the opinions of Dr. Monks 18 and MFT Saint Clair and for discounting the testimony of Christina A. and Jessica A.. 19 Finally, had the ALJ accepted either Christina A.’s or Jessica A.’s testimony or Dr. 20 Monks’s or MFT Saint Clair’s opinions as true, the VE would have found that no jobs 21 existed that were compatible with Christina A.’s limitations; thus, a finding of total 22 disability would have been required. 23 IV. CONCLUSION 24 The ALJ committed legal error and lacked substantial evidence to find that 25 Christina A. was not disabled. The Court therefore GRANTS Christina A.’s motion for 26 summary judgment and DENIES the Commissioner’s cross-motion for summary 27 judgment. The Court REVERSES the decision of the ALJ and REMANDS for calculation 28 of benefits beginning June 2, 2013. 15 1 IT IS SO ORDERED. 2 3 4 Dated: April 9, 2019 _____________________________________ NATHANAEL M. COUSINS United States Magistrate Judge 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 16
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