Hann v. Astrue

Filing 27

ORDER by Judge Joseph C. Spero denying 18 Motion for Summary Judgment; granting 24 Cross-Motion for Summary Judgment (jcslc3S, COURT STAFF) (Filed on 3/28/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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DEBRA ELAINE HANN,

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Case No. 12-cv-06234-JCS

Plaintiff,
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v.
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CAROLYN W. COLVIN,

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Defendant.

United States District Court
Northern District of California

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ORDER DENYING PLAINTIFF’S
MOTION FOR SUMMARY JUDGMENT
AND GRANTING DEFENDANT’S
CROSS-MOTION FOR SUMMARY
JUDGMENT
Re: Dkt. Nos. 18, 24

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I.

INTRODUCTION
Debra Elaine Hann (―Hann‖) seeks judicial review of the Commissioner of Social

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Security‘s (―Commissioner‖) decision denying her claim for disability benefits. This action is

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before the Court on the parties‘ cross-motions for summary judgment.1 For the reasons explained

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below, the Court DENIES Hann‘s motion for summary judgment, GRANTS the Commissioner‘s

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cross-motion for summary judgment, and AFFIRMS the decision of the administrative law judge

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(―ALJ‖).

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II.

BACKGROUND

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A.

Procedural Background

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On June 26, 2009, Hann concurrently filed applications for disability insurance benefits

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and supplemental security income for a period of disability beginning April 28, 2006, due to a

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bulging disc, sciatic pain, a broken foot, and depression. Administrative R. at 82, 87, 164–178

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(―AR‖). Her applications were denied initially and upon reconsideration. AR at 71–74, 82, 87, 93,

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100. The ALJ, Maxine Benmour, reviewed the decision and found that Hann was not disabled in a

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The parties have consented to the jurisdiction of a United States Magistrate Judge pursuant to 28
U.S.C. § 636(c).

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decision dated May 26, 2011. AR at 11–26. Hann requested administrative review, and the

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Appeals Counsel denied this request on October 23, 2012, making the ALJ‘s decision the final

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decision of the Commissioner. AR at 1.

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Hann brought this action pursuant to 42 U.S.C. § 405(g), which gives the Court

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jurisdiction to review the final decision of the Commissioner. She filed a motion for summary

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judgment asking the Court to reverse the Commissioner‘s decision, arguing that the ALJ‘s

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decision should be reversed because: (1) Hann is unable to perform any of the alternative work

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identified by the ALJ; (2) the ALJ failed to articulate specific and legitimate reasons for rejecting

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the opinion of the treating physician; and (3) the ALJ failed to evaluate properly the opinions of a
psychologist, whose opinions the ALJ accorded great weight. Pl.‘s Mot. at 3. See Pl.‘s Mot. for

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Northern District of California

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Summ. J. (―Pl.‘s Mot.‖). The Commissioner responded with a cross-motion for summary

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judgment asking the Court to affirm the ALJ‘s decision. See Def.‘s Mot. for Cross-Summ. J.

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(―Def.‘s Mot.‖).

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B.

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Hann was born on April 11, 1961 in Santa Rosa, California. AR at 171, 403. She is

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Factual Background

married and lives with her husband in Petaluma, California. AR at 1, 403, 729.
1.

Chronic pain: Dr. Chin, Dr. Desouza, and Dr. Pang’s evaluations
a.

Dr. Chin’s initial examination in 2007

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On January 31, 2007, Dr. Warren Chin, upon a referral from Dr. Mark Schakel II,

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conducted his initial evaluation as a treating physician of Hann regarding her back and multiple

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pain complaints. AR at 326–331. At that time, Hann reported ―intermittent occasional radicular

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symptoms to her right lower extremity of pain, numbness, and tingling radiating to the foot.‖ AR

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at 327. She reported that on rare occasions, she noticed ―weakness or heaviness in her right lower

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extremity.‖ Id. She also reported that she noted some cramping in her lower extremities, usually at

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night. Id. She described her low back pain as ―constant and mild in severity, although becoming

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moderate to severe with prolonged or repetitive upright activities, including bending, twisting, or

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stooping.‖ AR at 326. Hann reported that she often had to change positions when lying in bed at

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night because it was difficult for her to remain comfortable in one position for very long, and she
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woke at least four times a night. Id.

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At the time of her initial evaluation, Hann was receiving Neurontin for occipital neuralgia.

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AR at 327. She also relied on Aleve or Advil for her pain. Id. She used Flexeril at time, but it only

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helped a little bit. Id. She also received Nexium for gastroesophageal reflux disease and took

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Imitrex for her migraine headaches. See id. She noted that using an ice pack benefited her back

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pain. AR at 326.

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As to the history of her pain, Hann reported that her chronic low back pain had been

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occurring since 2003, beginning several months after she started working for a company called

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Yardbirds, in which she did a lot of bending and lifting. AR at 326. She reported that she had
noticed some slight chronic intermittent back pain, but one morning she woke and could barely get

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up because of her back pain, and she went to the emergency room. Id. She was prescribed muscle

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relaxant medications, which helped her somewhat. Id. By the time of Dr. Chin‘s initial evaluation,

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Hann was not working. AR at 328. She stated that the last job she held was as a sales associate at

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Kohl‘s, which involved heavy lifting of bundles of clothes. Id. She worked there from October

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2005 to April 2006, but she stopped working because of her back pain. Id.

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Hann also reported that she was in a motor vehicle accident in February 2004. AR at 326.

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After the accident, she was hospitalized and reported significantly increased back pain, with some

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radicular symptoms to her right lower extremity. Id. At the time of Dr. Chin‘s initial evaluation,

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she noted that the radicular symptoms had since improved, but still occurred occasionally. Id. She

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stated that she had stopped driving after the accident because of anxiety about driving. Id. She also

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reported that she had gained approximately fifty pounds in the previous two years. AR at 327.

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Dr. Chin‘s initial evaluation included a review of Hann‘s existing medical records. He

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noted the following:

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A July 9, 2004 x-ray of the lumbar spine was normal. AR at 328.

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A December 14, 2005 x-ray of the cervical spine revealed ―very mild degenerative

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changes‖ and a ―slight reversal of the normal lordosis of the lower cervical spine,‖

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but was ―otherwise unremarkable.‖ Id.

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On July 7, 2006, Hann received a free evaluation from a chiropractor, Richard
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Forzon, who took several x-rays. AR at 327. The x-ray of the lumbar spine revealed

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―slight dextroscoliosis of the lumbar spine‖ and ―slight degenerative changes.‖ AR

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at 328. The chiropractor wished to perform manipulation on Hann, but she could

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not afford to pay for the treatment. AR at 327.
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During 2006, Hann visited physical therapy twice, but she had difficulty attending

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because she was working at the time. Id. Hann stated that the electrical stimulation

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she received during physical therapy seemed to benefit her.2 Id.
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fasciitis. AR at 328. Dr. Schakel‘s treatment of Hann‘s feet is discussed in more

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detail below. See Part II.B.2., infra.

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

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On October 30, 2006, Dr. Schakel concluded that Hann had bilateral plantar

Dr. Chin also obtained AP, lateral, flexion, extension, and oblique views of the

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lumbar spine. AR at 329. He noted ―[m]ild degenerative changes throughout the

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lumbar spine, with disc space narrowing and some anterior osteophytosis,‖ and

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―slight dextroscoloiosis of the lumbar spine.‖ Id. He stated that no spondylolisthesis

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or fractures were noted. Id.
Dr. Chin‘s initial examination also included a physical and neurological examination, in

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which he observed Hann to be a ―well-developed, well-nourished female who was alert and

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oriented to person, place, time, and situation‖ who was not in any ―acute distress‖ and

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―ambulate[d] with a minimally antalgic gait.‖ Id. Dr. Chin noted that ―[t]here was no tenderness to

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palpation in the thoracic spine or bilateral thoracic paraspinal regions.‖ Id. However, there was

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―tenderness to palpation noted in the right lower lumbar spine extending into the right buttock,‖

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and ―tenderness noted in the lower lumbar spine extending into the sacrum.‖ Id. Dr. Chin found

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that Hann‘s range of motion was below average in terms of fingers to the floor distance, flexion,

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and extension. AR at 330. Hann‘s deep tendon reflexes in her lower extremities were 2+/4 and

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symmetrical bilaterally. Id. Her motor testing in her lower extremities was 5/5 in all major muscle

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groups. Id. Her sensation to light touch and proprioception was grossly intact in the lower

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A physical therapy note dated September 7, 2006 indicates the same. See AR at 696. This note
also indicates that Hann missed five appointments in a row. Id.
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extremities. Id. Hann was able to perform toe walking adequately, but heel walking exacerbated

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her plantar fasciitis pain. Id.
Dr. Chin diagnosed Hann with: (1) chronic low back pain, (2) chronic lumbar strain, (3)

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mild lumbar degenerative disc disease (―DDD‖), per limited x-ray, (4) right-sided sciatic pain, (5)

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possible restless leg syndrome, and (6) pain-related insomnia. Id. Dr. Chin prescribed Hann

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tramadol, and he referred her for magnetic resonance imaging (―MRI‖) of her lumbar spine. AR at

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331.

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The MRI of Hann‘s lumbar spine was performed on February 8, 2007, and the next day,
Dr. Chin noted that it revealed ―disc degeneration at L3-4, L4-5, and L5-S1 with asymmetric
bulging of the annulus at L5-S1, greater on the left.‖ AR at 323, 335. He also noted symmetric

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bulging of the annulus at L3-4 and L4-5. Id. He did not note any significant disc protrusions. Id.

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b.

Dr. Chin’s examinations from February 2007 to March 2010

During the approximately three years between the initial examination and March 18, 2010,

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Dr. Chin conducted numerous evaluations of Hann. AR at 278–331, 451–549. The physical

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evaluations were generally constant in their observations of low back pain that radiated into her

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right lower extremity. See id. Hann‘s range of motion, reflexes, and motor testing in her lower

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extremities generally remained the same as before. See id. In these evaluations, Dr. Chin

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diagnosed Hann with: (1) mild lumbar DDD, (2) chronic low back pain, (3) right-sided sciatic

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pain, (4) rule out right hip pathology, (5) from December 2007 to January 2009, possible restless

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leg syndrome, (6) starting in March 2009, pain-related depression, and (7) starting in August 2009,

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left foot fracture. See id. At various times, Dr. Chin prescribed Hann with Lyrica, MS Contin,

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Norco, Percoset, Restoril, Soma, tramadol, valium, and Vicodin. See id.

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During this time period, Dr. Chin referred Hann for x-rays of her bilateral hips and an MRI

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of her right hip to rule out pathology at that location. AR at 324. The x-rays and MRI were

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performed on February 20, 2007, and Dr. Chin noted that they were normal. AR at 318, 319, 340.

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Dr. Chin also referred Hann for a bone scan of the pelvis and lumbar region to rule out possible

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neoplastic pathology. AR at 319. The bone scan was done on March 27, 2007, and Dr. Chin noted

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that it showed ―some focal mildly increased activity posteriorly on the right side of the lower
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lumbar spine at the level of L5, likely related to degenerative changes,‖ but that it was an

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otherwise negative result. AR at 315, 333.

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Also during this time period, Dr. Chin requested authorization for a lumbar epidural steroid

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injection at the L5-S1 level and referred Hann to Dr. Michael Tran. AR at 316. Hann received the

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epidural injection on May 17, 2007, and she reported to Dr. Chin that she had nearly immediate

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benefit in her back pain. AR at 313. Dr. Chin referred Hann to Dr. Tran for a second epidural

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injection, which she had in or around August 16, 2007. AR at 307, 309. After the epidural

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injections, Hann reported that her pain seemed to be returning gradually but that it was adequately

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controlled. See AR at 301–311. In October 2007, Dr. Chin noted that Hann was not ready to
consider a third epidural injection because she wished to pay off some more of her bills first. AR

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at 305. Dr. Chin noted that Hann‘s back pain worsened slightly between October 2007 and

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December 2007, but then it remained relatively unchanged from December 2007 to January 2009.

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See AR at 287–306.

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Also during this time period, Dr. Chin reported that Hann had stated she was attempting to

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exercise by walking and riding a bicycle, although she stopped riding a bicycle sometime around

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July 2008 because it aggravated her back. See AR at 287–307.

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In March 2009, Hann reported to Dr. Chin that she was struggling with depression and that

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she at times felt hopeless about the future and about what she would be able to do in light of the

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limitations caused by her chronic pain. AR at 285. Dr. Chin prescribed Cymbalta and Celexa for

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the depression. See AR at 278–286. While Cymbalta seemed to work well, Hann stopped taking it

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because her insurance would not pay for it. See AR at 278–284. Celexa appeared to help

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somewhat. See id. Hann‘s depression is discussed in more detail below. See Part II.B.3., infra.

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In May 2009, Dr. Chin noted that Hann fractured her left foot in two places when she fell,

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apparently as a result of flu-related dehydration. Id. Hann‘s broken foot is discussed in more detail

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below. See Part II.B.2., infra.

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c.

Dr. Chin’s 2007 RFC Questionnaire and Dr. DeSouza’s 2010
review

On April 19, 2007, Dr. Chin completed a Lumbar Spine Residual Functional Capacity
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Questionnaire (―RFC Questionnaire‖). AR 274–275, 734–737. Dr. Chin diagnosed Plaintiff with

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chronic low back pain, and right side sciatic pain; specifically, he described Hann‘s pain as

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chronic moderate-to-severe right-sided low back pain and buttock pain, radiating to the right lower

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extremity. AR at 274, 734. He stated that he found signs of tenderness, muscle spasm, impaired

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sleep, and a reduced range of flexion/extension motion in her lumbar spine. AR at 274, 734, 735.

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He reported that Hann might experience drowsiness as a side effect of medications she was taking.

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AR at 735. Dr. Chin noted that emotional factors ―possibly?‖ contributed to the severity of Hann‘s

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symptoms and functional limitations. Id.
As to Hann‘s functional limitations, Dr. Chin stated that as a result of Hann‘s impairments,

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she could walk one to two city blocks without rest or severe pain. Id. He stated that Hann could sit

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for an hour without needing to get up, and she could stand for twenty minutes before needing to sit

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down. AR at 735–736. He stated that in a work day with normal breaks, Hann could sit for at least

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six hours and stand or walk for less than two hours. AR at 736. He stated that Hann needed a job

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that permitted shifting positions at will from sitting, standing, or walking. Id. Specifically, he

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indicated that during an eight-hour work day, Hann would need to be able to walk for twenty

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minutes every hour, and to take unscheduled breaks of unspecified amounts of time. Id. He noted

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that with prolonged sitting, Hann did not have to have her legs elevated. Id. He did not give an

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answer to the question as to whether Hann would need a cane or other assistive device for

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standing/walking. Id. He reported that Hann could carry less than ten pounds occasionally, ten

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pounds rarely, and twenty or more pounds never.3 AR at 275, 737. He further reported that Hann

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could twist, stoop (bend), crouch/squat, climb ladders, and climb stairs rarely, and had significant

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limitations reaching. Id.
Dr. Chin opined that Hann‘s pain or other symptoms would be severe enough to interfere

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with attention and concentration needed to perform even simple work tasks occasionally. AR at

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735. He reported that Hann‘s impairments were likely to produce ―good days‖ and ―bad days,‖

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The RFC Questionnaire defined ―rarely‖ as 1 percent to 5 percent of an 8-hour working day,
―occasionally‖ as 6 percent to 33 percent of an 8-hour working day, and ―frequently‖ as 34 percent
to 66 percent of an 8-hour working day. AR at 735.
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and that she would likely to be absent from work more than four days per month as a result of her

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impairments or treatments. Id. He stated that the symptoms and limitations described in the RFC

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Questionnaire dated back to 2003, and they could be expected to last at least twelve months. AR at

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275, 735, 737.

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On February 2, 2010, Dr. L. Desouza, a state examining physician, reviewed Dr. Chin‘s

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RFC Questionnaire and found that it was ―too restrictive‖ and did not correlate with MRI findings

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dated February 8, 2007, in which Dr. Chin had noted some disc degeneration, asymmetric bulging

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of the annulus, and no significant disc protrusions. AR at 323, 335, 425. Dr. Desouza had

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previously concluded based on his review of the record on January 25, 2010 that Hann was

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capable of light work with postural limitations. Id.
d.

Dr. Pang’s examinations in 2010 and 2011

On June 30, 2010, chronic pain specialist Dr. Norman Pang, by referral from Dr. Chin,

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evaluated Hann. AR at 726. Hann described deep, sharp, burning, and stabbing pain that was

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exacerbated by getting out of bed, sitting, twisting, long car rides, bending backwards, exercising,

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standing continuously, lying on her back or side, lifting, going up or down stairs, and running. AR

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at 727. She stated that her pain ranged from 4 to 6.5 on a scale of 1 to 10. AR at 726. She stated

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that because of her pain, she could not perform housework, laundry, or dishes. Id. She stated that

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sitting, standing, or walking for long periods of time was very difficult. Id. She stated that she did

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not sleep soundly and that she took sleep medications. Id. As to her mental health, she reported

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that she was anxious, worried, depressed, hopeless, and frustrated. Id. at 727. She admitted to

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occasional alcohol and marijuana use in the past. AR at 728.

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In reviewing her medical record, Dr. Pang noted that Hann had never had any pain

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surgeries. Id. Hann stated that helpful nonsurgical treatments included pool aqua therapy and pain

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medications. Id. She stated that the two epidural injections by Dr. Tran did not provide relief. AR

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at 728, 731. Dr. Pang noted that she seemed to have ―done very well‖ under Dr. Chin‘s care, and

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he did not see the need to make any changes to her treatment, nor did Hann. AR at 731.

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Upon a general review of Hann‘s health and a physical examination, Dr. Pang found that

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Hann‘s spine was positive for back injury and pain, and that she was positive for depression and
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anxiety/panic. Id. He noted that Hann‘s extremities had a normal range of motion at the hips,

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knees, and ankles, and that they were stable and non-tender to palpation. AR at 730. He found that

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her spine had slightly decreased range of motion to flexion, extension and lateral movement

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secondary to pain. Id. He noted that her motor strength was 5/5 in her extremities. Id. He noted

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that Hann‘s gait was an abnormal tandem walk and slightly antalgic. Id. Dr. Pang gave the

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following diagnosis: (1) lumbar DDD, (2) ongoing low back pain, (3) history of right lumbar

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radiculopathy, (4) right hip pain, (5) history of foot fractures, (6) history of probable myofascial

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spasm and pain, and (7) history of possible reactive depression. AR at 731.
As to future treatment, Dr. Pang noted that he and Hann discussed a variety of issues,

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including surgery, injections, physical therapy, exercise, and medications. AR at 731–733. Finding

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that no major changes to her treatment were needed, Dr. Pang recommended exercise in the form

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of brisk walking, and he also made some changes to her prescriptions. Id.

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Dr. Pang examined Hann several times after the initial examination until at least date of the

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hearing in May 2011. See AR at 707–725. During this time, Hann indicated some increase in pain.

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See id. Dr. Pang and Hann discussed alternatives to opioid therapy, such as physical therapy,

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epidural injections, and cognitive behavior therapy, but Hann consistently declined to pursue such

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options because of her lack of funds. See id.
2.

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Broken foot: Dr. Schakel and Dr. Chin’s evaluations

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In 2006, Dr. Schakel evaluated Hann for bilateral heel pain and found that she had classic

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symptoms of plantar fasciitis. AR at 621. He instructed Hann to undergo a gentle Achilles tendon

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stretching program and suggested orthotics. AR at 622. Orthotics and stretching appeared to help

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her symptoms to some extent, but her pain persisted. AR at 620.
On July 24, 2009, Dr. Schakel examined Hann in connection with her broken foot, which

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occurred when Hann fainted and fell on May 2, 2009. AR at 618. Dr. Schakel observed that

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recently taken x-rays revealed persistent fractures of the bases of the second, third, and fourth

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metatarsals, but displacement appeared to be minimal.4 Id. He noted Hann had been given a

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Although Dr. Schakel did not indicate the dates of the x-rays, he appears to have been referring
to x-rays taken on July 9, 2009. See AR at 378 (x-ray report indicating ―persistent ununited
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removable boot and postoperative shoe. Id. He advised her to immobilize the foot at all times,

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including when she was in the house. AR at 619. He reported that Hann was taking Celexa, MS

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Contin, Restoril, Soma, and Vicodin, but that these were not helping much with her pain. AR at

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618.

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On August 3, 2009, Dr. Chin noted that Hann was apparently not aware that she needed to

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be wearing her boot both within and without the house. AR at 597. He noted that it was important

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for her to immobilize the boot as much as possible to allow for adequate healing. Id. On August

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12, 2009, Dr. Schakel reviewed more recent x-rays of Hann‘s left foot, and he noted progress in

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the healing. AR at 616. He also noted that her reported increase in pain might be due to her

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increase in activity. Id.
On February 26, 2010, Dr. Schakel reviewed x-rays of Hann‘s foot taken on January 8,

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2010, and he noted that the fractures appeared to be healed. AR at 421, 614. He noted that Hann

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reported persistent and apparently worsening pain. AR at 614. Dr. Schakel fitted Hann with a

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postoperative shoe to immobilize the area. AR at 615.

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3.

Depression: Dr. Gonick-Hallows and Dr. Paxton’s evaluations

On October 19, 2009, Dr. Jonathan Gonick-Hallows, a consultative psychologist,

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performed a psychological evaluation of Hann. AR at 403–405. On her intake form, Hann

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described her disability as ―Depression. Lower back problems since 2004.‖ AR at 403. During the

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evaluation, Hann told Dr. Gonick-Hallows that she was depressed, she had no energy, her back

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hurt badly, and she had to stand up periodically. Id. She stated that she felt depressed partly

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because she had always worked but now could not do so. Id. Dr. Gonick-Hallows noted that Hann

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apparently was prescribed multiple narcotic, anti-anxiety, and antidepressant medications. Id.

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Regarding her history, Dr. Gonick-Hallows noted that Hann had apparently never been

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treated for mental health problems and no such records were available for review. Id. Hann stated

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that she had a history of childhood anxiety. Id. She explained that her parents divorced when she

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fractures with proximal metaphysis of the second, third and fourth metatarsals‖). X-rays were also
taken closer to the date of Hann‘s fall on May 6, 2009 and May 18, 2009; the latter, when
compared to the former, revealed no positional change or significant displacement. See AR at 379.
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was five, she had a wonderful stepfather, and her younger brother committed suicide when he was

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seventeen. Id. She stated that she started working by age sixteen, as a checker at Safeway. Id. She

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stated that she entered into a relationship around age twenty with her current husband, with whom

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she had a son. Id. She stated that he introduced her to drugs, primarily methamphetamine, but he

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had been clean and sober for seven years. Id. She admitted that she continued to drink some and

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use amphetamine when she was looking ―for an energy boost.‖ AR at 403–404.

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Regarding her work experience, Hann told Dr. Gonick-Hallows that she worked most
recently at a department store in 2005, and that her best job was operating a glass mill machine at

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an optical coatings company. AR at 403–404. She stated that she did very well at this job, but that

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she was a temporary worker and was let go after two years when the position expired. AR at 404.

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She stated that she believed she injured her back while working at a big box hardware store some

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years ago. AR at 404.

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Regarding her current activities, Hann stated that she was unable to sit for long periods of

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time and that she could walk, but then she would have to lie down and watch television. Id. She

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said that she did not get any exercise and that she was very easily injured. Id. She stated that she

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was somewhat homebound because she lost her driver‘s license after a driving under the influence

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(―DUI‖) incident in 2004. Id.

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Dr. Gonick-Hallows concluded that Hann was average in her short-term memory for

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numbers, abstract reasoning in the verbal realm, vocabulary and syntax, and ability to do

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arithmetic calculations. Id. He concluded that Hann had average to mildly below average ability in

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abstract reasoning in the visual realm. Id. He noted that Hann‘s speech was mostly clear and to the

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point, but that her judgment and insight were compromised. Id. He noted that her thought process

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was somewhat ruminative, and she did not appear to be impulsive or emotionally disinhibited. Id.

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He stated that her mood was dysthymic with a consistent affective expression. Id. He observed no

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real episodes of emotional deterioration from her dysthymic state and no evidence of thought or

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psychotic disorder. Id.

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As part of the evaluation, several tests were administered. Id. Dr. Gonick-Hallows reported
that Hann put forth adequate effort during the testing session and that she listened to instructions
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and appeared to understand them. Id. He reported that she worked a bit slowly and somewhat

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impulsively at times. Id. He reported that her full-scale I.Q. score was 90, at the low end of the

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average range, but that the overall pattern of scatter suggested that her potential may lie more

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solidly in the average range. Id. He noted that two of Hann‘s test results suffered from some

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inattention. Id. He observed no consistent deficits in fine motor ability, visual or perceptual ability,

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or executive functions. Id. He estimated Hann‘s Global Assessment of Functioning (―GAF‖) at 62,

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which is consistent with a patient with mild symptoms. Id. See Ledesma v. Astrue, C 10-5260

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EDL, 2012 WL 424415, at *3 n.1 (N.D. Cal. Feb. 9, 2012) (quoting American Psychiatric Ass’n,

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Diagnostic & Statistical Manual of Mental Disorders, at 34 (4th ed. 2000, Text Revision) (―DSMIV‖)) (―A GAF of 61–70 indicates a patient with ‗[s]ome mild symptoms . . . OR some difficulty

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in social, occupational, or school functioning . . . but generally functioning pretty well, has some

12

meaningful interpersonal relationships.‘‖).5
Dr. Gonick-Hallows diagnosed Hann with mixed anxiety/depressive disorder with

13
14

dysthymia, social anxiety, and low self-esteem. AR at 405. He also diagnosed her with mixed

15

substance abuse, which was improving according to Hann. Id. Dr. Gonick-Hallows opined that

16

[Hann] appears to be a person who might have moderate deficits in
terms of her ability to interact effectively with co-workers,
supervisors and the general public in either cooperative or
competitive settings. Cognitively, she seems able to understand and
carry out simple one and two-part instructions, [and] worked at logic
problems of average complexity in the verbal and visual realms.
However, she worked a bit slowly, and might need some additional
or special supervision if she were expected to learn and carry out
novel tasks in typical work settings at this point. She might have
moderate difficulty managing the usual work-related stresses from a
mental health standpoint.

17
18
19
20
21

22
23

Id. Dr. Gonick-Hallows deferred to medical opinion as to whether Hann could be expected to

24

work at cognitive tasks over the course of a typical workday in light of her reported chronic pain

25
26
27
28

5

Dr. Gonick-Hallows reported Hann‘s GAF of 62 as ―Axis V‖ of his diagnostic impression. AR at
405. Axis V measures GAF. See DSM-IV at 32–34; Nguyen v. Astrue, C-10-4807 JCS, 2012 WL
2119151, at *20 (N.D. Cal. June 11, 2012) (N.D. Cal. 2012) (―The DSM-IV states that Axis V . . .
is ‗for reporting the clinician‘s judgment of the individual‘s overall level of functioning.‘‖).
12

1

and back injury. Id.
On November 23, 2009, Dr. R. Paxton, a state examining physician, completed a Mental

2
3

Residual Functional Capacity Assessment of Hann based on evidence in her file. AR at 406–408.

4

He found that Hann was not significantly limited as to her abilities to remember locations and

5

work-like procedures, to understand, remember, and carry out very short and simple instructions,

6

to maintain attention and concentration for extended periods, to perform activities within a

7

schedule and maintain regular attendance, to sustain an ordinary routine without special

8

supervision, to work in coordination with or proximity to others without being distracted, to make

9

simple work-related decisions, to compete a normal workday and workweek without interruptions
from psychologically based symptoms, to perform at a consistent pace without an unreasonable

11
United States District Court
Northern District of California

10

number and length of rest periods, to interact appropriately with the general public, to accept

12

instructions and respond appropriately to criticism from supervisors, to get along with coworkers

13

without distracting them or exhibiting behavioral extremes, to maintain socially appropriate

14

behavior, to respond appropriately to changes in the work setting, to be aware of normal hazards,

15

to travel in unfamiliar places, and to set realistic goals. AR at 406–407. Dr. Paxton found that

16

Hann was moderately limited as to her abilities to understand, remember, and carry out detailed

17

instructions, and to ask simple questions or request assistance. Id.
C.

18

Relevant Testimony
1.

19

Hann’s testimony

At the hearing on April 29, 2011, Hann testified that her only years of significant earnings

20
21

were in 1999 and 2000, when she worked as an optical coating technician.6 AR at 32. She testified

22

that she began having lower back pain sometime before 2004, and that one day in 2006 it was so

23

bad that she could not get out of bed and she went to the emergency room. AR at 33.
As to her pain, she testified that her current low back pain was much worse than the back

24
25

pain that existed when she quit her job in 2006, with a pain level of 6 out of 10 without her

26

medication, and 4 out of 10 with her medication. AR at 33, 35. She testified that the pain in her

27
6

28

The transcript says ―coding,‖ but this appears to be a typographical error, given the rest of the
record. See, e.g., AR at 404.
13

1

right leg was a 3 or 4 out of 10 with medication. AR at 39. She testified that the pain in her left

2

foot, which she broke in May 2009, was aggravated by wearing shoes. Id. She testified that she

3

had trouble sleeping and she took medication for it. AR at 44. She testified that she took several

4

medications for the pain in her back and Imitrex for migraines, but she had not had a migraine in

5

the past couple months. AR at 48.

6

She testified that Dr. Pang recommended epidural injections, but her two previous

7

injections helped only for a month or so. AR at 41. She testified that she did not have enough

8

money to pay for this procedure. AR at 39–41. She testified that Dr. Pang recommended walking,

9

and she testified that she did take short walks, about a block in one direction and a block home.

10

United States District Court
Northern District of California

11

AR at 42. She testified that she has never had surgery on her low back. AR at 47.
As to her depression, she testified to feeling depressed because she had no energy and

12

because she could no longer do the activities that she used to be able to do. AR at 45. She testified

13

that she was not currently seeing anyone for her depression, and that no one had ever

14

recommended treatment for depression to her. AR at 43. She testified that it was hard for her to get

15

to a doctor‘s office because she had stopped driving after a car accident in 2004 and would need to

16

take a DUI class to reinstate her license. AR at 43, 48.

17

She testified that she spent most days lying on her side and watching television. AR at 36–

18

37. She testified that she took her six-pound dog on short walks about three times a day, and that

19

she could lift him and carry him down the steps. AR at 37, 47. She testified that she could lift a

20

case of water or soda to put it into the refrigerator. AR at 47. She testified that she took showers

21

once a week and prepared meals, usually by microwaving frozen meals. AR at 45. During the

22

hearing, she stood for her testimony, and she explained that she could only sit for about twenty

23

minutes at a time. AR at 37.

24
25
26
27
28

Hann‘s testimony at the hearing was basically consistent with a Function Report that Hann
had filled out on July 28, 2009. AR 212–219.
2.

Vocational Expert’s testimony

At the hearing, Lynn Berkley, a Vocational Expert (―VE‖), testified that Hann‘s previous
work as an optical technician had a light exertional level and a Specific Vocational Preparation
14

1

(―SVP‖) of 7. AR at 51. The VE testified that the optical technician job did not have any

2

transferable skills to sedentary work. Id. She further testified that the optical technician job could

3

not be performed by a hypothetical person of Hann‘s age, education, and work background with

4

the following limitations:

5

lifting and carrying 20 pounds occasionally and 10 frequently;
sitting, standing, walking six hours each in an eight-hour day; no
climbing of ladders, ropes, or scaffolds; occasional stooping and
frequent climbing of ramps and stairs; frequent balancing, kneeling,
crouching, and crawling; no work around heights or operating any
machinery; limited to one or two-step, simple instruction jobs with
occasional contact with public and coworkers.

6
7
8
9
10

AR at 51.

United States District Court
Northern District of California

11

The VE testified that the hypothetical person would not be able to perform the optical

12

technician job because that was a skilled job. AR at 51–52. However, the VE testified that the

13

hypothetical person would be able to perform the jobs of a mail clerk or a garment sorter, as

14

defined in the Department of Labor‘s Dictionary of Occupational Titles (―DOT‖). AR at 52.

15

The VE further testified that the hypothetical person with the additional limitation of only

16

being able to stand for two hours out of eight—corresponding with the ALJ‘s ultimate

17

determination of Hann‘s Residual Functional Capacity, see Part III.B., infra—would be able to

18

perform the job of a small parts assembler, DOT 739.687-030, an unskilled job with an SVP of 2,

19

light exertional level, and a sit/stand option. AR at 52–53. The VE testified that there were

20

approximately 280,000 of these jobs in the national economy and 2,000 in the San Francisco

21

metropolitan area. AR at 53. The VE also testified that this hypothetical person would be able to

22

perform the job of a small products assembler, DOT 706.684.022, an unskilled job with an SVP of

23

2, light exertional level, and a sit/stand option. Id. The VE testified that there were approximately

24

250,000 of these jobs in the national economy and 2,400 in the San Francisco metropolitan area.

25

Id.

26

The VE further testified that the hypothetical person with the additional limitation of

27

needing to be absent from work more than four times a month would not be able to perform any

28

jobs. Id.
15

1

During the hearing, Hann‘s attorney asked the VE whether the small parts assembler and

2

small products assembler jobs identified by the VE would actually have a sit/stand option. AR at

3

56. The VE testified that her incorporation of the sit/stand option was based on her professional

4

experience doing job analyses and being out on work sites. Id. She testified that a common

5

practice in such settings involves the employee sitting at a high stool, and the employee could

6

―pop off[] . . . [and] on . . . as needed.‖ Id. The VE also testified that she had selected these jobs

7

over other jobs because they involved limited interactions with co-workers. AR at 55.
3.

8

Christine Baines’ testimony

On August 7, 2009, Christine Baines (―Baines‖), a friend and part-time in-home care

9

worker for Hann, filled out a Third-Party Function Report. AR at 221–228. Baines stated that she

11
United States District Court
Northern District of California

10

did housework for Hann, and Hann‘s husband paid her for this work. AR at 221, 228.
Baines stated that Hann‘s pain and muscle cramps affected Hann‘s sleep. AR at 222. She

12
13

stated that Hann was depressed. AR at 226. She stated that Hann could walk for one and a half

14

blocks before needing to rest for five minutes. Id. She stated that Hann was afraid of falling and

15

furthering her injury. AR at 227. She stated that Hann was unable to drive, do laundry, do house

16

cleaning, or cook. AR at 222. She stated that Hann was able to care for the household cat by

17

feeding her and sometimes taking care of the litter box. Id. She stated that Hann could fold laundry

18

with breaks. AR at 223. She stated that Hann would go down the block to visit Baines at her house

19

a few times per week. AR at 225.

20

By checking boxes on the form, Baines indicated that Hann‘s conditions affected her

21

ability to lift, walk, climb stairs, squat, sit, bend, kneel, stand, reach, or complete tasks. AR at 226.

22

However, Baines did not indicate that Hann‘s conditions affected her ability to concentrate,

23

understand, follow instructions, or get along with others. Id. She indicated that Hann finished the

24

tasks that she started. Id.

25

III.

ALJ PROCEEDINGS

26

A.

27

A claimant is eligible for disability benefits under the SSA if he is unable ―to engage in

28

Five-Step Analysis

any substantial gainful activity by reason of any medically determinable physical or mental
16

impairment . . . which has lasted or can be expected to last for a continuous period of not less than

2

12 months.‖ 42 U.S.C. § 423(d)(1)(A). See also 42 U.S.C. § 423(a)(1). But the claimant is only

3

disabled if his physical or mental impairments are of such severity that he cannot do his previous

4

work and ―cannot, considering his age, education, and work experience, engage in any other kind

5

of substantial gainful work which exists in the national economy.‖ 42 U.S.C. § 423(d)(2)(A).

6

The Commissioner established a sequential five-step evaluation process to determine whether a

7

claimant meets this definition. 20 C.F.R. § 404.1520(a). If the Commissioner concludes that the

8

claimant is or is not disabled at one of the steps, the Commissioner does not proceed to the next

9

step. Id. § 404.1520(a)(4). Otherwise, the evaluation proceeds to the next step. The claimant bears

10

the burden of proving Steps One through Four. Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007).

11
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Northern District of California

1

At Step Five, the burden shifts to the Commissioner to prove that the claimant can perform other

12

work. See Distasio v. Shalala, 47 F.3d 348, 349 (9th Cir. 1995).

13

At Step One, the Commissioner considers the claimant‘s work history. 20 C.F.R.

14

§ 404.1520(a)(I). If the claimant is doing ―substantially gainful activity,‖ the claimant is not

15

disabled. Id. If not, then the evaluation proceeds to Step Two. Id.

16

At Step Two, the Commissioner considers whether the claimant has a ―severe medically

17

determinable physical or mental impairment‖ or combination of such impairments that has lasted

18

or is expected to last more than 12 months. Id. § 404.1520(a)(ii). An impairment is severe if it

19

―significantly limits [the claimant‘s] physical or mental ability to do basic work activities.‖ Id.

20

§ 404.1520(c). ―[T]he step two inquiry is a de minimis screening device to dispose of groundless

21

claims.‖ Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996) (citing Bowen v. Yuckert, 482 U.S.

22

137, 153–54 (1987)). ―A claim may be denied at step two only if the evidence shows that the

23

individual‘s impairments, when considered in combination, are not medically severe, i.e., do not

24

have more than a minimal effect on the person‘s physical or mental ability(ies) to perform basic

25

work activities.‖ Social Security Ruling (―SSR‖) 85-28. If medical evidence does not clearly

26

establish such a finding that would support denial, the evaluation proceeds to the next step. Id.

27

At Step Three, the Commissioner compares the claimant‘s impairment or impairments

28

with a list of impairments that the Commissioner has determined are disabling (―Appendix 1‖). 20
17

1

C.F.R. § 404.1520(a)(iii). If the impairment—or impairments—―meets or equals‖ an item on the

2

list in terms of severity and meets the duration requirement, the claimant is disabled. Id.

3

Otherwise, the Commissioner proceeds to Step Four. Id.

4

At Step Four, the Commissioner considers the claimant‘s Residual Functional Capacity

5

(―RFC‖). 20 C.F.R. § 404.1520(a)(4)(iv). A claimant‘s RFC is the most the claimant can do in

6

light of the physical and/or mental limitations caused by the impairment(s). Id. § 404.1545. If the

7

claimant can perform his past relevant work, he is not disabled. Id. Past relevant work is work that

8

the claimant has done in the fifteen months prior to the evaluation and was substantial gainful

9

activity that lasted long enough for the claimant to learn to do it. Id. § 404.1560(b)(I). If the
claimant cannot perform his past relevant work, the evaluation proceeds to Step Five. Id.

11
United States District Court
Northern District of California

10

§ 404.1545.

12

At Step Five, the Commissioner considers whether the claimant, in light of his RFC, age,

13

education, and work experience, can make an adjustment to ―other work‖ in the national economy.

14

Id. § 404.1520(a)(v). If the claimant can make an adjustment to other work, he is not disabled. Id.

15

If he cannot, he is disabled and eligible for disability benefits. Id.
ALJ’s Findings

16

B.

17

On April 29, 2011, the ALJ held a hearing in which Hann testified and was represented by

18

counsel. See AR at 29–30. On May 26, 2011, the ALJ issued her decision denying Hann benefits.

19

AR at 8–26.

20
21

At Step One, the ALJ found that Hann had not engaged in substantial gainful activity since
April 28, 2006, the alleged onset date. AR at 13.

22

At Step Two, the ALJ found that Hann had the following severe impairments: back pain,

23

right leg pain, left foot fracture, obesity, and anxiety disorder. AR at 13. The ALJ explained that

24

these impairments were ―severe‖ because the affected Hann ―more than minimally.‖ Id. The ALJ

25

did not include migraine headaches in the list of severe impairments because Hann had testified

26

that she had not had a headache for a few months prior to the hearing. AR at 13–14.

27
28

At Step Three, the ALJ found that Hann did not have an impairment or combination of
impairments that met or medically equaled one of the listed impairments in 20 C.F.R. Part 404,
18

1

Subpart P, Appendix I. AR at 14. As to obesity, the ALJ explained that although obesity has been

2

considered a severe impairment in other cases, it did not, in this case, result in a finding that it by

3

itself or in combination with other impairments met the requirements of a listing.7 Id. The ALJ

4

noted that she gave ―generous[]‖ consideration to Hann‘s weight in the functional limitations

5

evaluation. Id. As to mental impairment, the ALJ considered the ―paragraph B‖ criteria of the

6

psychiatric review technique. Id. (citing 20 C.F.R. § 404.1520a(e)(2)). The ALJ found that Hann‘s

7

limitations—mild restrictions in activities of daily living, moderate difficulties in maintaining

8

social functioning, concentration, persistence or pace, and no documented episodes of

9

decompensation of extended duration—did not cause at least two ―marked‖ limitations or one
―marked‖ limitation and ―repeated‖ episodes of decompensation, each of extended duration and,

11
United States District Court
Northern District of California

10

thus, did not meet the ―paragraph B‖ criteria. AR 14–15. Further, the ALJ found that the ―C‖

12

criteria were not met. AR at 15.
At Step Four, the ALJ found that Hann had the RFC to perform less than the full range of

13
14

light work as defined in 20 C.F.R. 404.1567(b) and 416.967(b). Specifically, the ALJ found:

15

[Hann] can lift and/or carry ten pounds frequently, twenty pounds
occasionally; she can sit for six hours out of an eight-hour workday;
she can stand and/or walk for two hours out of an eight-hour
workday; she can occasionally stoop; she can frequently climb
ramps and stairs, balance, kneel, crouch, and crawl; she cannot
climb ladders, ropes, and scaffolds; she cannot work around heights
or operate machinery; and she is limited to one-to-two step
instruction jobs with occasional contact with the public and
coworkers.

16
17
18
19
20
21

AR at 15. The ALJ explained that this RFC assessment reflected the degree of limitation that she

22

had found in the ―paragraph B‖ analysis at Step Three. Id. The ALJ stated that in making this

23

assessment, she had considered all symptoms and the extent to which these symptoms could

24

reasonably be accepted as consistent with the objective medical evidence and other evidence, and

25

she had also considered opinion evidence. Id.
When determining Hann‘s RFC, the ALJ applied a two-step process. First, she looked at

26
27
28

7

The ALJ noted that Hann was 5‘2‘‘ and 169 pounds. AR at 14.
19

1

whether there was an underlying medically determinable physical or mental impairment, i.e., one

2

that could reasonably be expected to produce Hann‘s pain or other symptoms. AR at 15. Second,

3

she evaluated the intensity, persistence and limiting effects of Hann‘s symptoms to determine the

4

extent to which they limited her functioning. Id. Whenever certain pain or symptom statements

5

were not substantiated by objective medical evidence, the ALJ made findings as to the credibility

6

of such statements based on a consideration of the entire case record. AR at 15–16.

7

Applying this two-step process, the ALJ found that Hann‘s medically determinable

8

impairments could reasonably be expected to cause the alleged symptoms. AR at 17. However, the

9

ALJ found that some of Hann‘s statements regarding pain or symptoms were not credible based on

10

a consideration of the entire case record. See AR at 17–19.
The ALJ stated that she had considered all of the medical records. Id. She cited, inter alia,

United States District Court
Northern District of California

11
12

Hann‘s July 9, 2004 x-ray of her lumbar spine,8 December 14, 2005 x-ray of her cervical spine,

13

February 8, 2007 MRI of her lumbar spine, February 20, 2007 x-ray and MRI of her bilateral hips,

14

March 27, 2007 bone scan of her hips and pelvis, May 6, 2009 x-ray of her left foot, July 9, 2009

15

x-ray of her left foot, and January 8, 2010 x-ray of her left foot. AR at 17–18. The ALJ also cited

16

Hann‘s visits to Dr. Chin, Dr. Schakel, Dr. Pang, and Dr. Gonick-Hallows. Id.

17

The ALJ gave little weight to the RFC Questionnaire filled out by Dr. Chin on April 19,

18

2007. AR at 18–19. The ALJ found that there was no medical basis for Dr. Chin‘s findings that

19

Hann‘s symptoms would occasionally interfere with her attention and concentration, and that she

20

would miss more than four days a week of work each month. Id. The ALJ explained that she was

21

giving this evidence little weight because there was no medical basis for this finding based on the

22

record. AR at 19. The ALJ pointed out that Dr. Chin‘s own notes, just two months prior to his

23

filling out the form, stated that Hann‘s February 8, 2007 MRI showed only mild degeneration. Id.
The ALJ gave great weight to the opinion of Dr. Gonick-Hallow‘s psychological

24
25
26
27
28

8

The ALJ‘s decision indicates that this x-ray was taken on July 8, 2004 but this appears to be a
typographical error because she cites to an x-ray dated July 9, 2004. See AR 17 (citing exhibit at
AR 336). See also AR at 328 (Dr. Chin noting normal results from an x-ray taken on July 9,
2004).
20

1

examination of Hann. Id. The ALJ found that Dr. Gonick-Hallows opinions regarding Hann‘s

2

abilities—i.e., ability to carry out simple one- and two-part instructions, moderate deficits in terms

3

of ability to interact effectively with co-workers, supervisors, and the public, and moderate

4

difficulty managing usual work-related stresses—were consistent with the record. Id.

5

The ALJ gave significant weight to the physical state agency review physicians who

6

opined that Hann was capable of a light exertional level, because she found that these observations

7

were consistent with the record as a whole. Id. Similarly, the ALJ gave significant weight to the

8

mental state agency review physicians who opined that Hann had mild psychological limitations.

9

Id. The ALJ noted, however, that she had given more weight to the subjective complaints of Hann

10

and to the opinion of Dr. Gonick-Hallows, which revealed moderate mental limitations. Id.

United States District Court
Northern District of California

11

The ALJ considered Hann‘s testimony. AR at 16. The ALJ noted that despite Hann‘s

12

alleged limitations regarding difficulty sitting and standing, and pain with her left foot, Hann stood

13

during the hearing. Id. The ALJ also pointed out that Hann acknowledged that she does the dishes,

14

dust mops the floor, and makes the bed on a daily basis. Id. The ALJ further noted that she can

15

make herself simple meals and pick up her six-pound dog to carry him outside. Id. The ALJ

16

further noted that Hann acknowledged that she is able to perform various activities, such as going

17

outside three times a day, taking walks, going out alone, and spending time with neighbors. Id.

18

The ALJ considered the Third-Party Function Report from Baines and found that it was

19

credible only to the extent that the statements were consistent with the conclusion that Hann could

20

do the work described in the ALJ‘s decision, e.g., walking daily, cleaning the cat‘s litter box, and

21

doing the laundry. Id. The ALJ noted that Baines‘s statements were not under oath. Id. The ALJ

22

further noted that Baines was serving as an in-home supportive services worker who was paid by

23

Hann‘s husband and, thus, had a financial interest in seeing Hann receive benefits. Id. The ALJ

24

further noted that her statements were not supported by the clinical or diagnostic medical evidence

25

in the record. Id.

26
27
28

The ALJ found that Hann was unable to perform any past relevant work as an optical
technician, because that was a skilled job requiring public contact. AR at 19–20.
At Step Five, the ALJ found that considering Hann‘s age (45 years old at the time of the
21

1

alleged onset date), education (high school), and work experience, there were jobs that existed in

2

significant numbers in the national economy to which Hann was capable of making a successful

3

adjustment. Id. In making this determination, the ALJ considered the VE‘s testimony. AR at 20.

4

The VE testified that an individual with Hann‘s characteristics would be able to perform

5

occupations such as (1) small parts assembler, DOT 739.687-030, light unskilled, SVP 2, with

6

2,000 jobs in the local economy and 280,000 in the national economy, and (2) small products

7

assembler, DOT 706.684-022, light, unskilled, SVP 2, with 2,400 jobs in the local economy and

8

25,000 in the national economy. Id. The ALJ stated in her decision that pursuant to SSR 00-4p, the

9

VE‘s testimony was consistent with the information contained in the DOT. Id.
The ALJ concluded that Hann had not been under a disability from April 28, 2006 through

10

United States District Court
Northern District of California

11

the date of the decision. Id.

12

IV.

13

STANDARD OF REVIEW
When reviewing the Commissioner‘s decision, the Court takes as conclusive any findings

14

of the Commissioner which are free from legal errors and ―supported by substantial evidence.‖ 42

15

U.S.C. § 405(g). Substantial evidence is relevant evidence that a reasonable mind might accept as

16

adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting

17

Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). Substantial evidence means ―more

18

than a mere scintilla‖ but ―less than a preponderance.‖ Desrosiers v. Sec’y of Health and Human

19

Serv., 846 F.2d 573, 576 (9th Cir. 1988) (citations omitted). Even if the Commissioner‘s findings

20

are supported by substantial evidence, they should be set aside if proper legal standards were not

21

applied when using the evidence to reach a decision. Benitez v. Califano, 573 F.2d 653, 655 (9th

22

Cir. 1978). In reviewing the record, the Court must consider both the evidence that supports and

23

detracts from the Commissioner‘s conclusion. Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir.

24

1996). See also Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998). ―The ALJ is responsible for

25

determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities.‖

26

Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995) (citing Magallanes v. Bowen, 881 F.2d

27

747, 750 (9th Cir. 1989)). The Court ―must uphold the ALJ‘s decision where the evidence is

28

susceptible to more than one rational interpretation.‖ Id. at 1039–40. However, a reviewing court
22

1

must consider the entire record as a whole and may not affirm simply by isolating a ―specific

2

quantum of supporting evidence.‖ Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)

3

(citing Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989)).

4

V.

5

ANALYSIS
Hann argues that the ALJ‘s decision should be reversed for three reasons: (1) Hann is

6

unable to perform any of the alternative work identified, in light of her limitation to jobs with one-

7

or two-step instructions; (2) the ALJ failed to articulate specific and legitimate reasons for

8

rejecting the opinions of Dr. Chin, the treating physician; and (3) the ALJ failed to properly

9

evaluate the opinions of Dr. Gonick-Hallows, the psychologist whom the ALJ accorded great
weight. Pl.‘s Mot. at 3. The Commissioner counters that: (1) the ALJ properly relied on the VE‘s

11
United States District Court
Northern District of California

10

testimony to conclude that Hann could perform the alternative work identified; (2) the ALJ gave

12

good reasons for rejecting Dr. Chin‘s medical opinions; and (3) the ALJ properly translated Dr.

13

Gonick-Hallows opinion to craft an appropriate RFC. Def.‘s Mot. at 11, 17, 20.

14

For the reasons explained below, the Court finds that the ALJ‘s decision is supported by

15

substantial evidence and free of reversible legal error. Accordingly, the ALJ‘s decision finding

16

non-disability and denying benefits is AFFIRMED.

17

A.

Whether Hann is Able to Perform Work Identified by the ALJ

18

When an ALJ determines a claimant‘s RFC, the Social Security Administration (―SSA‖)

19

requires the ALJ to consider the claimant‘s exertional (generally physical) or nonexertional

20

(generally mental) limitations. See 20 C.F.R. § 416.969a. Relevant here, the ALJ must take into

21

account whether the claimant has ―difficulty understanding or remembering detailed instructions,‖

22

as opposed to simple instructions, which would constitute a nonexertional limitation. See 20

23

C.F.R. § 416.969a(c)(1)(iii).

24

When an ALJ determines that a claimant, in light of her RFC, may perform certain jobs

25

that exist in the national economy, the ALJ takes administrative notice of reliable job information

26

provided in the DOT. See 20 C.F.R. § 416.966(d)(1). The DOT lists requirements for various jobs,

27

including the level of mental reasoning required. See Kellerman v. Astrue, C 11-4727 PJH, 2012

28

WL 3070781, at *17 (N.D. Cal. July 27, 2012) (citing Meissl v. Barnhart, 403 F. Supp. 2d 981,
23

1

982 (C.D. Cal. 2005)). The DOT uses a six-point scale to classify Reasoning Levels required for

2

specific jobs. Kellerman, 2012 WL 3070781, at *17 (citing Meissl, 403 F. Supp. 2d at 982).
Information from the DOT is usually introduced to an ALJ by a VE. The VE testifies as to

4

whether a person with certain limitations can perform certain jobs listed in the DOT. The ALJ has

5

an affirmative responsibility to ask about any conflict between the VE‘s testimony and the DOT.

6

SSR 00-4p, 2000 WL 1898704, at *4 (S.S.A Dec. 4, 2000). In the event that a conflict arises

7

between the DOT and a VE‘s testimony, ―[n]either the [DOT] nor the [VE] . . . evidence

8

automatically ‗trumps.‘‖ Kellerman, 2012 WL 3070781, at *18 (citing Massachi v. Astrue, 486

9

F.3d 1149, 1153 (9th Cir. 2007); SSR 00-4p, at *2). Rather, if conflict arises, the ALJ must ask the

10

VE to give a reasonable explanation for the conflict. Id. (citing SSR 00-4p, at *4). ―[T]he failure to

11
United States District Court
Northern District of California

3

ask about a conflict is harmless where there is no conflict, or where ‗the vocational expert . . .

12

provided sufficient support for her conclusion so as to justify any potential conflicts.‘‖ Kellerman,

13

2012 WL 3070781, at *18 (quoting Eckard v. Astrue, 2012 WL 669895, at *7 (E.D. Cal. Feb. 29,

14

2012); Massachi, 486 F.3d at 1154 n.19)) (emphasis in original).

15

Here, the ALJ found that Hann‘s RFC included a limitation to jobs that involved ―one-to-

16

two step instruction[s].‖ AR at 15. The ALJ then relied on the VE‘s testimony to find that Hann

17

could perform the small parts assembler and small products assembler jobs. AR at 20. These jobs

18

are classified as Reasoning Level 2, which requires an individual to be able to ―[a]pply

19

commonsense understanding to carry out detailed but uninvolved written or oral instructions‖ and

20

―[d]eal with problems involving a few concrete variables in or from standardized situations.‖ See

21

DOT 706.684-022, 739.687-030.

22

Hann argues that her RFC limitation to one- to two-step instructions precludes her from

23

performing any jobs classified above Reasoning Level 1 and, as a result, she cannot perform the

24

jobs identified by the VE, which are classified as Reasoning Level 2. Pl.‘s Mot. at 4. Hann also

25

argues that because the VE only identified jobs with Reasoning Level 2, an unexplained conflict

26

exists between the VE‘s testimony and the DOT, which is reversible error pursuant to SSR 00-4p.

27

Id. at 6.

28

In response, the Commissioner makes three arguments. First, she argues that a limitation to
24

1

one- to two-step instructions does not preclude a person from performing jobs requiring Reasoning

2

Level 2. Def.‘s Mot. at 12–13, 14–16. The Commissioner argues that Hann‘s RFC is consistent

3

with the DOT description of the small parts assembler and small products assembler jobs because

4

they are both SVP 2, i.e., unskilled work. Id. at 15. The Commissioner also argues that Hann did

5

not produce any evidence of diminished cognitive or reasoning disability. Id. at 15.
Second, the Commissioner argues that although an ALJ is required to ask a VE whether

6
7

her testimony is in conflict with the DOT pursuant to SSR 00-4p, the failure to ask this question is

8

harmless if ―there is no conflict or where the [VE]‘s testimony provides sufficient support to

9

justify any potential conflict.‖ Id. at 14 (quoting Massachi, 486 F.3d at 1154 n.19). The
Commissioner concedes that the ALJ did not ask this question during the hearing, but it contends

11
United States District Court
Northern District of California

10

that the error was harmless because there was no actual conflict between the VE‘s testimony and

12

the DOT. Def.‘s Mot. at 14. The Commissioner also argues that the VE provided sufficient

13

justification of any conflict with her testimony that her findings were based on her experience in

14

the field and working with agencies. Id.
Third, the Commissioner argues that Hann‘s attorney did not pose any questions to the VE

15
16

about DOT Reasoning Levels when he had an opportunity to do so, and that allowing such an

17

argument now would set a ―dangerous precedent by allowing counsel to sit on their hands rather

18

than timely object to VE testimony and ask relevant questions at the administrative hearing.‖ Id.

19

(citing Solorzano v. Astrue, CV 11-369-PJW, 2012 WL 84527, at *6 (C.D. Cal. Jan. 10, 2012)).

20

The Court agrees with the Commissioner‘s first and second arguments in part, and it does

21

not address the third argument.9 For the reasons explained below, a limitation to one- to two-step

22

instructions in an RFC does not, as a matter of law, preclude a claimant from performing jobs

23
24
25
26
27
28

9

The Court rejects the Commissioner‘s first argument to the extent that it depends on the SVP to
show consistency between the DOT and the VE‘s testimony, because the Commissioner
―conflat[es] two separate vocational considerations.‖ Meissl, 403 F. Supp. 2d at 982. An SVP
gauges ―‗the amount of lapsed time‘ it takes for a typical worker to learn the job‘s duties.‖ Id. at
983. In contrast, a Reasoning Level gauges ―the minimal ability a worker needs to complete the
job‘s tasks themselves.‖ Id. Accordingly, the SVP is inapposite to the analysis of whether the
DOT‘s definition of Reasoning Level 2 is consistent with the VE‘s testimony regarding jobs that
Hann could perform with her RFC limitation to one- to two-step instructions.
25

1

classified as Reasoning Level 2 in the DOT. The record here contains substantial evidence that

2

Hann can meet the requirements of Reasoning Level 2. Thus, there was no actual conflict between

3

the VE‘s testimony and the DOT, and the ALJ‘s failure to ask the VE about a potential conflict

4

was harmless.

5

Courts in the Ninth Circuit have held that RFC limitations to ―simple, routine‖ instructions,

6

as well as ―one- to two-step‖ instructions, can both be consistent with Reasoning Level 2. One of

7

the primary cases on this subject is Meissl v. Barnhart. In that case, the ALJ determined that the

8

claimant‘s RFC limited her to jobs involving ―simple tasks performed at a routine pace.‖ Meissl,

9

403 F. Supp. 2d at 982. Given this limitation, the ALJ determined based on a VE‘s testimony that
the claimant could perform work as a telephone information clerk or as a stuffer (machine

11
United States District Court
Northern District of California

10

packager), both of which required Reasoning Level 2. See id. The claimant appealed the ALJ‘s

12

decision, arguing that Reasoning Level 2 was not consistent with a limitation to jobs involving

13

―simple tasks performed at a routine pace.‖ Id. The court disagreed. Id.

14

The Meissl court rejected the claimant‘s argument that the DOT‘s use of the word

15

―detailed‖ in the Reasoning Level 2 description translated directly to the SSA‘s use of the words

16

―detailed instructions‖ in its regulations regarding how an ALJ should shape a claimant‘s mental

17

RFC. See id. That is, there is no ―neat, one-to-one parallel‖ that exists between the SSA‘s

18

classifications regarding RFCs and the DOT‘s definitions of Reasoning Levels. See id. While the

19

DOT‘s six-point scale is ―graduated, measured and finely tuned,‖ the SSA offers only two

20

categories: ―short and simple‖ and ―detailed or complex‖ instructions. Id. (citing 20 C.F.R.

21

§ 416.969a(c)(1)(iii); DOT at 1010–11) (some citations omitted) (internal quotation marks

22

omitted).

23

The court reasoned that taking the claimant‘s position to its logical conclusion, all jobs

24

with a Reasoning Level 2 or higher would fall into the second ―detailed or complex‖ category of

25

the SSA regulations, and that such a result indicated a ―blunderbuss‖ approach. Id. The court also

26

noted that Reasoning Level 2‘s use of the word ―detailed‖ was qualified by the adjective

27

―uninvolved.‖ Id. at 984. Thus, the Meissl court held that an RFC limitation to ―simple tasks

28

performed at a routine pace‖ was consistent with jobs requiring Reasoning Level 2, and the court
26

1

affirmed the ALJ‘s decision. Id. at 985.
The Meissl decision was followed in Eckard v. Astrue. In Eckard, the ALJ determined that

2
3

the claimant‘s RFC limited her to jobs that involved understanding, remembering, and carrying

4

out ―simple one or two step job instructions.‖ Eckard, 2012 WL 669895, at *2. Given this

5

limitation, the ALJ determined based on a VE‘s testimony that the claimant could perform her past

6

work as a stocker, which required Reasoning Level 2. Id. at *2, *7. The claimant appealed the

7

ALJ‘s decision, arguing that Reasoning Level 2 was not consistent with a limitation to jobs

8

involving ―one or two step job instructions.‖ Id. The court disagreed and, relying on Meissl, found

9

that there was no conflict between the VE‘s testimony and the DOT. Id.
Both the Meissl and Eckard decisions were followed by a court in this district in Kellerman

10

United States District Court
Northern District of California

11

v. Astrue. In Kellerman, the ALJ determined that the claimant‘s RFC limited her to jobs that

12

involved understanding, remembering, and carrying out ―simple one or two step job instructions.‖

13

Kellerman, 2012 WL 3070781, at *5. Given this limitation, the ALJ determined based on a VE‘s

14

testimony that the claimant could perform work as a table worker and electronic goods assembler,

15

both of which required Reasoning Level 2. Id. at *6, *17. The claimant appealed the ALJ‘s

16

decision, arguing that Reasoning Level 2 was not consistent with a limitation to jobs involving

17

―one or two step job instructions.‖ Id. The court disagreed and, relying on Meissl and Eckard,

18

expressly held that there was ―no conflict between the DOT‘s level two reasoning and an RFC

19

limitation to ‗simple one or two step instructions,‘‖ and ―[a]ny attempt to distinguish the two was

20

. . . without merit.‖ Id. (citing Eckard, 2012 WL 669895, at *7–*8) (original emphasis removed).

21

See also O’Connor v. Astrue, C-09-01508 JCS, 2010 WL 3785433, at *11 (N.D. Cal. Sept. 27,

22

2010) (rejecting argument that claimant‘s restriction to ―simple, repetitive work‖ and ―very basic

23

one and two step job requirements‖ limited her to positions with Reasoning Level 1 only;

24

collecting cases standing for proposition that limitation to simple, repetitive, or routine tasks are

25

consistent with Reasoning Level 2); Dugas v. Astrue, 1:07-CV-605, 2009 WL 1780121, at *6

26

(E.D. Tex. June 22, 2009) (―limitation of ‗performing 1–2 step instructions in a simple, routine

27

work environment‘ does not necessarily preclude ability to perform jobs with reasoning levels of 2

28

or 3‖).
27

1

Following this precedent, the Court rejects Hann‘s attempt to characterize an RFC‘s

2

limitation to one- to two-step instructions as a distinct, lower level of reasoning than a limitation to

3

simple, repetitive work. See Pl.‘s Mot. at 7. Although the Court agrees with Hann‘s

4

characterization of a one- to two-step limitation as a subset of the SSA regulations‘ classification

5

of simple, repetitive work, the Court does not agree that it is a subset equivalent only to the DOT‘s

6

Reasoning Level 1. See id.

7

The Court acknowledges that some cases, including cases in the Ninth Circuit, have taken

8

a position similar to Hann‘s. The primary case is Grigsby v. Astrue, cited by Hann, in which the

9

court held that ―[t]he restriction to jobs involving no more than two-step instructions is what
distinguishes Level 1 reasoning from Level 2 reasoning.‖ Grigsby v. Astrue, CV 08-1413 AJW,

11
United States District Court
Northern District of California

10

2010 WL 309013, at *2 (C.D. Cal. Jan. 22, 2010). See also, e.g., Pound v. Astrue, EDCV 11-

12

2039-JPR, 2012 WL 4513638, at *4 (C.D. Cal. Oct. 2, 2012) (citing Grigsby, holding that

13

―reasoning level two is meant to require an aptitude greater than being limited to carrying out one-

14

or two step instructions‖); Hamlett v. Astrue, EDCV 11-03818-JEM, 2012 WL 469722, at *4

15

(C.D. Cal. Feb. 14, 2012) (in holding that a one- to two-step limitation was inconsistent with

16

Reasoning Level 3, stating that, according to Grigsby, a ―limitation of two steps of instruction

17

corresponds to Level 1 reasoning.‖); Niemeyer v. Astrue, EDCV 11-1730-MLG, 2012 WL

18

1885085, at *2 (C.D. Cal. May 23, 2012) (citing Grigsby, holding that because of claimant‘s

19

limitation to one- to two-step instructions, claimant ―would ordinarily be precluded from

20

performing jobs with a Level 2 reasoning development.‖).

21

The crux of the holding Grigsby is that there was no basis for ―el[]iding the difference‖

22

between Reasoning Levels 1 and 2. Grigsby, 2010 WL 309013, at *2. That is, the DOT‘s

23

definition of Reasoning Level 1 expressly includes in its definition a requirement that an

24

individual can ―carry out simple one- or two-step instructions.‖ See id. at *2. The argument is that

25

because this ―one- or two-step‖ language is included in the DOT‘s definition of Reasoning Level

26

1, an RFC that includes similar language corresponds only with Reasoning Level 1, and nothing

27

higher. See Pl.‘s Mot. at 4–5.

28

To the extent that Grigsby and the cases that cite it stand for the proposition that a
28

1

limitation to one- to two-step instructions is consistent only with Reasoning Level 1, this Court

2

disagrees. The Grigsby court and Hann‘s arguments rely solely on the DOT‘s definitions to justify

3

their conclusions. The Court finds that the reasoning in Meissl, Eckard, and Kellerman is more

4

persuasive. Those cases, instead of relying on the DOT‘s definitions alone, explained that there is

5

not ―a neat, one-to-one parallel that exists between‖ the DOT and SSA regulations. See Meissl,

6

403 F. Supp. 2d at 984. For example, as the Meissl court explained, while Reasoning Level 2

7

requires that a worker be able to follow ―detailed‖ instructions, these are limited to instructions

8

that are ―uninvolved.‖ Id. at 984.

9

Furthermore, in this case, Hann‘s one- to two-step limitation in her RFC is not qualified by
adjectives such as ―simple‖ or ―very basic.‖ In contrast, the definition of Reasoning Level 1

11
United States District Court
Northern District of California

10

requires a person to carry out only ―simple one- or two-step instructions.‖ See Grigsby, 2010 WL

12

309013, at *2 (emphasis added). The implication is that different claimants may have varying

13

levels of abilities—some may be able to handle more complicated one- to two-step instructions

14

while others can only handle simpler ones. Thus, the correlation of a one- to two-step limitation in

15

an RFC to Reasoning Level 1 is not exact. See Meissl, 403 F. Supp. 2d at 984.

16

Hann cites to other cases outside of the Ninth Circuit that are not persuasive. See Pl.‘s

17

Reply at 10 (citing Moore v. Astrue, 623 F.3d 599, 604 (8th Cir. 2010); Santos v. Astrue, 709 F.

18

Supp. 2d 207, 212 (S.D.N.Y. 2010)). In Moore, the court held that the ―simple, routine‖ limitation

19

did not restrict a claimant to Reasoning Level 1 jobs. See Moore, 623 F.3d at 604. In the course of

20

this holding, the court noted—without elaboration or citation—that ―the ALJ did not limit ‗simple‘

21

job instructions to ‗simple one- or two-step instructions‘ or otherwise indicate that [the claimant]

22

could perform only occupations at a DOT Level 1 reasoning level.‖ See id. (emphasis in original).

23

In Santos, the court found that the ALJ erred in finding that a claimant with an RFC limitation to

24

―one or two step tasks‖ could perform Reasoning Level 2 jobs. Santos, 709 F. Supp. 2d at 212.

25

The court—without elaboration or citation—stated that limitations to ―‗simple one or two step

26

tasks‘ and ‗simple instructions,‘‖ were ―commensurate with‖ Reasoning Level 1. See id. To the

27

extent that these cases stand for a proposition that a limitation to one- to two-step instructions

28

restricts a claimant to Reasoning Level 1, the Court declines to follow them. Again, the Court
29

1

finds that the reasoning in Meissl, Eckard, and Kellerman is more persuasive.
Thus, a limitation to one- to two-step instructions does not, as a matter of law, preclude a

2
3

claimant from all jobs requiring Reasoning Level 2. However, such a limitation does not

4

necessarily mean that, as a matter of law, a claimant can actually perform all jobs requiring

5

Reasoning Level 2. See Dugas, 2009 WL 1780121, at *6 (―It is a possibility that some jobs

6

requiring reasoning level 2 or higher may conflict with plaintiff‘s specific limitations.‖). Here, the

7

record supports the ALJ‘s finding that Hann can perform jobs requiring Reasoning Level 2.

8

According to Dr. Gonick-Hallows‘ examination, which the ALJ gave great weight, Hann had

9

―average‖ abstract reasoning in the verbal realm and ―average to mildly below average‖ abstract
reasoning in the visual realm. AR at 404. Her vocabulary and syntax were average, and her speech

11
United States District Court
Northern District of California

10

was mostly clear and to the point. Id. During the testing session, Hann put forth adequate effort,

12

appeared to understand the instructions, and worked at logic problems of average complexity. Id.

13

Her I.Q. was on the low end of average. Id. Her GAF score was consistent with a patient who has

14

mild symptoms but is generally functioning well. AR at 405. Such findings constitute substantial

15

evidence of Hann‘s ability to meet Reasoning Level 2‘s requirements to ―[a]pply commonsense

16

understanding to carry out detailed but uninvolved written or oral instructions‖ and ―[d]eal with

17

problems involving a few concrete variables in or from standardized situations.‖ See DOT

18

706.684-022, 739.687-030.

19

Here, the record shows that Hann is capable of meeting the requirements set forth by

20

Reasoning Level 2. It follows that there was no actual conflict between the ALJ‘s determination of

21

Hann‘s RFC limitation to one- to two-step instructions and the VE‘s testimony that Hann could

22

perform the Reasoning Level 2 jobs of a small parts assembler and a small products assembler.

23

Thus, the ALJ‘s failure to ask the VE about a potential conflict between her testimony and the

24

DOT was harmless.10 See Massachi, 486 F.3d at 1154 n.19.

25
26
27
28

10

The Court rejects the Commissioner‘s argument that the VE sufficiently justified any conflict
during the hearing. See Def.‘s Mot. at 14. Hann is correct that the VE‘s testimony to which the
Commissioner points in service of this argument is irrelevant to the one- to two-step instruction
issue. See Pl.‘s Mot. at 8–9.
30

B.

1

Whether the ALJ Articulated Specific and Legitimate Reasons for Rejecting
Dr. Chin’s RFC Questionnaire

2

When weighing medical opinions, the greatest weight is normally given to the treating

3

physician ―because ‗he is employed to cure and has a greater opportunity to know and observe the

5

patient as an individual.‘‖ Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir.

6

2004); Magallanes v. Bowen, 881 F.2d at 751 (quoting Sprague v. Bowen, 812 F.2d 1226, 1230

7

(9th Cir. 1987)). If the treating physician‘s opinion is uncontroverted, the ALJ may only reject it

8

by presenting clear and convincing reasons for doing so. See Magallanes, 881 F.2d at 751.

9

However, if the treating physician‘s opinion is contradicted by the opinion of an examining

10

physician, the ALJ may reject the opinion of a treating physician by ―setting forth specific,

11
United States District Court
Northern District of California

4

legitimate reasons for doing so that are based on substantial evidence in the record.‖ Thomas v.

12

Barnhart, 278 F.3d 947, 957 (9th Cir. 2002) (quoting Magallanes, 881 F.2d at 751) (internal

13

quotation marks omitted). The ALJ can ―meet this burden by setting out a detailed and thorough

14

summary of the facts and conflicting clinical evidence, stating [her] interpretation thereof, and

15

making findings.‖ Thomas, 278 F.3d at 957 (quoting Magallanes, 881 F.2d at 751).
Here, the ALJ gave little weight to treating physician Dr. Chin‘s opinions that Hann‘s

16
17

symptoms would occasionally interfere with her attention and concentration, and that she would

18

miss more than four days a week of work each month. AR at 18. The ALJ explained:
There is no medical basis for this finding due to [Hann‘s] conditions
as described herein. Dr. Chin‘s own notes, just two months before
he filled out the form, states that the claimant‘s MRI showed only
mild degeneration. Therefore, this opinion is given little weight.

19
20
21

22

AR at 19.
Hann argues that this explanation does not constitute specific and legitimate reasons for

23
24

rejecting Dr. Chin‘s RFC Questionnaire.11 First, Hann argues that a mere statement that there is no

25

medical basis for a finding is insufficient. Pl.‘s Mot. at 9 (citing Regennitter v. Comm’r of Soc.

26

Sec. Admin., 166 F.3d 1294 (9th Cir. 1999); Embrey v. Bowen, 849 F.2d 418 (9th Cir. 1988)).

27
11

28

Although Hann‘s argument refers to Dr. Chin‘s opinions generally, the Court finds it apparent
from the pleadings that the key opinions at issue here are contained in the RFC Questionnaire.
31

1

Second, Hann argues that the ALJ should have considered the broader context of Dr.

2

Chin‘s treatments, rather than focusing only on his notes regarding a particular MRI. Pl.‘s Mot. at

3

9. For example, Hann points out that Dr. Chin prescribed strong narcotic medications such as MS

4

Contin, which is essentially morphine, just a few days after evaluating the MRI, and that he also

5

prescribed epidural injections. See id. Hann argues that the ALJ, as a lay person, is not qualified to

6

interpret raw medical data in functional terms. Id. at 10 (citing Padilla v. Astrue, 541 F. Supp. 2d

7

1102, 1106 (C.D. Cal. 2008); Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999); Day v.

8

Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975)).

9

Third, Hann points out that the ALJ accounted for Dr. Chin‘s opinions regarding lifting,
carrying, sitting, standing, maintaining attention, maintaining concentration, and absenteeism, but

11
United States District Court
Northern District of California

10

the ALJ did not account for Dr. Chin‘s other opinions regarding, for example, Hann‘s need to

12

walk to alleviate pain symptoms and her need for unscheduled work breaks. Pl.‘s Mot. at 10. Hann

13

argues that if the record contains any medical source statement that the ALJ ultimately chooses not

14

to adopt, the ALJ must provide good reasons to support that rejection. Id. (citing SSR 96-8p).

15

Hann argues that the Smolen test should apply, and that the Court should reverse the ALJ‘s

16

decision and award benefits to Hann. Pl.‘s Mot. at 11 (citing Smolen v. Chater, 80 F.3d 1273,

17

1292 (9th Cir. 1996)).

18

The Commissioner argues that the ALJ gave three specific, legitimate reasons for rejecting

19

Dr. Chin‘s opinions. First, the Commissioner points out that the ALJ gave a detailed summary of

20

the medical evidence showing mild objective findings, which was incorporated by reference to

21

support her conclusion that Dr. Chin‘s opinions were inconsistent: ―There is no medical basis for

22

this finding due to [Hann‘s] conditions as described herein.‖ See Def.‘s Mot. at 18 (citing AR at

23

19). Second, the Commissioner argues that the ALJ found that Dr. Chin‘s opinions were

24

inconsistent with his own records documenting conservative treatment. See Def.‘s Mot. at 18. The

25

Commissioner also notes that although Dr. Chin did prescribe epidural injections, he did not

26

prescribe the more invasive option of surgery. Def.‘s Mot. at 20. Third, the Commissioner argues

27

that the ALJ found that some of Dr. Chin‘s opinions were contradicted by Dr. Gonick-Hallows‘

28

opinions. See Def.‘s Mot. at 18.
32

The Commissioner also responds to Hann‘s argument that the ALJ is ―not qualified to

1
2

interpret raw medical data‖ by arguing that the ALJ offered no medical opinion but instead

3

properly observed inconsistencies between Dr. Chin‘s opinions and the objective medical

4

evidence. Def.‘s Mot. at 20 (citing Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008)).
The Court generally agrees with the Commissioner. As an initial matter, the parties do not

5

appear to dispute that Dr. Chin‘s RFC Questionnaire was contradicted by the opinions of

7

examining physicians. See Pl.‘s Mot. at 8–9 (employing ―specific and legitimate reasons‖ standard

8

rather than the ―clear and convincing‖ standard); Thomas, 278 F.3d at 957 (quoting Magallanes,

9

881 F.2d at 751)). Hann also does not substantively respond to the Commissioner‘s third argument

10

that Dr. Chin‘s opinions were contradicted by Dr. Gonick-Hallows‘ opinions. Applying the proper

11
United States District Court
Northern District of California

6

standard, the Court finds that the ALJ gave specific and legitimate reasons for rejecting Dr. Chin‘s

12

opinions.
The ALJ‘s explanation that ―[t]here is no medical basis for this finding due to [Hann‘s]

13
14

conditions as described herein‖ was sufficient to incorporate by reference the preceding two pages

15

of the decision that included summaries of objective and subjective medical evidence. See AR at

16

17–18 (emphasis added). Specifically, the ALJ noted that a July 9, 2004 x-ray of Hann‘s lumbar

17

spine was normal,12 a December 14, 2005 x-ray of her cervical spine revealed mild degenerative

18

changes, a February 8, 2007 MRI of the lumbar spine revealed mild DDD, a February 20, 2007 x-

19

ray her bilateral hips and pelvis was normal, a February 20, 2007 MRI of her bilateral hips and

20

pelvis was normal, a March 27, 2007 bone scan of her hips and pelvis revealed focal mildly

21

increased activity posteriorly, and the most recent x-ray of her left foot from February 26, 2010

22

revealed that the fractures had healed. Id. The ALJ also highlighted certain aspects of Hann‘s

23

visits to Dr. Chin, Dr. Pang, Dr. Schakel, and Dr. Gonick-Hallows. Id. The ALJ found that in light

24

of this objective medical evidence, Dr. Chin‘s opinions—i.e., Hann could handle sedentary work

25

with a sit/stand option, but she would miss more than four days a week of work each month, and

26

her symptoms would interfere with her attention and concentration occasionally—were not

27
12

28

The ALJ‘s decision indicates that this x-ray was taken on July 8, 2004, but it appears that this is
a typographical error and should refer instead to July 9, 2004. See supra, n.8.
33

1

supported by the record.

2

The ALJ‘s analysis was proper. Immediately preceding her rejection of Dr. Chin‘s

3

opinions, the ALJ properly ―set[] out a detailed and thorough summary of the facts and conflicting

4

clinical evidence.‖ See AR 17–18; Thomas, 278 F.3d at 957 (quoting Magallanes, 881 F.2d at

5

751). She then gave her interpretation of this evidence by stating that this evidence did not support

6

Dr. Chin‘s opinions. See AR at 19. She highlighted the lack of support by pointing out that Dr.

7

Chin‘s then-recent observations of Hann‘s February 8, 2007 MRI noted only mild DDD. See AR

8

at 19. See, e.g., Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 2001) (affirming ALJ decision

9

that rejected treating physician‘s opinions because, inter alia, the treating physician, two months
prior to opining that claimant was disabled, had noted that that claimant was not disabled and

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United States District Court
Northern District of California

10

recommended a conservative course of treatment). The ALJ ultimately found that Hann had ―the

12

capacity to do a less than full range of light work, as reflected by the [RFC].‖ AR at 19.

13

Thus, the ALJ summarized the evidence, interpreted it, and stated her findings, which met

14

her burden to set forth specific, legitimate reasons for rejecting Dr. Chin‘s opinions. See Thomas,

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278 F.3d at 957 (quoting Magallanes, 881 F.2d at 751). Contrary to Hann‘s contentions, the

16

record shows that the ALJ did more than merely ―say that medical opinions are not supported by

17

sufficient objective findings,‖ and she did in fact consider the context of the ―clinical picture.‖ See

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Pl.‘s Mot. at 9. The ALJ also adequately accounted for the whole of Dr. Chin‘s opinions by

19

considering them and deciding, based on other evidence in the record, to not give them great

20

weight. See id. at 10. Accordingly, the Court finds that the ALJ gave specific, legitimate reasons

21

for rejecting Dr. Chin‘s opinions based on substantial evidence in the record. See Thomas, 278

22

F.3d at 957 (quoting Magallanes, 881 F.2d at 751).

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C.

Whether the ALJ Properly Evaluated Dr. Gonick-Hallows’ Opinions

24

Hann argues that the ALJ erred because she failed to properly evaluate consultative

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psychologist Dr. Gonick-Hallows‘ opinions expressed in the October 19, 2009 psychological

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evaluation, despite giving these opinions great weight. Pl.‘s Mot. at 11.

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1.

Limitation regarding interaction with supervisors

Dr. Gonick-Hallows opined that Hann might have moderate deficits in her ability to
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interact with the public, co-workers, and supervisors. AR at 405. Although the ALJ crafted an

2

RFC that contained a limitation regarding Hann‘s ability to interact with co-workers and the

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public, Hann argues that the RFC shouls have also included a limitation regarding interaction with

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supervisors. Pl.‘s Mot. at 11; Pl.‘s Reply at 13–14. The Commissioner responds that the ALJ

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properly synthesized Dr. Gonick-Hallows‘ findings into the RFC. Def.‘s Mot. at 21. The

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Commissioner relies on Stubbs-Danielson v. Astrue, which held that an ALJ may ―translate‖

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physicians‘ findings of a claimant‘s limitations into concrete restrictions in the RFC assessment.

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539 F.3d 1169, 1173 (9th Cir. 2008). Hann replies that no translation was necessary, because Dr.

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Gonick-Hallows‘ finding clearly applied to supervisors, as well as to co-workers and the public.
Pl.‘s Reply at 13–14. The Commissioner argues that even if the ALJ erred by not including a

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Northern District of California

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limitation specifically regarding supervisors, any error would be harmless. Id. (citing Molina v.

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Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012)).

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The Court agrees with Commissioner‘s last argument. Although the ALJ erred in failing to

14

include a limitation regarding interaction with supervisors in Hann‘s RFC, any error in this regard

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was harmless.

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In Stubbs-Danielson, an evaluating physician identified the claimant as moderately or

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mildly limited in several mental functioning areas, but did not assess whether she could perform

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work on a sustained basis. Id. at 1173. The state agency reviewing psychologist also identified

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moderate limitations in several mental functioning areas and concluded that the claimant retained

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the ability to ―carry out simple tasks.‖ Id. The ALJ denied benefits and, on appeal to the Ninth

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Circuit, the claimant argued that the ALJ‘s finding of a limitation to ―simple, routine, repetitive‖

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work failed to capture the limitations identified by the evaluating physician. Id. at 1172. The Court

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disagreed, and it concluded that the RFC properly incorporated the identified limitations, because

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25
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[t]he ALJ translated Stubbs-Danielson‘s condition . . . into the only
concrete restrictions available to him—[the state agency reviewing
psychologist] recommended restriction to ―simple tasks.‖ This does
not, as Stubbs-Danielson contends, constitute a rejection of [the
evaluating physician‘s] opinion.
Stubbs-Danielson, 539 F.3d at 1174. In other words, an ALJ can properly ―translate‖ opinions
35

1

from one or more physicians into a limitation in a claimant‘s RFC.

2

However, where an ALJ has already found a physician‘s opinions to be credible and

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concrete, an ALJ can err by omitting aspects of that physician‘s opinions from the RFC. For

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example, in Gentry v. Colvin, 1:12-CV-01825-SKO, 2013 WL 6185170 (E.D. Cal. Nov. 26,

5

2013), the court found that the ALJ made reversible error where a physician, credited by the ALJ,

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had opined that the claimant had limitations as to the public, co-workers, and supervisors, but the

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RFC only included a limitation regarding the public. The court reasoned that ―[u]nlike [Stubbs-

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Danielson], a limited ability to interact with supervisors and co-workers is conducive to the

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formulation of a concrete restriction in the RFC in the same way the ALJ created a restriction in
the RFC accounting for [claimant‘s] limited ability to have contact with the public.‖ Gentry, 2013

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United States District Court
Northern District of California

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WL 6185170, at *16.

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The Gentry court further distinguished Stubbs-Danielson by explaining that in that case,

13

the RFC‘s limitation for simple, repetitive tasks ―bore a logical nexus‖ to the physician‘s opinions

14

that the claimant was arguing had been omitted or rejected. Id. The Gentry court found that, in its

15

case, the Commissioner had failed to identify any limitations in the RFC that bore a ―nexus‖ to, or

16

otherwise captured, the co-worker and supervisor limitations. See id. Thus, the court ordered that

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―[o]n remand, the ALJ must either set forth reasons why this portion of [the physician‘s] opinion

18

was rejected or include the limitations in claimant‘s RFC and solicit testimony from a VE

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regarding whether an individual with such limitations can perform work available in the

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economy.‖ Id.

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In the instant case, the ALJ gave great weight to Dr. Gonick-Hallows opinions, including

22

his opinion that Hann appeared to have moderate deficits in terms of her ability to interact

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effectively with the public, co-workers, and supervisors. AR 19, 405. However, the ALJ crafted an

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RFC that provided a limitation to ―occasional contact with the public and co-workers,‖ with no

25

mention of supervisors. See AR at 15. Because Dr. Gonick-Hallows‘ opinion of Hann‘s limitations

26

applied to all three of these categories of people—and this opinion was concrete, not requiring

27

―translation‖—the ALJ should have included it as a limitation in her RFC. See Gentry, 2013 WL

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6185170, at *16.
36

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However, the Court finds that this error is harmless. The Ninth Circuit has explained that

2

the Supreme Court case Shinseki v. Sanders ―establishes that administrative adjudications are

3

subject to the same harmless error rule as generally applies to civil cases.‖ Ludwig v. Astrue, 681

4

F.3d 1047, 1054 (9th Cir. 2012) (citing Shinseki v. Sanders, 556 U.S. 396, 407 (2009); Molina v.

5

Astrue, 674 F.3d 1104, 1118 (9th Cir. 2012); McLeod v. Astrue, 640 F.3d 881, 888 (9th Cir.

6

2011)). ―Reversal on account of error is not automatic, but requires a determination of prejudice.‖

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Ludwig, 681 F.3d at 1054. This determination entails ―case-specific application of judgment,

8

based upon examination of the record,‖ not ―mandatory presumptions and rigid rules.‖ Id. (citing

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Shinseki, 556 U.S. at 407). Specifically,

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Northern District of California

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the factors that inform a reviewing court‘s ―harmless-error‖
determination are various, potentially involving, among other casespecific factors, an estimation of the likelihood that the result would
have been different, an awareness of what body (jury, lower court,
administrative agency) has the authority to reach that result, a
consideration of the error‘s likely effects on the perceived fairness,
integrity, or public reputation of judicial proceedings, and a
hesitancy to generalize too broadly about particular kinds of errors
when the specific factual circumstances in which the error arises
may well make all the difference.

16
17

Id. (citing Shinseki, 556 U.S. at 411–12). Although a ―claimant need not necessarily show what

18

other evidence might have been obtained had there not been error,‖ she ―does have to show at least

19

a ‗substantial likelihood of prejudice.‘‖ Ludwig, 681 F.3d at 1055 (quoting McLeod, 640 F.3d at

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888). See also Molina, 674 F.3d at 1111 (9th Cir. 2012) (quoting Shinseki, 556 U.S. at 409 (―[T]he

21

burden of showing that an error is harmful normally falls upon the party attacking the agency‘s

22

determination.‖); Dukellis v. Colvin, C-12-05534 JSC, 2013 WL 6852040, at *7 (N.D. Cal. Dec.

23

30, 2013) (quoting Molina, 674 F.3d at 1111) (―[W]e may not reverse an ALJ‘s decision on

24

account of an error that is harmless.‖).

25

Here, although a determination of harmlessness may have some effect on the perceived

26

fairness of the ALJ proceedings, the Court finds that this consideration is outweighed by the fact

27

that the ALJ is unlikely to come to a different conclusion if the case is remanded to correct this

28

one small error. That is, the only possible prejudice is that if the supervisor limitation had been
37

1

included, the VE would not have been able to identify any alternative jobs existing in significant

2

numbers in the national economy that Hann could perform. However, Hann does not demonstrate

3

a substantial likelihood that this is the case. Hann has not presented a single argument or pointed

4

to any evidence that the VE‘s answers to the ALJ‘s hypotheticals might have changed if a

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supervisor limitation had been included. Cf. O’Connor, 2010 WL 3785433, at *11 (ALJ properly

6

relied on VE‘s testimony that hypothetical person limited to ―no more than occasional contact

7

with coworkers, the public, or supervisors‖ could perform job as bench assembly clerk).

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Further, as the Commissioner points out, Hann does not make any argument that the jobs
identified by the VE would actually entail more than occasional contact with supervisors. See
Def.‘s Mot. at 23. The VE expressly stated she identified jobs where an individual would ―have

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Northern District of California

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[her] own components‖ and ―work on them on [her] own.‖ AR 55. The VE explained that she had

12

identified the small parts assembler and small products assembler jobs in particular, over other

13

types of assembly jobs, because they involved limited contact with others:

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And that‘s what I was looking up . . . to make sure that I wasn‘t
giving you something that you were passing down so on in assembly
line [sic]. If you put a piece together then the next person put [sic]
another one then it‘s a team effort and that would imply frequent
contact with coworkers. But if you‘re doing your own parts then you
would only have occasional. And that‘s why I used those two
examples.

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Id. Additionally, the jobs identified by the VE both have a Worker Function code regarding the

20

jobs‘ relationship to people of 8, i.e., ―Taking Instructions-Helping,‖ which indicates the lowest

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level of interaction with people that is necessary for jobs listed in the DOT. See DOT 706.684-

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022, 739.687-030; DOT, Parts of the Occupational Definition, 1991 WL 645965 (explaining that

23

middle three digits in a DOT occupational code constitute the Workers Functions code and the

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second of these digits relates to interaction with people on a scale of 1–8, and ―functions which are

25

less complicated have higher numbers.‖). Level 8, ―Taking Instructions-Helping,‖ entails

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―[a]ttending to the work assignment instructions or orders of supervisor‖ and ―[n]o immediate

27

response required unless clarification of instructions or orders is needed.‖ DOT, Appendix B,

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Explanation of Data, People, Things, 1991 WL 688701. The next level up, ―Serving,‖ which is
38

1

indicated by a digit 7, requires the more advanced social skills of ―[a]ttending to the needs or

2

requests of people or animals or the expressed or implicit wishes of people‖ and ―[i]mmediate

3

response is involved.‖ Id.

4

The Court also notes that Dr. Paxton, to whom the ALJ gave significant weight, found that

5

while Hann was moderately limited in her ability to ask simple questions or request assistance, she

6

was not significantly limited in her ―ability to accept instructions and respond appropriately to

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criticism from supervisors.‖ AR at 407.
The instant case is distinguishable from Gentry on the facts because, in that case, both the

8

co-worker and supervisor limitations were omitted. Here, only the supervisor limitation was

10

omitted. The RFC‘s limitation regarding co-workers has a ―logical nexus‖ to the limitation

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Northern District of California

9

regarding supervisors. See Gentry, 2013 WL 6185170, at *16. The Court also notes that

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interactions with the public are generally considered to be more challenging, and to require a

13

higher level of social ability, than interactions with co-workers or supervisors. See, e.g., Calvillo v.

14

Astrue, CV 12-07558-VBK, 2013 WL 3200508, at *11 (C.D. Cal. June 24, 2013) (proper RFC

15

limited claimant to no contact with the public, and occasional contact with supervisors and co-

16

workers). Here, limitations regarding the public and co-workers were included in the RFC and the

17

hypothetical posed to the VE. The Court concludes that failing to include a limitation regarding

18

the public can sometimes constitute reversible error but, in this case, failing to include a limitation

19

regarding supervisors—particularly where a limitation regarding co-workers is already included—

20

is not reversible error.
Thus, the Court finds that the RFC containing a limitation regarding the public and co-

21

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workers sufficiently captures Dr. Gonick-Hallows‘ opinions regarding Hann‘s social limitations as

23

to the public, co-workers, and supervisors.13

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13

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The Court notes that at least one other case in this Circuit has found reversible error in a similar
circumstance. See Kehn v. Colvin, 12-CV-0399-JPH, 2013 WL 6195715, at *9 (E.D. Wash. Nov.
27, 2013) (ALJ committed reversible error where physician who was given significant weight
found that claimant was limited to superficial contact with the public, co-workers, and supervisors,
but the RFC only included limitations regarding the public and co-workers). However, the Court
declines to follow Kehn because its analysis of this issue was very limited in light of the fact that
the Commissioner did not address the argument. See id. (―The [Commissioner] did not address
39

2.

1

Additional arguments

2

Hann also argues that the ALJ did not address—and therefore improperly rejected—Dr.

3

Gonick-Hallows‘ opinions regarding Hann‘s moderate difficulty in managing the ―usual work-

4

related stresses.‖ Pl.‘s Mot. at 12. Further, Hann argues that the ALJ‘s decision did not reflect that

5

she considered the combination of Hann‘s mental impediments caused by both psychological

6

symptoms and pain symptoms from her physical impairments in assessing the degree of Hann‘s

7

overall mental capacity for work functioning. Id. In response, the Commissioner argues that the

8

ALJ properly synthesized Dr. Gonick-Hallows‘ opinions into the RFC. Def.‘s Mot. at 21.The

9

Commissioner also argues that the ALJ relied upon the state agency reviewing psychiatrist, which

10

shows that the ALJ considered both mental and physical impediments. Def.‘s Mot. at 22.
As to these additional arguments, the Court agrees with the Commissioner. Dr. Gonick-

United States District Court
Northern District of California

11
12

Hallows‘ opinions regarding Hann‘s difficulty managing work-related stresses were properly

13

translated into the RFC‘s limitations regarding one- to two-step instructions and occasional

14

contact with the public and co-workers, based on substantial evidence in the record. See AR at 15.

15

Further, Hann‘s assertion that the ALJ did not consider the combination of physical and mental

16

impairments is without elaboration or citation to the record. Indeed, the ALJ‘s decision

17

summarized and gave varying weights to evidence of Hann‘s physical and mental limitations. See

18

AR at 16–19. For example, at Step Five, the ALJ stated that

21

[i]n sum, the claimant‘s activity level, objective clinical and
diagnostic findings, and treatment records support finding that the
claimant is not disabled . . . This [RFC] takes into consideration the
claimant‘s subjective complaints while finding the maximum
limitations based on the objective evidence.

22

AR at 19. Accordingly, the Court finds that the ALJ adequately considered Hann‘s combination of

23

impairments.

24

VI.

19
20

25

CONCLUSION
For the foregoing reasons, the Court finds that the ALJ‘s decision is supported by

26
27
28

this issue in briefing and there is no evidence in the record establishing this would not affect the
outcome.‖). Further, the Kehn court did not invoke the claimant‘s general burden to show harm.
See id; Molina, 674 F.3d at 1111 (quoting Shinseki, 556 U.S. at 409).
40

1

substantial evidence and free of reversible legal error. The Court DENIES Hann‘s motion for

2

summary judgment, GRANTS the Commissioner‘s cross-motion for summary judgment, and

3

AFFIRMS the ALJ‘s decision.

4

IT IS SO ORDERED.

5
6
7

Dated: March 28, 2014
______________________________________
JOSEPH C. SPERO
United States Magistrate Judge

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United States District Court
Northern District of California

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