Pool v. Colvin

Filing 29

ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT. Signed by Judge William H. Orrick on 02/12/2019. (jmdS, COURT STAFF) (Filed on 2/12/2019)

1
2
3
4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6
7

DENISE ANNETTE POOL,
Plaintiff,

8

CAROLYN W. COLVIN,

Re: Dkt. Nos. 24, 25, 27

Defendant.

11

United States District Court
Northern District of California

ORDER ON CROSS-MOTIONS FOR
SUMMARY JUDGMENT

v.

9
10

Case No. 15-cv-02061-WHO

12

INTRODUCTION

13

Currently before me are the parties’ cross-motions for summary judgment in Denise

14

Annette Pool’s appeal of the partial denial of her claim for disability insurance benefits. Pool

15

argues that the Administrative Law Judge’s (“ALJ”) decision finding that she was not disabled

16

between May 12, 2009 to September 1, 2011 is not based on substantial evidence. I find that the

17

ALJ provided clear and convincing reasons to support the determination that Pool was only

18

disabled as of September 1, 2011. Accordingly, the defendant’s motion for summary judgment is

19

GRANTED and Pool’s motion for summary judgment is DENIED.
BACKGROUND

20
21
22

I.

PROCEDURAL HISTORY
On October 26, 2011, Pool applied for Title II Social Security Disability Insurance

23

Benefits (“DIB”), alleging a disability onset date of August 10, 2011, due to mental health and

24

cognitive issues. AR 172–75. She later amended her alleged disability onset date, due to her

25

mental health issues, back to May 12, 2009. AR 611.

26

Pool’s claim was denied initially on March 1, 2012, and upon reconsideration on

27

November 7, 2012. AR 120–24, 127–31. She filed a written request for a hearing, a hearing

28

before an ALJ was held, and in a decision dated October 24, 2013, the ALJ found that Pool was

1

not disabled. AR 16–38. Pool appealed and, after a suicide attempt in April 2014, submitted new

2

evidence regarding that hospitalization and her subsequent treatment (“new evidence”). AR 8. On

3

March 16, 2015, the Appeals Council declined to review the ALJ’s denial and declined the request

4

to consider the new evidence on the grounds that the new evidence was “about a later time,” and

5

therefore not material to “the decision about whether [Pool was] disabled beginning on or before

6

October 24, 2013.” AR 2.
Pool timely sought judicial review in this Court, and on August 16, 2016, I granted her

7
8

motion for a sentence six remand.1 Dkt. No. 19. I concluded that her new evidence was material

9

to the existence and severity of her mental impairments at the time of the ALJ’s 2013 decision.

10

Dkt. No. 19.
On remand, the ALJ held a second hearing. AR 608–55. On September 1, 2017, the ALJ

United States District Court
Northern District of California

11
12

issued a partially favorable decision. AR 581-97. As discussed in more detail below, the ALJ

13

rejected Pool’s claim of disability starting in May 2009, but concluded there was sufficient

14

evidence to find that she was disabled as of September 1, 2011, when she reinitiated mental health

15

treatment. AR 581–97.
Pool now seeks a sentence four remand, appealing solely the ALJ’s finding that she was

16
17

not disabled from May 12, 2009 – her alleged onset date – to September 1, 2011, the date the ALJ

18

concluded she was disabled.2 Dkt. No. 24. Defendant cross-moves for summary judgment,

19

arguing the ALJ’s partial denial is supported by substantial evidence. Dkt. No. 25.3

20
21
22
23
24
25
26
27
28

“Sentence six remands may be ordered in only two situations: where the Commissioner requests
a remand before answering the complaint, or where new, material evidence is adduced that was for
good cause not presented before the agency.” Akopyan v. Barnhart, 296 F.3d 852, 854 (9th Cir.
2002).
1

A sentence four remand is appropriate where the District Court determines that “the agency erred
in some respect in reaching a decision to deny benefits,” and the case is returned to the agency for
rehearing to address the concerns of the District Court. See Akopyan, 296 F.3d at 854.
2

3

In an October 9, 2015 decision, based upon a subsequent application for benefits, Pool was
determined to be disabled as of April 2014. AR 586. Therefore, the only period during which
Pool argues she was disabled but has not been provided benefits is May 12, 2009 through
September 1, 2011.
2

1
2

II.

SEPTEMBER 1, 2017 ALJ DECISION
The ALJ utilized the five-step sequential evaluation to determine Pool’s disability claim.

3

AR 587–88; see 20 C.F.R. §§ 404.1520(a), 416.920(b). At step one, the ALJ determined that Pool

4

met the insured status requirements of the Social Security Act through March 31, 2015, as Pool

5

had not engaged in any “substantial gainful activity” since her “alleged onset date.” AR 588. At

6

step two, the ALJ found that—since August 10, 2011—Pool had the following severe

7

impairments: (i) anxiety disorder; (ii) major depression; (iii) post-traumatic stress disorder; (iv)

8

seizure disorder; (v) antiphospholipid syndrome; and (vi) migraine headaches. AR 588–89.

9

At step three, the ALJ concluded that Pool’s impairments did not meet or equal the
severity required for the listed impairments. AR 589. The ALJ then determined Pool’s residual

11

United States District Court
Northern District of California

10

functional capacity (“RFC”). AR 590–95. The ALJ concluded that, prior to September 1, 2011,

12

Pool had the RFC to perform a full range of work at all exertional levels but with the following

13

non-exertional limitations: no work requiring climbing of ladders, ropes and scaffolds, no work at

14

unprotected heights or with heavy hazardous machinery, and no driving. AR 590–94. The ALJ

15

further found that, for primary duties, Pool could perform routine tasks with minimal changes

16

from day-to-day, with no interaction with the general public and up to occasional interaction with

17

supervisors. Id.

18

For the period beginning on September 1, 2011, the ALJ similarly concluded that Pool had

19

the RFC for a full range of work at all exertional levels but with the following non-exertional

20

limitations: no work requiring climbing of ladders, ropes and scaffolds, no work at unprotected

21

heights or with heavy hazardous machinery, and no driving. AR 594–95. For primary duties, the

22

ALJ again concluded Pool could perform routine tasks with minimal changes from day-to-day

23

with no interaction with the general public and up to occasional interaction with supervisors.

24

However, as opposed to the prior period, the ALJ also concluded that, given Pool’s cognitive

25

deterioration and reentry to therapy in August and September 2011, she would require frequent

26

absences of approximately four days per month or more on a regular basis as of September 1,

27

2011. Id.

28

At step four, the ALJ found that given her RFC, prior to September 1, 2011, there were
3

1

jobs that existed in significant numbers in the national economy that Pool could have performed.

2

AR 596. Conversely, the ALJ found that, beginning on September 1, 2011, given the frequency of

3

Pool’s expected absences there were no jobs that exist in significant numbers in the national

4

economy that Pool could have performed. AR 595–97. As a result, the ALJ concluded that prior

5

to September 1, 2011, Pool was not disabled as defined by the Social Security Act, but on that date

6

she became disabled and continues to be disabled through the date of the ALJ’s decision. Id.
In drawing a significant RFC distinction between the periods prior to and after September

7
8

1, 2011, the ALJ relied on evidence that showed Pool’s conditions worsening in August 2011.

9

Specifically, the ALJ noted that while Pool had suspended her therapy for six months in 2011, she
restarted it in September 2011. According to Dr. Malnekoff’s treatment notes and tests results,

11

United States District Court
Northern District of California

10

Pool showed increased emotional lability and “significant cognitive and memory problems,” in

12

September through November 2011. AR 595.

13

For the period prior to September 1, 2011, the ALJ noted that while Pool had been seeing

14

Dr. Malnekoff from October 2006 through March 2011 (and resuming after a six-month break in

15

September 2011), there was “no record of therapy notes” from 2006 through March 2011 to

16

corroborate Pool’s claim she suffered from significant mental and cognitive impairments during

17

that time.4 AR 591-92. The ALJ also relied on the fact that Pool stopped seeing Malnekoff from

18

March 2011 through August 2011 as evidence that Pool’s conditions were not as limiting as she

19

claimed. AR 591. With respect to her antiphospholipid and seizure disorders as well as her

20

history of migraines, the ALJ noted that these disorders and her migraines were being controlled

21

by her medicines during 2010 and 2011. AR 591. Finally, the ALJ found that the medical record

22

did not “corroborate significant mental health symptoms” given the absence of “regular abnormal

23

mental status exams” and no ongoing interventions or need for inpatient treatment. Id. at 591-92.

24

The ALJ characterized Pool’s daily life activities during the pre-September 2011 period as

25

a “somewhat normal level and range of daily activities and interaction.” AR 590-92. The ALJ

26

noted that Pool had completed a two-semester long course to become a pharmacy technician in

27
28

4

The ALJ noted there were therapy treatment notes from September 2011 on. Id.
4

1

2011 and worked for three weeks in 2011, activities that were inconsistent with “extreme

2

limitations” claimed by Pool. Id.
The ALJ then addressed various consultative examinations from December 2011, January

3
4

2012, June 2013, September 2013, January 2017, generally giving those reports little to some

5

weight as to the pre-September 1, 2011 period and some to significant weight for the post-

6

September 1, 2011 period. AR 592-94. The ALJ treated Pool’s husband’s testimony the same

7

way--giving it little weight to support significant limitations in the pre-September 2011 period and

8

great weight to support Pool needing frequent absences from work after September 1, 2011, due to

9

her “worsening conditions.” AR 594.
LEGAL STANDARD

10

United States District Court
Northern District of California

11
12

I.

DISABILITY DETERMINATION
A claimant is “disabled” as defined by the Social Security Act if: (1) “he is unable to

13

engage in any substantial gainful activity by reason of any medically determinable physical or

14

mental impairment;” and (2) the impairment is “of such severity that he is not only unable to do

15

his previous work but cannot, considering his age, education, and work experience, engage in any

16

other kind of substantial gainful work which exists in the national economy.” 42 U.S.C. § 1382c

17

(a)(3)(A)–(B). The ALJ performs a five-step sequential analysis to determine if an individual is

18

disabled within the meaning of the Social Security Act required under 20 C.F.R. § 404.1520

19

(a)(4)(i)–(v). Hill v. Astrue, 698 F.3d 1153, 1159 (9th Cir. 2012). If at any point within these

20

five-steps, the ALJ determines that the claimant is either disabled or not disabled, the ALJ need

21

not move on to the next step. 20 C.F.R. § 404.1520(a)(4).

22

At the first two steps of the evaluation, the claimant must establish that he: (1) is not

23

performing “substantial gainful activity,” and (2) is under a “medically severe” impairment or

24

combination of impairments. Id. at § 416.920 (a)(4)(i)–(ii). Substantial gainful activity is defined

25

as “work activity that involves doing significant physical or mental activities” (20 C.F.R. §

26

404.1572(a)) typically completed for the purpose of payment or profit regardless if profit is

27

realized. 20 C.F.R. § 404.1572(b). For an impairment to be medically severe, it must “ha[ve]

28

lasted or can be expected to last for a continuous period of not less than [12] months” or “can be
5

1

expected to result in death.” 42 U.S.C. § 1382c (a)(3)(A); 20 C.F.R. §§ 416.909, 404.1509.
At the third step, the claimant must establish that his impairment or combination of

2
3

impairments meets or medically equals a listed impairment provided in Part 404, Subpart P,

4

Appendix 1 of the regulations as described by 20 C.F.R. §§ 404.1525, 404.1526, 416.925, and

5

416.926. Id. at § 416.920(a)(4)(iii). If the claimant’s impairment does not meet or equal one of

6

the listed impairments, or does not satisfy the duration of disability requirements, the ALJ is to

7

make a residual functional capacity determination based on all the evidence in the record before

8

proceeding to the fourth step. Id. at § 416.920(e). This determination is used to evaluate the

9

claimant’s work capacity for steps four and five. Id. Residual functional capacity refers to one’s
ability to do physical and mental work activities despite any limitations resulting from

11

United States District Court
Northern District of California

10

impairment. Id. at §§ 404.1545(a), 404.1594(a)(4).
At step four, the claimant must establish that his impairment prevents him from performing

12
13

relevant work he or she did in the past (“PRW”). Id. at § 416.920(a)(4)(iv). PRW includes: (i)

14

substantially gainful activity; (ii) performed in the past 15 years from the date the disability is

15

established; (iii) which the individual performed long enough to have learned how to do. Id. at §§

16

404.1560(b), 404.1565. PRW can be considered “either as the claimant actually performed it or as

17

generally performed in the national economy.” Id. at § 404.1560(b)(2) (emphasis added).

18

The burden to illustrate entitlement to DIB is on the claimant at all times during steps one

19

through four; however, if the claimant demonstrates an inability to perform PRW at step four, the

20

burden shifts at step five. Andrews v. Shalala, 53 F.3d 1035, 1040 (9th Cir. 1995). At the fifth

21

step, the ALJ considers the claimant’s residual functional capacity in relation to his age, level of

22

education, and experience in consideration of whether the claimant is able to do other work in the

23

national economy. 20 C.F.R. §§ 416.920(a)(4)(v), 416.960(c)(1)–(2). If it is determined that the

24

claimant is unable to do other work, he is disabled.

25

II.

26

STANDARD OF REVIEW
Under 42 U.S.C. § 405(g), a district court reviews the final decision denying benefits to

27

determine whether the findings are supported by substantial evidence and free of legal error.

28

Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996). “Substantial evidence means more than a
6

1

mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind

2

might accept as adequate to support a conclusion.” Shalala, 53 F.3d at 1039–40. The Court must

3

review the record as a whole and consider adverse as well as supporting evidence. Robbins v. Soc.

4

Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006). Where evidence is susceptible to more than one

5

rational interpretation, the ALJ’s decision must be upheld. Morgan v. Comm’r of the Soc. Sec.

6

Admin., 169 F.3d 595, 599 (9th Cir. 1999). “However, a reviewing court must consider the entire

7

record as a whole and may not affirm simply by isolating a ‘specific quantum of supporting

8

evidence.’” Robbins, 466 F.3d at 882 (quoting Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir.

9

1989)).
DISCUSSION

10

United States District Court
Northern District of California

11

Pool argues, first, that the ALJ wholly failed to determine what (if any) medically

12

determined impairments Pool had as of May 2009 through August 10, 2011 when, as noted, the

13

ALJ determined that Pool was disabled due to her impairments and the amount of work she would

14

miss. Mot. at 6. Relatedly, Pool notes that at certain points in the decision, the ALJ incorrectly

15

reports that Pool’s alleged onset date was August 2011, and that error likewise requires remand.

16

Compare AR 586 (noting alleged onset of August 2009) with AR 588 (noting alleged onset as

17

August 10, 2011).

18

However, it appears that the ALJ’s use of “August 10, 2011” in the Step 3 and Step 4

19

headings in the September 1, 2017 Order was a typographical error, and the ALJ was considering

20

Pool’s alleged May 2009 onset date. That determination is supported by two points. First, the

21

“severe impairments” that the ALJ indicated were existing as of August 10, 2011 (AR 588, 589)

22

were consistent throughout Pool’s medical records. The only question was when the symptoms

23

and limitations from those impairments became disabling (which the ALJ concluded occurred as

24

of September 2011). Second, the ALJ clearly reviewed evidence and argument about Pool’s

25

conditions and limitations between 2009 and 2011. See, e.g., AR 590-91 (noting lack of evidence

26

from alleged “onset date to August 2011” and reviewing medical records from 2009 and 2010);

27

Transcript at 611 (ALJ commenting that the relevant evidence was from 2009 through 2014). The

28

typographical errors do not undermine the ALJ’s analysis or opinion and the case will not be
7

1

remanded on that ground.5
Pool more substantively asserts that the ALJ erred by failing to properly credit treating

3

physicians’ opinions that supported her claim of disability as of May 12, 2009 and continuing

4

through September 1, 2011. Mot. at 6. A treating physician’s opinion “is not binding on an ALJ

5

with respect to the existence of an impairment or the ultimate determination of disability.”

6

Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001) (citation omitted). That said, in order

7

to properly reject the opinion of a treating or examining doctor when it is uncontradicted by

8

another doctor, the ALJ must state “clear and convincing reasons” for doing so. Lester v. Chater,

9

81 F.3d 821, 830 (9th Cir. 1995). If the treating or examining physician’s opinion is contradicted

10

by another physician, however, an ALJ may reject the treating or examining physician’s opinion if

11

United States District Court
Northern District of California

2

she states “specific and legitimate reasons” that are supported by substantial evidence. Id. at 830–

12

31. If a treating physician’s opinion is not given “controlling weight,” either because it is not

13

“well-supported” or because it is inconsistent with other substantial evidence in the record, factors

14

that determine how much weight the opinion should be given include the “[l]ength of the

15

treatment relationship and the frequency of examination” by the treating physician, and the “nature

16

and extent of the treatment relationship” between the patient and the treating physician. Orn v.

17

Astrue, 495 F.3d 625, 631 (9th Cir. 2007).
Pool contends that the ALJ did not provide clear and convincing or specific and legitimate

18
19

reasons for not accepting the opinions of her medical sources—Drs. Duncan, Mendius, and

20

Newkirk—that Pool would miss significant amounts of work during the period of May 12, 2009,

21

through September 1, 2011. Mot. at 6–7. Defendant responds that the ALJ’s determination is

22

supported by substantial evidence because there is no evidence of a disabling medical condition

23

prior to September 1, 2011. Oppo. at 4–5.

24
25
26
27
28

5

Solely in reply, Pool argues that because the ALJ did not mention in the 2017 Decision some
non-severe impairments that were identified in the ALJ’s prior Decision, that error requires
remand to develop a record from which the ALJ can determine whether those prior-recognized
non-severe impairments had deteriorated. Reply at 2-4. I will not address an argument raised for
the first time on reply where Pool identifies no evidence that these conditions either were
discussed with the ALJ on remand or would weigh on the question of whether she was disabled
due to symptoms and limitations from her non-severe conditions that could have caused her to
miss more than four days a month of work during the May 2009 through August 2011 time period.
8

In a single medical source statement (“Seizures Residual Functional Capacity”

1
2

questionnaire) dated June 17, 2013, examining physician Dr. Mendius identified Pool’s numerous

3

mental health problems as well as symptoms from her epilepsy and seizure medications. Mendius

4

estimated that Pool had an average of five to ten migraines a month and opined that Pool would be

5

unable to work more than four days a month due to her migraines and seizures. AR 528. As

6

relied on by Pool for purposes of this motion, in response to the question of “[w]hat is the earliest

7

date that the description of symptoms and limitations in this questionnaire applies?” Mendius

8

indicated “age 15.” AR 528.
Pool complains that the ALJ ignored this “date” and erred in giving Mendius’s opinions

9

only “partial weight” for the pre-September 2011 period.6 However, Mendius’s opinion, given in

11

United States District Court
Northern District of California

10

2013, that Pool would miss four days of work a month is unanchored to any start date. In answer

12

to a separate question, Mendius indicated that Pool exhibited some symptoms and limitations

13

related to her disability since she was 15 years old. Mendius did not specify what the symptoms

14

and limitations were at that time or at what point they became disabling. That opinion did not

15

require that the ALJ infer – absent other evidence – that Pool had since she was 15 years old

16

consistently missed four days of work (or presumably school) given her symptoms and limitations.

17

Instead, the ALJ appropriately looked at the Pool’s treatment records from 2009 through 2011 and

18

Pool’s activities to conclude that only as of September 1, 2011 would absences from work become

19

a problem.7
Pool also argues that the ALJ disregarded the opinion of Dr. Duncan, a treating

20
21

neurologist. Like Mendius, in September 2013 Duncan filled out a “Seizures Residual Functional

22

Capacity” questionnaire indicating that, as of that date, Pool suffered from significant mental

23

health and seizure-related symptoms and that she would miss more than four days of work each

24
25
26
27
28

The ALJ gave only partial weight to Mendius’ opinions for the pre-September 2011 period
because there was no evidence of ongoing treatment of Pool by Mendius and the other evidence
showed a worsening of Pool’s health conditions starting in August 2011. AR 593.
6

7

The ALJ points out that Pool received no mental health treatment from March to September
2011, during that time Pool was not taking any mental health medications, and in July 2010 Pool’s
doctors reported no recent memory of any epileptic seizures and listed Pool’s migraines as wellcontrolled.
9

1

month. AR 533. In answer to the separate question, Duncan indicated that July 2010 was the

2

“earliest date” that symptoms and limitations related to the disabling condition occurred, without

3

describing what the symptoms and limitations were. Id. As with Mendius, the ALJ gave

4

Duncan’s opinions only partial weight up to August 2011 and substantial weight thereafter, when

5

Duncan’s opinions were supported by other medical records. The ALJ did not err with respect to

6

Duncan for the same reasons that the ALJ did not err with respect to Mendius.

7

Finally, Pool faults the ALJ for similarly failing to credit the opinions of Dr. Newkirk, a

8

treating neurologist and signer of another “Seizures Residual Functional Capacity” questionnaire

9

signed in September 2013. In answer to the separate questions, Newkirk opined that Pool’s
unspecified symptoms or limitations started in 2002 and that, as of 2013 Pool would miss at least

11

United States District Court
Northern District of California

10

four days of work a month. AR 545. The ALJ did not err with respect to Newkirk for the same

12

reasons stated regarding the opinions of Mendius and Duncan.

13

In sum, the ALJ identified substantial and undisputed evidence in the record that shows a

14

worsening of Pool’s condition as of August 2011. The vague comments of Drs. Mendius, Duncan,

15

and Newkirk about when symptoms and limitations appeared, without specification of what

16

symptoms or limitations appeared when, do not address (much less contradict) the ALJ’s

17

determination of the date Pool would start to be unable to work for more than four days a month.
CONCLUSION

18
19

Because the ALJ’s decision was supported by specific and clear reasons, the government’s

20

motion for summary judgment is GRANTED and the Pool’s motion for summary judgment is

21

DENIED.

22
23

IT IS SO ORDERED.
Dated: February 12, 2019

24
25
William H. Orrick
United States District Judge

26
27
28
10