Azzolino v. Commissioner of Social Security

Filing 25

ORDER by Judge James Donato granting 17 Motion for Summary Judgment. (lrcS, COURT STAFF) (Filed on 6/15/2016)

1
2
3
4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6
7

JOHN RICHARD AZZOLINO,
Plaintiff,

8
9
10

United States District Court
Northern District of California

11

Case No. 15-cv-02601-JD
ORDER RE SUMMARY JUDGMENT

v.

Re: Dkt. Nos. 17, 18
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

12
13

Plaintiff John Richard Azzolino challenges a decision by a Social Security Administration

14

Administrative Law Judge that denied him disability benefits under both Title II and Title XVI.

15

Dkt. No. 17. The Commissioner of Social Security (“Commissioner”) filed a cross-motion for

16

summary judgment to uphold the ALJ’s determination. Dkt. No. 18. At oral argument, Azzolino

17

conceded he does not have enough evidence to support a Title II claim. Consequently, The Court

18

grants the Commissioner’s cross-motion on Title II (Dkt. No. 18). The Court finds for plaintiff on

19

the motion for summary judgment under Title XVI (Dkt. No. 17) and remands the case to the

20

Social Security Administration for further proceedings consistent with this order.

21

In our Circuit, an ALJ’s decision to deny benefits “will only be disturbed if it is not

22

supported by ‘substantial evidence or it is based on legal error.’ . . . A decision of the ALJ will not

23

be reversed for errors that are harmless.” Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).

24

The ALJ found that Azzolino had established multiple severe impairments, including “an affective

25

mood disorder; an anxiety-related disorder;” and an “orthopedic degenerative impairment” that

26

“more than minimally affect” his “ability to perform basic work functions.” AR at 22. Because

27

the ALJ determined that Azzolino had “no past relevant work,” AR at 29, the ALJ denied benefits

28

based on his determination that Azzolino had the residual functional capacity (“RFC”) “to perform

1

at least the full range of light work,” and that despite his non-exertional limitations, he still

2

retained the ability “to engage in simple repetitive tasks equating to unskilled work.” AR at 25.
The RFC determination was not supported by substantial evidence and contained legal

4

errors that the Court cannot say were harmless. In assessing a claimant’s RFC, the ALJ “must

5

consider all relevant evidence in the record” including “medical records, lay evidence, and ‘the

6

effects of symptoms, including pain, that are reasonably attributed to a medically determinable

7

impairment.’” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006) (citation omitted);

8

see also 20 C.F.R. § 416.945; 20 C.F.R. § 404.1545. The ALJ erred in failing to provide at least

9

“specific and legitimate reasons that are supported by substantial evidence” for partially rejecting

10

the opinion of examining psychiatrist Deborah von Bolschwing, Ph.D. Lester v. Chater, 81 F.3d

11
United States District Court
Northern District of California

3

821, 830–31 (9th Cir. 1996); AR at 27. The ALJ was required to set out “a detailed and thorough

12

summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and

13

making findings.” Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002) (internal quotation

14

omitted). The ALJ reasonably summarized Dr. von Bolschwing’s opinions, including that

15

Azzolino was limited in “maintaining attention and concentration,” understanding, remembering,

16

and carrying out complex instructions, and “enduring stress, adaptation, and interacting” with co-

17

workers and supervisors. AR at 27. But although the ALJ stated that he would give these

18

opinions “weight to the extent consistent with this finding in light of the record as a whole,” he did

19

not identify which of her opinions he discounted or provide any reasons at all for doing so. Id.

20

That was error.

21

The Commissioner’s contention that ALJ did not reject Dr. von Bolschwing’s opinions,

22

but merely interpreted them in a way Azzolino disagrees with, is undermined by the failure of the

23

RFC to reflect the full range of mental limitations found by the doctor. The ALJ did not clearly

24

explain, nor did the Commissioner’s briefing address, how the RFC incorporates Azzolino’s full

25

range of limitations in attention, concentration, following instructions, enduring stress, adapting,

26

and interacting with others. Because the ALJ failed to specifically discuss these limits, the record

27

is insufficient for the Court to determine whether they were silently subsumed in the RFC’s

28
2

1

limitation to unskilled work or erroneously left out. Consequently, the ALJ’s determination of the

2

RFC lacks the support of substantial evidence.
The ALJ also erred in rejecting out of hand the opinions of social worker Jennifer

3

Silverstein, who had several sessions with Azzolino and concluded he suffers from PTSD and

5

would likely be absent from a job three or more days per month. See AR at 28. Even if

6

Silberstein is not an “acceptable medical source[]” for establishing a diagnosis, her opinions are

7

relevant evidence to show the “severity of [his] impairment(s), and how it affects [his] ability to

8

work.” 20 C.F.R. § 416.913(a), (d); 20 C.F.R. § 404.1513. The ALJ failed to give “germane”

9

reasons for discounting her evidence, given his statement that it was “not contradicted by the

10

record as a whole.” AR at 28; see Britton v. Colvin, 787 F.3d 1011, 1013 (9th Cir. 2015) (per

11
United States District Court
Northern District of California

4

curiam) (holding that ALJ may discount testimony from “other sources” by giving reasons

12

germane to that witness). In addition, the ALJ discounted her evidence based on its reliance on

13

claimant’s self-reported symptoms, which the ALJ found not credible. Because the Court finds

14

that credibility determination in error, as follows, the ALJ lacked adequate evidentiary basis for

15

rejecting Silverstein’s opinions as well. See Ghanim v. Colvin, 763 F.3d 1154, 1162-63 (9th Cir.

16

2014).

17

In determining the RFC, the ALJ also improperly rejected Azzolino’s “statements

18

concerning the intensity, persistence and limiting effects” of his symptoms as not credible. AR at

19

26. Because the ALJ determined that Azzolino suffered “from an impairment that could

20

reasonably produce the symptoms of which he complains,” his adverse credibility finding “must

21

be based on ‘clear and convincing reasons.’” See Carmickle v. Comm’r, Soc. Sec. Admin., 533

22

F.3d 1155, 1160 (9th Cir. 2008) (internal quotation omitted). This standard was not met.

23

The ALJ’s rejection of Azzolino’s claimed symptoms of paranoia, anxiety and other

24

psychological issues as inconsistent with his school attendance is fatally undercut by the ALJ’s

25

failure to acknowledge all the disabled student services Azzolino depends on to make school

26

participation possible, as well as his current use of medication to control his condition. AR at 26-

27

28, 39, 41-42. The ALJ’s cursory listing of Azzolino’s uneven history of medical treatment,

28

extended periods of joblessness, and periods of relative control over his symptoms fair no better as
3

1

clear and convincing reasons to reject his testimony. The Ninth Circuit has cautioned that “it is

2

error to reject a claimant’s testimony merely because symptoms wax and wane in the course of

3

treatment” for mental health issues, and so the ALJ cannot show clear and convincing reasons to

4

reject claimant testimony about mental health symptoms by singling out “a few periods of

5

temporary well-being from a sustained period of impairment.” Garrison v. Colvin, 759 F.3d 995,

6

1017-18 (2014) (finding error in ALJ’s reliance on claimant’s non-compliance with medication

7

and failure to seek treatment, given that these were in part caused by poor judgment resulting from

8

her mental illness). Here, the ALJ addressed medical information from each source in isolation

9

and did not attempt to assemble them into a showing that Azzolino had failed to demonstrate any
“sustained period of impairment.” See id. And the ALJ’s characterization of Azzolino’s “non-

11
United States District Court
Northern District of California

10

compliance” with medications and “exaggerated symptoms and limitations” lack citation and

12

specific support. The ALJ failed to provide clear and convincing reasons for discrediting this

13

testimony.

14

The ALJ improperly evaluated Azzolino’s residual functional capacity because of these

15

errors, and that misstep affects the determinations based on the RFC. Lingenfelter v. Astrue, 504

16

F.3d 1028, 1040-41 (2007); Craig v. Colvin, No. 13-36111, 2016 WL 3033322, at *1 (9th Cir.

17

May 27, 2016). On this record, the Court concludes that the ALJ’s decision to deny benefits is not

18

supported by substantial evidence and is based on non-harmless legal errors.

19

The Court consequently remands the case to the Social Security Administration for further

20

review consistent with this order. The Court declines to reach plaintiff’s other arguments of error

21

in the ALJ’s decision.

22
23

IT IS SO ORDERED.
Dated: June 14, 2016

24
25
JAMES DONATO
United States District Judge

26
27
28
4