Menefee v. Commissioner of Social Security

Filing 19

Order by Magistrate Judge Laurel Beeler granting 14 Motion for Summary Judgment.The court grants Ms. Menefee's motion for summary judgment, denies the Commissioner's cross-motion, and remands for further proceedings to reassess Ms. Menefee's disability in light of the court's conclusions about the treating physicians and Ms. Menefee's credibility. (lblc1S, COURT STAFF) (Filed on 10/24/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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San Francisco Division

United States District Court
Northern District of California

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THELMA VERDEL MENEFEE,

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Case No. 3:15-cv-03957-LB

Plaintiff,

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v.
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CAROLYN W. COLVIN,
Acting Commissioner of Social Security,

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Defendant.

ORDER GRANTING THE PLAINTIFF'S
MOTION FOR SUMMARY JUDGMENT
AND DENYING THE DEFENDANT'S
CROSS-MOTION FOR SUMMARY
JUDGMENT
ECF Nos. 14 & 18

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INTRODUCTION

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The plaintiff Thelma Verdel Menefee moves for summary judgment, seeking judicial review

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of a final decision by the Social Security Administration denying her disability benefits for her

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claimed disabilities of bilateral foot impairments, obesity, and diabetes.1 The Administrative Law

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Judge (“ALJ”) found that Ms. Menefee had the severe impairments of diabetes mellitus, status

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post bilateral bunion surgery, obesity, and nicotine addiction in partial remission, but that the total

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severity was insufficient to qualify for Social Security Disability Insurance (“SSDI”) benefits. 2

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Motion for Summary Judgment (“MSJ”) ‒ ECF No. 14 at 9. Record citations refer to material in
the Electronic Case File (“ECF”); pinpoint citations are to the ECF-generated page numbers at the
top of the documents.
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Administrative Record (“AR”) 29.

ORDER (No. 3:15-cv-03957-LB)

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The Commissioner opposes Ms. Menefee’s motion for summary judgment and cross-moves for

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summary judgment.3

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Pursuant to Civil Local Rule 16-5, the matter is submitted for decision by this court without

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oral argument. All parties have consented to this court’s jurisdiction.4 The court holds that the ALJ

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erred by according little weight to the opinions of Ms. Menefee’s treating physicians and by

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finding Ms. Menefee’s testimony only partly credible. The court thus grants Ms. Menefee’s

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motion, denies the Commissioner’s motion, and remands the case to the ALJ to reconsider Ms.

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Menefee’s disability application in light of this order.

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STATEMENT

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United States District Court
Northern District of California

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1. Procedural History
Ms. Menefee filed her initial Title II disability claim on December 6, 2011, alleging disability

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beginning on April 30, 2010.5 Ms. Menefee also filed a Title XVI application for supplemental

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security income (“SSI”) on December 14, 2011, alleging disability beginning on April 30, 2010.6

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The Social Security Administration (“SSA”) found that Ms. Menefee’s disability was not severe

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enough to keep her from working, denied her claim on May 4, 2012, and denied her claim on

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reconsideration on February 20, 2013.7
Ms. Menefee timely filed her request for a hearing on February 28, 2013,8 appealing the SSA’s

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decision and requesting a hearing before the ALJ.9 The hearing was on November 14, 2013, in

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Oakland, California.10 Ms. Menefee attended the hearing unrepresented, but the ALJ continued the

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Cross-Motion for Summary Judgment (“Cross-MSJ”) ‒ ECF No. 18.
Consent Forms ‒ ECF Nos. 5 & 9.
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AR 26.
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Id.
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Id.
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Id.
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Id.
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AR 29.

ORDER (No. 3:15-cv-03957-LB)

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hearing for Ms. Menefee to find representation.11 Ms. Menefee secured Barbara Mann as her

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counsel, and Ms. Mann requested a postponement of the January 30 hearing, which the ALJ

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denied.12 The ALJ presided over the hearing on January 30, 2014, in Oakland, California; Ms.

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Menefee, Ms. Mann, and impartial vocational expert (“VE”) Stephen P. Davis also attended the

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hearing.13 The ALJ addressed the issue of whether Ms. Menefee met the SSA’s definition of

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“disabled” under sections 216(i), 223(d), and 1614(a)(3)(A) of the Social Security Act.14 The ALJ

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also addressed whether Ms. Menefee was disabled within the applicable disability period of April

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30, 2010, to March 31, 2014.15 The ALJ found that Ms. Menefee was not disabled.16
Ms. Menefee requested review of the ALJ’s decision by the Appeals Council on March 6,

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2014.17 The Appeals Council denied the request for review on June 29, 2015, finding insufficient

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Northern District of California

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evidence of abuse of discretion, error of law, or a major public policy concern.18 The Appeals

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Council also did not find that there was insufficient evidence to support the ALJ’s claim or that

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newly submitted evidence outweighed the evidence already submitted.19 The Appeals Council

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noted that the new evidence Ms. Menefee submitted was not applicable to their decision because it

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applied to dates after the ALJ rendered a decision.20

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Ms. Menefee sued in federal court on August 28, 2015.21 The SSA answered the complaint on

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December 17, 2015, and Ms. Menefee moved for summary judgment on January 19, 2016.22 After

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AR 26.
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Id.
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Id.; AR 37.
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AR 26.
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Id.
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AR 37.
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AR 1.
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Id.
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AR 1-2.
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AR 2.
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Compl. ‒ ECF No. 1.
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Answer ‒ ECF No. 12; MSJ ‒ ECF No. 14.

ORDER (No. 3:15-cv-03957-LB)

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filing a stipulation to extend time, the Commissioner filed a response and cross-motion for

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summary judgment on March 31, 2016.23 Ms. Menefee did not file a reply.24

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2. Summary of Record and Administrative Findings
2.1 Medical Records

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2.1.1 Dr. Wengang Zhang: Primary Care Physician

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Ms. Menefee first met with Dr. Zhang, an internist, on January 26, 2010, at his office at

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Springhill Medical Group in Pittsburg, California.25 Dr. Zhang acted as Ms. Menefee’s Primary

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Care Physician during most of the applicable time period, from before the disability onset date of

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April 30, 2010, until January 28, 2014.26
Ms. Menefee saw Dr. Zhang on April 26, 2010, shortly before the beginning of her disability

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Northern District of California

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onset period.27 At this visit, Dr. Zhang conducted a follow-up examination, and noted that Ms.

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Menefee’s current medications were Vicodin and Glucophage.28 Dr. Zhang noted Ms. Menefee’s

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leg weakness and pain, and also that her diabetes was under control.29 He also noted Ms.

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Menefee’s other conditions, including a thyroid goiter, athlete’s foot, vitamin D deficiency,

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obesity, status post hysterectomy, and muscle weakness.30 Dr. Zhang recommended a low

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cholesterol and low calorie diet, counseled Ms. Menefee regarding her anti-hypertensive

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medications, and requested that she return in one to two months.31

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Stipulation Extending Briefing Schedule ‒ ECF No. 16; Cross-MSJ ‒ ECF No. 18.
See generally Docket.
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AR 918.
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AR 77.
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AR 635.
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Id.
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Id.
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Id.
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AR 636.

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A visit to Dr. Zhang on November 3, 2010, resulted in a physical and a note that Ms. Menefee

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was “doing fine.”32 Ms. Menefee returned to Dr. Zhang on March 14, 2011, complaining of

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abdominal pain on her left side, which had lasted for three weeks.33 Noting Ms. Menefee’s past

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history of diverticulitis and polyp removals, Dr. Zhang suggested that the pain may be caused by a

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flare-up of diverticulitis.34 Three days later, Dr. Zhang reported that the symptoms had not

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improved.35
Ms. Menefee went to the emergency room at Sutter Delta Medical Center on February 10,

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2012, complaining of acute abdominal pain, vomiting, and cramping.36 Ms. Menefee’s CT scan

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showed only fatty liver and a small hernia.37 She was stabilized and released when the doctor
found that Ms. Menefee did not have a condition that warranted any further intervention or

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Northern District of California

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testing.38
Ms. Menefee returned to see Dr. Zhang on a number of occasions throughout 2012 and 2013.

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On February 24, 2012, Dr. Zhang stated that Ms. Menefee was “doing fine.”39 On February 26,

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2012, Dr. Zhang completed a disability questionnaire for Ms. Menefee, and found her diabetes to

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be under satisfactory control.40

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Dr. Zhang conducted a follow-up disability questionnaire on March 9, 2012, and noted Ms.

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Menefee’s pain level of five or six out of ten and fatigue level of six out of ten.41 He also noted

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that her doctors had not been able to relieve the pain without causing unduly harsh side effects.42

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AR 626.

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AR 358.
AR 358-59.
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AR 356.
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AR 415.
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AR 417.
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Id.
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AR 613.
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AR 457.
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AR 504-05.
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Id.

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His analysis showed that in an eight-hour day, Ms. Menefee could walk for up to three hours, and

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sit for up to three hours.43 Dr. Zhang noted that Ms. Menefee did not use a cane.44 Dr. Zhang noted

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that Ms. Menefee could occasionally lift up to ten pounds, and rarely lift up to twenty pounds. 45

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He noted that she has significant limitations in repetitive reaching, handling, fingering, and

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lifting.46 He also noted that Ms. Menefee suffered from unnamed “psychological limitations,” and

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found that her impairments are expected to continue into the future.47
On February 16, 2012, Ms. Menefee visited a cardiologist, Dr. Alejandro Prieto, who noted

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that Ms. Menefee did not suffer from shortness of breath or other typical symptoms related to

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cardiovascular disease.48 On March 19, 2012, Ms. Menefee visited Dr. Daniel Patrick, another
cardiologist, who performed a SPECT scan, and found no significant abnormalities.49 Ms.

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Northern District of California

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Menefee returned to see Dr. Prieto on July 26, 2012, who noted that Ms. Menefee still had pain

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and trouble sleeping, but that she had no other significant abnormalities.50

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Ms. Menefee visited Dr. Zhang on August 22, 2012, and she was again described as “doing

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ok.”51 She returned two days later and complained of ankle and leg pain.52 She said that wedge

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shoes helped her pain and she tried exercising at the gym, but exercise made her pain worse.53 On

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October 22, 2012, Dr. Zhang noted that Ms. Menefee should take Vicodin before exercise, and

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that she was struggling to lose weight.54 On November 26, 2012, Dr. Zhang examined her past

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Id.
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AR 505.
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Id.
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Id.
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Id.
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AR 615.
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AR 510.
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AR 605-06.
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AR 602.
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AR 137.
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Id.
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AR 599.

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complaint of claudication and referred the issue out to Ms. Menefee’s podiatrist.55 There is no

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record of Ms. Menefee following up with her podiatrist regarding the alleged claudication.

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On February 18, 2013, Dr. Zhang noted that Ms. Menefee was doing fine, but complained

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about muscle aches, left lower quadrant abdominal pain, and poor bowel movements.56 On May

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20, 2013, Dr. Zhang noted that Ms. Menefee was on a diet plan, and observed improvements in

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pain levels and tolerance of exercise.57 On August 19, 2013, Dr. Zhang noted that Ms. Menefee

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had a cough and diagnosed her with bronchitis, and prescribed Azithromycin to treat it.58 On the

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February 18, May 20, and August 19 visits, as well as a final visit on February 3, 2014, Dr. Zhang

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noted that Ms. Menefee suffered no complications from diabetes and no general abnormalities.59

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2.1.2 Dr. James Boccio: Surgical Podiatrist

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Northern District of California

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Ms. Menefee saw Dr. Boccio, a podiatric surgeon, for a preoperative examination on May 4,

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2010.60 He noted that Ms. Menefee took Glucophage, Premarin, vitamins, and Xenotril.61 Ms.

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Menefee returned to Dr. Boccio the following day for surgery: she received a left-foot

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bunionectomy and osteotomy first metatarsal on May 5, 2010.62 Dr. Boccio noted no

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complications from the procedures.63 Ms. Menefee returned on May 7 for a follow-up; Dr. Boccio

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noted no complications and that she was “doing ok.”64 On May 17, 2010, Dr. Boccio noted that

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Ms. Menefee’s bandages had fallen off and he replaced them.65 At a follow-up appointment on

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AR 753.

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AR 749.
AR 746.
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AR 814.
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AR 746, 749, 808, 814.
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AR 409.
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AR 407.
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AR 483.
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Id.
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AR 400-01.
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AR 399.

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August 26, 2010, Ms. Menefee stated that her big toe was feeling better.66 At the hearing in front

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of the ALJ on January 30, 2014, however, Ms. Menefee rated her pain on the bottom of her feet at

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an eight out of ten.67
Ms. Menefee returned to Dr. Boccio on November 28, 2011, for a consultation,68 and

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December 5, 2011, for a pre-operative examination, where Dr. Boccio determined that he would

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perform a right-foot bunionectomy.69 Dr. Boccio completed the right-foot procedure on December

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7, 2011.70 Dr. Boccio noted at a January 26, 2012 follow-up appointment to the second procedure

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that her foot was healing well, although soft tissue swelling persisted.71 On February 21, 2012,

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Christopher Munoz, Ms. Menefee’s physical therapist, wrote that she completed physical therapy,
her range of motion was regular, and she experienced swelling with extended walking.72 On

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Northern District of California

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March 8, 2012, Dr. Boccio listed Ms. Menefee’s prognosis pertaining to her continuing

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impairments as “fair.”73 Another follow-up on May 25, 2012, resulted in a dermatologic

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consultation regarding psoriasis and a description of her diabetes as “ok.”74
At Ms. Menefee’s March 8 visit, Dr. Boccio completed a Medical Source Statement

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Concerning the Nature and Severity of an Individual’s Physical Impairment.75 In this examination,

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Dr. Boccio found the following: (1) Ms. Menefee was diagnosed with bilateral hallux valgus and

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painful bunions; (2) Dr. Boccio estimated her pain level at between nine and ten out of ten; (3)

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Ms. Menefee’s pain has not been eliminated with medications; (4) in an eight-hour day she can sit

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for up to four hours and stand or walk up to two hours; (5) she can occasionally carry up to ten

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AR 395.
AR 84.
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AR 393.
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AR 392.
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AR 384.
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AR 394.
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AR 580.
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AR 492.
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AR 607.
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AR 492-95.

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pounds and rarely carry up to twenty pounds; (6) she has significant limitations in repetitive

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reaching, handling, fingering, and lifting; (7) she can stand or walk only with a cane; (8) and her

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symptoms can be expected to continue.76 His prognosis regarding Ms. Menefee’s ability to work

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in a competitive job was poor.77 He also noted that she has limitations in stooping, kneeling,

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pushing, pulling, bending, and climbing ladders or stairs.78 Dr. Boccio noted that emotional factors

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do not contribute to the severity of her symptoms.79 He also noted that she would be able to

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tolerate up to moderate stress in the workplace, but that she would likely miss two to three days

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per month from work due to her symptoms.80 Immediately following the question regarding work

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stress, the survey asks “please explain the basis for your conclusion.”81 Dr. Boccio wrote on this

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line that he based his conclusion on his in-office conversation with Ms. Menefee.82

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Northern District of California

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2.1.3 Dr. Calvin Pon: State Examining Physician

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Ms. Menefee saw Dr. Pon on July 25, 2013, at the request of the Social Security

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Administration.83 At this visit, Dr. Pon noted that Ms. Menefee regularly used a cane for the past

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two to three years and that the cane does not provide symptomatic relief, but does support her in

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walking in her apartment and outside.84 He commented on Ms. Menefee’s past medical history

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and surgeries, and performed a physical examination.85

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During the examination, Dr. Pon noted the following of Ms. Menefee’s condition: (1) she

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requires the use of the arm of a chair and her cane to stand up from a sitting position; (2) she can

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AR 492-93.
AR 493.
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AR 494.
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Id.
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AR 495.
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Id.
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Id.
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AR 781.
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Id.
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AR 782.

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stand without the support of her cane; (3) her gait velocity and stride length are slightly less than

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normal but she does not limp; (4) she refuses to walk without her cane; (5) and she was unable to

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get onto the exam table, even with the assistance of her cane.86 He found that her neck and spine

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were normal, but she complained of pain in her left flank; examinations of her upper extremities

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were normal.87 He noted postsurgical scars on both great toes as a result of the bunionectomies;

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she complained of tenderness and pain at the plantar aspect on both feet.88 He noted a thirty-

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degree ankle-movement restriction in both ankles.89 He assessed her condition as chronic residual

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bilateral foot pain and occasional associated numbness, and possible superimposed peripheral

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neuropathy from her diabetes.90
Dr. Pon also examined Ms. Menefee’s functional capacity at this visit.91 He noted the

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Northern District of California

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following: (1) no visual impairment; (2) no problems understanding speech or conversation; (3) no

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speech impediment; (4) with use of a cane she could walk up to four hours in an eight-hour

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workday; (5) she could sit for a total of six hours in an eight-hour workday; (6) her ability to stoop

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was impeded by pain; (7) she can crouch, kneel, and squat occasionally; (8) she should limit her

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climbing of stairs or ladders; (9) and she has no restrictions with crawling, bilateral pushing or

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pulling, or arm-hand control.92 He also noted that Ms. Menefee’s ability to lift and carry would be

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limited by usage of a cane, but that she can still lift up to ten pounds, bilaterally reach, and

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perform gross and fine manipulation.93

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Id.
Id.
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AR 783.
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Id.
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Id.
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Id.
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Id.
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Id.

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2.1.4 Dr. Kyle Van Gaasbeek: Psychiatric Evaluator

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Ms. Menefee first saw Dr. Van Gaasbeek on January 26, 2013.94 Her chief complaints were

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anxiety, body aches, foot pain, and vision loss.95 She also reported leg pain, diabetes, and a

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hernia.96 Ms. Menefee reported impatience and increased anxiety symptoms, but stated that she

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has not sought anxiety treatment because she “doesn’t have time for it.”97 She also notified Dr.

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Van Gaasbeek of her lack of past psychiatric treatment.98 She told him that she lost her home

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about a year before, she is now staying with friends in their homes, and her last job was in 2009 in

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customer support.99 Her days consist of stretching, going to different destinations, and taking care

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of herself, and she reported that she sometimes watches television.100
Dr. Van Gaasbeek noted that Ms. Menefee’s concentration, persistence, and pace was difficult,

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Northern District of California

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that she was “odd,” and that she understood that she has problems communicating with other

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people.101 He also noted that her thoughts tend to be circumstantial, causing his gathering of her

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history of stream of mental activity to be difficult.102 He noted her mood was depressed and

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irritable, but that her depression was treatable and it was difficult to determine how much of her

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depression was caused by her physical symptoms as opposed to potential other personality

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issues.103
His functional assessment/medical source statement included the following: (1) she is capable

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of managing her own funds; (2) her ability to perform simple and repetitive tasks is unimpaired;

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(3) her ability to perform complex tasks is moderately impaired; (4) she is able to accept

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AR 740.
Id.
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AR 741.
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Id.
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AR 740-41.
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AR 741.
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Id.
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Id.
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Id.
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AR 741-42.

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instructions from supervisors; (5) her ability to interact with coworkers and the public is mildly

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impaired; (6) her ability to perform work activities without special attention is unimpaired; (7) her

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ability to regularly attend work for psychiatric reasons is unimpaired; (8) her ability to complete a

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normal workday without interruptions due to psychiatric conditions is mildly impaired; (9) her

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ability to deal with usual workplace stress is unimpaired; (10) her intellectual function is in the

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low-average range; (11) she was alert and oriented; (12) her immediate memory is excellent, but

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her recent memory is poor and her past memory is limited; (13) her fund of knowledge is fair; (14)

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her abstract thinking is limited; and (15) her judgment and insight were adequate.104 He diagnosed

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Ms. Menefee with unspecified depression and assigned her a GAF score of 55.105

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2.1.5 Dr. Akindele Kolade: Treating Psychiatrist

United States District Court
Northern District of California

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Ms. Menefee first saw Dr. Kolade on January 21, 2014, complaining of anxiety in social

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settings with worsening progression.106 Ms. Menefee described the severity of her anxiety as eight

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out of ten and described the following symptoms: anxiety, increased worry, irritable, palpitations,

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shortness of breath, and sweating.107 Dr. Kolade noted a previous diagnosis of generalized anxiety

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disorder without a date attached.108 He noted a family history of mental health problems: her

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sister has anxiety, her maternal grandmother had mental illness, and her mother had panic

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attacks.109 He noted that Ms. Menefee did not exhibit signs of depression, anxiety, eating disorder,

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psychosis, panic attacks, or suicidal attempts.110 He diagnosed Ms. Menefee with generalized

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anxiety disorder, unspecified dementia without behavioral disturbance, and panic disorder.111 He

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AR 742-43.
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AR 743.
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AR 804.
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Id.
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Id.
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AR 805.
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AR 804.
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AR 807.

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prescribed the continued use of clonazepam and Cymbalta.112 At a subsequent visit on March 17,

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2014, he added Seroquil to her prescriptions.113

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2.1.6 Dr. L. Colsky: State Examiner

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On behalf of the state, Dr. Colsky examined Ms. Menefee on February 15, 2013.114 In

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determining Ms. Menefee’s credibility, Dr. Colsky took into account Ms. Menefee’s activities of

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daily living, the qualities of her pain, medication treatments, and other treatments, and he stated

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that she did not suffer from any severe impairment for at least a twelve-month period.115 Dr.

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Colsky found that Ms. Menefee’s impairments were supported by the available evidence, but their

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duration and severity were not fully credible.116
Dr. Colsky also examined Ms. Menefee’s Residual Functional Capacity (“RFC”) on this

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Northern District of California

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date.117 Dr. Colsky found that Ms. Menefee had no significant limitations in her ability to: (1)

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remember locations and work procedures; (2) understand and remember short or detailed

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instructions; (3) carry out short or detailed instructions; (4) maintain attention and concentration;

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(5) follow a schedule and be punctual; (6) sustain a regular routine; (7) make simple work-related

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decisions; (8) perform a normal weekday at a consistent pace; (9) ask simple questions, accept

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instructions and respond appropriately to them; (11) and maintain socially appropriate behavior.118

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Dr. Colsky also found that Ms. Menefee had moderate limitations in her ability to work in

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coordination with others without being distracted, her ability to interact with the general public,

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and her ability to get along with coworkers or peers.119 Dr. Colsky noted additional limitations in

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AR 804-05.
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AR 848.
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AR 138-44.
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AR 139.
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Id.
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AR 140-41.
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Id.
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Id.

ORDER (No. 3:15-cv-03957-LB)

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the areas of comprehension and memory, sustained concentration and persistence, social

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interactions, and interacting appropriately with others on a sustained basis.120

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2.2 Ms. Menefee’s Testimony

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Ms. Menefee testified before the ALJ on January 30, 2014.121 The ALJ first asked Ms.

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Menefee about whether she still lived with relatives or friends; Ms. Menefee stated that she did.122

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The ALJ asked Ms. Menefee why she felt she was unable to work; Ms. Menefee responded
that she has pain throughout her body, limited motion, and mental changes including depression

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and suicide.123 Ms. Menefee then testified as to her then-current mental health treatment with Dr.

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Kolade, which began about four months before the hearing date.124 She testified that Dr. Kolade

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Northern District of California

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prescribed her clonazepam and duloxetine, which she had been taking for about a week but had

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not noticed any difference.125 Ms. Menefee also testified that she was not seeing a psychologist,

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therapist, or social worker.126

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The ALJ then asked Ms. Menefee about her physical pain, which she described as being

15

present in her upper legs, arms, and the bottoms of her feet when walking, and she attributed the

16

pain to her diabetes.127 She stated that the pain had been present for between four and five years.128

17

Ms. Menefee also stated that she told her doctors about her pain, and her doctors told her that she

18

needed to exercise more often but the pain gets worse with exercises other than walking.129 Ms.

19

Menefee also disclosed using a cane for the two years previous to the hearing because of right-side

20
21

120

22

121

23
24
25
26
27
28

Id.
AR 68.
122
AR 71.
123
Id.
124
Id.
125
AR 72.
126
AR 73.
127
Id.
128
Id.
129

AR 74.

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1

weakness and balance issues, stated that the cane was not prescribed by her doctor, admitted that

2

she bought the cane herself, and professed that when she told her doctors about her cane use, they

3

did not say anything.130

4

Ms. Menefee stated that she was still taking metformin to treat her diabetes, that the metformin

5

keeps her diabetes under control “sometimes,” and that she does not use insulin.131 She also stated

6

that she takes oxycodone in the morning and evening “as it’s prescribed,” and that “[i]t makes

7

[her] “very tired.”132 She did not take oxycodone the morning before the hearing.133 She also

8

testified that without the oxycodone, “[her] pain becomes unbearable.”134
Ms. Menefee testified that she saw Dr. Zhang about once every three months, but that she had

9

a new doctor: Dr. Edwards.135 She stated that she switched to Dr. Edwards for her internal pain

11
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10

because although she had been seeing Dr. Zhang for a long time, she believed he was not

12

providing solutions to her pain.136 Dr. Edwards was the doctor who prescribed the oxycodone.137

13

Ms. Menefee also stated that she had quit smoking cigarettes in December 2013 after over twenty

14

years, with the help of Chantix, a medication.138 She also denied drinking alcohol, using drugs not

15

prescribed for her, or using medical marijuana.139
Ms. Menefee stated that in addition to her pain in her arms, legs, and the bottoms of her feet,

16
17

and her depression, her mental state also prevented her from working.140 She stated that in the past

18

three to four months, she “constantly [had] fears[,] . . . thoughts of suicide, and [thought] that

19
20

130

21
22

AR 74-75.

131
132

23
24
25
26
27
28

AR 75.
AR 75-76.
133
AR 76.
134
Id.
135
AR 76-77.
136
AR 77
137
AR 77-78.
138
AR 78.
139
AR 78-79.
140

AR 79.

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1

people were after [her].”141 She testified that these feelings were triggered because she was “raped

2

and beat up.”142 She also said that the people she was staying with at the time told her that if she

3

said anything about the rape, she wouldn’t be able to stay there anymore.143
The ALJ then asked Ms. Menefee what she does during the day.144 Ms. Menefee stated that

5

during the day, she gets and reads magazines, walks “from one place to another maybe just for

6

twenty minutes,” and then sits at a bench “[if] there’s a nearby park” for an hour or two until the

7

people she was staying with got home because she was not allowed to be in the house alone.145

8

She also testified that she has problems sleeping, sleeps about four hours per night, and does not

9

nap during the day.146 She stated that she does not have problems with any simple self-care tasks

10

and that she does not do any chores.147 She also stated that she was able to walk for about twenty

11
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4

minutes without pausing but that her pain increases while walking.148 At the time of the hearing,

12

she rated her pain level in her thighs and lower legs at seven out of ten, and that the pain was

13

throbbing.149 She also mentioned never having found a doctor to treat her potential diagnosis of

14

claudication and stated that she did not understand some of the things Dr. Zhang said.150
Ms. Menefee also stated that she began seeing Dr. Edwards based on a referral from a relative

15
16

and Dr. Kolade because her “thought patterns [were] not normal for the type of person [she is].”151

17

She described herself as normally uplifting and positive and that she was taught to always be the

18
19
20
141

21
22
23
24
25
26
27
28

Id.

142

Id.
143
AR 80.
144
Id.
145
Id.
146
Id.
147
AR 81.
148
Id.
149
AR 81-82.
150
AR 82.
151

Id.

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1

best person she could be; her thought patterns completely changed that outlook on life.152 She said

2

she no longer had the drive she used to have.153
She testified that was laid off from her last job in March 2009 because the department she

3
4

worked in moved and her position was eliminated.154 She then said that she stopped working

5

because of a large fibroid tumor “that was about to burst” in 2009 or 2010.155 She testified that the

6

first bunionectomy stopped her toe pain, but she still had pain on the bottom of her foot that, on

7

the date of her hearing, was at a level of eight out of ten all the time.156 She testified to treating the

8

pain with Epsom salt baths, therapy, and staying off her feet.157 She testified that the second

9

bunionectomy was “at the same time” as the first, or about a month apart, and that the pain on the

10

bottom of her right foot was as severe as the pain on her left foot.158

United States District Court
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11
12

2.3 Vocational Expert Testimony

13

Vocational Expert Stephan P. Davis testified at the hearing on January 30, 2014.159 Mr. Davis,

14

having reviewed Ms. Menefee’s work history, asked Ms. Menefee about the scope of her position

15

as a customer service supervisor, and ascertained that she also gave advice regarding the software

16

programs SQL, Linux, and Knowledge Base, in addition to supervising other employees.160 When

17

Mr. Davis asked Ms. Menefee where she was trained, she stated that she received on-the-job

18

training and also attended Heald Business College, which was inapplicable to the work she was

19
20
21
152

22
23
24
25
26
27
28

Id.
Id.
154
AR 83.
155
Id.; see also AR 1092 (indicating that the hysterectomy, which removed the fibroid, occurred
on April 8, 2010).
156
AR 84.
157
Id.
158
AR 85.
159
AR 86.
153

160

AR 87.

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17

1

doing.161 Ms. Menefee stated that the maximum weight she lifted at her previous job was five

2

pounds.162
Mr. Davis described two of Ms. Menefee’s previous jobs as sedentary: accounting clerk and

3
4

user support analyst.163 Mr. Davis also described as “light” Ms. Menefee’s previous job as a retail

5

salesperson.164 The ALJ had Mr. Davis assume a person of Ms. Menefee’s age, education, and

6

work history, limited to light work and lifting up to twenty pounds occasionally and ten pounds

7

frequently, and using a cane that limits lifting and carrying up to ten pounds occasionally and

8

frequently.165 The ALJ further had Mr. Davis assume that that person can stand and walk up to

9

four hours with a cane, sit for up to six hours, occasionally crouch, kneel, squat, stoop, climb
stairs, frequently use bilateral lower extremity for foot controls, and no limits on reaching,

11
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10

grasping, gripping, handling, and fingering.166
The ALJ stated “this individual can perform simple, complex work, but no work involving

12
13

public contact, occasional interaction with co-workers and supervisors, [and] no work on a

14

team.”167 The ALJ asked Mr. Davis if such a person could perform any past work; he answered

15

no.168 Mr. Davis testified that such a person could perform other work, including approximately

16

40% of unskilled jobs, such as an “investigator, dealer accounts,” shipping and receiving weigher,

17

night auditor, or mail clerk.169
Ms. Menefee’s attorney then asked whether a person who had all the above limitations but also

18
19

would be off-task five percent, or twenty-four minutes, of the workday would limit any of the

20
21
22

161

AR 88.
Id.
163
AR 88-89.
164
AR 89.
165
Id.
166
Id.
167
Id.
168
Id.
162

23
24
25
26
27
28

169

AR 90-91.

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1

jobs.170 Mr. Davis responded no, but the totality of the conditions might eliminate five percent of

2

the jobs.171 Being off-task for ten percent of the time would eliminate more positions.172 With the

3

added condition of missing two to three days of work per month, Mr. Davis stated that “it would

4

rule out all work.”173

5
6

2.4 Administrative Findings

7

The ALJ evaluated Ms. Menefee’s disability application with the five-step analysis found in
20 C.F.R. § 404.1520(a)(4). Those questions ask the following to determine whether a claimant is

9

disabled: (1) whether the claimant is presently engaging in substantial gainful activity; (2) whether

10

the claimant’s impairment(s) is severe; (3) whether the claimant’s impairment (or combination of

11
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8

impairments) meets or equals a listing in the applicable regulation; (4) whether the claimant is able

12

to perform any past work; and (5) whether the claimant is able to make an adjustment to other

13

types of work, taking into consideration his or her age, education, and work experience. See 20

14

C.F.R. § 404.1520(a)(4). After analyzing all five steps, the ALJ held that Ms. Menefee was not

15

disabled within the meaning of the Social Security Act from April 30, 2010, through March 31,

16

2014 (the date last insured).174
At step one, the ALJ found that that Ms. Menefee did not engage in substantial gainful activity

17
18

from April 30, 2010, through March 31, 2014.175
At step two, the ALJ found that Ms. Menefee had the following severe impairments: “diabetes

19
20

mellitus; status post bilateral bunion surgery; obesity; and nicotine addiction in partial

21

remission.”176 The ALJ found that these impairments “more than minimally affect the claimant’s

22
23
24
25
26
27
28

170

AR 92.
Id.
172
Id.
173
AR 92-93.
174
AR 27.
175
AR 28.
171

176

AR 29.

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19

1

ability to perform basic work activities . . . and are therefore ‘severe.’”177 The ALJ also found that

2

Ms. Menefee’s impairment of depression does not cause more than minimal limitation to perform

3

basic work activities, and therefore it was not a severe impairment.178

4

In determining whether mental impairments are “severe,” the ALJ considered four “broad

5

functional areas” to evaluate mental disorders: (1) activities of daily living; (2) social functioning;

6

(3) concentration, persistence, or pace; and (4) episodes of decompensation of extended

7

duration.179
First, regarding the functional area of daily living, the ALJ found that Ms. Menefee has no

9

more than a mild limitation.180 The ALJ distinguished between limitations in activities of daily

10

living due to physical conditions and those due to mental conditions; she stated that the mental

11
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8

conditions do not cause any more than mild limitations.181 The ALJ noted that Ms. Menefee

12

prepares her own meals, does chores, goes out multiple times per week, goes grocery shopping,

13

and watches television.182 The ALJ noted Ms. Menefee’s testimony at the hearing regarding her

14

daily activities of reading magazines and sitting and walking at a park until the people she stays

15

with come home.183 The ALJ recalled Dr. Van Gaasbeek’s notes of Ms. Menefee’s description of

16

her daily activities: stretching, going to different destinations including park benches where she

17

reads magazines, taking care of herself, and watching television.184 The ALJ also noted that the

18

State agency psychological consultant found that Ms. Menefee had no restriction in this area at all,

19

and so found that she had “no more than” a mild restriction in this area.185

20
21
22
23
24
25
26
27
28

177

Id.
Id.
179
Id. at 29-30; see also 20 C.F.R. Part 404, Subpart P, Appx. 1, ¶ 12, accessed at
https://www.ssa.gov/OP_Home/cfr20/404/404-app-p01.htm.
180
AR 29.
181
Id.
182
Id.
183
Id.
184
Id.
178

185

Id.

ORDER (No. 3:15-cv-03957-LB)

20

Second, in the functional area of social functioning, the ALJ found that Ms. Menefee has a

1
2

mild limitation.186 The ALJ based this finding on Ms. Menefee’s social activities, which include

3

spending time with family members, going to church, and going to doctor’s appointments.187 The

4

ALJ acknowledged Ms. Menefee’s short attention span and problems communicating, but

5

discounted the State agency psychological consultant’s finding of a moderate limitation

6

maintaining social functioning and instead found she had a mild limitation.188
Third, in the next functional area of concentration, persistence, or pace, the ALJ found that Ms.

7
8

Menefee has a mild limitation.189 The ALJ considered Ms. Menefee’s Function Report, in which

9

Ms. Menefee reported that “she can pay attention for 30 minutes; does not finish what she starts;
has to read written instruction 4 times to make sure she understands; and follow[s] spoken

11
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10

instructions very well if spoken slowly and clearly.”190 The ALJ took into account Ms. Menefee’s

12

psychological evaluation, in which she could immediately recall three out of three objects but was

13

unable to recall any of them after several minutes, was able to perform a simple calculation, made

14

a mistake spelling the word “world” backwards after correctly spelling it forwards, and

15

successfully repeated a string of numbers.191 The ALJ considered Dr. Van Gaasbeek’s finding at

16

the psychological evaluation that Ms. Menefee has no limitation in simple and repetitive tasks and

17

mild limitation in detailed and complex tasks.192 The ALJ agreed with Dr. Van Gaasbeek’s finding

18

that Ms. Menefee had mild limitation in concentration, persistence, or pace.193
Fourth, in the functional area of episodes of decompensation, the ALJ found that Ms. Menefee

19
20

has not experienced any episodes of decompensation of extended duration.194

21
22

186

Id.
Id.
188
Id.
189
Id.
190
Id.
191
AR 30.
192
Id.
193
Id.
187

23
24
25
26
27
28

194

Id.

ORDER (No. 3:15-cv-03957-LB)

21

1

Because none of the functional areas were found to impose any more than a mild limitation,

2

Ms. Menefee’s mental impairments were found to be “nonsevere.”195 Before considering the third

3

step in the disability analysis, the ALJ also addressed Ms. Menefee’s other alleged mental

4

impairments.196 The ALJ found that although Ms. Menefee complained of anxiety as early as

5

January 2013, she did not seek treatment for it until January 2014, when she first went to see Dr.

6

Kolade.197 The ALJ noted that Dr. Kolade diagnosed Ms. Menefee with generalized anxiety order

7

and panic disorder, but noted that the durational requirement of twelve months was not fulfilled.198

8

The ALJ also addressed Ms. Menefee’s claim of neuropathy, which she dismissed as being

9

unsupported by the treatment records and objective findings.199
At step three, the ALJ found that Ms. Menefee did not have an impairment or combination of

11
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Northern District of California

10

impairments that meets or medically equals a listed impairment in 20 C.F.R. Part 404, Subpart P,

12

Appendix 1.200 After considering the evidence, the ALJ stated that the evidence failed to support a

13

finding that Ms. Menefee’s impairments are supported by clinical findings that meet the necessary

14

criteria of a listed impairment.201

15

To examine the fourth step, the ALJ followed a two-step process in which she determined

16

whether there were underlying medically determinable physical or mental impairments that could

17

reasonably be expected to produce Ms. Menefee’s pain or symptoms, and the extent to which the

18

impairments limited Ms. Menefee’s functioning.202 The ALJ considered all symptoms and the

19

extent to which they can be accepted as consistent with the medical evidence and other evidence

20

including opinions.203

21
22

195

Id.
Id.
197
Id.
198
Id.
199
Id.
200
Id.
201
AR 31.
202
Id.
196

23
24
25
26
27
28

203

Id.

ORDER (No. 3:15-cv-03957-LB)

22

1

The ALJ found that Ms. Menefee’s Residual Functional Capacity (“RFC”) allowed her to

2

perform less than the full range of “light work.”204 Specifically, the ALJ found that Ms. Menefee:

3

(1) can lift twenty pounds occasionally and ten pounds frequently, including if she needs a cane;

4

(2) can stand and walk for four hours in an eight-hour workday; (3) can sit for six hours in an

5

eight-hour workday; (4) can occasionally crouch, kneel, squat, stoop, and climb stairs; (5) has no

6

limitations on crawling, reaching, grasping, gripping, handling, or fingering; (6) can use her legs

7

for foot controls; (7) can perform simple and complex work; (8) can have occasional interaction

8

with coworkers and supervisors; and (9) cannot work with the public or on a team.205
The ALJ then described the findings regarding Ms. Menefee’s testimony at the hearing on

10

January 31, 2014.206 Taking Ms. Menefee’s testimony into consideration, the ALJ found that Ms.

11
United States District Court
Northern District of California

9

Menefee’s medically determinable impairments could reasonably be expected to cause the alleged

12

symptoms, but also found that Ms. Menefee’s statements were not entirely credible.207
The ALJ provided a number of reasons that she did not consider credible Ms. Menefee’s

13
14

statements regarding the intensity, persistence, and limiting effects of her symptoms.208 Regarding

15

Ms. Menefee’s foot pain, the ALJ noted that following the left bunionectomy, Ms. Menefee made

16

excellent progress on her big toe and had no problems with her left foot after the surgery.209

17

Similarly, after the right bunionectomy, Ms. Menefee healed well after seven weeks, although she

18

reported increased swelling when she walked and bore weight on her foot, she was advised to

19

begin using a cane, and she continued to experience pain in her ankle and legs.210 The ALJ also

20

noted Dr. Boccio’s suggestions to wear wedge shoes, use orthotics, and work out at the gym.211

21

The ALJ also noted that Ms. Menefee reported improvements on her left arm, but also leg

22
204

23
24
25
26
27
28

Id.
Id.
206
AR 32-33.
207
AR 33.
208
Id.
209
Id.
210
Id.
205

211

Id.

ORDER (No. 3:15-cv-03957-LB)

23

1

weakness and pain; the medical records showed no edema, foot ulcers, cyanotic nail beds, digital

2

ulcers, or varicose veins.212
The ALJ also assessed Ms. Menefee’s diabetes, stating that it is uncomplicated and well-

3
4

controlled with medications.213 The ALJ noted Dr. Zhang’s report about vision problems and a

5

questionable diagnosis of claudication, but accorded little weight to these problems considering

6

Ms. Menefee’s failure to follow up.214
Next, the ALJ determined Ms. Menefee’s residual functional capacity. First, the ALJ gave

7
8

great weight to the opinions of Dr. Pon, the state examining physician.215 The ALJ specifically

9

pointed to Ms. Menefee’s ability to stand without her cane and her lack of limp and then her
refusal to ambulate without her cane and inability to get onto the examination table without use of

11
United States District Court
Northern District of California

10

her cane.216 The ALJ noted a number of Dr. Pon’s measurements of Ms. Menefee’s flexibility and

12

pain levels.217 The ALJ then repeated Dr. Pon’s residual functional capacity findings.218
The ALJ assigned less weight to Dr. Boccio, who opined that Ms. Menefee was able to stand

13
14

and sit for two and four hours, respectively, per eight-hour day.219 Dr. Boccio’s finding was more

15

restrictive than Dr. Pon’s, who found that Ms. Menefee could stand for four hours and sit for six

16

hours in each eight-hour day.220 The ALJ stated that Dr. Boccio’s opinion was not consistent with

17

his treatment notes and noted that he based his conclusions based on an office visit

18

conversation.221

19
20
21

212

22

213

23
24
25
26
27
28

AR 33.
AR 34.
214
Id.
215
Id.
216
Id.
217
Id.
218
Id.
219
Id.
220
Id.
221

Id.

ORDER (No. 3:15-cv-03957-LB)

24

The ALJ also assigned little weight to Dr. Zhang’s opinion that Ms. Menefee could stand for

1
2

three hours per day and sit for three hours per day222 because “it appears to be based on the

3

claimant’s subjective complaints rather than the treatment records, which indicate that [Ms.

4

Menefee] has not received any treatment for lower extremity pain.”223

5

The ALJ assigned great weight to the psychological opinions of Dr. Van Gaasbeek, the state

6

psychiatric evaluator, because he directly examined Ms. Menefee and his opinion was consistent

7

with his findings.224 The ALJ also noted that no mental health treatment records support any

8

greater limitations than in the record.225 The ALJ assigned some weight to the assessment by Dr.

9

Colsky, but only insofar as it was consistent with the other RFC assessments.226 The ALJ did not
assign any weight to the report of Dr. Kolade, stating that Dr. Kolade performed only an initial

11
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10

evaluation and did not identify any functional limitations.227

12

The ALJ noted a number of inconsistencies in Ms. Menefee’s testimony.228 The ALJ stated

13

that these inconsistencies were not likely the result of intent to mislead, but that, nevertheless, Ms.

14

Menefee’s testimony was not reliable.229 Specifically, she cited the differences in Ms. Menefee’s

15

professed functional limitations, the different stories regarding why she left her most recent job,

16

and the possibility that Ms. Menefee did not leave her job for medical reasons.230 The ALJ also

17

noted that Ms. Menefee testified she had neuropathy in her lower extremities, but there was no

18

documentation of treatment for this malady in the record.231 The ALJ acknowledged that Ms.

19
20
21

222

22

223

23
24
25
26
27
28

AR 34-35.
AR 35.
224
Id.
225
Id.
226
Id.
227
Id.
228
AR 35-36.
229
Id.
230
AR 35.
231

AR 36.

ORDER (No. 3:15-cv-03957-LB)

25

1

Menefee does not live pain-free, but the ALJ’s conclusion was that the evidence does not support

2

the alleged degree of limitations.232
The ALJ concluded the residual functional capacity assessment by finding that Ms. Menefee

3
4

was unable to perform any past relevant work.233 The past relevant positions Ms. Menefee had

5

held are retail sales associate, accounting clerk, and user support analyst.234 The ALJ further found

6

that a person of the same age, education, work experience, and RFC as Ms. Menefee could not

7

perform any of these positions.235

8

At step five, the ALJ found three jobs in the national economy that Ms. Menefee would be

9

able to perform: investigator of dealer accounts, shipping and receiving weigher, and mail clerk. 236
The ALJ found that Ms. Menefee was “capable of making a successful adjustment to other work

11
United States District Court
Northern District of California

10

that exists in significant numbers in the national economy.”237

12

The ALJ accordingly concluded that Ms. Menefee was not disabled as of the date of the

13

decision, according to the definition of disability in 20 C.F.R. §§ 404.1520(g) & 416.920(g).238

14
15

ANALYSIS

16

Under 42 U.S.C. § 405(g), district courts have jurisdiction to review any final decision of the

17

SSA commissioner if the claimant initiates the suit within 60 days of the decision. District courts

18

may set aside the commissioner’s denial of benefits only if the ALJ’s “findings are based on legal

19

error or are not supported by substantial evidence in the record as a whole.” 42 U.S.C. § 405(g);

20

Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009) (internal quotation omitted). “Substantial

21

evidence means more than a mere scintilla but less than a preponderance; it is such relevant

22
23
24
25
26
27
28

232

Id.
Id.
234
Id.
235
Id.
236
AR 37.
237
Id.
233

238

Id.

ORDER (No. 3:15-cv-03957-LB)

26

1

evidence as a reasonable mind might accept as adequate to support a conclusion.” Andrew v.

2

Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). If the evidence in the administrative record supports

3

both the ALJ’s decision and a different outcome, the court must defer to the ALJ’s decision and

4

may not substitute its own decision. See id.; see also Tackett v. Apfel, 180 F.3d 1094, 1097–98

5

(9th Cir. 1999).

6
7
8
9

1. Applicable Law
An SSI claimant is considered disabled if he suffers from a “medically determinable physical
or mental impairment which can be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than twelve months,” and the “impairment or

11
United States District Court
Northern District of California

10

impairments are of such severity that he is not only unable to do his previous work but cannot,

12

considering his age, education, and work experience, engage in any other kind of substantial

13

gainful work which exists in the national economy.” 42 U.S.C. § 1382c(a)(3)(A) & (B).

14
15

1.1 Five-Step Analysis to Determine Disability

16

There is a five-step analysis for determining whether a claimant is disabled within the meaning

17
18
19
20

of the Social Security Act. See 20 C.F.R. § 404.1520. The five steps are as follows:
Step One. Is the claimant presently working in a substantially gainful activity? If
so, then the claimant is “not disabled” and is not entitled to benefits. If the claimant
is not working in a substantially gainful activity, then the claimant case cannot be
resolved at step one, and the evaluation proceeds to step two. See 20 C.F.R. §
404.1520(a)(4)(i).

21
22
23
24
25
26
27
28

Step Two. Is the claimant’s impairment (or combination of impairments) severe? If
not, the claimant is not disabled. If so, the evaluation proceeds to step three. See 20
C.F.R. § 404.1520(a)(4)(ii).
Step Three. Does the impairment “meet or equal” one of a list of specified
impairments described in the regulations? If so, the claimant is disabled and is
entitled to benefits. If the claimant’s impairment does not meet or equal one of the
impairments listed in the regulations, then the case cannot be resolved at step three,
and the evaluation proceeds to step four. See 20 C.F.R. § 404.1520(a)(4)(iii).
Step Four. Considering the claimant’s residual functional capacity (“RFC”), is the
claimant able to do any work that he or she has done in the past? If so, then the
ORDER (No. 3:15-cv-03957-LB)

27

1
2
3
4
5
6
7
8
9
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claimant is not disabled and is not entitled to benefits. If the claimant cannot do any
work he or she did in the past, then the case cannot be resolved at step four, and the
case proceeds to the fifth and final step. See 20 C.F.R. § 404.1520(a)(4)(iv).
Step Five. Considering the claimant’s RFC, age, education, and work experience,
is the claimant able to “make an adjustment to other work?” If not, then the
claimant is disabled and entitled to benefits. See 20 C.F.R. § 404.1520(a)(4)(v). If
the claimant is able to do other work, the Commissioner must establish that there
are a significant number of jobs in the national economy that the claimant can do.
There are two ways for the Commissioner to show other jobs in significant
numbers in the national economy: (1) by the testimony of a vocational expert or (2)
by reference to the Medical-Vocational Guidelines at 20 C.F.R., part 404, subpart
P, app. 2. See 20 C.F.R. § 404.1520(a)(4)(v).
For steps one through four, the burden of proof is on the claimant. Tackett, 180 F.3d at 1098. At
step five, the burden shifts to the commissioner. Id.

United States District Court
Northern District of California

11
12

1.2 Case Law

13

In determining whether a claimant is disabled, the ALJ must consider each medical opinion in

14

the record, together with the rest of the relevant evidence. 20 C.F.R. § 416.927(b); Zamora v.

15

Astrue, No. C 09-3273 JF, 2010 WL 3814179, at *3 (N.D. Cal. Sept. 27, 2010). “By rule, the

16

Social Security Administration favors the opinion of a treating physician over non-treating

17

physicians.” Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007) (citing 20 C.F.R. § 404.1527). “The

18

opinion of a treating physician is given deference because ‘he is employed to cure and has a

19

greater opportunity to know and observe the patient as an individual.’” Morgan v. Comm’r of the

20

Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999) (citing Sprague v. Bowen, 812 F.2d 1226,

21

1230 (9th Cir. 1987)). “However, the opinion of the treating physician is not necessarily

22

conclusive as to either the physical condition or the ultimate issue of disability.” Id. (citing

23

Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989) and Rodriguez v. Bowen, 876 F.2d 759,

24

761-62 & n.7 (9th Cir. 1989)). “If a treating physician’s opinion is ‘well-supported by medically

25

acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other

26

substantial evidence in [the] case record, [it will be given] controlling weight.’” Orn, 495 F.3d at

27

631 (quoting 20 C.F.R. § 404.1527(d)(2)).

28
ORDER (No. 3:15-cv-03957-LB)

28

1

“If a treating physician’s opinion is not given ‘controlling weight’ because it is not ‘well-

2

supported’ or because it is inconsistent with other substantial evidence in the record, the [Social

3

Security] Administration considers specified factors in determining the weight it will be given.”

4

Id. “Those factors include the ‘[l]ength of the treatment relationship and the frequency of

5

examination’ by the treating physician; and the ‘nature and extent of the treatment relationship’

6

between the patient and the treating physician.” Id. (citing 20 C.F.R. § 404.1527(b)(2)(i)-(ii)).

7

“Additional factors relevant to evaluating any medical opinion, not limited to the opinion of the

8

treating physician, include the amount of relevant evidence that supports the opinion[,] . . . the

9

quality of the explanation provided[,] the consistency of the medical opinion with the record as a
whole[, and] the specialty of the physician providing the opinion . . . .” Id. (citing 20 C.F.R.

11
United States District Court
Northern District of California

10

§ 404.1527(d)(3)-(6)). Nonetheless, even if the treating physician’s opinion is not entitled to

12

controlling weight, it still is entitled to deference. See id. at 632 (citing SSR 96-02p at 4 (Cum.

13

Ed. 1996)). Indeed, “[i]n many cases, a treating source’s medical opinion will be entitled to the

14

greatest weight and should be adopted, even if it does not meet the test for controlling weight.”

15

(SSR 96-02p at 4 (Cum. Ed. 1996)).

16

Social Security regulations distinguish three types of physicians: treating physicians;

17

examining physicians; and non-examining physicians. 20 C.F.R. § 416.927(c), (e); Lester v.

18

Chater, 81 F.3d 821, 830 (9th Cir. 1995). “Generally, a treating physician’s opinion carries more

19

weight than an examining physician’s, and an examining physician’s opinion carries more weight

20

than a reviewing physician’s.” Hollohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001) (citing

21

Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995)). The opinion of a treating physician is given

22

the greatest weight because the treating physician is employed to cure and has a greater

23

opportunity to understand and observe a claimant. See Smolen v. Chater, 80 F.3d 1273, 1285 (9th

24

Cir. 1996); see also Magallanes, 881 F.2d at 751.

25

Accordingly, “[i]n conjunction with the relevant regulations, [the Ninth Circuit has] developed

26

standards that guide [the] analysis of an ALJ’s weighing of medical evidence.” Ryan v. Comm’r of

27

Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) (citing 20 C.F.R. § 404.1527). “To reject [the]

28

uncontradicted opinion of a treating or examining doctor, an ALJ must state clear and convincing
ORDER (No. 3:15-cv-03957-LB)

29

1

reasons that are supported by substantial evidence.” Id. (quotation and citation omitted). “If a

2

treating or examining doctor’s opinion is contradicted by another doctor’s opinion, an ALJ may

3

only reject it by providing specific and legitimate reasons that are supported by substantial

4

evidence.” Id. (quotation omitted). Opinions of non-examining doctors alone cannot provide

5

substantial evidence to justify rejecting either a treating or examining physician’s opinion. See

6

Morgan, 169 F.3d at 602. An ALJ may rely partially on the statements of non-examining doctors

7

to the extent that independent evidence in the record supports those statements. Id. Moreover, the

8

“weight afforded a non-examining physician’s testimony depends ‘on the degree to which they

9

provide supporting explanations for their opinions.’” See Ryan, 528 F. 3d at 1201 (quoting 20

10

C.F.R. § 404.1527(d)(3)).
An ALJ must not reject a claimant’s pain testimony supported by “objective medical evidence

United States District Court
Northern District of California

11
12

of an underlying impairment . . . based solely on a lack of medical evidence to fully corroborate

13

the alleged severity of pain.” Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005) (citing Bunnell

14

v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991)). An ALJ may take into account “ordinary

15

techniques of credibility evaluation,” including reputation for truthfulness and inconsistencies in

16

testimony. Id. Additional factors that the ALJ may consider include: (1) the nature, location, onset,

17

duration, frequency, radiation, and intensity of any pain; (2) precipitating and aggravating factors

18

(e.g., movement, activity, environmental conditions); (3) type, dosage, effectiveness, and adverse

19

side-effects of any pain medication; (4) treatment, other than medication, for relief of pain; (5)

20

functional restrictions; and (6) the claimant's daily activities. Id. (citing Bunnell, 947 F.2d at 346).

21
22

2. Application
Ms. Menefee contends that the ALJ erred by rejecting the assessments of Dr. Boccio and Dr.

23
24

Zhang and by finding Ms. Menefee’s testimony to be not credible.239 The Commissioner responds

25
26
27
28

239

MSJ ‒ ECF No. 14 at 9, 11.

ORDER (No. 3:15-cv-03957-LB)

30

1

that the ALJ appropriately evaluated Ms. Menefee’s credibility and weighed Dr. Boccio’s and Dr.

2

Zhang’s opinions.240

3
4

2.1 The ALJ Erred by Giving Little Weight to Dr. Boccio’s and Dr. Zhang’s Opinions

5

The ALJ gave little weight to the opinions of two treating physicians: Ms. Menefee’s

6

podiatrist, Dr. Boccio, and her internist, Dr. Zhang.241 Both treated Ms. Menefee over the course

7

of multiple years for her ailments.
For a treating physician’s opinion to be given controlling weight in a disability analysis, it

9

must be well-supported by clinical and diagnostic techniques and be consistent with other medical

10

evidence. See Orn, 495 F.3d at 631 (quoting 20 C.F.R. § 404.1527(d)(2)). The legal standards are

11
United States District Court
Northern District of California

8

different when medical evidence is contradicted and when it is uncontradicted. Rejecting an

12

uncontradicted opinion requires “clear and convincing reasons” supported by substantial evidence,

13

while a contradicted opinion requires only “specific and legitimate reasons.” Bayliss, 427 F.3d at

14
15
16
17

1216 (citing Lester, 81 F.3d at 830-31). Ms. Menefee and the Commissioner agree that the
medical evidence is contradicted, and the standard thus is the “specific and legitimate reasons”
standard.242 Ms. Menefee argues that the ALJ did not identify specific contradictions in her
opinion.
The ALJ gave little weight to Dr. Boccio’s assessment because his opinion was “not consistent

18
19
20

with his treatment notes” and because he “based his conclusions on an office visit
conversation.”243
First, Dr. Boccio’s treatment notes are not inconsistent. Dr. Boccio’s treatment notes reveal

21

that following the two bunion surgeries he performed, Ms. Menefee healed well, showed
22

improvements, and experienced less pain.244 His disability analysis on March 8, 2012 states that

23
24
25

240

Cross-MSJ ‒ ECF No. 18 at 4, 7.
AR 34.
242
MSJ ‒ ECF No. 14 at 9; Cross-MSJ ‒ ECF No. 18 at 7.
243
AR 34.
241

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27
28

244

AR 394, 395, 400-01, 492, 495, 580.

ORDER (No. 3:15-cv-03957-LB)

31

1

Ms. Menefee had significant physical limitations that would prevent her from working and

2

providing a pain level of nine out of ten. Ms. Menefee argues that the ALJ’s assertion that Dr.

3

Boccio’s opinions were inconsistent with his treatment notes is not specific or legitimate.245 The

4

court agrees. “Healing well and experiencing less pain” is not inconsistent with “in pain.”
Second, the ALJ incorrectly concluded that Dr. Boccio based his entire disability opinion on

5
6

in-office visit conversation. The record establishes that Dr. Boccio took into account a time period

7

of almost two years when assessing Ms. Menefee for disability.246
The ALJ also accorded little weight to Dr. Zhang’s opinions because “it appears to be based”

9

solely on Ms. Menefee’s subjective complaints rather than on the treatment records.247 Dr. Zhang

10

treated Ms. Menefee’s diabetes, but consistently stated that it was under control with medication

11
United States District Court
Northern District of California

8

and not causing any complications.248 Dr. Zhang also prescribed Vicodin to Ms. Menefee, but did

12

not change the prescription to a more potent pain medication at any point.249 Ms. Menefee had to

13

change physicians in order to start a medication that treated her pain more effectively — she began

14

seeing Dr. Edwards in 2014 because she felt that Dr. Zhang was not treating her properly.250 Dr.

15

Zhang referred Ms. Menefee to a number of other doctors, including cardiologists, podiatrists,

16

dermatologists, and ophthalmologists, but did not include the related problems in his disability

17

analysis.251 Dr. Zhang had been treating Ms. Menefee regularly for over two years at the time of

18

the disability questionnaire, but he put only the date of examination (February 6, 2012) in response

19

to the question about the date he treated Ms. Menefee.252 When asked what evidence he

20

considered to form his opinion, Dr. Zhang wrote “interview.”253 The record reflects, however, that

21
22
23
24
25
26
27
28

245

MSJ ‒ ECF No. 14 at 10.
AR 492 (stating that Dr. Boccio based his opinion on treatment notes between March 29, 2010,
and March 8, 2012.)
247
AR 35.
248
AR 457, 613, 635, 746, 749, 808, 814, passim.
249
AR 635, passim.
250
AR 77.
251
AR 504.
252
Id.
246

253

AR 507.

ORDER (No. 3:15-cv-03957-LB)

32

1

Dr. Zhang was Ms. Menefee’s internist for over two years and treated her for many medical

2

issues. The ALJ erred by divorcing Dr. Zhang’s opinion from his larger course of treatment of Ms.

3

Menefee and thus erred by according little weight to Dr. Zhang’s opinion.

4

Ms. Menefee cites Embrey v. Bowen for the proposition that remand is appropriate when an

5

ALJ does not allege specific inconsistencies when rejecting a treating physician’s opinion. See 849

6

F.2d 418 (9th Cir. 1988).254 In Embrey, the Ninth Circuit held that the ALJ did not provide

7

specific, legitimate reasons for rejecting treating physicians’ testimony when the ALJ stated that

8

“the opinions of total disability . . . are unsupported by sufficient objective findings and contrary

9

to the preponderant conclusions mandated by those objective findings.” Id. at 421. The court noted
that “[t]he subjective judgments of treating physicians are important, and properly play a part in

11
United States District Court
Northern District of California

10

their medical evaluations.” Id. at 422. To the extent that the deficiencies that the ALJ identified are

12

contracted by the record, they are not specific or legitimate, and Embry thus supports remand.

13
14

2.2 The ALJ Erred by Finding Ms. Menefee Not Credible

15

The ALJ found that Ms. Menefee’s testimony was only partially credible.255 She based this

16

finding on Ms. Menefee’s conflicting testimony regarding her diagnoses and symptoms, her

17

inability to show proof of treatment or diagnosis for neuropathy, and her disability report, which

18

showed little substantive proof of her inability to work.256 The court remands in part because the

19

ALJ erred by discounting her credibility for these reasons.
An ALJ may consider many factors when determining a claimant’s credibility. The two most

20
21

common and well-accepted factors are reputation for truthfulness and findings of inconsistency in

22

testimony. Burch, 400 F.3d at 680. “The ALJ must specify what testimony is not credible and

23

identify the evidence that undermines the claimant’s complaints.” Burch, 400 F.3d at 680 (citing

24

Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1988)).

25
26

254

27

255

28

256

MSJ ‒ ECF No. 14 at 10.
See AR 35-36.
AR 35-36.

ORDER (No. 3:15-cv-03957-LB)

33

An ALJ must not reject a claimant’s pain testimony supported by “objective medical evidence

1
2

of an underlying impairment . . . based solely on a lack of medical evidence to fully corroborate

3

the alleged severity of pain.” Id. (citing Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991)). In

4

addition to truthfulness and inconsistencies, an ALJ may consider: the nature, location, onset,

5

duration, frequency, radiation, and intensity of any pain; precipitating and aggravating factors

6

(e.g., movement, activity, environmental conditions); type, dosage, effectiveness, and adverse

7

side-effects of any pain medication; treatment, other than medication, for relief of pain; functional

8

restrictions; and the claimant’s daily activities. Id. (citing Bunnell, 947 F.2d at 346).
Although the ALJ is responsible for finding credibility, the finding will not stand when it is

9

either based on legal error or unsupported by the totality of the evidence. Andrews, 53 F.3d at

11
United States District Court
Northern District of California

10

1039. The ALJ unambiguously found Ms. Menefee not to be a credible witness but erred in her

12

analysis of the cited inconsistencies.257
The ALJ discredited Ms. Menefee’s testimony regarding intensity, persistence, and limiting

13
14

effects of her symptoms.258 To support that finding, the ALJ noted Ms. Menefee’s healing and

15

improvement following her bunionectomies, lessening pain levels, well-controlled diabetes, and

16

unsupported diagnoses of vision problems and claudication.259 The ALJ also noted Ms. Menefee’s

17

testimony regarding her alleged neuropathy, but on examination of the record found there was

18

neither official diagnosis nor treatment for this malady.260 The ALJ also noted that she believed

19

Ms. Menefee’s testimony was inconsistent regarding the reasons she stopped working, citing that

20

Ms. Menefee stated at one time that she was laid off, and at another time stated that she had a large

21

fibroid tumor.261 The ALJ further stated that the surgery to remove the fibroid tumor was not

22

reflected in the records.262

23
24

257

25

258

26
27
28

See id.
AR 33.
259
AR 33-34.
260
AR 36.
261
AR 35.
262

Id.

ORDER (No. 3:15-cv-03957-LB)

34

The ALJ incorrectly analyzed the intensity, persistence, and limiting effects of Ms. Menefee’s

1
2

condition because she did not consider all of the available evidence. Ms. Menefee suffered from

3

foot pain for the entire disability period, a length of almost four years. This fact speaks to the

4

extended duration of the claimant’s pain. Ms. Menefee consistently testified to having high levels

5

of pain, and stating that she “felt okay” at doctor visits did not contradict her reporting of her pain

6

levels. She stated that walking made her pain worse, which speaks to aggravating factors.263 Ms.

7

Menefee testified that she sleeps only four hours per night, that she is unable to stay at the place

8

she lives during the day and must sit on a park bench for hours, and that she cannot walk for more

9

than twenty minutes at a time, which speak to severe limitations to her daily activities and
functional restrictions.264 Ms. Menefee also underwent two painful and invasive surgeries for her

11
United States District Court
Northern District of California

10

bunions in 2010 and 2011, which speak to her willingness to undergo treatments apart from

12

medications.265

13

The ALJ also erred in her analysis of Ms. Menefee’s testimony regarding why she stopped

14

working. Ms. Menefee’s testimony on this matter answers two distinct questions: what caused Ms.

15

Menefee’s employer to lay her off and what caused her to stop working.266 The ALJ noted that

16

Ms. Menefee’s submitted medical records did not reflect a fibroid tumor surgery or treatment, and

17

only a post-unemployment hysterectomy was present in the record.267 One medical record from

18

endocrinologist Dr. Ammar Qoubaitary dated March 30, 2009, also records uterine fibroids as a

19

past medical concern.268
The ALJ was incorrect in her assessment of Ms. Menefee’s fibroid surgery; it was done as part

20
21

of a hysterectomy in early April 2009 and is well-documented in the medical record.269 This

22
23
24
25
26
27
28

263

AR 84
AR 79.
265
AR 84.
266
See AR 83.
267
AR 35.
268
AR 925.
264

269

AR 1113.

ORDER (No. 3:15-cv-03957-LB)

35

1

inconsistency between the ALJ’s finding and the medical records is the explicit source of at least

2

some of the ALJ’s credibility finding.270 Because of these inconsistencies, the ALJ found that Ms.

3

Menefee’s testimony was unreliable.
Given the totality of the presented evidence, the ALJ’s rationale for discrediting Ms.

4
5

Menefee’s testimony was insufficient. Although the court “must uphold the ALJ’s decision where

6

the evidence is susceptible to more than one rational interpretation,” the court finds that Ms.

7

Menefee’s credibility regarding her subjective complaints and pain must be reconsidered.

8

Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989) (citation omitted). The court does not

9

mean that the ALJ must take everything Ms. Menefee says at face value and instead holds only

10

that the ALJ’s articulated reasons were not a ground to discount her testimony.

United States District Court
Northern District of California

11
12

CONCLUSION

13

The court grants Ms. Menefee’s motion for summary judgment, denies the Commissioner’s

14

cross-motion, and remands for further proceedings to reassess Ms. Menefee’s disability in light of

15

the court’s conclusions about the treating physicians and Ms. Menefee’s credibility.

16
17

IT IS SO ORDERED.

18

Dated: October 24, 2016
______________________________________
LAUREL BEELER
United States Magistrate Judge

19
20
21
22
23
24
25
26
27
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270

See AR 35.

ORDER (No. 3:15-cv-03957-LB)

36