Nguyen v. Colvin

Filing 24

ORDER granting 15 Motion for Summary Judgment; denying 21 Motion for Summary Judgment. The court grants Mr. Nguyen's motion and remands the case for further administrative proceedings consistent with this order.(Beeler, Laurel) (Filed on 3/31/2017)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 San Francisco Division United States District Court Northern District of California 11 NGHIA NGUYEN, Case No. 3:16-cv-00748-LB Plaintiffs, 12 v. 13 14 NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY 15 ORDER GRANTING THE PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND REMANDING CASE [ECF Nos. 15 & 21] Defendant. 16 17 INTRODUCTION 18 Plaintiff Nghia Nguyen moves for summary judgment on judicial review of a final decision of 19 the Commissioner of Social Security Administration denying him Social Security Disability 20 Insurance (“SSDI”) and Supplemental Security Income (“SSI”) under Titles II and XVI of the 21 Social Security Act.1 The Administrative Law Judge (“ALJ”) held that Mr. Nguyen was not 22 disabled within the meaning of the Act by reason of either lower-back impairments or any mental 23 impairment.2 Under Civil Local Rule 16-5, the matter is deemed submitted for decision by this 24 court without oral argument. All parties have consented to magistrate jurisdiction.3 The court 25 1 26 Motion — ECF No. 15. Record citations (other than to the administrative record below) refer to material in the Electronic Case File (“ECF”); pinpoint citations are to the ECF-generated page numbers at the top of documents. 27 2 Admin. Record (“AR”) 19. 28 3 ECF No. 6, 7. ORDER — No. 3:16-cv-00748-LB  1 grants Mr. Nguyen’s motion, denies the Commissioner’s motion, and remands the case for further 2 administrative proceedings. 3 STATEMENT 4 5 1. Procedural History 6 Mr. Nguyen filed his SSDI and SSI claims on August 30, 2011 and September 8, 2011, 7 alleging disability beginning on January 1, 2009.4 The Social Security Administration (“SSA”) 8 denied those claims initially on January 25, 2012,5 and on reconsideration on July 26, 2012.6 Mr. Nguyen timely appealed SSA’s decisions and requested a hearing before the ALJ.7 ALJ 9 Michael Blume held a hearing on November 13, 2013, in Oakland, California; Mr. Nguyen 11 United States District Court Northern District of California 10 appeared with his counsel Nancy McCombs.8 Robert Raschke, a vocational expert (“VE”), also 12 appeared and testified at the hearing. After the hearing, Mr. Nguyen had consultative psychological and orthopedic examinations, 13 14 and the Cooperative Disability Investigations Unit (“CDI”) initiated an investigation.9 Plaintiff’s 15 counsel asked for, and the ALJ held, a supplemental hearing on May 22, 2014 to give the plaintiff 16 a chance to respond to the CDI report.10 Mr. Nguyen, his counsel, and vocational expert Freeman 17 Leeth, Jr. were present and testified at the hearing.11 After the supplemental hearing, the ALJ asked 18 that the plaintiff undergo additional consultative orthopedic and psychological examinations.12 On 19 August 1, 2014, ALJ found that Mr. Nguyen was not disabled within the meaning of the Social 20 Security Act and issued a decision denying him SSDI and SSI benefits.13 On August 28, 2014, Mr. 21 4 AR 156–57. 5 AR 193. 6 AR 208. 24 7 AR 220. 25 8 AR 73. 9 AR 384–771, 800–16. 22 23 26 10 AR 399. 27 11 AR 94. 28 12 AR 400–03, 872–86. ORDER — No. 3:16-cv-00748-LB 2  1 Nguyen asked the Appeals Council to review the decision.14 The Appeals Council denied the 2 request, and the Commissioner’s decision became final.15 Mr. Nguyen then sought judicial review. Previously, on February 7, 2006, Mr. Nguyen filed an application for disability and disability 3 4 insurance benefits. The SSA denied the application initially and on reconsideration. After a 5 hearing, ALJ Blume issued an unfavorable decision on December 23, 2008, finding that Mr. 6 Blume was not disabled.16 7 8 2. Summary of Records and Administrative Findings 2.1 Medical Records 9 This section summarizes Mr. Nguyen’s medical records after he suffered a work-related injury 11 United States District Court Northern District of California 10 in November 2003, when — while working as a delivery driver — he fell trying to secure a load.17 2.1.1 Dr. John D. Warbritton III, M. D. — Qualified Medical Evaluation 12 On August 4, 2008, Mr. Nguyen met with Dr. Warbritton, who was the “agreed medical 13 14 evaluator” for the worker’s compensation claim and who completed electrodiagnostic testing. The 15 testing was “[a]bnormal” and “showed evidence of chronic left L5 and S1 radiculopathies with 16 mild ongoing denervation.”18 There was “no electrodiagnostic evidence of a right lower extremity 17 radiculopathy, plexopathy, or other mononeuropathy, or left lower extremity plexopathy or other 18 mononeuropathy.”19 On August 26, 2008, Dr. Warbritton performed a qualified medical examination.20 He 19 20 summarized Mr. Nguyen’s medical records, including Dr. Oda’s evaluation in 2005; she diagnosed 21 22 13 AR 16. 14 AR 15. 24 15 AR 1. 25 16 AR 107–19. 17 AR 443. 18 AR 442. 27 19 Id. 28 20 AR 442–51. 23 26 ORDER — No. 3:16-cv-00748-LB 3  1 spondylolisthesis.21 Mr. Nguyen had difficulty sitting throughout the one-hour interview.22 He 2 exhibited: (1) lumbar strain that was “moderate” and “chronic”; (2) grade-I spondylolisthesis, 3 along L5-S1, that was pre-existing and was “likely aggravated by” his work injury; (3) secondary 4 spinal stenosis at L5-S1, secondary to spondylolisthesis; (4) left L5 and S1 radiculopathies, 5 confirmed by electrodiagnostic testing; and (5) chronic-pain syndrome “with subjective 6 complaints grossly disproportional to objective findings.”23 Dr. Warbritton opined that Mr. Nguyen 7 had a spinal disability that would preclude him from heavy work at Category E and from 8 performing prolonged or continuous weight-bearing activities, such as standing and walking.24 Dr. 9 Warbritton opined that 20% of Mr. Nguyen’s permanent disability was due to preexisting 10 underlying spondylolisthesis, and the remaining 80% was due to the November 2003 injury.25 United States District Court Northern District of California 11 2.1.3 Dr. Marjorie Oda — Qualified Medical Evaluation 12 In September 2005, Dr. Oda functioned as the “agreed medical evaluator.”26 On February 24, 13 14 2009, she performed an orthopedic re-evaluation.27 Mr. Nguyen reported ongoing pain in the 15 midline of his lower back, which radiated into his legs and feet.28 As a result of his pain, he 16 reported problems dressing and difficulty putting on shoes.29 His examination revealed mild 17 tenderness to palpitation from T11 to S 1, mainly in T11.30 He had decreased range of motion in 18 the thoracolumbar spine.31 The diagnosis was grade I spondylolisthesis at L4–5 with chronic 19 21 AR 443–44. 22 AR 447. 23 AR 448–49. 22 24 AR 449. 23 25 AR 450. 26 AR 421. 27 Id. 25 28 AR 423. 26 29 Id. 20 21 24 30 27 Id. These letters reflecting the familiar shorthand: “C” for cervical, “T” for thoracic, “L” for lumbar, and “S” for sacral vertebrae. 28 31 Id. ORDER — No. 3:16-cv-00748-LB 4  1 lumbosacral strain.32 Mr. Nguyen appeared to have a progression of the spondylolisthesis, and 2 recent electrodiagnostic evidence showed radiculopathy at two levels.33 A February 25, 2009 X- 3 ray of the lumbar spine showed retrolisthesis of L5 with respect to L4, which measured 1.1 cm 4 with the patient standing in flexion, neutral, and extension.34 It showed bilateral L4 5 spondylolisthesis and a moderate narrowing of the L4–5 disc space.35 It showed mild narrowing of 6 the disc spaces from L1–L2 and mild facet arthropathy of L4–L5 and L5–S1.36 On July 9, 2009, Dr. Oda wrote a supplemental Agreed Medical Report.37 Mr. Nguyen had an 7 8 increase in disability, shown by the electrodiagnostic study, which showed left L5 and S1 9 radiculopathies.38 Dr. Oda agreed with Dr. Warbritton that a preclusion from heavy work probably 10 was appropriate, but she wanted to review the flexion-extension views, which she ordered.39 The L4-5 spondylolisthesis, which I have previously described, he designates the L5-S1 level, this either being correct in so much as there was sacralization of the fifth lumbar vertebra. Apparently, it was a 25 to 30% slip of L into S1, and given that he now has radiculopathies, I wonder if this is unstable. It would appear that with respect to apportionment in so much as Mr. Nguyen’s activity level is so minimal in that he does essentially nothing during the day that the new findings on the EMG have changed from previously are more likely, with reasonable medical probability, caused by the progression of his underlying spondylolisthesis with a small canal than any progression of the original injury. I will discuss apportionment upon receipt of the x-rays.40 United States District Court Northern District of California 11 12 13 14 15 16 17 2.1.3 Dr. Babak Jamasbi — Treating Physician 18 In December 2008, Dr. Jamasbi examined Mr. Nguyen for his low-back pain and found no 19 20 evidence of spinal “atrophy, asymmetry[,] or pelvic obliquity.” There was tenderness to palpation 21 32 AR 424. 33 AR 425. 34 AR 453. 24 35 Id. 25 36 Id. 37 AR 432–34. 38 AR 433. 27 39 Id. 28 40 Id. 22 23 26 ORDER — No. 3:16-cv-00748-LB 5  1 over the bilateral paraspinal muscles, especially over L4–5 and L5–S141 facets bilaterally, and 2 “tenderness over the right PSIS.” Flexion was “limited to 50? due to pain,” “extension limited to 5 3 due to increased pain,” and “side bending [was] limited to around 30? bilaterally.”42 Mr. Nguyen 4 gets along very well with his family and on a scale of 1 to 10 (from poor to perfect), he rates his 5 relationship with them as 10. Mr. Nguyen appeared anxious and depressed, he “mentioned suicidal 6 thoughts before,” but he did not currently “have any suicidal ideation.”43 Dr. Jamasbi prescribed 7 Cymbalta and Gabapentin for pain and Ambien for sleep. He referred Mr. Nguyen to physical 8 therapy and gave him home exercises for core strengthening.”44 In January 2009, Mr. Nguyen reported that his sleep and pain had improved significantly.45 10 The pain decreased in intensity by about 30%.46 The patient appeared in no acute distress. He was 11 United States District Court Northern District of California 9 alert and oriented and did not appear drowsy, lethargic, or confused. His speech, insight, judgment, 12 and emotional state were normal.47 13 By February 2009, Mr. Nguyen had started computer classes that involved a lot of sitting. He 14 reported that his low-back pain worsened from sitting in the class because the computer keyboard 15 was not comfortably placed.48 He was not in acute distress. He was alert and oriented and did not 16 appear drowsy, lethargic, or confused. His speech, insight, judgment, and emotional state were 17 normal.49 Dr. Jamasbi increased the Cymbalta dosage from the “low dose” of 20mg to 40mg 18 because it had lost some effectiveness.50 19 20 21 41 The areas mentioned here — L4–S1 — are in the lower back. 22 42 AR 660–63. 43 AR 663. 44 Id. 24 45 AR 654. 25 46 Id 47 AR 655. 48 AR 651. 27 49 AR 652. 28 50 AR 653. 23 26 ORDER — No. 3:16-cv-00748-LB 6  In March 2009, Dr. Jamasbi reported no change in the plaintiff’s mental condition. Mr. Nguyen 1 2 appeared in no acute distress. He was alert and oriented and did not appear drowsy, lethargic, or 3 confused. His speech, insight, judgment, and emotional state were normal. Dr. Jamasbi increased 4 the daily Cymbalta dosage to 60mg.51 In a follow-up visit later that month, Mr. Nguyen mentioned that he filled out an in-home 5 support form to help take care of his child who had cerebral palsy.52 Dr. Jamasbi reviewed Dr. 7 Oda’s reports and noted the following. In September 2005, after physically examining him, Dr. 8 Oda found that Mr. Nguyen had a “diminished range of motion of the back out of proportion to the 9 nature of the injury.”53 Her “opinion” was that he had a “disability with respect to the back” that 10 “would preclude very heavy work as contemplated in Category B of the Workers’ Compensation 11 United States District Court Northern District of California 6 Guidelines.”54 In September 2009, she “again found diminished range of motion out of proportion 12 to the nature of the injury.”55 She noted “what appears to be some nerve[-]root irritation on EMG,” 13 and opined that Mr. Nguyen had a “disability” that “would preclude heavy lifting, repeated 14 bending and stooping as contemplated in Category D of the Workers’ Compensation 15 Guidelines.”56 In April 2009, Mr. Nguyen’s pain had worsened because of changes in the weather, but his 16 17 overall condition was stable.57 In May 2009, Mr. Nguyen’s mental condition was the same (“no acute distress”; not confused, 18 19 lethargic, etc.).58 His pain continued to be “somewhat controlled” with medication — though he 20 21 22 51 AR 648–49. 52 AR 645–47. 24 53 AR 415. 25 54 Id. (capitalization removed). 55 AR 420. 56 Id. 27 57 AR 642–43. 28 58 AR 640. 23 26 ORDER — No. 3:16-cv-00748-LB 7  1 thought this “could be better.”59 Physical therapy had improved his range of motion and flexibility. 2 He continued taking classes to train for another line of work.60 In June 2009, Mr. Nguyen complained that his pain had not changed. For depression and the 3 4 back pain, Cymbalta and topical creams continued to help.61 In July, August, and September 2009, Mr. Nguyen’s pain had not changed, and he continued to 5 6 take medication as instructed. In August 2009, Dr. Jamasbi requested authorization for a 7 Vietnamese interpreter for Mr. Nguyen’s future visits.62 In late September 2009, Mr. Nguyen 8 complained of low-back pain with radiation into both legs.63 He described a pulling sensation in 9 both legs, greater in the left than in the right.64 His prescriptions for Gabapentin and Cymbalta were refilled for neuropathic pain, and TheraCare heat wraps were prescribed for pain when 11 United States District Court Northern District of California 10 walking or standing for prolonged periods.65 12 In October 2009, Mr. Nguyen reported that the pain was primarily localized in his lower back 13 and was a dull, deep, sharp pain that sometimes radiated down his lower extremities, with the left 14 side worse than the right. The pain worsened with prolonged standing and improved with lying on 15 his back. He described the intensity of the pain as 7–8 out of 10.66 He felt depressed, and his 16 appetite had decreased. He had lost weight and lost interest in doing things that he used to enjoy 17 but denied having thoughts of suicide. Dr. Jamasbi prescribed the anti-depressant Nortriptyline.67 18 In November 2009, Mr. Nguyen reported that his low-back pain had not changed and was 19 aggravated by sitting and standing. The pain was dull, deep, needle-like, stabbing, and sharp. The 20 pain was better at night when he would lie down flat. He slept only 2 to 3 hours, was “very 21 59 Id. 60 Id. 61 AR 636. 24 62 AR 631. 25 63 AR 624. 64 Id. 65 Id. 27 66 AR 621–23. 28 67 AR 622. 22 23 26 ORDER — No. 3:16-cv-00748-LB 8  1 depressed,” and had a decreased appetite.68 After inspecting Mr. Nguyen’s lumbar spine, Dr. 2 Jamasbi reported that there was no tenderness to palpation in the lower back. Lumbar flexion was 3 70 degrees, and lumbar extension was 15 degrees with pain. Rotation and side-bending elicited 4 pain to his lower back region bilaterally.69 Dr. Jamasbi discontinued the Nortriptyline medication 5 and recommended cognitive–behavioral therapy with the assistance of an interpreter because Mr. 6 Nguyen was a Vietnamese-speaking immigrant, English was not his first language, and this at 7 times created a communication barrier.70 In December 2009, Mr. Nguyen rated his back pain at 7–8 out of 10 and said that it worsened 8 9 with prolonged standing. Physical therapy and TENS did not help, and he was not interested in surgery.71 He “appeared to be in moderate pain.”72 He “was depressed” but his psychological state 11 United States District Court Northern District of California 10 remained as it had been: he was not anxious, confused, tearful, lethargic, and so on.73 Dr. Jamasbi 12 discontinued Nortriptyline and Neurontin because Mr. Nguyen said that neither was effective.74 In January 2010, Mr. Nguyen complained of continued, significant pain that was 13 14 “predominantly axial in nature.”75 He experienced increased episodes of numbness and tingling in 15 his lower extremities over the previous month.76 He had lost 12 pounds.77 Dr. Jamasbi noted that 16 he had recommended surgery in the past, but Mr. Nguyen declined it. The doctor discontinued the 17 Ambien, prescribed Darvocet-N for pain reduction, and restarted Gabapentin.78 18 19 20 68 AR 617. 21 69 AR 618. 22 70 AR 619. 71 AR 614. 72 AR 615. 24 73 Id. 25 74 AR 616. 75 AR 611. 76 Id. 27 77 Id. 28 78 AR 612. 23 26 ORDER — No. 3:16-cv-00748-LB 9  1 In February 2010, Mr. Nguyen reported “significant improvement” in his low-back pain since 2 starting Darvocet. The numbness and tingling in his low back had resolved, the pain had reduced 3 significantly, and he was able “to do more activity.”79 He appeared to be in “mild pain” but did not 4 otherwise appear ill. He remained depressed but his psychological state was otherwise the same.80 5 Mr. Nguyen saw Dr. Ghannam for cognitive-behavioral therapy, and his mood had “improved.”81 6 At Dr. Ghannam’s recommendation, Dr. Jamasbi requested a six-month gym membership for Mr. 7 Nguyen to work on “behavioral techniques” to improve his core strength.82 In March 2010, Mr. Nguyen’s pain level had remained consistent: neither worse nor better.83 8 9 He was sleeping fine and denied thoughts of suicide.84 In April 2010, Mr. Nguyen said that the cognitive therapy with Dr. Ghannam had been 10 United States District Court Northern District of California 11 helpful.85 Dr. Jamasbi had requested a six-month gym membership for the patient in the past, but 12 this request was modified to four physical therapy sessions.86 Mr. Nguyen was very motivated to 13 get the gym membership since physical-therapy sessions were too short and did not help much. 14 Mr. Nguyen stated that at the gym, he could work on core strengthening with various machines 15 and do light weight workouts for aerobic and anaerobic activities.87 Mr. Nguyen still could not 16 vacuum or perform forward-bending or twisting activities, and had pain with prolonged sitting, but 17 he could groom and bathe “on an independent level.”88 “Any excessive truncal activity” 18 “exacerbate[d] his pain.”89 His pain was intermittent and 6 to 7 out of 10 on the visual analog 19 20 79 AR 607. 21 80 See AR 608 (“does not appear tearful”; “does not appear nervous”; etc.). 22 81 Id. 82 AR 609. 83 AR 603. 24 84 AR 604. 25 85 AR 599. 86 Id. 87 AR 601. 27 88 AR 600. 28 89 Id. 23 26 ORDER — No. 3:16-cv-00748-LB 10  1 scale.90 He had tenderness to palpation of the lumbar paraspinal musculature.91 Diagnoses were 2 spondylolitsthesis, stenosis spinal lumbar, sciatica, and symptoms of back NEC, with long-term 3 use medications necessary.92 4 In May 2010, there were no acute changes in Mr. Nguyen’s condition, and he was looking 5 forward to using the gym.93 Dr. Jamasbi suggested a cardiovascular workout and aerobic exercise 6 using a treadmill.94 7 In June 2010, after examining Mr. Nguyen’s lumbar spine, Dr. Jamasbi reported limited 8 lumbar flexion. There was a “paraspinal musculature hypertrophy greater on the left than right 9 side” and “[t]enderness to palpation at L1–2 and L2–3 spinous processes.” “Extension demonstrate[s]” a “limited active range of motion which measure at 5?.”95 Mr. Nguyen reported 11 United States District Court Northern District of California 10 that he awoke a week earlier with sharp pain in his lower back that he attributed to his sleeping 12 position.96 He complained about the deterioration of his memory and noticed that he was more 13 forgetful (which Dr. Jamasbi attributed to chronic pain and depression).97 He had not used the gym 14 due to paperwork problems.98 15 In July 2010, Mr. Nguyen reported that his pain level was 4 to 5 out of 10, and that he was 16 exercising at home three times a week because his gym membership had not yet been approved.99 17 He stated that his memory loss was “not worsening.”100 18 19 20 90 Id. 21 91 Id. 22 92 Id. 93 AR 596. 94 AR 597. 24 95 AR 591. 25 96 AR 590. 97 AR 591. 98 Id. 27 99 AR 587. 28 100 23 26 Id. ORDER — No. 3:16-cv-00748-LB 11  In August 2010, Mr. Nguyen continued to have low-back pain and leg pain secondary to his 1 2 “spondylolisthesis and lumbar spinal stenosis.”101 His “function” continued to improve. He 3 continued to undergo cognitive–behavioral therapy which he found beneficial.102 Dr. Jamasbi 4 suggested “facet injections” for facetogenic pain, but Mr. Nguyen “decline[d] injections.”103 In September 2010, Mr. Nguyen continued to have low-back pain and intermittent leg pain. 5 6 The previous gym request was denied, so Dr. Jamasbi provided another.104 In November 2010, Mr. Nguyen continued to have symptoms of intractable low-back pain and 7 8 intermittent transitory leg pain.105 Dr. Jamasbi recommended physical therapy and discontinued 9 the Darvocet because Mr. Nguyen wanted to do without opiate pain medications and other alternatives.106 Dr. Jamasbi reviewed the preliminary report of the patient’s urine screening, which 11 United States District Court Northern District of California 10 was negative for illicit substances and negative for opiates (Mr. Nguyen had been unable to get his 12 Darvocet because the product was “taken off the market”).107 13 In December 2010, Mr. Nguyen continued to have back and leg pain. Mr. Nguyen was 14 authorized for an extension on cognitive–behavioral therapy but was still waiting on his gym 15 authorization.108 In January 2011, Mr. Nguyen had low-back and leg pain, but he was able to sit comfortably on 16 17 the examination table without difficulty or evidence of pain.109 He was doing his home-exercise 18 program, and it reduced his pain a little, but his pain remained at about 5 out of 10.110 The 19 cognitive–behavioral therapy was helping him cope with his pain and anxiety.111 Dr. Jamasbi 20 101 22 23 24 25 26 AR 583. 102 Id. 103 AR 584. 104 AD 581. 105 21 AR 578. 106 Id. 107 Id. 108 AR 574. 109 27 AR 570. 110 Id. 28 111 AR 571. ORDER — No. 3:16-cv-00748-LB 12  1 reviewed correspondence from a physical therapist, who recommended a home-exercise program 2 for Mr. Nguyen.112 Mr. Nguyen wanted the gym membership but it was denied.113 3 In March 2011, Dr. Jamasbi observed Mr. Nguyen sit comfortably on the examination table 4 without difficulty or evidence of pain.114 Mr. Nguyen had leg and low-back pain of about 5 out of 5 10 intensity. He had “sharp electrical pain” a few days earlier coming from the spine and going 6 into the left leg.115 He was doing his home-exercise program, “consisting of about 4 exercises” 7 from handouts that he had been given, two or three times a day, but had not seen improvements.116 In April 2011, Mr. Nguyen continued to have leg and low back pain which he rated at five out 8 9 of ten. He was able to sit comfortably on the examination table without difficulty or evident pain.117 The gym membership was approved, and Mr. Nguyen was eager to start exercising that 11 United States District Court Northern District of California 10 week.118 Mr. Nguyen mentioned a new symptom, which was “pain, locking and giving out of the 12 right knee.” He said that he would see his primary-care doctor to evaluate this new symptom.119 13 In May 2011, Mr. Nguyen saw Dr. Jamasbi for a follow-up exam. On the first page of his 14 report, Dr. Jamasbi said that the patient was approved for gym membership and had started two 15 weeks earlier; on the next page, he said that Mr. Nguyen would start at the gym that week.120 16 In June 2011, Dr. Jamasbi reported that Mr. Nguyen was going to the gym, it helped with his 17 pain, and he was making gradual progress.121 He was getting stronger overall and was using the 18 stationary bicycle, the treadmill, and the pool for water exercise.122 Later that month, on a follow- 19 20 112 Id. 21 113 Id. 22 114 AR 567. 115 Id. 116 Id. 24 117 AR 564. 25 118 Id. 119 AR 565. 120 AR 561–62. 27 121 AR 558. 28 122 Id. 23 26 ORDER — No. 3:16-cv-00748-LB 13  1 up visit, Mr. Nguyen complained that for the past four days he had a lot of tingling and sharp pain 2 in the low back on the right side. He also complained about the pain on the left side, but the right 3 side was worse.123 He denied that any change in his activities preceding this flare-up.124 The 4 diagnoses were spondylolisthesis, stenosis spinal lumbar, sciatica, unspecified major depression 5 (recurrent episode), symptoms of back NEC, and a new diagnosis of chronic pain.125 6 In August 2011, Dr. Jamasbi reported that the patient kept exercising in the gym; Mr. Nguyen 7 had noticed improvement in his ability to stand and walk, and reported that his “overall pain level 8 ha[d] decreased while his function ha[d] improved.126 He continued to have back pain, which was 9 mostly in a band-like distribution.127 The gym membership was about to expire but Dr. Jamasbi 10 asked to continue it because it was “effective.”128 In October 2011, Mr. Nguyen had “tenderness to palpation at bilateral facets as [sic] L5/S1 and United States District Court Northern District of California 11 12 T12/L1.”129 “Lumbar paraspinal muscle spasm [was] pronounced.”130 “Facet loading maneuvers” 13 increased his pain.131 During the previous two weeks, Mr. Nguyen had “severe right leg pain to the 14 calf,” but this was not bothering him at the time of the examination.132 Dr. Jamasbi noted 15 significant midline lower-back pain, which previously had been located around L4–5 and T12–L1, 16 but had recently radiated up his upper back, and the pain had increased.133 In December 2011, Mr. Nguyen had “tenderness to palpation at bilateral facets as [sic] L5/S1 17 18 and T12/L1.”134 “Lumbar paraspinal muscle spasm” was “pronounced.”135 Facet loading 19 123 AR 555. 124 Id. 21 125 Id. 22 126 AR 552. 127 AR 553. 128 Id. 24 129 AR 549. 25 130 Id. 131 Id. 132 Id. 27 133 Id. 28 134 AR 544. 20 23 26 ORDER — No. 3:16-cv-00748-LB 14  1 maneuvers increased his pain.136 Mr. Nguyen’s low-back pain was gradually worsening.137 In the 2 past two weeks, he had radicular pain and burning, which radiated into both thighs (with the left 3 greater than the right).138 Mr. Nguyen could sit comfortably on the examination table without 4 difficulty or evidence of pain.139 Dr. Jamasbi requested authorization for bilateral lumbar facet 5 joint injections at T12–L1 and L5–S1.140 The gym authorization was denied because it was not 6 “advisable” without supervision; Dr. Jamasbi requested a membership with a personal trainer.141 7 In February 2012, Mr. Nguyen appeared in “moderate pain.” His gait was “normal,” and he 8 exhibited “normal lordosis with no scolioitic deformity.”142 Lumbar extension was measured to be 9 15 degrees. Lumbar flexion was 60 degrees. “Sensation [was] decreased in the dermatiome(s). Spasm and guarding was noted lumbar spine.143 He still had “tenderness to palpation at bilateral 11 United States District Court Northern District of California 10 facets as L5/S1 and T12/L1.”144 “Lumbar paraspinal muscle spasm” was “pronounced.”145 The 12 doctor requested gym membership with a personal trainer and appealed the denial of a “Bilateral 13 Lumbar Facet Joint Injection.”146 He noted that Mr. Nguyen’s pain was “gradually worsening,” the 14 medications were “helpful,” but Mr. Nguyen “remained symptomatic.”147 In April 2012, Mr. Nguyen complained that his low-back pain worsened with standing, sitting, 15 16 or walking for too long.148 He expressed depressive symptoms secondary to his chronic pain.149 17 135 20 21 22 23 24 25 26 Id. 137 AR 545. 138 Id. AR 544. 140 Id. 141 AR 545. 142 AR 769. 143 19 Id. 136 139 18 Id. 144 Id. 145 Id. 146 Id. 147 27 AR 770. 148 AR 762. 28 149 Id. ORDER — No. 3:16-cv-00748-LB 15  1 Dr. Jamasbi noted that the authorization for a facet-joint injection had been approved, but the gym- 2 membership appeal had been denied.150 He asked for an authorization of further cognitive- 3 behavioral sessions with Dr. Ghannam due to Mr. Nguyen’s depressive symptoms.151 Medications 4 had been helpful in reducing Mr. Nguyen’s pain, and he mainly used Lidoderm patches and cream 5 because he wanted to avoid dependency on medications.152 In May 2012, Mr. Nguyen complained of continued back pain that worsened with standing, 6 7 walking, and prolonged sitting and with rotation or extension of the lumbar spine.153 He reported 8 “symptoms of major depression” including “feelings of hopelessness, helplessness,” 9 “anxiousness,” “excess worrying,” “easy fatigability,” and “difficulty with concentration.”154 On May 15, 2012, Mr. Nguyen received left and right diagnostic lumbar-facet injections.155 10 United States District Court Northern District of California 11 Later that month, Mr. Nguyen reported 100% pain relief for two hours immediately after the 12 injection, and he was able to sit for longer. After two hours, the pain increased, and he was not 13 able to sit for longer than five minutes.156 He was going to start psychiatric treatment with Karin 14 Vandervoort for his depressive symptoms.157 Dr. Jamasbi reviewed the CT Myelography of Mr. 15 Nguyen’s lumbar spine (dated August 11, 2004) and a lumbar MRI (dated January 19, 2004). For 16 the CT scan, he found: (1) anatomically small canal at L1–L2 and L2–3 without other findings; (2) 17 “mild compression of the thecal sac at L4–5 in association with a grade I spondylolisthesis with 18 bilateral spondylolytic defects,” with “narrow lateral recesses . . . present”; (3) L3–4 had an 19 anatomically small canal without other abnormality; and (4) “L5–S1 [was] normal.”158 For the 20 MRI, Dr. Jamasbi found: (1) sacralization of the L5 vertebral body; (2) grade I anterolisthesis of 21 150 AR 763. 151 Id. 152 Id. 24 153 AR 758. 25 154 AR 759–60. 155 AR 756–57. 156 AR 749. 27 157 AR 749–50. 28 158 AR 750. 22 23 26 ORDER — No. 3:16-cv-00748-LB 16  1 L4–5 secondary to bilateral parts defects; and (3) mild left L3–4 neural foraminal stenosis.159 The 2 examination showed tenderness to palpation over facet joints, and his range of motion had 3 decreased by “60% with flexion, 80% with extension, and 40% with lateral tilt and rotation 4 bilaterally.”160 He had pain with axial loading of the facet joints.161 The diagnoses were stenosis 5 spinal lumbar, spondylolisthesis, recurrent depression unspecified, and sciatica.162 Dr. Jamasbi 6 stopped the Davrocet, prescribed Norco, and recommended bilateral permanent facet injection at 7 L3–L4 and L4–L5 and “permanent lumbar radiofrequency ablation.”163 Dr. Jamasbi filled out a medical summary on May 4, 2012 that included the following. Mr. 8 9 Nguyen had been treated for spondylolisthesis, lumbar spinal stenosis, and sciatica.164 He continued to have low-back pain that worsened with prolonged standing for more than 10 to 15 11 United States District Court Northern District of California 10 minutes or with repetitive bending at the back. Medication included Lidoderm 5% patch, capsaicin 12 cream 0.075%, Ketamine cream 5% 60gr, and ThermaCare heat wraps.165 He needed to lie down 13 for 10 minutes at a time to rest his lower back. He could not lift more than 10 pounds. His 14 activities of daily living, social functioning, and ability to concentrate were impacted by his back 15 pain and depressive symptoms. He would likely miss two to three days of work per month due to 16 “flare[-]up” of pain.166 In July 2012, Mr. Nguyen saw Dr. Jamasbi after the radiofrequency ablation (which had been 17 18 performed about nine days earlier).167 He reported “only mild” pain relief.168 Before the injection, 19 he had pain intensity 7/10, and after the injection it was 4/10.169 His pain was “not as severe and 20 159 22 23 24 25 26 Id. 160 Id. 161 Id. 162 Id. 163 21 AR 751. 164 AR 513. 165 Id. 166 AR 514. 167 27 AR 743–44. 168 AR 743. 28 169 Id. ORDER — No. 3:16-cv-00748-LB 17  1 constant as before the procedure,” and he was able to sit and walk longer.170 He “taper[ed] down 2 his medications since the procedure” and used them “intermittently” for flare-ups of pain.171 He 3 was seeing Karin Vandervoort for psychological consultations about his depressive symptoms.172 4 Diagnoses were stenosis spinal lumbar and unspecified major depression, recurrent episode.173 5 In August 2012, Mr. Nguyen “subjectively” complained of “back pain with radicular pain in 6 his legs.”174 He used a “small amount” of Norco 5/325, ketamine 5% cream, and capsaicin 0.075% 7 cream. He “occasionally” used Lidoderm 5% patches.175 The recent “bilateral lumbar 8 radiofrequency facet injection” had yielded “some pain reduction and improvement in function,” 9 but he continued to have intractable lower back and leg pain.176 Dr. Jamasbi was “not insinuating that [Mr. Nguyen] has a psychological claim” although he continued to report symptoms of 11 United States District Court Northern District of California 10 depression associated with his chronic pain and losing his status as an “adequate breadwinner.”177 12 Dr. Jamasbi opined that the depression needed to be treated.178 The medications worked 13 “reasonably well” even while using a “minimal amount . . . not even filling the monthly basis.”179 14 The topical pain creams reduced his back pain and improved his “ability to stand and walk . . . by 15 about 30-50%” and his ability “to do activities of daily living.”180 16 In September 2012, Mr. Nguyen reported that in the past week he had pain in the posterolateral 17 thigh into the right calf. He rated the pain 5-6/10 on the visual analog scale. Walking for more than 18 5 to 10 minutes increased his pain to a seven. He had difficulty sleeping and the “occasional 19 20 170 Id. 21 171 AR 743–44. 22 172 AR 745. 173 Id. 174 AR 736. 24 175 Id. 25 176 Id. 177 AR 737. 178 Id. 27 179 Id. 28 180 AR 737–38. 23 26 ORDER — No. 3:16-cv-00748-LB 18  1 sensation of the right leg giving out” but he “ha[d] not fallen from this.” He had a visit with the 2 clinical psychologist for biofeedback training, which was “helpful” in relieving stress and anxiety 3 related to his disability. He continued to express feelings of sadness, frustration, and 4 hopelessness.181 Mr. Nguyen’s range of motion at the lumbar spine was “limited to 60 degrees in 5 flexion, 10 degrees in extension, 30 degrees in lateral rotation bilaterally,” and “pain [was] 6 eleicited [sic] with axial loading to the right.”182 Dr. Jamasbi diagnosed “[s]tenosis spinal 7 lumbar,” “[s]ciatica,” and “Unspecified Major Depression.”183 8 In October 2012, Mr. Nguyen noted no acute changes in his pain. He reported pain in the 9 anterior-medial thigh off and on. The pain switched sides and was 5 out of 10.184 Mr. Nguyen had “ongoing” lumbar-back pain and “occasional” extremity pain, “but no radicular symptoms.”185 11 United States District Court Northern District of California 10 “He gets aching pain in his lower extremities.”186 The patient had “significant complaints of 12 depression” and was awaiting authorization for 12 psychological therapy sessions.187 In November 2012, Mr. Nguyen had some relief from lumbar radiofrequency ablation, but his 13 14 pain was “gradually worsening,” and he would get “flare[-]ups” of pain.188 In December 2012, Mr. Nguyen continued to have low-back pain but wished to avoid invasive 15 16 procedures and continue with conservative treatment.189 He reported “no acute changes” in his 17 pain. His pain worsened “with any kind of lifting or repetitive bending at the back.”190 18 On December 7, 2012, Dr. Jamasbi filled out a medical assessment and diagnosed 19 spondylolisthesis; “stenosis spinal lumbar,” and sciatica.191 Symptoms included low-back pain that 20 181 22 23 24 25 26 AR 731–32. 182 AR 732. 183 Id. 184 AR 727. 185 21 AR 729. 186 Id. 187 Id. 188 AR 722. 189 27 AR 720. 190 AR 719. 28 191 AR 539. ORDER — No. 3:16-cv-00748-LB 19  1 radiated with a band-like distribution. His pain worsened with repetitive bending and prolonged 2 standing, sitting, and walking. Because of his back pain, Dr. Jamasbi concluded that Mr. Nguyen 3 could not sit, stand, or walk for more than 15 minutes at a time or more than 4 hours per 8-hour 4 period, and he could lift no more than 10 pounds occasionally.192 Mr. Nguyen’s pain would affect 5 concentration, persistence, and pace to such an extent that it would seriously interfere with his 6 ability to perform simple, routine work on a productive basis.193 Dr. Jamasbi relied on the lumbar 7 MRI (from 01/19/2004) and an EMG (from 9/21/05) that was “suggestive of L5–S1 8 radiculopathy” as objective findings that confirmed the plaintiff’s conditions.194 In January 2013, Mr. Nguyen reported that his pain was gradually worsening, and he could no 9 longer sit, stand, or walk for longer than 10-15 minutes. He did not want to repeat the injection but 11 United States District Court Northern District of California 10 wanted to continue with aquatic therapy, which helped significantly.195 Norco helped his pain but 12 not significantly; Dr. Jamasbi increased the dosage.196 In February 2013, Mr. Nguyen reported that the Norco 10/325mg pain medication was too 13 14 strong for him, and he wanted to switch back to 5/325mg.197 He declined “any other invasive 15 procedures” and wanted to “stay conservative” with his care.198 In March 2013, a physical exam showed “tenderness to palpitation at the lumbrosacral 16 17 junction with associated muscle tension extending into the thoracic back,” Mr. Nguyen’s range of 18 motion in the lumbar spine had decreased, and he had “lower extremity weakness.”199 Mr. Nguyen 19 reported flare-ups of pain and adverse side effects from the Norco; he was unsure if the medication 20 was helping.200 He had depressive symptoms secondary to his chronic pain and was continuing 21 192 AR 539–41. 193 AR 540. 194 AR 539. 24 195 AR 713. 25 196 Id. 197 AR 710. 198 AR 711. 27 199 AR 704–05. 28 200 AR 703. 22 23 26 ORDER — No. 3:16-cv-00748-LB 20  1 cognitive–behavioral therapy.201 Dr. Jamasbi discontinued the hydrocodone medication because 2 the patient had side effects.202 Diagnoses were stenosis spinal lumbar, sciatica, unspecified major 3 depression (recurrent), long-term medication use, and therapeutic drug monitoring.203 In April 2013, Mr. Nguyen reported that he had no acute change in his condition. Medication 4 5 continued to reduce pain and allowed for greater function.204 Lidoderm patches had been 6 especially helpful in giving local pain relief. He could sit and stand for longer with less pain and 7 could avoid using oral pain medication.205 He continued “to report some depressive symptoms 8 secondary to his chronic pain.”206 He denied fatigue, change in appetite, or change of weight.207 9 Examining his lumbar spine revealed tenderness to palpation at the lumbosacral junction with associated muscle tension extending into the thoracic back. Range of motion of lumbar spine was 11 United States District Court Northern District of California 10 decreased by 50% with flexion and 30% with extension.208 In May 2013, Mr. Nguyen reported that his situation was generally stable though he had some 12 13 flare-ups of pain throughout the month.209 He was having depressive symptoms but was 14 continuing his cognitive-behavioral therapy with Dr. Ghannam, which he found “helpful with 15 some of his symptoms.”210 Mr. Nguyen did not want invasive procedures, including injections or 16 surgery. He did not like taking oral medications and wanted to stay with creams only.211 The 17 creams were reduced pain locally and improved his “function.”212 He denied fatigue, change in 18 19 201 AR 705. 202 Id. 21 203 Id. 22 204 AR 699. 205 Id. 206 Id. 24 207 AR 699–700. 25 208 AR 700. 209 AR 695. 210 Id. 27 211 Id. 28 212 Id. 20 23 26 ORDER — No. 3:16-cv-00748-LB 21  1 appetite, and change of weight.213 He complained of anxiety and depression but denied suicidal 2 thoughts.214 Dr. Jamasbi suggested to Mr. Nguyen that he return to some level or work and 3 recommended the Northern California functional-restoration program.215 In June 2013, Mr. Nguyen had no acute changes in his pain. He continued to have chronic low- 4 5 back pain, which worsened with prolonged standing and sitting.216 He could not stand for longer 6 than 15 minutes or sit for longer than 20 minutes without aggravating his pain. Ketamine and 7 Capsacin creams reduced his pain locally and temporarily throughout the day and night, and he 8 could sleep, sit, and stand with less pain. He said that the creams allowed him to avoid further 9 injections or surgery.217 Seeing Dr. Ghannam was “helpful” for his depressive symptoms.218 He 10 denied fatigue, change in appetite, or change of weight and reported anxiety and depression.219 In July 2013, Mr. Nguyen reported that he continued to have chronic pain and that it worsened United States District Court Northern District of California 11 12 with any lifting or prolonged sitting. His depressive symptoms were worsening, but he denied 13 having suicidal thoughts.220 He continued to see Dr. Ghannam for psychological treatment and felt 14 that it was helpful.221 At Dr. Ghannam’s recommendation, Dr. Jamasbi prescribed Mr. Nguyen 15 20mg of Fluoxetine-Prozac, an anti-depressant.222 16 In August 2013, Mr. Nguyen reported no changes to his condition.223 He continued to have 17 chronic low-back pain, which worsened with increased activity.224 He reported using pain creams 18 19 213 AR 695–96. 214 AR 696. 21 215 AR 697. 22 216 AR 690. 217 Id. 218 AR 691. 24 219 Id. 25 220 AR 683. 221 Id. 222 AR 685. 27 223 AR 679. 28 224 Id. 20 23 26 ORDER — No. 3:16-cv-00748-LB 22  1 effectively: with the creams his pain dropped to 3/10, but without them his pain was a 5/10.225 He 2 reported depressive symptoms and seeing Dr. Ghannam.226 He had trouble sleeping at night, and 3 the home exercise program no longer helped.227 The Prozac and psychological treatments had 4 “improved” his depressive symptoms.228 His gait was “grossly normal,” and he walked into the 5 room “without any assistance.”229 Dr. Jamasbi noted that lumbar injections had helped Mr. 6 Nguyen previously for a short period of time, but his pain always returned.230 7 In September 2013, Mr. Nguyen continued to have fluctuations in pain throughout the month. 8 In the previous few days, his pain had increased.231 He reported more stiffness and throbbing pain 9 in his back that radiated into his left lower extremity with associated intermittent numbness and tingling.232 His “activities of daily living” had “decreased,” and he could not perform certain 11 United States District Court Northern District of California 10 household chores as he once did due to his chronic pain.233 He saw Dr. Ghannam for 12 psychological treatment and found it helpful.234 He denied suicidal ideation and said that the 13 Prozac helped reduce some of his depressive symptoms.235 An examination revealed tenderness to 14 palpation at the lumbosacral junction with associated muscle tension extending into the middle 15 back. The range of motion of Mr. Nguyen’s lumbar spine “is decreased by 50% with flexion, 40% 16 with extension and 30% with rotation bilaterally.”236 Motor strength was decreased in the left foot 17 dorsiflexion and left leg extension compared to the right leg.237 He continued to have neuropathic 18 225 Id. 226 AR 679. 227 Id. 21 228 AR 681. 22 229 AR 680. 230 Id. 231 AR 666. 24 232 Id. 25 233 Id. 234 Id. 235 AR 667. 27 236 AR 668. 28 237 Id. 19 20 23 26 ORDER — No. 3:16-cv-00748-LB 23  1 pain, which was revealed on the EMG (electromyography) in 2008, and showed left L5 and S1 2 radiculopathy.238 Dr. Jamasbi asked for authorization for an initial evaluation at the Northern 3 California Functional Restoration Program239 and increased Mr. Nguyen’s daily Prozac dose from 4 20mg to 40mg for his depression.240 In October, November, and December 2013, Dr. Jamasbi generally reported that Mr. Nguyen 5 6 continued to have neuropathic pain as seen on his EMG in 2008 which “showed left L5 and S1 7 radiculopath[y].” He continued to have low-back pain that radiated down both his legs.241 Mr. 8 Nguyen reported “no acute changes” to his pain, which he graded as 6/10 on the visual analog 9 scale.242 He noted that his pain aggravated with colder weather and alleviated with stretching and exercising.243 In December 2013, Mr. Nguyen reported that his lower back pain had gradually 11 United States District Court Northern District of California 10 worsened.244 His cognitive-behavioral sessions with Dr. Ghannam helped.245 His exam revealed 12 tenderness to palpation at the lumbosacral junction with muscle tension extending into the mid 13 back, and decreased range of motion with flexion by 50% and extension by 40%, and rotation 14 bilaterally by 30%.246 On the motor-strength exam, he had decreased strength in his left foot 15 dorsiflexion and left leg extension compared to his right leg.247 In January 2014, Mr. Nguyen reported increased pain with radiation into his left leg and 16 17 extending to his knee.248 He described his pain as “needles pricking.”249 In January and February 18 2014, Mr. Nguyen reported that he was using topical creams and Lidoderm patches which helped 19 238 Id. 239 Id. 21 240 AR 669. 22 241 AR 834, 838–39, 842–44. 242 AR 833, 838, 842–44. 243 AR 833, 838. 24 244 AR 842. 25 245 Id. 246 Id. 247 Id. 27 248 AR 846. 28 249 Id. 20 23 26 ORDER — No. 3:16-cv-00748-LB 24  1 with pain. He avoided use of oral medication. He continued to have depressive symptoms, but felt 2 that they were stable with the use of Prozac, and he did not have suicidal thoughts.250 In April 2014, Mr. Nguyen reported that his Prozac prescription had “not been authorized” and 3 4 that he stopped taking it.251 He stated that, without the Prozac, his depressive symptoms had 5 worsened by about 30%; he still denied thinking of suicide.252 He further reported that he was not 6 able to attend the functional restoration program due to his family obligations.253 He kept using 7 topical creams and avoiding oral medicine.254 8 2.1.4 Jess Ghannam, Ph.D. — Treating Psychologist 9 In February 2010, Mr. Nguyen met with Dr. Ghannam for a behavioral-medicine consultation. 11 United States District Court Northern District of California 10 Dr. Ghannam reported that Mr. Nguyen had a profound underlying major depressive disorder with 12 extremely poor coping skills and a rigid preoccupation with his chronic low-back pain.255 The plan 13 was to work with the patient and develop a behavioral program that involved Mr. Nguyen’s being 14 more physically active. Dr. Ghannam requested authorization for a gym membership.256 In March 2010, Dr. Ghannam reported that the patient decided to stop taking his Cymbalta 15 16 prescription. Although Mr. Nguyen found it moderately helpful, it caused him too much 17 gastrointestinal distress.257 Mr. Nguyen’s mental status was stable as was his depressed mood.258 In August 2010, Mr. Nguyen was approved for a gym membership, and they discussed Mr. 18 19 Nguyen’s transition back to work in some capacity.259 20 21 250 AR 846, 849. 22 251 AR 852. 252 AR 852–53. 253 AR 852. 24 254 Id. 25 255 AR 797. 256 Id. 257 AR 796. 27 258 Id. 28 259 AR 795. 23 26 ORDER — No. 3:16-cv-00748-LB 25  In September 2010, Mr. Nguyen continued to have signs of depression.260 Mr. Nguyen had a 1 2 fully valid class 2 or 3 driver’s license including Hazmat permits.261 In December 2010, Dr. Ghannam reported that Mr. Nguyen had “a 60% reduction in his 3 4 symptoms, anxiety, and depression.”262 In May 2011, Dr. Ghannam noted that Mr. Nguyen continued to make “excellent progress in 5 6 all aspects of his psychological and behavioral capacities.”263 In June 2012, Mr. Nguyen was re-referred to Dr. Ghannam for behavioral and psychological 7 8 evaluation, and he also was seen by Karin Vandervoort, Psy.D.M.A.264 Mr. Nguyen’s speech was 9 “unremarkable although prone to become pressured at times” with likely autonomic arousal of racing thoughts, agitation, and rapid heartbeat.265 Symptoms included moodiness, anger, and 11 United States District Court Northern District of California 10 increased arguments with his wife.266 He had insomnia, decreased concentration, memory loss, 12 lethargy, constant worrying, rapid thoughts, low self-esteem, and the inability to function outside 13 of his home.267 Mr. Nguyen reported that his pain affected many aspects of his ability to function 14 and he dealt with the pain partly by drinking alcohol.268 Mr. Nguyen was administered a structured 15 clinical interview along with the following psychological questionnaires: The Millon Behavioral 16 Medicine Diagnostic Scale (MBMD); the Pain Patient Profile (PPP); and the “Symptom Check 17 List–90–Revised” (SCL-90-R).269 Mr. Nguyen’s MBMD produced an “invalid profile.”270 The 18 PPP showed that Mr. Nguyen was “able to read the items, and appropriately attend to item 19 20 260 22 23 24 25 26 AR 793. 261 Id. 262 AR 792. 263 AR 790. 264 21 AR 783–788. 265 AR 784. 266 Id. 267 Id. 268 27 AR 786. 269 Id. 28 270 Id. ORDER — No. 3:16-cv-00748-LB 26  1 content.”271 Mr. Nguyen got an “extremely high score on the depression scale and higher than 2 average score on the anxiety scale.”272 Mr. Nguyen felt worthless, helpless, hopeless, and 3 pessimistic about the future.273 The SCL-90-R revealed that Mr. Nguyen was a “positive clinical 4 case” with an “intensity of distress” that was “extremely high.”274 Dr. Ghannam opined that Mr. Nguyen was exhibiting significant amounts of emotional distress 5 6 including major depression, agitation, autonomic arousal, and generalized anxiety. If Mr. Nguyen 7 went untreated, he could present a suicide risk.275 Dr. Ghannam’s diagnostic impressions were: 8 AXIS I major depressive disorder, chronic, severe; AXIS IV psychological and environmental 9 problems; AXIS V GAF - 30.276 In April 2013, Dr. Ghannam reported that Mr. Nguyen’s symptoms of depression had become 11 United States District Court Northern District of California 10 more severe and referred Mr. Nguyen to his primary physician for medication (“pharmacotherapy 12 adjunct”).277 He had deteriorated significantly over the past year and developed symptoms related 13 to major depressive disorder, which included depressed mood, sad affect, anhedonia, lethargy, 14 difficulty sleeping, attention and concentration problems, and spontaneous crying.278 In July 2013, Dr. Ghannam reported that Mr. Nguyen responded well to cognitive-behavioral 15 16 therapy to help manage how to cope with his chronic pain.279 But he had some vegetative signs of 17 depression, and Dr. Ghannam recommended that he consider a trial of Fluoxetine.280 18 19 20 21 271 Id. 22 272 Id. 273 Id. 274 AR 787. 24 275 AR 788. 25 276 Id. 277 AR 781. 278 AR 782. 27 279 AR 779. 28 280 Id. 23 26 ORDER — No. 3:16-cv-00748-LB 27  In August 2013, Dr. Ghannam noted Mr. Nguyen’s own report that his symptoms of depression 1 2 had remitted by 20% after Dr. Jamasbi put him on Fluoxetine. He still had “some symptoms of 3 mild dysphoria” and reported “some sleep difficulties.”281 In October 2013, Dr. Ghannam reported that Mr. Nguyen “continued to suffer from severe 4 5 depression” but was “not suicidal.”282 By October 22, 2013, Dr. Ghannam had been treating Mr. Nguyen since February 2, 2010 and 6 7 was seeing him once a month.283 In a treating source statement dated October 22, 2013, Dr. 8 Ghannam diagnosed Axis I major depression and Axis V GAF 50.284 She noted “major 9 depression”, “chronic pain”, and “inability to work”, and symptoms included depressed mood, anergia, poor concentration, poor attention, and decline in activities of daily living.285 The patient 11 United States District Court Northern District of California 10 was receiving “CBT” (cognitive-behavioral treatment), and it was moderately effective.286 In the 12 functional-assessment section, Dr. Ghannam marked Mr. Nguyen as “moderately limited” (i.e., 13 impairments that affect individuals approximately 25% of the work day) in the following areas: (1) 14 understanding and remembering very short and simple instructions; (2) carrying out very short and 15 simple instructions; (3) sustaining an ordinary routine without special supervision; (4) making 16 simple work-related decisions; and (5) getting along with coworkers.287 Dr. Ghannam marked the 17 following abilities as “markedly limited” (i.e., affecting more than 25% of the work day): (1) 18 performing activities within a schedule, maintaining regular attendance, and being punctual within 19 customary tolerances; (2) performing at a consistent pace without an unreasonable number and 20 length of rest periods; (3) accepting instructions and responding appropriately to criticism from 21 supervisors; and (4) tolerating the usual stress encountered in competitive employment.288 22 281 AR 778. 282 AR 776. 24 283 AR 773. 25 284 Id. The term “GAF-50” reflects a score of 50 out of 100 on the Global Assessment of Functioning. 285 Id. 286 Id. 27 287 AR 774. 28 288 Id. 23 26 ORDER — No. 3:16-cv-00748-LB 28  2.1.5 Dr. Bayne — State Examining Consultant 1 On December 14, 2011, Dr. Bayne’s diagnostic impressions were: (1) “chronic recurrent 2 3 4 5 6 7 8 9 10 United States District Court Northern District of California 11 episodic low[-]back pain with spasms” which showed entailed “[n]o motor, sensory, or reflex changes”; (2) history of chronic anxiety; (3) history of chronic depression; (4) history of chronic insomnia; (5) and history of suicidal ideation.289 Symptoms included low-back pain, which radiated down both legs, right worse than left.290 His exam showed Mr. Nguyen’s obvious discomfort with a depressive-type mood. He could sit and get up from a sitting to a standing position without difficulty. He was unable to walk on his heels or toes and was unable to squat.291 He had loss of normal lordotic curve of his lumbar spine; forward flexion of the lumbar spine was limited to 30 degrees, and extension was 10 degrees; lateral bending and rotation was 10 degrees with significant low back spasms.292 Dr. Bayne opined that Mr. Nguyen should be able to converse, communicate, understand, read, 12 13 14 15 16 17 18 and write in English. He should be able to drive or take public transportation. He should be able to sit with appropriate breaks for six hours during an eight-hour workday and lift and carry 10 pounds frequently and 20 pounds occasionally. Repetitive bending, twisting, crouching, crawling, kneeling, stooping, climbing up and down stairs, inclines, ramps or ladders should be limited to occasionally. He should also be able to perform “bilateral repetitive leg, ankle, and foot control frequently.” He should be able to work in any environment except on unprotected heights.293 In December 2013, Dr. Bayne conducted a second orthopedic examination. Mr. Nguyen sat 19 20 21 22 23 and moved from sitting to standing erect “with some loss of his normal spinal rhythm.” He was unable to squat more than 50% of normal. He could not walk on his heels or toes. He was “significantly depressed” and his “affect was anxious and nervous.” “He communicated well in English.”294 The exam showed tenderness to deep palpation over the thoracolumbar spine, over the 24 289 AR 461. 25 290 Id. 291 AR 460. 292 AR 461. 27 293 Id. 28 294 AR 808. 26 ORDER — No. 3:16-cv-00748-LB 29  1 sciatic notches bilaterally and over the SI joints bilaterally. Forward flexion of his lumbar spine 2 was 60 degrees and extension was 0 degrees; lateral bending and rotation were 5 degrees with 3 significant low-back spasms.295 Dr. Bayne opined that Mr. Nguyen could sit with appropriate 4 breaks for six hours during an eight-hour workday and could stand and walk for four hours out of 5 an eight-hour workday. He could lift and carry 10 pounds frequently and 20 pounds occasionally. 6 Postural activities were limited to occasionally.296 7 In July 2014, Dr. Bayne conducted a third orthopedic examination. Mr. Nguyen ambulated 8 slowly, had difficulty walking on his heels and his toes, and could squat 50% of normal. He could 9 sit and move from sitting to a standing erect position with some loss of his normal spinal rhythm. His mood and affect were moderately depressed but he was cognizant of past and present 11 United States District Court Northern District of California 10 circumstances.297 His spine was tender to palpation over the L4–5 vertebral segments. Forward 12 flexion of his lumbar spine was 60 degrees, extension was 10 degrees, and lateral bending and 13 rotation was 10 degrees with associated low-back spasms.298 Dr. Bayne opined that Mr. Nguyen 14 could stand and walk with appropriate breaks for two hours during an eight-hour workday. He 15 could sit with appropriate breaks for six hours during an eight-hour workday. He could lift and 16 carry 10 pounds frequently and 20 pounds occasionally. Postural activities were limited to 17 occasionally. Mr. Nguyen should be able to work in any environment except on unprotected 18 heights, and he should be able to communicate, understand, read, and write in English. 19 2.1.6 Dr. Hardy — State Examining Consultant 20 On December 15, 2011, Dr. Hardey performed a psychological consultative evaluation of Mr. 21 22 Nguyen, with the assistance of an interpreter. Diagnoses included: “Pain Disorder Associated With 23 Psychological Factors And General Medical Condition,” and Dr. Hardy noted Mr. Nguyen’s 24 25 295 AR 809. 296 Id. 27 297 AR 876. 28 298 AR 877. 26 ORDER — No. 3:16-cv-00748-LB 30  1 “[s]pondylolisthesis, lumbar spinal stenosis, sciatica, [and] chronic pain.”299 Mr. Nguyen’s 2 movement was stiff, his walking was slow and somewhat labored, and he was pleasant and 3 cooperative but guarded.300 His intelligence appeared in the low-average range.301 His cognitive 4 abilities were in the low end of the low-average end, perceptional reasoning ability was in the mid- 5 borderline range, and processing speed ability was in the middle of the low-average range.302 Dr. Hardey’s conclusions were as follows. Mr. Nguyen’s current memory and cognitive 6 7 abilities were “within the borderline to low-average range, which is probably a reasonable estimate 8 of his abilities, but due to his pain and anxiety and depression his scores might have depressed to 9 some degree.”303 “[H]e probably has overall low-average abilities premorbidly. It appears from the medical record that it would be unlikely that he could return to his former employment, and he 11 United States District Court Northern District of California 10 probably needs some kind of vocational rehabilitation to return to the world of work in some other 12 capacity. He does have the cognitive ability to function in the competitive job market given 13 additional training” and the ability to manage his own financial resources.304 Mr. Nguyen was 14 moderately impaired in communicating effectively with others verbally and in writing.305 He had 15 mild to moderate impairment in the following: following and remembering complex or detailed 16 instructions; maintaining adequate pace or persistence at complex tasks; maintaining adequate 17 attention or concentration; adapting to changes in his job routine; withstanding the stress of a 18 routine workday; interacting appropriately with coworkers and supervisors on a regular basis; and 19 interacting appropriately with the public on a regular basis.306 He had mild impairment in 20 21 22 299 AR 464. 300 AR 462, 464. 24 301 AR 464. 25 302 Id. 303 AR 464–65. 304 AR 465. 27 305 Id. 28 306 Id. 23 26 ORDER — No. 3:16-cv-00748-LB 31  1 following and remembering simple instructions and maintaining adequate pace or persistence to 2 maintain one- or two-step simple repetitive tasks.307 3 2.1.6 Dr. Kollath — State Examining Consultant 4 5 In December 2013, Dr. Kollath conducted a psychological consultative evaluation of Mr. 6 Nguyen, with the assistance of a translator. He diagnosed an Axis I depressive disorder NOS by 7 history and an Axis V GAF 65.308 Dr. Kollath performed several tests but the “results are 8 considered to be an unreliable representation of the claimant’s current psychological 9 functioning.”309 As to cognitive status, Mr. Nguyen’s performance was “inconclusive. He had no difficulty following simple and moderately complex directions. His history and clinical 11 United States District Court Northern District of California 10 presentation [are] not indicative of a neurocognitive disorder. He should have no functional 12 disruption due to a cognitive disorder. Claimant presented with variable motivation and results 13 cannot be considered as a reasonably valid or reliable estimate of his level of functioning and 14 previous testing from 2011 established cognitive functioning in the low average range.”310 15 “Emotional” was “mildly impaired.311 “[F]rom a psychological standpoint,” Dr. Kollath concluded 16 that Mr. Nguyen was “unimpaired” and assessed that his work-related abilities were unimpaired.312 17 2.1.7 Dr. Howard — State Examining Consultant 18 In June 2014, Dr. Howard conducted a psychological consultative evaluation, with the 19 20 assistance of a translator. His diagnoses were (1) Axis I mood disorder, NOS, with depressed and 21 reported anxious procedures, (2) cognitive disorder, NOS, with borderline and extremely low 22 functioning; and (3) Axis V GAF 55–57.313 Mr. Nguyen reported that he suffered from back pain 23 307 24 25 26 Id. 308 AR 805. 309 AR 804. 310 AR 804–05. 311 27 AR 805. 312 Id. 28 313 AR 874. ORDER — No. 3:16-cv-00748-LB 32  1 after his November 2003 accident, and his “mood disturbance” began about five years ago.314 HE 2 reported difficulty with memory and concentration.315 He had at least average language 3 competency shown by his ability to follow instructions, and once rapport was established, he was 4 cooperative and required little encouragement.316 He could repeat three words but not remember 5 them five minutes later. His attention and concentration appeared impaired; he could not “perform 6 serial three’s” and could not accurately subtract $7.50 from $18.00. He reported suicidal thoughts 7 two years before the evaluation and being psychiatrically hospitalized in Oakland.317 He appeared 8 depressed and reported a depressed and anxious mood with sleep disturbance, tearfulness, 9 decreased energy, irritability, and difficulty with memory and concentration. 318 His test results were as follows. Trail Making Test, Parts A and B: slowed psychomotor ability 11 United States District Court Northern District of California 10 and difficulty shifting mental sets; completed Part A in 129 seconds; “Errorless scores over 59 on 12 Part A are strongly suggestive of individuals with deficits. Results indicated that his executive 13 functioning ability, and his planning, organization and sequencing skills[,] were impaired.” He did 14 not complete Part B.319 Nonverbal Intelligence: 3rd percentile of intelligence.320 Weschler Memory 15 Scale: “his ability to learn and recall visual information appeared severely impaired.”321 He 16 “demonstrated Borderline intellectual functioning, impaired immediate visual memory, slowed 17 psychomotor ability, and difficulty shifting mental sets.”322 Based on behavioral observations, 18 reported psychiatric history, review of records, and results of testing, he “showed moderate to 19 marked impairment in his ability to attend to and concentrate on usual work situations. He had 20 21 314 AR 873. 315 Id. 316 Id. 24 317 Id. 25 318 Id. 319 Id. 320 Id. 27 321 Id. 28 322 Id. 22 23 26 ORDER — No. 3:16-cv-00748-LB 33  1 market impairment in his ability to adapt to changes in a working environment.”323 Because of his 2 English skills, Mr. Nguyen would have marked difficulty accepting simple instructions from 3 supervisors and marked difficulty interacting with coworkers and the public. He demonstrated 4 marked impairment in his pace and persistence at tasks and moderate to marked impairment in his 5 ability to perform activities within a schedule and maintain regular attendance.324 6 7 2.2 Cooperative Disability Investigations Unit Report (February 2013) 8 In February 2013, the Cooperative Disability Investigations Unit (“CDI”) produced a report325 9 to evaluate Mr. Nguyen’s “questionable information regarding his ability to communicate in English.”326 They tried to interview Mr. Nguyen in December 2012 (but he refused to be 11 United States District Court Northern District of California 10 interviewed without his attorney), and they observed Mr. Nguyen walking normally without any 12 assistive devices. He spoke and responded entirely in English without assistance. He “did not 13 appear to be in any pain while standing and walking” and “did not appear depressed.”327 CDI agents obtained Department of Motor Vehicles records from 2009 to February 10, 2013, 14 15 showing that Mr. Nguyen had held a commercial driver’s license for that entire period.328 To 16 maintain such a license, Mr. Nguyen had to submit a DMV Form DL-51 filled out by a qualified 17 medical practitioner after physically examining the applicant.329 From 2009 to 2013, Mr. Nguyen 18 filled out his part of the form in English (even though it was available in Vietnamese), and he and 19 his doctor stated that he had no chronic back pain, no neurological problems, was in good health, 20 and had no medical conditions that impaired his ability to be a commercial truck driver.330 21 22 323 Id. 324 Id. 24 325 AR 385–89. 25 326 AR 387. 327 AR 386. 328 Id. 27 329 Id. 28 330 AR 386–87. 23 26 ORDER — No. 3:16-cv-00748-LB 34  2.3 Social Security Administration Proceedings 1 2.3.1 Mr. Nguyen’s Testimony at the November 13, 2013 Hearing 2 3 The ALJ questioned Mr. Nguyen first. 4 Mr. Nguyen came to the United States from Vietnam in 1983 at age 16.331 He completed high 5 school in Oakland; all of his classes were in English.332 The ALJ asked Mr. Nguyen questions 6 without an interpreter. He asked if Mr. Nguyen spoke English, and Mr. Nguyen responded, “Yes, 7 when I came here I learned but I didn’t learn much.”333 The ALJ asked, “when you submitted your 8 application you said you could read and write and speaking English, right?” Mr. Nguyen 9 responded, “Yes, but it’s not 100%.”334 The ALJ asked Mr. Nguyen his height and weight, and Mr. Nguyen said that he was 5’3” and “Before I weigh 170. Now 155.”335 The ALJ asked questions 11 United States District Court Northern District of California 10 about Mr. Nguyen’s home, children, and driving, and Mr. Nguyen answered.336 When the ALJ 12 asked Mr. Nguyen how often he drives in a typical week, Mr. Nguyen did not understand the 13 question, the ALJ rephrased, and Mr. Nguyen answered.337 His attorney interjected, “Your honor, 14 I just want to make it clear that I thought he needed an interpreter because I have a hard time 15 communicating with him, so he didn’t particularly object to doing it in English.”338 The ALJ asked Mr. Nguyen whether he had trained for new kinds of work and Mr. Nguyen 16 17 asked for a translation and responded that he took a two-month computer class and finished it in 18 2009.339 He learned data input and the functioning of the computer system.340 He did not take 19 20 21 331 AR 77. 22 332 Id. 333 Id. 334 Id. 24 335 Id. 25 336 AR 77–78. 337 AR 78. 338 Id. 27 339 AR 79. 28 340 Id. 23 26 ORDER — No. 3:16-cv-00748-LB 35  1 other classes because of his pain and because he did not have enough time.341 He clarified that it 2 was because of his pain and he was unable to take classes.342 Mr. Nguyen testified that he had not worked since 2003 and lived on his wife’s income.343 He 3 settled his worker’s compensation case in 2009 and received $16,000.344 He can’t work because he 5 is in pain, can’t stand up, can stand for ten to fifteen minutes at most, needs to sit for 20 minutes 6 and then has to change positions before he can get up, and can lift five to ten pounds without any 7 problem.345 His condition has worsened since 2011; his pain is in the middle of his lower back, 8 and he can walk about two blocks before he needed to sit, and has pain when he sits and needs to 9 get up after 20 or 25 minutes.346 He provided a list of medications that included hydrocodone, 10 Lidoderm patch, and Prozac.347 Mr. Nguyen’s lawyer explained that Mr. Nguyen’s insurer no 11 United States District Court Northern District of California 4 longer approved the hydrocodone, and Mr. Nguyen had stopped taking it.348 He uses two creams 12 and the Lidoderm patch, which help, and Prozac.349 In 2012, he had facet injections and 13 radiofrequency ablation, but these did not help much.350 Dr. Jamasbi has recommended more 14 injections and surgery, but Mr. Nguyen felt that surgery was very complicated, dangerous, and 15 risky.351 Mr. Nguyen’s last injection was “maybe eight months ago.”352 16 Mr. Nguyen usually gets up by 5:30 or 6:00 in the morning and spends a typical day doing 17 “[b]asically nothing” but trying “to position myself to prevent the further pain in my body and 18 19 341 Id. 342 AR 80. 21 343 Id. 22 344 AR 80. 345 AR 81. 346 AR 81–82. 24 347 AR 82. 25 348 Id. 349 Id. 350 Id. 27 351 AR 83. 28 352 Id. 20 23 26 ORDER — No. 3:16-cv-00748-LB 36  1 relax lying down.”353 He doesn’t help with chores; his wife does everything and also cares for 2 their disabled child.354 He does not sleep during the day, goes to sleep at 12:30 or 1:00 a.m., and 3 gets only about four hours of sleep at most because he had to move his body due to his pain.355 He does not have friends anymore but gets along “okay” with his wife and children.356 He used 4 5 to play volleyball and basketball and bowl, but can’t anymore.357 He can no longer play chess 6 “because my life is now full of pain and I feel very depressed. Sometimes because of my sleep 7 problem, I start crying.”358 He used to go to the gym, enjoyed it, and found the water therapy 8 useful, but later his insurance denied the service.359 He was unable to use the treadmill or 9 stationary bike and used only the water therapy.360 Mr. Nguyen sees Dr. Ghannam — who 10 prescribed the Prozac — every one to two months.361 United States District Court Northern District of California 11 Mr. Nguyen’s attorney then asked Mr. Nguyen questions. She first asked him to describe his 12 symptoms, observing that he had been “treated for depression for several years.”362 Mr. Nguyen 13 responded, “I feel very sad and I cry . . . because I was unable to help my family, my children.”363 14 He gets angry a lot of times without any reason.364 “When I get angry I only think of holding my 15 head and crying.”365 He sometimes thinks of suicide: “because of my pain I feel, you know, 16 useless, and I feel rather than to die than living.”366 He did not suffer from depression before the 17 18 21 22 23 24 25 26 354 Id. 355 AR 84. Id. 357 Id. 358 AR 84–85. 359 AR 85. 360 20 Id. 356 19 353 Id. 361 AR 86. 362 Id. 363 Id. 364 27 AR 87. 365 Id. 28 366 Id. ORDER — No. 3:16-cv-00748-LB 37  1 accident and was “a normal person.”367 He thinks if his pain resolved, he would stop being 2 depressed; the Prozac helps a little.368 His most comfortable position is lying down with pillows 3 underneath his knees to elevate his legs.369 The ALJ then asked if Mr. Nguyen thought about killing himself, and he responded yes. The 4 5 ALJL asked if he thought how he would do it, and Mr. Nguyen said yes. Mr. Nguyen talked to Dr. 6 Ghannam about it, but not Dr. Jamasbi. The ALJ asked “how long have you been thinking about 7 killing yourself,” and Mr. Nguyen responded “[a]bout two or three years ago.”370 8 2.3.2 Vocational-Expert Testimony 9 Vocational expert (VE) Robert A. Raschke then testified.371 The ALJ asked the VE to classify 11 United States District Court Northern District of California 10 Mr. Nguyen’s past work, which was “driver delivery work,” with “medium exertion.”372 The ALJ 12 asked the VE hypothetically whether an individual of Mr. Nguyen’s education and work 13 background, who is limited to sedentary work and simple work, could perform the claimant’s past 14 work, and the VE responded that it would be “eliminated on exertional level alone.”373 The ALJ 15 asked the VE whether there would be any other work that that person could do, and the VE 16 responded that the person could do entry-level sedentary work that was available in the 17 economy.374 He explained that the “production arena” offered “lots of job titles” — “essentially 18 2,000” such jobs “in different categories.”375 An example is “shade assembler,” which is 19 considered sedentary.376 He mentioned other sedentary job categories such as “inspectors, testers, 20 21 367 Id. 22 368 Id. 369 AR 88. 370 Id. 24 371 Id. 25 372 AR 89. 373 Id. 374 Id. 27 375 Id. 28 376 Id. 23 26 ORDER — No. 3:16-cv-00748-LB 38  1 and sorters”, a “lens block gauger” (involving the manufacture of eyewear), telephone solicitor, 2 and master laborer in precision instruments.377 The ALJ added a limitation that the person would need to change his position from sitting to 3 4 standing every 15 or 20 minutes.378 The VE testified that based on his 40 years’ experience in job 5 development, on-the-job training programs, and job analysis, 80% of the jobs he mentioned would 6 work for that hypothetical person because they were performed at higher benches, which would let 7 a person working on a stool to stand or sit at will.379 The ALJ then said, if that hypothetical person “had a marked limitation in performing within a 8 9 10 schedule and being punctual, he could not do any work in the competitive economy.”380 The VE answered, “That’s correct.”381 United States District Court Northern District of California 11 2.3.3 Mr. Nguyen’s Testimony at May 2014 Supplemental Hearing 12 13 After the first hearing in November 2013, the ALJ asked for orthopedic and psychological 14 consultative examinations and for the CDI investigation and then held a supplemental hearing at 15 Mr. Nguyen’s request.382 Mr. Nguyen’s attorney objected for the record: “I am wondering how a 16 judge who has denied my claimant before, and who initiated an investigation, can make an 17 unbiased decision in this case.”383 The ALJ responded that if the attorney showed that the 18 investigative findings were irrelevant or wrong, he’d issue a favorable decision.384 The ALJ swore in the interpreter first, but Mr. Nguyen’s attorney said that given the questions 19 20 about his English skills, they were willing to have the hearing in English.385 Mr. Nguyen’s attorney 21 377 AR 89–90. 378 AR 91. 379 Id. 24 380 Id. 25 381 Id. 382 AR 96. 383 AR 97. 27 384 Id. 28 385 Id. 22 23 26 ORDER — No. 3:16-cv-00748-LB 39  1 then questioned Mr. Nguyen. She asked if he had said at various times that his English was not 2 very good.386 Mr. Nguyen answered, “Yes, correct, my English is understand, but not completely 3 understand fully completely the language.”387 Then the attorney asked Mr. Nguyen how he was 4 able to graduate from high school in the U.S. if his English was so poor.388 Mr. Nguyen responded: 5 “I came here to the United States when I was young and then I go to high school, and so I am able 6 to learn, so I graduate in English, but after I graduate I go straight to work, so all right now my 7 English all memory are gone. I cannot do more than like before. That’s why some stuff I need an 8 interpreter, that’s the reason why.”389 The attorney asked Mr. Nguyen if he had to speak English when he was working and how 9 much contact he had with other people at work.390 Mr. Nguyen testified that he did not speak 11 United States District Court Northern District of California 10 English at work much. He only talked to his supervisor at the beginning and the end of the day.391 12 The attorney asked whether Mr. Nguyen remembered saying at the first hearing that he could 13 not read a newspaper in English.392 Mr. Nguyen did not remember, but said that there were “a lot 14 of words” that he did not “understand[] completely” in a “regular” newspaper.393 The attorney 15 asked whether Mr. Nguyen’s ability to read English deteriorated after graduating high school, and 16 Mr. Nguyen said that he did not understand the question.394 The ALJ rephrased the question and 17 asked Mr. Nguyen if his ability to read English gotten better, or worse, or stayed about the same, 18 since high school.395 Mr. Nguyen responded that it had gotten worse because after high school he 19 did not go to college but started working instead.396 20 386 22 23 24 25 26 Id. 387 Id. 388 Id. 389 AR 98–99. 390 21 AR 99. 391 Id. 392 Id. 393 Id. 394 27 Id. 395 AR 99–100. 28 396 AR 100. ORDER — No. 3:16-cv-00748-LB 40  Mr. Nguyen’s attorney asked whether his ability in written English had gotten worse, and Mr. 1 2 Nguyen said that it had.397 She asked when he obtained his driver’s licenses; Mr. Nguyen 3 responded that he obtained the regular license while in high school in 1987 and the truck driver’s 4 license right after high school in 1988.398 The attorney asked about the reports he submitted to 5 DMV from his doctor regarding his commercial license; Mr. Nguyen said that he did not want to 6 lose the license and so “lie[d]” to his family doctor about his health and “did not tell the truth that 7 [he] was hurt.”399 The attorney asked whether the doctor examined him when he completed the 8 form.400 Mr. Nguyen stated: “Yes, he asks some questions . . . like vision, some basically . . . — he 9 would have the form asking me as he examines me.”401 The attorney asked why he wanted to keep the trucking license if he was unable to work.402 Mr. Nguyen answered that his friends had told 11 United States District Court Northern District of California 10 him that if he lost his commercial driver’s license, he would need to do the written and driving 12 tests again.403 He testified, “so I’m afraid they[’d] give me a hard time. That’s why I lie to him to 13 keep the license, just renew, continue, but I’m not trying to keep license to go back to work. I 14 cannot.”404 The attorney asked if Mr. Nguyen believed or hoped that someday he would be able to 15 return to work as a truck driver.405 Mr. Nguyen said that he wished that he could work so that he 16 could support his family, but after the accident, he doubted he could.406 The attorney asked about the CDI investigators’ visit to Mr. Nguyen at home.407 Mr. Nguyen 17 18 did not remember “what day they came” but remembered their visit.408 His attorney asked whether 19 397 Id. 398 Id. 21 399 Id. 22 400 Id. 401 Id. 402 Id. 24 403 AR 101–02. 25 404 AR 102. 405 Id. 406 Id. 27 407 Id. 28 408 Id. 20 23 26 ORDER — No. 3:16-cv-00748-LB 41  1 he refused to talk with them and whether they showed identification.409 Mr. Nguyen knew who 2 they were but did not want to talk to them before he talked to his attorney. They showed their 3 identification “real quick” and did not tell him why they were there except to say that they were 4 Social Security agents and wanted to ask some questions.410 The attorney asked whether Mr. 5 Nguyen was walking without assistance (such as a cane), as the agents reported.411 Mr. Nguyen 6 said that he does not use a cane but walks “real slow.”412 7 2.3.4 Vocational-Expert Testimony at Supplemental Hearing (22/05/2014) 8 VE Freeman Leeth, Jr. testified on May 5, 2014.413 Mr. Nguyen’s lawyer posited the following 9 hypothetical person: A person with Mr. Nguyen’s age, education and work background with the 11 United States District Court Northern District of California 10 following limitations: (1) can sit continuously for fifteen minutes at a time, sitting for a total of 12 four hours in an eight-hour day, and can stand or walk for four hours in an eight-hour day; (2) can 13 lift up to ten pounds, rarely bend, and occasionally reach above shoulder level; (3) has severe pain 14 that interferes with maintaining concentration, persistence, and pace such that he would be off task 15 for 20% of an eight-hour day; and (5) suffers from major depression that so limits his ability to 16 maintain a schedule, maintain regular attendance, and be punctual such that he would miss two 17 days of work per month.414 She then asked, “Would this individual be able to perform Mr. 18 Nguyen’s past work,” and the VE responded, “No.”415 She asked whether there would be any other 19 jobs he could perform, and the VE responded, “Not in my opinion.”416 20 21 22 409 AR 103. 410 Id. 24 411 Id. 25 412 AR 104. 413 Id. 414 AR 105. 27 415 Id. 28 416 AR 106. 23 26 ORDER — No. 3:16-cv-00748-LB 42  1 2.4 Administrative Findings 2 The ALJ held that, from January 1, 2009 through August 1, 2014, Mr. Nguyen was not 3 disabled within the meaning of the Social Security Act.417 4 The ALJ observed that the Commissioner has established a sequential five-step evaluation 5 process to determine if an individual is disabled. At step one, the ALJ must determine whether the 6 individual is engaging in “substantial gainful activity.” At step two, the ALJ must determine 7 whether the individual has a “medically determinable impairment” that is “severe” or a 8 combination of impairments that is “severe.” At step three, the ALJ must determine whether the 9 individual’s impairments are severe enough to meet a listed impairment. At step four, the ALJ must determine the individual’s “residual functional capacity” and determine whether the 11 United States District Court Northern District of California 10 individual can perform “past relevant work.” At step five, the ALJ must determine whether the 12 individual can perform any other work.418 At step one, the ALJ found that that Mr. Nguyen had not engaged in substantial gainful activity 13 14 since January 1, 2009, the application date.419 At step two, the ALJ found that Mr. Nguyen had the following severe impairments: 15 16 degenerative disc disease of the lumbar spine; lumbar strain; and chronic-pain syndrome.420 Mr. 17 Nguyen also alleged disability in part due to depression, but the ALJ found that the medical record 18 did not support more than a minimal effect on his ability to perform basic mental-work 19 activities.421 Dr. Jamasbi observed depression and anxiety in 2008, but he noted that Mr. Nguyen 20 denied suicidal ideation, and he characterized Mr. Nguyen as having normal insight, judgment, 21 and emotional state.422 By December 2009, Mr. Nguyen’s mood and sleep had improved with 22 medication.423 Similarly, while Dr. Ghannam diagnosed Mr. Nguyen with major depressive 23 417 24 25 26 AR 33. 418 AR 20–21. 419 AR 22. 420 Id. 421 27 Id. 422 AR 22–23. 28 423 AR 23. ORDER — No. 3:16-cv-00748-LB 43  1 disorder, by March 2010, the psychotropic medication had been moderately helpful, and by 2 December 2010, he had a 60% reduction in depression and anxiety.424 In January 2011, the 3 cognitive-behavioral therapy was helping.425 By December 2011, consultative psychologist Dr. 4 Hardey found Mr. Nguyen’s mental status unremarkable and only mild-moderate impairment.426 5 The ALJ contrasted Dr. Jamasbi’s observation of symptoms of major depression in May 2012 with 6 Dr. Ghannam’s report the next month that Mr. Nguyen had not received mental-health treatment 7 for approximately a year.427 By April 2013, Dr. Ghannam reported deterioration and recommended 8 medication; by October 2013, he noted mild improvement but continued severe symptoms.428 In 9 December 2013, Dr. Kollath found that Mr. Nguyen was unimpaired in his ability to meet the mental demands of work.429 In June 2014, consultative psychologist Dr. Howard diagnosed mood 11 United States District Court Northern District of California 10 disorder and cognitive disorder with moderate-market impairment of work-related abilities.430 In concluding that the medical record did not support severe depression (and instead showed 12 13 that Mr. Nguyen experienced depression based on his pain), the ALJ pointed to the following: a 14 lack of positive objective findings in psychological testing and mental-status examinations 15 performed by Dr. Hardey and Dr. Kollath; improvements in Mr. Nguyen’s reported depression 16 with treatment; the absence of any objective assessment of Mr. Nguyen by Dr. Ghannam to 17 support the limitations; the lack of reliability of Dr. Howard’s findings (because they were based 18 upon Mr. Nguyen’s inaccurate portrayal of himself as not speaking English); and Dr. Jamasbi’s 19 recognition that Mr. Nguyen did not have an independent mental impairment but experienced 20 depression associated with his pain disorder.431 21 22 424 Id. 425 Id. 24 426 Id. 25 427 Id. 428 AR 24. 429 Id. 27 430 Id. 28 431 AR 25. 23 26 ORDER — No. 3:16-cv-00748-LB 44  The ALJ considered the four broad functional areas in the disability regulations in finding that 1 2 the claimant’s symptoms of anxiety and depression were not severe. 432 The four areas are (1) 3 activities of daily living, (2) social functioning, (3) concentration, persistence, and pace, and (4) 4 extended periods of decompression.433 20 C.F.R. § 404.1520a(d)(1). Mr. Nguyen had had mild 5 limitations for the first three functional areas, and no episodes of decompensation of extended 6 duration in the fourth.434 For activities of daily living, the ALJ noted that Mr. Nguyen told the Administration that he 7 helped his children get ready for school, sometimes helped his wife wash dishes, and went 9 shopping. He reported to Dr. Jamasbi in June 2011 that he worked out at the gym on a treadmill 10 and a stationary bike and could do light household chores.435 For social functioning, Mr. Nguyen 11 United States District Court Northern District of California 8 gets along well with his family members, and he interacted appropriately with Dr. Kollath.436 For 12 the third functional area of concentration, pace, and persistence, Dr. Hardey’s and Dr. Howard’s 13 examinations suggested significant limitations, but their results are unreliable because Mr. Nguyen 14 misrepresented his English skills.437 For the fourth functional area, Mr. Nguyen experienced no 15 episodes of extended periods of decompensation.438 The ALJ concluded that the mental impairments were non-severe under 20 C.F.R. 16 17 § 404.1520a(d)(1) because there was insufficient reliable evidence documenting a medically 18 determinable mental impairment that caused more than a “mild” limitation in the first three 19 functional areas or caused any episodes of decompensation of extended duration in the fourth.439 20 21 22 23 432 Id. As the ALJ explained, these “four broad functional areas are known as the ‘paragraph B’ criteria” and appear at 20 C.F.R. Part 404 Subpart P, Appendix 1. Id. 433 AR 31–32. 24 434 Id. 25 435 Id. 436 Id. 437 Id. 27 438 Id. 28 439 Id. 26 ORDER — No. 3:16-cv-00748-LB 45  1 At step three, the ALJ found that Mr. Nguyen did not have an impairment or combination of 2 impairments that met or medically equaled the severity of one of the listed impairments.440 The 3 ALJ explained that the “record[] does not document nerve root compression characterized by pain, 4 limitation of motion in the spine, motor loss and sensory, or reflex loss, as required under Section 5 1.04” of the Administration’s impairment listings. The ALJ thus concluded that “a Listing level 6 disorder of the spine is not established here.”441 The ALJ next concluded that Mr. Nguyen had not carried his burden of showing changed 7 8 circumstances in his condition since December 23, 2008 (when the ALJ denied Mr. Nguyen’s prior 9 claim for benefits) and concluded that Mr. Nguyen continued to have the “residual functional capacity to perform the full range of sedentary work, as defined in 20 C.F.R. §§ 404.1467(a) and 11 United States District Court Northern District of California 10 416.967(a).442 The ALJ reviewed records starting with Dr. Oda’s diagnosis in 2005 through his 12 many years of treatment with Dr. Jamasbi.443 The ALJ determined that there was no continuous 13 12-month period during which Mr. Nguyen had been precluded from performing sedentary work. 14 To support this conclusion, the ALJ relied on “the limited positive objective findings reported on 15 EMG, MRI, CT scan and x-rays, with the minimal positive objective findings reported on physical 16 examinations, and . . . the evidence of a marked improvement in [Mr. Nguyen]’s back pain and 17 other symptoms with treatment.”444 18 The ALJ gave “great weigh[t]” to Dr. Oda’s conclusions regarding Mr. Nguyen’s work 19 capacity because they were “consistent with the limited positive objective findings reported in 20 connection with his back-pain complaints.”445 The ALJ gave “some weight” to Dr. Warbritton’s 21 assessment of Mr. Nguyen’s work capacity because it was “not inconsistent” with the objective 22 medical records.446 The ALJ found “persuasive” Dr. Bayne’s conclusions from December 2011 23 440 24 25 26 AR 26. 441 Id. 442 Id. 443 AR 26–28. 444 27 AR 28. 445 AR 29. 28 446 Id. ORDER — No. 3:16-cv-00748-LB 46  1 and December 2013 that Mr. Nguyen could perform sedentary work because they are supported by 2 objective medical records.447 The ALJ “reject[ed]” the opinion of the treating physician Dr. Jamasbi. While acknowledging 3 4 that such testimony is “normally afford[ed] . . . great weight,” here the ALJ concluded that Dr. 5 Jamasbi’s opinion was because it is “not well-supported by objective medical evidence” and is 6 “inconsistent with [Dr. Jamasbi’s] own observations that Mr. Nguyen’s symptoms improved and 7 his function increased over time.”448 Moreover, Dr. Jamasbi “relied largely” on Mr. Nguyen’s 8 “subjective complaints” which were “questionable at best” for several reasons that the ALJ 9 enumerated separately — and which are discussed later in this section.449 The ALJ gave “great weight” to consultative psychologist Dr. Kollath’s conclusion regarding 10 United States District Court Northern District of California 11 Mr. Nguyen’s mental condition, as they are “consistent with the lack of any reliable objective 12 evidence on psychological testing or mental[-]status examinations suggesting work-related 13 limitations.”450 The ALJ gave “no weight” to treating psychologist Dr. Ghannam’s conclusions because there 14 15 was “no evidence that he ever performed a comprehensive psychological examination” of Mr. 16 Nguyen and his opinion is “unsupported by any reported positive objective findings on mental[-] 17 status examination or psychological testing.”451 “Rather,” explained the ALJ, Dr. Ghannam’s 18 conclusions “appear to be largely, if not wholly, based upon [Mr. Nguyen]’s subjective reports.”452 19 The ALJ gave “no weight” to Dr. Hardey’s and Dr. Howard’s conclusions, which he found 20 “unreliable.”453 According to the ALJ: At the time of their examinations, the claimant misrepresented himself as unable to communicate in English. Indeed, Dr. Howard specifically relied upon the 21 22 23 447 Id. 24 448 Id. 25 449 Id. 450 Id. 451 Id. 27 452 Id. 28 453 Id. 26 ORDER — No. 3:16-cv-00748-LB 47  claimant’s misrepresentation of the quality of his English abilities in identifying specific work-related limitations. Moreover, Dr. Howard reported that the claimant scored in the 3rd percentile of intelligence on psychological testing, but that score is wholly inconsistent with the claimant’s report that he has been able to complete a college-level course and his ability to obtain and maintain a commercial driver’s license.454 1 2 3 4 The ALJ specifically mentioned that Mr. Nguyen’s credibility was severely undermined and he 5 6 7 8 9 rejected his statements about his health because he made many inconsistent statements about his English language abilities and his activities.455 Furthermore, Mr. Nguyen’s credibility also was undermined by extensive evidence including treatment records from both Dr. Ghannam and Dr. Jamasbi reflecting repeated reports that Mr. Nguyen’s symptoms had improved with treatment.456 Crucially, the ALJ found that Mr. Nguyen’s “statements regarding his symptoms do not 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 establish that he is disabled.”457 The ALJ explained: “I have . . . considered all symptoms and the extent to which these symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence, based on the” applicable regulations.458 First, the ALJ found the “objective medical findings” to be “limited.”459 Equally important, the ALJ found “specific and legitimate reasons to reject the claimant’s statements regarding his symptoms.”460 “First,” Mr. Nguyen had “made many inconsistent statements regarding his English language abilities that severely undermine his credibility.”461 The ALJ then specified some of these inconsistencies, such as Mr. Nguyen’s repeated ability over time to fill out forms and conduct interviews in English, even when he could have done so in Vietnamese.462 Against this backdrop, “[h]is attempt to portray himself as limited in his ability to communicate in English during examinations scheduled 21 454 Id. 455 AR 30. 456 AR 31. 24 457 AR 29. 25 458 Id. 459 AR 30. 460 Id. 27 461 Id. 28 462 Id. 22 23 26 ORDER — No. 3:16-cv-00748-LB 48  1 to assess his ability to work for purposes of Social Security claims significantly undermines his 2 credibility.”463 “Moreover,” the ALJ continued, “his credibility is further undermined by inconsistencies in his 3 statements regarding his activities.”464 Against his occasional claim that he did “nothing all day 5 but rest,” the ALJ noted his contrary testimony that he helped with his children, “one of whom is 6 ‘handicapped’. . . with cerebral palsy,” shopped, helped with housework, and had “successfully 7 completed a two-month college-level computer course in 2009.”465 Similarly, Mr. Nguyen 8 “testified that he has never used a stationary bike or treadmill.”466 “However, he told Dr. Jamasbi 9 in June 2011 that he was working out at a gym, using a stationary bicycle and a treadmill.”467 10 The ALJ found still further reasons to reject Mr. Nguyen’s self-reported symptoms: “The 11 United States District Court Northern District of California 4 credibility of the claimant’s allegations of disabling pain and other symptoms is also undermined 12 by extensive evidence, including treatment records from both Dr. Ghannam and from Dr. Jamasbi, 13 reflecting repeated reports by the claimant that his symptoms had improved with treatment.”468 14 While Mr. Nguyen claimed that he could not sit for more than short periods, “Dr. Jamasbi 15 repeatedly observed that the claimant was able to sit comfortably and was in no apparent pain 16 during his examination.”469 “Moreover, despite his allegation of an inability to do prolonged 17 sitting, he stood for perhaps 15 seconds during the 45[-]minute hearing before me in November 18 2013, and sat throughout the May 2014 hearing.”470 “Further,” the ALJ found “evidence of 19 symptom magnification.”471 20 21 463 Id. 464 Id. 465 Id. 24 466 Id. 25 467 Id. 468 AR 21. 469 Id. 27 470 Id. 28 471 Id. 22 23 26 ORDER — No. 3:16-cv-00748-LB 49  “Finally” on Mr. Nguyen’s credibility, the ALJ noted his long history of holding a commercial 1 2 driving license. While Mr. Nguyen “alleged ongoing disabling pain and other symptoms 3 precluding all work,” to keep his commercial license he had “for years” stated in DMV forms 4 “that he had no chronic low[-]back pain, that he had no neurological problems and that he was in 5 excellent health.”472 “Thus, after carefully considering the evidence,” the ALJ concluded that “the claimant’s 6 7 medically determinable impairments could reasonably be expected to cause the alleged symptoms, 8 but that his statements concerning the intensity, persistence and limiting effects of these symptoms 9 are not entirely credible . . . .”473 Returning to the main heads of the five-step evaluation, at step four, the ALJ determined that 10 United States District Court Northern District of California 11 Mr. Nguyen was unable to perform any past relevant work.474 At step five, considering Mr. Nguyen’s age, education, work experience, and residual 12 13 functional capacity, the ALJ found that there were jobs that existed in significant numbers in the 14 national economy that Mr. Nguyen could perform.475 The ALJ also mentioned that even if he were 15 to find that Mr. Nguyen had a severe mental impairment, and accepted the conclusion that Mr. 16 Nguyen was limited to “simple work at the sedentary exertional level,” VE Raschke had testified 17 that an individual with such residual functional capacity, and with Mr. Nguyen’s age, education, 18 and work experience, could perform multiple jobs available in the national economy in significant 19 numbers.476 The ALJ “accept[ed] this opinion.”477 20 The ALJ thus reached two holdings. He held that “Mr. Nguyen” was “not disabled” for 21 “disability and disability insurance benefits . . . under sections 216(i) and 223(d) of the Social 22 23 24 472 Id. 25 473 Id. 474 AR 32. 475 Id. 27 476 Id. 28 477 Id. 26 ORDER — No. 3:16-cv-00748-LB 50  1 Security Act.”478 He also held that Mr. Nguyen was “not disabled” for “supplemental security 2 income . . . under section 1614(a)(3)(A) of the Social Security Act.”479 3 ANALYSIS 4 5 1. Standard of Review 6 Under 42 U.S.C. § 405(g), district courts have jurisdiction to review any final decision of the 7 Commissioner if the claimant initiates the suit within 60 days of the decision. District courts may 8 set aside the Commissioner’s denial of benefits only if the ALJ’s “findings are based on legal error 9 or are not supported by substantial evidence in the record as a whole.” Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009) (internal quotations omitted); 42 U.S.C. § 405(g). “Substantial evidence 11 United States District Court Northern District of California 10 means more than a mere scintilla but less than a preponderance; it is such relevant evidence as a 12 reasonable mind might accept as adequate to support a conclusion.” Andrews v. Shalala, 53 F.3d 13 1035, 1039 (9th Cir. 1995). If the evidence in the administrative record supports both the ALJ’s 14 decision and a different outcome, the court must defer to the ALJ’s decision and may not 15 substitute its own decision. See id. at 1039–40; Tackett v. Apfel, 180 F.3d 1094, 1097–98 (9th Cir. 16 1999). 17 18 2. Applicable Law 19 An SSI claimant is considered disabled if he or she suffers from a “medically determinable 20 physical or mental impairment which can be expected to result in death or which has lasted or can 21 be expected to last for a continuous period of not less than twelve months,” and the “impairment 22 or impairments are of such severity that he is not only unable to do his previous work but cannot, 23 considering his age, education, and work experience, engage in any other kind of substantial 24 gainful work which exists in the national economy.” 42 U.S.C. § 1382c(a)(3)(A), (B). 25 26 27 478 Id. 28 479 Id. ORDER — No. 3:16-cv-00748-LB 51  There is a five-step analysis for determining whether a claimant is disabled within the meaning 1 2 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’s case cannot be resolved at step one, and the evaluation proceeds to step two. See 20 C.F.R. § 404.1520(a)(4)(i). 3 4 5 6 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). 7 8 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). 9 10 United States District Court Northern District of California 11 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 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). 12 13 14 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). 15 16 17 18 19 20 For steps one through four, the burden of proof is on the claimant. Tackett, 180 F.3d at 1098. At 21 step five, the burden shifts to the Commissioner to show that the claimant can do other kinds of 22 work. Id. 23 3. Application Mr. Nguyen contends that the ALJ erred in two ways.480 First, he argues that the ALJ did not 24 25 “assign[] . . . adequate weight” to the opinion of his treating physician, Dr. Jamasbi.481 Second, he 26 27 480 Mot. – ECF No. 15 at 1. 28 481 Id. (capitalization removed). ORDER — No. 3:16-cv-00748-LB 52  1 argues that the ALJ did not “follow the ‘slight abnormality’ standard’” in finding that his 2 depression was “non-severe.”482 These are the only two issues that Mr. Nguyen raises for this 3 court’s review.483 4 5 3.1 Dr. Jamasbi — Back Pain 6 3.1.1 Governing law The ALJ is responsible for “‘resolving conflicts in medical testimony, and for resolving 7 8 ambiguities.’” Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014) (quoting Andrews, 53 F.3d at 9 1039). An ALJ may not, however, interject or substitute his own medical opinion or diagnosis for that of the claimant’s physician. See Tackett, 180 F.3d at 1102–03; Day v. Weinberger, 522 F.2d 11 United States District Court Northern District of California 10 1154, 1156 (9th Cir. 1975) (an ALJ is forbidden from making his own medical assessment beyond 12 that demonstrated by the record); see also Ladue v. Chater, No. C-95-0754 EFL, 1996 WL 83880, 13 at *3 (N.D. Cal. Feb. 16, 1996) (stating that “[d]isability hearings are not adversarial in nature” 14 and “the ALJ has duty to develop the record” and “inform himself about [the] facts,” even if “the 15 claimant is represented by counsel”). 16 In weighing and evaluating the evidence, the ALJ must consider the entire case record, 17 including each medical opinion in the record, together with the rest of the relevant evidence. 20 18 C.F.R. § 416.927(b); see also Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (“[A] reviewing 19 court must [also] consider the entire record as a whole and may not affirm simply by isolating a 20 specific quantum of supporting evidence.”) (internal quotations omitted)). Social Security regulations distinguish between three types of physicians: treating physicians; 21 22 examining physicians; and non-examining physicians. 20 C.F.R. § 416.927(c), (e); Lester v. 23 Chater, 81 F.3d 821, 830 (9th Cir. 1995). “Generally, a treating physician’s opinion carries more 24 weight than an examining physician’s, and an examining physician’s opinion carries more weight 25 than a reviewing [non-examining] physician’s.” Holohan v. Massanari, 246 F.3d 1195, 1202 (9th 26 27 482 Id. (capitalization removed). 28 483 See id. ORDER — No. 3:16-cv-00748-LB 53  1 Cir. 2001) (citing Lester, 81 F.3d at 830); see also Sprague v. Bowen, 812 F.2d 1226, 1231 (9th 2 Cir. 1987) (the opinion of a treating physician is generally given the greatest weight because the 3 treating physician “is employed to cure and has a greater opportunity to know and observe the 4 patient as an individual”); Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996). 5 Accordingly, “[i]n conjunction with the relevant regulations, [the Ninth Circuit has] developed 6 standards that guide [the] analysis of an ALJ’s weighing of medical evidence.” Ryan v. Comm’r of 7 Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) (citing 20 C.F.R. § 404.1527). “To reject [the] 8 uncontradicted opinion of a treating or examining doctor, an ALJ must state clear and convincing 9 reasons that are supported by substantial evidence.” Id. (alteration in original) (internal quotations omitted). If the ALJ finds that the opinion of a treating physician is contradicted, the ALJ must 11 United States District Court Northern District of California 10 provide “specific and legitimate reasons supported by substantial evidence in the record.” Reddick 12 v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (internal quotations omitted); see also Garrison, 759 13 F.3d at 1012 (“If a treating or examining doctor’s opinion is contradicted by another doctor’s 14 opinion, an ALJ may only reject it by providing specific and legitimate reasons that are supported 15 by substantial evidence.”) (internal quotations omitted)). “Where an ALJ does not explicitly reject 16 a medical opinion or set forth specific, legitimate reasons for crediting one medical opinion over 17 another, he errs.” Id.; see also 20 C.F.R. § 404.1527(c)(2) (“If we find that a treating source’s 18 opinion on the issue(s) of the nature and severity of [the claimant’s] impairment(s) is well- 19 supported by medically acceptable clinical and laboratory diagnostic techniques and is not 20 inconsistent with the other substantial evidence in [the claimant’s] case record, we will give it 21 controlling weight.”). 22 “If a treating physician’s opinion is not given ‘controlling weight’ because it is not ‘well- 23 supported’ or because it is inconsistent with other substantial evidence in the record, the [Social 24 Security] Administration considers specified factors in determining the weight it will be given.” 25 Orn, 495 F.3d at 631. “Those factors include the ‘[l]ength of the treatment relationship and the 26 frequency of examination’ by the treating physician; and the ‘nature and extent of the treatment 27 relationship’ between the patient and the treating physician.” Id. (quoting 20 C.F.R. 28 § 404.1527(b)(2)(i)–(ii)) (alteration in original). “Additional factors relevant to evaluating any ORDER — No. 3:16-cv-00748-LB 54  1 medical opinion, not limited to the opinion of the treating physician, include the amount of 2 relevant evidence that supports the opinion and the quality of the explanation provided[,] the 3 consistency of the medical opinion with the record as a whole[, and] the specialty of the physician 4 providing the opinion . . . .” Id. (citing 20 C.F.R. § 404.1527(d)(3)–(6)). Even if the treating 5 physician’s opinion is not entitled to controlling weight, it is still entitled to deference. See id. at 6 632 (citing SSR 96-02p at 4 (Cum. Ed. 1996), 61 Fed. Reg. 34,490, 34,491 (July 2, 1996)). 7 Indeed, “[i]n many cases, a treating source’s medical opinion will be entitled to the greatest weight 8 and should be adopted, even if it does not meet the test for controlling weight.” Id. (quoting SSR 9 96-02p at 4). Finally, an “ALJ errs when he rejects a medical opinion or assigns it little weight” without 11 United States District Court Northern District of California 10 explanation or without explaining why “another medical opinion is more persuasive, or criticiz[es] 12 it with boilerplate language that fails to offer a substantive basis for his conclusion.” Garrison, 13 759 F.3d at 1012–13. 14 3.1.2 The ALJ gave thoughtful consideration to the question of Mr. Nguyen’s claimed disability. 15 16 Application Nevertheless, three errors in the ALJ’s analysis compel this court to remand this case. 17 First, most significantly, the ALJ made a factual error concerning Dr. Oda’s opinions. Dr. Oda 18 is the orthopedist who twice evaluated Mr. Nguyen; at least the first of these evaluations involved 19 her personally examining Mr. Nguyen.484 The ALJ gave Dr. Oda’s opinions “great weight.”485 20 “[H]er conclusions are consistent with the limited positive objective findings reported in 21 connection with the back complaints,” the ALJ wrote.486 He “contrast[ed]” Dr. Oda’s conclusions 22 with the “reject[ed] ones of Dr. Jamasbi.487 In her examinations, Dr. Oda found that Mr. Nguyen 23 exhibited a “limitation of motion in the back” that was “out of proportion” to his claimed injury.488 24 484 See AR 409–20. 485 AR 29. 486 Id. 27 487 AR 27. 28 488 AR 27–28; see AR 415, 420. 25 26 ORDER — No. 3:16-cv-00748-LB 55  1 More to the present point, the ALJ cited Dr. Oda’s conclusion in September 2005 that Mr. 2 Nguyen’s “condition would not preclude even very heavy work.”489 The ALJ also cited her 3 September 2009 opinion that Mr. Nguyen’s disability left him “limited to no more than heavy 4 work.”490 These latter points are incorrect. On both occasions, Dr. Oda reached the opposite conclusion. 5 6 In 2005, contrary to the ALJ’s recitation, she concluded that Mr. Nguyen had a back-related 7 “disability” that “would preclude very heavy work.”491 And in 2009, again contrary to the ALJ’s 8 discussion, Dr. Oda opined that Mr. Nguyen did “have a disability [that] would preclude heavy 9 lifting.”492 The ALJ seems to have simply misread the record. Given the role that Dr. Oda’s opinion plays in the ALJ’s decision, and perhaps even on general doctrinal grounds, this error 11 United States District Court Northern District of California 10 alone compels a remand. Second, in “reject[ing]” Dr. Jamasbi’s opinions, the ALJ did not consider the factors discussed 12 13 in Orn, supra. As stated above, where an ALJ does not give a treating physician’s opinion 14 “‘controlling weight’ because it is not ‘well-supported’ or because it is inconsistent with other 15 substantial evidence in the record” — both of which are grounds that the ALJ gives here493 — then 16 Social Security regulations “consider[] specified factors in determining the weight [that opinion] 17 will be given.” Orn, 495 F.3d at 631. “Those factors include the ‘[l]ength of the treatment 18 relationship and the frequency of examination’ by the treating physician; and the ‘nature and 19 extent of the treatment relationship’ between the patient and the treating physician.” Id. (quoting 20 20 C.F.R. § 404.1527(b)(2)(i)–(ii)) (alteration in original). The ALJ discussed none of these. Their 21 absence from the analysis here further undermines the ALJ’s reasoning on this crucial point. 22 23 24 489 AR 26. 490 AR 27. 491 AR 415 (capitalization removed) (emphasis added). 27 492 AR 420 (emphasis added). 28 493 AR 29. 25 26 ORDER — No. 3:16-cv-00748-LB 56  1 Third, the ALJ “reject[ed]” Dr. Jamasbi’s opinions partly because the physician had “relied 2 largely on” Mr. Nguyen’s “subjective complaints,” which the ALJ found “questionable at best.”494 3 “The claimant’s statements regarding his symptoms do not establish that he is disabled,” the ALJ 4 wrote.495 The ALJ discussed several problems that “undermine[d]” Mr. Nguyen’s “credibility.”496 5 In the end, the ALJ concluded that Mr. Nguyen’s “statements concerning the intensity, persistence 6 and limiting effects of these symptoms are not entirely credible . . . .”497 Among the things that 7 undermined Mr. Nguyen’s credibility, however, was the ALJ’s own observation of Mr. Nguyen at 8 the two hearings.498 The ALJ wrote: “”[D]espite his allegation of an inability to do prolonged 9 sitting, he stood for perhaps 15 seconds during the 45 minute hearing before me in November 10 2013, and sat throughout the May 2014 hearing.”499 United States District Court Northern District of California 11 This is not a “legitimate” basis for questioning Mr. Nguyen’s credibility; and so, by extension, 12 it is not a legitimate ground for rejecting Dr. Jamasbi’s opinions. The Ninth Circuit has repeatedly 13 spurned denying benefits “based on the ALJ’s observation of [the claimant], when [the claimant’s] 14 statements . . . are supported by objective evidence.” Perminter v. Heckler, 765 F.2d 870, 872 (9th 15 Cir. 1985) (the court “condemned” “[t]he ALJ’s reliance on his personal observations . . . at the 16 hearing,” characterizing it “as ‘sit and squirm’ jurisprudence”) (quoting Freeman v. Schweiker, 681 17 F.2d 727, 731 (11th Cir. 1982)). The court recognizes that the ALJ here gave other reasons for 18 doubting Mr. Nguyen’s credibility. The ALJ’s own observations perhaps played a minor role. 19 Indeed, the ALJ pointed to similar observations (about Mr. Nguyen’s ability “to sit comfortably”) 20 by Dr. Jamasbi and Dr. Kollath.500 Still, invoking his own observation to essentially override the 21 medical opinion of Dr. Jamasbi was inappropriate under Ninth Circuit precedent. 22 23 494 Id. 24 495 Id. 25 496 See AR 29–31. 497 AR 31. 498 Id. 27 499 Id. 28 500 Id. 26 ORDER — No. 3:16-cv-00748-LB 57  1 3.2 Dr. Ghannam — Depression 2 The court also remands the ALJ’s decision at step two that Mr. Nguyen’s diagnosed depression 3 did not constitute a “severe” impairment — i.e.,, one that had a “more than minimal effect” on his 4 “ability to do basic work activities.” See Powell v. Chater, 959 F. Supp. 1238, 1242 (C.D. Cal. 5 1997).501 At step two of the five-step sequential inquiry, the ALJ determines whether the claimant has a 6 7 medically severe impairment or combination of impairments. Smolen v. Chater, 80 F.3d 1273, 8 1290 (9th Cir. 1996). The ALJ must consider the record as a whole, including evidence that both 9 supports and detracts from their final decision. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998). An impairment is not severe if it does not significantly limit the claimant’s mental or 11 United States District Court Northern District of California 10 physical abilities to do basic work activities. 20 C.F.R. § 404.1521(a).502 Basic work activities are 12 “abilities and aptitudes necessary to do most jobs,” including, for example, “walking, standing, 13 sitting, lifting, pushing, pulling, reaching, carrying, or handling.” 20 C.F.R. § 404.1521(b).503 To 14 determine the severity of a mental impairment specifically, the ALJ must consider four broad 15 16 functional areas: activities of daily living; social functioning; concentration, persistence, and pace; and episodes of decompensation. 20 C.F.R. § 404.1520a.504 The problem again lies in the ALJ’s rejecting the conclusion of Mr. Nguyen’s treating 17 18 19 20 psychologist, Dr. Ghannam. The ALJ recognized that Dr. Ghannam had diagnosed Mr. Nguyen with a “profound . . . major depressive disorder.”505 The ALJ, however, chose to “give no weight to . . . Dr. Ghannam’s conclusions.”506 The ALJ first (accurately) noted the evidence that Mr. 21 22 501 23 See AR 25 (“[T]he record does not describe ‘severe’ depression or any other ‘severe’ mental impairment that significantly limited the claimant’s ability to work for 12 consecutive months.”). 24 502 25 The Social Security Administration promulgated new regulations, including a new § 404.1521, effective as of March 27, 2017. The previous version, effective to March 26, 2017, was in effect as of the date of the ALJ’s hearing. 503 See supra n.245. 504 Id. 27 505 AR 23 (citing AR 797–98). 28 506 AR 29. 26 ORDER — No. 3:16-cv-00748-LB 58  1 Ghannam’s depressive symptoms had improved with treatment.507 He also pointed to Mr. 2 Nguyen’s continuous maintenance of a commercial driver’s license and his occasional use of a 3 gym.508 Finally for present purposes, and most significantly, the ALJ found “no evidence that [Dr. 4 Ghannam] ever performed a comprehensive psychological examination of the claimant.”509 5 Beneath Dr. Ghannam’s diagnosis, the ALJ indeed saw an “absence of any objective assessment of 6 the claimant by Dr. Ghannam at any time,”510 and found the treating psychologist’s opinion 7 “unsupported by any reported positive objective findings on mental[-]status examination or 8 psychological testing.”511 This last concern, in particular, is not accurate. The record shows that in June 2012 Dr. 9 Ghannam completed a “behavioral and psychological evaluation” of Mr. Nguyen.512 In this 11 United States District Court Northern District of California 10 evaluation, “Mr. Nguyen was administered a structured clinical interview along with” three 12 “psychological questionnaires.”513 (One of these questionnaires “produced an invalid profile.”514) 13 A symptom checklist indicated that, “His overall intensity of distress is clinical nature, and 14 extremely high. His highest elevation is on the obsessive-compulsive, . . . depression, [and] 15 anxiety . . . subscales . . . .”515 Based on these test results, in connection with other considerations 16 (such as his “psychosocial history”), Dr. Ghannam arrived at his diagnosis of a “chronic” and 17 “severe” “major depressive disorder,” and “generalized anxiety disorder.”516 If this is not all purely 18 “objective,” it nonetheless is inaccurate to say that Dr. Ghannam had not made “any objective 19 assessment” or “findings” based on “psychological testing.” It is also relevant that Dr. Ghannam 20 21 507 AR 23. 22 508 AR 25. 509 AR 29. 510 AR 25. 24 511 AR 29. 25 512 AR 783–89. 513 AR 786. 514 Id. 27 515 AR 787. 28 516 Id. 23 26 ORDER — No. 3:16-cv-00748-LB 59  1 treated Mr. Nguyen, with some regularity, for almost four years. See 20 C.F.R. 2 § 404.1527(b)(2)(i)–(ii)) (disability analysis considers the length, frequency, nature, and extent of 3 the treatment relationship). In the light of governing precedent, e.g., Orn, 495 F.3d at 631–32, it is 4 also too dismissive to simply “give no weight” to the opinion of a treating psychologist who has 5 some history of personally caring for the claimant. On remand, the ALJ should reconsider his 6 assessment of Dr. Ghannam’s evaluations and ultimate diagnosis. 7 CONCLUSION 8 9 10 The court grants Mr. Nguyen’s motion and remands the case for further administrative proceedings consistent with this order. United States District Court Northern District of California 11 This disposes of ECF Nos. 15 and 21. 12 IT IS SO ORDERED. 13 Dated: March 31, 2017 ______________________________________ LAUREL BEELER United States Magistrate Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER — No. 3:16-cv-00748-LB 60 

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?