Johnson v. Colvin

Filing 20

ORDER by Judge Joseph C. Spero granting 16 Plaintiff's Motion for Summary Judgment, Denying 18 Commissioner's Motion for Summary Judgment and remanding for further proceedings. (jcslc1S, COURT STAFF) (Filed on 8/24/2017)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 ANTHONY C. JOHNSON, 7 Case No. 16-cv-01332-JCS Plaintiff, 8 v. 9 NANCY A. BERRYHILL1, 10 ORDER RE MOTIONS FOR SUMMARY JUDGMENT Re: Dkt. Nos. 16, 18 Defendant. United States District Court Northern District of California 11 12 13 I. INTRODUCTION Plaintiff Anthony C. Johnson seeks review of the final decision of Defendant Nancy A. 14 15 Berryhill, Commissioner of the Social Security Administration (the “Commissioner”) adopting the 16 June 19, 2014 decision of an Administrative Law Judge (“ALJ”) denying his application for 17 Supplemental Security Income (“SSI”) under Title XVI of the Social Security Act, 42 U.S.C. §§ 18 1381 et seq. Presently before the Court are the parties’ cross-motions for summary judgment. For 19 the reasons stated below, the Court GRANTS Johnson’s Motion for Summary Judgment 20 (“Johnson Motion”), DENIES the Commissioner’s Motion for Summary Judgment (“SSA 21 Motion”) and REMANDS the case to the Commissioner for further administrative proceedings.2 22 23 24 25 26 27 28 1 Nancy Berryhill became the Acting Commissioner of Social Security on January 23, 2017, and is therefore substituted for Carolyn W. Colvin as the Defendant in this action. See 42 U.S.C. § 405(g); Fed. R. Civ. P. 25(d). 2 The parties have consented to jurisdiction of the undersigned magistrate judge pursuant to 28 U.S.C. § 636(c). 1 II. BACKGROUND Procedural History3 2 A. 3 On September 30, 2011, Johnson applied for SSI benefits, alleging disability based on 4 chronic back pain, knee pain, a stroke-related heart condition, depression, and anxiety. 5 Administrative Record (“AR”) at 288, 422. While Johnson initially alleged a January 1, 2003 6 onset date, he subsequently amended his claim to allege an onset date of September 30, 2011. AR 7 at 422. The Social Security Administration denied Johnson’s claim on April 4, 2012, and affirmed 8 the denial on reconsideration on November 16, 2012. AR 22, 167-72, 176-181. On January 8, 9 2013, Johnson filed a written request for an administrative hearing to reconsider these denials. AR 10 22, 182-84. United States District Court Northern District of California 11 On November 25, 2013, ALJ Richard P. Laverdure held an administrative hearing. AR 12 65-72. No testimony was taken at that hearing, however, because Johnson’s previous counsel had 13 withdrawn and he was in the process of obtaining new counsel. Id. Therefore, the ALJ continued 14 the hearing to March 6, 2014. AR 73. On March 6, 2014, Johnson appeared with his new 15 counsel, Brian Hogan, and the ALJ took testimony from Johnson and a vocational expert, Mary 16 Ciddio. AR at 73-120. 17 On June 19, 2014, the ALJ issued a decision finding Johnson was not disabled. AR 19-38. 18 On August 22, 2014, Johnson requested review of the ALJ’s decision by the Social Security 19 Appeals Council. AR at 18. On January 14, 2016, the Appeals Council denied Johnson’s request 20 for review of the ALJ’s decision, making the ALJ’s decision the final decision of the 21 22 3 23 24 25 26 27 28 On July 18, 2006, Johnson submitted a prior supplemental security income (SSI) application, alleging a disability onset date of October 5, 2005. That application was denied initially and on reconsideration, and after a hearing by the same ALJ became the final decision of the Commissioner. Plaintiff did not appeal that decision. In addressing the claim that is the subject of the present action, the ALJ concluded that any presumption that might have arisen as a result of the prior finding of non-disability had been rebutted because there were changed circumstances, namely, worsening of residual functional capacity and additional severe impairments. AR 22-23. As neither party challenges that conclusion, the Court does not revisit that question here. Consequently, the Court need not address the Commissioner’s prior finding of nondisability in this Order. 2 1 Commissioner. AR at 1-4. . On Mar 17, 2016 Johnson filed this actio seeking t Court’s r rch 6, on, the review of the 2 3 Commissioner’s final decis sion. The pa arties now m move for sum mmary judgm ment. 4 B. 5 Factual Back kground 1. Personal and Vocatio . onal History y Johnson was born on January 30, 1967 and raised in Ri n o 3 d ichmond, Ca alifornia with four h 6 7 sib blings and his mother. AR at 44, 619 Johnson t s A 9. testified at th March 6, 2014 hearin that he he ng 8 dro opped out of high school after compl f l leting eleven grade. Id at 106-07, 620. Subse nth d. , equently, in 9 the 1990s, John e nson attempt to obtain his General Education Diploma (“G ted n l GED”), but f failed the test. Id. at 107, 621. Durin and short after leav ng tly ving high sch hool, Johnson received a total of 18 11 United States District Court Northern District of California 10 mo onths of train ning to be an auto mecha n anic, eventua complet ally ting his train ning and obta aining 12 cer rtification as an auto tech hnician. Id. at 44-45. Accord ding to Johns during or around 19 4, he susta son, o 989 ained a “seri ious gunshot wound to t 13 14 the back.” Id. at 46, 621. Following th injury, Jo e F his ohnson “was unable to w and und s walk derwent a 15 len ngthy rehabil litation,” but doctors wer “unable to remove bu t re o ullet fragmen from his spine, nts 16 res sulting in chr ronic pain in his back an legs that h worsened over time.” Id. at 621. n nd has d ” . Betwee the time he left high school and 20 en h 003, when h stopped w he working, John nson worked d 17 18 as a sports dire ector at a com mmunity cen in 1995, as a full-tim forklift op nter me perator for a about a year 19 in 2000 or 2001, and as an auto mechan Id. at 4 5, 54, 104. In 2003, Joh 2 nic. hnson had to quit his job o 20 as a full-time auto mechani for Midas Mufflers be a ic s ecause his ba went out due to resid shotgun ack t dual n 21 pel llets in his lo ower back. Id. at 45-46. I After 2003, Johnso attempted to return to work on thr occasion Id. at 882 on d o ree ns. -89. First, in n 22 23 200 Johnson tried to wor for a friend who owne a body sho but “coul 09, rk ed op ldn’t do it.” Id. at 88. 24 Sec cond, in 2010, Johnson attempted to help a frien who owne a body sh during a two to three a nd ed hop e 25 we stint working as an au mechani but these efforts ende when John eek uto ic, ed nson’s back and legs 26 4 27 28 While Johnso describes getting shot in 1989 at t Novembe 2008 adm W on t the er ministrative h hearing on his prior disabi s ility claim, and “in the la 1980s or early 1990s to Dr. Kal a ate s” lich, another doctor, Dr. Bay stated in an orthope evaluati that John yne, edic ion nson “sustain a gunsho wound to his back in ned ot 199 95.” See AR at 46, 541, 621. R 3 1 gav out when a car transm ve mission fell on him. Id. a 87. Third in 2013 Joh o at d, hnson attem mpted to work k 2 as an auto mechanic for a friend because his lawye had told hi that his d f er im doctor said h could go he 3 bac to work, but he stoppe working after two day when he b ck b ed a ys began exper riencing back pain. Id. k 4 at 89. Johnson friend told him that he could not r 8 n’s h return to wo without a doctor’s no due to ork ote 5 Joh hnson’s com mplaints of in ntense back pain and Joh p hnson did not resume tha work. Id. at 89. t at 6 2. Medical History . H 7 a. X-Ray and CT Sc ys cans On Mar 8, 2010, Johnson obt rch tained an x-r of his lum ray mbar spine r region, whic revealed a ch 8 9 “bu uckshot wou to the low lumbar spine center on L4 an to a lesser extent L3, b und wer s red nd r but spr reading abov and below this level.” AR at 484. Dr. Freder M. Foley noted in hi analysis ve w ” . rick y is 11 United States District Court Northern District of California 10 tha “[p]rimaril the pellet are located in the post at ly, ts d terior soft tis ssues, but som are embe me edded in the 12 pos sterior proce esses of L3 th hrough L5 and a few are located mo anteriorly some clea in the a e ore y, arly 13 sof tissues and others perh ft d haps embedd in bone.” Id. Dr. Fo summar ded ” oley rized his imp pression of 14 the x-rays as in e ndicative of “[b]uckshot pellets to th lower lum “ he mbar spine as described, w with 15 ass sociated dege enerative dis disease L3 and L4-5 Id. John sc 3-4 5.” nson also ob btained a CT scan on July y 16 21, 2010 that corroborated the presence of “innume , c e erable small 3.7 mm in diameter rou l, unded 17 pie eces of metal secondary to buckshot in [Johnson ’s] posterior lumbar spin region.” I at 485. l t r ne Id. 18 In analyzing th CT scan re he esults, Dr. L. Evan Custe stated the was a “[p L er ere p]robable pos st 19 lam minectomy, L4 level,” as well as a “[ L s [n]arrowing of the L4-5 and to a less extent, L ser L5-S1 disc 20 spa aces,” but no that “ev oted valuation of the spinal ca at the lev of L4 is impossible b t anal vel because of 21 the beam harde e ening artifacts.” Id. On Apr 25, 2011, Johnson obt ril tained x-ray s of his right knee. See 487. D Custer t Dr. 22 23 eva aluated the results, findin that “[n]o fracture or dislocation [was] presen Id. In s ng o nt.” summarizing g 24 his impressions Dr. Custer noted “[m]inimal narro s s, r owing of the medial com mpartment of the right f 25 kne associated with small joint effusio ee d on.” Id. Dr. Custer also found there to be a “bu . o e ullet 26 ove erlying the distal left fem d mur” as well as a “bipart patella.” Id.5 A follo tite ow-up CT sc of the can 27 28 5 It is unclear from the curr record when this sec t fr rent w cond gunsho wound occ ot curred. 4 1 right knee on June 2, 2011 revealed the presence of moderate degenerative disease, a 3 millimeter 2 depression possibly representative of a previous trauma, and “[s]mall suprapatellar joint effusion 3 and prepatellar subcutaneous edema.” Id. at 489. In analyzing the CT Scan, Dr. Aaron Hayashi 4 also noted a subchondral cyst located inferiorly adjacent to the tibial spine as well as a 5 “[m]ultipartite patella.” Id. 6 7 8 b. Relevant Medical Treatment Records i. Emergency Room Visit On May 30, 2010, Johnson went to the emergency room (“ER”) complaining of back pain. Id. at 440-41. During that visit, Johnson reported that he usually controlled his chronic back pain 10 with medication, but that he had been unable to pick up his Vicodin prescription because he was 11 United States District Court Northern District of California 9 told it was not yet available. AR 440. Johnson reported that he had borrowed someone else’s 12 Norco (a pain medication) because he felt it was more effective than Vicodin but came to the ER 13 because he was “unable to walk secondary to pain.” Id. Johnson’s wife at the time described 14 Johnson’s symptoms as getting worse over the last several weeks to months, coming to a head 15 when Johnson “collapse[d] secondary to pain and she found him on the floor” shortly before this 16 visit to the ER. Id. During this visit, Johnson expressed a desire to obtain physical therapy to 17 increase his day-to-day functioning and help teach his daughters martial arts. Id. Johnson 18 reported that he was able to “walk and generally function in the community at baseline,” but that 19 he did not feel like he could continue to work and he was upset by his doctors telling him that he 20 should be able to go back to work. Id. 21 22 ii. Dr. Hinman From 2010 until mid-2014, Dr. Priscilla Hinman, of Contra Costa County Health Services’ 23 Richmond Health Center, was Johnson’s primary care physician and treating doctor, having met 24 with him on at least 14 occasions between June 2010 and May 2014 to evaluate and treat 25 Johnson’s various physical and mental impairments, including chronic back pain. See id. at 528– 26 34, 538, 560–65, 592–609, 648–59. During the course of Dr. Hinman’s treatment, she ordered x- 27 rays and CT scans to be performed on Johnson, id. at 485, 487, 489, referred Johnson out for a 28 functional capacity evaluation by the Contra Costa therapists, discussed in more detail below, id. 5 1 at 430-38, referred him to a psychiatrist (Dr. Shapiro) for evaluation and treatment of depression 2 and possible PTSD, id. at 490, and prescribed a variety of medications. In her notes from a June 23, 2010 examination, Dr. Hinman listed chronic lower back pain 3 4 in her “assessment” and she noted that Johnson complained of back pain and hot flashes. Id. at 5 528. Her notes reflect that Johnson told her during that visit that his lower extremities were “not 6 numb now” because he had taken Vicodin. Id. On September 2, 2010, Dr. Hinman again noted 7 that Johnson exhibited symptoms of chronic lower back pain and depression, and continued to 8 complain of hot flashes as well as poor sleep patterns. Id. at 529. Dr. Hinman wrote in her report 9 of this visit that she had a “long discussion” with Johnson about depression, PTSD, and the potential for rehabilitation regarding alcohol abuse. Id. She also increased his Vicodin 11 United States District Court Northern District of California 10 prescription. Id. On December 2, 2010, Dr. Hinman continued to note chronic pain; she increased 12 the number of Vicodin tablets prescribed because Johnson had reported running out the previous 13 month and she also prescribed Baclofen and Amtriptyline. Id. at 531. On March 2, 2011, Johnson returned to Dr. Hinman’s office to follow up on knee swelling 14 15 that had lasted for three to four months; he also reported that his knees had locked up on him one 16 to two weeks prior. Id. at 533. On March 11, 2011, Johnson was seen by a health care provider at 17 Richmond Health Services. Id. at 532.6 Johnson reportedly was seeking additional pain 18 medication because he had run out of his prescribed medications. Id. He told the health care 19 provider that he wanted to go to the hospital because of his back pain and because his legs were 20 giving out. Id. 21 On April 21, 2011, Dr. Hinman referred Johnson to a “psychological liaison” “for the 22 purpose of clarifying his diagnosis, clarifying whether meds would be of any assistance, and 23 whether psychotherapy would be helpful.” Id. at 490. In the referral, Dr. Hinman began by noting 24 that Johnson “has chronic pain as the result of [gunshot wounds],” and is currently being treated 25 with medication for his physical pain. Id. Dr. Hinman went on to describe the psychological 26 27 28 6 The name of the provider is not listed on the notes and the signature is illegible. The signature line carries a notation “D/W/ Dr. Hinman,” which the Court interprets as “discussed with Dr. Hinman.” AR at 532. 6 1 symptoms she witnessed during her prior visits with Johnson, stating: “[h]aving seen the patient 2 over several visits, it appears to me that he is fairly depressed and is fairly focused on his pain and 3 feels victimized,” going on to state that Johnson “probably has PTSD, and in general seems to 4 have a pretty low quality of life.” Id. Dr. Hinman states that in her appointments with Johnson, 5 “[they] have talked about the impact that [Johnson’s] depression and PTSD may be having on his 6 chronic pain as well as the rest of his life” and that Johnson is “agreeable to a referral to a consult 7 liaison.” Id. As a result of this consultation request, Johnson obtained a psychological evaluation 8 from Dr. Shapiro, discussed in more detail below, resulting in a prescription for Risperdal to treat 9 Johnson’s depression. See id. at 572–74. 10 Dr. Hinman examined Johnson again on July 21, 2011. Id. at 534. Johnson told her that United States District Court Northern District of California 11 he had fallen a few days earlier and hadn’t gotten up because his back was hurting; he reported 12 that he took pain medication and eventually got up. Id. Dr. Hinman listed chronic back pain and 13 depression in the “assessment” section of her notes. Id. In her notes for an October 31, 2011 14 visit, Dr. Hinman wrote that Johnson was experiencing “more pain” especially at night and the 15 back pain was of a “changed character.” Id. at 538. She also noted that Johnson’s Risperdal 16 prescription was making him “more relaxed.” Id. 17 At a February 29, 2012 visit with Dr. Hinman, Johnson reported that he was falling due to 18 his legs giving out, that he was experiencing numbness and severe pain in his lower extremities, 19 and that it “hurts too much to stand.” Id. at 560. Dr. Hinman referred Johnson for physical 20 therapy for a “TENS” unit (a transcutaneous electrical nerve stimulator) to address his pain. Id. 21 On May 30, 2012, Johnson was seen again by Dr. Hinman. Id. at 562. The notes from the visit 22 reflect that Johnson and Dr. Hinman discussed stress associated with a custody fight for two of 23 children and his chronic pain. Id. Her “assessment” lists “mood [disorder]” and states that 24 Johnson “seem[ed] ambivalent about counseling.” Id. 25 On September 13, 2012, Dr. Hinman wrote up a progress report regarding Johnson’s 26 symptoms following a visit on August 29, 2012. Id. at 563-65. In relevant part, Dr. Hinman 27 found that Johnson was still experiencing chronic back pain, that he had hypertension, and that he 28 was continuing to exhibit a mood disorder. Id. at 563-64. Dr. Hinman noted that Johnson was 7 1 under a lot of stress due to a custody battle for two of his children. Id. at 563. She also wrote that 2 Johnson was “going to court, known to have anger issues, court wants him to get back on psych 3 med. Risperidone helps him control anger/irritability, insomnia.” Id. Dr. Hinman prescribed 4 Risperidone for Johnson for his depression in addition to renewing prescriptions for pain 5 medication (amitriptyline and baclofen) and medication for his cholesterol. Id. 6 On February 27, 2013, Dr. Hinman saw Johnson for “muscle spasm on the leg and [b]ack 7 with pain level of 8/10.” Id. at 593. Dr. Hinman wrote, “Chronic low back pain worse muscle 8 spasm, nerves jumpy, ‘possible’ stress . . . .” Id. Dr. Hinman noted that Johnson was “pleasant 9 and engaged” during their encounter with “no apparent distress,” but also assessed him as still suffering from hypertension, mood disorder, and chronic pain disorder. Id. at 594. Dr. Hinman 11 United States District Court Northern District of California 10 referred Johnson to a stress management group and arranged for a Health Coach Intern to follow 12 up if he did not attend to schedule individual sessions. Id. 13 On April 3, 2013, Johnson had another appointment with Dr. Hinman in which he 14 complained of muscle spasms of the back and legs. Id. at 595. Dr. Hinman noted that Johnson 15 had been “having more pain for 2 days, muscle spasms in back and legs” and that baclofen 16 “help[ed] briefly” but that he “sleeps poorly often, either due to pain or just not falling asleep.” Id. 17 She also noted that he continued to have “lots of family issues” and that “ongoing stressors 18 impact[ed] [Johnson’s] mood.” Id. 19 On May 1, 2013, Johnson saw Dr. Hinman for a follow up appointment, complaining of 20 “increased back pain for 5 days,” among other things. Id. at 598. At a November 5, 2013 21 appointment, Johnson told Dr. Hinman that his back pain had increased. Id. at 608. He told her 22 he had tried to work for a friend in an automotive shop but had to stop after two days “due to 23 pain.” Id. She also wrote, “[p]ain goes down both legs, excruciating with pins and needles, so 24 can’t stand up and walk sometimes.” Id. 25 On January 7, 2014, Dr. Hinman saw Johnson again for back pain, among other things. 26 AR at 649. He told her that after he had stood up too fast, about two weeks before, his “mid lower 27 back started hurting bad” and had been hurting ever since. Id. He reported that he was taking six 28 doses of hydrocodone (Vicodin) a day during this period instead of the four daily does prescribed 8 1 and asked for an “early refill.” Id. Dr. Hinman noted that Johnson had never asked for an early 2 refill before. Id. She had Johnson undergo drug screening in connection with a “new pain 3 management contract.” Id. Because the screening test came out negative, she agreed to refill 4 Johnson’s hydrocodone prescription early with “10 extra just for this month.” Id. at 650. The 5 “assessment” for this visit listed, among other things, “chronic pain disorder,” “chronic back 6 pain,” and “[n]octurnal leg cramps.” Id. 7 Notes from a visit to Dr. Hinman on May 5, 2014 reflect that Johnson had been having 8 back pain for a month and that he had experienced “severe back pain” the previous month after a 9 period of coughing. Id. at 652. He also told Dr. Hinman that he got “stressed out” and couldn’t 10 United States District Court Northern District of California 11 12 “deal with anyone” when his back hurt. Id. iii. Dr. Shapiro On August 4, 2011, at the referral of Dr. Hinman, Richmond Health Center’s Dr. Eileen 13 Shapiro conducted a psychiatric examination of Johnson to address Dr. Hinman’s concerns about 14 his “irritability” and to “[r]ule out PTSD and depression secondary to chronic pain.” Id. at 492. 15 Dr. Shapiro noted that Johnson’s “chief complaint” was that he was having a “lot of stress” and 16 drinking more since his nephew was killed. Id. Dr. Shapiro noted that Johnson had a “long 17 history of a volatile personality.” Id. According to Dr. Shapiro, Johnson told her that he became 18 “very angry and easily irritated when people [were] unable to remember directions he ha[d] given 19 them,” and that his irritability had increased since he began taking amitriptyline. Id. She noted, 20 however, that since starting the amitriptyline Johnson’s muscle spasms had gone away and he was 21 sleeping through the night without having to take Trazodone. Id. Dr. Shapiro wrote that Johnson 22 had “no plans of self-harm or harm to others.” Id. 23 Dr. Shapiro’s AXIS I diagnosis was as follows: “1. Mood disorder, not otherwise 24 specified, rule out bipolar disorder, rule out substance-induced mood disorder (amitriptyline 25 versus ETOH). 2. ETOH dependence in early sustained remission.” Id. at 493. On AXIS II, Dr. 26 Shapiro found that Johnson had antisocial traits. On AXIS V, she gave Johnson a global 27 assessment of functioning (“GAF”) of 60. Id. To help “stabilize mood and irritability that has 28 increased since on the amitriptyline,” and to counter its “induced irritability mania,” Dr. Shapiro 9 1 prescribed Johnson a low dosage of Risperdal. Id. On September 6, 2011, Johnson had a follow-up appointment with Dr. Shapiro. Id. at 535. 2 3 Johnson reported that he had been doing well over the past month on Risperdal. Id. Dr. Shapiro 4 described Johnson as “calm and cooperative” and noted that his mood was “good” and his affect 5 congruent. Id. Johnson told Dr. Shapiro that he had “been able to walk away rather than engage 6 in argument.” Id. Dr. Shapiro continued Johnson’s Risperdal. Id. Johnson saw Dr. Shapiro again on October 27, 201. Id. at 536. Dr. Shapiro’s notes reflect 7 8 that Johnson’s mood was “not good” and his affect was irritated. Id. Johnson told Dr. Shapiro 9 that he was having relationship issues and was seeing his own therapist. Id. He told her that he was drinking alcohol and that he was having “inconsistent or demanding behaviors.” Id. Dr. 11 United States District Court Northern District of California 10 Shapiro wrote that Johnson was having mood swings and irritability as a result of the 12 unpredictability of his relationship. Id. Dr. Shapiro increased Johnson’s prescription of Risperdal. 13 Id. 14 Johnson saw Dr. Shapiro again on January 10, 2012. Id. at 558–59. At this appointment, 15 Dr. Shapiro noted that Johnson was doing “ok,” but that he exhibited frustration during the 16 appointment while discussing his relationship issues. Id. at 558. Dr. Shapiro renewed Johnson’s 17 Risperdal prescription and recommended a follow up appointment with Dr. Hinman. Id. at 559. 18 19 iv. Additional Treatment Records On August 5, 2011, Johnson received orthopedic services from Dr. David F. Osborne at 20 the Richmond Health Center. Id. at 491. In his notes of the visit Dr. Osborne stated that 21 Johnson’s “right knee looks arthritic,” he has no effusion, there is a mild varus deformity, and he 22 has “palpable medial osteophytes bilaterally.” Id. Dr. Osborne also noted Johnson has a “full 23 range of motion.” Id. Dr. Osborne recommended that Johnson “keep[] his legs strong” by cycling 24 or some other exercise. See id. 25 On February 27, 2013, Johnson met with health coach Emma Hiatt regarding his ongoing 26 stressors, which included “relationship and child-custody issues.” Id. at 593. During this visit, at 27 Ms. Hiatt’s suggestion, Johnson agreed to attend group stress management sessions, exploring 28 individual sessions as needed. Id. Ms. Hiatt provided Johnson with a referral to the stress 10 1 management group and information on these sessions. Id. . c. Consultative Medical Statements and Evaluations 2 3 i. Functional Capacity Evaluation On November 1, 2010, at the referral of Johnson’s treating physician, Dr. Hinman, 4 5 Johnson was evaluated by Jeff R. Kaufman, OT/L, Mary Martin, DPT, and Karen Rodrigues, 6 OT/L7 of the Contra Costa Regional Medical Center (collectively, “Contra Costa therapists”) to 7 determine his residual functional capacity (“RFC”). Id. at 430-38. The “Summary” section of the 8 report states that Johnson “demonstrated the ability to perform all of the simulation tasks,” and 9 completed the testing “in approximately three hours with rest periods consisting of sitting between each subtest.” Id. at 430 (emphasis in original). It further states that the four activities and 11 United States District Court Northern District of California 10 postures that “appeared to significantly increase patient’s pain” were: 12 1. 2. 3. 4. 13 14 Lifting/Carrying loads weighing 20 lbs. or heavier. Static Standing beyond approximately six minutes. Pushing/Pulling dynamic loads weighing 75 lbs. or heavier. Stair descent and ascent. 15 Id. It went on to state that “[m]uscoloskeletal evaluative tests indicated fair to excellent strength 16 and limited range of motion with pain.” Id. at 430. Johnson’s maximum physical capacity for 17 lifting was found to be “sedentary/light (15 pounds) with limited functional range” and for 18 carrying was 15 pounds. Id. According to the report, Johnson’s “report of pain was four through 19 6/10 initially with numbness and tingling and 7 through 9/10 with increased areas of numbness 20 and tingling upon completion.” Id. When testing Johnson’s position tolerances, the Contra Costa 21 therapists found that Johnson was able to crouch and stoop, but could only stoop half way because 22 it was “very painful to low back.” Id. at 432. Johnson was unable to kneel and did not attempt to 23 squat due to low back pain. Id. With respect to his palpation, Johnson was tender around scarred 24 tissue and the entire low back and left gluteal regions. Id. The Contra Costa therapists also noted 25 that Johnson had “[v]ery limited tissue mobility at site of wound in lumbar spine.” Id. The Contra 26 27 28 7 Although the evaluators listed at the beginning of the report are Jeff R. Kaufman and Mary Martin, the signatures at the end of the report are those of Jeff R. Kaufman and Karen Rodrigues. AR at 430, 436. The reason for this discrepancy is not apparent from the record. 11 1 Costa therapists found that Johnson was within normal limits for active range of motion except for 2 bilateral hamstring tightness, only 15 degree rotation for the right hip both internally and 3 externally, and that they were unable to assess left hip due to lower back pain. Id. 4 During testing, Johnson had to take Vicodin due to increased low back pain and was “very 5 irritable.” Id. at 432. During his functional activities Johnson was able to sit for 30 minutes and 6 stand for 6 minutes, but complained of pain at 7/10 after sitting and 8-9/10 after standing, forcing 7 Johnson to discontinue the subtests. Id. at 435. While Johnson was able to push a 75-pound load 8 on a 4-wheel cart, Johnson was “straining when pulling,” and complained of 9/10 pain in the left 9 sacrum after the test. Id. Finally, Johnson was able to ambulate 600 feet on level ground and four flights of stairs, but did so with “significant difficulty.” Id. Johnson also displayed slow stair 11 United States District Court Northern District of California 10 descent, antalgic gait on level ground, and significantly decreased stair ascent pace, complaining 12 of pain ranging from 7 to 9 out of 10 while performing these activities. Id. 13 As instructed, Johnson called the evaluators on the telephone after the examination to 14 report his post-test symptoms. AR 436. He reported that his pain was a 10/10 that evening, that 15 he had difficulty walking after the testing, that he had to take Norco, Naproxen, and Percocet for 16 the pain, and that he had difficulty sleeping that night and was “tossing and turning” in bed. Id. 17 18 ii. Dr. Bayne’s Orthopedic Evaluation On March 6, 2012, at the request of the SSA in conjunction with the current proceedings, 19 Dr. Omar C. Bayne at the Bayview Medical Clinic conducted a consultative orthopedic 20 examination to evaluate the scope of Johnson’s physical limitations. Id. at 541-43. In his 21 evaluation, Dr. Bayne described Johnson’s history of chronic back pain stemming from shotgun 22 pellets lodged in his back, noting that this “back pain is aggravated when he walks for more than a 23 block, with bending, twisting, crouching or crawling.” Id. at 541. Dr. Bayne stated that at the 24 time of the examination, Johnson had been “conservatively” treated for his chronic back pain 25 through physical therapy, pain medications, anti-inflammatory medications. Id. He noted that 26 Johnson’s back pain was aggravated when he walked for more than a block and that he used a 27 cane when he walked more than two to three blocks. Id. Dr. Bayne also stated that Johnson 28 complained of “chronic left knee pain” and been told that he had arthritis in his left knee. Id. Dr. 12 1 Bayne stated that Johnson had “problems climbing up and down stairs, squatting, crawling and 2 stopping, as well as kneeling on his left knee.” Id. With respect to both Johnson’s back and knee 3 pain, Dr. Bayne noted that Johnson’s pain was alleviated “when he takes pain medications and 4 anti-inflammatory medication and avoids aggravating factors.” Id. 5 Dr. Bayne described Johnson as a healthy 45-year-old claimant who was well groomed, 6 pleasant, and cooperative throughout the examination and appeared to be in no acute distress at the 7 time of the examination. Id. With respect to his physical limitations, Dr. Bayne found that 8 Johnson “was able to sit and get up from a sitting to standing position without difficulty,” as well 9 as walk on his heels and toes and squat 50 percent of normal. Id. at 542. Dr. Bayne also noted normal range of movement, muscle strength, and sensation in Johnson’s neck and upper 11 United States District Court Northern District of California 10 extremities. Id. For Johnson’s back and lower extremities, Dr. Bayne found “significant lumbar 12 muscle spasms bilaterally” as well as “palpable” pedal pulses, a limited range of movement in the 13 back and left knee, and a full range of movement in [Johnson’s] hips, right knee and both ankles.” 14 Id. Dr. Bayne also found that Johnson had normal muscle strength and sensations in all lower 15 extremities, with the exception of “decreased sensation over the L5 dermatome in the lateral 16 aspect of the left calf and dorsum of the left foot” and a tenderness to palpation in medial and 17 patellofemoral compartments of his left knee. Id. at 542-543. 18 Dr. Bayne diagnosed Johnson with “[c]hronic recurrent back pain and spasms, status post 19 shotgun wound blast to the low back with residual L4-L5 left radiculopathy,” “[l]eft knee pain 20 secondary to internal derangement” of his left knee, and possible arthritis in Johnson’s left knee,” 21 and “history of depression . . . anxiety . . . [and] insomnia.” Id. at 543. 22 and Recommendations” section of the evaluation, Dr. Bayne found as follows: 23 24 25 26 27 28 Id. In the “Functionality He has no gross visual, hearing, or speech impairment. He should be able to converse, communicate, understand, read and write in English. He should be able to drive or take public transportation. He should be able to stand and walk with appropriate breaks for four hours during an 8-hour workday. He should be able to sit with appropriate breaks for six hours during an 8-hour workday. Repetitive bending, twisting, crouching, crawling, stooping, kneeling, climbing up and down stairs, inclines, ramps or ladders should be limited to occasionally. He should be able to lift and carry 20 pounds frequently and 40 pounds occasionally. There are no restrictions in performing bilateral repetitive leg, ankle and foot 13 1 2 3 control frequently. He should be able to perform bilateral repetitive finger, hand and wrist manipulations or bilateral repetitive hand tasks frequently. There are no restrictions in gripping, grasping, pushing and pulling or working with both hands above the shoulder level. He should be able to work in any work environment except on unprotected heights. 4 Id. In his evaluation, Dr. Bayne does not address what the term “appropriate breaks” means for 5 Johnson. See id. Although the Administrative Record contains reports from multiple x-rays and 6 CT scans of Johnson’s back and knees, see id. at 483-489, Dr. Bayne did not review them, stating 7 that “[t]here were no x-rays or MRI studies on this claimant for [him] to review.” 8 iii. Dr. Kalich’s Psychological Evaluation On February 26, 2014, on the referral of Johnson’s prior counsel, Dr. Lisa Kalich 10 completed a psychological evaluation of Johnson. Id. at 619-627. Her evaluation was based on 11 United States District Court Northern District of California 9 review of Johnson’s medical records, a clinical interview, and performance of the Wechsler Adult 12 Intelligence Scale and a Test of Memory Malingering. Id. at 619. 13 In her description of Johnson’s social history, Dr. Kalich wrote that Johnson “described a 14 difficult childhood that was marked by trauma and disruption.” Id. Johnson reported to Dr. 15 Kalich that he began drinking alcohol at the age of 18 and that he spent much of his early 16 adulthood drinking large quantities of alcohol every day. Id. Johnson told Dr. Kalich that after 17 getting shot in the back, his use of alcohol increased further, as he began to mix alcohol with his 18 prescription pain medications to help alleviate his pain symptoms. Id. at 621. During this period 19 of heavy alcohol use, Johnson “incurred six DUIs and reported blacking out on one occasion.” Id. 20 Johnson told Dr. Kalich that over the past five to ten years, he had attempted to cut back on his 21 alcohol consumption, though he had increased his alcohol consumption “for a short period of 22 time” during a prior relationship due to his ex-girlfriend’s lifestyle and heavy use of hard liquor. 23 Id. Johnson reported that he was currently consuming somewhere between one and three beers 24 approximately every other day. Id. at 101, 621. Johnson told Dr. Kalich that he had briefly 25 experimented with marijuana in his youth. Id. at 622. He denied the use or experimentation with 26 any other illegal drug, but acknowledged selling cocaine in the late 1980s. Id. 27 28 Dr. Kalich wrote that Johnson reported symptoms of depression and that his medical records also reflect a history of chronic irritability, depression and difficulty sleeping. Id. 14 1 Johnson told Dr. Kalich that his depression has worsened as a result of his physical limitations and 2 chronic pain. Id. at 622, 629. For example, Johnson told Dr. Kalich that “Nothing’s going right. I 3 can’t do things that I used to . . . it feels like something is draining my life force.” Id. at 622. 4 According to Dr. Kalich, the combination of his physical impairments and depression had also led 5 Johnson to neglect self-care or hygiene, as he no longer cared about his physical appearance. Id. 6 Johnson told Dr. Kalich that “several days per week” he doesn’t feel like getting out of bed in the 7 morning and experiences sleep and appetite disturbance as a result of his symptoms. Id. Dr. 8 Kalich wrote that Johnson’s depression came to a head in 2013 when he attempted to commit 9 suicide by swallowing a bottle of sleeping pills before his girlfriend at the time discovered this attempt and forced him to vomit the pills out. Id. Johnson told Dr. Kalich that he had not thought 11 United States District Court Northern District of California 10 of harming himself since he attempted suicide in 2013, but that he has “continued to wish that he 12 was dead,” often having thoughts such as “I shouldn’t even be here” or “I’m here for nothing.” Id. 13 Johnson described his current day-to-day functioning as “significantly impacted by his 14 experience of chronic pain.” Id. at 620. Johnson reported that he was residing with his girlfriend 15 and their three children. Id. He reported having difficulty sleeping, and that when he is awake 16 spends most of the day watching television or playing videogames. Id. Johnson told Dr. Kalich 17 that “his energy level is that of an elderly man,” and that while he attempts to help out with chores 18 around the house such as washing the dishes, helping with his children, or cleaning the bathroom, 19 his ability to perform these tasks is generally limited by his chronic pain. Id. 20 With respect to her behavioral observations, Dr. Kalich described Johnson as maintaining 21 “good” eye contact, exhibiting “evenly paced and easily understood” speech, engaging in “linear” 22 thinking. Id. at 623. Dr. Kalich also noted that Johnson was “soft-spoken and cooperative” but 23 that “his mood appeared depressed, and his affect was relatively flat.” Id. Johnson told Dr. Kalich 24 that he was sad much of the time, though he denied a current plan or intent to harm himself or end 25 his life. Id. 26 Dr. Kalich conducted a Wechsler Adult Intelligence Scale-IV (WAIS-IV) test to determine 27 Johnson’s cognitive ability in four global areas of functioning: verbal comprehension, perceptual 28 reasoning, working memory, and processing speed. Id. at 623–24. Whereas a score of 100 is the 15 1 mean with a standard deviation of 15, Johnson received a verbal comprehension score of 80 or 2 “low average,” a perceptual reasoning score of 75 or “borderline” functioning, a working memory 3 score of 69 or “extremely low” functioning, and processing speed score of 79 or “borderline.” Id. 4 Johnson received a Full Scale score of 71, which qualified as “borderline,” and fell within the 3rd 5 percentile of individuals in his age range. Id. at 624. 6 Dr. Kalich also performed a Test of Memory Malingering (“TOMM”), a test designed to 7 distinguish between individuals with a “bona fide memory impairment” and “those who are 8 feigning or exaggerating their symptoms.” Id. She explained in her report that a score of less 9 than 25 on any trial of the TOMM “indicates the possibility of malingering,” as does scoring less than 45 on Trial two or the Retention Trial. Id. Conversely, “performance on Trial Two is 11 United States District Court Northern District of California 10 typically very high for non-malingerers.” Id. Johnson scored a 48 on Trial One of the TOMM 12 and 50 on Trial Two. Id. Based on these scores, Dr. Kalich concluded that Johnson was “putting 13 forth optimal effort” and was not “feigning or exaggerating” his symptoms. Id. She also noted 14 that even if there were a finding of malingering as to memory (which she did not find as to 15 Johnson), malingering with respect to memory does not necessarily mean a claimant malingers 16 with respect to reporting psychological distress. Id. 17 On the basis of clinical interviews, behavioral observations, and psychological testing, Dr. 18 Kalich concluded that Johnson’s reports of “pessimism, lack of energy, loss of interest in activities 19 he previously enjoyed, and sleep and appetite disturbance,” Johnson’s past suicidal ideation and 20 attempted suicide, and his “exhibition of a depressed affect,” all supported a finding of depressive 21 disorder. Id. at 625. Dr. Kalich found that “Johnson’s current experience of chronic pain likely 22 impacts his experience of major depression,” in a manner such that “an increase or exacerbation in 23 his physical ailments often leads to an increase in his depressive symptoms.” Id. Dr. Kalich also 24 noted that Johnson’s history of alcohol dependence “may have exacerbated Mr. Johnson’s mood 25 symptoms,” making it “difficult to distinguish with certainty any mood symptoms that may have 26 occurred during the period of time when Mr. Johnson was using alcohol heavily.” Id. She went 27 on to note, however, that Johnson’s use of alcohol had decreased and that “despite this decreased 28 use, his depressive symptoms have persisted, suggesting that it is unlikely that his symptoms are 16 1 2 the sole product of his use.” Id. In addition, Dr. Kalich concluded that Johnson “meets criteria for Borderline Intellectual 3 Functioning,” and that some antisocial traits were present, though Johnson did not appear to meet 4 the full criteria for Antisocial Personality Disorder. Id. With respect to Borderline Intellectual 5 Functioning, Dr. Kalich found that Johnson’s full scale IQ falls within the borderline range, and 6 reports of special education placement, limited academic achievement, and an inability to obtain 7 the GED all support this conclusion. Id. With respect to Antisocial Personality Disorder, Dr. 8 Kalich noted that while Johnson described a history of aggression, anger issues, and criminal 9 activity, his current antisocial traits “are less pervasive.” Id. Dr. Kalich emphasized, however, that “it is evident that [Johnson] is vulnerable to engaging in threatening behavior when he 11 United States District Court Northern District of California 10 becomes irritated or angry.” Id. 12 In analyzing the impact of these mental impairments on Johnson’s ability to perform work 13 related tasks, Dr. Kalich once again emphasized the “synergistic” relationship between Johnson’s 14 chronic physical pain and depression, making it “difficult to identify the deficits in [Johnson’s] 15 daily functioning that are due solely to his psychological symptoms.” Id. at 626. In assessing 16 Johnson’s work-related abilities, Dr. Kalich noted moderate or marked impairments in three 17 categories. Id. First, Dr. Kalich found that Johnson experiences “moderate” limitations to his 18 “activities of daily living” due to his depression, in that he “may lack the motivation and energy to 19 engage in chores and other activities,” has previously exhibited poor hygiene and self-care, and 20 often has difficulty getting out of bed. Id. Second, Dr. Kalich found that Johnson has “moderate” 21 deficits to “social functioning” as exhibited by his history of aggression and violence towards 22 others, increased irritability due to chronic pain, and his threats towards romantic partners. Id. 23 Third, Dr. Kalich described Johnson’s “impairment with regard to attention and concentration,” as 24 “moderate,” as indicated by his WAIS-IV results. Id. Dr. Kalich also found that Johnson’s 25 “irritability and depressed mood suggest that his ability to persist in a task would be “moderately 26 to markedly impaired.” Id. Finally, Dr. Kalich noted that Johnson has experienced depression 27 linked with limitations in functioning that “would be consistent with an episode of 28 decompensation,” highlighting that Johnson “experienced an episode of severe decompensation in 17 1 the recent past, when he attempted suicide by overdosing.” Id. Dr. Kalich further opined that 2 Johnson’s emotional state is “vulnerable,” that his depression may intensify over time due to his 3 ongoing pain, and that “problematic personality traits” may complicate his emotional symptoms. 4 Id. 5 iv. Dr. Hinman’s Letter On April 30, 2014, after the March 6, 2014 hearing before the ALJ (discussed below), Dr. 6 7 Hinman wrote a medical opinion letter reviewing the medical evaluations by Dr. Bayne and Dr. 8 Kalich as well as providing her own medical opinion regarding Johnson’s physical and mental 9 impairments on the basis of her own experiences as Johnson’s treating physician. Id. at 628-29. As an initial matter, Dr. Hinman stated that while an MRI “could be helpful for [Johnson’s] 11 United States District Court Northern District of California 10 disability case,” the use of this technology is “contraindicated for individuals with shotgun 12 wounds” such as Johnson because the shotgun pellets “may be ferromagnetic.” Id. at 628. From 13 the CT Scans and X-rays, Dr. Hinman states “we can see buckshot pellets embedded in the spine 14 and surrounding soft tissue at L3, L4, and L5,” as well as “degenerative disc disease at these 15 locations.” Id. Additionally, Dr. Hinman noted that while “[w]e cannot definitively say nerve 16 roots are compromised without MRI studies or surgical intervention,” Johnson’s “clinical findings 17 are consistent with nerve irritation or a lesion secondary to either a foreign body or [degenerative 18 disc disease].” Id. On this basis, Dr. Hinman agreed with Dr. Bayne’s assessment of L4-L5 19 radiculopathy, explaining that “Dr. Bayne’s examination of Mr. Johnson’s lower back is consistent 20 with [Dr. Hinman’s] observations during the past 3+ years as this patient’s primary care doctor.” 21 Id. 22 Dr. Hinman disagreed, however, with Dr. Bayne’s assessment regarding Johnson’s 23 functionality because it “appears quite conservative” and differed from the functional capacity 24 evaluation performed by the Contra Costa therapists, who “observed a positive SLR, decreased 25 sensation of the [left lower extremity], reduced [range of motion], and decreased muscle strength 26 of the [left lower extremity]. Id. Instead, Dr. Hinman agreed with the findings of the Contra 27 Costa therapists, which she found to differ from those of Dr. Bayne, because their opinions were 28 “based on actual observations of [Johnson’s] functionality in a simulated work environment” and 18 1 were “more consistent with [her] clinical observations of Mr. Johnson during the last 3+ years.” 2 Id. Based on these clinical observations and her medical expertise generally, Dr. Hinman 3 described Johnson’s physical limitations as follows: 4 It is reasonable to conclude that [Johnson] can lift and carry up to 15 pounds. He can likely sit for 4 to 6 hours in an 8-hour day with breaks every 30-45 minutes if necessary due to muscle spasms or cramping. He can only engage in prolonged standing and walking for brief 15 minute periods, for a total of 1-2 hours in an 8-hour day. He should limit repetitive bending, twisting, crouching, crawling, stooping, kneeling, climbing up and down stairs, inclines, ramps or ladders to rare occasions, if possible.” 5 6 7 8 9 Id. at 629. Dr. Hinman also stated that while she had primarily treated Johnson in the clinic for his 11 United States District Court Northern District of California 10 “chronic pain condition,” she was also concerned with his mental health prompting her referral 12 for a psychiatric evaluation and treatment, as discussed above. Id. Dr. Hinman agreed with Dr. 13 Kalich’s conclusions in her psychological evaluation, finding the evaluation to be “quite 14 thoughtful in its level of detail.” Id. She acknowledged that the administration and interpretation 15 of cognitive testing was outside of her training and therefore, she “defer[red] to the psychologist.” 16 Id. She noted, however, that she found “little reason to doubt Dr. Kalich’s judgment concerning 17 [Johnson’s] work related abilities from a psychological standpoint,” finding her diagnoses of 18 moderate difficulty maintaining stability in social interactions, and moderate to marked difficulty 19 with persistence to be reasonable in light of Johnson’s chronic pain. Id. Dr. Hinman noted that 20 Dr. Kalich’s diagnoses regarding Johnson’s depressive disorder were consistent with her own 21 observations as well as prior diagnoses of mood disorder in Johnson. Id. 22 v. State Agency Doctors’ Opinions 23 24 The Administrative Record contains opinions of a number of State Agency doctors based on their review of Johnson’s medical records. 25 In an assessment dated March 6, 2012, Dr. Jone found that Johnson was limited to 26 occasional (up to 1/3 of the workday) lifting and/or carrying up to 20 pounds and frequent (up to 27 2/3 of the workday) lifting and/or carrying of up to 10 pounds, with unlimited ability to operate 28 hand or foot controls. Id. at 141. Dr. Jone also found that Johnson had the capacity to sit, stand, 19 1 and/or walk “with normal breaks” for “about 6 hours in an 8-hour workday.” Id. With respect to 2 Johnson’s postural limitations, Dr. Jone found that Johnson could frequently climb ramps and 3 stairs, stoop, and maintain balance, but could only occasionally climb ladders, ropes, or scaffolds, 4 kneel, crouch, or crawl. Id. at 142. Dr. Jone found Johnson had no manipulative, visual, 5 communicative, or environmental limitations. Id. 6 In an assessment dated March 2, 2012, Dr. Kravatz addressed Johnson’s mental residual 7 functional capacity. Id. at 143-144. Dr. Kravatz found that Johnson had some limitations to his 8 understanding and memory, sustained concentration and persistence, and social interactions, but 9 that he did not have adaptation limitations. Id. Dr. Kravatz found that Johnson was moderately limited in his ability to understand and remember detailed instructions, but not limited in his 11 United States District Court Northern District of California 10 ability to remember locations and work-like procedures or to understand and remember very short 12 and simple instructions necessary to “carry out simple and some detailed work related tasks over a 13 40 [hour] workweek.” Id. at 143. With respect to concentration and persistence, Dr. Kravatz 14 found that Johnson was moderately limited in his ability to carry out detailed instructions and 15 work in coordination with or in proximity to others without being distracted, but that he was not 16 significantly limited in his ability to carry out simple instructions, perform activities within a 17 schedule and maintain regular attendance, sustain an ordinary routine without supervision, make 18 simple work-related decisions, or complete a normal workday and workweek without interruptions 19 from psychological symptoms. Id. With respect to limitations in social interactions, Dr. Kravatz 20 found Johnson was moderately limited in his ability to interact appropriately with the general 21 public, but had no significant limitations with respect to his abilities to ask simple questions or 22 request assistance, accept instructions and respond appropriately to criticism from supervisors, get 23 along with coworkers or peers without distracting them, or maintain socially appropriate behavior 24 and adhere to basic standards of neatness and cleanliness. Dr. Kravatz concluded that Johnson had 25 “some irritability” that would limit him to only occasional contacts with coworkers and the 26 general public, but that Johnson “would relate to supervisors.” Id. at 144. 27 Dr. Rudnick similarly found that Johnson had some limitations with respect to his 28 understanding and memory, sustained concentration and persistence, and social interactions, but 20 1 tha he did not have adapta at ation limitations. Id. at 1 159–60. Wit respect to understandi and th o ing 2 me emory, Dr. Rudnick agre with Dr. Kravatz’s as R eed ssessment of Johnson’s limitations a f and 3 con ncluded that Johnson “is able to understand, rem s member, follo and perfo uncomp ow orm plicated three e 4 step instruction and tasks.” Id. at 159. In the area of concentr p ns a ration and persistence, D Rudnick Dr. 5 agr reed with Dr Kravatz ex r. xcept that he also found J Johnson to b moderatel limited in his ability be ly n 6 to complete a normal work c n kday and wor rkweek with hout interrup ptions from p psychologica based ally 7 sym mptoms and to perform at a consistent pace with a hout an unrea asonable num mber and len ngth of rest 8 per riods. Id. at 159–60. Dr. Rudnick found that w D f while Johnson would hav some conc n ve centration 9 and persistence difficulties he “can still persist, att d e s, tend and ma aintain accep ptable pace fo a normal for wo schedule. Id. at 160 With respect to social interaction limitations, Dr. Rudnick found ork .” 0. l k 11 United States District Court Northern District of California 10 Joh hnson has so “irritabil that wou be associ ome lity uld iated with so social d ome difficulties,” but that he 12 “re emains able to accept sup t pervision and to success fully engage in superfici work task related e ial k 13 inte erpersonal in nteractions.” Id. ” 14 15 3. Function Reports . On Dec cember 13, 2011, Johnso completed a Function Report in su 2 on d n upport of his current s 16 dis sability claim Id. at 365 m. 5-72. Johnso described his daily ac on d ctivities as ge etting up to t take his pills s 17 and trying to help clean the house, but stated that h “can’t do that [for] too long witho [his] d e he o out 18 bac [hurting].” Id. at 365. Jonson sta that the pain he expe ck ated eriences at n night makes it difficult to o 19 fall asleep and wakes him up during th night as w l u he well. Id. at 36 With res 66. spect to daily chores and y d 20 tasks, Johnson stated that he cannot pre h epare meals because he c cannot stay on his feet lo enough ong 21 to do so, and th while he attempt to help clean the house, he c d hat h e cannot stay o his feet fo more than on for n 22 20 minutes at a time. Id. at 367. Johns states th he goes ou t son hat utside daily, can walk, d , drive in a 23 car and ride in a car. Id. at 368-69. Jo r, n a ohnson also indicated tha his injurie affect his ability to at es 24 lift squat, bend stand, wal sit, kneel, and comple tasks, an that he can walk no m t, d, lk, ete nd n more than 25 three blocks be efore he need to rest. Id at 370. Jo ds d. ohnson state that he can pay attenti “all day” ed n ion ” 26 but that he does not finish what he star Id. He s t w rts. stated that h can follow written and spoken he w d 27 ins structions and get along with authorit figures “o d w ty ok.” Id. at 370–71. John nson stated t his that 28 abi ility to handl stress was “not good” and that he didn’t know how well h handles ch le s w he hanges in 21 1 2 routine. Id. at 371. On December 19, 2011, Johnson’s girlfriend, Zanette Powell, submitted a Third Party 3 Function Report describing her impressions of Johnson’s daily routine and physical and mental 4 limitations. Id. at 336–41. Ms. Powell described Johnson’s daily routine as follows: 5 [Johnson] wakes up takes medication, goes to bathroom, depending on severity of pain I assist with his shower and helping him dress. Sometimes he will fix a small meal if he doesn’t have to stand long. He often has to alternate between lying down and sitting up due to pain. Sometimes he will try to take a small walk but that [flares] his pain and leg numbness. I cook his evening meals and assist with evening meds and helping him undress for bed. 6 7 8 9 Id. at 336. She also stated that Johnson cannot work on cars, ride in cars for long distances, or walk or stand for long, and that his pain wakes him up during the night and he “constantly tosses 11 United States District Court Northern District of California 10 and moans in his sleep due to pain.” Id. at 337. She stated that generally Johnson could only 12 prepare meals if they took less than two to three minutes to prepare, that he occasionally folds 13 close or washes dishes while seated but can only perform chores two to three times a week for a 14 half hour to an hour at a time. Id. at 338. With respect to hobbies and interests, Ms. Powell stated 15 that Johnson watched television, played video games, and that he used to go bowling weekly but 16 that he had to stop “due to back issues.” Id. at 339. With respect to activities Johnson does with 17 others, Ms. Powell wrote “watch sports, talk, sit outside.” Id. at 339. In response to the question 18 asking the respondent to “list the places [the claimant] goes on a regular basis, Ms. Powell wrote 19 “he’s mostly at home.” Id. Ms. Powell stated that Johnson’s condition affected his lifting, 20 squatting, bending, standing, walking, sitting, kneeling and completing tasks. Id. at 340. She 21 wrote that his lifting was limited to 20 pounds, that he couldn’t squat or kneel, that he can’t stand 22 or walk long, that he has to change positions while sitting and that he has to stop tasks when pain 23 flares or he gets numb. Id. She stated that Johnson could walk about a block or “maybe 2” before 24 needing to rest and that he needed to rest for 10-15 minutes before he could resume walking. Id. 25 With respect to Johnson’s mental functioning, Ms. Powell described Johnson as being able 26 to follow written and spoken instructions “very well,” get along with authority figures well, and 27 that he could pay attention “as long as needed.” Id. at 340-341. However, she also noted that 28 Johnson does not handle stress well and “gets angry when he’s in pain and yells at people.” Id. at 22 1 340. Administrative Hearing8 2 C. 3 At the March 6, 2014 hearing, Johnson was represented by attorney Brian Hogan. On 4 March 5, 2014, the day before the hearing, Mr. Hogan filed a brief on Johnson’s behalf in which 5 he requested that Johnson’s disability onset date be amended to September 30, 2011 rather than 6 January 1, 2003. Id. at 422. Mr. Hogan acknowledged that because of the prior finding of 7 nondisability in February 2009 Johnson was required under Chavez v. Bowen, 844 F.2d 691 (9th 8 Cir. 1985) to show changed circumstances to establish disability, but argued that with the 9 amended onset date the medical record supported such a finding. Id. at 423. At the hearing, the ALJ heard testimony from Johnson about recent developments relating 10 United States District Court Northern District of California 11 to his impairments as well as his three attempts to return to work following the ALJ’s previous 12 finding of nondisability, summarized above in the personal background section. See Id. at 86-110. 13 Johnson then offered testimony about his current symptoms and his level of functioning since the 14 prior decision in 2009. Id. at 89-96. Johnson began by stating that things had gotten worse for 15 him physically and that “[he] can’t do anything [he] likes,” noting that he generally is in a lot of 16 pain but is concerned about taking too much medicine. Id. at 89–90. Johnson testified that the 17 pain from the gunshot wounds in his back and in his knee has gotten worse over the years and was 18 more constant than it used to be. Id. at 90–91. Johnson testified that he could stand for a 19 maximum of 15 minutes at a time before his back started getting tight at the location of the 20 gunshot wound and electrical “little shock[s]” started going down his legs. Id. at 91. He testified 21 that while he has good days and bad days, depending on when he wakes up, he is generally in pain 22 within 15-20 minutes after his medication wears off. Id. In these instances, Johnson said, he 23 generally lays or sits down as needed to alleviate the pain. Id. at 92. Johnson testified that he can 24 25 26 27 28 8 In connection with Johnson’s prior disability determination by the ALJ, wherein the ALJ found Johnson to not be disabled on February 5, 2009, AR at 121–130, the ALJ held an administrative hearing on November 18, 2008. AR at 39–64. Because the ALJ found with respect to the current request for disability benefits that any presumption of ongoing disability arising out of that denial has been rebutted – and because neither parties dispute that this presumption was properly rebutted – the Court does not describe here the testimony that was offered at the November 18, 2008 administrative hearing. 23 1 lift no more than 15 pounds, stating that lifting and carrying are both difficult for him. Id. 2 Johnson testified that he could sit for only10-15 minutes at a time before his back started 3 “pulsating,” requiring him to position himself differently to minimize this effect. Id. at 93-94. 4 Johnson also testified that bending over and squatting were painful and that he could not bend his 5 knees or squat down all the way due to arthritis in his right knee and the bullet lodged in his left 6 knee. Id. at 94–96. 7 Regarding his mental impairments, Johnson testified that he took medication so that he 8 wouldn’t “have . . . mood swings and be upset about everything” and that when he was taking 9 risperidone, it would help “mellow him out a little bit” and he wouldn’t “get upset as fast.” Id. at 96-97, 99. Johnson testified that he began seeing a psychiatrist at the recommendation of Dr. 11 United States District Court Northern District of California 10 Hinman because he was in a “lot of pain” at the time, having discovered that his 9-year old 12 daughter had been raped by her mom’s live-in boyfriend, and that this incident made him “flip 13 out.” Id. at 97-98. Johnson also testified that at times he would become irritable or get upset as a 14 result of his chronic pain, to the point where “[he] just want[ed] to be left alone,” and questioned 15 the reason he was still alive. Id. at 98. Johnson described himself as generally depressed, which 16 takes the form of not “feel[ing] like doing anything no more,” and “just try[ing] to do whatever 17 [he] can . . . to get this pain away from [him].” Id. at 102. 18 Johnson also testified about his history of substance abuse. Id. at 99-101. Johnson 19 testified that he began binge drinking of alcohol when he was 18, when he would drink a big bottle 20 of E&J daily. Id. at 100. After getting shot, Johnson began to cut back on his alcohol 21 consumption, but he began drinking heavily once again during one of his relationships with a 22 woman who “liked to drink a lot. Id. at 101. Johnson testified that at the time of the hearing, he 23 was drinking less, estimating that he “might have a beer or two every other day” but that he 24 otherwise refrains from drinking. Id. In response to the ALJ’s question regarding substance use, 25 Johnson testified that he “tried smoking marijuana” when he was younger but that it “didn’t work 26 out for” him. Id. He testified further that he had not used “anything else.” Id. 27 28 Johnson next described to the ALJ a typical day in his life. According to Johnson, he goes to bed by around 9:30 p.m., waking up during the night with back and leg spasms at around 1:30 24 1 a.m. Id. at 102. Upon waking up, Johnson tries to walk around to get rid of the spasms and pain 2 and is up for between one and two and a half hours, at which point he “feel[s] a little better” and 3 will “lay back down,” but generally is unable to fall asleep and tosses and turns throughout the 4 night. Id. at 103. During the day, Johnson feels “drained” and has “no strength to do anything.” 5 Id. Johnson testified that he wakes up around 8:30 or 9:00 “on a good night” and at 4:30 or 5:00 6 “on a bad night.” Id. He stated that he spends a lot of the day watching TV, and that he 7 sometimes goes outside and sits then comes back inside and watches more TV. Id. at 103-104. 8 Johnson testified that he spends most of the day laying down, though he sits up and talks for “a 9 little while” when guests like his mom or sister stop by. Id. at 104. 10 With respect to his ability to work, Johnson believes he would be unable to perform the United States District Court Northern District of California 11 tasks required of a mechanic or forklift operator in light of his physical condition because of the 12 need to be able to bend over, lift objects, and climb up ladders. Id. at 104-05. Even for a more 13 sedentary job involving the completion of paperwork at a desk, Johnson stated that he likely 14 would be unable to “sit at a desk” and do paperwork all day due to the frequent tightening of his 15 back, muscle spasms, and the inability to lay down on the job. Id. at 105. As an example, 16 Johnson described the “sharp pains” in his back that he was experiencing due to sitting for about 17 20 to 25 minutes at the hearing. Id. at 106. Johnson also testified that after the Functional 18 Capacity Evaluation in 2010, which took three hours and involved lifting and going up and down 19 stairs, he was in a “lot of pain” and didn’t want to get up the next day because he was “still in 20 pain.” Id. 21 At the conclusion of Johnson’s testimony, the ALJ questioned the vocational expert 22 (“VE”), Mary Ciddio, regarding the availability of jobs for various hypothetical claimants with 23 limitations similar to Johnson’s. Id. at 111–118. First, the ALJ asked the vocational expert about 24 the availability of “lighter sedentary jobs” for “someone of Claimant’s age, education, and work 25 experience in a similar capacity for . . . non-public, simple, repetitive tasks; light exertional level; 26 no ladder, ropes, scaffolds; other postulars are occasion[al] and that’s crouch, crawl, stoop, kneel, 27 balance, ramps and stairs,” with the additional limitation that the hypothetical individual would 28 need to “sit, stand, change . . . position every . . . 45 minutes for 10 minutes.” Id. at 111. The VE 25 1 res sponded that such a hypo othetical indi ividual woul be able to work as a “ ld o “final assemb bler” an 2 “in nspector and hand packag and as a “photocopy machine o ger” y operator” and that all of t d these 3 pos sitions existe in signific number at the natio ed cant rs onal level an statewide Id. at 111– nd e. –12. The 4 nth. Id. at VE testified tha the toleran for absen E at nce nces for thes positions is one to two days a mon se o 5 112 2. Johnson attorney asked the VE to address a modified hypothetica RFC with the n’s V s d al 7 following limit tations: “no public conta and full repetitive ta p acts asks again, an we have a standing nd 8 d/or g f an es and walking capacity of no more tha 15 minute at a time. We would need a sit/stand option 9 eve 30 minut with a 10 minute eith walk arou or gettin up from a sitting posi ery tes 0 her und ng ition. . . . 10 [T] hypothet ]he tical claiman can only le than occa nt ess asionally sto oop; does no have the ab ot bility to 11 United States District Court Northern District of California 6 kne can only occasionall climb stai ramps, an ladders in the other p eel; y ly irs, nd n postural activ vities.” Id 12 The VE testifie that there would no jo that wou permit a 10-minute break for every 30ed obs uld 13 min nutes of sitti ing. Id. at 115. The VE testified tha if that limi at itation were modified to sit/stand at o 14 wil the hypoth ll, hetical indiv vidual could still work as a “final ass s sembler.” Id at 117. d. 15 Johnson counsel then added a non-exertio n’s t onal impairm to his h ment hypothetical, asking the 16 VE about the availability of jobs if the hypothetica individual had the sam exertional limitations E a o al me l 17 alo with “mo ong oderate to marked impai m irment” in th ability to p he persist in the work envir e ronment. Id. . 18 at 118. The VE testified th for an ind 1 E hat dividual who was off tas up to 15% of the time the same o sk % e, 19 job would be available, bu that 15% would be “th cutoff poi bs ut w he int.” Id. 20 At the conclusion of the admin o nistrative hea aring, Johnso counsel asked the A to leave on’s l ALJ 21 the record open so that he could obtain a medical s e n c n source statem from D Hinman a ment Dr. addressing 22 Joh hnson’s limit tations and the hypothetical posed b the ALJ. I The ALJ agreed to d so and on t by Id. J do n 23 Ap 20, 2014, Dr. Hinman provided the opinion l pril n t letter discuss above. sed 24 25 26 D. Legal Standa ard 1. Presumpt . tion of Ongoing Ability to Work y A prior administrative finding of non-disab r o bility gives ri to a presu ise umption of c continuing 27 non n-disability that can only be overcom if the clai t y me imant proves “changed c circumstance es” 28 ind dicating a mo severe co ore ondition. Ch havez v. Bow 844 F.2d 691, 693 (9 Cir.1988 (citing wen, d 9th 8) 26 6 1 Tay v. Heck ylor kler, 765 F.2d 872, 875 (9th Cir. 198 5)). Similar “a previo ALJ’s fi d rly, ous indings 2 con ncerning resi idual functio capacity education, and work e onal y, , experience ar entitled to some res re o 3 jud dicata consid deration and such finding cannot be reconsidere by a subse gs e ed equent judge absent new e w 4 inf formation no presented to the first ju ot t udge.” Stubb bs-Danielso v. Astrue, 539 F.3d 11 on 169, 1173 5 (9th Cir. 2008) (applying Chavez, 844 F.2d at 694) ) C ). 6 2. 5-Step Se . equential Ev valuation 7 a. Five-S Analysi Step is Disability insurance benefits ar available u e re under the So ocial Security Act when an eligible y 8 9 aimant is una “to enga in any su able age ubstantial ga ainful activity by reason of any medi y ically cla det terminable physical or mental impair p m rment . . . wh hich has last or can be expected to last for a ted e o 11 United States District Court Northern District of California 10 con ntinuous per riod of not le than 12 months.” 42 U.S.C. § 42 ess m 23(d)(1)(A); see also 42 U.S.C. 12 § 423(a)(1). A claimant is only found disabled if h physical or mental im 4 his mpairments a of such are 13 sev verity that he is not only unable to do his previou work but also “cannot considerin his age, e o us t, ng 14 edu ucation, and work experi ience, engag in any oth kind of su ge her ubstantial ga ainful work w which exists s 15 in the national economy.” 42 U.S.C. § 423(d)(2)(A The clai t A). imant bears t burden o proof in the of 16 establishing a disability. Gomez v. Cha d G ater, 74 F.3d 967, 970 (9 Cir.), cer denied, 519 U.S. 881 d 9th rt. 17 (19 996). 18 ommissioner has established a sequen ntial five-pa evaluation process to determine art n The Co 19 wh hether a claim is disab under th Social Sec mant bled he curity Act. 2 C.F.R. § 404.1520(a) At Step 20 ). 20 On the Comm ne, missioner considers whet ther the claim is enga mant aged in “sub bstantial gain nful 21 act tivity.” 20 C.F.R. § 404. C .1520(a)(4)(I). If the cla aimant is eng gaged in sub bstantial gain activity, nful , 22 the Commissio e oner finds tha the claima is not dis at ant sabled, and t evaluatio stops. If t claimant the on the 23 is not engaged in substantia gainful ac n al ctivity, the C Commissione proceeds t Step Two to consider er to 24 wh hether the cla aimant has “a severe med dically deter rminable phy ysical or mental impairm ment,” or 25 com mbination of such impairments, which meets the duration re f e equirement in 20 C.F.R. § 404.1509. n 26 An impairment is severe if it “significa n t f antly limits [ [the claimant physical or mental a t’s] l ability to do 27 bas work acti sic ivities.” 20 C.F.R. § 404 4.1520(c). I the claima does not h If ant have a sever re 28 imp pairment, disability bene efits are deni at this st ied tep. If one o more impa or airments are severe, the 27 7 Commissioner will next perform Step Three of the analysis, comparing the medical severity of the 2 claimant’s impairments to a compiled listing of impairments that the Commissioner has found to 3 be disabling. 20 C.F.R. § 404.1520(a)(4)(iii). If one or a combination of the claimant’s 4 impairments meet or equal a listed impairment, the claimant is found to be disabled. Otherwise, 5 the Commissioner proceeds to Step Four and considers the claimant’s RFC in light of the 6 claimant’s impairments and whether the claimant can perform past relevant work. 20 C.F.R. § 7 404.1520(a)(4)(iv); 20 C.F.R. § 404.1560(b) (defining past relevant work as “work . . . done 8 within the past 15 years, that was substantial gainful activity, and that lasted long enough for you 9 to learn to do it”). If the claimant can still perform past relevant work, the claimant is found not to 10 be disabled. If the claimant cannot perform past relevant work, the Commissioner proceeds to the 11 United States District Court Northern District of California 1 fifth and final step of the analysis. 20 C.F.R. § 404.1520(a)(4)(v). At Step Five, the burden shifts 12 to the Commissioner to show that the claimant, in light of his or her impairments, age, education, 13 and work experience, can perform other jobs in the national economy. Johnson v. Chater, 108 14 F.3d 178, 180 (9th Cir. 1997). A claimant who is able to perform other jobs that are available in 15 significant numbers in the national economy is not considered disabled, and will not receive 16 disability benefits. 20 C.F.R. § 404.1520(f). Conversely, where there are no jobs available in 17 significant numbers in the national economy that the claimant can perform, the claimant is found 18 to be disabled. Id. 19 20 b. Mental Impairment Analysis Where there is evidence of a mental impairment that allegedly prevents a claimant from 21 working, the Social Security Administration has supplemented the five-step sequential evaluation 22 process with additional regulations to assist the ALJ in determining the severity of the mental 23 impairment, establishing a “special technique at each level in the administrative review process.” 24 20 C.F.R. §§ 404.1520a(a), 416.920a(a). First, the Commissioner evaluates the claimant’s 25 “symptoms, signs, and laboratory findings” to determine whether the claimant has “a medically 26 determinable mental impairment.” 20 C.F.R. § 404.1520a(b)(1). For each of the eleven categories 27 contained in the adult mental disorder listings, these are described in Paragraph A. 20 C.F.R. pt. 28 404, Subpt. P, App. 1, § 12.00. 28 1 If the cl laimant has a “medically determinab mental im y ble mpairment,” the Commissioner goes ” s on to rate the degree of the claimant’s functional li d e f imitation in t four “bro function areas” the oad nal 3 entified in “p paragraph B” and “parag ” graph C” of t adult men disorder listings. S 20 the ntal rs See ide 4 C.F §§ 404.1520a(c)(3), 416.920a(c F.R. , c)(3); Social Security Ru uling 96-8p, 1996 WL 37 74184, at *4. 5 Those four fun nctional areas are “[a]ctiv s vities of dail living; soc function ly cial ning; concent tration, 6 per rsistence, or pace; and ep pisodes of de ecompensati ion.” 20 C.F §§ 404.1 F.R. 1520a(c)(3), 7 416 6.920a(c)(3) Limitation are rated on a “five po scale: N ). ns o oint None, mild, m moderate, ma arked, and 8 ext treme.” 20 C.F.R. §§ 404 C 4.1520a(c)(4 416.920a 4), a(c)(4). Base on these l ed limitations, t the 9 Commissioner determines whether the claimant ha a severe m as mental impairment and w whether it 10 me or equals a listed imp eets s pairment. Se 20 C.F.R. §§ 404.152 ee . 20a(d)(1)-(2) 416.920(d) (1)-(2). ), ) 11 United States District Court Northern District of California 2 This evaluation process is to be used at the second and third ste of the se n t t eps equential eva aluation 12 dis scussed abov Social Se ve. ecurity Rulin 96-8p, 199 WL 3741 ng 96 184, at *4 (“The adjudica must ator 13 rem member that the limitatio identified in the ‘par ons d ragraph B’ an ‘paragrap C’ criteria are not an nd ph a 14 RF assessmen but are us to rate th severity of mental imp FC nt sed he f pairment(s) a steps 2 an 3 of the at nd 15 seq quential eval luation proce ess.”). 16 If the Commissione determines that the cla C er aimant has a severe men impairm ntal ment(s) that 17 nei ither meets nor is equiva n alent in sever to any li rity isting, the Co ommissioner must asses the r ss 18 cla aimant’s residual functional capacity 20 C.F.R. § 404.1520 y. §§ 0a(d)(3), 416 6.920(d)(3). This is a 19 “m mental RFC assessment [t is] used at steps 4 an 5 of the s a that nd sequential ev valuation pro ocess [and] 20 req quires a more detailed as e ssessment by itemizing v y various funct tions contain in the br ned road 21 cat tegories foun in paragra nd aphs B and C of the adul mental dis lt sorders listin in 12.00 of the ngs 22 Lis sting of Impa airments . . . .” Social Security Rul ing 96-8p, 1 S 1996 WL 374 4184, at *4. 23 3. ALJ Analysis and Fi . indings of F Fact 24 As a preliminary matter, the AL found tha the presum m LJ at mption of non n-disability u under 25 Chavez that aro as a resu of the prio denial of d ose ult or disability, on February 9 2009, had been n 9, 26 reb butted because Johnson had “addition ‘severe’ impairment and a redu h nal ts uced residual functional l 27 cap pacity, since the prior de ecision. AR at 22. There efore, the AL proceede to the 5-st analysis. LJ ed tep 28 At Step 1 of the seq p quential anal lysis, the AL held that “ LJ “[t]here is no evidence o substantial o of 29 9 1 gainful activity since September 30, 2011, the amended application date.” AR at 25. At Step 2, the ALJ held that Johnson had the following severe impairments within the 2 3 meaning of the Social Security regulations: 4 Lumbar degenerative disc disease; residuals of gunshot wound; right knee osteoarthritis; depressive disorder; borderline intellectual functioning; antisocial traits; [and] alcohol abuse in partial remission. 5 6 7 AR at 25 (referencing 20 C.F.R. § 416.920(c)). The ALJ also found “that alcohol abuse in partial 8 remission continues to more than minimally affect [Johnson’s] ability to do work-related tasks.” 9 AR at 25. At Step 3, the ALJ concluded that Johnson “does not have an impairment or combination 11 United States District Court Northern District of California 10 of impairments that meets or medically equals the severity of one of the listed impairments in 20 12 C.F.R. Part 404, Subpart P, Appendix 1.” Id. (citing 20 C.F.R. §§ 416.920(d), 416.925, 416.926). 13 As part of his analysis, the ALJ evaluated Johnson’s impairments “within the context of Listings 14 1.02, 1.04, 12.04, 12.05, 12.08, and 12.09.” AR at 25. With respect to Listing 1.02 for major dysfunction of a joint or joints, the ALJ found that 15 16 the criteria of this listing were not met because “the evidence fails to establish an inability to 17 ambulate effectively” as required for knee impairments. Id. The ALJ further found that the 18 criteria of Listing 1.04A, for “disorders of the spine” with “evidence of nerve root compression” 19 were not met “because . . . there is no documentation of nerve root compression characterized by 20 neuro-anatomic distribution of pain, limitation of motion of the spine, motor loss accompanied by 21 sensory or reflex loss, and positive straight-leg raising test.” Id. For the remaining Listings (12.04, 12.05, 12.08 and 12.09), which relate to mental 22 23 impairments, the ALJ found that the severity of Johnson’s impairments, singly and in 24 combination, did not meet or exceed the statutory criteria. Id. The ALJ noted that “Paragraph B” 25 criteria for Listings 12.04, 12.08, and 12.09, as well as the “Paragraph D” criteria for Listing 26 12.05,9 require that a claimant’s “mental impairments must result in at least two of the following: 27 9 28 At the time of the ALJ’s decision, Listing 12.05 included paragraphs B through D, with paragraph D of 12.05 being the same as Paragraph B for all other mental impairment listings. 30 1 marked restriction of activities of daily living; marked difficulties in maintaining social 2 functioning; marked difficulties in maintaining concentration, persistence, or pace; or repeated 3 episodes of decompensation, each of extended duration.” Id. The ALJ found that Johnson “has a 4 moderate restriction of activities of daily living and social functioning” and “moderate” difficulties 5 with concentration, persistence, or pace. Id. at 25-26. He found no episodes of decompensation of 6 an extended duration documented in the record. Id. at 26. The ALJ noted that while Dr. Kalich 7 mentioned a prior suicide attempt as one episode of decompensation and opined that Johnson’s 8 depression “would be consistent with an episode of decompensation,” she did not “clearly set forth 9 any episodes of decompensation of extended duration.” Id. Because he found that Johnson’s impairments did not cause at least two marked limitations or one marked limitation and “repeated” 11 United States District Court Northern District of California 10 episodes of decompensation, each of extended duration, the ALJ concluded the “Paragraph B” 12 criteria for Listings 12.04, 12.08, and 12.09 and “Paragraph D” criteria for Listing 12.05 were not 13 satisfied. Id. The ALJ also found there to be no evidence establishing the presence of “Paragraph 14 C” criteria. Id. 15 For Listing 12.05, the ALJ noted that Paragraph A requirements are satisfied only when 16 “there is mental incapacity evidence by dependence upon others for personal needs . . .and 17 inability to follow directions, such as the use of standardized measures of intellectual functioning 18 is precluded.” Id. He found that requirement clearly was not met because Dr. Kalich was able to 19 administer standardized tests to Johnson. Id. He further found that the Paragraph B criteria were 20 not met as to Listing 12.05 because Paragraph B requires a valid verbal, performance, or full scale 21 IQ of 59 or less, and “Dr. Kalich’s testing revealed a full scale IQ of 71; verbal comprehension 22 index of 80; perceptual/reasoning index of 75; working memory of 69; and processing speed index 23 of 79.” Id. Additionally, the ALJ found that the “Paragraph C” criteria for Listing 12.05 were not 24 met because Johnson “does not have a valid verbal, performance, or full scale IQ of 60 through 70 25 and a physical or other mental impairment imposing an additional and significant work-related 26 limitation of function.” Id. 27 28 At Step 4, the ALJ found that Johnson had the RFC to perform a limited range of light work as defined in 20 C.F.R. § 416.967(b) with the following limitations: 31 1 2 3 He can perform nonpublic, simple repetitive tasks; is limited to lifting/carrying no more than 15 lbs.; must be allowed to alternate sitting and standing at will; can perform no work on ladders, ropes, or scaffolds; and can occasionally crouch, crawl, stoop, balance, kneel, and climb ramps and stairs. 4 Id. at 27. The ALJ began his Step 4 analysis by summarizing Johnsons medical records. Id. at 5 27–29. Following his summary of these records, and “[a]fter careful consideration of the 6 evidence,” the ALJ found “that the claimant’s medically determinable impairments could 7 reasonably be expected to cause some of the alleged symptoms” but that Johnson’s “statements 8 concerning the intensity, persistence and limiting effects of these symptoms are not entirely 9 credible. . . .” Id. at 30. First, the ALJ noted that “although he has extensive complaints, Mr. Johnson has received 11 United States District Court Northern District of California 10 relatively little medical treatment over the past five years.” Id. The ALJ emphasized that he was 12 also “impressed by what [Johnson] can do,” including driving and helping care for three of his 13 children, helping a nephew learn auto mechanics, and pushing/pulling 59 to 75 pounds for a 14 distances of 50 feet during testing. Id. The ALJ also noted that when Johnson’s legs and back 15 went out in 2010 he was helping a friend fix a transmission. Id. Given that Johnson initially 16 alleged an onset date of January 1, 2003, this meant the injury occurred during a time when 17 Johnson alleged he was disabled. Id. With respect to Johnson’s alleged mental impairments, the 18 ALJ characterized the relevant psychological reports as “mostly about anger and poor personal 19 relationships, which themselves do not preclude work.” Id. The ALJ also emphasized that 20 Johnson has “continued to drink alcohol despite a history of abuse.” Id. The ALJ concluded 21 based on this evidence that that “[t]he claimant’s activities show a greater physical and mental 22 capacity than he has alleged.” Id. 23 The ALJ also found that “all [the opinion evidence] gravitates toward the residual 24 functional capacity set forth herein.” Id. In coming to this conclusion, the ALJ described Dr. 25 Kalich’s assessment as “quite nuanced,” going “only slightly further [than the ALJ’s residual 26 functional capacity] in opining moderate to marked limitations in persistence.” Id. The ALJ found 27 that with respect to “all other areas of functioning,” Dr. Kalich “couched” her assessment “in 28 terms of ‘might’ and ‘may.’” Id. The ALJ also “decline[d] to accord [Dr. Hinman’s] opinions 32 1 con ntrolling wei ight” becaus her “comm se ments on the reports of D Bayne a Kalich essentially e Drs. and 2 am mount to advo ocacy for her patient rath than imp r her partial analys sis.” Id. Finally, the ALJ fou at Step 4 that the on past relev work Jo , und nly vant ohnson had p performed 3 4 sin his prior disability ap nce pplication wa denied in 2009 was as an auto me as s echanic, and that 5 Joh hnson was un nable to perf form this wo due to th medium le of exert ork he evel tion required for that job d b 6 and Johnson’s RFC limitin him to ligh exertion j obs. Id. at 3 d ng ht 31. At Step 5, the ALJ concluded th Johnson was “not disabled” beca p hat ause there w a was 7 8 gnificant num mber of jobs available to individuals of Johnson’ RFC, age, education, a work ’s and sig 9 exp perience in the national economy and in Californ Id. at 31-32. Using the Medical e nia. l-Vocational Gu uidelines as a framework and based on the testim k, mony of the v vocational e expert, the A ALJ 11 United States District Court Northern District of California 10 con ncluded that Johnson cou work as a “Final Ass uld sembler and as an “Inspe ector/Hand P Packager” 12 and that these jobs existed in significan number in the nationa and California econom Id. at d j nt n al my. 13 31– –32. 14 the date of his application and alleged disability on date of S e a nset September 30, 2011 thro ough the date e 15 of the ALJ’s de t ecision. AR at 32-33. R 16 17 18 Based on this five d e-step analys the ALJ determined that Johnson was not disabled from sis, n E. Contentions of the Parti on Summ C ies mary Judgm ment 1. Johnson’s Motion for Summary Judgment . y In his Motion for Su M ummary Jud dgment (“Joh hnson Motio on”), Johnson contends t the 19 Commissioner erred in find ding that he was not disa abled by reje ecting the op pinions of tre eating 20 phy ysician Dr. Hinman and examining psychologist Dr. Kalich without sett H p t ting forth spe ecific, 21 leg gitimate reaso for doin so that are based on su ons ng e ubstantial ev vidence in th record. M he Motion at 1. 22 As to Dr. Hinm Johnson concedes th her opini man, n hat ions as to hi limitations are contrad is s dicted by Dr. . 23 Bay yne’s opinio and there ons efore that on “specific and legitima (rather t nly ate” than “clear a and 24 con nvincing”) re easons must be given for rejecting h opinions. Id. at 9. A r her According to Johnson, the e 25 AL failed to meet that stan LJ m ndard, howe ever, when h dismissed Dr. Hinman opinions on the basis he n’s 26 tha they “essen at ntially[ed] amount to ad a dvocacy for h patient ra her ather than im mpartial anal lysis.’” Id. 27 (qu uoting AR at 30). Johnso contends this is not a legitimate r t on reason to dis smiss Dr. Hinman’s 28 opi inions where as here, th is no evi e, here idence of mi isconduct on the part of the physicia and her n an 33 3 1 opi inion is supp ported by me edical eviden Id. (citin Lester v. Chater, 81 F nce. ng F.3d 821, 83 (9th Cir. 32 2 199 95)). Johns notes tha “[i]n her re son at eport, Dr. Hi inman clearl states that she is basin her ly t ng 3 opi inion on her ‘medical ex xpertise and clinical time with Mr. Jo c e ohnson,’” as well as “fin s ndings made 4 dur ring an occu upational ther rapy evaluat tion,” and “th opinion o a forensic psychologis Id. at 9the of st. 5 10 (citing AR at 629-30). a 6 Similar Johnson contends the ALJ erred by failing to offer specific, legitima reasons rly, e o ate 7 for rejecting Dr Kalich’s opinion that Johnson had “moderate to marked li r r. o J d imitations in n 8 per rsistence.” Id at 10. d. 9 Johnson argues that the record was fully de n t w eveloped and that if the i d improperly r rejected opi inions were credited as true, the Com t mmissioner w would be req quired to fin him disabl on nd led 11 United States District Court Northern District of California 10 rem mand. There efore, he asse the Cou should re erts, urt everse the AL finding and remand for award LJ’s d 12 of benefits. Id. b 13 14 2. The Com . mmissioner’s Motion an Oppositio s nd on In respo onse to John nson’s Motio the Comm on, missioner fil a Motion for Summa Judgment led n ary 15 and Opposition to Johnson Motion (“ d n n’s “SSA Motion contend n”), ding that the ALJ “prope erly 16 eva aluated the medical opin m nion evidence and there e,” efore, that “[ [t]he Court s should affirm the ALJ’s m 17 dec cision.” SSA Motion at 4, 9. Disput A ting Johnson assertion that the AL improperly rejected n’s n LJ y 18 the medical opinions of tre e eating physic cian, Dr. Hin nman, and ex xamining psy ychologist, D Kalich, Dr. 19 the Commissio e oner contend that “the ALJ consider the vario opinions of Plaintiff’ ds A red ous ’s 20 fun nctioning, bo mental an physical, and conclud that ‘it a gravitates toward the residual oth nd ded all 21 fun nctional capa acity set fort herein.’” Id. at 4 (quo th I oting AR at 3 30). 22 With re espect to Dr. Hinman’s opinions, the Commissio o e oner contend that “Dr. H ds Hinman 23 opi ined roughly the same le of limita y evel ations” as th hose adopted by the ALJ, and at the v d very least 24 “th ALJ’s tran he nslation of Dr. Hinman’s opinion is c D s certainly a rational inter rpretation of that f 25 opi inion.” Id. at 5. In parti a icular, accord ding to the C Commission Dr. Hinm found th Johnson ner, man hat 26 wa limited to “lifting no more than 15 pounds, sta as m 5 anding and w walking one to two hours per day for s r 27 15 minutes at a time, sitting for four to six hours pe day for 30 g er 0-45 minute periods, and should d 28 avo more tha rare repeti oid an itive bending twisting, c g, crouching, c crawling, stooping, kneel ling, and 34 4 1 climbing ‘if possible’” whereas “[t]he ALJ found that Plaintiff could lift and carry up to 15 2 pounds; needed the option to sit or stand at will; could occasionally climb, balance, stoop, crouch, 3 kneel, and crawl; and never climb ropes, ladders or scaffolds.” Id. (citing AR at 27, 629). In fact, 4 the Commissioner contends, the ALJ’s adopted limitation “allowing a sit-stand option was more 5 flexible than Dr. Hinman’s opinion that Plaintiff could sit for 30–45 minutes at a time and stand or 6 walk 15 minutes at a time, and certainly accommodated Dr. Hinman’s opinion.” Id. 7 In support of its contention that the ALJ’s RFC was supported by substantial evidence, the 8 Commissioner points to the opinions of three medical sources “upon which the ALJ could have 9 relied instead of Dr. Hinman’s opinion,” all of which found that Johnson’s limitations were less severe than the ALJ and Dr. Hinman found. Id. (citing the opinions of state agency physicians Dr. 11 United States District Court Northern District of California 10 Jone and Dr. Hanna, who concluded “that Plaintiff could lift up to 20 pounds, stand and walk six 12 hours per day, and frequently balance and stoop,” and Dr. Bayne, who “opined that Plaintiff could 13 life up to 40 pounds, stand and walk four hours per day, and perform repetitive postural activities 14 occasionally”) (citing AR at 141-42, 155-56, 543). Instead, the Commissioner contends, “the 15 ALJ chose to rely on Dr. Hinman’s opinion.” Id. 16 The Commissioner argues further that the ALJ’s restrictions as to Johnson’s ability to the 17 bend, twist, crouch, crawl, stoop, kneel, and climb up and down stairs, inclines, ramps, or ladders 18 are “a reasonable reading of Dr. Hinman’s letter.” Id. at 5-6. Dr. Hinman opined that Johnson 19 “should limit repetitive bending, twisting, crouching, crawling, stooping, kneeling, climbing up 20 and down stairs, inclines, ramps, or ladders to rare occasions, if possible.” Id. at 5 (quoting AR at 21 629). According to the Commissioner, the ALJ found that Johnson could perform “most of these 22 activities occasionally, but could never climb ladders.” Id. at 5-6 (quoting AR at 27). The 23 Commissioner argues that this reading of Dr. Hinman’s opinion is reasonable because “repetitive” 24 activities occur more than “frequent” activities, “which require between one third and two-thirds 25 of the work day,” whereas “occasional” is defined as “very little up to one-third of the time.” Id. at 26 6 (citing Social Security Ruling (“SSR”) SSR 83-10 (defining occasional and frequent); SSR 96- 27 9p (defining occasional); Stark v. Astrue, 462 Fed. App’x 756 (9th Cir. 2011) (finding that 28 repetitive activities occur more often than frequent activities). 35 The Commissioner also notes that “to the extent Dr. Hinman indicated that Plaintiff should 1 2 limit all bending, twisting, etc. to rare occasions . . . Dr. Hinman opined that Plaintiff should 3 perform such activities rarely ‘if possible.’” Id. at 6 (quoting AR at 629). According to the 4 Commissioner, this usage of “if possible” language regarding these limitations is not equivalent to 5 a prohibition of those activities if the job requires them to be performed. Id. at 6 (citing 20 C.F.R. 6 § 416.945(a)(1) for the proposition that “[a]n individual’s RFC does not conform to a claimant’s 7 ideal job, but rather the most he can do despite his limitations”). With respect to Johnson’s mental limitations, the Commissioner argues that the ALJ 8 9 properly incorporated Dr. Kalich’s opinions into his RFC, agreeing “in large part with her conclusions that Plaintiff would have moderate limitations in activities of daily living, maintaining 11 United States District Court Northern District of California 10 social functioning, and maintaining concentration persistence, or pace,” while not agreeing with 12 Dr. Kalich’s claims regarding episodes of decompensation because “she did not explain or support 13 this claim.” Id. at 7 (citing AR at 26, 626). In “disagreeing with Dr. Kalich on that one point,” but 14 “otherwise accepting her opinion,” the Commissioner contends the ALJ did not err in his 15 evaluation of Dr. Kalich’s opinion. Id. (citing Magallanes v. Bowen, 881 F.2d 747, 753 (9th Cir. 16 1989)). 17 The Commissioner rejects Johnson’s argument that the ALJ did not accept Dr. Kalich’s 18 finding of “moderate to marked limitations in persistence because of depression and irritability,” 19 arguing that “the ALJ considered Plaintiff’s various limitations, including limitations in 20 persistence and limitations caused by depression and irritability, and incorporated the only 21 concrete restrictions available to him—State agency psychologist Dr. Kravatz and psychiatrist Dr. 22 Rudnick’s opinions that Plaintiff could perform simple tasks with limited public contact.” Id. 23 (citing AR at 143-44, 159-60). In this manner, the Commissioner claims “the ALJ appropriately 24 accommodated Dr. Kalich’s opinion of limitations.” Id. (citing Stubbs-Danielson, 539 F.3d 1169, 25 1174 (9th Cir. 2008)). 26 The Commissioner contends Johnson is incorrect in pointing to the ALJ’s statement that 27 Dr. Hinman’s opinions were “advocacy” as evidence that the ALJ improperly rejected Dr. 28 Hinman’s comments about the reports of Dr. Kalich and Dr. Bayne. Id. at 8. In fact, the 36 1 Commissioner asserts, “[t]h ALJ mere stated th he was no giving con he ely hat ot ntrolling wei ight to Dr. 2 Hin nman’s conc clusions,” wh is the co hich orrect appro oach when th opinion of a treating s he f source is 3 con ntradicted by other subst y tantial evidence. Id. (cit ting 20 C.F.R § 416.927 R. 7(c)(2)). The e 4 Commissioner goes on to argue that “[e]ven if Dr. Hinman ass a sessed a mor limited RF than the re FC 5 AL found . . . the ALJ’s re LJ eference to advocacy by Dr. Hinman for her patient (Plaintif provides a y n ff) 6 a su ufficient bas for disagr sis reeing with Dr. Hinman” because “a ALJ can r D ” an reject a treati source ing 7 opi inion written in an effort to aid the claimant in re n t c eceiving disability benef particularly where fits, 8 the record does not support the opinion which the Commissio e s t n,” e oner contend is the case here. Id. ds e 9 (cit ting Saelee v. Chater, 94 F.3d 520, 522-23 (9th Cir. 1996)). v 4 5 In summ mary, the Co ommissioner contends th “the ALJ did not reje Dr. Kalic opinion r hat J ect ch’s 11 United States District Court Northern District of California 10 or Dr. Hinman’s letter.” Id at 9. Instea “the ALJ gave signif D d. ad, J ficant weigh to these op ht pinions, and 12 tran nslated them into specifi functional limitations and restricti m fic l ions in the R RFC.” Id. B Because the 13 opi inions do no support a finding of disability, the Commission argues, t Court sho ot f ner the ould defer to o 14 the ALJ’s choice among di e ifferent ratio interpret onal tations. Id. ( (citing Burch v. Barnhar 400 F.3d h rt, 15 676 680-81(9t Cir. 2005) The Com 6, th )). mmissioner a argues furthe that even if the Court were to find er d 16 tha the ALJ er at rred, it shoul remand fo further pro ld or oceedings ra ather than for an award o benefits r of 17 bec cause the cr redit-as-true rule is inapp plicable in th case. Id. at 10. In pa his articular, the 18 Commissioner asserts,“[h]e the reco creates se ere, ord erious doubt as to wheth Plaintiff w t her was 19 dis sabled,” give that “[m]u en ultiple medic sources o cal opined that P Plaintiff was more capab than the ble 20 AL found.” Id. In addition, it conten the opin LJ I nds, nions of Dr. H Hinman and Dr. Kalich, even if d 21 cre edited as true do not tran e, nslate to disa ability and th herefore the ALJ would need to obta ain 22 voc cational testi imony to exp plore the eff of those opinion on J fect Johnson’s ab bility to wor Id. rk. 23 24 3. Johnson’s Reply . In his Reply brief, Johnson desc R J cribes the Co ommissione argumen as “post-h er’s nts hoc 25 rati ionalizations defending the ALJ’s de s ecision,” and reiterates h position t “the AL did indeed d his that LJ d 26 reje the opini ect ions of both Dr. Hinman and Dr. Ka n alich and erre in doing s ed so.” Reply a 1. at 27 With re espect to the opinions of Dr. Kalich, Johnson cla f aims that the Commissio oner 28 imp properly reli upon Stub ies bbs-Danielson for the pr roposition th “an ALJ does not reject an hat 37 7 examining source opinion regarding limitations in persistence if the ALJ translates that limitation 2 into the only concrete restriction available to him.” Id. (citing Stubbs-Danielson, 539 F.3d at 3 1174). While Johnson acknowledges that this proposition is correct as a general matter, he 4 contends that the ALJ actually did “specifically reject the limitation in question and implied that 5 Dr. Kalich’s opinion is not consistent with his RFC” by stating that her opinion goes “slightly 6 further” than his own RFC in opining moderate to marked limitations in persistence. Id. (quoting 7 AR at 30). Johnson contends that “it is this difference (that ‘slightly further’) that the ALJ 8 rejected and explicitly did not incorporate into a ‘concrete restriction’” to satisfy the standard 9 articulated in Stubbs-Danielson. Id. Johnson argues that the ALJ erred in rejecting Dr. Kalich’s 10 assessment of moderate to marked limitations in persistence “without offering specific, legitimate 11 United States District Court Northern District of California 1 reasons for doing so,” and that this error was not harmless in light of the Vocational Expert’s 12 testimony indicating that “such a restriction may preclude all work activity.” Id. (citing AR at 13 118). 14 Johnson also contends the Commissioner’s characterization of the ALJ’s opinion as 15 incorporating rather than rejecting the opinions of Dr. Hinman is inaccurate, pointing to 16 “important differences between Dr. Hinman’s medical source statement regarding [Johnson’s] 17 functional capabilities and the ALJ’s RFC.” Id. at 2. First, Dr. Kalich opined that Johnson 18 would have moderate to marked impairment persisting in tasks and Dr. Hinman agreed with that 19 opinion, yet the ALJ did not incorporate that limitation in his RFC and did not provide specific, 20 legitimate reasons for rejecting this opinion, Johnson contends. Id. Second, “the ALJ’s RFC 21 includes the limitation that the Plaintiff ‘must be allowed to alternate sitting and standing at will,’” 22 which was interpreted by the Vocational Expert to mean “sitting and standing is 30 minutes at a 23 time,” but neither of these formulations is consistent with Dr. Hinman’s opinion limiting 24 Johnson’s “sitting capacity to 4 to 6 hours in an 8-hour day with breaks every 30 to 45 minutes if 25 necessary due to muscle spasms or cramping, and his standing capacity to a total of 1 to 2 hour in 26 an 8-hour day in brief 15 minute periods.” Id. (citing AR 27, 114-15, 629). According to 27 Johnson, “Dr. Hinman’s restrictions paint a picture of a man who may only be able to engage in 28 exertional work activity within the range of 5 to 8 total hours out of an 8-hour workday depending 38 1 on his muscle spasms or cramping.” Id. Johnson argues that the ALJ did not take into account 2 these restrictions in coming to his RFC and thus rejected them. Id. Further, to the extent these 3 limitations suggest Johnson cannot work a full 8-hour day, Johnson contends he would have been 4 found disabled if these limitations had been included in his RFC. Id. Finally, Johnson rejects the Commissioner’s position that the ALJ gave “specific and 5 legitimate reasons” for rejecting Dr. Hinman’s opinions when he found that her report amounted 7 to advocacy rather than an impartial analysis. 2-3. In particular, Johnson contends the 8 Commissioner’s reliance upon Saelee v. Chater, 94 F.3d 520 (9th Cir. 1996) is misplaced because 9 in that case, the court held that a physician’s advocacy may be a reason to reject an opinion only 10 where there is evidence of improper conduct or there is no medical basis for the opinion – neither 11 United States District Court Northern District of California 6 of which is true here. Id. at 3 (citing Lester v. Chater, 81 F.3d 821, 832 (9th Cir. 1995) (quoting 12 Ratto v. Secretary, 839 F. Supp. 1415, 1426 (D.Or.1993) (“The Secretary may not assume that 13 doctors routinely lie in order to help their patients collect disability benefits.”)). For these reasons, Johnson argues the Court should reverse the decision of the 14 15 Commissioner finding that Johnson is not disabled and remand for an award of benefits. 16 III. ANALYSIS 17 A. 18 When asked to review the Commissioner’s decision, the Court takes as conclusive any General Legal Standard Under 42 U.S.C. § 405(g) 19 findings of the Commissioner that are free from legal error and supported by “substantial 20 evidence.” 42 U.S.C. § 405(g). Substantial evidence is “such evidence as a reasonable mind 21 might accept as adequate to support a conclusion,” and it must be based on the record as a whole. 22 Richardson v. Perales, 402 U.S. 389, 401 (1971). Substantial evidence means “more than a mere 23 scintilla,” id., but “less than a preponderance.” Desrosiers v. Sec’y of Health & Human Servs., 24 846 F.2d 573, 576 (9th Cir. 1988). Even if the Commissioner’s findings are supported by 25 substantial evidence, these findings should be set aside if proper legal standards were not applied 26 when weighing the evidence and in reaching a decision. Benitez v. Califano, 573 F.2d 653, 655 27 (9th Cir. 1978). 28 In reviewing the record, the Court must consider both the evidence that supports and 39 1 det tracts from th Commiss he sioner’s conc clusion. Smo olen v. Chat 80 F.3d 1273, 1279 ( ter, (9th Cir. 2 199 (citing Jones v. Heck 96) J kler, 760 F.2 993, 995 ( 2d (9th Cir. 198 85)). If the e evidence is “ “susceptible 3 to more than on rational in m ne nterpretation it is the AL conclus n, LJ’s sion that mu be upheld Burch v. ust d.” 4 Barnhart, 400 F.3d 676, 67 (9th Cir. 2005). The Court is add 79 2 e ditionally “c constrained t review the to e 5 rea asons the AL asserts” an “cannot rely on indep LJ nd pendent findi ings” to affir the ALJ’ decision. rm ’s 6 Connett v. Barn nhart, 340 F.3d 871, 874 (citing SEC v. Chenery Corp., 332 U.S. 194, 1 (1947)). F 4 C y 2 196 7 B. 8 Evaluation of Medical Opinions O 1. Legal Sta . andards “Cases in this circu distinguish among the opinions of three types of physician (1) those uit e f s e ns: 9 wh treat the claimant (trea ho ating physici ians); (2) tho who exa ose amine but do not treat the claimant o e 11 United States District Court Northern District of California 10 (ex xamining phy ysicians); an (3) those who neither examine no treat the cl nd w or laimant (non nexamining 12 phy ysicians).”10 Lester v. Chater, 81 F.3d at 830. “ C “[T]he opinio of a treat on ting physicia is . . . an 13 ent titled to grea weight th that of an examining physician, [and] the op ater han a g pinion of an examining 14 phy ysician is en ntitled to grea weight than that of a non-exami ater t ining physician.” Garris son, 759 15 F.3 at 1012. “To reject [th uncontradicted opini on of a treat 3d “ he] ting or exam mining doctor an ALJ r, 16 mu state clear and convin ust ncing reason that are su ns upported by s substantial e evidence.” R Ryan v. 17 Comm’r of Soc Sec., 528 F.3d 1194, 1198 (9th Cir 2008) (cita c. F r. ations omitte ed). The Nin Circuit has recently emphasized the high sta nth h andard requir for an ALJ to reject red 18 19 an opinion from a treating or examinin doctor, ev where the record incl m ng ven ludes a contr radictory 20 me edical opinio on: 21 “If a treati ing or exam mining docto or’s opinion is contrad n dicted by another doc ctor’s opinio an ALJ may only r on, reject it by providing specific and legitimate reasons th are supp d e hat ported by substantial evidence.” Id. This is so because, ev when co I o ven ontradicted, a treating or examinin physician opinion is still owe deference and will ng n’s ed e often be “en ntitled to the greatest we e eight . . . even if it does not meet s the test for controlling weight.” O v. Astrue 495 F.3d 625, 633 Orn e, 2 A atisfy the “s substantial e evidence” (9th Cir. 2007). An ALJ can sa requirement by “setting out a detail and thor t g led rough summary of the 22 23 24 25 26 10 27 28 Psychologist opinions are subject to the same s P ts’ t standards as physicians’ opinions. S 20 See C.F § 404.1527(a)(2); Valentine v. Comm’r of S Sec. Adm F.R. V C Soc. min., 574 F.3 685, 692 (9th Cir. 3d 200 (applyin standards discussing physicians’ o 09) ng p opinions to e evaluate an A ALJ’s treatm of a ment psy ychologist’s opinion). 40 0 facts and conflicting clinical evid c c dence, statin his inte ng erpretation thereof, and making findings.” Redd v. Chat 157 F.3d 715, 725 d dick ter, d (9th Cir. 1998)]. “The ALJ must do more than state conclu A o usions. He must set for his own interpretatio and exp rth ons plain why th hey, rather than the doc ctors’, are co orrect.” Id. (c citation omit tted). 1 2 3 Where an ALJ does no explicitly reject a m A ot y medical opini or set ion forth specif legitimat reasons fo crediting one medica opinion fic, te for al over anothe he errs. See Nguyen v. Chater, 100 F.3d 14 er, S 462, 1464 (9th Cir. 1996). In oth words, an ALJ err when he rejects a her rs medical opi inion or assigns it little w weight while doing noth e hing more than ignorin it, asserti without explanation that anothe medical ng ing er opinion is more pers suasive, or criticizing it with b boilerplate language that fails to of a substan ffer ntive basis fo his conclu for usion. See id. 4 5 6 7 8 9 Ga arrison, 759 F.3d at 1012 2-13 (quotati marks, c ion citations, and footnote om d mitted). In analy yzing whether to accept or reject the opinions of treating and examining physician e f d g 10 United States District Court Northern District of California 11 in light of conf l flicting medi evidence a “nonexa ical e, amining med dical advisor testimony does not by r’s y y 12 itse constitute substantial evidence th warrants a rejection o either the t elf e hat of treating doct tor’s or the 13 exa amining psyc chologist’s opinion.” Le o ester, 81 F.3 at 832. Fu 3d urther, “[t]he purpose fo which e or 14 me edical reports are obtaine does not provide a leg s ed p gitimate basi for rejectin them.” Id Without is ng Id. 15 evi idence of “‘a actual improprieties,’” th Secretary may “‘not a he assume that d doctors routinely lie in 16 ord to help th patients collect disab der heir bility benefit ts.’” Id. (qu uoting Ratto v. Secretary 839 F. y, 17 Sup 1415, 14 (D. Or. 1993)). pp. 426 1 18 2. Whether the ALJ Pr . roperly Eva luated the O Opinions of Dr. Hinma and Dr. f an Kalich 19 In deter rmining whe ether the ALJ erred in hi s evaluation of Dr. Hinm and Dr. Kalich’s n man 20 opi inions, the Court must determine, as a prelimina matter, w C ary whether the A rejected their ALJ d 21 opi inions or ins stead, incorporated them into his RFC If he reje C. ected the opi inions of the doctors, ese 22 the Court must decide whe e t ether the ALJ offered ade J equate reaso for doing so. Johnso highlights ons g on 23 two aspects of Dr. Hinman and Dr. Kalich’s opinio in arguin that the A failed to give them o n ons ng ALJ 24 suf fficient weig ght: 1) his lim mitations as to sitting an standing; and 2) his li nd imitation as t to 25 per rsistence.11 The Court co T oncludes that as to both o these limi t of itations, the ALJ’s RFC is 26 27 28 11 The Commis T ssioner argue in the cro ed oss-motion fo summary judgment th the RFC is consistent for hat t wit Dr. Hinma opinion as to John th an’s ns nson’s postur limitation pointing t the applic ral ns, to cable def finitions of “occasional” and “repetit “ ” tive.” Johns does not challenge th argumen in his son t his nt 41 1 inconsistent with the opinions of Dr. Hinman and Dr. Kalich and that the ALJ failed to articulate 2 adequate reasons for finding that Johnson’s functional abilities were greater than those opined by 3 these physicians. 4 5 a. Sitting/Standing Limitations With respect to sitting/standing limitations, Dr. Hinman opined that Johnson “can likely sit 6 for 4 to 6 hours in an 8-hour day with breaks every 30-45 minutes if necessary due to muscle 7 spasms or cramping. He can only engage in prolonged standing and walking for brief 15 minute 8 periods, for a total of 1-2 hours in an 8-hour day.” AR at 629. Although the ALJ’s RFC includes 9 a requirement that Johnson must be allowed to “alternate sitting and standing at will,” it contains no limitation as to the amount of time in an 8-hour day Johnson can spend either sitting or 11 United States District Court Northern District of California 10 standing; nor does it include any limitation that reflects Dr. Hinman’s opinion (which is at least 12 implied) that Johnson may not always be able to work a full 8-hour day due to muscle spasms or 13 cramping. Rather, the ALJ clearly rejected this aspect of Dr. Hinman’s opinion when he stated 14 that he declined to “accord her opinions controlling weight” because her “comments on the 15 report[] of [Dr.] Bayne . . . essentially amount[s] to advocacy for her patient rather than impartial 16 analysis.” AR at 30. Therefore, the Court finds unpersuasive the Commissioner’s assertion that 17 the ALJ’s RFC reasonably incorporated Dr. Hinman’s opinions as to Johnson’s sitting and 18 standing abilities. 19 Because the ALJ rejected this aspect of Dr. Hinman’s opinion, he was required to articulate 20 adequate reasons for doing so. As Dr. Hinman’s opinion was contradicted by the opinion of Dr. 21 Bayne with respect to Johnson’s sitting and standing abilities, the ALJ was required to provide 22 specific and legitimate reasons for rejecting her opinion. Garrison, 759 F.3d at 1012-13. He did 23 not do so. His conclusory statement that Dr. Hinman’s opinion is mere advocacy (which is the 24 only reason he gives for rejecting Dr. Hinman’s opinion) does not comport with the Ninth Circuit 25 case law. Although the Commissioner argues that the ALJ’s reason was adequate under Saelee v. 26 Chater, that case is entirely distinguishable. There, the court found the ALJ had properly rejected 27 28 Reply brief and therefore, the Court concludes that he has implicitly conceded that in this respect, the ALJ’s RFC is based on a reasonable interpretation of Dr. Hinman’s opinion. 42 1 the opinion of a treating physician as “untrustworthy” because the opinion “was obtained solely 2 for the purposes of the administrative hearing, varied from [the physician’s] own treatment notes, 3 and was worded ambiguously in an apparent attempt to assist [the claimant] in obtaining social 4 security benefits.” 94 F.3d at 522. The ALJ further explained that the ambiguous wording of the 5 doctor’s opinion reflected “an effort by the physician to assist a patient even though there is no 6 objective medical basis for the opinion.” 7 In contrast to the facts of Saelee v. Chater, Dr. Hinman articulated an objective medical 8 basis for her opinion as to Johnson’s sit/stand limitations, namely, her “clinical observations of 9 Mr. Johnson during the last 3+ years.” AR at 629. The record also reflects her extensive treatment relationship with Johnson, which included referrals for various evaluations and tests. In 11 United States District Court Northern District of California 10 addition, Dr. Hinman specifically addressed her reason for concluding that Dr. Bayne’s 12 assessment of Johnson’s limitations was overly “conservative,” pointing to the findings of the 13 Contra Costa therapists in 2010, which, in contrast to the opinions of Dr. Bayne, were based on 14 “actual observations of [Johnson’s] functionality in a simulated work environment.” Id. Given 15 that Dr. Hinman’s opinions were supported by her own treatment relationship and specific 16 findings by the Contra Costa therapists, and in the absence of any evidence of wrongdoing on Dr. 17 Hinman’s part, it was impermissible for the ALJ to dismiss her opinions as to the sit/stand 18 limitation solely on the basis that Dr. Hinman was engaging in “advocacy.” See Nguyen v. 19 Chater, 100 F.3d 1462, 1464 (9th Cir. 1996) (holding that the ALJ had improperly reject the 20 opinion of an examining physician on the basis that that the claimant’s attorney had referred him 21 to the physician for evaluation where there was no evidence of any impropriety on the part of the 22 physician and the physician had provided a “thorough report” that was “based on an examination, 23 a battery of tests, and review of the claimant’s hearing testimony”). 24 The Court also rejects the Commissioner’s suggestion that the opinions of Dr. Bayne, Dr. 25 Jone, and Dr. Hanna “constituted substantial evidence upon which the ALJ could have relied 26 instead of Dr. Hinman’s opinion.” Neither Dr. Hanna nor Dr. Jone examined Johnson and 27 therefore, their opinions as to Johnson’s limitations do not constitute substantial evidence that 28 warrants a rejection of Dr. Hinman’s opinion as to Johnson’s sit/stand limitations. Lester, 81 F.3d 43 1 at 832. Thus, the only evidence that might constitute substantial evidence that supports the ALJ’s 2 RFC as to Johnson’s sit/stand limitations would be Dr. Bayne’s. In the absence of any legitimate 3 explanation by the ALJ as to why Dr. Bayne’s opinions should be given more weight than Dr. 4 Hinman’s opinions, however, the Court cannot not find that the ALJ’s RFC is supported by 5 substantial evidence as to this limitation. 6 b. Persistence Limitation It is also clear that the ALJ rejected the opinions of Dr. Hinman and Dr. Kalich as to 7 8 Johnson’s ability to persist in a work setting. While “an ALJ’s assessment of a claimant 9 adequately captures restrictions related to concentration, persistence, or pace where the assessment is consistent with restrictions identified in the medical testimony,” Stubbs-Danielson v. Astrue, 11 United States District Court Northern District of California 10 539 F.3d 1169, 1174 (9th Cir. 2008), in this case the ALJ did not attempt to translate this 12 restriction into concrete limitations related to the work setting. Instead, he rejected all of Dr. 13 Hinman’s opinions as advocacy and explicitly acknowledged that Dr. Kalich’s opinion as to this 14 limitation, went “slightly further [than his RFC] in opining moderate to marked limitations in 15 persistence.” AR at 30. Thus, the Commissioner’s assertion that the RFC is a reasonable 16 interpretation of Dr. Hinman’s and Dr. Kalich’s opinion as to this limitation has no merit. The opinions of Drs. Hinman and Kalich are contradicted by the opinions of two state 17 18 agency physicians who performed a record review, Drs. Kravatz and Rudnick.12 Therefore, the 19 ALJ was required to offer specific and legitimate reasons for rejecting the opinions of Drs. 20 Hinman and Kalich as to Johnson’s limitations with respect to his ability to persist in the 21 workplace. As discussed above, the single reason provided by the ALJ for rejecting Dr. Hinman’s 22 opinions – that she was engaged in “advocacy” – is not a legitimate reason on this record. As to 23 Dr. Kalich’s opinion, the ALJ offers no specific or legitimate reasons for rejecting her opinion that 24 12 25 26 27 28 As noted above, Dr. Kravatz found that Johnson was moderately limited in his ability to carry out detailed instructions and work in coordination with or in proximity to others without being distracted, but that he was not significantly limited in his ability to carry out simple instructions, perform activities within a schedule and maintain regular attendance, sustain an ordinary routine without supervision, make simple work-related decisions, or complete a normal workday and workweek without interruptions from psychological symptoms. AR at 143. Dr. Rudnick found that Johnson was moderately limited as to his ability to complete a normal work day and work week.” AR at 160. 44 1 Johnson’s ability to persist in a work setting would be moderate to marked and indeed, he 2 concedes that Dr. Kalich’s opinion is “quite nuanced.” The ALJ states that “in all other areas of 3 functioning, [Dr. Kalich’s] opinion is couched in terms of ‘might’ and ‘may,’” AR at 30 (emphasis 4 added), but he does not rely on such language as a basis for rejecting Dr. Kalich’s opinion with 5 respect to persistence. Further, his general statement that all of the medical opinion evidence 6 “gravitates toward the residual functional capacity set forth herein,” is not a specific reason for 7 apparently crediting the opinions of the state agency doctors (who did not examine Johnson) over 8 the opinions of Dr. Kalich (who examined Johnson) and Dr. Hinman (who treated Johnson for 9 more than three years). Moreover, as discussed above, a “nonexamining medical advisor’s testimony does not by itself constitute substantial evidence that warrants a rejection of either the 11 United States District Court Northern District of California 10 treating doctor’s or the examining psychologist’s opinion.” Lester, 81 F.3d at 832. 12 Further, the ALJ’s statement that “the psychological reports are mostly about anger and 13 poor personal relationships, which themselves do not preclude work,” AR at 30, suggests that the 14 ALJ may have relied on an illegitimate reason for rejecting the opinions of Drs. Kalich and 15 Hinman as to Johnson’s ability to persist in a work setting. As discussed above, the record reflects 16 that Johnson’s treating physicians, including Dr. Hinman and Dr. Shapiro, treated him for 17 depression and a possible mood disorder, a primary symptom of which was irritability and anger. 18 Dr. Shapiro prescribed Risperdal to address this symptom. See, e.g., AR at 573. Dr. Kalich’s 19 opinion as to Johnson’s moderate to marked limitation in persistence was based on Johnson’s 20 depression and irritability. In this context, the ALJ’s suggestion that Johnson’s “anger” could not 21 give rise to disability is inconsistent with the standards for evaluating a claimant’s mental residual 22 functional capacity discussed above and appears to be based on the ALJ’s own personal opinion 23 rather than any medical evidence in the record. 24 Accordingly, the Court finds that the ALJ erred in rejecting the opinion of Dr. Hinman as 25 to sitting and standing limitations and the opinions of both Dr. Hinman and Dr. Kalich as to 26 persistence limitations without offering specific and legitimate reasons for doing so. The Court 27 further finds that the ALJ’s RFC is not supported by substantial evidence to the extent that it fails 28 to adequately reflect these opinions. 45 1 2 C. Whether the Case Should be Remanded for Further Proceedings or for Award of Benefits “Usually, ‘[i]f additional proceedings can remedy defects in the original administrative 3 proceeding, a social security case should be remanded.’” Garrison v. Colvin, 759 F.3d 995, 1019 4 (9th Cir. 2014) (quoting Lewin v. Schweiker, 654 F.2d 631, 635 (9th Cir. 1981)). In “appropriate 5 circumstances,” however, “courts are free to reverse and remand a determination by the 6 Commissioner with instructions to calculate and award benefits” to avoid unnecessary delay in the 7 receipt of benefits. Id. (citations omitted). Under this “credit-as-true standard,” a district court 8 must credit that evidence as true and remand for an award of benefits, rather than remanding for 9 further proceedings, where the following conditions are met: 10 (1) the record has been fully developed and further administrative proceedings would serve no useful purpose; (2) the ALJ has failed to provide legally sufficient reasons for rejecting evidence, whether claimant testimony or medical opinion; and (3) if the improperly discredited evidence were credited as true, the ALJ would be required to find the claimant disabled on remand. United States District Court Northern District of California 11 12 13 14 15 Id. at 1019-20. Here, the ALJ failed to provide legally sufficient reasons for rejecting the opinions of Drs. 16 Hinman and Kalich, as discussed above. It is not clear that the other two requirements of the 17 credit-as-true standard are satisfied, however. First, with respect to whether “the record has been 18 fully developed and further administrative proceedings would serve no useful purpose,” the Court 19 finds that further administrative proceedings would be useful. Additional administrative 20 proceedings would allow for clarification regarding the scope of Johnson’s limitations, both as to 21 his ability to sit and stand and as to persistence. Further, at the hearing the VE did not address 22 hypotheticals that incorporated the limitations reflected in the opinions of Drs. Hinman and 23 Kalich. Consequently, to the extent those opinions are credited, further vocational testimony will 24 be helpful to determine whether Johnson is disabled. For the same reason, the Court concludes 25 that the third requirement of the credit-as-true standard is not met. 26 27 Therefore, the Court finds that remanding for further administrative proceedings rather than for an award of benefits is appropriate in this case. 28 46 1 2 IV. CONCLUSION Plaintif Motion for Summary Judgment i GRANTE Defenda ff’s f y is ED. ant’s Motion for n 3 mmary Judg gment is DEN NIED. The case is rema anded to the Commission for furth ner her Sum 4 pro oceedings co onsistent with this opinio h on. 5 6 7 8 IT IS SO ORDER S RED. Da ated: August 24, 2017 t ___ __________ ___________ __________ ________ JO OSEPH C. SP PERO hief ate Ch Magistra Judge 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 47 7

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