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)

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 id.at 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. Id.at 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