Jin Liu v. Carolyn W Colvin

Filing 25

ORDER by Judge Maria-Elena James granting in part and denying in part 14 Motion for Summary Judgment; granting in part and denying in part 21 Motion for Summary Judgment ; Remanding Action for Further Proceedings. (mejlc3, COURT STAFF) (Filed on 1/26/2017)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JIN LIU, Case No. 16-cv-01553-MEJ Plaintiff, 8 v. 9 10 CAROLYN W. COLVIN, Defendant. ORDER RE: CROSS-MOTIONS FOR SUMMARY JUDGMENT; REMANDING ACTION FOR FURTHER PROCEEDINGS Re: Dkt. Nos. 14, 21 United States District Court Northern District of California 11 12 INTRODUCTION 13 14 Plaintiff Jin Liu (“Plaintiff”) brings this action pursuant to 42 U.S.C. § 405(g), seeking 15 judicial review of a final decision of Defendant Carolyn W. Colvin (“Defendant”), Acting 16 Commissioner of Social Security, denying Plaintiff’s claim for disability benefits. Pending before 17 the Court are the parties’ cross-motions for summary judgment. Dkt. Nos. 14 (Pl.’s Mot.), 21 18 (Def.’s Mot.). Pursuant to Civil Local Rule 16-5, the motions have been submitted on the papers 19 without oral argument. Having carefully reviewed the parties’ positions, the Administrative 20 Record (“AR”), and relevant legal authority, the Court hereby GRANTS IN PART Plaintiff’s 21 Motion and GRANTS IN PART Defendant’s Cross-Motion for the reasons set forth below. 22 SOCIAL SECURITY ADMINISTRATION PROCEEDINGS 23 On March 21, 2013, Plaintiff filed a claim for Disability Insurance Benefits, alleging 24 disability beginning on February 8, 2011. AR 157-58. Plaintiff contended he was disabled due to 25 Post Traumatic Stress Disorder (“PTSD”), depression, chronic pain, and back injuries, including 26 lumbar disc disease. AR 70. 27 28 Administrative Law Judge (“ALJ”) Maxine Benmour conducted a hearing on December 11, 2013 (AR 26-69), and issued a decision denying Plaintiff’s application on December 27, 2013. AR 9-20. Plaintiff sought judicial review of this action before the Honorable Phyllis J. Hamilton. 2 AR 838-39; see Liu v. Colvin, 14-cv-01937-PJH (N.D. Cal.). He filed a motion for summary 3 judgment challenging the ALJ’s decision, and the parties stipulated to remanding the action for 4 further administrative proceedings. AR 840-42. Judge Hamilton remanded the action on January 5 30, 2015, with directions for the ALJ to provide Plaintiff with the opportunity for a hearing and to 6 issue a new decision. AR 844-46. Specifically, the court instructed the ALJ to (1) further 7 consider Plaintiff’s medically determinable impairments at Steps Two and Three; (2) give further 8 consideration to the treating and non-treating medical opinions of record and state the weight 9 accorded to each along with the supporting rationale; (3) consider third party statements; (4) 10 reconsider Plaintiff’s residual functional capacity, determine whether he can perform his past 11 United States District Court Northern District of California 1 relevant work, and if necessary, obtain assistance of a vocational expert to determine whether 12 Plaintiff can perform jobs that exist in significant numbers in the national economy. Id. 13 The ALJ held a supplemental hearing on September 3, 2015. AR 768-809. Plaintiff and a 14 vocational expert testified at the supplemental hearing. AR 770-809. On December 29, 2015, the 15 ALJ once more denied Plaintiff’s claim. AR 688-707. Plaintiff now appeals the denial of 16 benefits. This Order reviews the ALJ’s December 19, 2015 decision. EVIDENCE 17 18 Plaintiff is a U.S. Army veteran. He spent several years on active duty, and served in the 19 Reserves from 1997 until his discharge in 2011. The AR includes extensive documentation from 20 the U.S. Department of Veterans Affairs (“VA”), including medical records and records from the 21 proceedings in which the VA found Plaintiff was partially disabled as a result of service-connected 22 physical disability. The AR in this matter is voluminous, and the undersigned only identifies the 23 evidence that is germane to the arguments the parties raise here. Unless otherwise indicated, the 24 parties stipulate to the following facts (see Pl.’s Sep. Stmt. at ¶¶ 41-42, 73-78, 80-90, Dkt. No. 14- 25 1; Def.’s Sep. Stmt. at 1, Dkt. No. 21-1): 26 A. 27 28 Medical Evidence of Record In 2009, Plaintiff’s VA treaters interpreted his lumbar spine x-rays as suspicious for lower 2 1 thoracic spine disease, S1 degenerative disease, and S1 spina bifida occulta. AR 249, 371. 2 Plaintiff visited the VA pain clinic on a regular basis in 2010; that year he also underwent a 3 “bilateral lumbar radio facet thermocautery,” a diagnostic posterior primary ramus block, and he 4 received a corticosteroid injection for spina bifida and low back pain. AR 262-65, 297, 319, 347. 5 In 2011, Plaintiff was prescribed a cane. AR 444-46. In 2012, Plaintiff underwent a bilateral L4-5 6 and a right L5-S1 facet medial branch block injection. AR 553-54. 7 The VA determined that Plaintiff is partially disabled as of May 2012 as the result of a 8 service-connected low-back condition (radiculopathy and thoracolumbar spondylosis) and 9 gastroesophageal reflux disease with hiatal hernia. AR 223-25. Plaintiff has been treated by VA psychiatrist Christine Leyba, M.D., since September 11 United States District Court Northern District of California 10 2012. AR 545, 587-90. Dr. Leyba diagnosed Plaintiff with PTSD, which he sustained after seeing 12 a good friend crushed by an armed personnel carrier. AR 546-48. Dr. Leyba prescribed 13 medications to treat Plaintiff’s symptoms. AR 519, 547-48. 14 Dr. Leyba opined that Plaintiff’s physical pain was connected to his PTSD symptoms. She 15 wrote that Plaintiff “may be dealing with emotional pain in a somatic manner.” AR 517, 548. She 16 also wrote that his physical pain exacerbated his depressive symptoms, concentration and mood 17 problems, and PTSD symptoms, including sleep problems. AR 582 (“In my professional opinion 18 it is more likely than not that Mr. Liu’s service connected pain is exacerbating his mental state.”) 19 In April 2013, Dr. Leyba completed a Social Security Administration (“SSA”) Short Form 20 Evaluation for Mental Disorders for Plaintiff. AR 587-90. She reported Plaintiff had “poor” 21 ability in several areas of mental functioning, including (1) understanding, remembering and 22 carrying out complex instructions; (2) maintaining concentration, attention and persistence; (3) 23 completing a normal workday and workweek without interruptions from psychologically based 24 symptoms; and (4) responding appropriately to changes in a work setting. AR 590. The SSA 25 Short Form defines “poor” as when “evidence supports the conclusion that the individual cannot 26 usefully perform or sustain the activity.” AR 590. 27 Also in April 2013, Dr. Leyba referred Plaintiff to Dr. Kristi Steh to undergo a full 28 3 1 neuropsychological evaluation. AR 1026-36. Dr. Steh found Plaintiff’s attention and 2 concentration ranged from average to impaired, with improved performance as the tasks became 3 more difficult. AR 1029-31. Dr. Steh found Plaintiff’s overall cognitive profile was variable, 4 with many of his performances falling below expectation, and noted that Plaintiff’s performance 5 appeared to improve as the evaluation progressed and he became more relaxed. AR 1031-32. Dr. 6 Steh did not set forth specific functional limitations but recommended that Plaintiff learn new 7 information in small chunks, allow ample time to learn new material, and break down complex 8 tasks. AR 1034. In November 2013, Dr. Leyba completed an SSA Medical Source Statement Concerning 10 the Nature and Severity of an Individual’s Mental Impairment (“MSS”). AR 651-55. Dr. Leyba 11 United States District Court Northern District of California 9 opined that Plaintiff had a “substantial loss” of ability to respond appropriately to supervision, co- 12 workers and usual work situations, and a “substantial loss” of ability to deal with changes in a 13 routine work setting. AR 654. She opined Plaintiff had “moderately severe” limitations in nine 14 categories: the ability (1) to understand and remembered detailed instructions; (2) maintain 15 attention and concentration for extended periods; (3) work in coordination with or proximity to 16 others without being unduly distracted by them; (4) complete a normal workday and workweek; 17 (5) interact appropriately with the general public; (6) accept instructions and respond appropriately 18 to criticism from supervisors; (7) get along with co-workers or peers without unduly distracting 19 them or exhibiting behavioral extremes; (8) maintain socially appropriate behavior and adhere to 20 basic standards of neatness and cleanliness; and (9) respond appropriately to changes in the work 21 setting. AR 652-53. The MSS defines “moderately severe” limitations as limitations that 22 “seriously interfere[] with the individual’s ability to perform the designated activity, and 23 preclude[] the ability to perform the designated activity on a regular and sustained basis, i.e., 8 24 hours a day, 5 days a week, or an equivalent work schedule.” AR 651. 25 In April 2014, Dr. Leyba wrote a letter indicating that “[b]ecause of his pain” Plaintiff is 26 “unable to stand or sit for long periods of time. He has not worked for some time because of this. 27 He has tried retraining for a different profession but his disabilities make it impossible for him to 28 4 1 obtain and keep gainful employment. He should be considered unemployable.” AR 960. In November 2014, Plaintiff presented to Dr. Steh for a second neuropsychological 2 3 evaluation. AR 1106-09. Plaintiff reported significant cognitive difficulties. Id. Dr. Steh and 4 Plaintiff “mutually decided to end the evaluation” after Plaintiff indicated he did not feel he would 5 be able to engage in the neuropsychological assessment. AR 1109. In March 2015, Dr. Leyba wrote in a letter that Plaintiff’s “depression is clearly related to 6 7 his pain for which he is service connected. He has issues with sleep, mood, and concentration 8 from depression. When his pain is worse, his depressive symptoms definitely become worse. In 9 my professional opinion, it is more likely than not that his depression is directly related to his 10 service connected pain issues.” AR 955. In April 2015, Dr. Leyba wrote in a letter that Plaintiff “is followed in our clinic for back United States District Court Northern District of California 11 12 problems and depression. Both can impact his ability to manage school work, and he requires 13 accommodation as a disabled student.” AR 959. Dr. Leyba opined that Plaintiff needed 14 additional time to take tests, needed to receive presentation materials ahead of time, needed to sit 15 or stand at his discretion, and that it would be helpful for him to use voice recognition software so 16 he did not need to type, as typing was painful for him. Id. She opined Plaintiff “cannot take more 17 than 1 class during a term because of concentration issues.” AR 959. 18 B. 19 Plaintiff’s Testimony At the December 11, 2013 hearing, Plaintiff testified he was a medical specialist in the 20 U.S. military from 1991 until September 2007, and a chemical specialist from that point until 21 2011. AR 29. In 1992, he saw his friend killed when an armed personnel carrier rolled over; he 22 attributes his PTSD to this incident. AR 37. Plaintiff fell off a military truck in 2007, injuring his 23 back. AR 31. He injured his back a second time in 2010 when he fell from the top bunk. AR 31. 24 He was on active duty until 1997, in the reserves from 1997 to 2007, and once more on active duty 25 from 2007 to 2011. AR 42. While in the reserves, Plaintiff was called up once a month and two 26 weekends a year. AR 44-45. He also helped with his family’s restaurant business. AR 45-46. He 27 otherwise did not work. AR 44-46. 28 5 In 2013, Plaintiff testified he stopped working because his contract with the Army had 1 2 ended. AR 29; see also AR 43 (Plaintiff’s attorney noted Plaintiff’s separation was due to a 3 reduction in force). In 2015, Plaintiff testified he stopped working because he failed to meet the 4 Army’s body and weight standards, he was unable to participate in the physical training, and 5 because of military downsizing. AR 773, 793. He did not look for other work after leaving the 6 Army in February 2011 because he planned to go back to school. AR 773-74. Plaintiff attended college between 2012 and 2015. AR 35-36. In 2013, he attended classes 7 four days per week in two two-hour segments (7:30-9:30 and 10:00-12:00). AR 55. He did his 9 homework in the afternoons. AR 56. He took a leave of absence in 2013 for twelve weeks. AR 10 35, 774-75. He quit school permanently after the spring semester of 2015 because he could not 11 United States District Court Northern District of California 8 keep up in class due to his memory problems. AR 774-77. He estimates he missed school more 12 than five days a month because of anxiety, depression, and pain. AR 790. At both the December 2011 and the September 3, 2015 hearings, Plaintiff testified he 13 14 began seeing Dr. Leyba once a month starting in 2012 for his depression. AR 39-40, 48-49, 783. 15 She prescribed Ambien for sleep, Xanax for mood control, and Adderall for concentration. AR 16 47-48. 17 At the September 2015 hearing, Plaintiff testified his pain was “mind numbing” and his 18 low back hurt “24/7”. AR 31-32, 781-82. He could only sit for 15-20 minutes before his pain 19 became so bad he could not stand it anymore. AR 793. In 2011, Plaintiff began seeing Dr. Myo 20 Chang at the VA; Dr. Chang prescribed Percocet and Oxycontin for his back pain, and 21 recommended physical therapy and chiropractic treatment. AR 32-33; see also AR 784 (Dr. 22 Leyba prescribed medication, which helped). 23 Since 2011, Plaintiff has used a cane prescribed by the VA the majority of the time, even 24 inside his house. AR 781. He would not leave the house without his cane. AR 794. With his 25 cane, he can walk a quarter to a half-mile. AR 794. He can stand for half an hour or so. Id. 26 27 28 He testified that he has memory problems and that he regularly has whole days he cannot recall. AR 777. Plaintiff only gets up and dressed three times a week; he stays in bed watching 6 1 television most of the day if he does not have appointments. AR 786-87. He does no housework, 2 and he has a driver because he no longer drives. AR 779, 786-87, 792, 794-95. 3 C. The ALJ’s Findings 4 The regulations promulgated by the Commissioner of Social Security provide for a five- 5 step sequential analysis to determine whether a Social Security claimant is disabled.1 20 C.F.R. 6 § 404.1520. The sequential inquiry is terminated when “a question is answered affirmatively or 7 negatively in such a way that a decision can be made that a claimant is or is not disabled.” Pitzer 8 v. Sullivan, 908 F.2d 502, 504 (9th Cir. 1990). During the first four steps of this sequential 9 inquiry, the claimant bears the burden of proof to demonstrate disability. Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009). At step five, the burden shifts to the 11 United States District Court Northern District of California 10 Commissioner “to show that the claimant can do other kinds of work.” Id. (quoting Embrey v. 12 Bowen, 849 F.2d 418, 422 (9th Cir. 1988)). At the first step, the ALJ must initially determine whether the claimant is performing 13 14 “substantial gainful activity,” which would mandate that the claimant be found not disabled 15 regardless of medical condition, age, education, and work experience. 20 C.F.R. § 16 404.1520(a)(4)(i), (b). Here, the ALJ determined that Plaintiff had not performed substantial 17 gainful activity between February 8, 2011 and June 30, 2015 (the date Plaintiff was last insured). 18 AR 693. At step two, the ALJ must determine, based on medical findings, whether the claimant has 19 20 a “severe” impairment or combination of impairments as defined by the Social Security Act. 20 21 C.F.R. § 404.1520(a)(4)(ii). If no severe impairment is found, the claimant is not disabled. Id. 22 § 404.1520(c). Here, the ALJ determined that Plaintiff had the following severe impairments: 23 posttraumatic stress disorder (“PTSD”), lumbar spine degenerative disc disease, personality 24 disorder, obesity, attention deficit hyperactivity disorder (“ADHD”), and depression. AR 693. 25 26 27 28 1 “Disability” is the “inability to engage in any substantial gainful activity” because of a medical impairment which can result in death or “which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). 7 1 If the ALJ determines that the claimant has a severe impairment, the process proceeds to 2 the third step, where the ALJ must determine whether the claimant has an impairment or 3 combination of impairments that meet or equal a “listed impairment.” See 20 C.F.R. § 4 404.1520(a)(4)(iii); id. § 404.1520(d). If a claimant’s impairment either meets the listed criteria 5 for the diagnosis or is medically equivalent to the criteria of the diagnosis, he is conclusively 6 presumed to be disabled, without considering age, education and work experience. Id. § 7 404.1520(d). Here, the ALJ determined that Plaintiff did not have an impairment or combination 8 of impairments that meets the listings. AR 694. Specifically, the ALJ found Plaintiff did not meet 9 Listings 1.04 (Disorders of the Spine), 12.04 (Affective Disorders), and 12.06 (Anxiety-related Disorders). Id. The ALJ also considered the effects of Plaintiff’s obesity. Id. The ALJ 11 United States District Court Northern District of California 10 concluded Plaintiff did not meet Listing 1.04 because later imaging showed normal lumbar spine 12 x-ray. AR 694. With respect to the Listings for mental impairments, the ALJ found Plaintiff did 13 not have at least two “marked” limitations in the relevant criteria. AR 694. 14 Before proceeding to step four, the ALJ must determine the claimant’s Residual Function 15 Capacity (“RFC”). 20 C.F.R. § 404.1520(e). RFC refers to the most an individual can do in a 16 work setting, despite mental or physical limitations caused by impairments or related symptoms. 17 Id. § 404.1545(a)(1). In assessing an individual’s RFC, the ALJ must consider all of the 18 claimant’s medically determinable impairments, including the medically determinable 19 impairments that are non-severe. Id. § 404.1545(e). Here, the ALJ determined that Plaintiff has 20 the RFC to perform light work, with the following exceptions: he could lift and/or carry 20 21 pounds occasionally and 10 pounds frequently; could sit for six out of eight hours; could stand 22 and/or walk for two out of eight hours; needed a cane to walk long distances or on uneven terrain; 23 could occasionally climb, balance, stoop, kneel, crouch, and crawl; was limited to simple 24 repetitive tasks with occasional contact with the public; and required additional supervision when 25 learning new tasks and twice an hour for 10 minutes at a time during one hour of training. AR 26 695-96. 27 The fourth step of the evaluation process requires that the ALJ determine whether the 28 8 1 claimant’s RFC is sufficient to perform past relevant work. 20 C.F.R. §§ 404.1520(a)(4)(iv); 2 404.1520(f). Past relevant work is work performed within the past 15 years that was substantial 3 gainful activity, and that lasted long enough for the claimant to learn to do it. Id. § 4 404.1560(b)(1). If the claimant has the RFC to do his past relevant work, the claimant is not 5 disabled. Id. § 404.1520(a)(4)(iv). Here, the ALJ determined Plaintiff could not perform any past 6 relevant work. AR 705. In the fifth step of the analysis, the burden shifts to the Commissioner to prove there are 7 other jobs existing in significant numbers in the national economy which the claimant can perform 9 consistent with the claimant’s RFC, age, education, and work experience. See 20 C.F.R. 10 §§ 404.1520(g); 404.1560(c). The Commissioner can meet this burden by relying on the 11 United States District Court Northern District of California 8 testimony of a vocational expert or by reference to the Medical-Vocational Guidelines. See 12 Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006). If the Commissioner meets this 13 burden, the claimant is not disabled and is not entitled to benefits. Id. If the Commissioner cannot 14 meet this burden, the claimant is entitled to benefits. Id. Here, based on the testimony of the 15 vocational expert, Plaintiff’s age, education, work experience, and RFC, the ALJ determined 16 Plaintiff could perform jobs that exist in significant numbers in the national economy. AR 705-06 17 (Plaintiff could perform the requirements of occupations such as bench assembler, mail clerk, and 18 merchandise marker). 19 D. 20 ALJ’s Decision and Plaintiff’s Appeal On December 29, 2015, the ALJ again issued an unfavorable decision finding that Plaintiff 21 was not disabled. AR 688-707. Pursuant to 20 C.F.R. § 404.984(d), this decision became the 22 final decision of the agency upon remand. Having exhausted all administrative remedies, Plaintiff 23 commenced this action for judicial review pursuant to 42 U.S.C. § 405(g). See Compl., Dkt. No. 24 1. On August 2, 2016, Plaintiff filed the present Motion for Summary Judgment. On November 25 7, 2016, Defendant filed a Cross-Motion for Summary Judgment. 26 27 28 Plaintiff argues the ALJ applied incorrect legal standards to find that the opinions of Dr. Leyba, his treating physician, were not entitled to controlling weight. Pl.’s Mot. at 4-14. As a 9 1 result, Plaintiff argues, the ALJ erred in finding his impairments did not meet or equal a listed 2 impairment, and erred in finding he could perform a limited range of light work. Id. at 2-3. 3 Plaintiff also argues the ALJ improperly rejected the opinion of “examining physician” Dr. 4 Brandon. Id. at 15. He further argues the ALJ improperly rejected the credibility of his 5 allegations. Id. at 15-23. Finally, Plaintiff argues the ALJ failed to resolve conflicts between the 6 VE’s testimony and the Dictionary of Occupational Titles (“DOT”). Id. at 23-25. Defendant 7 argues the ALJ did not err, and the Commissioner’s decision should be upheld. See Def.’s-Mot. 8 9 LEGAL STANDARD This Court has jurisdiction to review final decisions of the Commissioner pursuant to 42 U.S.C. § 405(g). The ALJ’s decision must be affirmed if the findings are “supported by 11 United States District Court Northern District of California 10 substantial evidence and if the [ALJ] applied the correct legal standards.” Holohan v. Massanari, 12 246 F.3d 1195, 1201 (9th Cir. 2001) (citation omitted). “Substantial evidence means more than a 13 scintilla but less than a preponderance” of evidence that “a reasonable person might accept as 14 adequate to support a conclusion.” Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) 15 (quoting Flaten v. Sec’y of Health & Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995)). The 16 court must consider the administrative record as a whole, weighing the evidence that both supports 17 and detracts from the ALJ’s conclusion. McAllister v. Sullivan, 888 F.2d 599, 602 (9th Cir. 1989). 18 However, “where the evidence is susceptible to more than one rational interpretation,” the court 19 must uphold the ALJ’s decision. Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). 20 Determinations of credibility, resolution of conflicts in medical testimony, and all other 21 ambiguities are to be resolved by the ALJ. Id. 22 Additionally, the harmless error rule applies where substantial evidence otherwise supports 23 the ALJ’s decision. Curry v. Sullivan, 925 F.2d 1127, 1131 (9th Cir. 1990). A court may not 24 reverse an ALJ’s decision on account of an error that is harmless. Molina v. Astrue, 674 F.3d 25 1104, 1111 (9th Cir. 2012) (citing Stout v. Comm’r, SSA, 454 F.3d 1050, 1055-56 (9th Cir. 2006)). 26 “‘[T]he burden of showing that an error is harmful normally falls upon the party attacking the 27 agency’s determination.’” Id. (quoting Shinseki v. Sanders, 556 U.S. 396, 409 (2009)). 28 10 DISCUSSION 1 2 A. Dr. Leyba 3 1. SSA Standards for Weighing Opinion of Treating Physician 4 Physicians opining about a social security claimant’s condition “may render medical, 5 clinical opinions, or they may render opinions on the ultimate issue of disability—the claimant’s 6 ability to perform work.” Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (citation omitted). 7 “Generally, the opinions of examining physicians are afforded more weight than those of non- 8 examining physicians, and the opinions of examining non-treating physicians are afforded less 9 weight than those of treating physicians.” Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007) (citing 10 20 C.F.R. § 404.1527(d)(1)-(2)); see also 20 C.F.R. § 404.1527(d). If a treating physician’s medical opinion is well-supported and not inconsistent with other United States District Court Northern District of California 11 12 substantial evidence in the record, the ALJ must give the treater’s opinion “controlling weight.” 13 20 C.F.R. § 404.1527(c)(2); Soc. Sec. Rul. (“SSR”) 96-2p. “Not inconsistent” means no other 14 substantial evidence contradicts or conflicts with the treater’s opinion. SSR 96-2p. But it is error 15 to give a treater’s opinion controlling weight simply because it is from a treating physician, if the 16 opinion is not well supported by medically acceptable diagnostic techniques, or if it is inconsistent 17 with other medical evidence. Id. However, to reject the uncontradicted opinion of a treating or 18 examining doctor, an ALJ must state “clear and convincing reasons supported by substantial 19 evidence in the record.” Reddick, 157 F.3d at 725 (quotation and citation omitted). The ALJ Gave Dr. Leyba’s Opinions Only Limited Weight 20 2. 21 The ALJ acknowledged the record contained “many opinions from the claimant’s treating 22 doctor, Dr. Christine Leyba.” AR 702-03 (describing Dr. Leyba’s assessments of April 2013, 23 November 2013, April 2014, March 2015, and April 2015).2 She acknowledged a treating 24 25 26 27 28 2 The ALJ did not find that other medical sources contradicted Dr. Leyba’s opinions, and the SSA did not have Plaintiff undergo a mental health examination in connection with his application for disability benefits. Dr. Leyba’s opinions thus were uncontradicted. Defendant argues the two State agency physicians who opined that Plaintiff did not have a severe impairment contradict Dr. Leyba’s opinions regarding Plaintiff’s physical limitations and therefore support the ALJ’s decision to give Dr. Leyba’s opinions little weight. See Def.’s Mot. at 5. This argument fails. 11 1 physician’s medical opinion is entitled to “special significance, and, when supported by objective 2 medical evidence and consistent with other substantial evidence of record, entitled to controlling 3 weight.” AR 703 (citing SSR 96-2p); cf. AR 703-04 (“The doctor’s opinions are without 4 substantial support from the other evidence of record . . . . Dr. Leyba’s opinion . . . is not 5 supported by the objective findings nor those of any other medical source.”). The ALJ 6 nevertheless did not afford Dr. Leyba’s opinions substantial or controlling weight, and instead 7 only afforded them limited weight. See AR 703-04. The ALJ gave limited weight to Dr. Leyba’s 8 April 2014 opinion that Plaintiff cannot sit for long periods of time and needs a sit/stand option 9 (AR 960), because as a psychiatrist, Dr. Leyba had not treated Plaintiff for his physical impairments, including his back pain: “[a]s such, her opinion appears to rest at least in part on an 11 United States District Court Northern District of California 10 assessment of impairments outside of [her] area of expertise.” AR 703. The ALJ also gave 12 limited weight to Dr. Leyba’s multiple assessments of Plaintiff’s mental health limitations because 13 her opinions were not supported by objective medical evidence, including her own treatment notes 14 that showed “many normal mental status examinations” and indicated that Plaintiff’s symptoms 15 and functioning improved with treatment. AR 703. The ALJ concluded Dr. Leyba’s opinions 16 were “without substantial support from the other evidence of record, which obviously renders 17 them less persuasive.” AR. 703; see also id. at 704 (“Dr. Leyba’s opinion regarding the 18 claimant’s mental limitations has not been provided substantial or controlling weight because it is 19 not supported by the objective findings nor those of any other medical source.”). Finally, the ALJ 20 gave limited weight to Dr. Leyba’s April 2015 letter noting Plaintiff needed accommodation at 21 school because “this letter is addressed to his issues at school and does not pertain to social 22 security and related to social security disability requirements.” AR 703. Although the ALJ 23 accounted for Plaintiff’s PTSD and irritability by limiting him to occasional public contact and for 24 his ADHD and concentration issues by limiting him to simple, repetitive work with additional 25 26 27 28 The ALJ herself gave “little weight” to these evaluators’ opinions because neither examined Plaintiff nor reviewed the most recent evidence of record. AR 704. This Court is constrained to review the reasons asserted by the ALJ, and cannot accept Defendant’s invitation to engage in post hoc rationalization. See Burrell v. Colvin, 775 F.3d 1133, 1141 (9th Cir. 2014). 12 1 supervision in learning new tasks, the ALJ found the record did not support any of the other 2 limitations assessed by Dr. Leyba. AR 704. Plaintiff argues the Commissioner applied incorrect legal standards to find Dr. Leyba’s 3 4 opinions as a treating physician were not entitled to controlling weight. Pl.’s Mot. at 4-14. Had 5 Dr. Leyba’s opinions regarding his mental and physical limitations been given the appropriate 6 weight, Plaintiff contends the ALJ would have determined he met or equaled a Listing at Step 7 Three of the sequential evaluation. Id. at 2-3. 3. 9 The ALJ erred in discounting Dr. Leyba’s opinions about Plaintiff’s mental health 10 limitations because they are “without substantial support from the other evidence of record.” AR 11 United States District Court Northern District of California 8 703. In so doing, the ALJ applied the incorrect standard. A treater’s opinion does not need 12 “substantial support” from the other evidence of record; it only needs to be “well supported” by 13 “medically acceptable clinical and laboratory diagnostic techniques.” SSR 96-2p. An opinion is 14 “well supported” if there is “some reasonable support” for it. Id. There is “some reasonable 15 support” for Dr. Leyba’s opinions, notably her longitudinal observations and treatment of Plaintiff 16 since 2012, as well as her review of Plaintiff’s other treatment records (including Dr. Steh’s 17 neuropscychological evaluations (AR 1026-36, 1105-11), the VA’s treatment of Plaintiff’s 18 physical ailments since 2010, and the VA’s 2012 determination that Plaintiff had a service- 19 connected disabling low-back condition (AR 223-25)). Her opinions are further supported by the 20 multiple medications she and Dr. Chang prescribed for Plaintiff’s mood, concentration, sleep, and 21 pain. 22 Analysis To the extent the ALJ concluded Dr. Leyba’s treatment notes did not support her opinion, 23 she also erred. First, the ALJ erred in relying entirely on her own interpretation of Dr. Leyba’s 24 notes describing the mental status examinations. But see 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 25 12.00(C)(3) (“We must exercise great care in reaching conclusions about your ability or inability 26 to complete tasks under the stresses of employment during a normal workday or work week based 27 on a time-limited mental status examination or psychological testing by a clinician . . . .”). If the 28 13 ALJ felt the voluminous record did not support Dr. Leyba’s uncontradicted opinions, which Dr. 2 Leyba offered after treating Plaintiff for several years, the ALJ had a duty to fully develop the 3 record and, at a minimum, ask Dr. Leyba to provide greater information regarding the basis for her 4 opinions. See Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996) (the “ALJ has a special duty 5 to fully and fairly develop the record and to assure that the claimant’s interests are considered . . . . 6 If the ALJ thought he needed to know the basis of [a doctor’s] opinions in order to evaluate them, 7 he had a duty to conduct an appropriate inquiry, for example by subpoenaing the physicians or 8 submitting further questions to them.” (citing Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 9 1983)). The ALJ also could have subpoenaed Dr. Leyba or ordered additional testing. Second, 10 the ALJ’s summary of Dr. Leyba’s mental status exams acknowledges that in the majority of the 11 United States District Court Northern District of California 1 exams, Dr. Leyba noted complaints about concentration, anxiety, irritability, and sleep problems; 12 many times noted Plaintiff had suicidal thoughts; and once noted Plaintiff experienced a 13 dissociative episode. AR 697-98.3 Although the mental status exams show that Plaintiff felt 14 better on some days than others, on the whole, these support Dr. Leyba’s opinion that Plaintiff had 15 “marked” difficulties with memory and concentration. See Garrison v. Colvin, 759 F.3d 995, 16 1017 (9th Cir. 2014) (“[I]t is error to reject a claimant’s testimony merely because symptoms [of 17 mental health issues] wax and wane in the course of treatment. Cycles of improvement and 18 debilitating symptoms are a common occurrence, and in such circumstances it is error for an ALJ 19 to pick out a few isolated instances of improvement over a period of months or years and to treat 20 them as a basis for concluding a claimant is capable of working.”); see also Holohan v. 21 Massanari, 246 F.3d 1195, 1205 (9th Cir. 2001) (because a person suffering from mental health 22 impairments improves does not mean the person’s impairments no longer affect ability to work). 23 Dr. Steh’s evaluation also supports Dr. Leyba’s opinions, and suggests Plaintiff’s performance is 24 affected by his comfort level, which may be different in a work setting than a doctor’s office. Dr. 25 26 27 28 3 The Court does not adopt Defendant’s description of these as “reveal[ing] many generally normal mental status examinations.” Def.’s Mot. at 3; id. at 6 (referencing “many normal mental status examinations but for an irritable mood and some concentration problems” but failing to acknowledge exams repeatedly mentioned suicidal thoughts). 14 1 Leyba’s opinions were “well supported” and the ALJ failed to give sufficient weight to the 2 subjective aspects of Dr. Leyba’s opinions. See Embrey, 849 F.2d at 421-22 (“To say that medical 3 opinions are not supported by sufficient objective findings or are contrary to the preponderant 4 conclusions mandated by the objective findings does not achieve the level of specificity our prior 5 cases have required, even when the objective factors are listed seriatim.”). 6 The ALJ also erred in discounting Dr. Leyba’s opinion regarding Plaintiff’s pain-related limitations. The ALJ discounted that opinion because Dr. Leyba did not provide treatment for 8 Plaintiff’s back pain. On the contrary, Dr. Leyba repeatedly opined that Plaintiff’s back pain was 9 connected to his mental condition in multiple ways: the pain exacerbated his mental state, his 10 mood disorder affected his pain perception, and he may be dealing with his emotional pain in a 11 United States District Court Northern District of California 7 somatic manner. The record reflects that Dr. Leyba considered Plaintiff’s pain to be an integral 12 part of his mental health condition, and thus her treatment of Plaintiff included evaluating and 13 attempting to address his pain to the extent it was a somatic expression and/or his mood disorder 14 affected his perception of the pain. The fact the State agency physicians opined Plaintiff had no 15 severe physical impairments therefore does not contradict Dr. Leyba’s opinion that Plaintiff’s 16 mental state was contributing to his pain. 17 The ALJ’s reasons for rejecting the opinion Dr. Leyba articulated in her April 2015 letter 18 are also not clear and convincing. The ALJ discounted Dr. Leyba’s opinion that Plaintiff needed 19 accommodations when attending school four hours a day, four days per week on the sole basis it 20 addressed issues at school rather than Plaintiff’s functional abilities as related to his SSA 21 application for disability. Dr. Leyba, based on her treatment and understanding of Plaintiff’s 22 condition, opined that Plaintiff could not perform adequately in a school setting on a part-time 23 basis absent certain accommodations. In fact, even with accommodations, Plaintiff took a leave of 24 absence from school and eventually stopped pursuing his degree because he did not feel able to 25 keep up with his schoolwork. Such limitations might, logically, apply to Plaintiff’s ability to 26 perform adequately in a work setting on a full-time basis and thus be relevant to the SSA 27 evaluation of disability. 28 15 To the extent Dr. Leyba opined Plaintiff was “unemployable” (AR 703 (citing April 2014 1 2 letter)), however, the ALJ did not err in rejecting her opinion. The ultimate issue of disability is 3 reserved to the Commissioner. 20 C.F.R. § 404.1527(d)(1) (“We are responsible for making the 4 determination or decision about whether you meet the statutory definition of disability. . . . A 5 statement that you are ‘disabled’ or ‘unable to work’ does not mean that we will determine that 6 you are disabled.”). 7 In sum, the reasons the ALJ articulated for rejecting Dr. Leyba’s opinions were not “clear 8 and convincing.” Plaintiff asks the Court to make a finding of presumptive disability rather than 9 remand the action. Pl.’s Mot. at 14. The Court finds this case would benefit from further administrative proceedings to give the ALJ the opportunity to develop the record by obtaining 11 United States District Court Northern District of California 10 additional information from Dr. Leyba or Dr. Steh, or requiring Plaintiff to undergo a mental 12 health examination with an SSA consultant. As such, the Court declines to apply the credit as true 13 doctrine. See Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1105 (9th Cir. 2014). 14 B. 15 Dr. Brandon In July 2014, Dr. Elizabeth Brandon, D.O., reviewed Plaintiff’s back examination and 16 complete Veterans Benefits Management System claim file and treatment records. AR 1111. The 17 VA specifically asked Dr. Brandon to review the information and “comment on the functional 18 impairment caused solely by the veteran’s service-connected lumbar spine condition with bilateral 19 lower extremity radiculopathy.” Id. Dr. Brandon opined that based on Plaintiff’s back condition, 20 sedentary or semi sedentary work would be expected to be unrestricted. He demonstrates on exam severe limitation of back [range of motion] and has subjective complaints of radiculopathy. He continues to have a normal strength testing exam, normal reflexes, normal xray and no MRI imaging studies of the lumbar spine that would indicate the lumbar spine as being the primary source of the pathology limiting his functional status. Therefore, based on known objective findings and studies, there is no pathology identified beyond subjective complaints, the severity of which are inconsistent with known pathology of the area, that would restrict the Veteran’s functional status in sedentary or semi sedentary occupations. 21 22 23 24 25 26 AR 1111-12. The ALJ did not address Dr. Brandon’s opinion in her decision. Plaintiff argues this 27 28 16 1 failure to address or give any reasons for rejecting Dr. Brandon’s opinion is reversible error. Pl.’s 2 Mot. at 15. Plaintiff argues that Dr. Brandon limits him to sedentary or semi sedentary work. Id. But 3 4 Dr. Brandon merely opines that “sedentary or semi sedentary work would be expected to be 5 unrestricted” – Dr. Brandon does not opine that Plaintiff could not perform light jobs with 6 restrictions. AR 1111; see also id. at 1111-12 (“[T]here is no pathology identified beyond 7 subjective complaints, the severity of which are inconsistent with the known pathology of the area, 8 that would restrict [claimant’s] functional status in sedentary or semi sedentary occupations.”). As 9 stated, Dr. Brandon’s opinion does not support greater limitations than those assessed by the ALJ. The ALJ’s failure to address Dr. Brandon’s opinion is harmless error. 11 United States District Court Northern District of California 10 C. 12 Plaintiff’s Credibility The ALJ found Plaintiff’s testimony regarding the intensity, persistence, and limiting 13 effects of his symptoms was not “entirely credible.” AR 700. The ALJ did not make any findings 14 of malingering, and therefore could reject Plaintiff’s subjective complaints only by making 15 specific credibility findings. See SSR 96-7p (credibility findings “must be sufficiently specific to 16 make clear to the individual and to any subsequent reviewers the weight the adjudicator gave to 17 the individual’s statements and the reasons for that weight.”); see also Thomas, 278 F.3d at 958 18 (credibility finding must be properly supported by record and sufficiently specific to ensure 19 reviewing court that ALJ did not “arbitrarily discredit” claimant’s subjective testimony). 20 The ALJ made a number of specific credibility findings. First, the ALJ discounted 21 Plaintiff’s credibility because the daily activities Plaintiff described “are not limited to the extent 22 that one would expect, given the complaints of disabling symptoms and limitations.” AR 700. 23 For example, the ALJ focused on Plaintiff’s report that he had limited difficulty attending to his 24 personal care needs, can make simple meals, goes outside daily, drives a car, handles money and 25 pays bills, and attends school. Id. While an ALJ should not penalize a claimant for striving to 26 perform necessary activities of daily living (see, e.g., Long v. Colvin, 2015 WL 971198, at *8 27 (N.D. Cal. Mar. 3, 2015 (citing Ninth Circuit cases)), the ALJ focused on the fact Plaintiff 28 17 1 attended school for several years, out of his home and in the presence of others, as a reason for 2 discrediting Plaintiff’s testimony that he could not leave the house and that being around others 3 was difficult. The physical and mental abilities, and social interactions, required to perform the 4 activities Plaintiff admitted to participating in, the ALJ opined, “are the same as those necessary 5 for obtaining and maintaining employment.” AR 700. Similarly, the ALJ also cited the fact that 6 Plaintiff’s PTSD did not interfere with his work while in the Army, and that the VA did not base 7 his disability rating on his mental condition. AR 701. These are specific credibility findings that 8 are supported by the record. Second, the ALJ discounted Plaintiff’s credibility because evidence indicated he stopped 10 working for reasons unrelated to his disability: he was discharged from the military after he was 11 United States District Court Northern District of California 9 unable to pass a physical and because the military was downsizing. AR 700. Plaintiff also 12 testified he did not look for other work not because he was disabled, but because he planned to 13 attend school, which he did for a time despite concentration problems. AR 700. The ALJ 14 weighed Plaintiff’s conflicting testimony and discredited Plaintiff’s argument he stopped working 15 because of his claimed disability. This is a rational interpretation of the evidence. See 16 Magallanes, 881 F.2d at 750. 17 Third, the ALJ discounted Plaintiff’s credibility because there was no objective diagnostic 18 explanation for the level of pain he claimed to be experiencing, and because he responded well to 19 treatment. See AR 700 (the record showed “normal lumbar x-ray and no medical explanation for 20 his pain, with chiropractic treatment helping his symptoms”; Plaintiff was treated conservatively 21 with medication management and therapy and treatment was “generally successful in controlling” 22 his symptoms). “In evaluating the credibility of pain testimony after a claimant produces 23 objective medical evidence of an underlying impairment, an ALJ may not reject a claimant's 24 subjective complaints based solely on a lack of medical evidence to fully corroborate the alleged 25 severity of pain.” Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005). The ALJ nevertheless is 26 permitted to consider the lack of evidence as one factor in the overall credibility determination. Id. 27 at 681. Here, the ALJ only used the lack of evidence as one factor, and thus did not err. The 28 18 1 responsiveness to treatment also is an acceptable ground for discounting Plaintiff’s credibility. 2 See Crane v. Shalala, 76 F.3d 251, 254 (9th Cir. 1996) (evidence claimant responded well to 3 treatment proper basis for rejecting testimony to contrary). While Plaintiff may disagree with the ALJ’s weighing of the evidence and the undersigned 4 5 may have reached a different conclusion, this is not a basis for reversing the ALJ’s decision. See 6 Magallanes, 881 F.2d at 750 (where evidence is susceptible to more than one rational 7 interpretation, court must uphold the ALJ’s decision). 8 D. 9 Resolving Conflict with Dictionary of Occupational Titles Because the Court orders remand based on the ALJ’s failure to properly weigh Dr. Leyba’s opinions, it does not reach Plaintiff’s final argument that the ALJ failed to resolve a conflict with 11 United States District Court Northern District of California 10 the Dictionary of Occupational Titles. See Pl.’s Mot. at 23. CONCLUSION 12 13 The ALJ erred by failing to give clear and convincing reasons for rejecting Dr. Leyba’s 14 opinions regarding Plaintiff’s limitations. The Court accordingly GRANTS IN PART Plaintiff’s 15 Motion for Summary Judgment and GRANTS IN PART Defendant’s Cross-Motion for Summary 16 Judgment. The case is remanded for further proceedings. On remand, the ALJ shall obtain 17 additional information from Dr. Leyba and/or Dr. Steh, and may require Plaintiff to undergo a 18 mental health evaluation. 19 The Court will enter a separate judgment pursuant to Federal Rule of Civil Procedure 58. 20 IT IS SO ORDERED. 21 22 23 24 Dated: January 26, 2017 ______________________________________ MARIA-ELENA JAMES United States Magistrate Judge 25 26 27 28 19

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