Nguyen v. Colvin

Filing 18

ORDER by Judge Laurel Beeler granting 13 Motion for Summary Judgment; denying 16 Motion for Summary Judgment. The court grants the plaintiff's summary-judgment motion and remands the case for further proceedings. (lblc1S, COURT STAFF) (Filed on 3/31/2017)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 San Francisco Division United States District Court Northern District of California 11 KAYDEN THUY NGUYEN, Case No. 3:16-cv-01665-LB Plaintiff, 12 v. 13 14 NANCY A. BERRYHILL, Defendant. 15 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ECF Nos. 13 & 16 16 INTRODUCTION 17 Plaintiff Kayden Thuy Nguyen moves for summary judgment, seeking judicial review of the 18 19 Social Security Administration’s decision to deny her disability benefits for her claimed 20 disabilities of degenerative disc disease of the cervical and lumbar spine as well as asthma, 21 depression, and anxiety.1 The Administrative Law Judge (“ALJ”) found that Ms. Nguyen had the 22 residual functional capacity to perform light work as defined in 20 C.F.R. § 404.1567(b), with 23 24 25 26 27 28 Motion for Summary Judgment ‒ ECF No. 13 at 6–22. Record citations refer to the Electronic Case File (“ECF”); pinpoint citations are to the ECF-generated page numbers at the top of documents. 1 ORDER – No. 3:16-cv-01665-LB 1 limitations, and was not disabled.2 The Commissioner opposes Ms. Nguyen’s summary-judgment 2 motion and cross-moves for summary judgment.3 Under Civil Local Rule 16-5, the matter is deemed submitted for decision by this court without 3 4 oral argument. All parties have consented to magistrate jurisdiction.4 The court grants the 5 plaintiff’s motion and denies the Commissioner’s cross-motion and remands for further 6 proceedings. 7 STATEMENT 8 9 1. Procedural History Ms. Nguyen filed her initial disability claim on January 11, 2013, alleging disability beginning 10 United States District Court Northern District of California 11 December 29, 2011.5 The Social Security Administration (“SSA”) stated that Ms. Nguyen’s 12 disability was not severe enough to keep her from working and denied her claim.6 On December 9, 13 2013, Ms. Nguyen requested reconsideration, but the SSA determined that the initial decision was 14 correct.7 Ms. Nguyen appealed the SSA’s decision and requested a hearing before the ALJ.8 The ALJ held the hearing on October 3, 2014, in San Francisco, California.9 Ms. Nguyen 15 16 attended the hearing with her attorney Katherine Siegfried.10 ALJ Catherine R. Lazuran and 17 vocational expert Corinne Porter also attended the hearing, and Ms. Nguyen’s brother Kenneth 18 Nguyen attended and testified as a witness.11 The ALJ found that Ms. Nguyen was not disabled 19 20 21 22 AR 39. Administrative Record (“AR”) citations refer to the page numbers in the bottom right hand corner of the Administrative Record. 2 25 26 27 28 ECF Nos. 2 & 9. AR 102. 6 AR 121. 7 AR 125. 8 AR 134. 9 24 Cross-Motion for Summary Judgment ‒ ECF No. 16. 4 5 23 3 AR 49. 10 AR 47. 11 AR 47, 82. ORDER – No. 3:16-cv-01665-LB 2 1 during the applicable disability period of December 29, 2011, to January 28, 2015, the date of the 2 ALJ’s opinion.12 Ms. Nguyen requested review of the ALJ’s decision by the Appeals Council,13 which denied 3 4 her request for review.14 After receiving an extension of time to file a federal suit, Ms. Nguyen 5 sought judicial review of the ALJ’s decision15 and now moves for summary judgment.16 The 6 Commissioner answered the complaint and cross-moves for summary judgment.17 7 8 2. Summary of Records and Administrative Filings 2.1 Records 9 2.1.1 Treatment Records Regarding Degenerative Disc Disease18 10 Ms. Nguyen was hospitalized at Kaiser from January 9 to 16, 2012, for “lower back pain” with United States District Court Northern District of California 11 12 “uncontrolled symptoms,” with mobility needs of “[m]ust be allowed to use a walker, wheelchair 13 as directed.”19 Her status was “off work.”20 An MRI showed a bulging disc at L4–L5 and central 14 bulging at C5–C6 and C6–C7.21 Her diagnosis was intervertebral disc disorder and myelopathy in 15 her lumbar spine.22 On January 16, one of her treating doctors, Dr. Chan, summarized her 16 diagnoses,23 noted the drugs she had received (including empiric steroids, escalating doses of 17 dilaudid, and valium),24 and noted that there were “no objective findings to explain her numerous 18 12 AR 27. 13 AR 19‒23. 14 AR 6. 21 15 ECF Nos. 1, 13. 22 16 Id. 17 ECF No. 16. 18 AR 268–516, 581–84. 24 19 AR 583–84. 25 20 Id. 21 AR 446. 22 AR 268, 310. 27 23 AR 447–48. 28 24 AR 447. 19 20 23 26 ORDER – No. 3:16-cv-01665-LB 3 1 symptoms.”25 He was concerned about the possibility of either conversion disorder or secondary 2 gain.26 He noted Ms. Nguyen’s anxiety and fear and her “full on panic attack” before a physical 3 therapy session.27 She “had a lot of anxiety and fear that she will not be able to walk and [has] not 4 been able to participate very much with PT.”28 He noted her other stressors: “she was engaged in a 5 bad working environment in which she was severely abused (details unknown as she claims to be 6 in litigation at this time);” and she had a death in her close social circle.29 Dr. Chan also noted that 7 the “psych recommended SSRI for anxiety and scheduled Ativan until SSRI takes effect.” 30 Dr. 8 Chan ultimately diagnosed Ms. Nguyen with low back pain, somatization disorder, anxiety 9 disorder, leukocytosis, constipation and asthma.31 He recommended short-term rehabilitation at a 10 skilled nursing facility.32 After her hospitalization at Kaiser, Ms. Nguyen was admitted to Valley House Care Center.33 United States District Court Northern District of California 11 12 She had bladder incontinence, was in a wheelchair, and was at a high risk for falls.34 Her pain was 13 constant and severe.35 During her stay, she took medications, including Ativan, oxycodone, 14 Lyrica, Zoloft, Prednisone, and acetaminophen, among others.36 She continued to experience back 15 pain and spasms.37 When she was discharged in late January 2012, she had muscle weakness, 16 decrease in balance, gait abnormality, and increased risk for falls; physical therapy was 17 18 25 Id. 26 Id. 27 Id. 21 28 Id. 22 29 Id. 30 Id. 31 AR 448. 24 32 AR 446. 25 33 AR 268–326. 34 AR 272–73. 35 AR 275. 27 36 AR 476‒81. 28 37 AR 494. 19 20 23 26 ORDER – No. 3:16-cv-01665-LB 4 1 prescribed.38 Kaiser records showed that from January 29 to February 26, she remained “off 2 work.”39 In May 2012, as part of a worker’s compensation evaluation, Dr. Navani examined Ms. 3 4 Nguyen, who reported the significant impact of her back pain on her ability to work, perform 5 household chores, drive, walk, concentrate, sleep, and socialize.40 Dr. Navani identified the disc 6 protrusion in the MRI (described by her as L4–L5) with central canal and bilateral neuro-forminal 7 impingement.41 She had “an antalgic gait, limited range of motion in her cervical and lumbar 8 spine, and positive straight leg tests at 30 degrees bilaterally.”42 Dr. Navani diagnosed Ms. 9 Nguyen with “[b]ilateral lumbar radiculitis with neurological impairment along the left lower extremity” and “[c]ervical axial pain with neurological impairment along the upper extremity, and 11 United States District Court Northern District of California 10 cervical, thoracic, and lumbar myofascial pain.”43 Her restrictions were: limited to lifting and 12 carrying only fifteen pounds, and doing limited bending, twisting at the waist, and overhead 13 work.44 Dr. Navani prescribed Ketoprofen, Prilosec, and acupuncture.45 Dr. Navani observed that 14 Ms. Nguyen had a normal affect, was making good eye contact, had good judgment, and did not 15 exhibit pressurized speech, flight of ideas, or auditory or visual hallucinations.46 A physician’s 16 assistant affiliated with Dr. Navani, Nadi Sarnevsht, recommended that Ms. Nguyen “continue 17 working with her chiropractor.”47 In July 2012, Ms. Nguyen consulted with neurologist Dr. Rana, who did not have access to her 18 19 medical records or MRIs.48 He noted that Ms. Nguyen presented with chronic lower back pain 20 38 23 24 25 26 27 28 AR 582–83. 40 AR 250. 41 AR 254. AR 252. 43 Id. 44 AR 253. 45 AR 255. 46 22 AR 306. 39 42 21 AR 254. 47 AR 258. 48 AR 263. ORDER – No. 3:16-cv-01665-LB 5 1 “most probably secondary to her scoliosis” as well as “probably mild degenerative disc disease.” 49 2 He opined that Ms. Nguyen could sit for six hours with breaks in an eight-hour day, carry ten 3 pounds frequently and twenty pounds occasionally, and frequently stoop, bend, kneel, crouch and 4 climb.50 Ms. Nguyen “has difficulty sitting, standing or walking for more than [two to three] hours 5 at a stretch” but “[s]he can do all her activities otherwise.”51 Ms. Nguyen was “pleasant,” 6 “appeared her stated age,” and cooperated with the examination.52 Ms. Nguyen had “mild 7 scoliosis” and “mild tenderness . . . in her lower back,” but her range of motion was “within 8 normal limits.”53 Ms. Nguyen “walks with [a] somewhat stiff back,” but “no limp was noted,” and 9 “no assistive device [was] used.”54 A February 2013 MRI showed degenerative disc disease at L5–S1, with some facet 10 United States District Court Northern District of California 11 schlerosis.55 An April 2014 X-ray showed intervertebral disc-space narrowing at L5–L6 with 12 endplate schlerosis and anterior osteophytic activity and facet imbrication at L5–L6; this was 13 diagnosed as Grade I spondylolisthesis.56 14 In March 2014, Dr. Han, a doctor of osteopathy, produced a “supplemental medical-legal 15 evaluation” as part of the worker’s compensation process.57 Dr. Han diagnosed Ms. Nguyen with 16 lumbosacral degenerative disc disease, lumbar sprain, chronic pain syndrome, and “spasm of 17 muscle.”58 He believed that her injury was a “recurrence defined as a reappearance of prior 18 symptoms from a prior injury in the absence of clearly definable injury or trauma.”59 He 19 20 49 AR 265. 21 50 Id. 22 51 AR 263 52 AR 264. 53 Id. 24 54 Id. 25 55 AR 517. 56 AR 522. 57 AR 552. 27 58 AR 553. 28 59 Id. 23 26 ORDER – No. 3:16-cv-01665-LB 6 1 apportioned 90% of her disability to a non-industrial pre-existing condition and normal 2 degeneration, and 10% to the industrial injury caused by prolonged sitting during her time spent 3 working at Wal-Mart. 60 Ms. Nguyen’s chiropractor treated her from March 2012 to June 2014, three times a week.61 4 5 Some of the events in the treatment records include Dr. Lee’s request in September 2013 that Ms. 6 Nguyen be excused from school until October 2 due to extreme pain while sitting and walking.62 7 By September 2014, Dr. Lee reported the following in the residual-functional-capacity 8 questionnaire: Ms. Nguyen had clinical signs of back pain with decreased range of motion, could 9 not sit or stand for more than 20 minutes at a time without needing to shift positions, could stand and walk for two hours or less in an eight-hour workday, needed to walk around for periods of 11 United States District Court Northern District of California 10 time, needed to take breaks, could not lift more than ten pounds, and likely would be absent at 12 least four days a month.63 13 Ms. Nguyen’s acupuncturist treated her from June 2012 to September 2014.64 In the residual- 14 functional-capacity questionnaire, the acupuncturist reported that Ms. Nguyen’s symptoms would 15 interfere frequently with Ms. Nguyen’s concentration and attention.65 Based on the acupuncturist’s 16 observations, Ms. Nguyen could not stand, walk, or sit for more than two hours in an eight-hour 17 workday, needed to walk around and switch positions at will, needed to take unscheduled breaks 18 during the day, could not lift more than ten pounds, and would be absent at least four days a month 19 because of her symptoms.66 20 21 22 23 60 AR 554. 24 61 AR 519, 528–47. 25 62 AR 535. 63 AR 549–51. 64 AR 587–630. 27 65 AR 632. 28 66 AR 632–34. 26 ORDER – No. 3:16-cv-01665-LB 7 2.1.2 Dr. Bill Payne and Dr. J.R. Saphir — DDS Medical Consultants 1 In July 2013, Disability Determination Services (“DDS”) Medical Consultant Dr. Bill Payne 2 3 examined Ms. Nguyen and reviewed her records.67 He found that she had severe degenerative disc 4 disease of the lumbar spine; it was severe because it limited her to light work, with no additional 5 limitations (and thus she was not disabled).68 She had “limited motion of the cervical/lumbar 6 spine,” good motor strength, an antalgic gait, and was “able to heel/toe but ha[d] some 7 unsteadiness.”69 In December 2013, DDS Medical Consultant Dr. J.R. Saphir agreed with this 8 assessment.70 9 2.1.3 Mental-Health Treatment Records 10 United States District Court Northern District of California 11 As discussed above, Ms. Nguyen had some psychological issues in January 2012 when she 12 first had her back issues. She had panic attacks when she was admitted to the hospital; she was 13 prescribed Lorazepam, Lyrica, and Zoloft.71 Dr. Chan diagnosed her with Somatization Disorder 14 and Anxiety Disorder.72 Dr. Lam did an assessment at the skilled nursing facility and found 15 depression (manifested by insomnia and sad facial expressions) and anxiety (manifested by the 16 inability to relax).73 From March 2014 to September 2014, Ms. Nguyen saw a trauma therapist named Anna Clark 17 18 weekly, based on a history of sexual assaults directed at her.74 Ms. Clark is a Marriage and Family 19 Therapist Intern and California State certified Sexual Assault Counselor at Rape Trauma Services: 20 A Center for Healing and Violence Prevention.75 The following describes Ms. Clark’s letter to the 21 67 AR 102–10. 68 AR 109. 69 AR 108. 24 70 AR 111–20 25 71 AR 268, 277, 279, 447. 72 AR 479–83. 73 AR 320. 27 74 AR 559. 28 75 Id. 22 23 26 ORDER – No. 3:16-cv-01665-LB 8 1 SSA regarding Ms. Nguyen. As a result of the sexual assaults, Ms. Nguyen struggles “with strong 2 feelings of anxiety, panic, depression, and anger.”76 She has “intense insomnia, intrusive thoughts, 3 distrust of others, and loss of concentration and focus.”77 The trauma greatly affects her “ability to 4 manage everyday tasks such as work, household responsibilities[,] and inter-personal 5 relationships.”78 “She experiences strong social anxiety and paranoia related to applying for a 6 work position” and working with colleagues and clients.79 “She experienced workplace bullying in 7 the past due to her trauma,” had “great anxiety and paranoia that it [would] happen again,” and is 8 easily triggered and “can experience intense anxiety[] when she is reminded of her trauma or has 9 to explain it.”80 She felt she was unable “to protect herself from sexual harassment or workplace violations [for] fear of retribution” or retaliation for standing up for herself, which she experienced 11 United States District Court Northern District of California 10 in the past.81 “Experiencing workplace stress would most likely be very overwhelming. . . 12 [because] her daily level of stress is already high”; she probably would “have difficulty 13 concentrating and focusing on her work[] due to [her] intense anxiety . . . in social situations.82 14 Treatment notes reflect that Ms. Nguyen “presents with symptoms of sadness often,” had 15 problems trusting others, and was dealing with feelings of humiliation and rejection.83 While Ms. 16 Nguyen was “[e]ngaged in the session,” her “affect matches [the] subject matter.”84 The notes 17 refer repeatedly to Ms. Nguyen’s suffering from depression, anger, anxiety, humiliation, and 18 nightmares.85 19 20 21 76 Id. 22 77 Id. 78 Id. 79 Id. 24 80 Id. 25 81 Id. 82 Id. 83 AR 561. 27 84 Id. 28 85 AR 560‒80. 23 26 ORDER – No. 3:16-cv-01665-LB 9 In September 2014, in a residual-functional-capacity questionnaire, the chiropractor Dr. Lee 1 2 reported that depression was contributing to Ms. Nguyen’s symptoms but noted that she could 3 tolerate “low stress jobs.”86 Also in September 2014, the acupuncturist Ms. Nakamura opined that 4 depression and anxiety contributed to Ms. Nguyen’s physical symptoms related to her herniated 5 disc.87 6 2.2 Ms. Nguyen’s Testimony 8 Ms. Nguyen testified at the October 3, 2014 hearing.88 9 The ALJ examined her first, asking general background questions and questions about Ms. 10 Nguyen’s educational background and work history.89 Ms. Nguyen testified that she completed a 11 United States District Court Northern District of California 7 total of three semesters of community college, where she studied fashion merchandising.90 She 12 worked as a waitress from 2005 to 2006.91 From June 2007 to February 2008, she worked as an 13 applied behavior analysis therapist, and from May 2009 to May 2010 she worked for Virgin 14 America as a flight attendant.92 She was able to lift between 25 and 70 pounds during this period.93 15 She then worked as a Network Operation Center Analyst for Walmart.94 Ms. Nguyen recently 16 spent four months working at Bridal Project, working 15 to 25 hours a week and lifting at most 15 17 pounds.95 Since December 2011, she volunteered at her church.96 At the time of the hearing, she 18 19 20 86 23 24 25 26 27 28 AR 632. 88 AR 49. 89 AR 53. Id. 91 AR 58. 92 AR 56. 93 Id. 94 22 AR 548–49. 87 90 21 AR 54. 95 AR 60. 96 AR 61. ORDER – No. 3:16-cv-01665-LB 10 1 worked 15 to 20 hours a week as a nanny caring for three children, ages four, six, and seven.97 The 2 most she lifted at work was 15 pounds.98 The ALJ asked Ms. Nguyen if she was currently capable of performing any kind of work.99 3 4 Ms. Nguyen responded that she was working as a nanny but could not do the job fulltime and 5 similarly could not do the fulltime work she did at Bridal Project.100 Her inability to work began in 6 December 2011, and her health “comes and goes.”101 The ALJ asked Ms. Nguyen about the medications she had taken since December 2011.102 Ms. 7 Nguyen listed codeine, Valista Pharmaceutical Medicines, Adderall, and Albuterol, and she 9 mentioned others given to her at Kaiser but could not remember the names.103 The ALJ asked 10 about negative side effects from any medications, and Ms. Nguyen responded that she stopped 11 United States District Court Northern District of California 8 taking Vicodin because it gave her a rash.104 Ms. Nguyen uses melatonin as a sleep aid.105 The ALJ asked about Ms. Nguyen’s history of counseling.106 Ms. Nguyen testified that she had 12 13 “a lot of anxiety” and gets “really stressed around people.”107 She then became upset, and the ALJ 14 asked her to try to calm down.108 Ms. Nguyen said that since she lost her job at Walmart, she tried 15 to avoid people.109 16 17 18 20 97 AR 53. 98 19 Id. 99 AR 62. 21 100 AR 63. 22 101 AR 64. 102 Id. 103 Id. 24 104 Id. 25 105 AR 65‒66. 106 AR 66. 107 Id. 27 108 Id. 28 109 AR 67. 23 26 ORDER – No. 3:16-cv-01665-LB 11 1 The ALJ asked about Ms. Nguyen’s general living situation and ability to care for herself.110 2 Ms. Nguyen said that she had a limited ability to do household chores, had no permanent home, 3 and stayed at her brother’s and boyfriend’s houses.111 She typically grocery shops once every two 4 weeks with help from another person, but was capable of going by herself.112 She has been 5 exercising since 2011 and tries to swim three times per week.113 She used to attend church but 6 stopped going about three months prior due to anxiety.114 Ms. Nguyen needed help doing laundry, 7 specifically, moving wet, heavy laundry from the washer to the dryer.115 The ALJ asked if Ms. Nguyen had done any traveling since December 2011.116 Ms. Nguyen 8 9 10 flew to Laguna Beach for a wedding a few weeks before and took a two-day trip to San Diego to visit her best friend a few weeks before that.117 The ALJ asked Ms. Nguyen if she had any hobbies.118 She said that she liked to draw, which United States District Court Northern District of California 11 12 was therapeutic for her when she was stressed.119 She uses a computer for about an hour every day 13 but rarely watched television.120 She testified that she had not had money to pay bills since 2011, 14 and was not capable of doing any of the types of work that she had done before December 2011, 15 including work as a bridal consultant.121 Ms. Nguyen’s attorney Katherine Siegfried then asked Ms. Nguyen about the frequency of her 16 17 back pain.122 She said that the pain was triggered by stress or by sitting or standing for too long, 18 110 AR 68. 111 Id. 112 AR 69. 21 113 Id. 22 114 AR 70. 115 AR 72. 116 AR 70. 24 117 Id. 25 118 Id. 119 AR 72. 120 Id. 27 121 AR 74. 28 122 AR 75. 19 20 23 26 ORDER – No. 3:16-cv-01665-LB 12 1 and that it affected her ability to concentrate on and remember things.123 Ms. Siegfried asked if 2 Ms. Nguyen ever experienced depression and anxiety.124 Ms. Nguyen said that she felt depressed 3 during “any down time [she] had” and had experienced depression since before she worked at 4 Walmart.125 She stated that she sometimes felt anxiety throughout the day, and that her anxiety 5 would be triggered by certain smells, colors, and images of guns.126 She occasionally has panic 6 attacks.127 Ms. Siegfried asked whether she had any help at her nanny job.128 Ms. Nguyen replied that she 7 8 needed help lifting and moving the children.129 She can sit for only 45 minutes before having to 9 stand up or reposition herself and could stand for only two to five minutes before “feeling a strain.”130 Ms. Nguyen said that she needed some type of income to get medical treatment, she was 11 United States District Court Northern District of California 10 without health insurance, and she was in debt to her chiropractor and acupuncturist.131 12 13 2.3 Kenneth Nguyen’s Testimony 14 Ms. Nguyen’s brother, Kenneth Nguyen, testified at the October 2014 hearing.132 Before 15 December 2011, he testified, Ms. Nguyen was a happy, outgoing person; since “the incident 16 happened,” she is not the same: she is not as physical as she used to be, and she is 17 “psychologically not all there like we used to have her.”133 She goes to school and does 18 homework, and spends some of her time painting and drawing; he noted that she “draws quite a 19 20 123 Id. 21 124 AR 76. 22 125 Id. 126 AR 77. 127 Id. 24 128 AR 78. 25 129 Id. 130 Id. 131 AR 79. 27 132 AR 82. 28 133 AR 83. 23 26 ORDER – No. 3:16-cv-01665-LB 13 1 lot.”134 He testified that Ms. Nguyen lost a lot of friends and rarely saw the friends she had 2 remaining.135 He keeps in close contact with his sister, they are best friends, and the rest of their 3 family had little contact with her due to “family problems.”136 He said that she required help with 4 chores such as preparing food and was unable to stand for long before needing to lie down on the 5 floor to stretch her back.137 6 7 2.4 Vocational Expert Testimony 8 Vocational expert (“VE”) Corrine Porter testified at the October 2014 hearing.138 The VE first 9 asked Ms. Nguyen about her job at Walmart.139 Ms. Nguyen said that her job as a network operations analyst consisted of supporting the website with engineers in her department.140 The 11 United States District Court Northern District of California 10 VE then classified Ms. Nguyen’s past work, stating that Ms. Nguyen had worked as a sales person 12 for women’s apparel, a waitress (informal), a tutor, a flight attendant, and a network control 13 operator.141 The ALJ asked the VE if Ms. Nguyen had any skills that were transferable to other 14 jobs, and the VE replied that she was in the low range of skills, which included “data entry from 15 the network control” and “teacher’s aide at a low semiskilled range from the tutor.”142 The ALJ posed a hypothetical question to the VE, asking whether an individual of Ms. 16 17 Nguyen’s age, education, and past relevant work experience could perform any of Ms. Nguyen’s 18 past work with the following limitations: (1) able to lift 20 pounds occasionally and 10 pounds 19 frequently, and (2) can stand and walk six of eight hours and sit six of eight hours.143 The VE 20 21 134 AR 84. 22 135 Id. 136 AR 86. 137 AR 87–88. 24 138 AR 88. 25 139 AR 89. 140 Id. 141 AR 90. 27 142 AR 91. 28 143 Id. 23 26 ORDER – No. 3:16-cv-01665-LB 14 1 responded that this hypothetical person would be able to work as a network analyst, tutor, 2 waitress, or salesperson.144 3 The ALJ asked Ms. Nguyen about her earnings in 2012 and 2013.145 In 2012, Ms. Nguyen 4 received unemployment benefits, and in 2013, her earnings were from the bridal job.146 The ALJ 5 asked Ms. Nguyen how often she had seen Dr. Navani.147 Ms. Nguyen saw Dr. Navani “possibly 6 twice” and stopped going because she did not have money, and her insurance denied her claim.148 7 The VE then testified about the number of tutor positions and network analyst jobs in the nation 8 and in California.149 The ALJ then added to the hypothetical that the person could frequently climb, stoop, bend, 9 kneel and crouch, and asked if said person would still be able to do those jobs.150 The VE 11 United States District Court Northern District of California 10 responded, “yes.”151 The ALJ then altered the hypothetical so that the person could lift 15 pounds 12 at most, could bend and twist at the waist occasionally, and could do overhead work with the arms 13 occasionally.152 The VE responded, “No. Past work is not performable.”153 The ALJ asked 14 whether the person could do other work, and the VE responded that the person could do sedentary 15 work of data entry.154 The VE also noted the availability of sedentary unskilled positions such as 16 addresser, telephone quotation clerk, or document preparer.155 The ALJ then added a limitation 17 that the person needed an option to alternate sitting and standing every thirty minutes, with 18 19 23 24 25 26 27 28 Id. 146 Id. 147 AR 93. 148 Id. AR 93–94. 150 AR 94. 151 Id. 152 Id. 153 22 AR 92. 149 21 144 145 20 Id. 154 AR 96. 155 Id. ORDER – No. 3:16-cv-01665-LB 15 1 standing breaks that lasted about five to ten minutes.156 The VE responded that the person would 2 be capable of performing the document preparer and telephone quotation clerk jobs.157 Attorney Katherine Siegfried asked whether a person would be able to perform either of those 3 4 positions if “no contact with the general public” was added to the hypothetical.158 The VE 5 responded that the telephone quotation clerk position would not be performable, but the document 6 preparer position would.159 Ms. Siegfried asked if that position would still be performable if at 7 least two unexcused absences per month were added to the hypothetical.160 The VE responded that 8 it would, but that any more than two would render it not performable.161 Ms. Siegfried then asked 9 if a hypothetical individual with concentration or memory issues that would cause them to make mistakes up to 15% of the time would be capable of maintaining the position.162 The VE 11 United States District Court Northern District of California 10 responded that the hypothetical person would be unable to maintain employment.163 12 The ALJ asked the VE whether there were any other jobs that the hypothetical person would 13 be able to do with the requirements to avoid contact with the public, occasionally lift 15 pounds, 14 and alternate sitting or standing.164 The VE responded that positions other than document preparer 15 included tube operator (a mail-sorting position) and surveillance systems monitor.165 16 17 2.5 Administrative Findings 18 The ALJ held that Ms. Nguyen was not disabled within the meaning of the Social Security Act 19 from December 29, 2011, through the date of the decision.166 20 156 23 24 25 26 27 28 Id. 158 AR 97. 159 Id. Id. 161 AR 97–98. 162 AR 98. 163 AR 99. 164 22 Id. 157 160 21 Id. 165 AR 99–100. 166 AR 27. ORDER – No. 3:16-cv-01665-LB 16 The ALJ set forth the SSA’s five-step evaluation process.167 At step one, the ALJ must 1 2 determine whether the individual is engaging in “substantial gainful activity.”168 At step two, the 3 ALJ must determine whether the individual has a “medically determinable impairment” or 4 combination of impairments that is “severe.”169 At step three, the ALJ must determine whether the 5 individual’s impairments are severe enough to meet a listed impairment.170 At step four, the ALJ 6 must determine the individual’s “residual functional capacity” and determine whether the 7 individual can perform “past relevant work.”171 At step five, the ALJ must determine whether the 8 individual can perform any other work.172 At step one, the ALJ found that Ms. Nguyen had not engaged in substantial gainful activity 10 since the alleged onset date in December 2011, although she noted that there was some ambiguity 11 United States District Court Northern District of California 9 regarding recent earnings.173 She found that recent work as a bridal consultant did not rise to the 12 level of substantial gainful activity.174 She found that it was unclear whether the recent work as a 13 nanny had been performed at substantial gainful activity levels and then proceeded to step two.175 At step two, the ALJ found that Ms. Nguyen had the following severe impairments: 14 15 degenerative disc disease of the cervical and lumbar spine.176 The ALJ found that because these 16 impairments had more than a minimal effect on her ability to perform work-related activities, they 17 were severe.177 But the ALJ found that Ms. Nguyen’s asthma, anxiety, and depression were not 18 severe impairments because, considered singly or in combination, they either had not lasted a year 19 20 167 Id. 21 168 AR 28. 22 169 Id. 170 Id. 171 AR 28‒29. 24 172 AR 29. 25 173 AR 29–30. 174 AR 30. 175 Id. 27 176 Id. 28 177 Id. 23 26 ORDER – No. 3:16-cv-01665-LB 17 1 or more or had not caused more than a minimal limitation on Ms. Nguyen’s ability to perform 2 basic mental-work activities.178 The ALJ cited Ms. Nguyen’s asthma as an example: it was not a 3 severe impairment because it was controlled with medication.179 4 Ms. Nguyen’s attorney alleged that she suffered from severe mental impairments, including 5 anxiety and depression.180 The ALJ discounted the allegations on several grounds. Ms. Nguyen 6 did not allege disabling mental impairments in her initial or reconsideration disability reports, and 7 in January 2012, denied any depression, hopelessness, or concentration difficulties in the previous 8 two weeks.181 In June 2012, Dr. Navani “observed that [Ms. Nguyen] had a normal affect, good 9 eye contact, good judgment, and no pressured speech, flight of ideas, or auditory or visual hallucinations.”182 He did not diagnose Ms. Nguyen with any mental impairment.183 In July 2013, 11 United States District Court Northern District of California 10 Ms. Nguyen “voiced no complaints of mental problems.”184 12 The ALJ noted that Ms. Nguyen sought treatment from March to September 2014 “for a 13 history of sexual assault with residual feelings of anxiety, depression[,] and anger,” and also 14 intrusive thoughts, insomnia, distrust of others, paranoia, and loss of concentration and focus.185 15 Her trauma therapist Anna Clark “opined that [Ms. Nguyen] would likely have difficulty 16 concentrating and focusing on her work.”186 But Ms. Nguyen did not allege disabling mental 17 impairments in her initial or reconsideration disability reports.187 (These were in January 2013 and 18 December 2013.)188 Her “treatment with Ms. Clark overlapped with her work as a nanny,” and the 19 20 178 Id. 21 179 Id. 22 180 Id. 181 Id. 182 Id. 24 183 Id. 25 184 Id. 185 Id. 186 Id. 27 187 Id. 28 188 See supra p. 2. 23 26 ORDER – No. 3:16-cv-01665-LB 18 1 letter from her employers gave no indication of her suffering from “paranoia, intrusive thoughts, 2 or loss of concentration or focus.”189 This “demonstrated ability to work without incident from 3 July 2014 to October 2014, undermine[d]” Ms. Clark’s opinion, and the ALJ thus gave little 4 weight to it.190 5 In September 2014, Ms. Nguyen’s acupuncturist said that Ms. Nguyen’s depression and 6 anxiety, in combination with her physical impairments, would frequently disrupt her “attention 7 and concentration and cause her to miss more than 4 days of work monthly.”191 The ALJ gave the 8 opinion little weight because the acupuncturist was not an acceptable medical source and the 9 opinion was outside her expertise.192 The ALJ considered the four broad functional areas in the disability regulations in finding that 10 United States District Court Northern District of California 11 the claimant’s symptoms of anxiety and depression were not severe.193 The four areas are (1) 12 activities of daily living, (2) social functioning, (3) concentration, persistence, and pace, and (4) 13 extended periods of decompression.194 20 C.F.R. § 404.1520a(d)(1). Ms. Nguyen had mild 14 limitations for the first three functional areas, and no episodes of decompensation in the fourth.195 For activities of daily living, Ms. Nguyen’s mild limitations were some difficulties with 15 16 household chores such as vacuuming and washing dishes, but she attributed those to her back, not 17 mental impairments.196 Moreover, she worked as a nanny from July 2014 to October 2014 for 18 three children ages 4 to 7, and her responsibilities included grocery shopping.197 She told 19 20 21 189 AR 30. 190 AR 31. 191 Id. 24 192 Id. 25 193 Id. 194 AR 31–32. 195 Id. 27 196 AR 31. 28 197 Id. 22 23 26 ORDER – No. 3:16-cv-01665-LB 19 1 neurologist Dr. Rana in 2012 that her back pain “comes and goes” and that she could do “all her 2 activities otherwise.”198 3 For social functioning, she alleged distrust and paranoia, but her current employers’ letter gave 4 no indication of anxiety, paranoia, distrust of others, or intrusive thoughts.199 Similarly, during her 5 stint at Project Bridal from October 2013 to January 2014, she interacted with clients and 6 management.200 Since her onset date, she enrolled in college and interacted with professors and 7 other students.201 She lived with her brother.202 These social functions were “extensive” and 8 showed that any limitations are minimal.203 For the third functional area of concentration, pace, and persistence, her activity since the 9 onset date (including working at Project Bridal) showed an ability to maintain attention and 11 United States District Court Northern District of California 10 concentration.204 She draws and paints a lot, completes homework, and visits with family, and she 12 did not exhibit difficulty focusing at the hearing or responding appropriately to questions.205 For the fourth functional area, Ms. Nguyen experienced no episodes of extended periods of 13 14 decompensation.206 She had no inpatient or outpatient hospitalization for mental-health issues.207 The ALJ concluded that the mental impairments were non-severe under 20 C.F.R. 15 16 § 404.1520a(d)(1). 17 The ALJ acknowledged that Ms. Nguyen alleged that she had a somatoform disorder but 18 concluded that the record did not support that this was a medically determinable impairment.208 19 20 198 Id. 21 199 Id. 22 200 Id. 201 Id. 202 Id. 24 203 Id. 25 204 Id. 205 Id. 206 AR 32. 27 207 Id. 28 208 Id. 23 26 ORDER – No. 3:16-cv-01665-LB 20 1 The January 2012 records showed that diagnosis but it was not clear who made it.209 A physical 2 therapist signed most notes; she was not an acceptable medical source and lacked expertise for 3 psychological conditions.210 At step three, the ALJ found that Ms. Nguyen did not have an impairment or combination of 4 5 impairments that met or medically equaled the severity of one of the listed impairments in the 6 disability regulations.211 Ms. Nguyen alleged that her impairment met Listings 1.04A and 12.07.212 7 Listing 1.04A requires a disorder of the spine resulting in compromise of a nerve root or of the 8 spinal cord with evidence of nerve root compression (characterized by certain pain or certain 9 motor issues).213 The ALJ found that Ms. Nguyen did not meet the requirements of Listing 1.04A because there was “no indication that [she] ha[d] spinal arachnoiditis or lumbar spine stenosis 11 United States District Court Northern District of California 10 resulting in pseudoclaudication or other conditions of sufficient severity to meet listing 1.04B or 12 C.”214 For listing 12.07, the ALJ found the following: 13 For the reasons previously outlined, the claimant also fails to meet the criteria for listing 12.07. I note that she has had only mild limitations in activities of daily living, mild social limitations, and mild limitations in concentration, and no episodes of decompensation of extended duration. Thus, she cannot satisfy the requirements of listing 12.07. Additionally, a somatoform disorder has not been conclusively demonstrated to be one of claimant’s medically determinable impairments.215 14 15 16 17 18 At step four, the ALJ determined that Ms. Nguyen was unable to perform any of her past 19 20 relevant work.216 21 22 209 Id. 210 Id. 24 211 Id. 25 212 Id. 213 Id. 214 AR 32‒33. 27 215 AR 33. 28 216 AR 38. 23 26 ORDER – No. 3:16-cv-01665-LB 21 1 At step five, the ALJ found that Ms. Nguyen had the residual functional capacity to perform 2 light work, as defined in the regulations, with limitations of (1) lifting 20 pounds occasionally and 3 10 pounds frequently, (2) standing and walking for 6 hours in an 8-hour day, (3) sitting for 6 hours 4 in an 8-hour day, and (4) sitting for 30 minutes at a time before needing to stand for 5 to 10 5 minutes.217 The ALJ found that Ms. Nguyen could (1) frequently stoop, kneel, crouch, and climb, 6 (2) occasionally bend or twist at the waist, and (3) occasionally do overhead work with her 7 arms.218 The ALJ followed a two-step process to determine (1) whether there were “underlying 8 9 medically determinable physical or mental impairment(s) . . . that could reasonably be expected to produce [Ms. Nguyen’s] pain or other symptoms,” and (2) if so, the intensity, persistence, and 11 United States District Court Northern District of California 10 limiting effect of her symptoms.219 The ALJ noted that Ms. Nguyen previously worked as a computer network analyst (a job that 12 13 required her to sit all day), apparently did not suffer a specific workplace injury, and instead 14 alleged that the cumulative effect of the sitting eventually resulted in severe back pain.220 She 15 alleged that the pain was unbearable and prevented her from sitting or standing for prolonged 16 periods, walking lengthy distances, and lifting more than 15 pounds, and required her to lie down 17 periodically during the day.221 She “denied being able to cook full meals or vacuum, but from July 18 2013 to October 2014, she was working as a nanny for three children,” ages 4 to 7.222 The ALJ found that Ms. Nguyen’s “medically determinable impairments could reasonably be 19 20 expected to cause some of the symptoms” but her “statements concerning the intensity, 21 persistence[,] and limiting effects of [her] symptoms [were] not entirely credible.”223 22 23 217 AR 33. 24 218 Id. 25 219 AR 34. 220 Id. 221 Id. 27 222 Id. 28 223 Id. 26 ORDER – No. 3:16-cv-01665-LB 22 The ALJ said that the medical evidence failed “to provide strong support” for Ms. Nguyen’s 1 2 allegations of disabling symptoms and limitations.224 The 2012 back records showed hospital 3 admission for constant back pain, her complaints of being unable to move, and the MRI and other 4 evidence from January 2012 to February 2012 (discussed above).225 Dr. Navani examined Ms. 5 Nguyen during the worker’s compensation process in May 2012 (again described above); the ALJ 6 described Dr. Navani’s opinion as vague because she (1) did not address how long Ms. Nguyen 7 could stand, walk, or sit, (2) did not clarify what he meant by limited bending, twisting, and 8 overhead reaching, and (3) summarized the January 2012 MRI incorrectly.226 The ALJ thus 9 accorded the opinion little weight.227 He accorded D.O. Hana’s March 2014 opinion limited weight because it was part of a worker’s compensation process, which involves different rules and 11 United States District Court Northern District of California 10 regulations than the SSI scheme.228 The ALJ gave the chiropractor’s opinion little weight because she was not an acceptable 12 13 medical source under the Social Security rules and lacked the expertise of an M.D., and her 14 opinion was inconsistent with the MRI and the claimant’s testimony about her daily activities such 15 as swimming and working as a nanny.229 He gave her opinion about Ms. Nguyen’s ability to work 16 no weight because that administrative finding is reserved for the Commissioner.230 Similarly, the 17 ALJ gave limited weight to the acupuncturist’s opinion because she was not an acceptable medical 18 source, opined limitations more severe than those in the claimant’s testimony, addressed mental 19 limitations outside of her expertise, and varied significantly from an opinion she gave six months 20 earlier.231 The ALJ nonetheless included a limitation for sitting and standing. 232 21 224 Id. 225 Id. 226 AR 35. 24 227 Id. 25 228 AR 37. 229 AR 35. 230 Id. 27 231 AR 37. 28 232 Id. 22 23 26 ORDER – No. 3:16-cv-01665-LB 23 Ms. Nguyen consulted Dr. Rana, a neurologist, in July 2012.233 The ALJ afforded her opinion 1 2 — that Ms. Nguyen “could sit, stand[,] and walk up to 6 hours in an 8-hour day; carry 10 [pounds] 3 frequently and 20 pounds occasionally; push and pull up to 20 pounds; and frequently stoop, bend, 4 kneel, crouch[,] and climb” — great weight, given her specialty and in neurology and the 5 consistency of her opinion with the MRI findings.234 The ALJ also gave some weight to the 6 opinions of DDS medical consultants Dr. Payne and Dr. Saphir, but found that Ms. Nguyen was 7 more limited than they had determined.235 The ALJ then addressed Ms. Clark’s opinion about Ms. Nguyen’s mental health. 8 The record also contains an opinion from a marriage and family therapy intern, Ms. Clark, who opined in September 2014, that the claimant would probably have difficulty concentrating and focusing on her work and that she is anxious in social situations (Ex. 16F). This is given little weight for several reasons. Ms. Clark is not an acceptable medical source under the Social Security rules and lacks the expertise to evaluate psychological limitations. Also, she was vague about claimant’s limitations. As discussed above, the record shows that the claimant does not have a severe psychological impairment. 236 9 10 United States District Court Northern District of California 11 12 13 14 The ALJ next evaluated Ms. Nguyen’s credibility:237 As for the issue of the claimant’s credibility, I note that she has made inconsistent statements and that hurts her credibility. Though the claimant has alleged experiencing disabling impairments which prevented her from working after December 29, 2011, at the hearing, she acknowledged that she had worked as a bridal consultant at Bridal Project from October 2013 to January 2014 (Ex. 8D). She testified that she worked between 8 to 25 hours weekly. After the claimant’s employment with Bridal Project ended, she admitted looking for other employment and doing volunteer work weekly at church. She also testified that she began working as a nanny in July 2014, work that she was still performing as of October 3, 2014. She testified that she worked only 15 to 20 hours monthly in this position, but her employer stated that she worked up to 40 hours monthly (Ex. 11E).238 The claimant said that she earned below $920 monthly, but her employer stated that in addition to this income, she received “a stipend for work-related expenses” and “a 15 16 17 18 19 20 21 22 23 24 233 AR 35. 25 234 AR 36. 235 Id. 236 AR 37. 27 237 Id. 28 238 Ms. Nguyen testified that she worked 15 to 20 hours a week. AR 53. 26 ORDER – No. 3:16-cv-01665-LB 24 small advance to help her financially” (Ex. 11E). In this position, she cared for three young children whose ages ranged from 4 to 7.239 1 2 3 4 The ALJ concluded that (1) Ms. Nguyen was capable of making a successful adjustment to other work that exists in significant numbers in the national economy, and (2) a finding of “not disabled” was appropriate.240 5 6 ANALYSIS 7 8 1. Standard of Review Under 42 U.S.C. § 405(g), district courts have jurisdiction to review any final decision of the 10 Commissioner if the claimant initiates the suit within 60 days of the decision. District courts may 11 United States District Court Northern District of California 9 set aside the Commissioner’s denial of benefits only if the ALJ’s “findings are based on legal error 12 or are not supported by substantial evidence in the record as a whole.” Vasquez v. Astrue, 572 F.3d 13 586, 591 (9th Cir. 2009) (internal quotations omitted); 42 U.S.C. § 405(g). “Substantial evidence 14 means more than a mere scintilla but less than a preponderance; it is such relevant evidence as a 15 reasonable mind might accept as adequate to support a conclusion.” Andrews v. Shalala, 53 F.3d 16 1035, 1039 (9th Cir. 1995). If the evidence in the administrative record supports both the ALJ’s 17 decision and a different outcome, the court must defer to the ALJ’s decision and may not 18 substitute its own decision. See id. at 1039–40; Tackett v. Apfel, 180 F.3d 1094, 1097–98 (9th Cir. 19 1999). 20 21 2. Applicable Law 22 An SSI claimant is considered disabled if he or she suffers from a “medically determinable 23 physical or mental impairment which can be expected to result in death or which has lasted or can 24 be expected to last for a continuous period of not less than twelve months,” and the “impairment 25 or impairments are of such severity that he is not only unable to do his previous work but cannot, 26 27 239 AR 37. 28 240 AR 39. ORDER – No. 3:16-cv-01665-LB 25 1 considering his age, education, and work experience, engage in any other kind of substantial 2 gainful work which exists in the national economy.” 42 U.S.C. § 1382c(a)(3)(A), (B). 3 4 5 6 7 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 There is a five-step analysis for determining whether a claimant is disabled within the meaning of the Social Security Act. See 20 C.F.R. § 404.1520. The five steps are as follows: Step One. Is the claimant presently working in a substantially gainful activity? If so, then the claimant is “not disabled” and is not entitled to benefits. If the claimant is not working in a substantially gainful activity, then the claimant’s case cannot be resolved at step one, and the evaluation proceeds to step two. See 20 C.F.R. § 404.1520(a)(4)(i). Step Two. Is the claimant’s impairment (or combination of impairments) severe? If not, the claimant is not disabled. If so, the evaluation proceeds to step three. See 20 C.F.R. § 404.1520(a)(4)(ii). Step Three. Does the impairment “meet or equal” one of a list of specified impairments described in the regulations? If so, the claimant is disabled and is entitled to benefits. If the claimant’s impairment does not meet or equal one of the impairments listed in the regulations, then the case cannot be resolved at step three, and the evaluation proceeds to step four. See 20 C.F.R. § 404.1520(a)(4)(iii). Step Four. Considering the claimant’s residual functional capacity (“RFC”), is the claimant able to do any work that he or she has done in the past? If so, then the claimant is not disabled and is not entitled to benefits. If the claimant cannot do any work he or she did in the past, then the case cannot be resolved at step four, and the case proceeds to the fifth and final step. See 20 C.F.R. § 404.1520(a)(4)(iv). Step Five. Considering the claimant’s RFC, age, education, and work experience, is the claimant able to “make an adjustment to other work?” If not, then the claimant is disabled and entitled to benefits. See 20 C.F.R. § 404.1520(a)(4)(v). If the claimant is able to do other work, the Commissioner must establish that there are a significant number of jobs in the national economy that the claimant can do. There are two ways for the Commissioner to show other jobs in significant numbers in the national economy: (1) by the testimony of a vocational expert or (2) by reference to the Medical-Vocational Guidelines at 20 C.F.R., part 404, subpart P, app. 2. See 20 C.F.R. § 404.1520(a)(4)(v). 22 For steps one through four, the burden of proof is on the claimant. Tackett, 180 F.3d at 1098. At 23 step five, the burden shifts to the Commissioner to show that the claimant can do other kinds of 24 work. Id. 25 26 27 28 ORDER – No. 3:16-cv-01665-LB 26 1 3. Application Ms. Nguyen challenges the ALJ’s determination on several grounds: (1) substantial evidence 2 3 did not justify the ALJ’s finding at step two that Ms. Nguyen’s mental-health impairments were 4 not severe, and the ALJ erred in her evaluation of “other source” evidence; (2) the ALJ did not 5 have clear and convincing reasons to discredit Ms. Nguyen’s testimony; and (3) the ALJ erred by 6 not engaging a psychiatric expert.241 7 8 3.1 No Severe Mental-Health Impairment and “Other Source” Evidence 9 Ms. Nguyen asserts that by finding that she did not have any severe mental limitations, the 10 United States District Court Northern District of California 11 12 13 14 15 ALJ applied a too-strict legal standard at stage two of the five-step analysis.242 She argues that the step two inquiry “is a de minimis screening device to dispose of groundless claims.”243 And, she says, the “record as a whole did not provide the ALJ with substantial evidence to conclude that [—] despite repeated references to mental-health limitations, such as depression, anxiety, [and] Somatoform disorder [—] Ms. Nguyen’s mental[-]health conditions caused no more than minimal limitations in work-related functioning.”244 At step two of the five-step sequential inquiry, the ALJ determines whether the claimant has a 16 17 medically severe impairment or combination of impairments. Smolen v. Chater, 80 F.3d 1273, 1290 (1996). The ALJ must consider the record as a whole, including evidence that both supports 18 and detracts from their final decision. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998). An 19 impairment is not severe if it does not significantly limit the claimant’s mental or physical abilities 20 21 to do basic work activities. 20 C.F.R. § 404.1521(a).245 Basic work activities are “abilities and aptitudes necessary to do most jobs,” including, for example, “walking, standing, sitting, lifting, 22 23 241 Motion for Summary Judgment – ECF No. 13 at 6. 242 Id. at 14. 243 Id. (citing Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996)). 26 244 Id. (record citations omitted); Reply – ECF No. 17 at 3–4. 27 245 24 25 28 The Social Security Administration promulgated new regulations, including a new § 404.1521, effective as of March 27, 2017. The previous version, effective to March 26, 2017, was in effect as of the date of the ALJ’s hearing. ORDER – No. 3:16-cv-01665-LB 27 1 pushing, pulling, reaching, carrying, or handling.” 20 C.F.R. § 404.1521(b).246 To determine the 2 severity of a mental impairment specifically, the ALJ must consider four broad functional areas: 3 activities of daily living; social functioning; concentration, persistence, and pace; and episodes of 4 decompensation. 20 C.F.R. § 404.1520a.247 The ALJ discounted Ms. Nguyen’s allegations of severe mental-health impairments on several 5 6 grounds. Collectively, they establish error and grounds for remand. First, the ALJ acknowledged a diagnosis of somatoform disorder in January 2012 but 8 concluded that the record did not support that this was a medically determinable impairment 9 because it was not clear who made the diagnosis.248 The ALJ noted that a physical therapist — 10 who is not an acceptable medical source and lacked expertise for psychological conditions — 11 United States District Court Northern District of California 7 signed most notes.249 But Dr. Chan diagnosed Ms. Nguyen with (among other things) somatization 12 disorder.250 This mistake prevented the ALJ from giving the appropriate weight to a treating 13 physician’s diagnosis. 14 In weighing and evaluating the evidence, the ALJ must consider the entire case record, 15 including each medical opinion in the record, together with the rest of the relevant evidence. 20 16 C.F.R. § 416.927(b); see also Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (“[A] reviewing 17 court must [also] consider the entire record as a whole and may not affirm simply by isolating a 18 specific quantum of supporting evidence.”) (internal quotations omitted)). Social Security regulations distinguish between three types of physicians: treating physicians; 19 20 examining physicians; and non-examining physicians. 20 C.F.R. § 416.927(c), (e); Lester v. 21 Chater, 81 F.3d 821, 830 (9th Cir. 1995). “Generally, a treating physician’s opinion carries more 22 weight than an examining physician’s, and an examining physician’s opinion carries more weight 23 than a reviewing [non-examining] physician’s.” Holohan v. Massanari, 246 F.3d 1195, 1202 (9th 24 246 See supra n.245. 247 Id. 248 AR 32. 27 249 Id. 28 250 AR 448. 25 26 ORDER – No. 3:16-cv-01665-LB 28 1 Cir. 2001) (citing Lester, 81 F.3d at 830); see also Sprague v. Bowen, 812 F.2d 1226, 1231 (9th 2 Cir. 1987) (the opinion of a treating physician is generally given the greatest weight because the 3 treating physician “is employed to cure and has a greater opportunity to know and observe the 4 patient as an individual”); Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996). 5 Accordingly, “[i]n conjunction with the relevant regulations, [the Ninth Circuit has] developed 6 standards that guide [the] analysis of an ALJ’s weighing of medical evidence.” Ryan v. Comm’r of 7 Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) (citing 20 C.F.R. § 404.1527). “To reject [the] 8 uncontradicted opinion of a treating or examining doctor, an ALJ must state clear and convincing 9 reasons that are supported by substantial evidence.” Id. (alteration in original) (internal quotations omitted). If the ALJ finds that the opinion of a treating physician is contradicted, the ALJ must 11 United States District Court Northern District of California 10 provide “specific and legitimate reasons supported by substantial evidence in the record.” Reddick 12 v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (internal quotations omitted); see also Garrison, 759 13 F.3d at 1012 (“If a treating or examining doctor’s opinion is contradicted by another doctor’s 14 opinion, an ALJ may only reject it by providing specific and legitimate reasons that are supported 15 by substantial evidence.”) (internal quotations omitted)). “Where an ALJ does not explicitly reject 16 a medical opinion or set forth specific, legitimate reasons for crediting one medical opinion over 17 another, he errs.” Id.; see also 20 C.F.R. § 404.1527(c)(2) (“If we find that a treating source’s 18 opinion on the issue(s) of the nature and severity of [the claimant’s] impairment(s) is well- 19 supported by medically acceptable clinical and laboratory diagnostic techniques and is not 20 inconsistent with the other substantial evidence in [the claimant’s] case record, we will give it 21 controlling weight.”). 22 “If a treating physician’s opinion is not given ‘controlling weight’ because it is not ‘well- 23 supported’ or because it is inconsistent with other substantial evidence in the record, the [Social 24 Security] Administration considers specified factors in determining the weight it will be given.” 25 Orn, 495 F.3d at 631. “Those factors include the ‘[l]ength of the treatment relationship and the 26 frequency of examination’ by the treating physician; and the ‘nature and extent of the treatment 27 relationship’ between the patient and the treating physician.” Id. (quoting 20 C.F.R. 28 § 404.1527(b)(2)(i)–(ii)) (alteration in original). “Additional factors relevant to evaluating any ORDER – No. 3:16-cv-01665-LB 29 1 medical opinion, not limited to the opinion of the treating physician, include the amount of 2 relevant evidence that supports the opinion and the quality of the explanation provided[,] the 3 consistency of the medical opinion with the record as a whole[, and] the specialty of the physician 4 providing the opinion . . . .” Id. (citing 20 C.F.R. § 404.1527(d)(3)–(6)). Even if the treating 5 physician’s opinion is not entitled to controlling weight, it still is entitled to deference. See id. at 6 632 (citing SSR 96-02p at 4 (Cum. Ed. 1996), 61 Fed. Reg. 34,490, 34,491 (July 2, 1996)). 7 Indeed, “[i]n many cases, a treating source’s medical opinion will be entitled to the greatest weight 8 and should be adopted, even if it does not meet the test for controlling weight.” Id. (quoting SSR 9 96-02p at 4). Finally, an “ALJ errs when he rejects a medical opinion or assigns it little weight” without 11 United States District Court Northern District of California 10 explanation or without explaining why “another medical opinion is more persuasive, or criticiz[es] 12 it with boilerplate language that fails to offer a substantive basis for his conclusion.” Garrison, 13 759 F.3d at 1012–13. Here, the ALJ’s record error prevented this analysis. Moreover, based on her discounting of 14 15 the source, she did not consider the somatization disorder at all. Other courts have held that an 16 ALJ’s failure to consider a somatization disorder is reversible error. Somatoform disorders are “characterized by somatic symptoms that are either very distressing 17 18 or result in significant disruption of functioning, as well as excessive and disproportionate 19 thoughts, feelings[,] and behaviors regarding those symptoms.”251 “[S]omatoform and 20 somatization disorders also are characterized by the absence of objective physical findings to 21 explain a patient’s subjective complaints.” King v. Barnhart, No. C 03-0835 MJJ, 2004 WL 22 1949497, at *3 (N.D. Cal. Aug. 16, 2004). A somatoform disorder is potentially disabling and can 23 be a severe impairment. Blevins v. Colvin, No. 12-CV-5493-JRC, 2013 WL 1192403, at *7 (W.D. 24 Wash. Mar. 22, 2013). Moreover, “complaints of pain cannot be dismissed . . . merely because 25 they stem in part from a psychological abnormality[.]” Id. at *4. 26 27 28 251 AR 555. ORDER – No. 3:16-cv-01665-LB 30 In Dunn v. Colvin, the court found “that the ALJ erred [at step two] in failing to consider [the] 1 2 plaintiff’s hypochondriasis diagnosis.” No. 13-CV-05088 JRC, 2014 WL 1053273, at *1 (W.D. 3 Wash. Mar. 19, 2014). The ALJ “noted that one psychologist indicated that [the] plaintiff had a 4 possible somatization disorder,” but, “[b]ased on the lack of a firm diagnosis of somatization 5 disorder, the ALJ found that it was not a medically determinable impairment.” Id. at *3. An 6 examining psychologist, however, had diagnosed the plaintiff with hypochondriasis, “which is a 7 type of somatoform disorder.” Id. The court found that the ALJ erred by failing to consider this 8 diagnosis and directed the ALJ to reconsider it on remand “to determine whether [the] plaintiff’s 9 hypochondriasis is severe.” Id. Similarly, in Blevins v. Colvin, the court found that the ALJ had erred by failing to include a 10 United States District Court Northern District of California 11 “‘detailed and thorough summary of the facts and conflicting clinical evidence’ regarding [the] 12 plaintiff’s somatoform pain disorder.” 2013 WL 1192403 at *7. An examining psychologist 13 “diagnosed the plaintiff with somatoform pain disorder secondary to physical and psychological 14 factors.” Id. at *4. The ALJ found that the psychologist “was able to review records up to January 15 2007 only” and assigned the opinion “only minimal weight.” Id. In making this determination, the 16 ALJ relied on a typographical error. Id. The court found that “[t]his reason was the only reason 17 provided by the ALJ when he rejected the opinions of [the psychologist],” and that “as this finding 18 is not supported by substantial evidence in the record as a whole, and based on the relevant 19 record . . . the ALJ erred in his review of the medical evidence.” Id. at *6. Here, as in Dunn and Blevins, the ALJ’s misreading of the record resulted in the ALJ 20 21 improperly ignoring Ms. Nguyen’s somatization disorder diagnosis.252 “[It is] legal error where 22 the ALJ’s findings completely ignore medical evidence without giving specific, legitimate reasons 23 for doing so.” Smolen, 80 F.3d at 1282. Second, a compounding effect of this error meant that ALJ did not consider the medical record 24 25 as a whole, including this evidence in the context of diagnoses of depression and anxiety starting 26 in January 2012. See Reddick, 157 F.3d at 720. 27 28 252 AR 32. ORDER – No. 3:16-cv-01665-LB 31 1 Third, a related point is that the ALJ gave little weight to “other source” evidence. For 2 example, she gave little weight to Ms. Nguyen’s therapist Anna Clark — who treated her for 3 sexual assault — on the ground that she was not an “acceptable medical source.”253 Similarly, the 4 ALJ discounted evidence from her chiropractor and acupuncturist, and she did not consider Ms. 5 Nguyen’s brother’s testimony about her mental health at all.254 “Only physicians and certain other qualified specialists are considered ‘[a]cceptable medical 7 sources.’” Ghanim v. Colvin, 763 F.3d 1154, 1161 (9th Cir. 2014) (alteration in original) (citing 8 Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012)); see also 20 C.F.R. § 404.1513(a). 9 Chiropractors and therapists are considered “other sources.” See 20 C.F.R. § 404.1513(d)(1).255 So 10 too are educational personnel (such as teachers, counselors, early-intervention team members, and 11 United States District Court Northern District of California 6 daycare workers) and social-welfare personnel. Id. § 404.153(d)(2)–(3). Other sources include 12 spouses, parents, siblings, other caregivers, other relatives, friends, neighbors, and clergy. Id. 13 § 404.153(d)(4). “While their opinions must still be evaluated, 20 C.F.R. § 404.1527(c), the ALJ 14 may discount testimony from these ‘other sources’ if the ALJ gives reasons germane to each 15 witness for doing so.” Ghanim, 763 F.3d at 1161 (internal quotations omitted); see also Molina, 16 674 F.3d at 1111–12; 20 C.F.R. §§ 404.1513, 416.913; SSR 06-03p, available at 2006 WL 17 2329939 (“[A]n opinion from a medical source who is not an ‘acceptable medical source’ may 18 outweigh the opinion of an ‘acceptable medical source.”); Greger v. Barnhart, 464 F.3d 968, 972 19 (9th Cir. 2006) (ALJ must take into account lay testimony but may discount that testimony by 20 providing reasons germane to that witness). Here, the ALJ discounted Ms. Clark’s opinion because (i) Ms. Clark was not an “acceptable 21 22 medical source” and (ii) the opinion was — essentially — inconsistent with the fact that Ms. 23 Nguyen worked as a nanny during the period without incident, and her employer’s letter did not 24 show the asserted issues.256 The first reason, while accurate, is circular and not a “germane” reason 25 253 AR 36. 254 AR 35–37. 27 255 See supra n.245. 28 256 AR 37. 26 ORDER – No. 3:16-cv-01665-LB 32 1 to discount such evidence. See Haagenson v. Colvin, 656 F. App’x. 800, 802 (9th Cir. 2016) 2 (holding that the ALJ failed to provide a germane reason for rejecting “other source” opinion 3 evidence when “[t]he only reason that the ALJ offered for rejecting their opinions is that they are 4 not ‘acceptable medical sources’ within the meaning of the federal regulation . . . [because] the 5 regulation already presumes that nurses and counselors are non-acceptable medical sources, yet 6 still requires the ALJ to consider them as ‘other sources’”). The ALJ’s second reason for rejecting 7 the “other source” opinion also is insufficient. While inconsistency with objective evidence is a 8 germane reason to reject “other source” evidence, see Molina, 674 F.3d at 1111–12, here, the ALJ 9 did not cite specific inconsistencies between the opinion about Ms. Nguyen’s mental health and Ms. Nguyen’s “daily functioning” at her part-time job as a nanny.257 See Ghanim, 763 F.3d at 11 United States District Court Northern District of California 10 1162; see also Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir. 2009) (the reasons for rejecting 12 other source witness testimony must be “germane” and “must be specific”). Similarly, the ALJ discounted reports about Ms. Nguyen’s mental state by her chiropractor and 13 14 acupuncturist because their opinions were outside their expertise and were inconsistent with Ms. 15 Nguyen’s part-time work.258 But lay opinions are relevant, and the ALJ did not specify how the 16 opinions were inconsistent with part-time work. Similarly, the ALJ cited Ms. Nguyen’s ability to 17 live with her brother, visit family, draw, take community college courses, and do homework as 18 evidence of her ability to function socially and maintain concentration, persistence, and pace. 259 19 But she did not address the brother’s testimony about his sister’s psychological state260 and thus 20 did not provide germane or specific reasons for rejecting it. She also did not specify how the daily 21 activities were inconsistent with the allegations regarding her mental health. And the record does 22 provide a basis for reaching this conclusion. 23 While a claimant’s daily activities may provide a specific and legitimate basis for a finding of 24 inconsistency with her disabling conditions, see Molina, 674 F.3d at 1113; Curry v. Sullivan, 925 25 257 Id. 258 AR 36–37. 27 259 AR 31. 28 260 AR 83–84, 88. 26 ORDER – No. 3:16-cv-01665-LB 33 F.2d 1127, 1130 (9th Cir. 1991), the Ninth Circuit has “repeatedly warned that ALJs must be 2 especially cautious in concluding that daily activities are inconsistent with testimony about pain,” 3 and thus with eligibility for disability benefits. Garrison, 759 F.3d at 1016. In Garrison, the Court 4 recognized that disability claimants should not be penalized for attempting to lead normal lives in 5 the face of their limitations, finding that “only if [her] level of activity were inconsistent with [a 6 claimant’s] claimed limitations would these activities have any bearing on her credibility.” Id. 7 (alterations in original) (internal quotations omitted); see also Smolen, 80 F.3d at 1284 n.7 (“The 8 Social Security Act does not require that claimants be utterly incapacitated to be eligible for 9 benefits, and many home activities may not be easily transferable to a work environment where it 10 might be impossible to rest periodically or take medication.”); Fair v. Bowen, 885 F.2d 597, 603 11 United States District Court Northern District of California 1 (9th Cir. 1989) (“[M]any home activities are not easily transferable to what may be the more 12 grueling environment of the workplace, where it might be impossible to periodically rest or take 13 medication.”). The ALJ also noted that Ms. Nguyen did not exhibit any difficulty focusing at the hearing or 14 15 responding to questions.261 The Ninth Circuit has repeatedly rejected the ALJ’s denial of benefits 16 “based on the ALJ’s observation of [the claimant], when [the claimant’s] statements . . . are 17 supported by objective evidence.” Perminter v. Heckler, 765 F.2d 870, 872 (9th Cir. 1985) (the 18 court “condemned” “[t]he ALJ’s reliance on his personal observations . . . at the hearing,” 19 characterizing it “as ‘sit and squirm’ jurisprudence”) (quoting Freeman v. Schweiker, 681 F.2d 20 727, 731 (11th Cir. 1982)). The ALJ’s observations of Ms. Nguyen’s “lack of difficulty” during 21 the approximately 70-minute long hearing262 is not “clear and convincing” evidence supporting the 22 ALJ’s adverse credibility finding, particularly where her testimony and the record suggests that 23 her symptoms were intermittent.263 See Perminter, 765 F.2d at 872; Garrison, 759 F.3d at 1014– 24 15; see also Gallant v. Heckler, 753 F.2d 1450, 1455 (9th Cir. 1984) (even when claimant alleges 25 26 261 AR 31. 27 262 AR 49 & 101 (start and end times of the hearing). 28 263 See, e.g., AR 108. ORDER – No. 3:16-cv-01665-LB 34 1 constant pain, “[t]he fact that a claimant does not exhibit physical manifestations of prolonged 2 pain at the hearing provides little, if any, support for the ALJ’s ultimate conclusion that the 3 claimant is not disabled or that his allegations of constant pain are not credible.”). 4 Here, the ALJ did not engage in the necessary specific analysis of any inconsistencies between 5 the severity of Ms. Nguyen’s reported mental-health limitations and her daily activities to enable 6 appropriate review. Moreover, the ALJ’s record error about the somatoform diagnosis meant that 7 ALJ did not consider the record as a whole. See Reddick, 157 F.3d at 720. These errors require 8 remand. 9 3.2 Ms. Nguyen’s Testimony 11 United States District Court Northern District of California 10 In assessing a claimant’s credibility, an ALJ must make two determinations. Garrison, 759 12 F.3d at 1014. “‘First, the ALJ must determine whether the claimant has presented objective 13 medical evidence of an underlying impairment which could reasonably be expected to produce the 14 pain or other symptoms alleged.’” Id. (quoting Lingenfelter v. Astrue, 504 F.3d 1028, 1035–36 15 (9th Cir. 2007) (internal quotations omitted)). Second, if the claimant has produced that evidence, 16 and “there is no evidence of malingering,” the ALJ must provide “specific, clear and convincing 17 reasons for” rejecting the claimant’s testimony regarding the severity of the claimant’s symptoms. 18 Id. at 1014–15 (quoting Smolen, 80 F.3d at 1281). In order to have meaningful appellate review, 19 the ALJ must explain its reasoning and “specifically identify the testimony [from a claimant] she 20 or he finds not to be credible and . . . explain what evidence undermines the testimony.” Treichler 21 v. Comm’r of Soc. Sec., 775 F.3d 1090, 1102, 1103 (9th Cir. 2014) (“Credibility findings must 22 have support in the record, and hackneyed language seen universally in ALJ decisions adds 23 nothing.”) (internal quotations omitted). “That means ‘[g]eneral findings are insufficient.’” Id. at 24 1102 (quoting Lester, 81 F.3d at 834); Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) 25 (“[T]he ALJ must make a credibility determination with findings sufficiently specific to permit the 26 court to conclude that the ALJ did not arbitrarily discredit claimant’s testimony.”) (citing Bunnell 27 v. Sullivan, 947 F.2d 341, 345–46 (9th Cir. 1991) (en banc)). Moreover, the court will “review 28 ORDER – No. 3:16-cv-01665-LB 35 1 only the reasons provided by the ALJ in the disability determination and may not affirm the ALJ 2 on a ground upon which he did not rely.” Garrison, 759 F.3d at 1010. In Dunn, the plaintiff argued that the ALJ had erred in considering whether he had exaggerated 3 his symptoms and whether objective medical evidence supported his allegations in forming his 5 credibility determination, because he had ignored the diagnosis of a somatoform disorder that “by 6 definition, requires physical symptoms that are not fully explained by a medical condition.” 2014 7 WL 1053273 at *4 (internal quotations omitted). The court found that “the ALJ overlooked a 8 hypochrondriasis diagnosis and failed to address whether this disorder could have explained the 9 lack of objective medical support for plaintiff's complaints” and held that “[o]n remand, the ALJ 10 shall reconsider her credibility findings in light of her assessment of plaintiff’s hypochondriasis 11 United States District Court Northern District of California 4 diagnosis and symptoms.” Id. 12 Here, the ALJ discounted Ms. Nguyen’s testimony about her impairments because she found 13 them inconsistent with her part-time work as a nanny and her daily activities.264 As discussed in 14 the last section, the ALJ overlooked Dr. Chan’s diagnosis of somatization disorder (by definition 15 characterized by the absence of objective physical findings to explain a patient's subjective 16 complaints, see King, 2004 WL 1949497 at *3). Evaluating a claimant’s credibility turns in part 17 on the assessment of the medical evidence, including Dr. Chan’s diagnosis. See 20 C.F.R. 18 § 404.1529(c). The failure to consider the diagnosis “infected the ALJ’s assessment of the 19 plaintiff’s credibility.” Dunn, 2014 WL 1053273 at *1. Ms. Nguyen’s ability to engage in some 20 daily activities, including part-time work, is not on this record specific or germane. The result is 21 that the ALJ did not consider the entire record when evaluating Ms. Nguyen’s credibility. 22 Moreover, the ALJ did not identify the specific portions of Ms. Nguyen’s testimony that he found 23 not fully credible and explain why they were not credible with “specific, clear and convincing 24 evidence.” Garrison, 759 F.3d at 1014–15; Holohan v. Massanari, 246 F.3d 1195, 1208 (9th Cir. 25 2001); see also 42 U.S.C. § 405(b)(1) (noting the ALJ’s responsibility to provide “a discussion of 26 the evidence”). This is error, and remand is appropriate. 27 28 264 AR 37. ORDER – No. 3:16-cv-01665-LB 36 1 3.3 Developing the Record 2 Ms. Nguyen argues that the ALJ failed to retain an expert to evaluate ambiguous evidence and 3 resolve inconsistencies in the record.265 The Commissioner responds that the duty is triggered only 4 when the evidence is ambiguous or inadequate to allow evaluation of the evidence.266 The “ALJ has an independent duty to fully and fairly develop the record and to assure that the 5 6 claimant’s interests are considered.” Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001) 7 (internal quotations omitted). “Ambiguous evidence, or the ALJ’s own finding that the record is 8 inadequate to allow for proper evaluation of the evidence, triggers the ALJ’s duty to conduct an 9 appropriate inquiry.” Id. (internal quotations omitted). The “ALJ is the final arbiter with respect to 10 United States District Court Northern District of California 11 12 13 14 resolving ambiguities in the medical evidence.” Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008). When there is conflicting medical evidence, it is the ALJ’s role to determine credibility and resolve the conflict. Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992); Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). The ALJ likewise is responsible for resolving ambiguities. Id. Given that the ALJ did not consider Dr. Chan’s diagnosis under the “treating physician 15 16 17 standard,” the court cannot say that the ALJ had a duty to call a medical expert to resolve (for example) any differences in opinion between Dr. Rana and Dr. Navani. 267 Moreover, given that the diagnosis affects the ALJ’s assessment of “other source” evidence and Ms. Nguyen’s 18 testimony, remand is appropriate. The ALJ can assess on remand whatever steps it needs to 19 resolve any conflicts in the record, including any medical or psychological expert. 20 21 22 23 24 25 26 265 Motion for Summary Judgment ‒ ECF No. 13 at 20. Cross-Motion for Summary Judgment ‒ ECF No. 16 at 13 (citing Mayes v. Massanari, 276 F.3d 453, 450–60 (9th Cir. 2001)). 266 27 28 267 Motion for Summary Judgment – ECF No. 16 at 21. ORDER – No. 3:16-cv-01665-LB 37

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