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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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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San Francisco Division

United States District Court
Northern District of California

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KAYDEN THUY NGUYEN,

Case No. 3:16-cv-01665-LB

Plaintiff,

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v.

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NANCY A. BERRYHILL,
Defendant.

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ORDER GRANTING PLAINTIFF’S
MOTION FOR SUMMARY JUDGMENT
AND DENYING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT
ECF Nos. 13 & 16

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INTRODUCTION

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Plaintiff Kayden Thuy Nguyen moves for summary judgment, seeking judicial review of the

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Social Security Administration’s decision to deny her disability benefits for her claimed

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disabilities of degenerative disc disease of the cervical and lumbar spine as well as asthma,

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depression, and anxiety.1 The Administrative Law Judge (“ALJ”) found that Ms. Nguyen had the

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residual functional capacity to perform light work as defined in 20 C.F.R. § 404.1567(b), with

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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.
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ORDER – No. 3:16-cv-01665-LB

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limitations, and was not disabled.2 The Commissioner opposes Ms. Nguyen’s summary-judgment

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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

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oral argument. All parties have consented to magistrate jurisdiction.4 The court grants the

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plaintiff’s motion and denies the Commissioner’s cross-motion and remands for further

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proceedings.

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STATEMENT

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1. Procedural History
Ms. Nguyen filed her initial disability claim on January 11, 2013, alleging disability beginning

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Northern District of California

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December 29, 2011.5 The Social Security Administration (“SSA”) stated that Ms. Nguyen’s

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disability was not severe enough to keep her from working and denied her claim.6 On December 9,

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2013, Ms. Nguyen requested reconsideration, but the SSA determined that the initial decision was

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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

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attended the hearing with her attorney Katherine Siegfried.10 ALJ Catherine R. Lazuran and

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vocational expert Corinne Porter also attended the hearing, and Ms. Nguyen’s brother Kenneth

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Nguyen attended and testified as a witness.11 The ALJ found that Ms. Nguyen was not disabled

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AR 39. Administrative Record (“AR”) citations refer to the page numbers in the bottom right hand
corner of the Administrative Record.
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ECF Nos. 2 & 9.
AR 102.

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AR 121.

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AR 125.

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AR 134.

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Cross-Motion for Summary Judgment ‒ ECF No. 16.

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AR 49.

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AR 47.

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AR 47, 82.

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during the applicable disability period of December 29, 2011, to January 28, 2015, the date of the

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ALJ’s opinion.12
Ms. Nguyen requested review of the ALJ’s decision by the Appeals Council,13 which denied

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her request for review.14 After receiving an extension of time to file a federal suit, Ms. Nguyen

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sought judicial review of the ALJ’s decision15 and now moves for summary judgment.16 The

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Commissioner answered the complaint and cross-moves for summary judgment.17

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2. Summary of Records and Administrative Filings
2.1 Records

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2.1.1 Treatment Records Regarding Degenerative Disc Disease18

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Ms. Nguyen was hospitalized at Kaiser from January 9 to 16, 2012, for “lower back pain” with

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Northern District of California

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“uncontrolled symptoms,” with mobility needs of “[m]ust be allowed to use a walker, wheelchair

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as directed.”19 Her status was “off work.”20 An MRI showed a bulging disc at L4–L5 and central

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bulging at C5–C6 and C6–C7.21 Her diagnosis was intervertebral disc disorder and myelopathy in

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her lumbar spine.22 On January 16, one of her treating doctors, Dr. Chan, summarized her

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diagnoses,23 noted the drugs she had received (including empiric steroids, escalating doses of

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dilaudid, and valium),24 and noted that there were “no objective findings to explain her numerous

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AR 27.

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AR 19‒23.

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AR 6.

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ECF Nos. 1, 13.

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Id.

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ECF No. 16.

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AR 268–516, 581–84.

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AR 583–84.

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Id.

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AR 446.

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AR 268, 310.

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AR 447–48.

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AR 447.

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ORDER – No. 3:16-cv-01665-LB

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symptoms.”25 He was concerned about the possibility of either conversion disorder or secondary

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gain.26 He noted Ms. Nguyen’s anxiety and fear and her “full on panic attack” before a physical

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therapy session.27 She “had a lot of anxiety and fear that she will not be able to walk and [has] not

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been able to participate very much with PT.”28 He noted her other stressors: “she was engaged in a

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bad working environment in which she was severely abused (details unknown as she claims to be

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in litigation at this time);” and she had a death in her close social circle.29 Dr. Chan also noted that

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the “psych recommended SSRI for anxiety and scheduled Ativan until SSRI takes effect.” 30 Dr.

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Chan ultimately diagnosed Ms. Nguyen with low back pain, somatization disorder, anxiety

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disorder, leukocytosis, constipation and asthma.31 He recommended short-term rehabilitation at a

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skilled nursing facility.32
After her hospitalization at Kaiser, Ms. Nguyen was admitted to Valley House Care Center.33

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She had bladder incontinence, was in a wheelchair, and was at a high risk for falls.34 Her pain was

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constant and severe.35 During her stay, she took medications, including Ativan, oxycodone,

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Lyrica, Zoloft, Prednisone, and acetaminophen, among others.36 She continued to experience back

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pain and spasms.37 When she was discharged in late January 2012, she had muscle weakness,

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decrease in balance, gait abnormality, and increased risk for falls; physical therapy was

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Id.

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Id.

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Id.

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Id.

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29

Id.

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Id.

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AR 448.

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AR 446.

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AR 268–326.

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AR 272–73.

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AR 275.

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AR 476‒81.

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AR 494.

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prescribed.38 Kaiser records showed that from January 29 to February 26, she remained “off

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work.”39
In May 2012, as part of a worker’s compensation evaluation, Dr. Navani examined Ms.

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Nguyen, who reported the significant impact of her back pain on her ability to work, perform

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household chores, drive, walk, concentrate, sleep, and socialize.40 Dr. Navani identified the disc

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protrusion in the MRI (described by her as L4–L5) with central canal and bilateral neuro-forminal

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impingement.41 She had “an antalgic gait, limited range of motion in her cervical and lumbar

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spine, and positive straight leg tests at 30 degrees bilaterally.”42 Dr. Navani diagnosed Ms.

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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

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Northern District of California

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cervical, thoracic, and lumbar myofascial pain.”43 Her restrictions were: limited to lifting and

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carrying only fifteen pounds, and doing limited bending, twisting at the waist, and overhead

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work.44 Dr. Navani prescribed Ketoprofen, Prilosec, and acupuncture.45 Dr. Navani observed that

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Ms. Nguyen had a normal affect, was making good eye contact, had good judgment, and did not

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exhibit pressurized speech, flight of ideas, or auditory or visual hallucinations.46 A physician’s

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assistant affiliated with Dr. Navani, Nadi Sarnevsht, recommended that Ms. Nguyen “continue

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working with her chiropractor.”47
In July 2012, Ms. Nguyen consulted with neurologist Dr. Rana, who did not have access to her

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medical records or MRIs.48 He noted that Ms. Nguyen presented with chronic lower back pain

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AR 582–83.

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AR 250.

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AR 254.
AR 252.

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Id.

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AR 253.

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AR 255.

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AR 306.

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AR 254.

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AR 258.

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AR 263.

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“most probably secondary to her scoliosis” as well as “probably mild degenerative disc disease.” 49

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He opined that Ms. Nguyen could sit for six hours with breaks in an eight-hour day, carry ten

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pounds frequently and twenty pounds occasionally, and frequently stoop, bend, kneel, crouch and

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climb.50 Ms. Nguyen “has difficulty sitting, standing or walking for more than [two to three] hours

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at a stretch” but “[s]he can do all her activities otherwise.”51 Ms. Nguyen was “pleasant,”

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“appeared her stated age,” and cooperated with the examination.52 Ms. Nguyen had “mild

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scoliosis” and “mild tenderness . . . in her lower back,” but her range of motion was “within

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normal limits.”53 Ms. Nguyen “walks with [a] somewhat stiff back,” but “no limp was noted,” and

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“no assistive device [was] used.”54
A February 2013 MRI showed degenerative disc disease at L5–S1, with some facet

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Northern District of California

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schlerosis.55 An April 2014 X-ray showed intervertebral disc-space narrowing at L5–L6 with

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endplate schlerosis and anterior osteophytic activity and facet imbrication at L5–L6; this was

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diagnosed as Grade I spondylolisthesis.56

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In March 2014, Dr. Han, a doctor of osteopathy, produced a “supplemental medical-legal

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evaluation” as part of the worker’s compensation process.57 Dr. Han diagnosed Ms. Nguyen with

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lumbosacral degenerative disc disease, lumbar sprain, chronic pain syndrome, and “spasm of

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muscle.”58 He believed that her injury was a “recurrence defined as a reappearance of prior

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symptoms from a prior injury in the absence of clearly definable injury or trauma.”59 He

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AR 265.

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Id.

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AR 263

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AR 264.

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Id.

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Id.

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AR 517.

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AR 522.

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AR 552.

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AR 553.

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Id.

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apportioned 90% of her disability to a non-industrial pre-existing condition and normal

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degeneration, and 10% to the industrial injury caused by prolonged sitting during her time spent

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working at Wal-Mart. 60
Ms. Nguyen’s chiropractor treated her from March 2012 to June 2014, three times a week.61

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Some of the events in the treatment records include Dr. Lee’s request in September 2013 that Ms.

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Nguyen be excused from school until October 2 due to extreme pain while sitting and walking.62

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By September 2014, Dr. Lee reported the following in the residual-functional-capacity

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questionnaire: Ms. Nguyen had clinical signs of back pain with decreased range of motion, could

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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

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Northern District of California

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time, needed to take breaks, could not lift more than ten pounds, and likely would be absent at

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least four days a month.63

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Ms. Nguyen’s acupuncturist treated her from June 2012 to September 2014.64 In the residual-

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functional-capacity questionnaire, the acupuncturist reported that Ms. Nguyen’s symptoms would

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interfere frequently with Ms. Nguyen’s concentration and attention.65 Based on the acupuncturist’s

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observations, Ms. Nguyen could not stand, walk, or sit for more than two hours in an eight-hour

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workday, needed to walk around and switch positions at will, needed to take unscheduled breaks

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during the day, could not lift more than ten pounds, and would be absent at least four days a month

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because of her symptoms.66

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AR 554.

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AR 519, 528–47.

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AR 535.

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AR 549–51.

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AR 587–630.

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AR 632.

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AR 632–34.

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2.1.2 Dr. Bill Payne and Dr. J.R. Saphir — DDS Medical Consultants

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In July 2013, Disability Determination Services (“DDS”) Medical Consultant Dr. Bill Payne

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examined Ms. Nguyen and reviewed her records.67 He found that she had severe degenerative disc

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disease of the lumbar spine; it was severe because it limited her to light work, with no additional

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limitations (and thus she was not disabled).68 She had “limited motion of the cervical/lumbar

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spine,” good motor strength, an antalgic gait, and was “able to heel/toe but ha[d] some

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unsteadiness.”69 In December 2013, DDS Medical Consultant Dr. J.R. Saphir agreed with this

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assessment.70

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2.1.3 Mental-Health Treatment Records

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As discussed above, Ms. Nguyen had some psychological issues in January 2012 when she

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first had her back issues. She had panic attacks when she was admitted to the hospital; she was

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prescribed Lorazepam, Lyrica, and Zoloft.71 Dr. Chan diagnosed her with Somatization Disorder

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and Anxiety Disorder.72 Dr. Lam did an assessment at the skilled nursing facility and found

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depression (manifested by insomnia and sad facial expressions) and anxiety (manifested by the

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inability to relax).73
From March 2014 to September 2014, Ms. Nguyen saw a trauma therapist named Anna Clark

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weekly, based on a history of sexual assaults directed at her.74 Ms. Clark is a Marriage and Family

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Therapist Intern and California State certified Sexual Assault Counselor at Rape Trauma Services:

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A Center for Healing and Violence Prevention.75 The following describes Ms. Clark’s letter to the

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AR 102–10.

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AR 109.

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AR 108.

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AR 111–20

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AR 268, 277, 279, 447.

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AR 479–83.

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AR 320.

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AR 559.

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Id.

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SSA regarding Ms. Nguyen. As a result of the sexual assaults, Ms. Nguyen struggles “with strong

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feelings of anxiety, panic, depression, and anger.”76 She has “intense insomnia, intrusive thoughts,

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distrust of others, and loss of concentration and focus.”77 The trauma greatly affects her “ability to

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manage everyday tasks such as work, household responsibilities[,] and inter-personal

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relationships.”78 “She experiences strong social anxiety and paranoia related to applying for a

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work position” and working with colleagues and clients.79 “She experienced workplace bullying in

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the past due to her trauma,” had “great anxiety and paranoia that it [would] happen again,” and is

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easily triggered and “can experience intense anxiety[] when she is reminded of her trauma or has

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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

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in the past.81 “Experiencing workplace stress would most likely be very overwhelming. . .

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[because] her daily level of stress is already high”; she probably would “have difficulty

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concentrating and focusing on her work[] due to [her] intense anxiety . . . in social situations.82

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Treatment notes reflect that Ms. Nguyen “presents with symptoms of sadness often,” had

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problems trusting others, and was dealing with feelings of humiliation and rejection.83 While Ms.

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Nguyen was “[e]ngaged in the session,” her “affect matches [the] subject matter.”84 The notes

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refer repeatedly to Ms. Nguyen’s suffering from depression, anger, anxiety, humiliation, and

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nightmares.85

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76

Id.

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77

Id.

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Id.

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Id.

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80

Id.

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81

Id.

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Id.

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AR 561.

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84

Id.

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85

AR 560‒80.

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In September 2014, in a residual-functional-capacity questionnaire, the chiropractor Dr. Lee

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reported that depression was contributing to Ms. Nguyen’s symptoms but noted that she could

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tolerate “low stress jobs.”86 Also in September 2014, the acupuncturist Ms. Nakamura opined that

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depression and anxiety contributed to Ms. Nguyen’s physical symptoms related to her herniated

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disc.87

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2.2 Ms. Nguyen’s Testimony

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Ms. Nguyen testified at the October 3, 2014 hearing.88

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The ALJ examined her first, asking general background questions and questions about Ms.

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Nguyen’s educational background and work history.89 Ms. Nguyen testified that she completed a

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Northern District of California

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total of three semesters of community college, where she studied fashion merchandising.90 She

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worked as a waitress from 2005 to 2006.91 From June 2007 to February 2008, she worked as an

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applied behavior analysis therapist, and from May 2009 to May 2010 she worked for Virgin

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America as a flight attendant.92 She was able to lift between 25 and 70 pounds during this period.93

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She then worked as a Network Operation Center Analyst for Walmart.94 Ms. Nguyen recently

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spent four months working at Bridal Project, working 15 to 25 hours a week and lifting at most 15

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pounds.95 Since December 2011, she volunteered at her church.96 At the time of the hearing, she

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86

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AR 632.

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AR 49.

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AR 53.
Id.

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AR 58.

92

AR 56.

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Id.

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AR 548–49.

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90

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AR 54.

95

AR 60.

96

AR 61.

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worked 15 to 20 hours a week as a nanny caring for three children, ages four, six, and seven.97 The

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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

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Ms. Nguyen responded that she was working as a nanny but could not do the job fulltime and

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similarly could not do the fulltime work she did at Bridal Project.100 Her inability to work began in

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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.

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Nguyen listed codeine, Valista Pharmaceutical Medicines, Adderall, and Albuterol, and she

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mentioned others given to her at Kaiser but could not remember the names.103 The ALJ asked

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about negative side effects from any medications, and Ms. Nguyen responded that she stopped

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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

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“a lot of anxiety” and gets “really stressed around people.”107 She then became upset, and the ALJ

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asked her to try to calm down.108 Ms. Nguyen said that since she lost her job at Walmart, she tried

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to avoid people.109

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AR 53.

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Id.

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AR 62.

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AR 63.

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AR 64.

102

Id.

103

Id.

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104

Id.

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105

AR 65‒66.

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AR 66.

107

Id.

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108

Id.

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109

AR 67.

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The ALJ asked about Ms. Nguyen’s general living situation and ability to care for herself.110

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Ms. Nguyen said that she had a limited ability to do household chores, had no permanent home,

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and stayed at her brother’s and boyfriend’s houses.111 She typically grocery shops once every two

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weeks with help from another person, but was capable of going by herself.112 She has been

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exercising since 2011 and tries to swim three times per week.113 She used to attend church but

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stopped going about three months prior due to anxiety.114 Ms. Nguyen needed help doing laundry,

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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

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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

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Northern District of California

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was therapeutic for her when she was stressed.119 She uses a computer for about an hour every day

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but rarely watched television.120 She testified that she had not had money to pay bills since 2011,

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and was not capable of doing any of the types of work that she had done before December 2011,

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including work as a bridal consultant.121
Ms. Nguyen’s attorney Katherine Siegfried then asked Ms. Nguyen about the frequency of her

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back pain.122 She said that the pain was triggered by stress or by sitting or standing for too long,

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110

AR 68.

111

Id.

112

AR 69.

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113

Id.

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114

AR 70.

115

AR 72.

116

AR 70.

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117

Id.

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118

Id.

119

AR 72.

120

Id.

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121

AR 74.

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122

AR 75.

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and that it affected her ability to concentrate on and remember things.123 Ms. Siegfried asked if

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Ms. Nguyen ever experienced depression and anxiety.124 Ms. Nguyen said that she felt depressed

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during “any down time [she] had” and had experienced depression since before she worked at

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Walmart.125 She stated that she sometimes felt anxiety throughout the day, and that her anxiety

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would be triggered by certain smells, colors, and images of guns.126 She occasionally has panic

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attacks.127
Ms. Siegfried asked whether she had any help at her nanny job.128 Ms. Nguyen replied that she

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needed help lifting and moving the children.129 She can sit for only 45 minutes before having to

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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

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without health insurance, and she was in debt to her chiropractor and acupuncturist.131

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2.3 Kenneth Nguyen’s Testimony

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Ms. Nguyen’s brother, Kenneth Nguyen, testified at the October 2014 hearing.132 Before

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December 2011, he testified, Ms. Nguyen was a happy, outgoing person; since “the incident

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happened,” she is not the same: she is not as physical as she used to be, and she is

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“psychologically not all there like we used to have her.”133 She goes to school and does

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homework, and spends some of her time painting and drawing; he noted that she “draws quite a

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123

Id.

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124

AR 76.

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125

Id.

126

AR 77.

127

Id.

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128

AR 78.

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129

Id.

130

Id.

131

AR 79.

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132

AR 82.

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133

AR 83.

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lot.”134 He testified that Ms. Nguyen lost a lot of friends and rarely saw the friends she had

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remaining.135 He keeps in close contact with his sister, they are best friends, and the rest of their

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family had little contact with her due to “family problems.”136 He said that she required help with

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chores such as preparing food and was unable to stand for long before needing to lie down on the

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floor to stretch her back.137

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2.4 Vocational Expert Testimony

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Vocational expert (“VE”) Corrine Porter testified at the October 2014 hearing.138 The VE first

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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

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VE then classified Ms. Nguyen’s past work, stating that Ms. Nguyen had worked as a sales person

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for women’s apparel, a waitress (informal), a tutor, a flight attendant, and a network control

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operator.141 The ALJ asked the VE if Ms. Nguyen had any skills that were transferable to other

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jobs, and the VE replied that she was in the low range of skills, which included “data entry from

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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.

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Nguyen’s age, education, and past relevant work experience could perform any of Ms. Nguyen’s

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past work with the following limitations: (1) able to lift 20 pounds occasionally and 10 pounds

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frequently, and (2) can stand and walk six of eight hours and sit six of eight hours.143 The VE

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134

AR 84.

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135

Id.

136

AR 86.

137

AR 87–88.

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138

AR 88.

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139

AR 89.

140

Id.

141

AR 90.

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142

AR 91.

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143

Id.

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responded that this hypothetical person would be able to work as a network analyst, tutor,

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waitress, or salesperson.144

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The ALJ asked Ms. Nguyen about her earnings in 2012 and 2013.145 In 2012, Ms. Nguyen

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received unemployment benefits, and in 2013, her earnings were from the bridal job.146 The ALJ

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asked Ms. Nguyen how often she had seen Dr. Navani.147 Ms. Nguyen saw Dr. Navani “possibly

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twice” and stopped going because she did not have money, and her insurance denied her claim.148

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The VE then testified about the number of tutor positions and network analyst jobs in the nation

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and in California.149
The ALJ then added to the hypothetical that the person could frequently climb, stoop, bend,

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kneel and crouch, and asked if said person would still be able to do those jobs.150 The VE

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responded, “yes.”151 The ALJ then altered the hypothetical so that the person could lift 15 pounds

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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
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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
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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
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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
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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
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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