Spiteri v. Colvin

Filing 25

ORDER granting 19 Motion for Summary Judgment; denying 20 Motion for Summary Judgment. (Beeler, Laurel) (Filed on 12/23/2016)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 San Francisco Division United States District Court Northern District of California 11 CATHLEEN SPITERI, 12 Plaintiff 13 v. 14 CAROLYN W. COLVIN, Acting Commissioner of Social Security Administration, 15 16 Case No. 3:16-cv-01937-LB ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT [Re: ECF Nos. 19 & 20] Defendant. 17 18 INTRODUCTION 19 The plaintiff Catherine Spiteri moves for summary judgment, seeking judicial review of a final 20 decision by the Social Security Administration denying her disability benefits for claimed 21 disabilities of vertigo, headaches, hyperlipidemia, hypertension, bilateral hyperopia with 22 astigmatism, posterior vitreous detachments, very early cataracts, degenerative disc disease, 23 obesity, and adjustment disorders with anxious mood.1 The Administrative Law Judge (“ALJ”) 24 found that Ms. Spiteri had the severe impairment of vertigo and headaches but held at step three of 25 the sequential evaluation that she did not meet or equal the criteria of any listing.2 See 20 C.F.R 26 27 28 1 Motion for Summary Judgment – ECF No. 19. Record citations refer to material in the Electronic Case File (“ECF”); pinpoint citations are to the ECF-generated numbers at the top of the documents. 2 Administrative Record (“AR”) 28. ORDER 11-cv-3082 LB 1 § 404.1520(4)(iii). The Commissioner opposes Ms. Spiteri’s motion for summary judgment and 2 cross moves for summary judgment.3 Pursuant to Civil Local Rule 16-5, the matter is submitted for decision by this court without 3 4 oral argument. All parties consent to magistrate jurisdiction.4 Upon consideration of the 5 administrative record, the parties’ briefs, and the applicable legal authority, the court grants the 6 plaintiff’s motion, denies the Commissioner’s cross-motion, and remands for further 7 administrative proceedings on the grounds that the ALJ erred by failing to consider Listing 11.03 8 at step three and failing to consider Ms. Spiteri’s headache-related limitations in the residual 9 functional capacity in the step four analysis. Furthermore, the ALJ failed to set out “clear and convincing reasons” for dismissing treating physician Dr. Siegel’s medical opinion and consultive 11 United States District Court Northern District of California 10 physician Dr. Katzenberg’s medical opinion. 12 13 14 STATEMENT 1. Procedural History Ms. Spiteri filed her initial disability claim on May 2, 2014, alleging disability beginning 15 16 March 31, 2014.5 The Social Security Administration (“SSA”) concluded that although Ms. Spiteri 17 had medically determinable impairments, the limitations did not prevent her from performing 18 relevant past work as a cashier, and thus it denied her claim on June 24, 2014.6 After her request 19 for reconsideration was denied on November 4, 2014, Ms. Spiteri requested a hearing before an 20 ALJ on November 12, 2014.7 The hearing was held on June 10, 2015, in San Jose, California. Ms. Spiteri, represented by 21 22 attorney Michael Egan, attended the hearing and testified. Impartial vocational expert (“VE”) 23 24 3 Cross-Motion ̶ ECF No.20. 4 Consent Forms ̶ ECF No. 13, 14. 5 27 AR 21. 6 AR 92, 96–97. 28 7 AR 122. 25 26 ORDER (3:16-cv-01937-LB 2 1 Ronald Morrell also attended the hearing and testified.8 The ALJ concluded Ms. Spiteri did not 2 meet the SSA definition of “disabled” within the applicable period of March 31, 2014 to 3 September 16, 2015, the date of the ALJ’s decision. 4 The Appeals Council denied Ms. Spiteri’s request for review.9 In April 2016, Ms. Spiteri filed 5 her complaint for judicial review.10 In August 2016, she moved for summary judgment,11 the SSA 6 cross moved for summary judgment,12 and Ms. Spiteri filed a reply brief.13 7 8 2. Summary of Record and Administrative Findings 9 2.1 Medical Records 10 2.1.1 Dr. Michael Siegel: treating neurologist United States District Court Northern District of California 11 Dr. Siegel has been treating Ms. Spiteri for approximately 13 years.14 In March 2014, Ms. 12 Spiteri saw Dr. Siegel at the San Mateo Medical Center for a one-year follow up appointment for 13 her migraines.15 Dr. Siegel’s notes record Ms. Spiteri’s experiencing two to three headaches per 14 week.16 He did not identify any neurological abnormalities during his physical examination of Ms. 15 Spiteri.17 Dr. Siegel saw Ms. Spiteri again on April 28, 2014.18 Ms. Spiteri reported experiencing 16 vertigo the previous week.19 Dr. Siegel’s medical notes describe Ms. Spiteri’s neurological 17 function as grossly normal and her mental function as alert and orientated.20 Similarly, Dr. Siegel 18 19 20 8 9 AR 21. Id. 10 21 Complaint ̶ ECF No. 1. 11 Motion for Summary Judgment ̶ ECF No. 19. 22 12 Cross Motion and Response ̶ ECF No. 20. 23 13 Id. 14 24 AR 65. 15 AR 387. 25 16 AR 387. 17 AR 389. 18 AR 384. 26 27 19 28 20 Id. AR 385. ORDER (3:16-cv-01937-LB 3 1 described Ms. Spiteri’s neurological function as grossly normal during an appointment on May 27, 2 20.21 The medical notes describe Ms. Spiteri’s migraines as “unspecified, without mention of 3 intractable migraine.”22 In September 2014, Dr. Siegel performed a Physical Capacities Evaluation.23 Dr. Siegel 4 5 diagnosed Ms. Spiteri as having chronic migraines and described her prognosis as uncertain.24 Dr. 6 Siegel estimated that Ms. Spiteri, if placed in a competitive work situation, could sit for 4 hours 7 and stand or sit for 2 hours respectively.25 While Dr. Siegel completed the part of the evaluation 8 about whether Ms. Spiteri could lift or carry items ranging from 5 to 100 pounds during an 8-hour 9 work day, he subsequently crossed out this information stating, “Disregard, can’t manage 8 hour 10 day.”26 United States District Court Northern District of California 11 In April 2015, Dr. Siegel completed a “Medical Source Statement of Ability to do Work- 12 Related Activities (Mental),” addressing how Ms. Spiteri’s impairments affect her ability to carry 13 out work-related activities on a sustained basis.27 Ms. Spiteri’s ability to understand, remember, 14 and carry out short, simple instructions and make judgments on simple work-related decisions was 15 moderately affected by her impairment.28 Her ability to understand, remember, and carry out 16 detailed instructions was markedly affected by her impairment.29 Her impairment affected her 17 ability to respond appropriately to supervision, co-workers, and work pressures in a work setting.30 18 Her ability to respond appropriately to work pressures or changes in a routine work setting was 19 20 21 21 AR 383. 22 22 AR 383. 23 AR 534. 23 24 Id. 24 25 25 26 AR 535. 27 AR 658. 28 AR 658. 26 27 29 28 30 Id. Id. AR 659. ORDER (3:16-cv-01937-LB 4 1 moderately affected by her impairment.31 Ms. Spiteri’s ability to interact with the public, 2 supervisors, and co-workers was slightly affected by her impairment.32 In May 2015, Dr. Siegel wrote a “Medical Report Verification of Physical/Mental Incapacity- 3 4 General Assistance,” concluding that Ms. Spiteri could not currently perform work but did not 5 have a permanent disability.33 The report also stated that Ms. Spiteri’s condition did not permit her 6 to undertake sedentary work or gardening.34 Dr. Siegel concluded that Ms. Spiteri’s condition 7 required re-evaluation on July 15, 2015.35 8 2.1.2 San Mateo Medical Center records Medical notes from San Mateo Medical Center record Ms. Spiteri at the Emergency Rooms 10 (“ER”) on multiple occasions between February 2014 and June 2015 with symptoms of vertigo 11 United States District Court Northern District of California 9 and severe migraines.36 On February 22, 2014, Ms. Spiteri attended the ER reporting dizziness 12 worsening with head movement and positional changes.37 Ms. Spiteri went to the ER again on 13 February 25, 2014, reporting dizziness, a migraine, and nausea.38 Ms. Spiteri described the 14 dizziness as worsening whilst standing.39 An MRI revealed minimal microvascular ischemic white 15 matter changes but otherwise no abnormalities.40 Ms. Spiteri presented at the San Mateo Medical 16 Center ER again on May 20, 2014, reporting severe dizziness, vertigo, headaches, and nausea for 17 over a day.41 No neurological abnormalities were recorded.42 On July 14, 2014, Ms. Spiteri again 18 19 20 21 22 23 24 25 26 31 32 33 34 35 Id. Id. AR 661. Id. Id. 36 AR 408, 402, 395, 490, 827, 821. 37 AR 408. 38 AR 402. 39 AR 403. 40 27 AR 378. 41 AR 393. 28 42 AT 395. ORDER (3:16-cv-01937-LB 5 1 sought treatment for vertigo at the San Mateo Medical Center ER, the onset having occurred 5 2 days earlier. 43 No underlying neurological problems were identified.44 Ms. Spiteri visited the ER on August 20, 2014, with a migraine, vertigo, and chronic back 3 4 pain, having experienced the symptoms all night, with vomiting preventing her from taking her 5 usual medication.45 No unusual neurological symptoms were recorded.46 On August 26, 2014, Ms. 6 Spiteri visited the ER seeking treatment for vertigo, describing her symptoms as a “spinning, 7 movement sensation, with nausea, lasting hours to days-daily.”47 Ms. Spiteri attended San Mateo Medical Center for a medication refill on August 29, 2014. 8 9 10 She reported experiencing three to four episodes per week, anxiety, and vertigo over the last three to four months, which come on randomly, lasting for a few minutes.48 United States District Court Northern District of California 11 2.1.3 Psychological evaluations On September 25, 2014, Ms. Spiteri was examined by Psychology intern, Ms. Alicia 12 13 Robinson, under the supervision of licensed psychologist Dr. Maria Moran to assess life stressors 14 which could possibly exacerbate her severe migraines.49 Ms. Spiteri presented with a positive 15 attitude with an attempt to possibly mask heavier problems.50 Ms. Spiteri stated she was looking 16 for employment daily and was hopeful to find employment in a property-management position.51 17 Ms. Spiteri described experiencing migraines “as often as 3 times per week” in addition to 18 19 20 21 43 AR 490. 44 AR 493. 45 24 AR 827. 46 AR 826. 25 47 AR 821. 48 AR 815. 49 27 AR 798. 50 AR 799. 28 51 AR 799. 22 23 26 ORDER (3:16-cv-01937-LB 6 1 vertigo.52 Ms. Spiteri rated the severity as 3–4 on a 10-point scale or 8–10 on a bad day.53 The 2 evaluation assessed Ms. Spiteri as having an adjustment disorder with anxious mood.54 Ms. Spiteri’s medical notes show that she attended at least eleven other psychological 3 4 appointments between September 2014 and March 2015.55 Notes from a follow-up psychology 5 appointment on October 6, 2014, record Ms. Spiteri’s statements that she tried to keep busy in the 6 shelter she was living in and engaged in computer job searching for two hours in the morning and 7 evening.56 Medical notes from an additional psychology consult performed by Dr. Charlene Fuentes on 8 9 October 28, 2014, concluded Ms. Spiteri did not meet the criteria for somatoform but that she might meet the criteria for undifferentiated somatoform.57 During an evaluation two weeks later, 11 United States District Court Northern District of California 10 Ms. Spiteri stated she experienced a migraine almost every day the previous week.58 At an 12 evaluation on December 31, 2014, Ms. Spiteri reported suffering migraines and vertigo on a daily 13 basis when she woke up and also after spending long periods on her feet.59 Ms. Spiteri referred to 14 the possibility of employment in real estate and getting her real estate license during appointments 15 on February 20, 2015, and March 17, 2015.60 16 2.1.4 Dr. Daniel R. Katzenberg: Neurological Consultant At the request of Social Services, Dr. Katzenberg, a neurologist at Ewing Diagnostics and 17 18 Psychological Services, undertook a comprehensive neurological evaluation of Ms. Spiteri in 19 January, 2015.61 When discussing Ms. Spiteri’s work-related abilities, Dr. Katzenberg concluded 20 21 52 22 53 AR 800. Id. 54 AR 806. 55 24 AR 739, 745, 750,759,760, 764. 56 AR 794. 25 57 AR 784. 58 AR 775. 59 27 AR 764–765. 60 AR 740–741, 746. 28 61 AR 567. 23 26 ORDER (3:16-cv-01937-LB 7 1 that “[i]n terms of function, when she is having an attack of migraine or vertigo, she cannot do 2 anything. She is simply bedridden for days at a time.”62 Conversely, Dr. Katzenberg concluded 3 Ms. Spiteri had no physical limitations when she is not having an attack.63 Due to Ms. Spiteri’s 4 baseline dizziness, Dr. Katzenberg advised against Ms. Spiteri lifting and carrying more than 20– 5 30 pounds occasionally, and noted that such lifting and carrying should be limited to smooth 6 surfaces.64 7 2.1.5 Dr. Edward Koo: Ophthalmologist Consultant 8 On October 30, 2014, again at the request of Social Services, Dr. Koo, an ophthalmologist at 9 Peninsula Ophthalmology Group, examined Ms. Spiteri.65 Dr. Koo’s notes record Ms. Spiteri as having a history of meningitis/encephalitis 11–12 years ago resulting in “nystagmus, double 11 United States District Court Northern District of California 10 vision, constant headaches, [and] vertigo 4–5 times per week.”66 While Dr. Koo noted that Ms. 12 Spiteri had very early cataracts which should be monitored, he concluded that Ms. Spiteri had 13 moderately good central and peripheral vision and that there appeared to be no ocular etiology for 14 the vertigo.67 15 2.1.6 Dr. F. Greene: Social Security Administration Evaluating Physician Dr. Greene, a SSA evaluating physician, completed a disability determination on Ms. Spiteri 16 17 dated June 24, 2014.68 During the medical portion of the disability determination, Dr. Greene 18 noted the medically determinable impairment of vertiginous syndrome and other disorders, 19 migraine, disorders of back (discogenic and degenerative), and essential hypertension.69 Dr. 20 Greene considered the medically determinable impairments could reasonably be expected to 21 22 23 24 25 26 62 63 64 AR 569. Id. Id. 65 AR 561. 66 AR 562. 67 Id. 27 68 AR 89. 28 69 AR 93. ORDER (3:16-cv-01937-LB 8 1 produce Ms. Spiteri’s symptoms and pain but the intensity, persistence, and functionally limiting 2 effects of the symptoms were not substantiated by the objective medical evidence alone.70 3 Dr. Greene found that Ms. Spiteri had the following exertional limitations: (1) can 4 occasionally (one third or less of an eight-hour day) lift or carry (including upward pulling) twenty 5 pounds; (2) can frequently (more than one-third and up to two-thirds of an eight-hour day) lift or 6 carry (including upward pulling) ten pounds; (3) can stand or walk, with normal breaks, for a total 7 of six hours in an eight-hour work day; (4) can sit, with normal breaks, for a total of six hours in 8 an eight-hour work day and (5) can push or pull, including hand and foot controls, for an unlimited 9 time.71 Dr. Greene also found that Ms. Spiteri had postural limitations with respect with her ability to 11 United States District Court Northern District of California 10 climb ropes, ladders, or scaffolds.72 Due to Ms. Spiteri’s history of vertigo, Dr. Greene concluded 12 Ms. Spiteri should never climb ropes, ladders, or scaffolds.73 13 Based on the record evidence, Dr. Greene found that Ms. Spiteri’s statements regarding her 14 symptoms were not substantiated by objective medical evidence alone and although her statements 15 were partially credible, the severity of the allegations were not fully supported by the evidence.74 16 Dr. Greene determined that although the impairments resulted in some limitations in Ms. 17 Spiteri’s ability to perform work, the limitations would not prevent Ms. Spiteri from performing 18 work she had done in the past, such as a cashier.75 Accordingly, Dr. Greene concluded that Ms. 19 Spiteri was not disabled.76 20 21 22 23 70 24 71 25 72 26 73 Id. AR 94. Id. Id. 74 27 AR 93. 75 AR 97. 28 76 Id. ORDER (3:16-cv-01937-LB 9 1 2.1.7 Dr. B. Sheehy: Social Security Administration Evaluating Physician Dr. B. Sheehy, a SSA evaluating physician, completed a disability determination of Ms. 2 3 Spiteri after she applied for reconsideration of her claim.77 During the medical portion of the 4 disability determination, Dr. Sheehy recorded medically determinable impairments of vertiginous 5 syndrome and other disorders of vestibular system, disorders of back (discogenic and 6 degenerative), and essential hypertension.78 Dr. Sheehy concluded, however, that the severity of 7 the allegations was not fully supported by the evidence.79 Dr. Sheehy concurred with Dr. Green’s 8 conclusions with respect to Ms. Spiteri’s exertional limitations.80 Dr. Sheehy considered that Ms. 9 Spiteri had sufficient residual capacity to perform past relevant work as a cashier and concluded 10 she was not disabled.81 United States District Court Northern District of California 11 12 2.2 Ms. Spiteri’s Testimony 13 Ms. Spiteri testified before the ALJ in June 2015.82 Ms. Spiteri last worked as a cashier at TJ 14 Maxx in March, 2014.83 Following an onset of vertigo, Ms. Spiteri took a leave of absence from 15 work, ultimately going on State Disability.84 After six months TJ Maxx sent Ms. Spiteri a letter 16 stating she would have to reapply for her position as a cashier.85 Ms. Spiteri stayed on State 17 Disability for a year.86 After Ms. Spiteri’s entitlement to State Disability ended, she received 18 unemployment benefits until April, 2015.87 While receiving unemployment benefits, and as a 19 20 77 21 AR 106. 78 AR 105–106. 22 79 AR 106. 80 AR 107. 81 24 AR 110. 82 AR 42. 25 83 AR 47. 23 26 84 Id. 85 27 AR 48. 86 AR 47. 28 87 AR 50. ORDER (3:16-cv-01937-LB 10 1 condition for receiving it, Ms. Spiteri applied for jobs as a receptionist but was not successful in 2 finding employment.88 Ms. Spiteri described the requirements of her previous jobs, testifying that her job at TJ Maxx 3 4 was a customer service/cashier position which required her to stock shelves, break down boxes, 5 hang up clothing on racks, and handle money.89 Ms. Spiteri stated her job involved folding, 6 bending, and walking.90 Ms. Spiteri testified that she was predominantly required to stand up 7 during her work hours.91 Prior to working at TJ Maxx Ms. Spiteri worked as a property manager at Heritage Reality.92 8 9 The position was primarily an office job with activities encompassing answering phones, attending to customers, filing, computer work, and property inspections.93 Ms. Spiteri inspected properties 11 United States District Court Northern District of California 10 about once a week.94 Before working at Heritage Reality, Ms. Spiteri worked at Stanford Garden Apartments as a 12 13 property manager. The job requirements were similar to those at Heritage Reality but required 14 more physical labor because Ms. Spiteri cleaned inside apartments and cleaned and gardened 15 around the complex.95 Ms. Spiteri lost her job at Heritage Reality due to her absenteeism caused 16 by her vertigo.96 Prior to working at Heritage Reality, Ms. Spiteri worked as a waitress at Denny’s 17 Restaurant in Oakland for 13 years.97 18 Ms. Spiteri described the symptoms of her vertigo and migraines,98stating she experienced 19 dizziness, nausea, and double vision.99 Ms. Spiteri also stated that she frequently suffered from 20 21 22 23 24 25 26 88 AR 52. 89 AR 54. 90 AR 54. 91 Id. 92 AR 54–55. 93 AR 55. 94 Id. 95 AR 56. 96 27 AR 58. 97 AR 57. 28 98 Id. ORDER (3:16-cv-01937-LB 11 1 migraines which lasted for three days, keeping her bedridden during that time.100 During her 2 migraines Ms. Spiteri experienced intense headaches, nausea, and dizziness.101 Ms. Spiteri 3 described the episodes of vertigo and migraines as coming on unexpectedly.102 4 5 2.3 Vocational Testimony 6 Vocational Expert Ronald Morrell testified at the hearing in June 2015. Mr. Morrell 7 summarized Ms. Spiteri’s past work103 as a waitress, a cashier, a property manager, and a resident 8 apartment house manager.104 With respect to any skills from these jobs, transferable to sedentary 9 work, Mr. Morrell testified that Ms. Spiteri’s office skills — computers, typing skills, customer service, and records experience — made her well placed to be employed as a receptionist or 11 United States District Court Northern District of California 10 information-clerk.105 The ALJ asked how many receptionist and information clerk positions 12 existed, and Mr. Morrell testified that, according to the US Department of Labor, there were 13 approximately 1,400,000.106 Mr. Morrell estimated that two thirds of this figure would consist of 14 receptionist jobs, as most businesses have a receptionist but not all have information clerks.107 Mr. 15 Morrell testified that the vocational adjustment required from a property manager or resident 16 apartment manager to an information clerk to be very little to slight.108 The ALJ then asked Mr. Morrell about the number of vacation and sick-leave days a person 17 18 could expect as a receptionist or information clerk, or in any of the previous jobs Ms. Spiteri had 19 held.109 Mr. Morrell stated that typically employees in these positions received ten days leave a 20 21 22 23 24 25 26 99 Id. 100 AR 59. 101 AR 60. 102 AR 63. 103 AR65-66. 104 AR 67-68. 105 AR 68. 106 AR 69. 107 Id. 27 108 AR 70. 28 109 AR 70–71. ORDER (3:16-cv-01937-LB 12 1 year.110 The ALJ inquired as to whether vacation leave could be taken if an employee was 2 suffering from medical problems and had no available sick leave.111 Mr. Morrell testified that 3 employees were free to use vacation leave as they pleased.112 With respect to the ability to take 4 unpaid leave, Mr. Morrell stated that taking more than three days of unpaid leave tended to be 5 problematic for employees, but a receptionist or information clerk could remain employed, taking 6 two or less days of unpaid leave a month.113 7 8 2.4 Administrative Findings 9 The ALJ held Ms. Spiteri was not disabled within the meaning of the Social Security Act from March 31 2014 to September 16 2015.114 The Social Security Administration has a five-step 11 United States District Court Northern District of California 10 evaluation process to determine if an individual is disabled. At step one, the ALJ must determine 12 if the individual is engaging in “substantial gainful activity.”115 At step two, the ALJ must 13 determine whether the individual has a “medically determinable impairment” that is “severe” or a 14 combination of impairments that is “severe.”116 At step three, the ALJ must determine if the 15 individual’s impairments are severe enough to meet a listed impairment.117 At step four, the ALJ 16 must determine the individual’s “residual functional capacity” and determine if the individual can 17 perform any other work.118 At step five, the ALJ must determine whether the individual is able to 18 perform any other work, considering her residual functioning capacity, age, education, and work 19 experience.119 20 21 110 AR 71-73. 22 111 AR 72. 112 AR 72. 113 24 AR 72-73. 114 AR 35. 25 115 AR 23. 116 AR 24. 23 26 117 27 118 28 119 Id. AR 24. Id. ORDER (3:16-cv-01937-LB 13 At step one, the ALJ found that Ms. Spiteri had not engaged in substantial gainful activity 1 2 since March, 31, 2014.120 At step two, the ALJ found that Ms. Spiteri had the following severe impairments: “vertigo 3 4 and headaches.”121 The ALJ found that the other identified impairments—“hyperlipidemia, 5 hypertension, bilateral hyperopia with astigmatism, posterior vitreous detachments, very early 6 cataracts, degenerative disc disease, obesity, and adjustment disorder with anxious mood” — were 7 non severe because the record did not establish that the conditions more than minimally limited 8 Ms. Spiteri’s ability to perform basic work duties.122 The ALJ pointed to a number of factors to support his finding that the above listed 9 impairments were not severe. With respect to Ms. Spiteri’s hypertension and hyperlipidemia, the 11 United States District Court Northern District of California 10 ALJ found regular treatment and medication controlled the conditions.123 The ALJ also noted that 12 the visual impairments did not significantly affect Ms. Spiteri’s ability to work, referring to 13 evidence from Dr. Koo that Ms. Spiteri’s visual clarity was 20/20 in her right eye and 20/30 in her 14 left.124 With respect to Ms. Spiteri’s degenerative disc disease, the ALJ pointed to the absence of 15 any evidence that the impairment resulted in any on-going limitation, noting that medical records 16 reported no myalgias or arthralgias in a musculoskeletal examination and record of Ms. Spiteri’s 17 exhibiting normal gait and normal strength bilaterally.125 The ALJ also noted that the record 18 showed that Ms. Spiteri remained relatively active, engaging in activities such as cleaning out the 19 closet at the shelter she was living in and delivering supplies to homeless people.126 In concluding that Ms. Spiteri’s adjustment disorder with anxious mood did not, more than 20 21 minimally, limit her ability to perform basic work activities, the ALJ considered four functional 22 23 120 AR 25. 24 121 25 122 AR 25–27. 123 AR 26. 26 124 27 125 28 126 Id. Id. Id. AR 26. ORDER (3:16-cv-01937-LB 14 1 areas to evaluate the severity of the mental impairment: (1) activities of daily living; (2) social 2 functioning; (3) concentration, persistence or pace; and (4) episodes of decompensation.127 With respect to daily living, the ALJ relied upon documentary evidence where Ms. Spiteri 3 4 stated she showers, eats, shops for groceries, carries small bags, drives an automatic car, and 5 volunteers at the shelter she lives in.128 6 The ALJ concluded Ms. Spiteri’s social functioning amounted to no more than mild 7 difficulties.129 In reaching this conclusion, the ALJ relied on medical notes describing Ms. 8 Spiteri’s presenting with an upbeat attitude and evidence that she maintains a healthy relationship 9 with her children, despite current life stressors.130 In concluding that Ms. Spiteri’s concentration presented no more than mild difficulties, the 11 United States District Court Northern District of California 10 AJL pointed to evidence that Ms. Spiteri had made plans to obtain a real estate license and had 12 consistently looked for work.131 Finally, with regard to episodes of decompensation, the ALJ held that the record did not 13 14 establish that Ms. Spiteri had suffered such a severe loss of adaptive functioning three times in one 15 year, each lasting for at least two weeks.132 16 At step three, the ALJ found that Ms. Spiteri did not have an impairment, or combination of 17 impairments, that meets or is medically equal to the severity of one of the listed impairments in 20 18 CF.R. Part 404, Subpart P, Appendix 1 (20 C.F.R § 404.1520(d), 404.1525, 404.1526, 416.920(d), 19 416.925 and 416.926).133 In reaching this conclusion, the ALJ evaluated the impairments singly 20 and in combination but found insufficient evidence to establish that the impairments equate to the 21 level of severity listed in the Regulations.134 22 23 127 128 24 129 25 130 26 131 132 27 133 28 134 AR 27. Id. Id. Id. Id. Id. AR 28. Id. ORDER (3:16-cv-01937-LB 15 1 At step four, the ALJ found that Ms. Spiteri had the residual functional capacity to perform the 2 full range of light work as defined in 20 C.F.R § 404.1567(b) and 416.967(b).135 The ALJ pointed 3 to internal inconsistencies in Ms. Spiteri’s testimony as to the range of daily exertional activities 4 she could perform.136 The ALJ considered Ms. Spiteri’s statements as to the intensity, persistence, 5 and limiting effects of the symptoms as not entirely credible.137 The ALJ stated Ms. Spiteri’s 6 allegation of disabling impairment was inconsistent with her reported levels of activity and 7 statements made elsewhere in the record.138 In particular, the ALJ noted that Ms. Spiteri’s repeated 8 attempts to secure work demonstrated a self-assessed ability to work and that the record showed 9 that during the adjudicative period, Ms. Spiteri intended to secure a real-estate license and 10 consistently looked for work.139 Additionally, the ALJ concluded that Ms. Spiteri’s allegations of disabling impairments were United States District Court Northern District of California 11 12 not supported by the medical record.140 The ALJ found the Physical Capacities Evaluated 13 completed by Dr. Siegel to be internally inconsistent (for example stating that Ms. Spiteri could sit 14 for up to four hours a day and stand for up to two hours a day but not work), and not supported by 15 any objective findings of functional limitation.141 The ALJ pointed to contradictory parts of Dr. 16 Siegel’s medical notes which recorded Ms. Spiteri’s neurological examinations as normal.142 The ALJ gave little weight to Dr. Siegel’s opinions as to Ms. Spiteri’s mental impairments.143 17 18 The AJL considered Dr. Siegel’s expertise as a neurologist not to be focused on disorders of the 19 20 21 135 AR 28. 136 AR 28–29. 137 24 AR 28. 138 AR 29. 25 139 22 23 26 140 141 27 142 28 143 Id. Id. AR 31. Id. AR 31–32. ORDER (3:16-cv-01937-LB 16 1 mind and, in any event, his medical notes made no mention of any significant psychiatric 2 abnormalities.144 The ALJ considered Dr. Siegel’s “Medical Report/Verification of Physical/Mental Incapacity” 3 4 of May 11, 2015 to carry more weight.145 In that report, Dr. Siegel stated Ms. Spiteri was not 5 permanently disabled and her condition ought to be reevaluated on July 15, 2015.146 The AJL 6 pointed to a note in Dr. Siegel’s records from April 6, 2015 — in which Dr. Siegel allegedly 7 recorded that Ms. Spiteri was able to return to work — further supported the conclusion that she 8 was not suffering from a disability.147 With respect to Dr. Koo’s medical examination of Ms. Spiteri, the ALJ concluded his opinion 9 rested on nothing more than Ms. Spiteri’s own allegations and carried little weight.148 The ALJ 11 United States District Court Northern District of California 10 noted that Dr. Koo did not identify any abnormalities during his consultative visual examination of 12 Ms. Spiteri, describing Ms. Spiteri as having moderately good central and peripheral vision.149 The ALJ concluded that Dr. Katzenberg’s opinion carried little weight because his opinion that 13 14 “the claimant cannot do anything” when experiencing migraine or vertigo was inconsistent with 15 medical records.150 For example, the ALJ stated that medical records show Ms. Spiteri is 16 frequently able to function when suffering from symptoms of migraine or vertigo because she 17 manages to obtain medical attention which requires movement outside and interaction with 18 others.151 The ALJ criticized Dr. Katzenberg’s assigning Ms. Spiteri a more limited baseline 19 functioning, stating it was contradictory given that Dr. Katzenberg recognized that Ms. Spiteri was 20 limited only when suffering an episode of vertigo or a migraine.152 21 144 AR 32. 145 AR 32. 146 24 AR 661. 147 AR 32. 25 148 22 23 26 149 Id. Id. 150 27 AR 32–33. 151 AR 33. 28 152 Id. ORDER (3:16-cv-01937-LB 17 The ALJ also accorded little weight to the physical assessments performed by the State 1 2 agency’s medical consultants.153 The ALJ stated the assessments contained little, if any, objective 3 findings of functional limitation, no credible opinion establishing total inability to work, and only 4 unsupported allegations of disabling impairment.154 The ALJ found that Ms. Spiteri was capable of performing past relevant work as a property 5 6 manager and that such work did not require the performance of work-related activities precluded 7 by her residual functional capacity.155 While the ALJ recognized Ms. Spiteri was limited to 8 performing light work, he considered the work of a property manager to be characterized as 9 such.156 In reaching this conclusion, the ALJ referred to the VE’s testimony that standard industry benefits allow a worker at least ten vacation days per year to be used at the employee’s 11 United States District Court Northern District of California 10 discretion.157 The ALJ considered that this benefit, in conjunction with any sick leave that Ms. 12 Spiteri would likely receive, would accommodate any episodes of vertigo or migraine resulting in 13 temporary severe limitation.158 Furthermore, the ALJ considered Ms. Spiteri’s acquired work skills transferable to other jobs 14 15 existing in significant numbers in the national economy.159 In determining if Ms. Spiteri could 16 make a successful adjustment to other work, the ALJ considered Ms. Spiteri’s age, residual 17 functional capacity, education, and work experience in conjunction with the Medical-Vocational 18 Guidelines, 20 CFR Part 404, Subpart P, Appendix 2.160 Based on an assessment of these factors 19 the AJL determined that Ms. Spiteri was not disabled as defined in the Social Security Act.161 20 21 22 23 153 154 155 24 156 25 157 26 158 159 27 160 28 161 AR 33. Id. Id. AR 34. Id. Id. AR 34-35. Id. AR 35–36. ORDER (3:16-cv-01937-LB 18 1 2 ANALYSIS 1. Standard of review 3 Under 42 U.S.C. § 405(g), district courts have jurisdiction to review any final decision of the 4 SSA commissioner if the claimant initiates the suit within 60 days of the decision. District courts 5 may set aside the commissioner’s denial of benefits only if the ALJ’s “findings are based on legal 6 error or are not supported by substantial evidence in the record as a whole.”42 U.S.C. § 405(g); 7 Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009) (internal quotation omitted). “Substantial 8 evidence means more than a mere scintilla but less than a preponderance; it is such relevant 9 evidence as a reasonable mind might accept as adequate to support a conclusion.” Andrew v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). If the evidence in the administrative record supports 11 United States District Court Northern District of California 10 both the ALJ’s decision and a different outcome, the court must defer to the ALJ’s decision and 12 may not substitute its own decision. See id.; Tackett v. Apfel, 180 F.3d 1094, 1097–98 (9th Cir. 13 1999). 14 15 16 2. Applicable law An SSI claimant is considered disabled if he suffers from a “medically determinable physical 17 or mental impairment which can be expected to result in death or which has lasted or can be 18 expected to last for a continuous period of not less than twelve months,” and the “impairment or 19 impairments are of such severity that he is not only unable to do his previous work but cannot, 20 considering his age, education, and work experience, engage in any other kind of substantial 21 gainful work which exists in the national economy.” 42 U.S.C. § 1382c(a)(3)(A) & (B). 22 23 24 25 26 27 2.1 Five-step analysis to determine disability 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 case cannot be resolved at step one, and the evaluation proceeds to step two. See 20 C.F.R. § 404.1520(a)(4)(i). 28 ORDER (3:16-cv-01937-LB 19 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). 1 2 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). 3 4 5 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). 6 7 8 9 10 United States District Court Northern District of California 11 12 13 For steps one through four, the burden of proof is on the claimant. Tackett, 180 F.3d at 1098. At 14 step five, the burden shifts to the commissioner. Id. 15 16 3. Application Ms. Spiteri submits that the ALJ erred in his decision by the following: (1) failing to consider 17 18 a relevant medical listing, 11.03, at step three; (2) failing to consider any headache-related 19 limitation in the residual functioning capacity assessment; (3) failing to evaluate the opinions of 20 the treating neurologist and consultative examiner in a manner consistent with the regulations, 21 Agency policy, and Ninth Circuit precedent; and (4) finding Ms. Spiteri’s adjustment order to be 22 non-severe.162 In assessing Ms. Spiteri’s residual functional capacity and according little weight to 23 the opinions of treating and consultive physicians, the ALJ relied on Ms. Spiteri’s testimony; the 24 court thus considers the interplay of the testimony with the physician opinions. 25 26 27 28 162 ECF No. 19 at 4. ORDER (3:16-cv-01937-LB 20 1 3.1 Relevant Medical Listings at Step Three 2 Ms. Spiteri submits that the ALJ erred by failing to indicate whether he specifically considered 3 Listing 11.03 in determining the plaintiff’s migraine headaches did not medically equal the criteria 4 of any listed impairment. Listing 11.03 states: 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 22 23 24 25 11.03 Epilepsy-nonconvulsive epilepsy (petit mal, psychomotor or focal) documented by detailed description of a typical seizure pattern, including all associated phenomena; occurring more than once weekly in spite of at least 3 months of prescribed treatment. With alteration of awareness or loss of consciousness and transient postictal manifestations of unconventional behavior or significant interference with activity during the day. In Edwards v. Colvin, No. 3:14-cv-05338-KSL, 2014 WL 7156846, at *3 (W.D. Wash. Sept. 15, 2014), the court held that, in a judicial review of an ALJ’s denial of a claim for disability benefits arising from migraine headaches, the ALJ erred by failing to consider Listing 11.03. In reaching this conclusion, the court noted that “the Commissioner’s own policy guidelines noted that Listing 11.03 was the most closely analogous listed impairments to migraine headaches” and that the defendant conceded the Commissioner assessed migraine headaches under 11.03. Id. The court also emphasized that Mr. Edward’s reported symptoms were “not too dissimilar from the claimant described in the example rationale for finding medical equivalence with Listing 11.03”, in particular symptoms of aura, alteration of awareness, and intense headache with throbbing, severe pain, nausea, and photophobia which lasted for anywhere between 4–72 hours and occurred more than twice a week. Id. These symptoms required the claimant to “lie down in a dark and quiet room for relief.” Id. Although the ALJ in Edwards stated that she had considered the severity of Ms. Edward’s migraine headaches in relation to the overall listings, she failed to specifically mention Listing 11.03; thus it was unclear whether she properly considered the listing. Id. The failure to mention the listing, combined with the finding that there was “at least a reasonable possibility that the plaintiff’s migraines might have been found to be medically equivalent to Listing 11.03, led the court to conclude the ALJ had erred. 26 27 28 ORDER (3:16-cv-01937-LB 21 1 In the current case, the ALJ considered Ms. Spiteri’s impairments singly and in combination 2 but found insufficient evidence to establish to the level of severity described in any listing under 3 the regulations.163 In reaching this conclusion, the ALJ made no mention of Listing 11.03 4 The defendant asserts the Commissioner’s policy guidelines, stating that migraine headaches are 5 most closely analogous to Listing 11.03, are sub-regulatory statements of agency policy which do 6 not impose judicially enforceable duties. But in Edwards, the defendant conceded the 7 Commissioner evaluates migraine headaches under this listing. Edwards v. Colvin, No. 3:14-cv- 8 05338-KSL, 2014 WL 7156846, at *3 (W.D. Wash. Sept. 15, 2014). The Commissioner contends alternatively that even if the ALJ should have considered Listing 9 11.03, the plaintiff has not met her burden to present medical evidence satisfying the criteria of 11 United States District Court Northern District of California 10 Listing 11.03. The Commissioner emphasizes that the ALJ found Ms. Spiteri’s evidence that she 12 experienced two to three migraines per week was not entirely credible and that the record 13 contained no evidence of intractable migraines or evidence of abnormal MRI, CT Scan and 14 ophthalmological examinations.164 But there is no test for migraine headaches, and thus, “when 15 presented with documented allegations of symptoms which are entirely consistent with the 16 symptomatology” for evaluating migraines, the ALJ cannot reject the claimant’s evidence on the 17 mere absence of objective supporting evidence especially when — as here — it is supported by 18 medical treatment records. See Federman v. Charter, No. 95 Civ. 2892 (LLS), 1996 WL 107291, 19 at *2 (S.D.N.Y 1996). As in Edwards, there is at least a reasonable possibility that Ms. Spiteri’s migraines might 20 21 have been found to be medically equivalent to Listing 11.03 if the ALJ properly considered the 22 listing. Dr. Siegel treated Ms. Spiteri for over two years for her migraines, and she sought 23 emergency medical treatment at least six times between February 2014 and June 2015.165 She also 24 takes prescribed medication for the symptoms.166 Furthermore, Ms. Spiteri’s symptoms are similar 25 163 AR 28. 164 27 ECF No. 20 at 4. 165 AR 408, 402, 395, 490, 827, 821. 28 166 AR 59–60. 26 ORDER (3:16-cv-01937-LB 22 1 to those in Listing 11.03. Her migraines keep her bedridden and sometimes last up to three days, 2 and she experiences intense headaches, nausea, and dizziness.167 3 The defendant argues that Ms. Spiteri waived the issue by not raising Listing 11.03 with the 4 ALJ or the appeals council.168 For the reasons that the plaintiff advances, there is no requirement a 5 claimant must specify the precise issue in its petition for review before the Council to later obtain 6 judicial review. Sims v. Apfel, 530 U.S 103, 105, 107, 112 (2000). And on this record, the court 7 holds that Ms. Spiteri adequately exhausted her administrative remedies. 8 9 3.2 Headache-Related Limitations in the Step Four Analysis Ms. Spiteri argues that the ALJ did not consider the effect of her migraines on her RFC 10 United States District Court Northern District of California 11 because he failed to address how her need to cease all activity until symptoms subside impacts her 12 work.169 An ALJ is not required to make specific findings as to frequency, duration, and severity, but an 13 14 assessment of the plaintiff’s RFC needs to include an assessment of the plaintiff’s ability to 15 perform work on an on-going basis. Miller v. Astrue, No.CV-09-01871-PHX-JAT, 2011 WL 16 671752, at *14 ̶ 15 (D. Ariz. Feb. 17, 2011). In Miller v. Astrue, the court held that the ALJ erred 17 by failing to fully consider the effect of the plaintiff’s migraine headaches on her RFC. Id. The 18 court held that in the absence of an initial function-by-function assessment of the claimant’s 19 physical and mental capacities, it might not be possible to determine if the claimant can perform 20 past relevant work. Id. Furthermore, the court held the ALJ’s statement that the plaintiff would 21 perform “light work” was conclusory and not the equivalent of undertaking an assessment of his 22 ability to work on a regular and continuous basis. Miller v. Astrue is similar to Ms. Spiteri’s case. Although the ALJ accepted that Ms. Spiteri’s 23 24 detrimental impairments could reasonably be expected to cause the alleged symptoms, he 25 26 167 27 AR 59–60. 168 ECF No. 20 at 4. 28 169 ECF No 19 at 11 ̶ 12. ORDER (3:16-cv-01937-LB 23 1 concluded that her statements as to persistence, intensity, and limiting effects were not entirely 2 credible.170 After reaching this conclusion, however, he failed to assess, or state what he believed 3 to be, Ms. Spiteri’s ability to attend work on a regular and continuous. As in Miller v. Astrue, his 4 conclusion that Ms. Spiteri had the ability to perform “light work” is conclusory and not a 5 substitute for the requisite initial function-by-function assessment.171 In the event that the ALJ reaches step four of the sequential process on remand, the ALJ must 6 7 identify Ms. Spiteri’s functional limitations and assess her work-related abilities on a function-by- 8 function basis. 9 3.3 Ms. Spiteri’s Testimony 11 United States District Court Northern District of California 10 The ALJ’s treatment of Ms. Spiteri’s testimony is bound to his decision to discount the 12 opinions of her treating and consultive physicians, and so the court considers it before it considers 13 the evaluation of the physician opinions. An individual’s subjective complaints are not conclusive evidence of disability. 42 U.S.C 14 15 §423(d)(5)(A) (“An individual’s statement as to pain or other symptoms shall not alone be 16 conclusive evidence of disability”); 20 C.F.R. § 404.1529(a) (an ALJ will consider “all 17 [claimant’s] symptoms, including pain, and the extent to which [claimant’s] symptoms can 18 reasonably be accepted as consistent with the objective medical evidence and other evidence”). An 19 ALJ must consider the entire case record when making specific credibility findings. See Social 20 Security Ruling (SSR) 96-7p (the credibility finding “must be specifically sufficient to make clear 21 to the individual and to any subsequent reviewers the weight the adjudicator gave to the 22 individual’s statements and the reasons for that weight”); see also Thomas v. Barnhart, 278 F.3d 23 947, 958-59 (9th Cir. 2002). An ALJ “must make a credibility determination with findings 24 sufficiently specific to permit the court to conclude that the ALJ did not arbitrarily discredit 25 claimant's testimony.” Thomas, 278 F.3d at 958 (citing Bunnell v. Sullivan, 947 F.2d 341, 345-46 26 27 170 AR 28. 28 171 AR 33-34. ORDER (3:16-cv-01937-LB 24 1 2 (9th Cir. 1991) (en banc)). The ALJ relied upon Ms. Spiteri’s testimony in accounting little weight to Dr. Siegel’s and Dr. 3 Katzenberg’s opinions and in assessing Ms. Spiteri’s residual functioning capacity at step four. 4 Ms. Spiteri engages in some daily activities on days that she is not suffering from migraines such 5 as searching for employment, tiding the shelter she lives in, and doing grocery shopping. Of 6 course, “a claimant need not prove that he or she is completely bedridden or completely helpless 7 to be found disabled.” Thomas v. Sullivan, 876 F.2d 666, 669 (8th Cir. 1989); see also Keller v. 8 Shalala, 26 F.3d 856, 859 (8th Cir.1994) (finding it error to discredit the claimant's subjective 9 complaints of pain based on her daily activities which consisted of watching television, taking care of her dogs, and doing household chores, which claimant testified she could not do when she was 11 United States District Court Northern District of California 10 suffering from a disabling headache); Forehand v. Barnhart, 364 F.3d 984, 988 (8th Cir.2004) 12 (“We have long stated that to determine whether a claimant has the residual functional capacity 13 necessary to be able to work we look to whether she has ‘the ability to perform the requisite 14 physical acts day in and day out, in the sometimes competitive and stressful conditions in which 15 real people work in the real world.’ ”) (citing McCoy v. Schweiker, 683 F.2d 1138, 1147 (8th 16 Cir.1982) (en banc)). 17 Moreover, the ALJ — by discounting this testimony or at least not considering other medical 18 evidence — did not make “specific findings relating to [the daily] activities” to support his 19 conclusions. Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005). For example, he did not 20 mention the number of times Ms. Spiteri sought emergency medical treatment for her symptoms 21 and overlooked her consistent work history, a factor which ordinarily attracts substantial 22 credibility when later claiming an inability to work due to disability. Springer v. Colvin, No. 1:13– 23 CV185, 2014 WL 3075342, at *8 (N.D. Ind. July 2, 2014). The ALJ’s characterization about Ms. 24 Spiteri’s testimony supported his decision to afford little weight to the medical evidence 25 (discussed in the next section) and his ultimate conclusion that Ms. Spiteri had the residual 26 functioning capacity to perform a full range of light work. Given that the consideration of her 27 testimony is intertwined with the evaluation of the medical evidence, both must be reassessed on 28 remand. ORDER (3:16-cv-01937-LB 25 1 3.4 The AJL Erred By According Little Weight To Medical Evidence 2 Social Security regulations identify three types of physicians: treating physicians; examining 3 physicians; and non-examining physicians. 20 C.F.R. § 416.927(c), (e); Lester v. Chater, 81 F.3d 4 821, 830 (9th Cir. 1995). “Generally, a treating physician’s opinion carries more weight than an 5 examining physician’s, and an examining physician’s opinion carries more weight than a 6 reviewing physician’s.” Hollohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001) (citing 7 Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995)). The opinion of a treating physician is given 8 the greatest weight because the treating physician is employed to cure and has a greater 9 opportunity to understand and observe a claimant. See Smolen v. Chater, 80 F.3d 1273, 1285 (9th 10 United States District Court Northern District of California 11 Cir. 1996). In determining whether a claimant is disabled, the ALJ must consider each medical opinion in 12 the record, together with the rest of the relevant evidence. 20 C.F.R. § 416.927(b); Zamora v. 13 Astrue, No. C 09-3273 JF, 2010 WL 3814179, at *3 (N.D. Cal. Sept. 27, 2010). “If a treating 14 physician’s opinion is ‘well-supported by medically acceptable clinical and laboratory diagnostic 15 techniques and is not inconsistent with the other substantial evidence in [the] case record, [it will 16 be given] controlling weight.’” Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007) (quoting 20 17 C.F.R. § 404.1527(d)(2)). “If a treating physician’s opinion is not given ‘controlling weight’ 18 because it is not ‘well-supported’ or because it is inconsistent with other substantial evidence in 19 the record, the [Social Security] Administration considers specified factors in determining the 20 weight it will be given.” Id. “Those factors include the ‘[l]ength of the treatment relationship and 21 the frequency of examination’ by the treating physician; and the ‘nature and extent of the 22 treatment relationship’ between the patient and the treating physician.” Id. (citing 20 C.F.R. 23 § 404.1527(b)(2)(i)-(ii)). “Additional factors relevant to evaluating any medical opinion, not 24 limited to the opinion of the treating physician, include the amount of relevant evidence that 25 supports the opinion[,] . . . the quality of the explanation provided[, and] the consistency of the 26 medical opinion with the record as a whole; the specialty of the physician providing the opinion 27 . . . .” Id. (citing 20 C.F.R. § 404.1527(d)(3)-(6)). Nonetheless, even if the treating physician’s 28 opinion is not entitled to controlling weight, it still is entitled to deference. See id. at 632 (citing ORDER (3:16-cv-01937-LB 26 1 SSR 96-02p at 4 (Cum. Ed. 1996)). Indeed, “[i]n many cases, a treating source’s medical opinion 2 will be entitled to the greatest weight and should be adopted, even if it does not meet the test for 3 controlling weight.” (SSR 96-02p at 4 (Cum. Ed. 1996)). 4 Accordingly, “[i]n conjunction with the relevant regulations, [the Ninth Circuit has] developed 5 standards that guide [the] analysis of an ALJ’s weighing of medical evidence.” Ryan v. Comm’r of 6 Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) (citing 20 C.F.R. § 404.1527). “To reject [the] 7 uncontradicted opinion of a treating or examining doctor, an ALJ must state clear and convincing 8 reasons that are supported by substantial evidence.” Id. (quotation and citation omitted). “If a 9 treating or examining doctor’s opinion is contradicted by another doctor’s opinion, an ALJ may reject it only by providing specific and legitimate reasons that are supported by substantial 11 United States District Court Northern District of California 10 evidence.” Id. (quotation omitted). Opinions of non-examining doctors alone cannot provide 12 substantial evidence to justify rejecting either a treating or examining physician’s opinion. See 13 Morgan v. Comm’r of Soc. Sec. Admin, 169 F.3d 595, 602 (9th Cir. 1999). An ALJ may rely 14 partially on the statements of non-examining doctors to the extent that independent evidence in the 15 record supports those statements. Id. Moreover, the “weight afforded a non-examining physician’s 16 testimony depends ‘on the degree to which they provide supporting explanations for their 17 opinions.’” See Ryan, 528 F. 3d at 1201 (quoting 20 C.F.R. § 404.1527(d)(3)). 18 SSR 96-97p defines the need to support a patient’s subjective complaints with medical 19 evidence: “no symptom or combination of symptoms can be the basis for a finding of disability, 20 no matter how genuine the individual’s complaints may appear to be, unless there are medical 21 signed and laboratory findings demonstrating the existence of a medically determinable 22 impairment.” The Act permits the determination of impairment by means of “medically acceptable 23 clinical and laboratory diagnostic techniques. 42 U.S.C. § 423(d)(3). In Dalley v. Commissioner of 24 Social Security., No. C 00-01687 VRW, 2006 WL 2578269, at *5 (N.D Cal. Sept. 6, 2006) the 25 court held “this use of this disjunctive leaves little doubt that “clinic diagnostic techniques” are a 26 legally acceptable substitute for laboratory diagnostic techniques.” 27 28 Dr. Siegel treated Ms. Spiteri on a regular basis, and both Dr. Katzenberg and Dr. Koo saw her during the relevant period. All three relied on Ms. Spiteri’s reports of severe headaches and ORDER (3:16-cv-01937-LB 27 1 evaluated her as clinicians. There is not otherwise definitive proof (such as laboratory or testing 2 results) that could unequivocally establish the frequency or intensity of Ms. Spiteri’s symptoms. 3 But the ALJ identified nothing to support his reasons for rejecting the treating and consultive 4 physicians’ opinions. For example, there are no clear and convincing reasons to support the ALJ’s decision to accord 5 little weight to Dr. Siegel’s uncontradicted opinion in the September 18, 2014 Physical 7 Capabilities Evaluation. The ALJ held that Dr. Siegel’s opinion that Ms. Spiteri could not work an 8 eight-hour day was inconsistent with his own treatment notes and other medical notes on record.172 9 The ALJ pointed to internal inconsistencies in the notes such as originally reporting Ms. Spiteri 10 could sit for four hours, stand for two hours, and walk for two hours a day, but that she could not 11 United States District Court Northern District of California 6 work eight hours.173 The ALJ read this as inconsistent: if the plaintiff could sit, stand, and walk for 12 eight hours a day, then she should be able to work an eight-hour day. This is not obviously 13 inconsistent, is in any event conclusory, and is not supported by the record (or clear and 14 convincing reasons). The court also does not see how crossing out a statement as something to be 15 disregarded is inconsistent.174 The ALJ paid no regard to Dr. Siegel’s long-term treatment of Ms. 16 Spiteri for thirteen years overall, with treatment for migraine headaches beginning in 2013.175 17 Furthermore, the perceived inconsistencies — cited in support of the decision to discount Dr. 18 Siegel’s opinion — are in any event not consistent with other substantial evidence in the record. 19 To the contrary, the record when viewed as a whole illustrates that Ms. Spiteri has regularly 20 sought medical treatment for migraine headaches since 2014, sometimes through emergency 21 treatment, and consistently reported suffering symptoms of intense headaches, dizziness, 22 throbbing, and nausea. In the absence of Dr. Siegel’s opinion being inconsistent with other 23 substantial evidence in the record, his opinion as a treating physician ought to have been given 24 controlling weight. 25 172 AR 31. 173 27 AR 664-665. 174 AR 665. 28 175 AR 65, 387. 26 ORDER (3:16-cv-01937-LB 28 1 The ALJ considered Dr. Siegel’s opinion of May 11, 2015, to carry more weight, but he 2 misread the contents of the report, and as a result, he concluded that the opinion suggested Ms. 3 Spiteri had an ability to work.176 This is incorrect. The Medical Report/Verification of 4 Physical/Mental Impairment states that while Ms. Spiteri’s impairment is not permanent, she is 5 unable able to work.177 Furthermore, nothing in Dr. Siegel’s medical notes from April 6, 2015 says 6 that Ms. Spiteri is able to return to work.178 The ALJ can reconsider the evidence on remand. The ALJ also erred in his approach to Dr. Katzenberg’s evidence. Dr. Katzenberg opined that 7 Ms. Spiteri could work without limitation, or (inconsistently) with some (non-disabling) 9 limitations, when not experiencing migraine headaches.179 But Dr. Katzenberg also stated that Ms. 10 Spiteri could not do anything when suffering from a migraine headaches.180 The ALJ rejected this 11 United States District Court Northern District of California 8 evidence on the basis that it primarily was based upon the plaintiff’s subjective allegations.181 The 12 ALJ also concluded that Dr. Katzenberg’s opinion that Ms. Spiteri cannot do anything when 13 experiencing a migraine headache was inconsistent with looking for permanent work on a 14 computer and occasionally volunteering at the shelter. 15 Reliance on a claimant’s reported symptoms that are consistent with the symptomology for 16 evaluating migraines is not erroneous. Thus, the ALJ erred by rejecting Dr. Katzenberg’s opinion. 17 Contrary to the ALJ’s conclusion, there is no inconsistency between Dr. Katzenberg’s opinion and 18 Ms. Spiteri’s testimony. To the contrary, Ms. Spiteri’s testimony — that she looked for work, 19 helped tidy the shelter, and engaged in other volunteer work for the shelter — is consistent with 20 Dr. Katzenberg’s opinion that she could work when she is not experiencing migraine headaches. 21 22 23 24 176 AR 32. 25 177 AR 661. 178 AR 717–720. 179 27 AR 569. 180 AR 569. 28 181 AR 33. 26 ORDER (3:16-cv-01937-LB 29 1 3.4 The ALJ Did Not Err In Finding Ms. Spiteri’s Adjustment Disorder to be Non-Severe 2 The plaintiff has the burden to prove the existence of a severe impairment. See Tidwell v. 3 Apfel, 161 F.3d 5999, 601 (9th Cir. 1998). Pursuant to the Commissioner's regulations, a severe 4 impairment is “any impairment or combination of impairments which significantly limits [the 5 claimant's] physical or mental ability to do basic work activities.” 20 C.F.R. § 404.1520(c). “Basic 6 work activities” are defined as including such capabilities as use of judgment, 20 C.F.R 7 § 404.1521(b)(4); responding appropriately to supervision, co-workers and usual work situations, 8 20 C.F.R. § 404.1521(b)(5); and dealing with changes in a routine work setting, 20 C.F.R. 9 § 404.1521(b)(6). The record illustrates that Ms. Spiteri was diagnosed as having adjustment disorder with 11 United States District Court Northern District of California 10 anxious moods.182 The record also shows that Ms. Spiteri received treatment and medication 12 related to this disorder.183 The conclusion that this impairment was non-severe is not based on any 13 legal errors and is not unsubstantiated with regards to the record of evidence in its entirety. 42 14 U.S.C § 405(g). To the contrary, the ALJ referred to the record at length in considering four broad 15 functional areas to evaluate the severity of the mental impairment.184 The record wholly supports 16 the ALJ’s finding that Ms. Spiteri’s mental impairment placed no more than mild restrictions on 17 her daily living, social functioning, concentrating, and decompensation. 18 The ALJ in a social security case has an independent duty to fully and fairly develop the 19 record and to assure that the claimant’s interested are considered. Tonapetyan v. Halter, 242 F.3d 20 1144, 1150 (9th Cir. 2001)(quoting Smolen v. Charter, 80 F.3d 1273 at 1288). The ALJ did not 21 breach this duty. The medical evidence does not point to Ms. Spiteri’s mental impairment being a 22 significant factor affecting her ability to work. At most, her adjustment disorder with anxious 23 mood appears secondary. The ALJ’s decision with respect to Ms. Spiteri’s adjustment disorder 24 with anxious moods is supported by substantial evidence and is therefore upheld. 25 26 182 27 AR 796. 183 AR 664. 28 184 AR 27. ORDER (3:16-cv-01937-LB 30

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