Wilkerson v. Colvin

Filing 26

ORDER granting 23 Motion for Summary Judgment; denying 24 Motion for Summary Judgment.The court grants Mr. Wilkerson's summary-judgment motion, denies the Commissioner's cross-motion, and remands this case for further proceedings consistent with this order. (Beeler, Laurel) (Filed on 9/29/2017)

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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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KENNETH LOUIS WILKERSON,

Case No. 16-cv-02757-LB

Plaintiff,

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ORDER GRANTING PLAINTIFF’S
SUMMARY-JUDGMENT MOTION
AND DENYING DEFENDANT’S
CROSS-MOTION

v.

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NANCY A. BERRYHILL,
Defendant.

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Re: ECF Nos. 23 & 24

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INTRODUCTION

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Plaintiff Kenneth Wilkerson seeks judicial review of a final decision by the Commissioner of

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the Social Security Administration denying his claim for disability benefits under Title II and Title

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XVI of the Social Security Act.1 He moved for summary judgment;2 the Commissioner opposed

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the motion and filed a cross-motion.3 Under Civil Local Rule 16-5, the matter is deemed submitted

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for decision by this court without oral argument. All parties consented to magistrate-judge

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Compl. ‒ ECF No. 1 at 1 (¶ 4). Record citations refer to material in the Electronic Case File (“ECF”);
pinpoint citations are to the ECF-generated page numbers at the top of documents.
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Summary-Judgment Motion – ECF No. 23.

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Cross-Motion – ECF No. 24.

ORDER – No. 16-cv-02757-LB 

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jurisdiction.4 The court grants the plaintiff’s motion, denies the Commissioner’s cross-motion, and

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remands for further proceedings.

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STATEMENT
1. Procedural History
On November 10, 2011, Mr. Wilkerson, then age 47, filed claims for social-security disability

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insurance (“SSDI”) benefits under Title II of the Social Security Act and supplemental security

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income (“SSI”) benefits under Title XVI, alleging schizophrenia, glaucoma, back pain, and

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hypertension.5 He alleges an onset date of August 12, 2010.6 The Commissioner denied his SSDI

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and SSI claims initially and upon reconsideration.7 On January 25, 2013, Mr. Wilkerson timely

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requested a hearing.8
On June 6, 2013, Administrative Law Judge Mary Parnow (the “ALJ”) held a hearing, and Mr.

United States District Court
Northern District of California

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Wilkerson asked to continue it to allow his counsel to appear.9 Attorney Karen Woodley then

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represented Mr. Wilkerson,10 and the ALJ rescheduled the hearing for October 3, 2013.11 The ALJ

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heard testimony from Mr. Wilkerson and vocational expert Malcolm Brodzinsky,12 who

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subsequently submitted a vocational interrogatory.13 The ALJ issued an unfavorable decision on

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April 22, 2014.14 The Appeals Council denied Mr. Wilkerson’s request for review.15 Mr.

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Consent Forms ‒ ECF Nos. 9, 10.

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Administrative Record (“AR”) 61, 80.

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Id.

AR 78, 120 (determinations on SSI claim); AR 97, 141 (determinations on SSDI claim); see also
AR 145–49 (initial denial letter); AR 150–51 (request for reconsideration); AR 152–56 (second denial
letter).

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AR 157–58.

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AR 53–60; see also AR 190 (request for continuance).

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AR 194–97.

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AR 198–210.

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AR 34–52.

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AR 391–95.

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AR 13–33.

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AR 5–7.

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ORDER – No. 16-cv-02757-LB

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Wilkerson timely filed this action on May 20, 201616 and moved for summary judgment.17 The

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Commissioner opposed the motion and filed a cross-motion for summary judgment.18 Mr.

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Wilkerson filed a response.19

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2. Summary of Record and Administrative Findings

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2.1 Medical Records

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2.1.1

From August 2008 until July 2010, Dr. Salumaa — who was Mr. Wilkerson’s primary-care

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Dr. Gunnar Salumaa: Primary-Care Physician – Treating

physician — treated him (with the assistance of other Kaiser Permanente staff) for high blood
pressure, high cholesterol, asthma, and occasional lower back pain.20 Dr. Salumaa prescribed an

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Northern District of California

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inhaler for his asthma,21 a statin for his high cholesterol,22 and ibuprofen and methocarbamol (a

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muscle relaxant) for his lower back pain.23 He recommended consistently that Mr. Wilkerson

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improve his diet and quit smoking to reduce his blood pressure.24 In November 2009, Dr. Salumaa

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diagnosed him with glaucoma and prescribed eye drops.25

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2.1.2

Dr. Stephen Tanaka: Ophthalmologist – Treating

On May 5, 2010, Mr. Wilkerson saw Dr. Tanaka (an ophthalmologist) because he had blurred

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vision and headaches when he stopped taking his glaucoma medicine five months earlier (due to

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its expense).26 Dr. Tanaka noted that Mr. Wilkerson had elevated intraocular pressure.27 Dr.

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Compl. – ECF No. 1; AR 1–2 (granting extension of time to file civil action).

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Summary-Judgment Motion – ECF No. 23.

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Cross-Motion ‒ ECF No. 24.

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Reply ‒ ECF No. 25.

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AR 401–33, 436–52, 456–57, 463–74, 498–503, 506–07.

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419, 430, 438.

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419, 430, 438.

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AR 405, 419, 430, 438.

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AR 405, 437–38, 447–51.

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AR 438.

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AR 453–55, 458–61 (visual-field study results).

ORDER – No. 16-cv-02757-LB

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Tanaka refilled his glaucoma medicine and stressed the importance of taking it and keeping his

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intraocular pressure under control.28 On May 7, 2010, Dr. Tanaka’s office called Mr. Wilkerson to

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remind him to resume his eye drops and keep his upcoming appointment with Dr. Choe.29 Mr.

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Wilkerson showed up for his appointment with Dr. Choe, but he left before being seen.30

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2.1.3

On-Call Physicians at Kaiser-Permanente – Treating

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On November 1, 2009, Mr. Wilkerson called and spoke with an on-call physician.31 Mr.

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Wilkerson reported dizziness and numbness on the left side of his face, but no paresthesia of the

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lips and hands, gait problems, visual changes, shortness of breath, palpitations, or chest pain.32
The physician recommended that he call or return to the clinic if his symptoms did not improve.33

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Northern District of California

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On June 7 and 15, 2010, Mr. Wilkerson went to the emergency room for treatment of back

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pain brought on by playing with his children. The treating physicians prescribed rest, ice,

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ibuprofen, and Percocet.34

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2.1.4 Alameda County Medical Center Physicians – Treating

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From 2010 to 2013, Mr. Wilkerson saw different medical providers at Alameda County

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Medical Center, primarily in the emergency department at the Highland Hospital location.35
In November 2010, an emergency physician refilled Mr. Wilkerson’s prescription for high-

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cholesterol medicine and referred him to the ophthalmology department for his glaucoma.36 The

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AR 454.
Id.

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AR 462.

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AR 504.

31

AR 434–35.

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32

AR 434.

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AR 435.

34

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AR 475–97.

35

AR 530–558, 573–97, 604–98, 714–20.

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36

AR 546–49; see also AR 660–61.

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ORDER – No. 16-cv-02757-LB

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chart notes state that Mr. Wilkerson “lost kaiser insurance,” had “a few days left of meds,” and

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“ran out of chol[esterol] meds months ago.”37
In February 2011, an ophthalmologist examined Mr. Wilkerson twice.38 Mr. Wilkerson went

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to the emergency room on February 24, 2011, and reported neck, back, head, and leg pain

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following a car accident that day.39 After examination, the doctor discharged him with Vicodin,

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ibuprofen, baclofen, and instructions to follow up with his doctor as needed.40
On April 25, 2011, Mr. Wilkerson drove himself to the emergency room because he

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experienced chest pain after drinking alcohol and smoking marijuana that he suspected was laced

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with cocaine.41 Mr. Wilkerson “eloped” before he could be discharged.42
On December 27, 2011, Mr. Wilkerson was treated for back-pain complaints.43 He noted a

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Northern District of California

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history of back pain since February but indicated that it had been “improving with ibuprofen and

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muscle relaxants” until he bent over the night before.44 Mr. Wilkerson reported that the pain

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radiated down both of his thighs.45 He recounted his history of glaucoma, but he denied any vision

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changes and said he did not need to refill his medicine.46 He said he “[w]ould like a work note”

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(even though he claimed in his disability applications and later in testimony before the ALJ that he

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had not worked since August 2010).47 The doctor prescribed ibuprofen and Flexeril and refilled

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his cholesterol and blood-pressure medicine.48

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37

AR 546.

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AR 557–58.

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AR 544; see also AR 665–70.

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40

AR 544–45.

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AR 672.

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AR 673.

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AR 537

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44

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45
46

Id.
Id.
Id.

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Id.; AR 18 (ALJ noted that in his testimony at the October 2013 hearing and in his other filings, Mr.
Wilkerson claimed that he had not been engaged in any substantial gainful activity since August
2010.)
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AR 538.

ORDER – No. 16-cv-02757-LB

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On January 17, 2012, Dr. Yasumoto recorded the following impression of Mr. Wilkerson’s

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lumbar spine based on an x-ray:

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1. Diffuse degenerative changes seen throughout the thoracolumbar spine with
anterior wedge deformity involving T12, which is likely remote. No acute
appearing fractures or malalignment are seen.

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2. Bilateral hip joint degenerative changes.49

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There are additional progress notes dating from January through May 2012.50 In January, Mr.

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Wilkerson presented with lower-back and buttock pain, indicating that he had been experiencing it

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for 10 to 12 years and that it had returned in the past week as the result of his lifting a water

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bucket.51 In May, Mr. Wilkerson presented with hip and chronic lower-back pain, noting its onset

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“5 days” earlier and indicating that it had been “off and on.”52
Mr. Wilkerson went back to the ophthalmology department in 2012 and saw Dr. Chang,53

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Northern District of California

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who concluded that Mr. Wilkerson had severe visual acuity loss in his left eye.54
On May 2, 2012, Mr. Wilkerson had a physical for “DMV form completion.”55 The chart

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notes, written by a medical assistant, reflect he “used to be a commercial driver” but was currently

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unemployed.56 The notes mention “vision 20/20” without additional elaboration.57

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On May 15, 2012, Mr. Wilkerson saw an orthopedist, Dr. Patrick McGahan, and reported a

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“long history of back pain and bilateral hip pain.”58 Dr. McGahan observed Mr. Wilkerson had

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“mild tenderness to palpation” and could “flex and extend his back with minimum discomfort,”

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but could not do straight leg raises without “pain in his lower back.”59 He had “5/5 strength from

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49

AR 551, 586–87.

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AR 580–82, 596.

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AR 582.

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AR 596.

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AR 595, 597.

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AR 597.

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AR 578.

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56

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57

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Id.
Id.
AR 654.
Id.

ORDER – No. 16-cv-02757-LB

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L2-S1.”60 Mr. Wilkerson experienced “mild pain with flexion and internal rotation on the lateral

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aspect of his hips.”61 Based on his exam and x-rays, Dr. McGahan diagnosed Mr. Wilkerson with

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“bilateral mild hip osteoarthritis and lumbar degenerative di [sic] disease.”62 He recommended

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Motrin and physical therapy.63
In August 2012, following his HIV diagnosis, Mr. Wilkerson met with a social worker, who

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observed that he was “engaged, normally dressed, alert and oriented times 4, with normal speech,

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sad affect and depressed mood.”64 The social worker administered a PHQ-9 questionnaire, and Mr.

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Wilkerson “score[d] as mildly depressed.”65 Mr. Wilkerson reported “a history of crack use and

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denied past psychiatric/mental health issues.”66 Mr. Wilkerson told the social worker that he lived

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at Redemption and Recovery — a “transitional drug program” — but had to find his own housing

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Northern District of California

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in two months.67 The social worker noted that Mr. Wilkerson “last worked as a Cal Trans heavy

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equipment operator and was laid off in 2010.”68 The social worker provided an Axis I diagnosis of

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major depression (recurrent-mild), deferred an Axis II diagnosis, gave an Axis III diagnosis of

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HIV, and provided an Axis IV diagnosis of “[l]ack of financial resources, lack of housing,

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unemployment.”69

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Mr. Wilkerson saw a doctor to discuss his HIV diagnosis and schedule follow-up lab work in

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October and December 2012.70 He described his interest in sports.71 She remarked that his “HIV

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66

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Id.
Id.
Id.
Id.
AR 609.
Id.
Id.
Id.
Id.
Id.

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70

AR 611–13; see also AR 717–20 (labs).

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AR 611, 613.

ORDER – No. 16-cv-02757-LB

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[was] stable.”72
In November 2012, Mr. Wilkerson saw an orthopedist, Dr. Distefano, “for evaluation of lateral

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hip pain in both hips.”73 Dr. Distefano diagnosed Mr. Wilkerson with lumbar degenerative disc

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disease, mild hip arthritis, and iliotibial-band pain.74 Dr. Distefano observed that Mr. Wilkerson

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had an “antalgic gait,” or limp, and could not squat due to hip pain.75 He could toe walk, heel

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walk, and stand on each leg.76 Dr. Distefano noted that Mr. Wilkerson’s physical therapy “has

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been helping” with his low back and recommended that he continue it (with physical therapy) “to

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work on core hip and knee strengthening.”77 He prescribed Voltaren.78 Dr. Distefano noted that

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Mr. Wilkerson had a history of substance abuse but had been “clean for over a year.”79
In 2012 and early 2013, Mr. Wilkerson continued to be monitored for his glaucoma.80

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Northern District of California

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On April 23, 2013, Mr. Wilkerson went to the emergency room at Highland Hospital after a

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car struck him while he was riding his bike (without a helmet).81 A CT scan showed no traumatic

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injury but mild degenerative changes in the lumbar spine and thoracolumbar junction.82 He had no

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traumatic injuries or complications, and the hospital discharged him the following day with “20

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tabs of Vicodin, Motrin, and Tylenol.”83 The chart notes reflect Mr. Wilkerson’s history of drug

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use and that he “ha[d] been clean for the last 18 months.”84 He went back to the emergency room

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72

AR 613.

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AR 622.

74

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75

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76

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77

Id.
Id.
Id.
Id.

78

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Id.; see also AR 624 (physical therapy referral).

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AR 622.

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80

AR 623, 625.

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AR 650–53, 656–58, 686–98.

82

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AR 697.

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AR 651–52.

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84

AR 652.

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ORDER – No. 16-cv-02757-LB

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on May 10, 2013, for a refill of his pain medication.85 He reported neck and back pain radiating

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down both of his legs.86 The doctor remarked that he had “good range of motion,” “no deformity”

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in his extremities, and a normal gait with use of his cane but “tenderness to palpation in the

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muscles of the bilateral thighs of the iliotibial band.”87 The doctor refilled Mr. Wilkerson’s pain

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medication and recommended that he schedule an appointment with his primary-care doctor and

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chiropractor.88

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On October 26, 2013, Mr. Wilkerson went to the emergency room because he smashed his

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thumb while “moving this afternoon.”89 His thumb was “well dressed,” and nursing staff provided

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emotional support.90

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Northern District of California

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2.1.5 The Dancy Chiropractic Group – Treating

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After his bike accident, from late April to late May 2013, Mr. Wilkerson went for physical

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therapy at the Dancy Chiropractic Group (apparently at the suggestion of his lawyer).91 Although

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he could not pay for all of his therapy, they agreed to treat him until his pain was mild to slight.92
In his May 1, 2013 treatment notes, “[Mr. Wilkerson] reports that his position requires

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physical work/ a lot of bending, lifting, stooping and sitting.”93 He “reports of an increase in low

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back pain at the end of the day.”94 The May 3rd treatment notes reflect that Mr. Wilkerson again

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reported “an increase in lumbar pain associated with prolonged standing and heavy lifting,” he had

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“been placed on a light duty assignment while at work, and he was preluded “from lifting anything

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85

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86

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87
88

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89

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90

AR 650.
Id.
Id.
Id.
AR 715–16.
Id.

91

AR 700–13.

92

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AR 713.

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AR 705.

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94

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Id.

ORDER – No. 16-cv-02757-LB

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over 25 pounds without assistance.”95 The May 8th treatment notes state that he reported “an

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increase in lumbar pain at the end of the day [because] his position requires excessive bending,

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stooping and standing.”96 He denied “taking over the counter pain medication.”97 The May 13th

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treatment notes say that Mr. Wilkerson reports that he was “performing activities which would

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aggravate his condition” but that “prolong[ed] sitting, standing, stooping and bending are required

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of his position.”98 The May 17th treatment notes state that “Mr. Wilkerson is frustrated with

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aggravating his condition with the activities he is required to perform while at work. He reports

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that bending and lifting are part of the position’s requirements. Mr. Wilkerson reports that he can’t

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afford to take any time off from work. Yet, he reports that he is careful when he is required to

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perform any activity which would aggravate his condition.”99 After several further treatment

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United States District Court
Northern District of California

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sessions, Mr. Wilkerson reported “an overall improvement in his thoracic spine” and “denie[d]

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any radiating sensations from his lumbar spine to his lower extremities.”100 His final evaluation

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report on May 29, 2013 noted that he had “no motor or sensory deficit,” could walk “with a

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normal gait and [ ] without the assistance of any walking device,” could get on and off the table

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without help, and had normal muscle strength.101 The report concludes that his “prognosis is

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good.”102

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2.1.6 Dr. John Conger: Psychologist – Examining
In June 2011, Dr. Conger completed a one-page “Doctor’s Certificate” for Mr. Wilkerson’s

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California disability-claim application.103 Dr. Conger identified the primary “ICD9 disease code”

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AR 704.
Id.
Id.

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98

AR 703.

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99

AR 702.

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100

Id.

101

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AR 712–13.

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AR 713.

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103

AR 528.

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as 295.30 (paranoid schizophrenia) and remarked that “the patient hears voices, feels invaded,

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wants to be alone, has paranoid ideation, [and] awkward and restless movements.”104 Dr. Conger

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wrote, “I find the client very disturbed [and] uncomfortable.”105 Under “type of

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treatment/medication rendered to patient,” Dr. Conger wrote “medication needed.”106 Dr. Conger

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indicated that Mr. Wilkerson had been unable to perform his regular job since June 13, 2011, and

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noted “[illegible] 2 years ago.”107

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2.1.7

Dr. Eugene McMillan: Physician – Examining

In February 2012, Dr. McMillan, at the request of the State agency, evaluated Mr.

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Wilkerson.108 He reviewed Mr. Wilkerson’s medical history, conducted a physical examination,

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United States District Court
Northern District of California

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and reported the following impressions: glaucoma, severe left-eye visual impairment, arthritis, and

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low back pain with evidence of degenerative disease of the lumbar and thoracic spine.109

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Dr. McMillan noted that Mr. Wilkerson reported that he had been told that he was “paranoid”

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and “state[d] that he hears voices.”110 Mr. Wilkerson stated that he “stopped all of his medications

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a couple of years ago.”111 Dr. McMillan noted that “[t]hroughout the exam[,] [Mr. Wilkerson] was

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constantly looking out the door and checking to see if someone was attempting to enter the

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room.”112 Dr. McMillan reported that he “did not feel comfortable shutting the examination room

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door during the claimant’s exam.”113 He provided the following functional capacity assessment:

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The claimant has history of a psychiatric disorder, which is not currently being
treated. Standing and walking would be for six hours per day. Sitting would be for

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104

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105

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106
107

Id.
Id.
Id.
Id.

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108

AR 568–71.

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109

AR 571.

110

AR 569.

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111

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112

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113

Id.
AR 570.
Id.

ORDER – No. 16-cv-02757-LB

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six hours per day. He is not currently using an assistive device. He would be able to
occasionally lift and carry 20 pounds and frequently lift and carry 10 pounds. He
does have significant visual problems with his left eye, but his visual acuity is
corrected with glasses in the right eye. There would be no manipulative limitations.
There would be no environmental limitations. He would be able to engage in
activities that require bending, stooping and kneeling for at least four hours in an
eight-hour workday.114

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2.1.8

Dr. Cecilia Hardey: Psychologist – Examining

In February 2012, Dr. Hardey, at the request of the State agency, evaluated Mr. Wilkerson.115

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She administered a comprehensive psychological evaluation, including Wechsler Adult

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Intelligence and Memory tests and the Bender Visual-Motor Gestalt test.116 Dr. Hardey concluded
Mr. Wilkerson had cognitive abilities and memory in the low average to average range and

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United States District Court
Northern District of California

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suffered no visual-motor integration impairments. She remarked, however, that she could not

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complete the Wechsler testing and reached her conclusion without data on processing speed

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because Mr. Wilkerson could not see the stimulus material clearly enough.117
Dr. Hardey observed that Mr. Wilkerson had normal speech and consciousness and was

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oriented and cooperative.118 Mr. Wilkerson took public transportation, arrived early for his

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appointment, dressed casually, and had good hygiene.119 He lost his glasses and could not afford

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to replace them.120 He preferred being outdoors and enjoys riding his bike.121 She described him as

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a “worried, hyper-vigilant individual who was looking around constantly, startling, looking at the

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door, and appeared to be worried that someone would come in.”122 She remarked that there “did

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not appear to be evidence of psychosis,” but Mr. Wilkerson’s “[m]ood was anxious and

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22

114

Id.

115

AR 562–65.

116

24

AR 562.

117

AR 563.

25

118

AR 562.

23

26

119
120

27

121

28

122

Id.
Id.
Id.
Id.

ORDER – No. 16-cv-02757-LB

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depressed.”123 She stated Mr. Wilkerson was a “poor historian” who had “a great deal of difficulty

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remembering any of his history.”124
Mr. Wilkerson “denied any felony or misdemeanor convictions,” but reported that he

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previously used marijuana and had been addicted to cocaine and stopped using all substances four

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months earlier, when he began residing at a church-sponsored sober living facility called

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Redemption and Recovery.125 He “had to quit working in 2010 because he was hearing voices”

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but he had “never been prescribed [any] psychotropic medication to relieve this symptom.”126 He

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recounted that he had glaucoma, blindness in his left eye, back pain, and hypertension.127
Dr. Hardey gave an Axis I diagnosis: (1) “Rule out psychotic disorder probably secondary to

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poly-substance abuse”; (2) “Alcohol, cocaine, and cannabis dependency, in remission, status post

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United States District Court
Northern District of California

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4 months per applicant — no corroborating medical records”; and (3) “Mood disorder, secondary

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to substance abuse.”128 She did not give an Axis II diagnosis but gave an Axis III diagnosis of

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hypertension, glaucoma, and back pain.129

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Dr. Hardey ultimately concluded:
This individual gave the impression of someone who has a psychotic process going
on. He is hyper-vigilant. He appeared to be attending to internal stimuli at times
during the assessment. He has at least low-average cognitive abilities. There was no
evidence of memory or visual-motor integration deficits. He has been in a
residential church-sponsored drug and alcohol recovery program for the last four
months and alleges sobriety from that date. He has never been prescribed antipsychotic medication though a psychologist who saw him recently recommended it.
This examiner also believes that this would probably be an appropriate referral. He
probably cannot work at this point. At minimum, he needs a psychiatric
consultation to determine the nature of his symptoms and, possibly prescribe
appropriate medication.130

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123
124

Id.
Id.

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125

AR 562–63.

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126

AR 563.

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127
128

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129

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130

Id.
AR 564.
Id.
Id.

ORDER – No. 16-cv-02757-LB

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Dr. Hardey opined that Mr. Wilkerson did not have the ability to manage his financial interests

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in his own best interests due to his substance-abuse history and his psychotic symptoms.131 She

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found that he had the following work-function impairments: moderate to severe impairments of

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his abilities to (1) adapt to changes in job routine, (2) withstand the stress of a routine workday,

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(3) maintain emotional stability and predictability, and (4) interact appropriately with coworkers,

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supervisors, and the public on a regular basis.132 He had moderate impairments of his abilities to

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(1) follow and remember complex and detailed instructions, (2) maintain adequate pace or

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persistence to perform complex tasks, (3) maintain adequate attention and concentration, and

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(4) communicate with others both verbally and in writing.133 He had mild to moderate
impairments of his abilities to follow and remember simple instructions and maintain adequate

11
United States District Court
Northern District of California

10

pace or persistence to perform simple repetitive tasks.134

12
13

2.1.9

Dr. Sokley Khoi: Psychologist – Examining

14

In November 2012, Dr. Khoi, at the request of the State agency, evaluated Mr. Wilkerson.135

15

She administered Wechsler Adult Intelligence and Memory tests and a Trail Making Test.136 She

16

generally found Mr. Wilkerson’s cognitive abilities were in the extremely low range but stated that

17

the “test results are likely to underestimate his cognitive functioning” because he “discontinued

18

tasks prematurely stating it was exacerbating his pain, that he could not see well, or it was ‘too

19

frustrating’ for him.”137 She remarked that his performance “was significantly affected by his

20

psychiatric symptoms.”138
Dr. Khoi observed that Mr. Wilkerson “was cooperative, but appeared hyper vigilant and

21
22
23

131

AR 564.

132

AR 564–65.

24

133

25

134

AR 564.

135

AR 600–603.

136

27

AR 600.

137

AR 601–03.

28

138

AR 603.

26

Id.

ORDER – No. 16-cv-02757-LB

14 

1

paranoid.”139 Mr. Wilkerson was restless and fidgety, looking around the examination room; “[h]e

2

kept telling the examiner ‘I’m not crazy. I have no mental health problems. I just have pain.’”140

3

Mr. Wilkerson also “denied [any] auditory or visual hallucinations but appeared internally

4

preoccupied.”141 Dr. Khoi remarked that his “[a]ffect and mood were anxious and depressed,” but

5

that he had a linear and coherent thought process with “no indication of delusional ideation.”142

6

Mr. Wilkerson reported his glaucoma caused blindness in one eye and that he suffered from

7

pain in his back and hips, hypertension, high cholesterol, and HIV.143 Mr. Wilkerson “reported

8

symptoms of insomnia, decreased appetite, anhedonia, and low energy.”144 He said, “I’m sad a lot

9

and a lot of time I don’t feel good. I don’t feel like doing anything. I just stay in bed. I don’t like

10

being around people.”145
Mr. Wilkerson reported not having any “legal history” but “reported a history of significant

United States District Court
Northern District of California

11
12

substance abuse including alcohol, cocaine, and cannabis ‘for a long time.’”146 “He stated that he

13

stopped using drugs ‘maybe a year ago.’”147 He had been living at the church-sponsored

14

Redemption and Recovery since November 2011.148 Mr. Wilkerson reported that “he is able to

15

perform all activities of daily living with restrictions due to psychiatric symptoms” including

16

managing his finances.149
Dr. Khoi gave an Axis I diagnosis: “depressive disorder NOS, probable psychotic disorder

17
18

NOS, and polysubstance abuse/dependence, in remission for approximately one year per

19
20

139

21

140

22

141

23

142

AR 601.
Id.
Id.
Id.

143

24

AR 600–01.

144

AR 600.

25

145

26

146
147

Id.
AR 601.
Id.

27

148

AR 600.

28

149

AR 601.

ORDER – No. 16-cv-02757-LB

15 

1

claimant.”150 She deferred any Axis II or Axis III diagnoses.151 Dr. Khoi’s findings “suggest

2

depression and possible psychosis,” and she remarked that Mr. Wilkerson “may benefit from

3

psychotropic medications and individual psychotherapy.”152

4

Dr. Khoi indicated that Mr. Wilkerson had marked limitations of his abilities to maintain

5

adequate pace or persistence to perform complex tasks and withstand the stress of a routine work

6

day.153 Mr. Wilkerson had moderate to marked limitations of his abilities to follow and remember

7

complex or detailed instructions, adapt to changes in job routine, and interact appropriately with

8

coworkers, supervisors, and the public.154 Mr. Wilkerson had mild to moderate limitations of his

9

abilities to follow and remember simple instructions and maintain adequate pace or persistence to

10

perform simple repetitive tasks.155

United States District Court
Northern District of California

11
12

2.1.10 Save a Life Wellness Center
From May 2013 through October 2013, Mr. Wilkerson went to Save a Life Wellness Center in

13
14

Oakland for medical treatment and prescription refills.156 At intake on May 20, 2013, Mr.

15

Wilkerson reported hypertension, glaucoma, HIV, and hearing voices.157 He indicated that he had

16

been evaluated by a disability psychologist on two occasions, but had never been hospitalized for

17

psychiatric illness.158 He had a 15-year history of substance abuse that included incarceration for

18

drug-related crimes (from 1997 to 2000 and parole until 2002), but had been clean and sober for

19

19 months.159 He lived in a residential-treatment program, used public transportation, and had not

20
21

150

22

151

23

152
153

24

154

25

155

26

AR 602.
Id.
Id.
AR 603.
Id.
Id.

156

AR 628–31, 633–37, 722–28.

157

AR 635.

27

158

28

159

Id.
Id.

ORDER – No. 16-cv-02757-LB

16 

1

worked for several years.160 The provider who completed the intake form diagnosed Mr.

2

Wilkerson with major depressive disorder and recommended antidepressants and therapy on a

3

“PRN” or as needed basis.161 This provider marked that Mr. Wilkerson was oriented, appropriate

4

in affect, cooperative, and not gravely disabled but was depressed, slow in psychomotor pace, and

5

questionably psychotic.162 At his follow-up appointments, Mr. Wilkerson received Celexa and

6

Risperdal for his mental health and medicine for his high blood pressure, high cholesterol, asthma,

7

glaucoma, and back pain.163

8
9

2.1.11 Sausal Creek Outpatient Stabilization Clinic
On May 29, 2013, Mr. Wilkerson went to Sausal Creek Outpatient Stabilization Clinic for

11
United States District Court
Northern District of California

10

“medication and a referral.”164 A staff member (whose name is not legible but who appears to be

12

an “LVN” or licensed vocational nurse) completed a crisis-assessment form reflecting that Mr.

13

Wilkerson was depressed, had anxiety and decreased sleep, and was hearing voices (auditory

14

hallucinations) telling him that he was “worthless.”165 Mr. Wilkerson stated that “I am depressed,

15

diagnosed one year ago [with] HIV.”166 He wanted “medication for voices.”167 Mr. Wilkerson said

16

that he was “sick” and “wanted to die,” but had no “plan or intent.”168 He stated that he had been

17

“clean for 19 months,” and the “drug/alcohol screen” was “negative.”169 At the risk-screening

18

stage, a staff member marked that Mr. Wilkerson was not in danger of self-harm, harming others,

19
160

21

Id.; but compare AR 702–05 (May 2013 reports (same year and month) from Mr. Wilkerson’s
chiropractor noting Mr. Wilkerson’s statements regarding his current work status and its physical
requirements).

22

P.R.N. is an abbreviation for the Latin term “pro re nata” or “as circumstances require” or “as
needed.”

20

161

162

AR 636.

163

24

AR 628–31, 633, 722–28.

164

AR 643.

25

165

23

26

166
167

27

168

28

169

Id.
Id.
Id.
Id.
AR 643–44.

ORDER – No. 16-cv-02757-LB

17 

1

serious self-neglect, victimization, or alcohol and drug abuse.170 The staff member evaluated Mr.

2

Wilkerson’s mental status and indicated that he was alert, oriented, distracted, poorly to fairly

3

groomed, and had slow speech, anxious mood, flat affect, marginal insight, marginal judgment, an

4

internally preoccupied thought process, paranoia, and hallucinations.171 A staff member identified

5

as an “LVN” (or licensed vocational nurse) assessed Mr. Wilkerson with a GAF score of 45 and a

6

primary diagnosis code of “311,” which is the diagnostic code for depressive disorder.172

7

Later that morning, he presented to the psychiatrist with self-reported auditory hallucinations,

8

depression, anxiety, sleep issues, and feelings of being “very isolated.”173 He reported a history of

9

substance abuse and said that he “last used 19 months ago.”174 The psychiatrist, who had no prior
relationship with Mr. Wilkerson, conducted a 15-minute mental status evaluation and circled

11
United States District Court
Northern District of California

10

various “Mental Status” descriptors, finding that Mr. Wilkerson was sedated, oriented to person,

12

place, and time, avoidant, and poorly groomed and had slow speech, depressed mood, constricted

13

affect, poor insight, logical thought processes, and hallucinations.175 The psychiatrist primarily

14

diagnosed him with depressive disorder NOS (not otherwise specified) and prescribed Celexa and

15

Risperdal.176 The psychiatrist noted that it was “the client’s first contact with a psychiatrist” and

16

“first psychotic break.”177 The psychiatrist assigned Mr. Wilkerson an Axis V/GAF rating of 45

17

and did not provide any discussion of the reasons for that medical opinion.178
The facility discharged him shortly thereafter with prescriptions for Celexa and Risperdal and

18
19
20

170

21

AR 645.

171

AR 646.

22

172

23

Id. A GAF score purports to rate a subject’s mental state and symptoms; the higher the rating, the
better the subject’s coping and functioning skills. See Garrison v. Colvin, 759 F.3d 995, 1002 n.4 (9th
Cir. 2014) (“[A] GAF score between 41 and 50 describes ‘serious symptoms’ or ‘any serious
impairment in social, occupational, or school functioning.’”).

24

173

AR 640.

25

174

AR 641.

175

AR 642.

26

176

27

177

28

178

Id.
Id.
Id.

ORDER – No. 16-cv-02757-LB

18 

1

instructions to follow up in seven days for more medication and to “ASAP” schedule “a regular

2

psychiatrist appointment” through Alameda County Medi-Cal’s Access program.179 Other than his

3

ongoing follow-ups regarding the medications (Celexa and Risperdal) for his mental symptoms, it

4

does not appear that Mr. Wilkerson thereafter sought or received any “regular” psychiatric

5

treatment or therapy.

6
7

2.1.12 Dr. Lace: Psychologist – Consulting
In December 2013, after his October ALJ hearing, Dr. Lace completed a medical interrogatory

8

for the ALJ based on a review of Mr. Wilkerson’s medical records.180 Dr. Lace concluded Mr.

10

Wilkerson had an unspecified depressive disorder, major depressive disorder (recurrent-mild),

11
United States District Court
Northern District of California

9

mood disorder secondary to substance abuse, and “poly-substance abuse/dependence in alleged

12

remission.”181 Dr. Lace concluded these impairments did not meet the applicable listings or

13

paragraph B and C criteria, and so he found Mr. Wilkerson had the following RFC:
Setting with routine, simple, repetitive tasks with less than average emphasis on
production quotas and speeded tasks. Limited to brief and superficial contact [with]
supervisors, co-workers, and the general public. No contact with alcohol (or other
illicit drugs) in job setting.”182

14
15
16

His notes state that Mr. Wilkerson had “no history of psychiatric hospitalizations,” “very few

17
18

GAF scores” (though he noted the GAF score of 45 from the Sausal Creek Outpatient Stabilization

19

Clinic), “little in terms of treatment,” “therapy [ ] recommended only PRN [as needed],” and

20

“polysubstance abuse/dependency remission not supported by ongoing [urinalysis].”183 Dr. Lace

21

stated that Mr. Wilkerson’s “stopping all medications 2 years ago [ ] may have led to paranoia and

22

‘hearing voices.’”184

23
179

AR 639 (also filed as AR 626, 632).

180

25

AR 378–82 (also filed as AR 741–45).

181

AR 378.

26

182

AR 382.

183

AR 379.

24

27
28

184

Id.; see also AR 569 (Dr. McMillan noting that Mr. Wilkerson “stopped all of his medications a
couple of years ago.”)
ORDER – No. 16-cv-02757-LB

19 

Dr. Lace completed a check-off report.185 He found that Mr. Wilkerson had marked limitations

1
2

of his ability to understand, remember, and carry out complex instructions.186 Mr. Wilkerson had

3

moderate limitations of his (1) ability to carry out simple instructions, (2) make judgments on both

4

simple and complex work-related decisions, (3) interact appropriately with coworkers,

5

supervisors, and the general public, and (4) respond appropriately to usual work situations and

6

changes.187 Dr. Lace opined that Mr. Wilkerson had mild limitations of his ability to understand

7

and remember simple instructions.188 Dr. Lace noted that Mr. Wilkerson would have “challenges

8

with complex tasks and stress management associated with the above [impairments].”189

9
2.2 Mr. Wilkerson’s Testimony

11
United States District Court
Northern District of California

10

At the ALJ hearing, Mr. Wilkerson testified that he completed junior college in 1982.190 He

12

previously worked for Flow Serve in a “dangerous” and “labor intensive job” as a technician who

13

“stopped high pressure leaks in oil refineries.”191 He worked as a semi-truck driver but can no

14

longer have a Class A license because of the blindness in his left eye.192 Mr. Wilkerson testified

15

that his last job was from 2006 to 2010, when he worked for the California Department of

16

Transportation as a heavy-equipment operator tasked with using backhoes, tractors, trailers, and

17

excavating equipment.193 When he was arrested and jailed for public intoxication, he missed

18

worked and was fired for being “AWOL.”194
He stopped work because he “started hearing voices and started being very depressed.”195 He

19
20
21
22
23
24
25
26

185

AR 383–85 (also filed as AR 746–48).

186

AR 383.

187

AR 383–84.

188

AR 383.

189

Id.

190

AR 40.

191

AR 39.

192

Id.

193

27

AR 38–39.

194

AR 40–41.

28

195

AR 40.

ORDER – No. 16-cv-02757-LB

20 

1

hears voices telling him “terrible things or things that are not good.”196 The voices tell Mr.

2

Wilkerson that he is “worthless,” “people don’t want to be around [him],” “people are laughing at

3

[him] [and] talking about [him].”197 He hears voices and feels depressed every day.198 He tried to

4

get a job after he was fired, but “the voices became worse and [the] depression became worse.”199

5

On a scale of 1 to 10 Mr. Wilkerson indicated that he had back, hip, and leg pain of 8.5, 7, and

6

8 (respectively) during the hearing.200 He brought his cane (prescribed by his doctor) to the

7

hearing to help with his balance.201 Mr. Wilkerson is HIV positive but does not yet have AIDS. He

8

worries that he will get sick if he goes out in public, and so he likes to keep to himself.202
Mr. Wilkerson cooks for himself using a microwave, can walk between a half block and one

10

block to pick up light items from the store, and cleans occasionally when his pain is manageable

11
United States District Court
Northern District of California

9

(but afterwards, he must lie down or sit with his legs elevated).203 He can sit for roughly 20

12

minutes and stand in place for 10 to 15 minutes at a time.204 Mr. Wilkerson has three or four bad

13

days each week; on these days, “pain is very excruciating where [he] [has] to normally pretty

14

much sit down with my legs elevated or lay down in the bed with my legs elevated.”205
Mr. Wilkerson goes to Save a Life206 every 30 days for his medication and Highland Hospital

15
16

every three months for HIV treatment, and he was resuming physical therapy for his back.207 At

17

the time of the hearing, Mr. Wilkerson had been clean for roughly two years.208

18
19
20
21
22
23
24
25
26

196
197
198

AR 43.
Id.
Id.

199

AR 41.

200

AR 41–42.

201

AR 42, 48.

202

AR 43–44.

203

AR 44–45.

204

AR 45.

205

AR 46.

206

While the hearing transcript states Mr. Wilkerson goes to “Stable Life,” his medical records are
actually from (the similar sounding) “Save a Life.”

27

207

AR 47.

28

208

AR 48.

ORDER – No. 16-cv-02757-LB

21 

1

2.3 Thai Ivery – Mr. Wilkerson’s Friend

2

In January 2012, Mr. Wilkerson’s friend, Thai Ivery, completed a third-party function

3

report.209 Mr. Ivery has known Mr. Wilkerson for 42 years and sees him “5–10 hours per week

4

and 4 hours on Sundays.”210 Mr. Wilkerson lives at Redemption and Recovery where he “does a

5

lot of reading, and praying while trying to control his issues.”211 Mr. Wilkerson has trouble

6

sleeping because of his pain and the voices he hears.212 Before Mr. Wilkerson got sick, he liked to

7

spend time with friends and family.213 Generally, Mr. Wilkerson can care for and groom himself,

8

but he sometimes needs reminders and has “a hard time washing his back.”214
Mr. Wilkerson does laundry and cleans the common areas at the rehabilitation facility three

9

times a week, but he cannot do all of the chores due to his severe pain.215 He can prepare

11
United States District Court
Northern District of California

10

sandwiches, frozen food, and “complete meals.”216 With the other residents, Mr. Wilkerson eats

12

dinner, which is prepared as a group meal by the facility cook.217 Mr. Wilkerson drives and uses

13

public transportation, pays bills, goes to church, goes shopping once a week (although it takes him

14

awhile), and goes outside often.218
Mr. Ivery indicated that Mr. Wilkerson’s conditions impact his ability to lift, squat, bend,

15
16

stand, sit, kneel, hear, climb stairs, see, remember, complete tasks, concentrate, and get along with

17

others.219 When asked how Mr. Wilkerson’s conditions impact his abilities, Mr. Ivery wrote,

18

“back pain, and some motor skills and hearing voices, and seeing objects.”220 Mr. Wilkerson

19
20

209

AR 271–78.

210

AR 271.

21

211

22

212

23

213

Id.
AR 272.
Id.

214

24

AR 272–73.

215

AR 273–74.

25

216

AR 273.

26

217

Id.

218

27

AR 274–75.

219

AR 276.

28

220

Id.

ORDER – No. 16-cv-02757-LB

22 

1

cannot walk very far before he needs to rest for “a few minutes.”221 He generally finishes what he

2

starts and can follow written instructions “well,” but his ability to pay attention “depends on his

3

focus.”222 He can follow spoken instructions “fair to good.”223 Mr. Wilkerson gets frustrated

4

sometimes because his conditions prevent him from doing things that he used to be able to do.224

5

Mr. Ivery “really dislike[s] that he hears voices or believes someone is talking and they are not.”225

6

Mr. Ivery wrote that Mr. Wilkerson needs glasses all the time.226 Mr. Ivery concluded by stating:

7

“I would be grateful when he gets the help his condition has him to need. I been around him for

8

over 42 years and he has changed drastically.”227

9
2.4 Vocational Expert Testimony

11
United States District Court
Northern District of California

10

Malcolm Brodzinsky, a vocational expert, testified at the hearing on October 3, 2013. He

12

classified Mr. Wilkerson’s past work — as a heavy equipment operator, a heavy truck driver, and

13

a gas company technician — as skilled and semi-skilled jobs requiring medium physical

14

demands.228 In February 2014, the ALJ sent Mr. Brodzinsky a vocational interrogatory.229

15

The ALJ posed a hypothetical based on an individual born in 1964, with a high-school education,

16

English proficiency, Mr. Wilkerson’s past work experience, and the residual functional capacity
to perform light work [ ] except sitting six hours in an eight-hour day, standing and
walking for six hours in an eight-hour day, lifting and carrying 20 pounds
occasionally and 10 pounds frequently, bending, stooping, and kneeling for four
hours in an eight-hour day that does not require binocular vision and involves
simple, repetitive tasks with less than average emphasis on production quotas and
speeded tasks, limited to brief and superficial contact with supervisors, coworkers,
and the general public and no contact with alcohol or illicit drugs in the job

17
18
19
20
21
22
23

221
222
223

24

224

25

225

26

226

Id.
Id.
Id.
AR 277.
Id.
Id.

227

27

AR 278.

228

AR 51.

28

229

AR 391–95.

ORDER – No. 16-cv-02757-LB

23 

setting.230

1
2

Mr. Brodzinsky answered that such an individual could not perform Mr. Wilkerson’s past work

3

but could work as a “bottling line attendant” or “housekeeping cleaner.”231

4
5

2.5 Administrative Findings

6

The ALJ followed the five-step sequential evaluation process to determine whether Mr.

7

Wilkerson was disabled and concluded he was not.232

8

At step one, the ALJ found that that Mr. Wilkerson had not engaged in substantial gainful

9

activity since his alleged onset date of August 12, 2010, and met the insured status requirements

10

through December 31, 2015.233

United States District Court
Northern District of California

11

At step two, the ALJ found that Mr. Wilkerson had the following severe impairments:

12

“degenerative disc disease of the lumbar spine, monocular vision secondary to a left eye visual

13

impairment, diabetes mellitus,234 a major depressive disorder with possible psychotic features, and

14

polysubstance abuse in reported remission.”235

15

At step three, the ALJ found that Mr. Wilkerson did not have an impairment or combination of

16

impairments that met or medically equaled the severity of a listed impairment.236 Mr. Wilkerson’s

17

degenerative disc disease did not meet Listing 1.04 because there was no evidence of “nerve root

18

compression characterized by pain, limitation of motion in the spine, motor loss and sensory or

19

reflex loss.”237 The evidence of Mr. Wilkerson’s visual impairments was not sufficient to

20
21
230

AR 393.

231

23

AR 394.

232

AR 18–26.

24

233

AR 18.

22

25
26

234

Metformin, a diabetes medicine, is listed in Mr. Wilkerson’s medication list for the period of July
through August 2013. (AR 371.) There is no record of a diabetes diagnosis, and Mr. Wilkerson does
not allege or argue this is one of his impairments. Thus, the court does not address it here.

235

27

236

28

237

Id.
AR 19.
Id.

ORDER – No. 16-cv-02757-LB

24 

1

“associate the criteria for any Listing level visual impairment under Section 2.00 et seq.”238 Mr.

2

Wilkerson’s mental impairments, individually or combined, did not meet Listings 12.03 or 12.04

3

and the paragraph B criteria because the evidence did not show repeated episodes of

4

decompensation and at least two marked functional limitations.239 Rather, Mr. Wilkerson had only

5

mild restrictions of his activities of daily living and moderate difficulties in social functioning and

6

“concentration, persistence, or pace.”240
At step four, the ALJ determined Mr. Wilkerson had the residual functional capacity (“RFC”)

7
8

to perform light work with
sitting for 6 hours in an 8 hour day, standing/walking for 6 hours in an 8 hour day,
lifting/carrying 20 pounds occasionally and 10 pounds frequently, and
bending/stooping/kneeling for 4 hours in an 8 hour day, not requiring binocular
vision, involving simple, repetitive tasks with less than average emphasis on
production quotas and speeded tasks, no more than brief and superficial contact
with supervisors, coworkers and the general public and no contact with alcohol or
illicit drugs.241

9
10

United States District Court
Northern District of California

11
12
13
14

At step five, the ALJ found Mr. Wilkerson could not perform his past relevant work as a

15

highway maintenance worker or a maintenance technician.242 The ALJ found that Mr. Wilkerson

16

could work as a “bottling line attendant” or “housekeeping cleaner.”243 The ALJ concluded that he

17

was not disabled.244
ANALYSIS

18
19

1. Standard of Review
Under 42 U.S.C. § 405(g), district courts have jurisdiction to review any final decision of the

20
21

Commissioner if the claimant initiates a suit within sixty days of the decision. A court may set

22

aside the Commissioner’s denial of benefits only if the ALJ’s “findings are based on legal error or

23

238

Id.

24

239

AR 19–20.

25

240

AR 20.

26

241

Id.

242

27

AR 25.

243

AR 26.

28

244

Id.

ORDER – No. 16-cv-02757-LB

25 

1

are not supported by substantial evidence in the record as a whole.” Vasquez v. Astrue, 572 F.3d

2

586, 591 (9th Cir. 2009) (internal citation and quotation marks omitted); 42 U.S.C. § 405(g).

3

“Substantial evidence means more than a mere scintilla but less than a preponderance; it is such

4

relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”

5

Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). The reviewing court should uphold “such

6

inferences and conclusions as the [Commissioner] may reasonably draw from the evidence.” Mark

7

v. Celebrezze, 348 F.2d 289, 293 (9th Cir. 1965). If the evidence in the administrative record

8

supports the ALJ’s decision and a different outcome, the court must defer to the ALJ’s decision

9

and may not substitute its own decision. Tackett v. Apfel, 180 F.3d 1094, 1097–98 (9th Cir. 1999).
“Finally, [a court] may not reverse an ALJ’s decision on account of an error that is harmless.”

11
United States District Court
Northern District of California

10

Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012).

12
13

2. Applicable Law

14

A claimant is considered disabled if (1) he or she suffers from a “medically determinable

15

physical or mental impairment which can be expected to result in death or which has lasted or can

16

be expected to last for a continuous period of not less than twelve months,” and (2) the

17

“impairment or impairments are of such severity that he or she is not only unable to do his

18

previous work but cannot, considering his age, education, and work experience, engage in any

19

other kind of substantial gainful work which exists in the national economy. . . .” 42 U.S.C.

20

§ 1382c(a)(3)(A) & (B). The five-step analysis for determining whether a claimant is disabled

21

within the meaning of the Social Security Act is as follows. Tackett, 180 F.3d at 1098 (citing

22

20 C.F.R. § 404.1520).

23
24
25
26

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).

27

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).

28

Step Three. Does the impairment “meet or equal” one of a list of specified
ORDER – No. 16-cv-02757-LB

26 

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).

1
2
3

Step Four. Considering the claimant’s 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).

4
5
6

11

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.

12

For steps one through four, the burden of proof is on the claimant. At step five, the burden

7
8
9

United States District Court
Northern District of California

10

13

shifts to the Commissioner. Gonzales v. Sec’y of Health & Human Servs., 784 F.2d 1417, 1419

14

(9th Cir. 1986).

15
16

3. Application

17

Mr. Wilkerson contends the ALJ erred at step four in determining his RFC because she

18

improperly discounted or disregarded (1) the medical opinions of the psychiatrist at Sausal Creek

19

Outpatient Stabilization Clinic, Dr. Khoi, Dr. Hardey, and Dr. Conger regarding the severity of

20

Mr. Wilkerson’s mental impairments, (2) Mr. Wilkerson’s own testimony regarding the severity of

21

his impairments, and (3) the third-party statement of his close and long-time friend, Mr. Ivery.245

22

The court reviews each contention in turn.

23
24
25
26
27
28

245

Summary-Judgment Motion – ECF No. 23 at 9.

ORDER – No. 16-cv-02757-LB

27 

1

3.1 Medical Opinion Evidence

2

Mr. Wilkerson contends the ALJ provided insufficient reasons for rejecting the medical

3

opinions of the psychiatrist at Sausal Creek Outpatient Stabilization Clinic, Dr. Khoi, Dr. Hardey,

4

and Dr. Conger.246
The ALJ is responsible for “‘resolving conflicts in medical testimony, and for resolving

5
6

ambiguities.’” Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014) (quoting Andrews, 53 F.3d

7

at 1039). In weighing and evaluating the evidence, the ALJ must consider the entire case record,

8

including each medical opinion in the record, together with the rest of the relevant evidence.

9

20 C.F.R. § 416.927(b); see also Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (“[A] reviewing
court [also] must consider the entire record as a whole and may not affirm simply by isolating a

11
United States District Court
Northern District of California

10

specific quantum of supporting evidence.”) (internal quotation marks and citation omitted).
“In conjunction with the relevant regulations, [the Ninth Circuit has] developed standards that

12
13

guide [the] analysis of an ALJ’s weighing of medical evidence.” Ryan v. Comm’r of Soc. Sec., 528

14

F.3d 1194, 1198 (9th Cir. 2008) (citing 20 C.F.R. § 404.1527). Social Security regulations

15

distinguish between three types of physicians (and other “acceptable medical sources”):

16

(1) treating physicians; (2) examining physicians; and (3) non-examining physicians. 20 C.F.R.

17

§ 416.927(c), (e); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). “Generally, a treating

18

physician’s opinion carries more weight than an examining physician’s, and an examining

19

physician’s opinion carries more weight than a reviewing [non-examining] physician’s.” Holohan

20

v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001) (citing Lester, 81 F.3d at 830); Smolen v.

21

Chater, 80 F.3d 1273, 1285 (9th Cir. 1996).
An ALJ, however, may disregard the opinion of a treating physician, whether or not

22
23

controverted. Andrews, 53 F.3d at 1041. “To reject [the] uncontradicted opinion of a treating or

24

examining doctor, an ALJ must state clear and convincing reasons that are supported by

25

substantial evidence.” Ryan, 528 F.3d at 1198 (alteration in original) (internal quotation marks and

26

citation omitted). By contrast, if the ALJ finds that the opinion of a treating physician is

27
28

246

Id.

ORDER – No. 16-cv-02757-LB

28 

1

contradicted, a reviewing court will require only that the ALJ provide “specific and legitimate

2

reasons supported by substantial evidence in the record.” Reddick v. Chater, 157 F.3d 715, 725

3

(9th Cir. 1998) (internal quotation marks and citation omitted); see also Garrison, 759 F.3d at

4

1012 (“If a treating or examining doctor’s opinion is contradicted by another doctor’s opinion, an

5

ALJ may only reject it by providing specific and legitimate reasons that are supported by

6

substantial evidence.”) (internal quotation marks and citation omitted). The opinions of non-

7

treating or non-examining physicians may serve as substantial evidence when the opinions are

8

consistent with independent clinical findings or other evidence in the record. Thomas v. Barnhart,

9

278 F.3d 947, 957 (9th Cir. 2002). An ALJ errs, however, when she “rejects a medical opinion or
assigns it little weight” without explanation or without explaining why “another medical opinion is

11
United States District Court
Northern District of California

10

more persuasive, or criticiz[es] it with boilerplate language that fails to offer a substantive basis

12

for [her] conclusion.” Garrison, 759 F.3d at 1012–13.

13

“If a treating physician’s opinion is not given ‘controlling weight’ because it is not ‘well-

14

supported’ or because it is inconsistent with other substantial evidence in the record, the [Social

15

Security] Administration considers specified factors in determining the weight it will be given.”

16

Orn, 495 F.3d at 631. “Those factors include the ‘[l]ength of the treatment relationship and the

17

frequency of examination’ by the treating physician; and the ‘nature and extent of the treatment

18

relationship’ between the patient and the treating physician.” Id. (quoting 20 C.F.R.

19

§ 404.1527(d)(2)(i)–(ii)) (alteration in original). “Additional factors relevant to evaluating any

20

medical opinion, not limited to the opinion of the treating physician, include the amount of

21

relevant evidence that supports the opinion and the quality of the explanation provided[,] the

22

consistency of the medical opinion with the record as a whole[, and] the specialty of the physician

23

providing the opinion . . . .” Id. (citing 20 C.F.R. § 404.1527(d)(3)–(6)); see also Magallanes v.

24

Bowen, 881 F.2d 747, 753 (9th Cir. 1989) (ALJ need not agree with everything contained in the

25

medical opinion and can consider some portions less significant than others).

26

In addition to the medical opinions of the “acceptable medical sources” outlined above, the

27

ALJ must consider the opinions of other “medical sources who are not acceptable medical sources

28

and [the testimony] from nonmedical sources.” See 20 C.F.R. § 416.927(f)(1). An “ALJ may
ORDER – No. 16-cv-02757-LB

29 

1

discount the testimony” or opinion “from these other sources if the ALJ gives … germane

2

[reasons] . . . for doing so.” Molina, 674 F.3d at 1111 (internal quotations and citations omitted).

3
4

3.1.1

Sausal Creek Outpatient Stabilization Clinic

Mr. Wilkerson contends that the ALJ failed to provide sufficient (or any) reasons for rejecting

5
6

medical-opinion evidence from the Sausal Creek Outpatient Stabilization Clinic psychiatrist and

7

other medical providers at the Clinic, including failing to consider the Global Assessment of

8

Functioning (“GAF”) score of 45 that was assigned to him by the psychiatrist and by the intake

9

nurse.247 “‘A GAF score is a rough estimate of an individual’s psychological, social, and
occupational functioning used to reflect the individual’s need for treatment.’” Garrison, 759 F.3d

11
United States District Court
Northern District of California

10

at 1002 n.4 (quoting Vargas v. Lambert, 159 F.3d 1161, 1164 n.2 (9th Cir. 1998)). “According to

12

the DSM–IV, a GAF score between 41 and 50 describes ‘serious symptoms’ or ‘any serious

13

impairment in social, occupational, or school functioning.’” Id. “Although GAF scores, standing

14

alone, do not control determinations of whether a person’s mental impairments rise to the level of

15

a disability (or interact with physical impairments to create a disability), they may be a useful

16

measurement.” Id.; see Graham v. Astrue, 385 F. App’x 704, 706 (9th Cir. 2010) (“[Claimant]

17

correctly points out that the GAF scores are not dispositive . . . [b]ut the GAF scores are

18

nonetheless relevant.”); see also Admin. Message 13066, sec. E (July 22, 2013) (noting that

19

“when [a GAF score] comes from an acceptable medical source,” the SSA considers that the

20

“GAF rating is a medical opinion” to be considered with “all of the relevant evidence in the case

21

file”); but see McFarland v. Astrue, 288 F. App’x 357, 359 (9th Cir. 2008) (“[t]he Commissioner

22

has determined [that] the GAF scale ‘does not have a direct correlation to the severity

23

requirements in [the Social Security Administration’s] mental disorders listings.’” (quoting

24

65 Fed. Reg. 50,746, 50,765) (Aug. 21 2001)).
Here, the GAF scores and other mental-health assessments are from both “acceptable medical

25
26
27
28

247

Summary-Judgment Motion – ECF No. 23 at 13–14; see also AR 642 (psychiatrist assigning an
Axis V /GAF score of 45); AR 646 (intake nurse also assigning a GAF score of 45).

ORDER – No. 16-cv-02757-LB

30 

1

source” and “other source” providers (though neither likely would qualify as “treating” medical

2

providers). Nevertheless, even if they were treated only as “examining” medical providers, the

3

ALJ has an obligation to consider these opinions in her decision. Garrison, 759 F.3d at 1012–13

4

(an ALJ errs if she “rejects a medical opinion or assigns it little weight” without explanation or

5

without explaining why “another medical opinion is more persuasive”). The court notes that these

6

GAF scores were the product of short, one-time observations and were not supported by additional

7

detailed clinical findings or explanations by the medical providers, but still, the failure of the ALJ

8

to specifically consider the GAF scores and the other medical opinions from the examinations or

9

provide an explanation for rejecting them was error. See id. Moreover, given that Mr. Wilkerson’s
assigned GAF score of 45 equates to a finding of a “serious symptom” or an “impairment in

11
United States District Court
Northern District of California

10

social, occupational, or school functioning,” id. at 1002 n.4 (internal quotations and citations

12

omitted), the court declines to find this error to be harmless. See Molina, 674 F.3d at 1111.

13
14

3.1.2

Dr. Khoi

The ALJ gave “no weight” to Dr. Khoi’s conclusions, finding that they were (1) “inconsistent

15
16

with the claimant’s history of limited mental health treatment and [(2)] Dr. Khoi’s examination

17

was incomplete because the claimant did not complete psychological testing.”248

18

While a claimant’s lack of treatment can be evidence of the lack of severity of such claimant’s

19

reported symptoms, see, e.g., Orn, 495 F.3d at 636, the Ninth Circuit has cautioned that in the area

20

of mental health, the fact that a claimant “may have failed to seek psychiatric treatment for his [or

21

her] mental condition” should not be used to “chastise one with a mental impairment for the

22

exercise of poor judgment in seeking rehabilitation.” Nguyen v. Chater, 100 F.3d 1462, 1465 (9th

23

Cir. 1996) (internal quotation marks omitted); Ferrando v. Comm’r of Soc. Sec. Admin., 449 F.

24

App’x 610, 611–12 (9th Cir. 2011) (“[F]ailure to seek treatment for his mental illness . . . is not a

25

clear and convincing reason to reject his [treating] psychiatrist’s opinion, especially where that

26

failure to seek treatment is explained, at least in part, by [the claimant’s] degenerating condition.”)

27
28

248

AR 24.

ORDER – No. 16-cv-02757-LB

31 

1

(citing Regennitter v. Comm’r of Soc. Sec. Admin., 166 F.3d 1294, 1299–1300 (9th Cir. 1999).
In Regennitter, the Ninth Circuit also held that if a claimant could not afford treatment, failure

2
3

to seek treatment was not a legitimate basis for rejecting a disability claim. 166 F.3d at 1297;

4

Gamble v. Chater, 68 F.3d 319, 321 (9th Cir. 1995) (“‘It flies in the face of the patent purposes of

5

the Social Security Act to deny benefits to someone because he is too poor to obtain medical

6

treatment that may help him.’”) (quoting Gordon v. Schweiker, 725 F.2d 231, 237 (4th Cir. 1984)).

7

Here, the ALJ did not undertake a specific assessment of whether Mr. Wilkerson’s limited

8

mental-health treatment history was based on the lack of severity of his impairments or instead

9

was at least in part attributable to his mental impairments and/or his financial constraints. The
record does reflect that Mr. Wilkerson lost his insurance in 2010 and could not pay for his

11
United States District Court
Northern District of California

10

physical therapy appointments with his chiropractor or for new eyeglasses.249 Whether his mental

12

health and financial issues also impacted his ability to seek (and comply with) mental-health

13

treatments is not clear. Under these circumstances, however, the court finds that the ALJ’s brief

14

and conclusory statements regarding Mr. Wilkerson’s limited treatment to be an insufficient basis

15

for rejecting Dr. Khoi’s opinion.

16

The ALJ’s second reason for discounting Dr. Khoi’s opinion — Mr. Wilkerson did not fully

17

complete all of the cognitive assessment tests — is not, in these circumstances, a legitimate reason

18

supported by substantial evidence in the record for disregarding Dr. Khoi’s opinion. Specifically,

19

Dr. Khoi administered numerous psychological tests and acknowledged that the test results “likely

20

[ ] underestimate [Mr. Wilkerson’s] cognitive functioning” because Mr. Wilkerson’s physical

21

impairments (vision, pain) and psychiatric symptoms prevented him from finishing all of the

22

tasks.250 Dr. Khoi accounted for this limitation, in part, by reconciling and adopting the prior

23

cognitive testing results from earlier that year to conclude that Mr. Wilkerson’s cognitive abilities

24

are “at least in the low average range.”251 Furthermore, Dr. Khoi’s psychological evaluation was

25
26

249

27

AR 546, 562, 713.

250

AR 601, 603.

28

251

AR 603.

ORDER – No. 16-cv-02757-LB

32 

1

based upon information beyond just the tests that were not fully completed and included not only

2

the psychological tests he was able to complete (incorporating the results of previous tests

3

conducted by others), but also her own observations, diagnoses, and assessments of Mr.

4

Wilkerson’s condition.252 In these circumstances, the court finds that the ALJ’s proffered reason

5

(of incomplete testing) to reject all of Dr. Khoi’s conclusions is not a sufficient or legitimate

6

reason to reject (and give no weight) her opinion (as an “acceptable medical source”).

7
8

3.1.3

Dr. Hardey

The ALJ gave “limited weight to Dr. Hardey’s conclusions to the extent that they suggest that

9

the claimant would be limited in his capacity for work in the absence of substance abuse.”253

11
United States District Court
Northern District of California

10

Specifically, the ALJ rejected Dr. Hardey’s finding that Mr. Wilkerson had moderate to severe

12

limitations in several areas254 because “she attributed his psychiatric symptoms to substance

13

abuse.”255 Mr. Wilkerson contends this is error because “Dr. Hardey’s diagnosis of alcohol and

14

drug dependency was based on [his] report of his past abuse, not on his medical records or her

15

observations” of present abuse.256
“A finding of ‘disabled’ under the five-step inquiry does not automatically qualify a claimant

16
17

for disability benefits.” Bustamante v. Massanari, 262 F.3d 949, 954 (9th Cir. 2001). “Under 42

18

U.S.C. § 423(d)(2)(C), a claimant cannot receive disability benefits ‘if alcoholism or drug

19

addiction would . . . be a contributing factor material to the Commissioner’s determination that the

20

individual is disabled.’” Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007) (quoting 42 U.S.C.

21

§ 423(d)(2)(C)) (alteration in original).
The Ninth Circuit has held that when a Social Security disability claim involves substance

22
23

abuse, the ALJ must first conduct the five-step sequential evaluation without determining the

24
252

AR 600–03.

253

AR 24.

254

27

See AR 564–65.

255

AR 24.

28

256

Summary-Judgment Motion – ECF No. 23 at 12.

25
26

ORDER – No. 16-cv-02757-LB

33 

1

impact of substance abuse on the claimant. Bustamante, 262 F.3d at 954–55. If the ALJ finds that

2

the claimant is not disabled, then the ALJ proceeds no further. Id.at 955. If, however, the ALJ

3

finds that the claimant is disabled, then the ALJ conducts the sequential evaluation a second time

4

and considers whether the claimant would still be disabled absent the substance abuse. Id. (citing

5

20 C.F.R. §§ ; C.F.R. § 404.1535, 416.935); Parra, 481 F.3d. at 747 (under the Social Security

6

Act’s regulations, “the ALJ must conduct a drug abuse and alcoholism analysis” to determine

7

“which of the claimant’s disabling limitations would remain if the claimant stopped using drugs or

8

alcohol.” (citing 20 C.F.R. § 404.1535(b)).
Here, by rejecting or discounting Dr. Hardey’s medical opinion based on Mr. Wilkerson’s

9

history of substance abuse, the ALJ failed to conduct the five-step sequential evaluation first

11
United States District Court
Northern District of California

10

before determining the impact of substance abuse on the claimant. See Bustamante, 262 F.3d at

12

954–55. By doing so, it appears the ALJ prematurely assumed that substance abuse was material

13

to the severity of Mr. Wilkerson’s mental impairments and rejected Dr. Hardey’s opinion on that

14

basis.
Dr. Hardey made an Axis 1 diagnosis of: (1) “Rule out psychotic disorder probably secondary

15
16

to poly-substance abuse”; (2) “Alcohol, cocaine, and cannabis dependency, in remission, status

17

post 4 months per applicant — no corroborating medical records”; and (3) “Mood disorder,

18

secondary to substance abuse.”257 Dr. Hardey used terms such as “probably” and stated that Mr.

19

Wilkerson’s substance abuse was “in remission.” She noted the absence of medical records to

20

support a finding of remission, but she did not make any affirmative findings of ongoing substance

21

abuse to contradict Mr. Wilkerson’s claim of remission.258 Moreover, in Mr. Wilkerson’s

22

encounters with other health providers, he consistently reported that he had been clean and sober

23

since October 2011, when he began living at Redemption and Recovery.259

24
25
26

257

27

258

28

259

AR 564.
Id.
AR 48, 562–63, 622, 635, 641, 644, 652.

ORDER – No. 16-cv-02757-LB

34 

Under Bustamente, the ALJ must not disregard medical evidence simply because it includes

1
2

diagnoses of impairments “secondary to” substance abuse at the initial stage of the disability

3

determination analysis. See 262 F.3d at 956. Instead, the ALJ must evaluate all of the evidence at

4

each step of the sequential evaluation process “without attempting to separate out the impact” of

5

substance abuse. Id. Then, only after making the underlying disability determination, the ALJ

6

must engage in a materiality analysis of the impact of substance abuse on Mr. Wilkerson’s

7

impairments. Id.

8
9

3.1.4

The ALJ gave no weight to Dr. Conger’s disability certificate because it was “not supported by

10

United States District Court
Northern District of California

11

Dr. Conger

[(i)] any prior treatment relationship or [(ii)] documented positive objective findings.”260

12

Dr. Conger examined Mr. Wilkerson sometime during the week of June 13 to June 20, 2011,

13

the period on the form that reflects that Mr. Wilkerson was under Dr. Conger’s care.261 As the ALJ

14

noted, it appears that there is no evidence of an ongoing treatment relationship or basis to consider

15

Dr. Conger as a “treating” medical provider. See Orn, 495 F.3d at 631 (ALJ considers length,

16

nature, and extent of treatment relationship and visit frequency); 20 C.F.R. § 404.1527(d)(2)(i)–

17

(ii). Nevertheless, as an “examining” psychologist providing a certificate for Mr. Wilkerson’s

18

California disability claim, the fact that Dr. Conger examined Mr. Wilkerson only once is not

19

surprising and does not by itself provide a legitimate basis for rejecting his opinion. See, e.g.,

20

Wiggins v. Berryhill, No. 16-CV-41-GSA, 2017 WL 772142, at *8 (E.D. Cal. Feb. 27, 2017)

21

(noting that the examining medical opinion was “a one-time snapshot of [claimant’s] functioning,”

22

but concluding, “that is true of all consultative examiners and it is not a legitimate reason for

23

rejecting the opinion”); Smith v. Colvin, No. 14-CV-05082-HSG, 2015 WL 9023486, at *7 (N.D.

24

Cal. Dec. 16, 2015) (“By definition, an examining opinion is a one-time examination.”) “Adoption

25

of the ALJ’s reasoning would result in the rejection of virtually all examining opinions.” Smith,

26
27

260

AR 24.

28

261

AR 528.

ORDER – No. 16-cv-02757-LB

35 

1

2015 WL 9023486, at *7. The ALJ’s first stated reason is not a legitimate basis in itself for

2

rejecting Dr. Conger’s opinion.

3

The ALJ’s second reason — lack of “documented positive objective findings”262 — is not

4

supported by substantial evidence. The ALJ may consider “the amount of relevant evidence that

5

supports the opinion and the quality of the explanation provided.” Orn, 495 F.3d at 631 (citing 20

6

C.F.R. § 404.1527(d)(3)–(6)). Nevertheless, the ALJ’s statement — that Dr. Conger provided no

7

positive objective findings — is inaccurate. Dr. Conger’s certificate, although brief, states that he

8

found Mr. Wilkerson to be “very disturbed, uncomfortable.”263 In the space for providing a

9

“diagnosis,” “objective findings or a detailed statement of symptoms,” Dr. Conger wrote that his
examination revealed that Mr. Wilkerson “hears voices, feels invaded, wants to be alone, [and] has

11
United States District Court
Northern District of California

10

paranoid ideation, [with] awkward and restless movements.”264 Given that at least some of these

12

noted symptoms are based upon objective observations (as opposed to only subjective reporting by

13

Mr. Wilkerson), the ALJ’s stated reason for giving no weight to Dr. Conger’s medical opinion is

14

not supported by substantial evidence. Because the ALJ’s two reasons for rejecting Dr. Conger’s

15

medical opinion are either not legitimate or not supported by substantial evidence, the court finds

16

that the ALJ erred in giving no weight to Dr. Conger’s medical opinion. What weight the ALJ

17

ultimately gives to Dr. Conger’s assessment given his limited interaction with Mr. Wilkerson must

18

be determined by the ALJ on remand.

19
20

3.2 Lay Testimony

21

3.2.1

The Claimant – Mr. Wilkerson

22

Mr. Wilkerson contends that the ALJ erroneously discredited his testimony.265 In assessing a

23

claimant’s credibility, an ALJ must make two determinations. Molina, 674 F.3d at 1112. “‘First,

24

the ALJ must determine whether the claimant has presented objective medical evidence of an

25
26

262

AR 24.

263

AR 528.

27

264

28

265

Id.
Summary-Judgment Motion – ECF No. 23 at 18–19.

ORDER – No. 16-cv-02757-LB

36 

1

underlying impairment which could reasonably be expected to produce the pain or other

2

symptoms alleged.’” Id. (quoting Vasquez, 572 F.3d at 591). Second, if the claimant produces that

3

evidence, and “there is no evidence of malingering,” the ALJ must provide “specific, clear and

4

convincing reasons for” rejecting the claimant’s testimony regarding the severity of the claimant’s

5

symptoms. Id. (internal quotation marks and citations omitted). “At the same time, the ALJ is not

6

‘required to believe every allegation of disabling pain, or else disability benefits would be

7

available for the asking, a result plainly contrary to 42 U.S.C. § 423(d)(5)(A).’” Molina, 674 F.3d

8

at 1112 (quoting Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)). “Factors that an ALJ may

9

consider in weighing a claimant’s credibility include reputation for truthfulness, inconsistencies in
testimony or between testimony and conduct, daily activities, and unexplained, or inadequately

11
United States District Court
Northern District of California

10

explained, failure to seek treatment or follow a prescribed course of treatment.” Orn, 495 F.3d at

12

636 (internal quotation marks omitted). “The ALJ must identify what testimony is not credible and

13

what evidence undermines the claimant’s complaints.” Burrell v. Colvin, 775 F.3d 1133, 1138 (9th

14

Cir. 2014); see, e.g., Morris v. Colvin, No. 16-CV-0674-JSC, 2016 WL 7369300, at *12 (N.D.

15

Cal. Dec. 20, 2016).
Here, the ALJ found that Mr. Wilkerson’s “medically determinable impairments could

16
17

reasonably be expected to cause the alleged symptoms; however [his] statements concerning the

18

intensity, persistence and limiting effects of these symptoms are not entirely credible. . . .”266 The

19

ALJ did not make any finding of malingering, but nonetheless discredited his testimony based

20

upon (i) the lack of ongoing, comprehensive treatment and/or the misuse of or failure to take

21

prescribed medicine or treatments (and the corresponding limited “objective medical findings”

22

supporting the severity of his impairments), (ii) the absence of urine toxicology results to support

23

his claim of substance abuse in remission, and (iii) purported inconsistencies between his prior

24

statements and testimony at the hearing.267 The court addresses each reason.
First, as noted above, the ALJ failed to properly analyze and articulate whether Mr.

25
26
27

266

AR 25.

28

267

AR 24–25.

ORDER – No. 16-cv-02757-LB

37 

1

Wilkerson’s lack of ongoing comprehensive mental-health treatment and/or his failure to take

2

prescribed medicines or to pursue recommended mental-health treatment was (i) because of a lack

3

of severity of his impairments or (ii) at least in part, the result of his mental-health impairments

4

and/or his inability to pay for such treatments. See Nguyen, 100 F.3d at 1465; Regennitter,

5

166 F.3d at 1297–99. The court recognizes (as did the ALJ) that the “objective medical findings”

6

supporting Mr. Wilkerson’s disability claim are “limited.” 268 Absent this articulated analysis

7

noted above, however, it is not clear whether the ALJ’s reliance on this factor (i.e., the “minimal

8

treatment” and “the lack of ongoing comprehensive treatment”) to discredit the reported severity

9

of his impairments is legitimate and supported by clear and convincing evidence. See Molina,

10

674 F.3d at 1112.
Second, given the lack of any evidence or indication in the record to the contrary, the ALJ’s

United States District Court
Northern District of California

11
12

(and the consulting psychologist Dr. Lace’s) discrediting of Mr. Wilkerson’s claim of poly-

13

substance abuse remission based upon the absence of toxicology results confirming remission

14

does not constitute a clear and convincing basis for finding that Mr. Wilkerson’s testimony is not

15

credible. See generally id. While the burden of proof at this step of the disability claims process is

16

on the claimant, Gonzales, 784 F.2d at 1419, the ALJ’s decision offered no specific basis in the

17

record for casting doubt on Mr. Wilkerson’s remission. Moreover, the record reflects that during

18

the relevant period of his alleged remission, Mr. Wilkerson was prescribed medication, including

19

opioid pain killers that were occasionally provided for back pain after his several accidents, with

20

no noted abuse.269

21

Finally, while inconsistencies in a claimant’s prior statements may be a legitimate basis for

22

discrediting a claimant’s testimony, see Orn, 495 F.3d at 636, the court finds that on balance those

23

inconsistencies specifically identified by the ALJ in her decision are not sufficient to justify

24

discrediting his testimony. See Haulot v. Astrue, 290 F. App’x 53, 55 (9th Cir. 2008) (“minor

25
26

268

27

269

28

See AR 24.

See AR 650–52, 688–89; see also AR 644 (although it is not entirely clear whether this was based
on his self-reporting or on actual lab tests, Mr. Wilkerson’s assessment notes from May 29, 2013,
indicate that his “Drug/Alcohol Screen” was negative).

ORDER – No. 16-cv-02757-LB

38 

1

discrepancies in [claimant’s] testimony were not enough to establish clear and convincing

2

evidence that [claimant’s testimony] is incredible.”) (citing Robbins v. Soc. Sec. Admin., 466 F.3d

3

880, 884 (9th Cir.2006)).

4

First, the ALJ analysis in this area conflates and then finds inconsistent Mr. Wilkerson’s

5

statements regarding why he can “no longer work[ ] as a heavy equipment operator” (which the

6

ALJ states that Mr. Wilkerson attributes to his being blind in one eye and to his back pain) with

7

the reason he no longer works at his previous job as a heavy-equipment operator (which he

8

attributes to his hearing voices, depression, and his arrest for public intoxication, which caused

9

him to miss work resulting in his termination).270 But the reasons for his termination in 2010 and
the underlying impairments preventing him from working as a heavy-equipment operator are

11
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Northern District of California

10

distinct issues, and Mr. Wilkerson’s statements about them are not necessarily going to be

12

consistent. Thus, the fact that those reasons may not always match or overlap does not necessarily

13

impugn his credibility. Moreover, because Mr. Wilkerson suffers from multiple impairments, his

14

statements that he stopped working due to psychiatric symptoms (such as depression and hearing

15

voices), substance abuse, and back pain also are not necessarily inconsistent. Mr. Wilkerson told

16

both Dr. Hardey in February 2012 and the ALJ in October 2013 that he stopped working because

17

he was “hearing voices.”271 He also reported to Dr. Conger in June 2011 (as part of his claim for

18

California disability) that he “stopped working” because of “severe depression – substance abuse

19

problem – back pain” and claimed to hear voices.272 He similarly testified at the ALJ hearing in

20

October 2013 that he stopped working because he “started hearing voices and started being very

21

depressed” and was fired for being “AWOL” after he was arrested and jailed for public

22

intoxication and missed work.273
The ALJ makes a point of noting that Mr. Wilkerson had reported to his social worker that he

23
24
25
26

270

AR 25; see also Summary-Judgment Motion – ECF No. 23 at 17 (noting that Mr. Wilkerson’s
testimony was actually that he could no longer work as a semi-truck driver — something he had done
in the past — because he was blind in his left eye); AR 39.

271

27

AR 40, 563.

272

AR 526, 528.

28

273

AR 40–41.

ORDER – No. 16-cv-02757-LB

39 

1

was “laid off in 2010”274 presumably to show that it was inconsistent with his actually having been

2

fired. Given these circumstances and reviewing the record as a whole, the court finds that this

3

discrepancy (to the extent that it is can be characterized as such) is at most a minor and collateral

4

inconsistency and is not a clear and convincing basis for rejecting his testimony regarding the

5

severity of his impairments.275 See Haulot, 290 F. App’x at 55.
Second, the ALJ noted an inconsistency between Mr. Wilkerson’s alleged physical disability

6
7

due, in part, to his acute glaucoma and limited vision problems in his left eye and Mr. Wilkerson’s

8

undertaking a physical on May 2, 2012, for “DMV form completion,” and his acknowledgement

9

during his testimony before the ALJ that he currently has his Class A commercial drivers’
license.276 The ALJ also noted that Mr. Wilkerson’s longtime friend, Mr. Ivery, reported that Mr.

11
United States District Court
Northern District of California

10

Wilkerson spent a lot of time reading.277 The ALJ did not, however, note the uncontested findings

12

of Mr. Wilkerson’s severe visual-acuity loss in his left eye.278 Mr. Wilkerson’s May 2012 physical

13

exam for DMV purposes and his testimony in October 2013 confirming his commercial Class A

14

license status do raise questions both about the severity of his vision impairment and his

15

underlying overall disability.
Third, the ALJ also identified several purported inconsistencies, such as Mr. Wilkerson’s

16
17

alleged lower-back impairments and his indication in February 2012 that he enjoyed riding his

18

bike and was riding it in April 2013 (before being struck by a car).279 Although it is possible that

19

his ability to ride a bike is not inhibited by his lower-back infirmities that otherwise prevent him

20

from working, it does arguably call into question the veracity of the other physical limitations that

21

he asserted during his testimony before the ALJ (such as his claim that he could only sit for 20

22

minutes at a time or stand only for 10 to 15 minutes without his leg going numb).280

23
24
25
26

274

AR 609.

275

AR 25, 38.

276

AR 24–25, 39–40, 578.

277

AR 25, 271.

278

27

AR 597.

279

AR 562, 650–53.

28

280

AR 44–45.

ORDER – No. 16-cv-02757-LB

40 

Finally, as part of the court’s overall review of the record, it appears that there are several

1
2

notable inconsistencies that the ALJ did not cite in her review of this matter. They relate to various

3

treatment notes generated after Mr. Wilkerson’s bike accident in April 2013, when Mr. Wilkerson

4

(at his lawyer’s suggestion)281 went for physical therapy at the Dancy Chiropractic Group.282

5

Those notes reflect that Mr. Wilkerson was working during the course of his treatment throughout

6

May 2013, and as such, appear inconsistent with his claim and testimony before the ALJ that he

7

had not worked since 2010.283 If these work activities constitute “substantial gainful activities,” a

8

finding of disability would be precluded under step one of the five-step evaluation process based

9

on this work activity.284
For example, the May 1, 2013, treatment notes from the chiropractor state that “[Mr.

10

United States District Court
Northern District of California

11

Wilkerson] reports that his position requires physical work/ a lot of bending, lifting, stooping and

12

sitting.”285 The treatment note then states that he “reports of an increase in low back pain at the

13

end of the day.”286 The May 3rd treatment notes state that Mr. Wilkerson again reports “an

14

increase in lumbar pain associated with prolonged standing and heavy lifting” and that he had

15

“been placed on a light duty assignment while at work” and that “[h]e is precluded from lifting

16

anything over 25 pounds without assistance.”287
The May 8th treatment notes state that Mr. Wilkerson also reported “an increase in lumbar

17
18

pain at the end of the day [because] his position requires excessive bending, stooping and

19

standing.”288 He denied “taking over the counter pain medication.”289

20
21
22
23
24
25

281

AR 650 (follow-up treatment notes from hospital that “[Mr. Wilkerson] is seeing a chiropractor per
his lawyer”).

282

AR 700–13.

283

AR 38 (Mr. Wilkerson claiming that his last job was with Caltrans ending in 2010).

284

See AR 17.

285

AR 705 (these treatment notes do not specifically identify the type of work or the name of his
employer).

286

26

287

27

288

28

Id.
AR 704.
Id.

289

Id. (the context for this observation is unclear, but to the extent that it is accurate, it supports a
finding that Mr. Wilkerson was not following the treatment regime prescribed by his treating

ORDER – No. 16-cv-02757-LB

41 

At his May 13th appointment, Mr. Wilkerson stated he is “performing activities which would

1
2

aggravate his condition,” but that “prolong[ed] sitting, standing, stooping and bending are required

3

of his position.”290

4

The May 17th treatment notes state that “Mr. Wilkerson is frustrated with aggravating his

5

condition with the activities he is required to perform while at work. He reports that bending and

6

lifting are part of the position’s requirements. Mr. Wilkerson reports that he can’t afford to take

7

any time off from work. Yet, he reports that he is careful when he is required to perform any

8

activity which would aggravate his condition.”291
After several further treatment sessions, Mr. Wilkerson reported “an overall improvement in

9

his thoracic spine” and “denie[d] any radiating sensations from his lumbar spine to his lower

11
United States District Court
Northern District of California

10

extremities.”292 His final evaluation report on May 29, 2013 noted that he had “no motor or

12

sensory deficit,” could walk “with a normal gait and [ ] without the assistance of any walking

13

device,” could get on and off the table without help, and had normal muscle strength.293 The report

14

concludes that his “prognosis is good.”294

15

The treatment notes do not identify Mr. Wilkerson’s employer or the type of job position he

16

held. In an earlier separate instance dating back to December 2011, Mr. Wilkerson was treated for

17

back pain complaints.295 At that visit, Mr. Wilkerson asked for “a work note” from his treatment

18

provider.296 Again, given his testimony and assertion that he has not worked since 2010, the

19

request in December 2011 appears to be inconsistent with those assertions.
Given the “work” nature of these inconsistencies, these various treatment notes call into

20
21

question not only the veracity of Mr. Wilkerson’s testimony but also the legitimacy of his

22
23

physicians – see AR 651–52).
290

24

AR 703.

291

AR 702.

25

292

Id.

293

AR 712–13.

294

27

AR 713.

295

AR 537

28

296

26

Id.

ORDER – No. 16-cv-02757-LB

42 

1

disability claim.

2

Moreover, it appears that Mr. Wilkerson has not been consistent in reporting his criminal

3

history either. As part of his examination in February 2012 with Dr. Hardey at the request of the

4

State agency, Dr. Hardey specifically noted that Mr. Wilkerson “denied any felony or

5

misdemeanor convictions.”297 In November 2012, as part of his examination with Dr. Khoi, again

6

at the request of the State agency, Mr. Wilkerson reported not having any “legal history.”298 In

7

May 2013, however, Mr. Wilkerson reported that he had a 15-year history of substance abuse that

8

included incarceration for drug-related crimes (from 1997 to 2000 and parole until 2002).299
In sum, given these apparent inconsistencies, the court finds that the appropriate action is to

9
10

remand the case to the ALJ to consider these matters.

United States District Court
Northern District of California

11
12

3.2.2

Mr. Ivery

The ALJ did not give distinct reasons for rejecting the statements that Mr. Ivery made in his

13
14

third-party function report. Instead, she incorporated by reference the reasons for rejecting Mr.

15

Wilkerson’s testimony.300 Mr. Wilkerson contends the ALJ erred because she did not give

16

specific, germane reasons for rejecting Mr. Ivery’s statements.301
The ALJ is required to consider “other source” testimony and evidence from a layperson.

17
18

Ghanim v. Colvin, 763 F.3d 1154, 1161 (9th Cir. 2014); Molina, 674 F.3d at 1111; Bruce v.

19

Astrue, 557 F.3d 1113, 1115 (9th Cir. 2009) (“In determining whether a claimant is disabled, an

20

ALJ must consider lay witness testimony concerning a claimant’s ability to work”) (internal

21

quotation marks and citation omitted). “Descriptions by friends and family members in a position

22

to observe a claimant’s symptoms and daily activities have routinely been treated as competent

23

evidence.” Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987). It is competent evidence and

24
297

AR 563.

298

AR 601.

299

27

AR 635.

300

AR 24.

28

301

Summary-Judgment Motion – ECF No. 23 at 16–17.

25
26

ORDER – No. 16-cv-02757-LB

43