Willig v. Colvin

Filing 29

ORDER by Judge Maria-Elena James granting 18 Motion for Summary Judgment; denying 25 Motion for Summary Judgment; Remanding Case for Further Proceedings. (mejlc3, COURT STAFF) (Filed on 5/12/2017)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ERICA Z WILLIG, Case No. 16-cv-03041-MEJ Plaintiff, 8 ORDER RE: CROSS-MOTIONS FOR SUMMARY JUDGMENT v. 9 10 NANCY A. BERRYHILL, Re: Dkt. Nos. 18, 25 Defendant. United States District Court Northern District of California 11 12 INTRODUCTION 13 Plaintiff Erica Z. Willig (“Plaintiff”) brings this action pursuant to 42 U.S.C. § 405(g), 14 seeking judicial review of a final decision of Defendant Nancy A. Berryhill (“Defendant”), the 15 Acting Commissioner of Social Security, denying Plaintiff’s claim for disability benefits. Pending 16 before the Court are the parties’ cross-motions for summary judgment. Dkt. Nos. 18, 25. 17 Pursuant to Civil Local Rule 16-5, the Motions have been submitted on the papers without oral 18 argument. Having carefully reviewed the parties’ positions, the Administrative Record (“AR”), 19 and relevant legal authority, the Court hereby GRANTS Plaintiff’s Motion and DENIES 20 Defendant’s Cross-Motion for the reasons set forth below. 21 22 SOCIAL SECURITY ADMINISTRATION PROCEEDINGS Plaintiff has a long history of psychological disorders, including depression and borderline 23 personality disorder; she also suffers from migraines. On April 30, 2012, Plaintiff filed a claim for 24 Disability Insurance Benefits, alleging disability beginning on September 1, 2010. AR 21. 25 Plaintiff’s date last insured was December 31, 2013. On November 14, 2012, the Social Security 26 Administration (“SSA”) denied Plaintiff’s claim, finding that Plaintiff did not qualify for disability 27 benefits. Plaintiff subsequently filed a request for reconsideration, which was denied on May 31, 28 2013. On June 20, 2013, Plaintiff requested a hearing before an Administrative Law Judge 1 (“ALJ”). ALJ K. Kwan conducted a hearing on May 27, 2014. Plaintiff testified in person at the 2 hearing and was represented by counsel, Richard P. Zieman. The ALJ also heard testimony from 3 Vocational Expert (“VE”) Lynda Berkley. See AR 23 (describing procedural history). 4 A. The ALJ’s Findings The regulations promulgated by the Commissioner of Social Security provide for a five- 5 6 step sequential analysis to determine whether a Social Security claimant is disabled.1 20 C.F.R. § 7 404.1520. The sequential inquiry is terminated when “a question is answered affirmatively or 8 negatively in such a way that a decision can be made that a claimant is or is not disabled.” Pitzer 9 v. Sullivan, 908 F.2d 502, 504 (9th Cir. 1990). During the first four steps of this sequential inquiry, the claimant bears the burden of proof to demonstrate disability. Valentine v. Comm’r 11 United States District Court Northern District of California 10 Soc. Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009). At step five, the burden shifts to the 12 Commissioner “to show that the claimant can do other kinds of work.” Id. (quoting Embrey v. 13 Bowen, 849 F.2d 418, 422 (9th Cir. 1988)). 14 The ALJ must first determine whether the claimant is performing “substantial gainful 15 activity,” which would mandate that the claimant be found not disabled regardless of medical 16 condition, age, education, and work experience. 20 C.F.R. § 404.1520(a)(4)(i), (b). Here, the ALJ 17 determined that Plaintiff had not performed substantial gainful activity since September 1, 2010. 18 AR 23. At step two, the ALJ must determine, based on medical findings, whether the claimant has 19 20 a “severe” impairment or combination of impairments as defined by the Social Security Act. 20 21 C.F.R. § 404.1520(a)(4)(ii). If no severe impairment is found, the claimant is not disabled. 20 22 C.F.R. § 404.1520(c). Here, the ALJ determined that Plaintiff had the following severe 23 impairments: depressive disorder, borderline personality disorder, anxiety disorder, and migraine 24 headaches. AR 23. 25 26 27 28 1 Disability is “the inability to engage in any substantial gainful activity” because of a medical impairment which can result in death or “which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). 2 1 If the ALJ determines that the claimant has a severe impairment, the process proceeds to 2 the third step, where the ALJ must determine whether the claimant has an impairment or 3 combination of impairments that meet or equals an impairment listed in 20 C.F.R. Pt. 404, Subpt. 4 P, App. 1 (the “Listing of Impairments”). 20 C.F.R. § 404.1520(a)(4)(iii). If a claimant’s 5 impairment either meets the listed criteria for the diagnosis or is medically equivalent to the 6 criteria of the diagnosis, he is conclusively presumed to be disabled, without considering age, 7 education and work experience. 20 C.F.R. § 404.1520(d). Here, the ALJ determined that Plaintiff 8 did not have an impairment or combination of impairments that meets the listings. AR 24-26. Before proceeding to step four, the ALJ must determine the claimant’s Residual Function 10 Capacity (“RFC”). 20 C.F.R. § 404.1520(e). RFC refers to what an individual can do in a work 11 United States District Court Northern District of California 9 setting, despite mental or physical limitations caused by impairments or related symptoms. 20 12 C.F.R. § 404.1545(a)(1). In assessing an individual’s RFC, the ALJ must consider all of the 13 claimant’s medically determinable impairments, including the medically determinable 14 impairments that are nonsevere. 20 C.F.R. § 404.1545(e). Here, the ALJ determined that Plaintiff 15 has the RFC to perform a full range of work at all exertional levels but non-exertionally would be 16 limited to unskilled tasks and should avoid dealing with the general public in performing her 17 primary duties of the job. AR 26. 18 The fourth step of the evaluation process requires that the ALJ determine whether the 19 claimant’s RFC is sufficient to perform past relevant work. 20 C.F.R. §§ 404.1520(a)(4)(iv); 20 404.1520(f). Past relevant work is work performed within the past 15 years that was substantial 21 gainful activity, and that lasted long enough for the claimant to learn to do it. 20 C.F.R. § 22 404.1560(b)(1). If the claimant has the RFC to do his past relevant work, the claimant is not 23 disabled. 20 C.F.R. § 404.1520(a)(4) (iv). Here, the ALJ determined that Plaintiff was not 24 capable of performing past relevant work through her date last insured. AR 30 (past relevant work 25 included medical assistant, emergency medical technician, lab technician, phlebotomist, and 26 veterinary technician). 27 28 In the fifth step of the analysis, the burden shifts to the Commissioner to prove that there 3 1 are other jobs existing in significant numbers in the national economy which the claimant can 2 perform consistent with the claimant’s RFC, age, education, and work experience. 20 C.F.R. §§ 3 404.1520(g), 404.1560(c). The Commissioner can meet this burden by relying on the testimony of 4 a vocational expert or by reference to the Medical-Vocational Guidelines at 20 C.F.R. Pt. 404, 5 Subpt. P, App. 2. Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006). Here, based on 6 the testimony of the vocational expert, Plaintiff’s age, education, work experience, and RFC, the 7 ALJ determined that Plaintiff could perform work as a janitor, laundry worker II, 8 cleaner/housekeeper, and that each of these positions existed in significant numbers in the national 9 economy. AR 30-31. 10 B. Although there are voluminous treatment records from Plaintiff’s treating physicians in the 11 United States District Court Northern District of California Medical Evidence of Record 12 AR, there is no evidence that any of Plaintiff’s treating physicians submitted to the SSA medical 13 source statements or RFC Assessments regarding Plaintiff. Two SSA consultants reviewed 14 Plaintiff’s medical records: one reviewed records through October 2012, and the second reviewed 15 records through May 2013. After Plaintiff attended her hearing before the ALJ, she underwent 16 psychological testing with SSA consulting examiner Dr. Janine Marinos, Ph.D. No medical expert 17 testified at the hearing. 18 C. ALJ’s Decision and Plaintiff’s Appeal On November 3, 2014, the ALJ issued an unfavorable decision finding that Plaintiff was 19 20 not disabled. AR 18-36. This decision became final when the Appeals Council declined to review 21 it on April 4, 2016. AR 1-6. Having exhausted all administrative remedies, Plaintiff commenced 22 23 24 25 26 27 28 this action for judicial review pursuant to 42 U.S.C. § 405(g) on June 6, 2016. See Compl. Plaintiff filed the present Motion for Summary Judgment on October 25, 2016. Mot., Dkt. No. 18. On January 26, 2017, Defendant filed a Cross-Motion for Summary Judgment. Cross-Mot., Dkt. No. 25. LEGAL STANDARD This Court has jurisdiction to review final decisions of the Commissioner pursuant to 42 4 1 U.S.C. § 405(g). The ALJ’s decision must be affirmed if the findings are “supported by 2 substantial evidence and if the [ALJ] applied the correct legal standards.” Holohan v. Massanari, 3 246 F.3d 1195, 1201 (9th Cir. 2001) (citation omitted). “Substantial evidence means more than a 4 scintilla but less than a preponderance” of evidence that “a reasonable person might accept as 5 adequate to support a conclusion.” Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) 6 (quoting Flaten v. Sec’y of Health & Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995)). The 7 court must consider the administrative record as a whole, weighing the evidence that both supports 8 and detracts from the ALJ’s conclusion. McAllister v. Sullivan, 888 F.2d 599, 602 (9th Cir. 1989). 9 However, “where the evidence is susceptible to more than one rational interpretation,” the court must uphold the ALJ’s decision. Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). 11 United States District Court Northern District of California 10 Determinations of credibility, resolution of conflicts in medical testimony, and all other 12 ambiguities are to be resolved by the ALJ. Id. Additionally, the harmless error rule applies where substantial evidence otherwise supports 13 14 the ALJ’s decision. Curry v. Sullivan, 925 F.2d 1127, 1131 (9th Cir. 1990). A court may not 15 reverse an ALJ’s decision on account of an error that is harmless. Molina v. Astrue, 674 F.3d 16 1104, 1111 (9th Cir. 2012) (citing Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1055-56 17 (9th Cir. 2006)). “‘[T]he burden of showing that an error is harmful normally falls upon the party 18 attacking the agency’s determination.’” Id. (quoting Shinseki v. Sanders, 556 U.S. 396, 409 19 (2009)). DISCUSSION 20 Plaintiff argues the ALJ erred in three ways. First, the ALJ erred in giving little weight to 21 22 the opinion of consulting expert Dr. Marinos. Second, the ALJ erred in finding Plaintiff’s 23 testimony not entirely credible. Finally, the ALJ erred in failing to consider all of Plaintiff’s 24 limitations at Step 5 of the sequential evaluation analysis. 25 A. Dr. Marinos 26 1. 27 Physicians opining about a claimant’s condition “may render medical, clinical opinions, or 28 Applicable Standard 5 1 they may render opinions on the ultimate issue of disability—the claimant’s ability to perform 2 work.” Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (citation omitted). “Generally, the 3 opinions of examining physicians are afforded more weight than those of non-examining 4 physicians, and the opinions of examining non-treating physicians are afforded less weight than 5 those of treating physicians.” Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007) (citing 20 C.F.R. § 6 404.1527(d)(1)-(2)); see also 20 C.F.R. § 404.1527(d). 7 In order to reject the “uncontradicted opinion of a treating or examining doctor, an ALJ must state clear and convincing reasons that are supported by substantial evidence.” Ryan v. 9 Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) (quotation and citation omitted). “If a 10 treating or examining doctor’s opinion is contradicted by another doctor’s opinion, an ALJ may 11 United States District Court Northern District of California 8 only reject it by providing specific and legitimate reasons that are supported by substantial 12 evidence.” Id. (citation omitted). An ALJ can satisfy the “substantial evidence” requirement by 13 “setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating 14 his interpretation thereof, and making findings.” Reddick, 157 F.3d at 725. “The ALJ must do 15 more than offer [] conclusions. He must set forth his own interpretations and explain why they, 16 rather than the doctors’, are correct.” Id. (citation omitted). 17 An ALJ errs when he or she does not explicitly reject a medical opinion or set forth 18 specific, legitimate reasons for crediting one medical opinion over another. See Nguyen v. Chater, 19 100 F.3d 1462, 1464 (9th Cir. 1996). In other words, it is error for an ALJ not to offer a 20 substantive basis before assigning little weight to the medical opinion. See id. Generally, the SSA 21 will give greater weight to an opinion that is more consistent with the record as a whole. 20 22 C.F.R. § 416.927(c)(4). 23 2. Analysis 24 During the May 2014 hearing, the ALJ and Plaintiff’s counsel discussed referring Plaintiff 25 to an SSA examiner, and counsel asked whether the examiner would address the fact that 26 Plaintiff’s date last insured (“DLI”) had expired on December 31, 2013. See AR 79-80. The ALJ 27 stated “I don’t know if they would do it directly. It’s not – it’s four months. It’s not completely 28 6 1 remote.” AR 79. The ALJ observed that “if it was a remote date I think I would be in agreement 2 that [the evaluation is] probably not fruitful for anyone . . . . [W]ith the background, there’s 3 enough. And getting some historic context from her. They can flesh things out. So it would still 4 have some value, I think.” AR 80. Dr. Marinos, an SSA psychological consultant, examined Plaintiff on July 8, 2014. AR 29 5 (citing Exhibit 10F (AR 981-984)). Dr. Marinos states she received no records to review and her 7 evaluation is based on information obtained “solely” from Plaintiff. AR 981. Dr. Marinos 8 summarized Plaintiff’s personal, employment, medical, and psychiatric histories, and listed 9 approximately twenty medications Plaintiff was currently taking for her physical and mental 10 conditions. AR 981-82. Dr. Marinos observed that the evaluation “was limited in scope and 11 United States District Court Northern District of California 6 based on a single, time-limited session of client contact. With these significant limitations in 12 mind,” Dr. Marinos diagnosed Plaintiff with depressive disorder not otherwise specified (“NOS”), 13 bereavement (Plaintiff’s father passed away in February 2014), and “borderline personality 14 disorder, by history.” AR 71, 984. She noted Plaintiff’s scores on the evaluation “ranged from 15 high average to mildly impaired[;]” that Plaintiff’s “[i]mmediate recall for short stories fell in the 16 moderately/severely-impaired range; on delayed testing, she scored in the severely-impaired 17 range. Visual memory ranged from moderately impaired (immediate) to moderately-severely 18 impaired (delayed). She scored in the borderline range on Trails A and B.” AR 984. Dr. Marinos 19 assigned Plaintiff a GAF score of 41-502, and concluded that “[b]ased on the current evaluation, it 20 seems doubtful that the claimant would be able to maintain competitive employment at this time. 21 [Plaintiff] noted that she benefitted from DBT [dialectical behavior therapy] in the past and 22 23 24 25 26 27 28 2 “A Global Assessment of Functioning [‘GAF’] score is the clinician’s judgment of the individual’s overall level of functioning. It is rated with respect only to psychological, social, and occupational functioning, without regard to impairments in functioning due to physical or environmental limitations. See American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (“DSM–IV”) at 32 (4th Ed. 2000). A GAF score of 41–50 indicates ‘[s]erious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job).’ DSM–IV at 34.” Thomas v. Astrue, 2009 WL 151488, at *3 n.5 (C.D. Cal. Jan. 21, 2009) (capitalization in original). 7 1 recently started another program. Hopefully, her condition will improve with treatment, but she 2 will always be vulnerable to depressive episodes and have difficulty coping with stress and 3 interacting appropriately with others due to her personality structure.” AR 61-62, 984. 4 The ALJ gave little weight to Dr. Marinos’ opinion for a number of reasons: Dr. Marinos 5 examined Plaintiff approximately seven months after her DLI and did not review any of Plaintiff’s 6 medical records; many of Dr. Marinos’ findings did not support her conclusion that Plaintiff 7 would experience work-preclusive mental limitations; and her opinion was inconsistent with the 8 medical evidence as a whole, which demonstrates Plaintiff typically displayed no recurring 9 abnormalities on mental status examination aside from abnormal mood and affect that Plaintiff realized benefited from medication and treatment. AR 30. The ALJ instead gave “great weight” 11 United States District Court Northern District of California 10 to the State agency psychologists who reviewed a “sizeable portion of the medical evidence”—but 12 significantly did not review Dr. Marinos’ opinions, and never examined Plaintiff. AR 29. 13 The ALJ erred in discounting Dr. Marinos’ opinion. First, the ALJ erred in not correcting 14 the SSA’s failure to provide Plaintiff’s medical records to Dr. Marinos. The ALJ explicitly 15 premised her belief about the utility of an examination on the examiner’s review of Plaintiff’s 16 records (AR 79-80), but did not ensure those records were transmitted to Dr. Marinos. Second, 17 the fact the examination took place after the DLI does not necessarily render the examination 18 irrelevant: “[M]edical evaluations made after the expiration of a claimant’s insured status are 19 relevant to an evaluation of the preexpiration condition.” Taylor v. Comm’r of Soc. Sec. Admin., 20 659 F.3d 1228, 1232 (9th Cir. 2011) (quoting Lester v. Chater, 81 F.3d 821, 832 (9th Cir. 1996)). 21 The ALJ does not explain why an examination taking place seven months after the DLI was too 22 remote in time to be useful, especially when she stated an examination performed four months 23 after the DLI would “have some value” (AR 79-80). Third, the opinion of an examining physician 24 generally is entitled to greater weight than the opinion of a non-examining physician (Ryan, 528 25 F.3d at 1198), and the “opinion of a non-examining physician cannot by itself constitute 26 substantial evidence that justifies the rejection of the opinion of either an examining physician or a 27 treating physician (Lester, 81 F.3d at 831). Here, Dr. Marinos’ findings regarding Plaintiff’s 28 8 1 underlying diagnoses were corroborated by Plaintiff’s treating psychologist Dr. James Goetz and 2 treating psychiatrist Dr. Guy Guillon (see, e.g., AR 360, 486, 493), and were based on in-person 3 examination and psychological testing. The ALJ did not identify any other psychological 4 examination that contradicted Dr. Marinos’ findings; she only identified treatment notes 5 documenting routine mental status examinations (“MSE”). There is no evidence in the record that 6 MSE would document symptoms of borderline personality disorder that are likely to interfere with 7 an individual’s ability to work. On the contrary, Dr. Marinos also documented many normal 8 findings in the MSE she conducted, but still found it doubtful Plaintiff would be able to maintain 9 competitive employment. AR 982 (Plaintiff casually dressed and groomed; gait unremarkable; eye contact fair to poor; alert and fully oriented; good recall; did well on digit span but 11 United States District Court Northern District of California 10 concentration fluctuated on other tasks; speech fluent and clear; comprehension grossly intact; 12 affect restricted and mood depressed; denied auditory or visual hallucinations; thinking slow but 13 linear and goal-directed; insight and judgment fair), 984. The SSA non-examining physicians on 14 whom the ALJ based her conclusion did not review the results of Dr. Marinos’ psychological 15 testing—they only reviewed Plaintiff’s medical records through October 2012 (Dr. Bradley, Ex. 16 1/A) and May 2013 (Dr. Weiss, Ex. 3/A). Fourth, the ALJ erred in “just counting ‘normal’ 17 findings to hold up against the ‘abnormal ones’ without any explanation of relevance . . . . the 18 ALJ’s mere listing of other findings without any discussion of how or why they diminish 19 significant and abnormal findings noted by Dr. Marinos provides no substantive basis for the 20 ALJ’s conclusion” (Mot. at 4). The ALJ erred by not explaining how the normal findings were 21 inconsistent with the abnormal findings in light of Plaintiff’s underlying conditions, and how the 22 abnormal findings in and of themselves were insufficient to support Dr. Marinos’ conclusion that 23 Plaintiff had “work-preclusive mental limitations.” AR 29. As described above, Dr. Marinos also 24 made many “normal” findings when she conducted an MSE on Plaintiff, and still found Plaintiff 25 would be unlikely to hold competitive employment. An ALJ must do more than simply “identify 26 conflicting evidence;” she must explain how the normal findings conflicted with Dr. Marinos’ 27 conclusion. See Ann Cox v. Colvin, 2015 WL 8596436, at *15 (N.D. Cal. Dec. 14, 2015) (citation 28 9 1 omitted). Finally, there was no medical opinion in the record supporting the ALJ’s weighing of 2 Dr. Marinos’ psychological testing, whether from an SSA consultant or a medical expert. The 3 ALJ may be able to articulate legally-sufficient reasons for giving little weight to Dr. Marinos’ 4 opinion on remand, but the reasons she articulated in her decision are not supported by substantial 5 evidence. In addition to finding the ALJ erred in giving little weight to the opinion of Dr. Marinos, 6 7 the undersigned notes the record was not sufficiently developed. There is no evidence Plaintiff’s 8 treating physicians provided medical source statements or completed RFC Assessments for 9 Plaintiff, and no medical expert testified at the hearing regarding the impact of borderline personality disorder and depression on Plaintiff’s ability to perform work on a consistent basis. 11 United States District Court Northern District of California 10 An “ALJ should not be a mere umpire during disability proceedings, but must scrupulously and 12 conscientiously probe into, inquire of, and explore for all relevant facts.” Widmark v. Barnhart, 13 454 F.3d 1063, 1068 (9th Cir. 2006) (citation and quotation marks omitted); see also Smolen v. 14 Chater, 80 F.3d 1273, 1288 (9th Cir. 1996) (“[T]he ALJ has a special duty to fully and fairly 15 develop the record and to assure that the claimant’s interests are considered.” (internal quotation 16 marks omitted)). This duty is “especially important” in cases involving disabilities based on 17 mental health conditions. See DeLorme v. Sullivan, 924 F.2d 841, 849 (9th Cir. 1991). 18 B. Plaintiff’s Credibility 19 1. Applicable Standard 20 Where there is no showing that a claimant is malingering, and where the record includes 21 objective medical evidence establishing that a claimant suffers from an impairment that could 22 reasonably produce the symptoms complained of, an ALJ can only make an adverse credibility 23 finding based on substantial evidence under the “clear and convincing” standard. See Carmickle v. 24 Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1160 (9th Cir. 2008) (citing Lingenfelter v. Astrue, 504 25 F.3d 1028, 1036 (9th Cir. 2007)). There ALJ did not indicate she believed Plaintiff was 26 malingering. The ALJ’s adverse credibility finding therefore must be based on clear and 27 convincing substantial evidence. In addition, “the ALJ must identify what testimony is not 28 10 1 credible and what evidence undermines the claimant’s complaints.” Lester, 81 F.3d at 834; see 2 also Brown-Hunter v. Colvin, 806 F.3d 487, 489, 492-94 (9th Cir. 2015) (“To ensure that our 3 review of the ALJ’s credibility determination is meaningful, and that the claimant's testimony is 4 not rejected arbitrarily, we require the ALJ to specify which testimony she finds not credible, and 5 then provide clear and convincing reasons, supported by evidence in the record, to support that 6 credibility determination.”). 7 An ALJ may consider numerous factors when weighing a claimant’s credibility, including “inconsistencies either in [claimant’s] testimony or between [his] testimony and [his] conduct, 9 [claimant’s] daily activities, . . . and testimony from physicians . . . regarding the nature, severity, 10 and effect of the symptoms of which [claimant] complains.” Thomas, 278 F.3d at 958-59 (internal 11 United States District Court Northern District of California 8 quotation marks and citations omitted). If the ALJ’s credibility finding is supported by substantial 12 evidence in the record, the Court may not engage in second-guessing. Id. 13 2. Analysis 14 The ALJ found Plaintiff’s allegations regarding her limitations “to be less than fully 15 credible” based on: grossly normal mental status examination findings by Drs. Guillon, Joiner, 16 Goetz, and Holmberg (AR 26-27); Plaintiff’s noncompliance with recommended treatment despite 17 evidence that treatment helped symptoms (AR 28); Plaintiff’s activities of daily living that were 18 ostensibly inconsistent with claims she was totally disabled (AR 28); and Plaintiff’s testimony she 19 stopped working because she became dissatisfied and bored with jobs, rather than because she was 20 “unable” to perform these jobs (AR 29). 21 i. Mental Status Examinations 22 The ALJ erred in relying entirely on her own interpretation of treaters’ notes describing 23 mental status examinations. See 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.00(C)(3) (“We must 24 exercise great care in reaching conclusions about your ability or inability to complete tasks under 25 the stresses of employment during a normal workday or work week based on a time-limited 26 mental status examination or psychological testing by a clinician . . . .”). There is no evidence in 27 the record that a MSE would capture the symptoms that would preclude an individual with 28 11 1 borderline personality disorder from working. As discussed above, the fact Dr. Marinos noted 2 many normal findings in Plaintiff’s MSE did not preclude her from concluding Plaintiff was 3 severely limited. The ALJ’s reliance on the mental status examinations thus does not constitute 4 clear and convincing substantial evidence. 5 6 ii. Noncompliance with Recommended Treatment & Testimony The Ninth Circuit has remarked that “it is a questionable practice to chastise one with a mental impairment for the exercise of poor judgment in seeking rehabilitation.” Nguyen v. Chater, 8 100 F.3d 1462, 1465 (9th Cir. 1996) (citation omitted); see also Pates-Fires v. Astrue, 564 F.3d 9 935, 945 (8th Cir. 2009) (“[A] mentally ill person’s noncompliance with psychiatric medications 10 can be, and usually is, the result of the mental impairment itself, and therefore neither willful nor 11 United States District Court Northern District of California 7 without a justifiable excuse.” (collecting cases; internal citations and quotation marks omitted)). 12 “[W]e do not punish the mentally ill for occasionally going off their medication when the record 13 affords compelling reason to view such departures from prescribed treatment as part of claimants’ 14 underlying mental afflictions.” Garrison v. Colvin, 759 F.3d 995, 1018 n.24 (9th Cir. 2014) 15 (citing cases). The ALJ did not evaluate whether Plaintiff’s noncompliance with treatment was 16 the result of her diagnosed borderline personality disorder or depression. By failing to do so, the 17 ALJ improperly punished Plaintiff for exercising poor judgment in seeking rehabilitation. 18 iii. Activities of Daily Living 19 The ability to “perform various household chores such as cooking, laundry, washing 20 dishes, and shopping” may constitute a clear and convincing reason to discount a claimant’s 21 testimony. Thomas, 278 F.3d at 959; see also Burch, 400 F.3d at 681 (ALJ may consider 22 activities of daily living when evaluating claimant’s credibility). The ALJ found Plaintiff’s ability 23 to drive, reside alone, perform light housework, shop for groceries, and care for her elderly father 24 suggested that Plaintiff retained “a far greater degree of functionality that she alleged in 25 connection with her application for social security benefits.” AR 28. The ALJ does not 26 acknowledge the evidence that Plaintiff lived alone in a cabin on her mother’s property, that the 27 cabin lacked running water so that Plaintiff had to visit her mother’s house to shower, and that she 28 12 1 did so every couple of weeks when she was not working because she could not motivate herself to 2 do it more frequently (AR 41-43, 72-73); that Plaintiff received a cooked meal from a charitable 3 organization once a week and otherwise ate “crackers, cheese or candy” (AR 73-74; see also AR 4 267 (Plaintiff eats sandwiches; does not cook often)); and that Plaintiff drove only once per week 5 and performed all her errands at once (AR 67-68; but see AR 268 (Plaintiff drives to go shop 6 every other day when she is able to do so)). The ALJ also fails to acknowledge Plaintiff’s 7 testimony that she showered for the hearing, and does not acknowledge that Plaintiff also may 8 have found the motivation to shower for periodic appointments at which she was noted to have 9 proper hygiene. AR 28, 72-73; see also AR 266 (stating psychiatric symptoms often interfere with her ability to keep up with personal care, and that she has been treated for infections due to 11 United States District Court Northern District of California 10 hygiene failures). 12 While activities of daily living “may be grounds for discrediting the claimant’s testimony 13 to the extent that they contradict claims of a totally debilitating impairment” (Molina, 674 F.3d at 14 1113), those activities the ALJ identified hardly contradict Plaintiff’s claims. As the Ninth Circuit 15 has noted, “[t]he critical differences between activities of daily living and activities in a full-time 16 job are that a person has more flexibility in scheduling the former than the latter, can get help from 17 other persons . . . and is not held to a minimum standard of performance, as she would be by an 18 employer. The failure to recognize these differences is a recurrent, and deplorable, feature of 19 opinions by administrative law judges in social security disability cases.” Garrison, 759 F.3d at 20 1016 (internal quotation marks and citation omitted). The ALJ failed to recognize that Plaintiff’s 21 activities of daily living did not reflect Plaintiff’s ability to work on a consistent basis. 22 23 iv. Testimony The ALJ discounted Plaintiff’s credibility because she testified she quit jobs because she 24 was “bored” or “dissatisfied” rather than because she was “unable” to perform them. AR 29. But 25 again, the ALJ failed to evaluate whether these reactions were caused by Plaintiff’s documented 26 mental conditions. This was error, as it would punish Plaintiff for the very conditions she alleges 27 are disabling. See supra. 28 13 1 2 C. Failure to Account for Migraine Headaches The ALJ found Plaintiff’s headaches more than minimally limited Plaintiff’s ability to perform basic work-related tasks, including interacting with the public (AR 30), but found that, on 4 balance, the evidence was inconsistent with Plaintiff’s allegations her migraines caused entirely 5 work-preclusive restrictions as of December 31, 2013 (AR 28). In reaching this conclusion, the 6 ALJ relied on the fact Plaintiff admitted appreciable benefits from steroid injections on multiple 7 occasions, Plaintiff made no regular complaints of headaches between December 2010 and mid- 8 June 2012, and her treaters did not recommend neurological care until October 2012. AR 28. 9 This reasoning does not address the severity of Plaintiff’s migraines between mid-June 2012 and 10 her DIL of December 2013—well over one year. Between June 2012 and her DIL, Plaintiff was 11 United States District Court Northern District of California 3 diagnosed as suffering from migraines and prescribed a number of medications to address her 12 symptoms, including oxycodone and morphine injections. See AR 408-09 (April 2013), 415 13 (March 2013), 441-42 (January 2013), 594-95 (May 2013), 609 (April 2013), 612 (April 2013), 14 744-46 (June 2012). There is evidence Plaintiff’s migraine medication exacerbate her depression. 15 AR 63-64, 70. If migraines caused Plaintiff to be absent “two or more” days per month, the VE 16 testified that Plaintiff would not be employable. See AR 91-92. The brief reasoning the ALJ 17 articulated for not including absenteeism based on Plaintiff’s migraines (including side effects 18 from the medications) in her RFC is not based on substantial evidence. 19 20 CONCLUSION For the reasons stated above, the Court finds the ALJ erred in giving little weight to Dr. 21 Marinos’ opinion, in failing to develop the record, in finding Plaintiff not entirely credible, and in 22 failing to fully consider the impact of Plaintiff’s migraines after June 2012. “Remand for further 23 proceedings is appropriate where there are outstanding issues that must be resolved before a 24 disability determination can be made, and it is not clear from the record that the ALJ would be 25 required to find the claimant disabled if all the evidence were properly evaluated.” Taylor, 659 26 F.3d at 1235 (reversing and remanding for the consideration of new evidence instead of awarding 27 benefits). For these reasons, and because the ALJ failed to fully and fairly develop the record 28 14 1 when evaluating Plaintiff’s disability claim, the Court GRANTS Plaintiff’s Motion for Summary 2 Judgment, DENIES Defendant’s Cross-Motion for Summary Judgment, and REVERSES the 3 ALJ’s decision. This case is REMANDED for further administrative proceedings in accordance 4 with this Order. 5 6 7 8 IT IS SO ORDERED. Dated: May 12, 2017 ______________________________________ MARIA-ELENA JAMES United States Magistrate Judge 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15

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