Molina v. Colvin

Filing 22

ORDER by Judge Laurel Beeler denying 17 Motion for Summary Judgment; granting 18 Motion for Summary Judgment.The court denies Mr. Molina's motion for summary judgment and grants the Commissioner's cross-motion for summary judgment. (lblc1S, COURT STAFF) (Filed on 6/28/2017)

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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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SEAN MOLINA
Plaintiff,

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v.

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NANCY A. BERRYHILL,

Case No. 3:16-cv-05262-LB
ORDER DENYING PLAINTIFF’S
MOTION FOR SUMMARY JUDGMENT
AND GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT
Re: ECF Nos. 17 & 18

Defendant.

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INTRODUCTION

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Sean Molina moves for summary judgment, seeking judicial review of a final decision by the

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Commissioner of the Social Security Administration (“Commissioner”) denying his Supplemental

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Security Income (“SSI”) disability benefits under Title XVI of the Social Security Act.1 Under

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Civil Local Rule 16-5, the matter is deemed submitted for decision by this court without oral

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argument. All parties have consented to magistrate jurisdiction.2
The court denies Mr. Molina’s motion and grants the Commissioner’s cross-motion for

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summary judgment.

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Motion for Summary Judgment ‒ ECF No. 17 at 1. 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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Consent Forms ‒ ECF Nos. 9, 10.

ORDER — No. 16-cv-05262-LB

STATEMENT

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1. Procedural History
In March 2012, Sean Molina, then age 42, filed a disability claim under Title XVI of the

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Social Security Act, alleging mental and physical impairments beginning on June 1, 2007, which

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was later amended to March 22, 2012.3 The Commissioner denied his claims initially and upon

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reconsideration.4 Mr. Molina timely appealed to Administrative Law Judge Mary Parnow (the

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“ALJ”).5 The ALJ held a hearing and heard testimony from Mr. Molina (represented by counsel),

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Angelina Collaco (the mother of his children), and a vocational expert.6 The ALJ issued an

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unfavorable decision on March 5, 2015.7 Mr. Molina appealed to the Appeals Council,8 which

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denied review.9 Mr. Molina timely filed this action and moved for summary judgment or in the

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United States District Court
Northern District of California

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alternative for remand to the ALJ for further consideration.10 The Commissioner responded and

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filed a cross-motion for summary judgment,11 and Mr. Molina replied.12

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2. Summary of Record and Administrative Findings
2.1 Medical Records

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2.1.1 Dr. Kayman: Treating Physician
On February 17, 2012, Mr. Molina was seen by Joshua Kayman, M.D.,13 who noted that Mr.

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Molina’s initial chief complaint was marital difficulties.14 Dr. Kayman treated Mr. Molina for four

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Administrative Record (“AR”) 37, 79; cf. AR 171 (noting April 4, 2012 filing date).

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AR 19.

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AR 106.

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AR 34‒64.

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AR 16‒29.

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AR 248.

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AR 1.

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Motion for Summary Judgment ‒ ECF No. 17 at 19.

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Cross-Motion ‒ ECF No. 18.

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Reply ‒ ECF No. 21.

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AR 280‒82.

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AR 280. Although the record is inconsistent, it appears that Mr. Molina and Ms. Collaco, the mother

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ORDER — No. 16-cv-05262-LB

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sessions between February 2012 and July 2012.15 Almost two years later, in late June 2014,

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shortly before the ALJ hearing ,Dr. Kayman saw Mr. Molina one time and prepared a letter and a

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mental-impairment questionnaire for Mr. Molina.16

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In February 2012, Dr. Kayman diagnosed Mr. Molina with PTSD.17 Mr. Molina reported that

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his “attitude sometimes was snappy” and that due to his prior gang affiliation, he was “scared all

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the time” because he was “high up” in the gang and “a threat to the organization because he knows

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a lot.”18 As a result, Mr. Molina reported that he “[s]leeps poorly,” “[a]voids people,” “[h]as

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nightmares that he doesn’t remember,” has flashbacks, and “[h]as seen horrible violence.”19 Even

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though he reported leaving the gang about 10 years earlier, he said that there were still guys
“‘hunting for him’”20 Mr. Molina said that while he did not feel “unsafe” in his house, he was

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Northern District of California

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“really worried.”21 He also recounted being severely assaulted eight months earlier (in June

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2011).22

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He reported “do[ing] construction” and working briefly as a truck driver but having to quit.23

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He gets “angry” and feels “invisible” because he “can’t support [his] family” and argues with his

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spouse “over tiny things,” but denied ever hitting her and reported that he “raised” and takes “care

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of the kids” while his wife works as a medical administrator and pursues a nursing degree.24

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of his two children, are not married though he reported being married for 12 years (since 2000).
Compare AR 281, with AR 36. For ease of reference, the court generally will refer to Ms. Collaco as
his “spouse.”

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AR 277‒82.

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AR 351, 352‒54, 355‒56.

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AR 281.

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AR 280.

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Id.

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Id.

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Id.

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Id.

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Id.

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AR 280‒81.

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ORDER — No. 16-cv-05262-LB

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Mr. Molina reported a troubled personal history, noting that he was abused in foster care, sent

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to California Youth Authority at age 13, and subsequently was incarcerated repeatedly for more

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than half of his life until age 32.25 He reported that he had never been hospitalized for psychiatric

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treatment, but saw a psychiatrist 15 years ago and took Zoloft while in prison.26 He reported some

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suicidal ideation but “never made [an] attempt.”27 He denied any substance abuse, but indicated

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that he used marijuana once a week and drank alcohol a few times a year.28 Mr. Molina claims to

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have been hit in the head “a lot” while in prison, but never “with loss of consciousness.”29

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In his “Mental Status Exam,” Dr. Kayman noted that Mr. Molina’s appearance was “[f]airly

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well groomed,” his behavior was “[n]ormal gait[, n]o tremor,” his speech rate, tone, and volume
was “unremarkable,” and his insight and judgment were “fair.”30 His thought process was “[l]inear

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Northern District of California

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and goal directed,” and his thought content was without suicidal or homicidal ideation or auditory

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or visual hallucinations or obsession, but his mood was “anxious” and his affect was “tearful.”31

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Dr. Kayman found that Mr. Molina presented a “low/nil” suicide risk and that “[d]espite [his]

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history of psychological instability,” Mr. Molina was “accessing care appropriately,” establishing

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“a relationship with providers at this clinic, and making hopeful plans for the future.” 32 Dr.

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Kayman prescribed 25 mg of sertraline (Zoloft) daily with a goal of upping it to 200mg, social-

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worker help for anger management, and a four-week follow-up and a subsequent prescription for

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prazosin (for the nightmares).33

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AR 281.

AR 280. “Zoloft” is a brand name for Sertraline, a prescription medication used to treat depression,
anxiety, PTSD, and other ailments. See PubMed Health, Sertraline (By Mouth),
https://www.ncbi.nlm.nih.gov/pubmedhealth/PMHT0012108/ (last visited June 22, 2017).
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Id.

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Id.

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AR 281.

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Id.

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Id.

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Id.

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See AR 281‒82; see also AR 277‒78 (noting Prazosin “to address ongoing nightmares”).

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ORDER — No. 16-cv-05262-LB

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One month later, in March 2012, Dr. Kayman saw Mr. Molina again, noting that Mr. Molina

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“[f]elt a little more relaxed” although he was still having “sleep problems.”34 Dr. Kayman’s

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findings on Mr. Molina’s “Mental Status Exam” remained unchanged from his prior exam.35 Dr.

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Kayman reported that Mr. Molina was “[d]oing better on [Z]oloft.”36 Dr. Kayman listed Mr.

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Molina with a GAF score of 55.37 Dr. Kayman increased Mr. Molina’s Zoloft dosage to 50 mg per

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day and started Mr. Molina on Prazosin.38
In May 2012, Dr. Kayman examined Mr. Molina a third time.39 Mr. Molina reported “sleeping

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better” with “[n]o nightmares,” although his spouse reported him “yelling in his sleep.”40 Dr.

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Kayman’s notations on Mr. Molina’s “Mental Status Exam” remained unchanged from his prior

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exams as did his assessment and GAF rating of Mr. Molina from the March exam.41 Dr. Kayman

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Northern District of California

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extended the follow-up exam period from four weeks to six to eight weeks and kept the Zoloft

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dosage at 50 mg per day.42

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AR 279.

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Compare AR 279, with AR 281.

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AR 279.

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 is a rough estimate of an individual’s psychological, social, and
occupational functioning used to reflect the individual’s need for treatment.”) (internal quotations
omitted). “A GAF score between 51 to 60 describes “moderate symptoms” or any moderate difficulty
in social, occupational, or school functioning. Although GAF scores, standing alone, do not control
determinations of whether a person’s mental impairments rise to the level of a disability (or interact
with physical impairments to create a disability), they may be a useful measurement.” Id. (internal
quotation marks omitted).
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AR 279; see also AR 278 (noting that Prazosin was “to address ongoing nightmares”). Prazosin has
been used “off label” in PTSD treatment and may help reduce stress and nightmares and improve
sleep. See Simon Kung, Zelde Espinel & Maria Lapid, Treatment of Nightmares with Prazosin: A
Systematic Review, Mayo Clinic Proceedings 2012 Sept. 87(9), 890–900, available at
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3538493/ (reviewing treatment of PTSD nightmares
with Prazosin).
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AR 278.

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Id.

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Id.

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42

Id.

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ORDER — No. 16-cv-05262-LB

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In July 2012, Dr. Kayman examined Mr. Molina again (for the last time in 2012).43 Mr.

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Molina reported that he had “left [his] welfare program when he felt disrespected.”44 As a result,

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Mr. Molina and his spouse could no longer “afford their place,” and his spouse “is going to live

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with [her] family” and he was going to live with an aunt in Stockton.45 Mr. Molina indicated that

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he had issues with some of his spouse’s family members and that he was “sad” to break up his

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family, but he wanted to avoid fighting with his spouse’s family in front of his children.46 Mr.

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Molina reported that he had stopped his medication, but had recently restarted it.47 He reported

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alcohol and marijuana use.48 He also reported some suicidal ideation during this period, but

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indicated that he is now “feeling better.”49 Dr. Kayman’s notations on Mr. Molina’s “Mental
Status Exam” remained unchanged from his prior exams except that his “Mood” notation changed

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Northern District of California

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from “anxious” to “angry” and his “Affect” from “tearful” to “mood congruent.”50 Dr. Kayman’s

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overall assessment remained unchanged as did his GAF scoring and the previously extended (six-

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to-eight week) follow-up exam interval.51
There are no treatment notes from Dr. Kayman or any other treatment records from July 2012

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until June 2014 and the record does not reflect that Mr. Molina sought or received any mental-

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health treatment during this interval.52 On June 26, 2014, almost two years after his last session

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with Mr. Molina, Dr. Kayman wrote a letter stating that Mr. Molina had returned to Dr. Kayman

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that day and that his condition was “significantly worse.”53 Dr. Kayman noted that Mr. Molina had

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Id.

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Id.

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Id.
Id.

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Id.

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Id.

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Id.

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AR 277.

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Id.

Compare id. (Dr. Kayman’s last treatment notes from July 11, 2012), with AR 351 (letter from Dr.
Kayman, noting that he treated Mr. Molina until October 2012, but with no treatment notes beyond
July 2012).
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AR 351.

ORDER — No. 16-cv-05262-LB

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lost weight, looked “disheveled,” had “increased anxiety” and continued to have “nightmares” that

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“cause disabling sleep problems,” and was “unable to interact appropriately with the general

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public due to his concern for his safety.”54 Dr. Kayman opined that that Mr. Molina’s “safety

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concerns are out of proportion to his actual level of risk.”55 Dr. Kayman noted that Mr. Molina had

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a “foreshortened sense of the future and suicidal ideation” and that he “believe[s] that [Mr.

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Molina] continues to be disabled and unable to work due to his mental illness.”56 On July 2, 2014,

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Dr. Kayman completed a mental-impairment questionnaire, finding that Mr. Molina had “marked”

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or “extreme” mental impairments in 10 of the 14 categories contained in the questionnaire and

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finding that those impairments would interfere with Mr. Molina’s concentration or pace of work

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for 50% of the work day and would cause him, on average, to miss more than 4 days per month.57

United States District Court
Northern District of California

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2.1.2 Dr. Rana: State Agency Examining Physician

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On August 6, 2012, Farah Rana, M.D., examined Mr. Molina and performed an internal-

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medicine consultative evaluation at the request of the State agency to assess his physical

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impairments.58 Mr. Molina reported three chief complaints: right shoulder pain, hiatal hernia, and

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PTSD/depression and anxiety.59 Dr. Rana reported that Mr. Molina indicated that “[h]e can do his

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day-to-day activities without any problem.”60 Mr. Molina stated that his right shoulder was injured

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during an assault.61 Although he did not seek immediate medical attention, he reported seeing a

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doctor several months later, who diagnosed a rotator-cuff injury.62 Mr. Molina said he was

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Id.

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Id.

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Id.

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AR 352‒53.

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AR 289‒91.

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AR 289.

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Id.

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Id.

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Id.

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ORDER — No. 16-cv-05262-LB

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prescribed exercises, but no surgery was recommended.63 Mr. Molina reported that his shoulder

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hurts when lifting or carrying heavy objects and that he sometimes feels numbness and tingling in

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his right arm and hand, but no neck pain.64 Dr. Rana noted “[n]o tenderness . . . on palpation in

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[the] right shoulder” and that “[r]ange of motion at both shoulder joints is within normal limits,”

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as were the range of motion in his other joints, which were “nontender” and without signs of any

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“localized inflammation or swelling.”65 Dr. Rana observed no muscle wasting in Mr. Molina’s

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right upper arm or forearm.66 Dr. Rana also noted a “well-healed” scar in Mr. Molina’s epigastric

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area and no visible hernia and normal bowel sounds, although Mr. Molina reported mild

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tenderness in the epigastric area, but no lower back tenderness.67
Dr. Rana reported that Mr. Molina (1) presented with right shoulder pain, but exhibited no

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Northern District of California

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tenderness or range of motion deficit in that area, (2) reported a history of hiatal hernia with post-

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repair surgeries, and (3) reported a history of PTSD/depression and anxiety.68 Dr. Rana found that

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Mr. Molina “does not have any sitting, standing or walking limitations” and “can carry 25 pounds

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frequently and 50 pounds occasionally[,] and this limitation is because of history of hiatal hernia

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and his right shoulder pain.”69 Dr. Rana noted no limitation in his ability to “handle, manipulate,

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feel, and finger objects” and found that he does not need any assistive device and can take public

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transportation.70

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Id.

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Id.

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AR 290.

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66

Id.

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Id.

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AR 291.

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69

Id.

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70

Id.

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ORDER — No. 16-cv-05262-LB

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2.1.3 Dr. Bodepudi: State Agency Examining Psychiatrist

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On August 13, 2012, Arudra Bodepudi, M.D., examined Mr. Molina and performed a

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psychological evaluation at the request of the State agency.71 Dr. Bodepudi noted that Mr. Molina

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reported a long history of criminal and gang-related activities and violence as well as repeated

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incarceration.72 Mr. Molina indicated that he could not “get a job because of his gang related

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tattoos” and his fear that he is on a “hit list” from his former gang colleagues and a target of rival

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gangs.73 He also reported a history of “being stabbed and shot several times.”74 Dr. Bodepudi

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noted that Mr. Molina last worked as a delivery driver, but was fired for slapping his boss.”75 Mr.

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Molina reported that he was born and raised in Stockton, California, but because of his gang
affiliations, he “moved to Oakland to be safer.”76 Mr. Molina indicated that he had a 10th-grade

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Northern District of California

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education and a GED and had never been hospitalized for any psychiatric conditions.77 Dr.

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Bodepudi noted that Mr. Molina’s chief complaints were “PTSD and Stress.”78

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Mr. Molina also stated that his “sleep, energy, appetite and weight are okay and [his] mood

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swings are between normal and sad.”79 Dr. Bodepudi noted that Mr. Molina was on Zoloft and

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another medication, has used marijuana “off and on” since his teens (but not while incarcerated),

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and had last used marijuana the previous week, but denied any abuse of alcohol, cocaine, heroin,

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amphetamines, or other narcotics.80 Dr. Bodepudi reported that Mr. Molina “is able to [do]

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everything that is needed in daily activities,” including dressing, doing laundry, watching TV,

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visiting with friends and family and other activities, but because he was living in a “transitional

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AR 292‒95.

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AR 292, 293, 295.

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AR 292.

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Id.

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Id.

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AR 293.

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Id.

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AR 292.

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AR 293.

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Id.

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ORDER — No. 16-cv-05262-LB

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facility,” he was not required to cook meals.81 Dr. Bodepudi found that Mr. Molina’s speech was

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mostly normal in “rate, tone and volume” and that he was able to converse “OK,” but was “at

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times . . . argumentative.”82 Dr. Bodepudi reported that Mr. Molina’s thought process was “[g]oal

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directed” and that Mr. Molina denied any suicidal or homicidal ideations or any delusions or

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paranoia.83 Mr. Molina was able to do “Calculations” with “ease,” and Dr. Bodepudi found Mr.

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Molina to be cognitively alert, with “Excellent” functioning in his “Fund of Knowledge,”

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“Similarities/Differences,” “Concentration,” “Abstraction,” and “Insight/Judgment.”84

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Dr. Bodepudi diagnosed Mr. Molina with “Cannabis induced mood disorder,” ruled out a

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mood-disorder diagnosis “due to general medical condition,” and assigned him a GAF of 70 and a

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“fair” prognosis.85

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Northern District of California

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Functionally, Dr. Bodepudi found “no impairment to perform work activities on a consistent

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basis” and “no impairment to understand/remember/complete” simple or complex instructions, but

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found “moderate impairment to interact appropriately with supervisors/coworkers/public” based

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on his history of “slapping his boss.”86

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2.1.4 Drs. Jacobson and Greene: State Agency Non-Examining Physicians

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In February 2013, Drs. Jacobson and Greene (both M.D.s) reviewed Mr. Molina’s claims of

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“PTSD; Depression; Anxiety; Irritable bowel syndrome: Back Pain; Insomnia; Damaged rotator

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cuff” and his medical history, including his treatment with Dr. Kayman and his examinations with

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Dr. Bodepudi and Dr. Rana.87 In assessing Mr. Molina’s physical impairments, Dr. Greene gave

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“great weight” and generally concurred with Dr. Rana’s conclusions that Mr. Molina’s physical

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AR 293‒94.

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AR 294.

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Id.

84

Id.

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AR 295.

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86

Id.

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87

AR 79‒90.

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ORDER — No. 16-cv-05262-LB

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residual functional capacity (“RFC”) enabled him to work but limited him to lifting a maximum of

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50 pounds with frequent lifting of 25 pounds.88
In his assessment of Mr. Molina’s mental residual functional capacity, Dr. Jacobson gave

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“great weight” to Dr. Bodepudi’s examination findings and noted that Mr. Molina had no

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limitation on understanding and memory and was able to “maintain complex instructions” during a

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40-hour workweek, but did have “moderate” social interaction limitations with the public, co-

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workers, and supervisors (but that his anger and irritation issues did not preclude such

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interactions).89

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2.1.5 Dr. Spivey: State Agency Examining Psychologist

United States District Court
Northern District of California

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On November 22, 2013, Patricia Spivey, Psy.D., examined Mr. Molina and performed a

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psychological examination at the State agency’s request.90 She noted that Mr. Molina reported a

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long history of criminal and gang-related activities, including being “very high up in the gang at

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one point.”91 As a result, Mr. Molina reported that he “was constantly in fear for his life” and

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experienced violent nightmares.92 Mr. Molina indicated that he was born and raised in Stockton,

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and was abused by his mother as a child and eventually placed in the California Youth

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Authority.93 He also reported having finished his GED in prison.94 After being paroled, Mr.

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Molina reported working at a meat company, but “that he did not get along with authority figures

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and [was] fired for slapping his boss.”95 Mr. Molina indicated that he had never been hospitalized

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for any psychiatric conditions.96

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88

AR 86‒87.

89

AR 87‒88.

90

AR 317‒20.

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91

AR 317.

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92

Id.

93

Id.

94

Id.

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95

Id.

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96

Id.

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ORDER — No. 16-cv-05262-LB

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Dr. Spivey noted that Mr. Molina’s chief complaint was “posttraumatic stress disorder.”97 Mr.

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Molina indicated that he was on Zoloft and “used marijuana daily for many years,” but denied any

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substance abuse.98 Dr. Spivey reported that Mr. Molina “can drive,” “can live alone,” “can clean

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the house and do laundry,” “can go to the store,” and “sometimes takes care of his children and

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takes them places.”99 Dr. Spivey noted that his speech was low and that he appeared to be

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“somewhat anxious,” but was “generally cooperative with testing and appeared to be giving a full

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effort.”100
Dr. Spivey ran a series of tests on Mr. Molina and concluded that “[c]ognitively [Mr. Molina]

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[was] well within normal limits,” noting that “[t]here does not appear to be any sign of a thought

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disorder,” but that his fears of attack by gang members “do not appear to be rational” and that his

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United States District Court
Northern District of California

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history and presentation was “suggestive of a personality disorder” based on his acknowledged

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“anger” issues and his worry about “snapping easily” especially around “his children.”101 Dr.

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Spivey concluded that “[t]here was nothing acute,” and she expected little change overtime.102
Dr. Spivey found no impairment in Mr. Molina’s ability to communicate verbally or in writing

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or to follow simple or complex instructions, or maintain adequate pace or persistence to complete

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simple tasks though potentially some “[m]ild” difficulties in his ability to maintain adequate pace

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and persistence to complete complex tasks or to adapt to changes in job routines.103 Dr. Spivey

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also found “[m]oderate” impairments in Mr. Molina’s ability to maintain adequate concentration,

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to withstand the stress of routine work, and to maintain emotional stability/predictability.104 Dr.

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Spivey also noted “[m]oderate” impairments in his ability to “interact appropriately with co-

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97

Id.

98

Id.

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99

AR 318.

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100

Id.

101

AR 319.

102

Id.

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103

Id.

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104

Id.

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ORDER — No. 16-cv-05262-LB

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workers, supervisors and the public on a daily basis.”105 Dr. Spivey also completed a “work

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activities” questionnaire where she noted that Mr. Molina had “moderate” impairments — defined

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in the questionnaire as “more than a slight limitation” but an area where “the individual is still able

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to function satisfactorily” — in his ability to carry out complex instructions or “make judgments

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on complex work-related decisions.”106 In this assessment form, Dr. Spivey also found that Mr.

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Molina would have “moderate” difficulties interacting with the public, co-works, or supervisors or

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responding to usual work situations or changes to routines.107

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2.1.6 Dr. Wiebe: Claimant’s Examining Psychologist

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On December 18, 2013, Katherine Wiebe, Ph.D., performed a psychological examination and

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Northern District of California

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various tests on Mr. Molina108at the referral of Mr. Molina’s attorney.109 Dr. Wiebe noted that Mr.

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Molina reported being beaten as a child by his mother and thereafter lived with various family

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members until ending up in a group home, where he was threatened and ran away, eventually

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being placed in the California Youth Authority.110 Mr. Molina reported that his mother visited him

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only once while he was in Youth Authority and then only to tell him that he was “no longer [her]

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son — you no longer exist.”111 In response to his mother’s abuse and abandonment, he attacked

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someone with a “lock in a sock” and was sent to a special section in the Youth Authority for “guys

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that are over 16 and out of control,” which he described as “gladiator school.”112 Thereafter he

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reported his involvement in gang-related activities and violence and numerous incarcerations.113

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105

AR 320.

106

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23

AR 321; compare AR 319, with AR 321 (for factors supporting this assessment, Dr. Spivey referred
back to her report even though that report found no impairment in Mr. Molina’s ability to “follow
complex instructions”).
107

AR 322.

24

108

AR 332‒50.

25

109

AR 332.

110

AR 333–34.

111

AR 334.

27

112

Id.

28

113

Id.

26

ORDER — No. 16-cv-05262-LB

13

1

Mr. Molina reported that, when not incarcerated, he has been with the mother of his two

2

children since 1998 and was living with her at the time of Dr. Wiebe’s evaluation.114 Dr. Wiebe

3

noted Mr. Molina’s numerous tattoos, which he “now considers[] ‘an embarrassment’” and tries to

4

hide or cover up, as he considers then to be a source of danger because they are linked to his prior

5

gang activity.115 Mr. Molina reported his continued estrangement with his mother and his trauma

6

over his father’s suicide in 1990.116 Mr. Molina noted his learning difficulties with math and

7

reading, and that he was now unclear whether he had actually received his GED, as he may be

8

“missing two credits.”117
Dr. Wiebe ran a series of tests and assessments on Mr. Molina and concluded that his

9

cognitive function, as measured by IQ, was “likely in the average to above average” range.118 Dr.

11
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Northern District of California

10

Wiebe found his “Attention/Concentration/Persistence” to be mildly impaired, his “[e]xecutive

12

[f]unctioning” to be normal, and his “[m]emory” to be “in the moderately to severely impaired

13

range,” but that “[o]verall, his performance suggests he is able to encode and store new

14

information with multiple repetitions of that information.”119 His “[l]anguage” “functioning is

15

normal,” but he was deemed “mildly impaired” on his “Visual/Spatial Abilities” based on being in

16

the “low range average” on one of the relevant tests.120 Based on evidence of his being tired and

17

Mr. Molina’s self-report of “being easily fatigued,” Dr. Wiebe found Mr. Molina to be mildly

18

impaired in his “Sensory/Motor Abilities,” “due to problems including insomnia, and depressive

19

fatigue.”121
On emotional functioning, Dr. Wiebe found Mr. Molina showed signs of “severe depression,”

20
21

with feelings of sadness, hopelessness, guilt, restlessness, disappointment, and suicidal thoughts,

22
114

Id.

115

Id.

24

116

Id.

25

117

AR 335.

118

AR 337.

119

AR 337–38.

27

120

AR 339.

28

121

Id.

23

26

ORDER — No. 16-cv-05262-LB

14

which he indicated “he would not carry out.”122 These feelings manifested themselves in low

2

energy, decreased appetite for food and other life activities, sleeping “somewhat less than usual,”

3

and difficulty keeping “his mind on anything for very long.”123 Dr. Wiebe also found that he

4

exhibited “moderate anxiety,” manifested by feelings of loss of control, nervousness, and “mild

5

difficulties” with “being unable to relax,” “lightheadedness,” “feeling terrified,” “indigestion,” and

6

other symptoms.124 Dr. Wiebe also noted that Mr. Molina had reported being previously diagnosed

7

with a “bipolar disorder” which manifested itself with periods (ranging from days to weeks) of

8

lethargy, excess sleep, hopelessness, and low motivation, followed by relatively “normal” periods

9

with his energy and mood and general functioning “feeling right” or “high energy periods” where

10

he is “sometimes” more productive than normal, but also sometimes more irritable.125 Mr. Molina

11
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1

also reported experiencing “racing” thoughts and that he would sometimes just “snap” getting

12

“mad” though he found the use of marijuana and music to be helpful.126 Mr. Molina reported to

13

Dr. Wiebe that although he was feeling “‘alright’” during the assessment, he had experienced a

14

wide range of positive and negative emotions in his life and he feared for himself and his family,

15

for whom he cared strongly, because of his past gang activities.127 Mr. Molina noted that he is a

16

“loner” and sometimes has “bad moods without having any reason,” but denied being abusive to

17

his children (of whom he is proud) and noted being hopeful “to a degree” about the future and that

18

“he likes himself.”128 Mr. Molina reported some trouble falling or staying asleep and frequent

19

nightmares, but denied having any trouble concentrating, reporting that he was a “planner” and

20

sometimes “concentrate[s] too much.”129 He also noted that he tries to “solve the problem before it

21

comes to a violent or bad . . . end” and stated that he is “grateful” for his “kids, [be]cause they

22

25
26
27
28

Id.
Id.

124

Id.

125

AR 340.

126

Id.

127

24

122
123

23

Id.

128

AR 341.

129

Id.

ORDER — No. 16-cv-05262-LB

15

1

make [him] think (before acting).”130 He noted that his “spouse” was studying for her nursing

2

degree but that Mr. Molina was struggling, doing “applications all day, (but) they say ‘no’.”131 Dr.

3

Wiebe went on to report that Mr. Molina has “feelings of guilt or worthlessness, reporting ‘since I

4

can’t get a job, can’t take care of my kids, can’t get them what they want [he cried quietly].’”132

5

Mr. Molina reported that he is “generally able to clean and cook, and [was] showering every

6

day,” but he avoids going to the store or does so “‘very quickly’” to avoid “other people.”133
Dr. Wiebe concluded that Mr. Molina had “psychiatric and personality disorder problems that

7
8

also affect his cognitive functioning.”134 Dr. Wiebe found that “Mr. Molina experiences

9

psychiatric symptoms including frequent nightmares, flashbacks, paranoia, anger reactivity,
insomnia, depression, anxiety, irritability, and fatigue” and that as a result he would likely

11
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10

experience difficulties “sustaining attention, pace, and persistence; and being able to attend to,

12

remember and follow through with directions and tasks in full-time employment.”135

13

Dr. Wiebe also found that his psychiatric symptoms also would likely “affect his ability to

14

relate to others” and would make it “difficult for him to communicate and interact effectively with

15

coworkers, supervisors, and the public in a work environment” and that his “insomnia, anxiety,

16

and depressive fatigue symptoms[] also may result in [Mr. Molina] being unable to reliably[]

17

maintain a regular work schedule.”136

18

Dr. Wiebe ruled out a variety of disorders, but diagnosed Mr. Molina with severe PTSD and

19

severe Major Depressive Disorder, assessing that “the combination of Mr. Molina’s psychiatric,

20

cognitive, and social functioning problems will make him likely unable to work in a full time job

21
22
23
130

Id.

24

131

Id.

25

132

AR 342.

133

AR 341.

134

AR 346.

27

135

Id.

28

136

AR 346‒47.

26

ORDER — No. 16-cv-05262-LB

16

1

for at least two years” and recommending “comprehensive psychological treatment and social

2

support.”137

3
2.2 Mr. Molina’s Testimony

5

Mr. Molina testified in support of his disability claim on July 24, 2014, and was questioned by

6

the ALJ and by his attorney.138 Mr. Molina testified initially about his educational background and

7

work history.139 He testified that he had finished the 12th grade but was a few credits short of

8

graduating and had not gotten his GED.140 Mr. Molina described his work as a driver at Golden

9

Gate Meat Company in 2007, recounting that he had worked there for about six months and that it

10

was “stressful” with long hours (sometimes 10 or even 12 hours a day) making multiple deliveries

11
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4

to restaurants and wineries in the Napa area with no overtime pay.141 Mr. Molina recounted how

12

when his mother had a stroke and he wanted a day off to see her; the company initially okayed it,

13

but when he went in to work to drop off his truck, his boss told him he had to work that day and

14

when he put his hand in Mr. Molina’s face, Mr. Molina slapped him and was let go.142 Mr. Molina

15

testified that he did not think he could do any job full-time because he gets “nervous” and

16

“frightened” based upon his past gang activities and his tattoos.143 This nervousness can cause him

17

to get sweaty and for his heart to beat fast.144 He said that he was on a “hit list” and needs to

18

always stay alert, though he denied that he gets angry easily and instead said he tries to solve

19

“problem[s] in [his] head before [he] make[s] a wrong decision.”145 He also reported flashbacks

20
21
137

AR 347.

138

AR 36‒51.

139

AR 37‒40.

24

140

AR 37.

25

141

AR 38‒39.

142

AR 40.

143

AR 40‒41.

27

144

AR 41.

28

145

AR 42‒43.

22
23

26

ORDER — No. 16-cv-05262-LB

17

1

and disturbing dreams related to his time in prison and the associated violence.146 These fears can

2

cause him to “think too much” and interfere with his ability to fall asleep.147 Mr. Molina indicated

3

that he can focus on tasks, but that his “surroundings” can interfere, if he is too distracted

4

watching out for who is around him.148
Mr. Molina testified that he stopped taking Zoloft and his sleep medication as it sometimes

5

kept him up or caused him to over sleep and be tired, and instead, he obtained a prescription for

7

marijuana.149 Mr. Molina denied the daily use of marijuana previously reported by Dr. Spivey, but

8

indicated that when he did use it, he would take it to the point where he “can’t think no more and

9

[is] just knocked out.”150 Mr. Molina later clarified to the ALJ that he uses marijuana 3 to 4 times

10

a month and that he was continuing to take his psychiatric medications.151 He also stated that he

11
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6

has learned to “keep [his] mind strong and focused,” and stay “alert.”152

12

Mr. Molina stated that he still sometimes has PTSD symptoms and gets “mad a lot,” taking it

13

out on his spouse, not hurting her, but just getting mad at her as he has “no one else to take it out

14

on.”153 Mr. Molina concluded by saying that his future plans were to “[t]ake care of [his] kids” and

15

be a good dad.154

16

On July 12, 2012, Mr. Molina also completed a “Function Report,” describing his day as “I eat

17

breakfast, shower, sit around the house or take a walk. Watch TV, clean around the house, take my

18

meds and go to sleep.”155 Mr. Molina also indicated that he had no problem with personal care,

19

preparing his own meals daily, doing laundry, paying bills, writing checks, going places out alone,

20
21

146

AR 44.

22

147

AR 45.

148

Id.

149

AR 46.

24

150

AR 47–48.

25

151

AR 49‒50.

152

AR 50.

153

AR 48.

27

154

AR 50.

28

155

AR 224.

23

26

ORDER — No. 16-cv-05262-LB

18

1

but “rarely” shopping, and spending social time with his “kids and their mom.”156 Mr. Molina also

2

reported that his impairments affect his ability to get along with others, but that he finishes what

3

he starts, does a “pretty good” job following written instructions and does “well” following spoken

4

instructions.157 He also denied ever being “fired or laid off from a job because of problems getting

5

along with other people,” but noted his issue of “being around large crowds.”158

6
7

2.3 Lay Testimony: Angelina Collaco — Mother of Mr. Molina’s Children

8

Ms. Collaco also testified at the July 24, 2014 hearing.159 Ms. Collaco stated that she had

9

known Mr. Molina for almost 15 years, but that over the past few years he had become more
“irritable,” and his personal grooming has deteriorated as well.160 Ms. Collaco also testified that he

11
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10

has become more emotional and can cry over the “littlest thing” and is “emotionally volatile.”161

12

Ms. Collaco also testified about his hypervigilance in public places, like at a county fair.162 Ms.

13

Collaco noted that she has had to become responsible for paying bills as he prefers to “have

14

money in his pocket” and may not pay or pay only half his bills.163 She also noted that Mr. Molina

15

will just eat out of “necessity” and will just go to a local drugstore for noodle packets rather than

16

go shopping and is more reluctant to go outside the house because he says he feels safer at home,

17

sitting and playing video games.164 Ms. Collaco also recounted how when they are out, he is often

18

preoccupied about people from his past and feeling that somebody is out to get him.165

19
20
21

156

AR 225‒29.

22

157

AR 229.

158

AR 230.

159

AR 51.

24

160

AR 52.

25

161

AR 53.

162

AR 53‒54.

163

AR 54.

27

164

AR 54–55.

28

165

AR 55.

23

26

ORDER — No. 16-cv-05262-LB

19

2.4 Vocational Expert Testimony: Timothy Farrell

2

Mr. Farrell, a vocational expert (“VE”), testified at the hearing on July 24, 2014.166 After

3

reviewing and classifying Mr. Molina’s past work as a delivery driver, the VE was asked several

4

hypothetical questions by the ALJ.167 First, the ALJ asked the VE to assume someone 43 years old

5

(at onset) with a 12th-grade education (but without graduating) and with no sitting, standing, or

6

walking limitations and restricted to lifting no more than 25 pounds frequently and 50 pounds

7

occasionally, able to maintain complex instructions, but precluded from working with the general

8

public or with no more than occasional contact with co-workers and no joint work as part of a

9

team and limited contact with a supervisor, who would provide instructions for the day at the start

10

of the shift (with only occasional contact thereafter).168 The ALJ then asked if such a person could

11
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1

perform Mr. Molina’s past work as a delivery driver.169 The VE responded that such a person

12

could not work as delivery driver because there would be too much contact with the public.170

13

Second, the ALJ asked if someone with those attributes would be able to work in other jobs in the

14

economy at large.171 The VE said that such a person would be employable and gave as examples

15

janitorial, industrial cleaner, and warehouse order picker jobs.172 The ALJ then asked a second

16

hypothetical question: assuming the same limitations above, but adding three additional

17

limitations: “moderate [defined “as being 10 percent off task in each” category] difficulty in the

18

ability to maintain adequate attention/concentration, moderate difficulty with the ability to

19

withstand the stress of a routine workday, moderate limit in the ability to maintain emotional

20

stability, predictability,” would there be any jobs available for such a person.173 The VE opined

21
22

25
26
27
28

AR 58‒63.
AR 59‒62.

168

AR 60.

169

AR 61.

170

Id.

171

24

166
167

23

Id.

172

AR 61‒62.

173

AR 62.

ORDER — No. 16-cv-05262-LB

20

1

that while it might be different if there were just one or two of these additional limitations, the

2

cumulative effect of all three additional limitations would preclude all work.174

3
4

2.5 Administrative Findings

5

The ALJ held that Mr. Molina was not disabled within the meaning of the Social Security

6

Act.175 The ALJ observed that the Commissioner has established a sequential five-step evaluation

7

process to determine if an individual is disabled.176 At step one, the ALJ must determine whether

8

the individual is engaging in “substantial gainful activity.”177 At step two, the ALJ must determine

9

whether the individual has a “medically determinable impairment” that is “severe” or a
combination of impairments that is “severe.”178 At step three, the ALJ must determine whether the

11
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Northern District of California

10

individual’s impairments are severe enough to meet a “listed” impairment.179 At step four, the ALJ

12

must determine the individual’s “residual functional capacity” (RFC) and determine whether the

13

individual can perform “past relevant work.”180 At step five, the ALJ must determine whether the

14

individual can perform any other work.181
At step one, the ALJ found that that Mr. Molina had not engaged in substantial gainful activity

15
16

since March 22, 2012, the alleged onset date.182

17

At step two, the ALJ found that Mr. Molina had the following severe impairments: “post-

18

traumatic stress disorder; anxiety disorder; personality disorder; and history of hiatal hernia status

19
20
21
174

AR 63.

175

See AR 10‒29.

176

AR 19‒21.

24

177

AR 20.

25

178

Id.

179

Id.

180

Id.

27

181

AR 21.

28

182

Id.

22
23

26

ORDER — No. 16-cv-05262-LB

21

1

post repairs . . . because they cause more than a minimal effect on [Mr. Molina’s] ability to

2

perform basic work activities.”183

3

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

4

impairments that met or medically equaled the severity requirements for any listed impairment

5

impairments described in “paragraph B” of the regulations.184 Specifically, the ALJ found that Mr.

6

Molina did not have “at least two of the following: marked restriction of activities of daily living;

7

marked difficulties in maintaining social functioning; marked difficulties in maintaining

8

concentration, persistence, or pace; or repeated episodes of decompensation, each of extended

9

duration. A marked limitation means more than moderate but less than extreme.”185 The ALJ
assessed the evidence on each of these dimensions and found that Mr. Molina had no restrictions

11
United States District Court
Northern District of California

10

on his daily living activities, moderate limitations in his social functioning, no difficulties with his

12

concentration, persistence, or pace and that there was no evidence of episodes of decompensation

13

(the ALJ also found that he did not meet the “paragraph C” criteria either).186

14

At step four, the ALJ reviewed and assessed the medical and other evidence and determined

15

that Mr. Molina had the “residual functional capacity [(RFC)] to perform medium work as defined

16

in 20 CFR 416.967(c) except he is precluded from working with the general public; and is

17

precluded from working with coworkers as part of a team to produce a product or complete a

18

task.”187

19

At step five, the ALJ determined, based on the VE’s testimony, that Mr. Molina did not have

20

the RFC to perform his past relevant work, as a sales route truck driver, because of its necessary

21

contact with the public.188 The ALJ concluded, however, that considering Mr. Molina’s “age [at

22

the time of the alleged disability onset], education, work experience, and [RFC], there are jobs that

23
24

183

Id.

25

184

See AR 21‒23.

185

Id.

186

Id.

27

187

AR 23‒27.

28

188

AR 27.

26

ORDER — No. 16-cv-05262-LB

22

1

exist in significant numbers in the national economy that the claimant can perform,” and therefore

2

he was “not disabled.”189 Mr. Molina has timely appealed for review of the ALJ’s decision.190

3
ANALYSIS

4
5

1. Standard of Review

6

Under 42 U.S.C. § 405(g), district courts have jurisdiction to review final decisions of the

7

Commissioner. District courts may set aside the Commissioner’s denial of benefits only if the

8

ALJ’s “findings are based on legal error or are not supported by substantial evidence in the record

9

as a whole.” Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009) (internal quotations omitted); 42
U.S.C. § 405(g). “Substantial evidence means such relevant evidence as a reasonable mind might

11
United States District Court
Northern District of California

10

accept as adequate to support a conclusion.” Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir.

12

2012) (internal quotations and citations omitted). The substantial evidence must be “more than a

13

mere scintilla but less than a preponderance.” Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir.

14

1995). The reviewing court should uphold “such inferences and conclusions as the

15

[Commissioner] may reasonably draw from the evidence.” Mark v. Celebrezze, 348 F.2d 289, 293

16

(9th Cir. 1965). If the evidence in the administrative record supports both the ALJ’s decision and

17

a different outcome, the court must defer to the ALJ’s decision and may not substitute its own

18

decision. See Andrews, 53 F.3d at 1039–40; Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir.

19

1997) (“‘[W]here the evidence is susceptible to more than one rational interpretation,’ we must

20

uphold the Commissioner’s decision.”) (quoting Andrews, 53 F.3d at 1039–40) (alteration in

21

original); Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (if evidence supports more than

22

one rational interpretation, the reviewing court may not substitute its judgment for that of the

23

Commissioner); “Finally, we may not reverse an ALJ’s decision on account of an error that is

24

harmless.” Molina, 674 F.3d at 1111.

25
26
27

189

AR 28‒29.

28

190

See Compl. – ECF No. 1.

ORDER — No. 16-cv-05262-LB

23

1

2. Applicable Law

2

An SSI claimant is considered disabled if he or she suffers from a “medically determinable

3

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

4

be expected to last for a continuous period of not less than twelve months,” and the “impairment

5

or impairments are of such severity that he is not only unable to do his previous work but cannot,

6

considering his age, education, and work experience, engage in any other kind of substantial

7

gainful work which exists in the national economy.” 42 U.S.C. § 1382c(a)(3)(A), (B).

8

The Commissioner uses a five-step analysis for determining whether a claimant is disabled

9

within the meaning of the Social Security Act. See 20 C.F.R. § 404.1520. The five steps are as

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

follows:
Step One. Is the claimant presently working in a substantially gainful activity? If
so, then the claimant is “not disabled” and is not entitled to benefits. If the claimant
is not working in a substantially gainful activity, then the claimant’s case cannot be
resolved at step one, and the evaluation proceeds to step two. See 20 C.F.R.
§ 404.1520(a)(4)(i).
Step Two. Is the claimant’s impairment (or combination of impairments) severe? If
not, the claimant is not disabled. If so, the evaluation proceeds to step three. See 20
C.F.R. § 404.1520(a)(4)(ii).
Step Three. Does the impairment “meet or equal” one of a list of specified
impairments described in the regulations? If so, the claimant is disabled and is
entitled to benefits. If the claimant’s impairment does not meet or equal one of the
impairments listed in the regulations, then the case cannot be resolved at step three,
and the evaluation proceeds to step four. See 20 C.F.R. § 404.1520(a)(4)(iii).
Step Four. Considering the claimant’s residual functional capacity (“RFC”), is the
claimant able to do any work that he or she has done in the past? If so, then the
claimant is not disabled and is not entitled to benefits. If the claimant cannot do any
work he or she did in the past, then the case cannot be resolved at step four, and the
case proceeds to the fifth and final step. See 20 C.F.R. § 404.1520(a)(4)(iv).
Step Five. Considering the claimant’s RFC, age, education, and work experience,
is the claimant able to “make an adjustment to other work?” If not, then the
claimant is disabled and entitled to benefits. See 20 C.F.R. § 404.1520(a)(4)(v). If
the claimant is able to do other work, the Commissioner must establish that there
are a significant number of jobs in the national economy that the claimant can do.
There are two ways for the Commissioner to show other jobs in significant
numbers in the national economy: (1) by the testimony of a vocational expert or (2)
by reference to the Medical-Vocational Guidelines at 20 C.F.R., part 404, subpart
P, app. 2. See 20 C.F.R. § 404.1520(a)(4)(v).

28
ORDER — No. 16-cv-05262-LB

24

1

For steps one through four, the burden of proof is on the claimant. Tackett, 180 F.3d at 1098;

2

Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004) (claimant bears “the

3

burden of proving an inability to engage in any substantial gainful activity by reason of any

4

medically determinable physical or mental impairment”) (internal quotations omitted). At step

5

five, the burden shifts to the Commissioner to show that the claimant can do other kinds of work.

6

Tackett, 180 F.3d at 1098.

7
8

3. Application
In his motion for summary judgment, Mr. Molina alleges that the ALJ erred by (1) failing to

9

properly evaluate and weigh the medical-opinion evidence,191 (2) failing to properly evaluate and

11
United States District Court
Northern District of California

10

weigh Mr. Molina’s testimony,192 (3) failing to find that Mr. Molina’s impairments met the listing

12

criteria,193 and (4) failing to specifically consider all Mr. Molina’s limitations in her RFC

13

findings.194

14
15

3.1 The ALJ Adequately Evaluated & Weighed the Medical-Opinion Evidence

16

The ALJ is responsible for “‘resolving conflicts in medical testimony, and for resolving

17

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

18

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

19

including each medical opinion in the record, together with the rest of the relevant evidence. 20

20
21
22
23

Motion for Summary Judgment – ECF No. 17 at 6, 8‒14 (on appeal, Mr. Molina’s allegation is that
he is disabled due to his PTSD and other mental impairments; he does not challenge the ALJ’s
rejection of his disability claim based on his physical impairments or on the ALJ’s failure to properly
consider the cumulative impact of his physical and mental impairments).
191

192

24
25
26
27
28

Id. at 6, 14‒15.

Id. at 6, 15‒17. On appeal, the gravamen of Mr. Molina’s claim that the ALJ erred in finding that
Mr. Molina’s impairments did not meet the listing criteria is based upon his contention that the ALJ
failed to give sufficient weight and import to certain medical opinions, notably the opinions of his
treating physician, Dr. Kayman, and one of his examining physicians, Dr. Wiebe. Because the court
concludes that the ALJ’s evaluation and weighing of the medical evidence is based on specific and
legitimate reasons supported by substantial evidence, the court finds this claim to be without merit and
does not otherwise address it separately in this order.
193

194

Id. at 6, 17‒18.

ORDER — No. 16-cv-05262-LB

25

1

C.F.R. § 416.927(b); see also Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (“[A] reviewing

2

court must consider the entire record as a whole and may not affirm simply by isolating a specific

3

quantum of supporting evidence.”) (internal quotations omitted)).

4

“In conjunction with the relevant regulations, [the Ninth Circuit has] developed standards that
guide [the] analysis of an ALJ’s weighing of medical evidence.” Ryan v. Comm’r of Soc. Sec., 528

6

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

7

distinguish between three types of physicians (and other “acceptable medical sources”): (1)

8

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

9

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

10

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

11
United States District Court
Northern District of California

5

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

12

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

13

Chater, 80 F.3d 1273, 1285 (9th Cir. 1996). An ALJ, however, may disregard the opinion of a

14

treating physician, whether or not controverted. Andrews, 53 F.3d at 1041. “To reject [the]

15

uncontradicted opinion of a treating or examining doctor, an ALJ must state clear and convincing

16

reasons that are supported by substantial evidence.” Ryan, 528 F.3d at 1198 (alteration in original)

17

(internal quotations omitted). By contrast, if the ALJ finds that the opinion of a treating physician

18

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

19

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

20

(9th Cir. 1998) (internal quotations omitted); see also Garrison, 759 F.3d at 1012 (“If a treating or

21

examining doctor’s opinion is contradicted by another doctor’s opinion, an ALJ may only reject it

22

by providing specific and legitimate reasons that are supported by substantial evidence.”) (internal

23

quotations omitted). “If a treating physician’s opinion is not given ‘controlling weight’ because it

24

is not ‘well-supported’ or because it is inconsistent with other substantial evidence in the record,

25

the [Social Security] Administration considers specified factors in determining the weight it will

26

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

27

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

28

treatment relationship’ between the patient and the treating physician.” Id. (quoting 20 C.F.R.
ORDER — No. 16-cv-05262-LB

26

1

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

2

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

3

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

4

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

5

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

6

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

7

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

8
3.1.1 Medical Opinion Evidence — Physical Impairments

9

Dr. Rana examined Mr. Molina at the request of the State agency to assess his physical

10

United States District Court
Northern District of California

11

impairments, including his reported right shoulder pain and history of hiatal hernia post-surgical

12

repairs.195 Dr. Rana found that Mr. Molina had no “sitting, standing or walking limitations” and

13

that he could “carry 25 pounds frequently and 50 pounds occasionally.”196 Mr. Molina’s physical

14

impairments were reviewed by a non-examining physician who concurred, giving “great weight”

15

to Dr. Rana’s assessment, finding it consistent with Mr. Molina’s medical records.197 The ALJ

16

incorporated these limitations into the hypotheticals given to the VE and into her decision.198 On

17

appeal, Mr. Molina does not contest these findings or contend that he is disabled as a result of his

18

physical impairments or that the ALJ failed to properly consider the cumulative impact of his

19

physical and mental impairments.

20
3.1.2 Medical Opinion Evidence — Mental Health Impairments

21

The “acceptable medical source” evidence relating to Mr. Molina’s mental-health impairments

22
23

includes the following: (i) the medical opinion and treatment records of Mr. Molina’s treating

24
25
195

AR 289‒91.

196

AR 291.

27

197

AR 86; see generally AR 79‒90.

28

198

See AR 60, 26.

26

ORDER — No. 16-cv-05262-LB

27

1

psychiatrist, Dr. Kayman,199 (ii) the medical opinion and test/evaluation of the three psychological

2

examinations conducted by Dr. Bodepudi,200 Dr. Spivey,201 and Dr. Wiebe,202 and (iii) a non-

3

examining review by Dr. Jacobson.203
The ALJ made various credibility determinations on the conflicting medical opinion evidence

4

regarding Mr. Molina’s mental health impairments.204 See Batson, 359 F.3d at 1195 (“When

6

presented with conflicting medical opinions, the ALJ must determine credibility and resolve the

7

conflict.”) (citing Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992)). Here, because the

8

medical evidence is contradictory, this court reviews the ALJ’s finding to determine whether the

9

ALJ provided “specific and legitimate reasons supported by substantial evidence in the record” for

10

crediting or discrediting each medical opinion, and to ensure that the ALJ’s findings are consistent

11
United States District Court
Northern District of California

5

with the record as a whole. See Reddick, 157 F.3d at 725; Vasquez, 572 F.3d at 591; see also Ryan,

12

528 F.3d at 1198; Garrison, 759 F.3d at 1012 (ALJ is responsible for resolving conflicting in

13

medical testimony based on specific and legitimate reasons); Andrews, 53 F.3d at 1039–40 (noting

14

that a reviewing court will defer to ALJ’s decision if there is “substantial evidence”).

15
16

3.1.2.1 Medical Opinion Evidence — Dr. Kayman: Treating Physician

17

Dr. Kayman, Mr. Molina’s treating physician, saw Mr. Molina for four sessions between

18

February 2012 and July 2012, diagnosing Mr. Molina with PTSD.205 After a gap of almost two

19

years, Dr. Kayman saw Mr. Molina one more time in late June 2014.206 During the 2014

20

examination, Dr. Kayman found that Mr. Molina’s condition had “significantly worse[ned]” and

21

wrote in a letter that Mr. Molina “continues to be disabled and unable to work due to his mental

22
199

AR 277‒82, 351‒56.

200

AR 292‒95.

24

201

AR 317‒24.

25

202

AR 332‒50.

203

AR 79‒90.

204

See AR 24‒27.

27

205

AR 277‒82.

28

206

See id. (2012 treatment records) & AR 351(noting Mr. Molina’s return in June 2014).

23

26

ORDER — No. 16-cv-05262-LB

28

1

illness.”207 Dr. Kayman also subsequently completed a mental-impairment questionnaire, finding

2

that Mr. Molina had “marked” or “extreme” mental impairments in 10 of the 14 categories

3

contained in the questionnaire and finding that those impairments would interfere with Mr. Molina

4

concentration or pace of work for 50% of the work day and would cause him, on average, to miss

5

more than 4 days per month.208
In her decision denying disability based on Mr. Molina’s RFC, the ALJ gave “no weight” to

6
7

Dr. Kayman’s opinion as to the severity of Mr. Molina’s mental impairments, finding that “Dr.

8

Kayman’s opinion overstates [Mr. Molina’s] impairment and is unsupported by the record as a

9

whole.”209 Specifically, the ALJ found that Dr. Kayman’s “own treatment notes do not support the
level of limitation he opined” and that his opinion was not supported by (i) Mr. Molina’s history

11
United States District Court
Northern District of California

10

of limited mental-health treatment, (ii) his daily living activities, and (iii) the psychological

12

evaluations of Mr. Molina by the three examining doctors.210
On appeal, Mr. Molina contends that ALJ erred by not giving weight to Dr. Kayman’s opinion

13
14

as the treating physician.211 This court disagrees and will review each of the ALJ’s reasons.

15

First, a “conflict between treatment notes and a treating provider’s opinions may constitute an

16

adequate reason to discredit the opinions of a treating physician.” See Ghanim v. Colvin, 763 F.3d

17

1154, 1161 (9th Cir. 2014); Molina, 674 F.3d at 1111–12 (conflict between treatment record and

18

report by treating physician’s assistant was basis for discrediting the report); Valentine v. Comm’r

19
20
207

21
22
23
24
25

AR 351. The ALJ properly disregarded Dr. Kayman’s “disability” conclusion. The issue of
“whether a claimant is disabled” is “reserved to the Commissioner.” Allen v. Comm’r of Soc. Sec., 498
F. App’x 696, 696 (9th Cir. 2012) (citing 20 C.F.R. §§ 404.1527(d)(1)‒(2), 416.927(d)(1)–(2)). “A
treating source’s opinion on issues reserved to the Commissioner can never be entitled to controlling
weight or given special significance.” Id. (citing SSR 96-5p, 1996 WL 374183 *5); 20 C.F.R.
§ 416.927(d)(1) (the Social Security Administration (“SSA”) is “responsible for making the
determination or decision about . . . disability . . . . A statement by a medical source that [the claimant
is] ‘disabled’ or ‘unable to work’ does not mean that [the SSA] will determine that [the claimant] is
disabled.”).
208

AR 352‒53.

209

AR 26‒27.

27

210

AR 27.

28

211

Motion for Summary Judgment – ECF No. 17 at 6, 8‒11.

26

ORDER — No. 16-cv-05262-LB

29

1

of Soc. Sec. Admin., 574 F.3d 685, 692–93 (9th Cir. 2009) (conflict with treatment notes is a

2

specific and legitimate reason to reject treating physician’s opinion); Costa v. Comm’r of Soc.

3

Sec., 525 F. App’x 640, 641 (9th Cir. 2013) (inconsistencies between the physician’s opinion and

4

previous treatment records provided sufficient reasons for not crediting the physician’s

5

conclusions); Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005) (holding that even under

6

the “clear and convincing” standard, the ALJ properly discredited a treating physician’s opinion

7

when it was not supported by the physician’s own clinical notes); Batson, 359 F.3d at 1193, 1195

8

(noting that the claimant bears the burden of proof of disability and affirming ALJ’s rejection of

9

contradicted medical opinion because it was conclusory and not supported by objective evidence);
Meanel v. Apfel, 172 F.3d 1111, 1113–14 (9th Cir. 1999) (affirming an ALJ’s discrediting of a

11
United States District Court
Northern District of California

10

treating physician’s conclusory and minimally supported medical opinion); Roberts v. Shalala, 66

12

F.3d 179, 184 (9th Cir. 1995) (upholding the ALJ’s decision to reject an examining medical

13

provider’s assessment which conflicted with the provider’s own medical reports and testing).

14

Here, Dr. Kayman’s treatment notes reflect that he initially saw Mr. Molina for marital

15

difficulties, but ultimately diagnosed him with PTSD.212 Dr. Kayman’s treatment notes also

16

indicate that Mr. Molina had never been hospitalized for any psychiatric condition — though Mr.

17

Molina reported having seen a psychiatrist 15 years earlier and having taken Zoloft while in

18

prison.213 Mr. Molina also reported a history of gang-related activity and incarceration and that as

19

a result of his prior gang affiliation, he was now fearful, sleeps poorly, has nightmares and

20

flashbacks, and avoids crowds.214 As part of his treatment plan, Dr. Kayman prescribed Zoloft at

21

25 mg daily with a goal of 200 mg daily, anger-management counseling with a social worker, and

22

a follow-up session in four weeks (when they would start Mr. Molina on Prazosin for the

23

nightmares).215 It does not appear from the record that Mr. Molina ever sought or undertook any

24

anger-management counseling as prescribed by Dr. Kayman. At their second session, Dr. Kayman

25
212

AR 280.

213

Id.

27

214

Id.

28

215

AR 281‒82; see also AR 278 (noting use of Prazosin to address “nightmares”).

26

ORDER — No. 16-cv-05262-LB

30

1

noted that Mr. Molina “[f]elt a little more relaxed,” had “[n]o complaints” and was “doing better

2

but still has sleep problems.”216 Dr. Kayman increased his Zoloft to 50 mg per day and started him

3

on Prazosin.217 Dr. Kayman gave Mr. Molina a GAF rating of 55.218 At the third session, Dr.

4

Kayman noted that Mr. Molina was “sleeping better” and had “[n]o nightmares” — though his

5

spouse reported him still “yelling” in his sleep.219 Dr. Kayman maintained his Zoloft dosage at

6

50 mg, despite having previously set a dosage “goal” of 200 mg per day220 and modified his

7

Prazosin to address the “nightmares” and extended the interval for the follow-up sessions from

8

four week intervals to six-to-eight week intervals.221
In his fourth and final 2012 session, Mr. Molina reported that he had “left [his] welfare

9

program when he felt disrespected” and lost the related financial support.222 As a result, his spouse

11
United States District Court
Northern District of California

10

and children were moving in with her family in Oakland (with whom Mr. Molina did not get

12

along) and he was going to live with an aunt in Stockton.223 Dr. Kayman maintained the Zoloft

13

dosage and restarted the Prazosin, which Mr. Molina had stopped, and maintained the follow-up

14

interval at six-to-eight weeks.224 Thereafter, however, it appears that Mr. Molina did not seek or

15

receive any additional mental health treatment until he returned to Dr. Kayman in late June 2014,

16

shortly before his ALJ hearing in July 2014.225

17
18
19

216

AR 279.

20

217

Id.

Id.; see also Garrison, 759 F.3d at 1002 n.4 (noting a rating in this range indicates a “moderate
difficulty in social, occupational, or school functioning”); see also McFarland v. Astrue, 288 F. App’x
357, 359 (9th Cir. 2008) (“The Commissioner has determined the GAF scale does not have a direct
correlation to the severity requirements in [the Social Security Administration’s] mental disorders
listings.”) (internal quotations and citation omitted) (alteration in original).
218

21
22
23

219

AR 278.

24

220

See AR 278, 281.

25

221

Id.

222

AR 277.

223

Id.; AR 333 (noting that his spouse’s parent’s house was in Oakland)

27

224

AR 277.

28

225

See AR 351; AR 34 (noting AJ hearing date of July 24, 2014).

26

ORDER — No. 16-cv-05262-LB

31

Given these treatment notes, substantial evidence supports the ALJ’s finding that Dr.

1
2

Kayman’s opinions regarding the severity of Mr. Molina’s mental impairments, made after his

3

one-time examination of Mr. Molina in 2014, are not supported by his own treatment records.226

4

See Ghanim, 763 F.3d at 1161 (“[C]onflict between treatment notes and a treating provider’s

5

opinions may constitute an adequate reason to discredit the opinions of a treating physician . . . .”);

6

Molina, 674 F.3d at 1111–12; Costa, 525 F. App’x at 641; Bayliss, 427 F.3d at 1216.227
Second, substantial evidence supports the ALJ’s determination that Mr. Molina’s history of

7
8

“limited mental health treatment” was not consistent with the alleged severity of his impairments

9

reported by Dr. Kayman.228 A claimant’s lack of treatment can be evidence of the lack of severity
of such claimant’s reported symptoms. See Molina, 674 F.3d at 1113–14 (“failure to seek

11
United States District Court
Northern District of California

10

treatment or to follow a prescribed course of treatment” can be legitimate reasons for disregarding

12

a treating or examining physician’s opinion) (internal quotations omitted); Orn, 495 F.3d at 636.

13

As noted above, the record indicates that Mr. Molina was seen only four times between February

14

2012 and July 2012 and once in June 2014.229 While the Ninth Circuit has cautioned that in the

15

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

16

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

17

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

18
See AR 27 (in her decision, the ALJ found that Dr. Kayman’s “one-time” June 2014 observation of
Mr. Molina’s deteriorating condition was insufficient to establish Mr. Molina’s disability as of March
22, 2012; the ALJ highlighted, however, that to the extent Mr. Molina’s mental impairments had
worsened in “2014, and his mental health providers document a continuation of that worsening, it
certainly may serve as the basis for a new application”) (emphasis in the original)).
226

19
20
21

On appeal, Mr. Molina also contends that the ALJ improperly relied upon Dr. Kayman’s treatment
notes because the primary purpose of such treatment notes is to “‘promote communication and
recordkeeping for health care personnel — not to provide evidence for disability determinations.’”
Motion for Summary Judgment ‒ ECF No. 17 at 10 (quoting Orn, 495 F.3d at 634). Here, however,
unlike in Orn, the record “viewed in its entirety” does not “provide[] ample support” for the treating
physician’s opinion, particularly given Mr. Molina’s limited mental-health treatment history. Cf. Orn,
495 F.3d at 634.
227

22
23
24
25

228

26

229

27
28

AR 27.

See AR 277‒82, 355‒56; see also AR 26 (despite the limited number of sessions, the ALJ
considered Dr. Kayman as Mr. Molina’s “treating psychiatrist”); accord Le v. Astrue, 529 F.3d 1200,
1201–02 (9th Cir. 2008) (an attorney’s fees case; noted that the court in the underlying substantive
disability case found that a doctor who treated the claimant “five times in three years for treatment of
severe psychological problems” was a treating physician).
ORDER — No. 16-cv-05262-LB

32

1

Cir. 1996) (internal quotations omitted), the record as a whole does not support the position that

2

Mr. Molina’s mental impairments were such that they preclude or prevented his ability to seek

3

treatment. From his treatment record, there is no indication of any issue with Mr. Molina’s

4

attending scheduled medical treatment or evaluation appointments, or with his non-

5

cooperativeness at such appointments due to his mental-health impairments.230 While Mr.

6

Molina’s reported relocation to Stockton after July 2012 may account for the treatment gap from

7

July 2012 to June 2014, Dr. Kayman’s 2012 medical records also indicate that his treatment and

8

prescribed medication had improved Mr. Molina’s PTSD symptoms and by December 2013, Mr.

9

Molina reported to Dr. Wiebe that he was living back in Oakland.231 In addition, as part of his
treatment history, it does not appear that Mr. Molina always took his prescribed medication,232 nor

11
United States District Court
Northern District of California

10

does it appear that he sought or received any follow-up treatment after his one-time examination

12

by Dr. Kayman in June 2014 (or after his examination with Dr. Wiebe, who recommended

13

“comprehensive psychological treatment).233 Given these circumstances, the ALJ did not err by

14

finding that Mr. Molina’s sporadic and limited mental-health treatment was inconsistent with the

15

severity of Mr. Molina’s mental impairments reported by Dr. Kayman. See Andrews, 53 F.3d at

16

1039–40; see also Molina, 674 F.3d at 1113–14.
Third, substantial evidence supports the ALJ’s finding that Mr. Molina’s daily living activities

17
18

did not support the severity of impairment opined by Dr. Kayman.234 Specifically, other than his

19

reported anxiety “being around large crowds” or in uncontrolled public places, Mr. Molina has

20

repeatedly indicated that “[h]e is able to do everything that is needed in daily activities” including

21
22
230

23
24
25

See AR 278, 279; AR 333 (as of the date of his examination with Dr. Wiebe, in December 2013,
Mr. Molina reported that he was living with his spouse and children at his in-laws’ house in Oakland).
Likewise, nothing in the record indicates that Mr. Molina could not have sought mental health
treatment while residing in Stockton.
232

26
27
28

See, e.g., AR 277‒81.

231

See, e.g., AR 277, 46.

See AR 24 (ALJ noting that “there is no indication” that Mr. Molina sought further treatment after
seeing Dr. Kayman in June 2014); AR 347 (Dr. Wiebe’s December 2013 recommendation for further
psychological treatment).
233

234

AR 27; AR 21‒22.

ORDER — No. 16-cv-05262-LB

33

1

household chores, preparing meals, watching TV, caring for himself and his children and

2

sometimes taking them places, driving, visiting with friends and family.235 Molina, 674 F.3d at

3

1112–13 (in the context of discrediting a claimant’s testimony, the court found that “when the

4

claimant reports participation in everyday activities indicating capacities that are transferable to a

5

work setting . . . [e]ven where those activities suggest some difficulty functioning, they may be

6

grounds for discrediting” claims of disability); Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d

7

595, 600–02 (9th Cir. 1999) (inconsistency between a treating physician’s opinion and a

8

claimant’s daily activities considered a specific and legitimate reason to discount the treating

9

physician’s opinion); see also Ghanim, 763 F.3d at 1162 (acknowledging that discrepancies
between a claimant’s daily living activities and a treatment provider’s assessment of the severity

11
United States District Court
Northern District of California

10

of the claimant’s impairments “may justify rejecting a treating provider’s opinion,” but

12

nevertheless finding that “a holistic review of the record does not reveal an inconsistency between

13

the treating providers’ opinions and [claimant’s] daily activities”).
Here, the ALJ’s finding — that Dr. Kayman’s opinion regarding the severity of Mr. Molina’s

14
15

impairments was inconsistent with Mr. Molina’s reported daily living activities — provided a

16

specific and legitimate basis to reject Dr. Kayman’s opinion and is supported by substantial

17

evidence based on the record as a whole. See Morgan, 169 F.3d at 600; see also Fair v. Bowen,

18

885 F.2d 597, 603 (9th Cir.1989).
Fourth, the ALJ found that Dr. Kayman’s 2014 medical opinions were not supported by the

19
20

non-treating, psychological examinations by Drs. Bodepudi, Spivey, and Wiebe.236 The court

21

considers each individually. Because the issue of whether these examinations support the ALJ’s

22

finding turns, in part, on the degree to which the ALJ credited all or part of these medical

23
See AR 293‒94; see also AR 224‒31 (self-reported daily activities and abilities, including dressing,
meal preparation, household chores, watching TV, etc.); AR 318 (reporting that Mr. Molina “can
drive,” “can live alone,” “manage bank accounts,” “clean the house and do laundry,” “go to the store,”
and “sometimes takes care of his children and takes them places”); AR 281 (Mr. Molina reported that
he “[t]akes care of [the] kids” while his spouse works and goes to school); AR 294 (visiting friends
and family); but see AR 341 (noting that he tries to “avoid[] going to stores” or to do so “very quickly”
to avoid people); AR 227 (noting that he “rarely” shops); AR 230 (noting his fear of “being around
large crowds”).
235

24
25
26
27
28

236

AR 26–27.

ORDER — No. 16-cv-05262-LB

34

1

opinions, the court also considers whether the ALJ erred in its determination of the proper weight

2

to give to each of these medical opinions.

3
4

3.1.2.2 Medical Opinion Evidence — Dr. Bodepudi: Examining Physician

5

The ALJ gave “great weight” to Dr. Bodepudi’s medical opinion.237 Dr. Bodepudi examined

6

Mr. Molina at the request of the State agency in August 2012.238 Dr. Bodepudi noted that Mr.

7

Molina’s chief complaints were “PTSD and Stress.”239 Dr. Bodepudi reported that Mr. Molina

8

“states that [his] sleep, energy, appetite and weight are okay and [his] mood swings are between

9

normal and sad.”240 Dr. Bodepudi found that Mr. Molina was mostly cooperative and that his
mood/affect was “[a]ppropriate,” his speech was normal in “rate, tone and volume” and that “[h]e

11
United States District Court
Northern District of California

10

was able to converse OK at times he was argumentative.”241 Dr. Bodepudi reported that Mr.

12

Molina’s thought process was “[g]oal directed” and his intellectual functioning was “[a]verage to

13

high average.”242 Mr. Molina was able to do “[c]alculations” with “ease,” and Dr. Bodepudi found

14

Mr. Molina to be cognitively alert, and reported that Mr. Molina had “Excellent” functioning

15

across multiple assessment criteria, including in the areas of “Fund of Knowledge,” “Similarities /

16

Differences,” “Concentration,” “Abstraction,” and “Insight/Judgment.”243 Dr. Bodepudi diagnosed

17

Mr. Molina, who acknowledged using marijuana, with “[c]annabis induced mood disorder” and

18

ruled out a mood-disorder due to “general medical condition” and assigned him a GAF of 70 and a

19

“fair” prognosis.244 Functionally, Dr. Bodepudi found that Mr. Molina “is able to [do] everything

20

that is needed in daily activities,”245 and had “no impairment to perform work activities on a

21
237

AR 26.

238

AR 292‒95.

239

AR 292.

24

240

AR 293.

25

241

AR 294.

242

Id.

243

Id.

27

244

AR 295.

28

245

AR 293‒94.

22
23

26

ORDER — No. 16-cv-05262-LB

35

1

consistent basis” and “no impairment to understand/remember/complete” simple or complex

2

instructions, but found “moderate impairment to interact appropriately with

3

supervisors/coworkers/public” based on his history of “slapping his boss.”246

4

In giving “great weight” to Dr. Bodepudi’s examination results, the ALJ found the report “well

5

supported” by the record as a whole and by Dr. Bodepudi’s own examination and the examination

6

results by Dr. Spivey.247 Given Dr. Bodepudi’s status as an “acceptable medical source,” the

7

contents of the examination report, and the medical record as a whole (including Mr. Molina’s

8

limited mental-health treatment history, Dr. Kayman’s treatment notes, Dr. Spivey’s testing

9

results), the court finds that substantial evidence supports the ALJ’s determination that Dr.
Bodepudi’s medical opinion provided an additional specific and legitimate basis upon which the

11
United States District Court
Northern District of California

10

ALJ discredited Dr. Kayman’s subsequent, and contradictory, evaluation in 2014 of the severity of

12

Mr. Molina’s mental health impairments.248 See Garrison, 759 F.3d at 1010, 1012 (ALJ is

13

responsible for resolving conflicting in medical testimony based on specific and legitimate reasons

14

supported by substantial evidence); Andrews, 53 F.3d at 1039–40 (noting that reviewing court will

15

defer to ALJ’s decision if there is “substantial evidence”).

16
3.1.2.3 Medical Opinion Evidence — Dr. Spivey: Examining Physician

17
18

In November 2013, Dr. Spivey examined Mr. Molina at the request of the State agency.249 Dr.

19

Spivey noted that Mr. Molina’s chief complaint was “posttraumatic stress disorder.”250 Dr. Spivey

20

reported that Mr. Molina was “alert,” with a “neutral” mood and “appropriate” affect, but that he

21

appeared to be “somewhat anxious,” but was otherwise “generally cooperative.”251 Mr. Molina

22

indicated that he was currently on Zoloft, but that he was not “in counseling” and that he had

23
24

246

AR 295.

25

247

AR 26.

248

AR 27.

249

AR 317‒20.

27

250

AR 317.

28

251

AR 318

26

ORDER — No. 16-cv-05262-LB

36

1

never been hospitalized for any psychiatric conditions.252 Dr. Spivey found no limitation on his

2

daily activities or abilities.253 She ran a series of tests on Mr. Molina and concluded that

3

“[c]ognitively [Mr. Molina] [was] well within normal limits,” noting that “[t]here does not appear

4

to be any sign of a thought disorder,” but that his fears of attack by gang members “do not appear

5

to be rational” and that his history and presentation was “suggestive of a personality disorder”

6

based on his acknowledged “anger” issues.254 Dr. Spivey concluded that “[t]here [was] nothing

7

acute” in his condition.255 Dr. Spivey’s report also contained a section assessing Mr. Molina’s

8

“Work-Related ABILITIES.”256 In that section, Dr. Spivey found no impairment in Mr. Molina’s

9

ability to communicate verbally or in writing or to follow simple or complex instructions,257 or
maintain adequate pace or persistence to complete simple tasks though potentially “[m]ild”

11
United States District Court
Northern District of California

10

difficulties in his ability “to maintain adequate pace and persistence to complete complex tasks” or

12

“to adapt to changes in job routines.”258 Dr. Spivey’s report did note “[m]oderate” impairments in

13

Mr. Molina’s ability (1) “to maintain adequate attention/concentration,” (2) “to withstand the

14

stress of a routine work day,” and (3) “to maintain emotional stability/predictability.”259

15
16
252

AR 317.

253

AR 318.

18

254

AR 318‒19.

19

255

AR 319.

256

Id.

17

20
21

Compare AR 319, with AR 321 (Dr. Spivey’s examination report found no impairment in her
ability to “follow complex instructions,” but in an attached questionnaire, she checked the box noting
“moderate” restrictions in Mr. Molina’s ability to “carry out complex instructions”).

22

258

23

259

257

24
25
26
27
28

AR 319.

Id. In her examination report, Dr. Spivey does not define what constitutes a “moderate”
impairment, but Dr. Spivey also completed and submitted an SSA approved form entitled “ABILITY
TO DO WORK-RELATED ACTIVITES (MENTAL)” which defines “moderate” as “more than a
slight limitation in [the respective area of impairment,] but the individual is still able to function
satisfactorily.” AR 321. By contrast, at the hearing, the ALJ defined “moderate,” for the VE, as being
“10 percent off task” in each of the relevant areas of impairment and that each impairment was
cumulative. AR 62. Given these arguably inconsistent definitions, it is not clear whether the import
that the ALJ ascribed to Dr. Spivey’s medical opinion on these “moderate” impairments was
warranted. Nevertheless, because the court finds that the ALJ supported her decision to give “little
weight” to these findings of Dr. Spivey with “specific and legitimate reasons supported by substantial
evidence,” see Reddick, 157 F.3d at 725 (9th Cir. 1998), the court need not resolve this question.
ORDER — No. 16-cv-05262-LB

37

The ALJ gave little weight to those portions of Dr. Spivey’s report which found these three

1
2

“moderate” difficulties, noting the absence of any reported “impairment in attention or

3

concentration” in Dr. Spivey’s examination and concluding that Dr. Spivey’s findings “seem[ed]

4

to have been largely based upon the claimant’s self-report of his symptoms.”260 See Magallanes,

5

881 F.2d at 753 (ALJ need not agree with everything contained in the medical opinion).
Given Dr. Spivey’s overall examination findings that Mr. Molina was cognitively “well within

6
7

normal limits,”261 the absence of any clinical finding that Mr. Molina suffered from any

8

impairment in attention or concentration, and the findings by Drs. Bodepudi and Wiebe of “none”

9

and “mild” impairments respectively in the area of concentration,262 substantial evidence supports
the ALJ’s finding that Dr. Spivey’s conclusions regarding Mr. Molina’s “moderate” mental

11
United States District Court
Northern District of California

10

impairments relating to attention/concentration were entitled to “little weight.”263 Likewise, as

12

outlined above, the ALJ’s reliance on Mr. Molina’s limited mental-health treatment history (and

13

the limited nature of the impairments evidenced in Mr. Molina’s treatment records with Dr.

14

Kayman), and Dr. Spivey’s apparent reliance on Mr. Molina’s self-reported symptoms, which the

15

ALJ did not find “entirely credible”264 also constitute specific and legitimate reasons based upon

16

substantial evidence to give little weight to those portions of Dr. Spivey’s report. See Orn, 495

17

F.3d at 636 (limited treatment history can be basis for rejecting claimant’s testimony); Batson, 359

18

F.3d at 1195 (affirming ALJ’s rejection of contradicted medical opinion because it was conclusory

19

and not supported by objective evidence); Ghanim, 763 F.3d at 1162 (“If a treating provider’s

20

opinions are based ‘to a large extent’ on an applicant’s self-reports and not on clinical evidence,

21
22
23

AR 26. Dr. Spivey also noted “[m]oderate” impairments in his ability “to interact appropriately
with co-workers, supervisors and the public on a daily basis,” which the ALJ did not contest or
discredit. See AR 320.
260

261

24

AR 319.

Dr. Bodepudi found Mr. Molina’s “concentration” to be “excellent,” and Dr. Wiebe found only
“mild limitations” in Mr. Molina’s attention/concentration /persistence. AR 294, 337–38. In his
examination with Dr. Wiebe, Mr. Molina denied having any trouble concentrating, reporting that he
was a “planner” and sometimes “concentrate[s] too much.” AR 341.
262

25
26

263

27

AR 26.

AR 24; see also infra Section 3.2 (for discussion of ALJ credibility determination of Mr. Molina’s
statements).
264

28

ORDER — No. 16-cv-05262-LB

38

1

and the ALJ finds the applicant not credible, the ALJ may discount the treating provider’s

2

opinion.”) (quoting Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008); see also Andrews,

3

53 F.3d at 1039–40 (if the record supports both the ALJ’s decision and a different outcome, the

4

court must defer to the ALJ’s decision); Ghanim, 763 F.3d at 1159–60 (“‘Even when the evidence

5

is susceptible to more than one rational interpretation, we must uphold the ALJ’s findings if they

6

are supported by inferences reasonably drawn from the record.’”) (quoting Molina, 674 F.3d at

7

1111).

8
3.1.2.4 Medical Opinion Evidence — Dr. Wiebe: Examining Physician

9

In December 2013, at the request of Mr. Molina’s attorney, Dr. Wiebe examined Mr. Molina

10

United States District Court
Northern District of California

11

and performed various psychological tests.265
Dr. Wiebe ruled out a variety of disorders, but diagnosed Mr. Molina with severe PTSD and

12
13

severe major depressive disorder, assessing that “the combination of Mr. Molina’s psychiatric,

14

cognitive, and social functioning problems will make him likely unable to work in a full time job

15

for at least two years” and recommending “comprehensive psychological treatment and social

16

support.”266 Specifically, Dr. Wiebe found that “Mr. Molina experiences psychiatric symptoms

17

including frequent nightmares, flashbacks, paranoia, anger reactivity, insomnia, depression,

18

anxiety, irritability, and fatigue.”267 It does not appear, however, that Mr. Molina subsequently

19

sought any treatment for these conditions until his one-time examination with Dr. Kayman in June

20

2014, despite his apparent return to Oakland by December 2013.268
The ALJ gave “little weight” to Dr. Wiebe’s opinion, finding that Dr. Wiebe’s own

21
22

assessments “showed only mild impairment in attention, concentration and pace and sensory-

23

motor functioning, and executive [functioning], language and overall intellectual functioning

24
25

265

AR 332‒50.

26

266

AR 347.

267

AR 346.

27
268

28

See AR 333 (at the time of his examination, Mr. Molina reported he was living in the Oakland area,
where his treating physician practices); see AR 351 (June 2014 examination).
ORDER — No. 16-cv-05262-LB

39

1

within normal range,” which were not consistent with Dr. Wiebe’s overall findings.269 For

2

example, while Dr. Wiebe specifically found that Mr. Molina’s test results evidenced only “mild

3

impairment” in the areas of “Attention/Concentration/Persistence,” she opined in her

4

“Conclusions” that “Mr. Molina would have difficulties sustaining attention, pace, and

5

persistence.” 270 The ALJ also found that Mr. Molina’s “limited mental health treatment also does

6

not support Dr. Wiebe’s assessment.”271
Here, given Dr. Wiebe’s test findings, Mr. Molina’s limited mental-health treatment history,

7
8

and the presence of contradictory medical opinions in the record, the court finds that the ALJ

9

provided sufficient reasons supported by substantial evidence to give little weight to Dr. Wiebe’s
opinion. See Andrews, 53 F.3d at 1039 (substantial evidence is “more than a mere scintilla”);

11
United States District Court
Northern District of California

10

Molina, 674 F.3d at 1113–14 (inconsistent or lack of treatment can be legitimate basis for

12

discrediting the purported severity of an impairment); Carmickle v. Comm’r, Soc. Sec. Admin.,

13

533 F.3d 1155, 1164 (9th Cir. 2008) (“ALJ is responsible for resolving conflicts in the medical

14

record.”); see also Tackett, 180 F.3d at 1097–98 (if evidence supports more than one rational

15

interpretation, the reviewing court may not substitute its judgment for that of the Commissioner).

16
3.1.2.5 Medical Opinion Evidence — Dr. Jacobson: Non-Examining Physician

17

Finally, the ALJ gave “great weigh[t] to the extent it is consistent with [the ALJ’s] decision” to

18
19

the opinion of Dr. Jacobson, the non-examining physician who opined on Mr. Molina’s mental

20

impairments, because his decision was consistent with the record as a whole.272 “The opinions of

21
AR 26; see also AR 332‒50 (Dr. Wiebe’s report – “Cognitive Functioning,” as measured by IQ,
was “likely in the average to above average” range (AR 337), his “Attention/Persistence/Concentration
showed only “mild impairment” (AR 337‒38), his “Executive Functioning,” “which entails the ability
to plan, sequence, abstract, and organize,” was “normal” (AR 338), his “Memory” was assessed as
“moderately to severely impaired” (AR 338), his “Language” functioning was “normal” (AR 338‒39),
his “Visual/Spatial Abilities” were “mildly impaired” as was his “Sensory/Motor Abilities” based on
his being tired and his self-report of being easily fatigued (AR 339)).
269

22
23
24
25
26

Compare AR 337‒38, with AR 346. Dr. Wiebe did caveat her findings in this category by noting
that Mr. Molina’s ability to perform on the test in a clinical setting did not necessarily mean that he
also could do so in a work setting. See AR 338.

27

271

AR 26.

28

272

Id.

270

ORDER — No. 16-cv-05262-LB

40

1

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

2

are consistent with independent clinical findings or other evidence in the record.” Thomas v.

3

Barnhart, 278 F.3d 947, 957 (9th Cir. 2002); Morgan, 169 F.3d at 600 (opinion of a non-

4

examining physician can be “substantial evidence” if it is consistent with and “supported by other

5

evidence in the record”); Andrews, 53 F.3d at 1041.

6

Here, Dr. Jacobson — based on his review of Mr. Molina’s medical record, including Dr.

7

Kayman and Dr. Bodepudi’s evaluations — determined that Mr. Molina had no limitation in his

8

understanding and memory and was able to “maintain complex instructions” during a 40-hour

9

workweek, but did have “moderate” social interaction limitations with the public, co-workers, and
supervisors (but that his anger and irritation issues did not preclude such interactions).273 Given

11
United States District Court
Northern District of California

10

that Dr. Jacobson’s opinion was consistent with Dr. Bodepudi’s findings and supported by other

12

evidence in the record, the ALJ was entitled to treat Dr. Jacobson’ opinion as substantial evidence.

13

See Thomas, 278 F.3d at 957; Morgan, 169 F.3d at 600.

14

In sum, the court finds that the ALJ provided specific and legitimate reasons supported by

15

substantial evidence in the record in his evaluation and weighing of all the various medical

16

opinion evidence. As such, the court finds no error by the ALJ in this area. See Andrews, 53 F.3d

17

at 1039–40; Tackett, 180 F.3d at 1097–98 (if the evidence supports more than one rational

18

interpretation, the reviewing court may not substitute its judgment for that of the Commissioner).

19
20

3.2 Mr. Molina’s Testimony

21

In her decision, the ALJ recapped Mr. Molina’s testimony and statements regarding his history

22

of incarceration and past gang activity and his current fears related to those past activities.274 The

23

ALJ also noted Mr. Molina’s testimony “that he gets defensive, irritated and distracted” and that

24

he “avoids leaving the house.”275 The ALJ found Mr. Molina’s testimony and other statements

25
AR 87‒88; see also AR 86 (where Dr. Jacobson gave “great weight” to Dr. Bodepudi’s evaluation
of Mr. Molina ).
273

26
27

274

AR 23; see also AR 40‒42 (Mr. Molina’s testimony regarding his gang and prison activity).

AR 23‒24; see also AR 40‒42, 45 (Mr. Molina’s testimony regarding his defensiveness, irritability,
and distractibility).
275

28

ORDER — No. 16-cv-05262-LB

41

1

“concerning the intensity, persistence and limiting effects” of his mental and physical impairments

2

to be “not entirely credible” because of (i) his “lack of ongoing mental health treatment,” (ii) the

3

three “psychological examinations” with Drs. Bodepudi, Spivey, and Wiebe, which while

4

supportive of a finding that Mr. Molina has PTSD and anxiety / personality disorders, did not

5

demonstrate — along with the other “medical evidence” — that Mr. Molina’s mental impairments

6

cause “an inability to perform all work,” and (iii) his “reported [daily living] activities [which]

7

suggest an ability to perform a limited range of work.”276
In assessing a claimant’s credibility, an ALJ must make two determinations. Molina, 674 F.3d

8
9

at 1112. “‘First, the ALJ must determine whether the claimant has presented objective medical
evidence of an underlying impairment which could reasonably be expected to produce the pain or

11
United States District Court
Northern District of California

10

other symptoms alleged.’” Garrison, 759 F.3d at 1014 (quoting Lingenfelter v. Astrue, 504 F.3d

12

1028, 1035–36 (9th Cir. 2007)) (internal quotations omitted). Second, if the claimant has produced

13

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

14

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

15

claimant’s symptoms. Id. at 1014–15 (quoting Smolen, 80 F.3d at 1281). “At the same time, the

16

ALJ is not ‘required to believe every allegation of disabling [condition], or else disability benefits

17

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

18

674 F.3d at 1112 (quoting Fair, 885 F.2d at 603).
Moreover, in order to have meaningful appellate review, “the ALJ must make a credibility

19
20

determination with findings sufficiently specific to permit the court to conclude that the ALJ did

21

not arbitrarily discredit claimant’s testimony.” Thomas, 278 F.3d at 958 (citing Bunnell v.

22

Sullivan, 947 F.2d 341, 345–46 (9th Cir. 1991) (en banc)). Moreover, the court will “review only

23

the reasons provided by the ALJ in the disability determination and may not affirm the ALJ on a

24

ground upon which he did not rely.” Garrison, 759 F.3d at 1010. “Factors that an ALJ may

25

consider in weighing a claimant’s credibility include reputation for truthfulness, inconsistencies in

26

testimony or between testimony and conduct, daily activities, and unexplained, or inadequately

27
28

276

AR 24‒25.

ORDER — No. 16-cv-05262-LB

42

1

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

2

636 (internal quotation marks omitted).
Here, the ALJ found that Mr. Molina’s “medically determinable impairments could reasonably

3
4

be expected to cause the alleged symptoms” and did not find that he was malingering.277 As such,

5

the ALJ must provide “specific, clear and convincing reasons for” rejecting Mr. Molina’s

6

testimony regarding the severity of his symptoms. Garrison, 759 F.3d at 1014–15.
The ALJ’s first reason for finding Mr. Molina’s testimony “not entirely credible” was his

7
8

limited record of mental-health treatment.278 The ALJ specifically noted that while Mr. Molina

9

had been diagnosed with PTSD and related symptoms, he had (since leaving prison roughly 15
years ago) “received mental health treatment” for only approximately six months in 2012 and that

11
United States District Court
Northern District of California

10

thereafter there was no evidence of treatment until June 2014, when Mr. Molina returned one time

12

to his treating physician, Dr. Kayman.279 The ALJ also noted that even though Dr. Kayman had

13

found that Mr. Molina’s “condition had worsened” since 2012, “there is no indication of further

14

treatment thereafter.”280
The “failure to seek treatment” is a legitimate factor “in weighing a claimant’s credibility.” See

15
16

Orn, 495 F.3d at 636; Molina, 674 F.3d at 1113 (in assessing the claimant’s credibility, the ALJ

17

may properly rely on “‘unexplained or inadequately explained failure to seek treatment’”) (quoting

18

Tommasetti, 533 F.3d at 1039); Fair, 885 F.2d at 603.

19

As discussed above, the Ninth Circuit has cautioned that the ALJ (and the reviewing court)

20

should consider whether such failure is the result of underlying mental-health issues. See Nguyen,

21

100 F.3d at 1465. The record, however, does not support the position that Mr. Molina’s mental

22

impairments were such that they preclude or prevented his ability to seek treatment; as such, the

23

court finds that Mr. Molina’s limited treatment history provides a “specific, clear, and convincing

24

reason[]” for the ALJ to reject his testimony. See Molina, 674 F.3d at 1113; Orn, 495 F.3d at 636.

25
277

AR 24; see also AR 19‒29 (ALJ decision with no finding of malingering).

278

AR 24.

27

279

Id.; see also AR 45 (Mr. Molina’s testimony that he has been “out 15 years”).

28

280

AR 24.

26

ORDER — No. 16-cv-05262-LB

43

The ALJ’s second reason for discounting Mr. Molina’s testimony was the inconsistency

1
2

between Mr. Molina’s statements on the “intensity, persistence and limiting effects” of his mental

3

impairments and the three psychological examinations by Drs. Bodepudi, Spivey, and Wiebe and

4

the “medical evidence” as a whole.281 An ALJ’s finding that a claimant’s testimony regarding the

5

severity and limiting effect of their impairments is “inconsistent” with the “medical evidence in

6

the record” can provide “specific, clear, and convincing reasons” for an “adverse credibility

7

determination.” See Molina, 674 F.3d at 1112–13.
Here, again, the ALJ properly evaluated and weighed the medical evidence in the record and

9

provided legitimate and specific reasons supported by substantial evidence for finding that while

10

Mr. Molina suffers from PTSD and other mental impairments, these impairments did not “cause

11
United States District Court
Northern District of California

8

an inability to perform all work.”282 Given these circumstances, the court also finds that these

12

reasons provided “specific, clear, and convincing reasons” for the ALJ’s “adverse credibility

13

determination” regarding the “limiting effects” of Mr. Molina’s mental impairments. See id; see

14

also Mark, 348 F.2d at 293 (reviewing court should uphold “such inferences and conclusions as

15

the [Commissioner] may reasonably draw from the evidence”); Andrews, 53 F.3d at 1039–40 (if

16

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

17

ALJ’s decision and may not substitute its own decision).
The ALJ’s third and final reason for discounting Mr. Molina’s testimony was based on his

18
19

“reported [daily living] activities” which the ALJ found supported a finding that Mr. Molina

20

would be able “to perform a limited range of work.”283 “[I]nconsistencies . . . between [a

21

claimant’s] testimony and [his] conduct [or] daily activities” is a legitimate factor “in weighing a

22

claimant’s credibility.” Orn, 495 F.3d at 636; Molina, 674 F.3d at 1112. “The ALJ may consider

23

inconsistencies either in the claimant’s testimony or between the testimony and the claimant’s

24

conduct” including “‘whether the claimant engages in daily activities inconsistent with the alleged

25
26
281

AR 24–25.

27

282

AR 25.

28

283

Id.

ORDER — No. 16-cv-05262-LB

44

symptoms.’” Id. (quoting Lingenfelter, 504 F.3d at 1040). “While a claimant need not vegetate in

2

a dark room in order to be eligible for benefits, the ALJ may discredit a claimant’s testimony when

3

the claimant reports participation in everyday activities indicating capacities that are transferable

4

to a work setting. Even where those activities suggest some difficulty functioning, they may be

5

grounds for discrediting the claimant’s testimony to the extent that they contradict claims of a

6

totally debilitating impairment.” Id. 1112–13 (internal quotations and citations omitted); but see

7

Garrison, 759 F.3d at 1016 (Ninth Circuit has “repeatedly warned that ALJs must be especially

8

cautious in concluding that daily activities are inconsistent” with eligibility for disability benefits;

9

“disability claimants should not be penalized for attempting to lead normal lives in the face of

10

their limitations”); Smolen, 80 F.3d at 1284 n.7 (“The Social Security Act does not require that

11
United States District Court
Northern District of California

1

claimants be utterly incapacitated to be eligible for benefits . . . .”).
Here, the ALJ found that Mr. Molina was able to independently take care of himself, to do

12
13

basic household chores, and to “help take care of his two children.”284 While Mr. Molina’s

14

difficulties in other areas of daily living activities, such as his discomfort in large crowds or in

15

unrestricted public places, like supermarkets, “suggest some difficulty functioning,” the ALJ did

16

not err by finding that that Mr. Molina’s statements regarding the “limiting effects” of his mental

17

impairments on his ability to perform all work were “not entirely credible” given his reported

18

daily activities. See Molina, 674 F.3d at 1112–13.

19
20

3.3 ALJ’s Failure to Include All of Mr. Molina’s Limitations in its RFC Analysis

21

On appeal, Mr. Molina contends that the ALJ erred by not including “the moderate limitation

22

in interacting with supervisors” in her RFC, quoting Hill v. Astrue for the proposition that “[i]f a

23

vocational expert’s hypothetical does not reflect all the claimant’s limitations, then the expert’s

24

testimony has no evidentiary value to support a finding that the claimant can perform jobs in the

25

national economy.” 698 F.3d 1153, 1162 (9th Cir. 2012).285

26
284

27

AR 24.

285

Motion for Summary Judgment ‒ ECF No. 17 at 17 (citing AR 23).

28
ORDER — No. 16-cv-05262-LB

45

Here, the evidentiary record is clear that the ALJ gave the VE a complete hypothetical

1
2

reflecting Mr. Molina’s limitations, including the moderate limitation on his ability to interact with

3

supervisors.286 As such, Hill does not support Mr. Molina’s claim of error. Moreover, to the extent

4

that Mr. Molina also contends that the ALJ erred by not specifically referencing Mr. Molina’s

5

“moderate limitation in interacting with supervisors” in Section 4 of the ALJ’s “Findings of Fact

6

and Conclusion of Law,” this court finds any such error to be harmless, as this limitation was

7

clearly presented to the VE and incorporated into the hypotheticals opined upon by the VE, and

8

relied upon by the ALJ. See Molina, 674 F.3d at 1111 (reviewing court will “not reverse an ALJ’s

9

decision on account of an error that is harmless”). Finally, the ALJ also did not err by not
incorporating medical opinion evidence or testimony which she had already permissibly given

11
United States District Court
Northern District of California

10

minimal evidentiary weight. See Batson, 359 F.3d at 1197.

12
CONCLUSION
13
The court denies Mr. Molina’s motion for summary judgment and grants the Commissioner’s

14
15

cross-motion for summary judgment.

16
17

IT IS SO ORDERED.

18

Dated: June 28, 2017

19

______________________________________
LAUREL BEELER
United States Magistrate Judge

20
21
22
23
24
25
26
27
28

See AR 60 (in posing its hypothetical to the VE, the ALJ stated that “[i]n terms of contact with
supervisors, this individual should receive instructions for the shift at the beginning of the shift and
should have only occasional contact with supervisors after that initial explanation of the day’s duties”).
286

ORDER — No. 16-cv-05262-LB

46