Lynetta Marie Ward v. Carolyn W. Colvin

Filing 23

ORDER by Magistrate Judge Jacqueline Scott Corley granting 15 Plaintiff's Motion for Summary Judgment; denying 20 Defendant's Motion for Summary Judgment. (ahm, COURT STAFF) (Filed on 11/28/2017)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 LYNETTA MARIE WARD, Plaintiff, 8 9 Case No.16-cv-05323-JSC ORDER RE: PARTIES’ CROSS-MOTIONS FOR SUMMARY JUDGMENT v. NANCY BERRYHILL, ACTING 11 United States District Court Northern District of California 10 Re: Docket Nos. 15, 20 COMMISSIONER SOCIAL SECURITY, 12 Defendant 13 14 15 Plaintiff Lynetta Ward (“Plaintiff”) seeks social security benefits for a combination of impairments, including: posttraumatic stress disorder, depression, and anxiety. (Administrative 16 Record (“AR”) 351.) Pursuant to 42 U.S.C. § 405(g), Plaintiff filed this lawsuit for judicial 17 review of the final decision by the Commissioner of Social Security (“Commissioner”) denying 18 19 20 21 her benefits claim. Now before the Court are Plaintiff’s and Defendant’s Motions for Summary Judgment. (Dkt. Nos. 15 & 20.) Because the Administrative Law Judge (“ALJ”) improperly weighed the medical evidence, failed to provide legally sufficient reasons for finding that Plaintiff did not meet the severity requirements of Step Two and did not meet or equal a listing at Step 22 Three, and erred in her credibility determination of Plaintiff, the Court GRANTS Plaintiff’s 23 motion for summary judgment, DENIES Defendant’s cross-motion, and remands for further 24 25 26 27 28 proceedings. PROCEDURAL HISTORY On June 28, 2012, Plaintiff filed for Supplemental Security Income under Title XVI of the Social Security Act with an initial onset date of December 31, 2011. (AR 75.) On June 20, 2013, 1 the Social Security Administration (SSA) denied Plaintiff’s claim for Supplemental Security 2 Income. (AR 139.) Plaintiff claimed she was unable to work because of mental depression, 3 seeing things, and ganglion cysts. (Id.) The SSA concluded that Plaintiff’s blood pressure had not 4 resulted in any severe complications and her other conditions were not severe enough to prevent 5 Plaintiff from working. (Id.) At Plaintiff’s request for reconsideration, the SSA affirmed its 6 earlier finding on November 21, 2013. (AR 149.) Plaintiff filed a request for hearing on 7 December 6, 2013. (AR 154.) She appeared before ALJ Nancy Lisewski on December 8, 2014. 8 (AR 178.) On February 25, 2015, the ALJ affirmed the SSA’s decision. (AR 20.) Plaintiff filed a 9 request for a review of the hearing decision order with the Appeals Council on April 17, 2015. (AR 14.) Her request for a review of the Appeals Council was denied on July 21, 2016. (AR 1.) 11 United States District Court Northern District of California 10 On November 28, 2016, Plaintiff filed the instant action. (Dkt. No. 1.) FACTUAL BACKGROUND 12 13 A. 14 Plaintiff Lynetta Marie Ward was born in Martinez, California on October 28, 1959 and 15 was raised in Oakland, CA. (AR 483.) She lived with her grandmother until she was five years 16 old, at which point she began living with her mother. (Id.) She did not have a good relationship 17 with her mother and experienced significant trauma growing up, including sexual abuse and racial 18 harassment. (Id.) Plaintiff has ongoing symptoms related to posttraumatic stress disorder, 19 depression, and anxiety. (AR 490.) Several physicians examined Plaintiff’s mental functioning 20 and physical capacity. 21 Medical Evidence a. Dr. Kyle Van Gaasbeek (Consultative Examination Psychiatrist) 22 In his June 7, 2013 comprehensive psychiatric evaluation, Dr. Gaasbeek recorded a 23 diagnosis of Major Depressive Disorder with severe psychotic features. (AR 390.) Dr. Gaasbeek 24 noted that Plaintiff’s thoughts were tangential, and she was difficult to redirect. (Id.) Her 25 thoughts were notable for auditory hallucinations of deceased family members. (Id.) Her 26 memory was reduced. (Id.) After several minutes, Plaintiff could not recall two thirds of the 27 objects identified minutes earlier. (Id.) Dr. Gaasbeek reported that Plaintiff’s depression is 28 treatable and, based on her history, her symptoms will likely go into remission but she will remain 2 1 vulnerable to future recurrences of depression. (AR 390.) He concluded that her ability to 2 perform simple and repetitive tasks and accept instructions from supervisors is unimpaired. (AR 3 391.) Dr. Gaasbeek, however, also concluded that Plaintiff’s ability to complete a normal 4 workday without interruptions from a psychiatric condition is mild to moderately impaired, as 5 well as her ability to deal with the usual stress encountered in the workplace. (AR 391.) 6 b. Dr. Thomas Phillips (Physical Consultative Exam Physician) 7 On April 17, 2013, Dr. Thomas Phillips conducted a consultative medical exam. (AR 79.) 8 Dr. Phillips diagnosed Plaintiff with hypertension. (Id.) Dr. Phillips observed that Plaintiff drinks 9 three to four 16 ounce cans of beer and smokes a half pack of cigarettes daily. (Id.) With respect to Plaintiff’s mental functioning, Dr. Phillips reported that Plaintiff had no history of psychiatric 11 United States District Court Northern District of California 10 hospitalization and is not taking any psychotropic medications. (Id.) Plaintiff reported depression 12 since 2006 and some hallucinations of deceased family members. (Id.) The physician noted that 13 Plaintiff was raped at 14 years old. (Id.) Dr. Phillips acknowledged Plaintiff’s history with Major 14 Depressive Disorder, severe with psychotic features. (Id.) Dr. Phillips concluded that Plaintiff 15 had non severe physical impairments and severe affective disorder. (Id.) 16 17 c. Dr. Richard Luck (Non-Examining Physician) On June 18, 2013, Dr. Richard Luck found that Plaintiff has mild to moderate difficulties 18 associated with Major Depressive Disorder, along with a history of drug dependence in the 1980s. 19 (AR 82.) Dr. Luck concluded that Plaintiff has a history of depression but noted that Plaintiff was 20 only partially credible because her allegations of visual and auditory hallucinations are not fully 21 substantiated by medical evidence. (AR 83.) Dr. Luck found Plaintiff was not disabled because 22 her only symptom was hypertension, which had not resulted in any severe complications. 23 Notwithstanding her depression, Dr. Luck concluded that she is able to perform daily activities 24 without severe limitations. (AR 88.) 25 26 d. Drs. Morgan and Barrons (Non-Examining Physicians) Dr. Morgan reviewed Plaintiff’s medical files on November 7, 2013 and concluded that 27 Plaintiff’s physical impairment of hypertension was non severe and that her affective disorder was 28 severe. (AR 120.) On November 20, 2013, Dr. Barrons agreed with this assessment and 3 1 concluded that Plaintiff’s “condition results in some limitations” in Plaintiff’s ability to perform 2 work related activities, but overall, the physician concluded that Plaintiff “can adjust to other 3 work.” (Id.) 4 e. Dr. Lesleigh Franklin (Examining Physician) 5 In her November 22, 2014 Psychological Report, Dr. Franklin found that the Beck 6 Depression Inventory and Beck Anxiety Inventory yielded results of severe depression and severe 7 anxiety. (AR 486.) Plaintiff was interviewed and administered several psychological exams 8 within a three-hour session. (Id.) Dr. Franklin noted that Plaintiff was focused and put forth a 9 good effort during the assessments; thus, the assessments should be considered a good measure of her current psychological, cognitive, and personality functioning. (Id.) On the intellectual 11 United States District Court Northern District of California 10 functioning WASI-II exam, Plaintiff placed within the Low Average range. (AR 487.) Plaintiff 12 took a series of tests designed to measure her cognitive functioning. Based on these tests, Dr. 13 Franklin concluded that Plaintiff exhibited no significant difficulties with attention span, but her 14 executive functioning (planning, sequencing, abstracting) fell well below average. (AR 488.) 15 Plaintiff’s overall cognitive scores placed her in the average range of neurocognitive functioning, 16 and she demonstrated significant strengths in delayed memory and language abilities. (Id.) 17 In the physician’s evaluation of Plaintiff’s emotional functioning, she found that Plaintiff 18 had ongoing symptoms of posttraumatic stress, depression, and anxiety. (AR 490.) Dr. Franklin 19 reported that there were concerns with Plaintiff’s ability to discern differences between “the 20 internal and external worlds” due to her hallucinations. (Id.) Dr. Franklin diagnosed Plaintiff with 21 schizoaffective disorder, posttraumatic stress disorder, and unspecified anxiety disorder. (AR 22 491.) Dr. Franklin concluded that “in the workplace, Ms. Ward would likely have extreme 23 difficulties with maintaining a regular schedule, coping with excessive environmental stimuli, and 24 with interpersonal relationships...her capabilities in securing stable employment and financially 25 supporting herself are very much impaired.” (AR 492.) 26 27 28 f. Gino Inesi (Examining Therapist) In a June 6, 2012 Mental Health Clinician’s Report, Gino Inesi diagnosed Plaintiff with depression with psychotic features. (AR 441.) He reported that Plaintiff’s mental health 4 1 condition prevents her from working and has existed for 12 months or more. (AR 440.) Inesi 2 found “marked limitations relative to [Plaintiff’s] ability to complete a normal workday and 3 workweek without interruptions from psychologically-based symptoms and to perform at a 4 consistent pace without an unreasonable number and length of rest periods.” (Id.) g. 5 6 Sausal Creek Outpatient Stabilization Clinic A December 2006 outpatient report from Sausal Creek Outpatient Stabilization Clinic 7 diagnosed Plaintiff with Psychosis and Polysubstance abuse. (AR 430.) It described her thought 8 process as tangential and her thought content as paranoia and hallucination. (Id.) h. 9 10 Lifelong Medical Clinic From August 13, 2014 to November 24, 2014, Plaintiff regularly visited Lifelong Clinic United States District Court Northern District of California 11 and reported symptoms of depression and anxiety, including guilty feelings, feelings of 12 worthlessness, changes in appetite, low energy, difficulty concentrating, tearfulness, visual 13 hallucinations, auditory hallucinations, poor sleep and irritability. (AR 495-504.) 14 B. The ALJ Hearing 15 On December 8, 2014, Plaintiff appeared with counsel at her scheduled hearing before ALJ 16 Nancy Lisewski in Oakland, California. (AR 44.) Plaintiff and Vocational Expert (“VE”) Joel 17 Greenberg both testified at the hearing. (Id.) 18 19 a. Plaintiff’s testimony Plaintiff’s testimony at the ALJ hearing mostly focused on her mental state and physical 20 abilities. Plaintiff last worked in 2006 when she was a cashier for Long John Silver’s in San 21 Antonio, Texas. (AR 47.) She is now homeless and periodically stays in a shared room at a single 22 resident occupancy hotel. (AR 46-47.) She pays for the hotel until her General Assistance money 23 runs out and then sleeps in the car for the rest of the month. (AR 51.) She does laundry once a 24 month and grocery shopping once a week. (AR 65.) 25 Plaintiff has been hearing voices since 2004. (AR 49.) Every few weeks, she hears voices 26 from her grandmother, mother, and son. (AR 48 49.) Since 2007, she has also been seeing visions 27 of a mouse, roach, her mother, and grandmother. (AR 49, 53.) 28 Plaintiff has been feeling depressed since 2005. (AR 53.) She lacks an appetite and 5 1 regularly goes several days without eating. (AR 55.) She has problems sleeping and difficulty 2 concentrating. (AR 47, 56.) She can only concentrate on a particular task for five to ten minutes. 3 (AR 57, 67.) She isolates herself and talks to friends approximately once every three months. 4 (AR 66.) 5 Plaintiff has a history of abuse. When she was nine, her neighbor’s father molested her. 6 (AR 57.) At 12 years old, she was raped by her neighbor. (Id.) In her twenties, she was raped 7 again. (Id.) In her thirties, she was hit in the head with a gun during an attempted robbery. (AR 8 58.) Plaintiff has high blood pressure and has been taking medication for hypertension since 9 2005. (AR 53, 54.) She has ganglion cysts on her arm and thighs. (AR 62.) She requires breaks 11 United States District Court Northern District of California 10 after five to ten minutes of walking. (AR 68.) She has flat feet and trouble standing for more than 12 ten to fifteen minutes, difficulty lifting or carrying heavy items, and shoulder pain from a car 13 accident in 2001. (AR 69,70.) 14 b. Vocational Expert’s Testimony Vocational Expert (“VE”) Joel Greenberg, who reviewed Plaintiff’s file and was present 15 16 for Plaintiff’s testimony, testified to the classifications of Plaintiff’s vocational history, identified 17 the exertional and skill levels of those jobs, and ultimately provided testimony as to whether 18 Plaintiff could perform that past relevant work. The VE testified that from 1995 to 1998, Plaintiff was a homecare giver at a group home, 19 20 and from 2000 to 2003, Plaintiff was a private homecare giver. (AR 71.) In this position, the 21 exertional level was heavy given the size and weight of the patients. (Id.) The VE classified 22 Plaintiff as a fast food cashier from June 2004 to 2006, which required a light exertional level. 23 (Id.) 24 The ALJ posed two hypotheticals to the VE to determine whether there were jobs existing 25 in significant numbers in the national economy that Plaintiff could perform given her impairments. 26 First, the ALJ asked if Plaintiff’s past work is available for an individual limited to medium, 27 simple, routine, and low stress work. (AR 71.) The VE responded that a fast food cashier would 28 fit the hypothetical because it’s a lower exertional level but the caregiver position would not. (AR 6 1 72.) The VE added that the jobs of janitor, hand packager, and order filler are available as 2 positions with low exertional levels. (Id.) 3 In the second hypothetical, the ALJ asked whether there would be any work available if a 4 person was unable to complete a normal workday and work week without interruptions from 5 psychologically based symptoms, and to perform at a consistent pace without an unreasonable 6 number and length of rest periods. (AR 73.) The VE responded that “[t]his person would be 7 unemployable, in my opinion.” (Id.) Plaintiff’s attorney asked the VE what if the person in hypothetical one had no ability to 9 respond appropriately to changes in the work setting. The VE responded that the person would 10 not “be lasting in that job too long.” (Id.) Plaintiff’s attorney next asked what if the person in 11 United States District Court Northern District of California 8 hypothetical one had a 15% reduction in their ability to maintain attention for two hour segments 12 or more. The VE responded that restriction would be “work preclusive.” (AR 74.) The ALJ’s Findings 13 C. 14 In a February 25, 2015 written decision, the ALJ found Plaintiff not disabled under 15 Sections 216(i), 223(d), and 1614(a)(3)(A) of the Social Security Act, taking into consideration 16 the testimony and evidence, and using the SSA’s five-step sequential evaluation process for 17 determining disability. (AR 21.) First, the ALJ concluded that Plaintiff did not have a disabling 18 impairment or combination of impairments on or prior to date last insured. The ALJ also found 19 insufficient evidence to establish the existence of a disabling impairment or combination of 20 impairments subsequent to date last insured. (AR 22.) 21 With respect to the five-step evaluation process, first, the ALJ found that Plaintiff has not 22 engaged in any substantial work related activity since the alleged date of onset on December 31, 23 2011. (AR 23.) Second, the ALJ found that Plaintiff has major depressive disorder and 24 polysubstance dependence that more than minimally restricts the Plaintiff’s ability to perform 25 basic mental work-related functions. (AR 24.) The ALJ concluded that the Plaintiff’s 26 hypertension and history of ganglion cysts are nonsevere impairments. (AR 23.) The ALJ 27 considered evidence from DDS medical consultant Dr. Philips, who concluded that hypertension 28 was a nonsevere impairment both before and after the date last insured. (Id.) The ganglion cysts 7 1 had never resulted in significant symptomatology. (Id.) The ALJ also considered evidence from 2 Dr. Morgan, who found Plaintiff’s physical medical status to be nonsevere relative to the Title 3 XVI claim, with insufficient evidence to assess her physical medical status relative to her Title II 4 claim. (Id.) The ALJ gave “significant evidentiary weight to these doctors because the physicians 5 either personally physically examined the Plaintiff or fully reviewed her medical record.” (AR 6 24.) 7 Second, the ALJ concluded that Plaintiff does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments set forth 9 in 20 CFR Part 404, Subpart P, Appendix 1. The ALJ specifically focused on the listing sections 10 related to mental disorders, including section 12.04 (affective mood disorders) and section 12.09 11 United States District Court Northern District of California 8 (substance addiction disorders). (Id.) In finding that Plaintiff’s mental impairments have not 12 either singly or in combination met or medically equaled the criteria of the listing section, the ALJ 13 found that the mental impairments did not result in at least two of the following: marked 14 restriction of activities of daily living; marked difficulties in maintaining social functioning; 15 marked difficulties in maintaining concentration, persistence, or pace; or repeated episodes of 16 decompensation, each of extended duration. (Id.) 17 The ALJ noted that there were no findings related to any medical disorder, based on 18 diagnostic, clinical, or physical and mental status evaluations, including reports of laboratory tests 19 and diagnostic imaging. (Id.) The ALJ also found that no evaluating, examining, or treating 20 physician or medical provider has reported credible findings since the alleged onset date. (AR 21 25.) Thus, the ALJ gave significant weight to the findings of psychological consultative examiner 22 Dr. Gaasbeek and DDS medical consultants Drs. Luck and Barrons, who concluded that the 23 Plaintiff does not meet or equal the criteria of any physical or mental Listing section. (Id.) The 24 ALJ found these physicians’ reports consistent with each other, particularly given that there was 25 no significant credible evidence in the record to rebut their consistent findings. (Id.) 26 At step three, the ALJ found that Plaintiff has the physical exertional and nonexertional 27 residual functional capacity to perform a full range of medium work, as defined on a function by 28 function basis. (AR 26.) Relative to the Plaintiff’s mental residual functional capacity, the ALJ 8 1 found that she is restricted to the performance of unskilled simple and routine job tasks of a low 2 stress nature. (Id.) The ALJ considered Plaintiff’s testimony at the hearing on December 8, 2014 3 and the medical record in concluding that the evidence does not substantiate the existence of a 4 severe physical medical impairment. (AR 27.) The ALJ gave significant weight to the medical 5 analysis and functional assessment of DDS medical consultants Drs. Philips and Morgan, who 6 both concluded that the claimant’s physical and medical status was “non-severe.” (AR 28.) Both 7 physicians concluded that the only diagnosed medical disorder in the record was hypertension. 8 (Id.) The ALJ also noted Plaintiff’s own testimony contained little discussion of her physical 9 medical status. (Id.) 10 With respect to Plaintiff’s mental status, the ALJ gave primary weight to the psychological United States District Court Northern District of California 11 evaluation performed by Dr. Gaasbeek on June 7, 2013. (Id.) Dr. Gaasbeek diagnosed Plaintiff 12 with major depressive disorder but concluded that Plaintiff’s depression was treatable, and 13 Plaintiff’s ability to perform simple and repetitive tasks was unimpaired. (AR 29.) The ALJ also 14 found that the assessments of DDS medical consultants Drs. Luck and Barrons, and the progress 15 notes from Lifelong Medical Care corroborated Dr. Gaasbeek’s findings. (Id.) 16 The ALJ gave no weight to outpatient progress notes from Sausal Creek Stabliziation 17 Clinic because the notes were from 2006, five years before the Plaintiff’s alleged onset date of 18 disability on December 31, 2011. (Id.) 19 The ALJ gave no weight to Plaintiff’s therapist Gino Inesi, who claimed that Plaintiff was 20 disabled and had marked limitations in her ability to complete a normal workday without 21 psychologically-based symptoms. (AR 30.) The ALJ found that the therapist’s assessment was 22 entirely “conclusory” with no clinical findings or underlying treatment document and not credible, 23 given inconsistencies in the assessment. (Id.) The ALJ also noted that the therapist is not an 24 approved medical source. (AR 30.) The ALJ gave no weight to the psychological report prepared 25 by Dr. Franklin on November 22, 2014, who concluded that Plaintiff would have poor ability to 26 maintain a regular schedule, maintain regular attendance, and complete a normal workday. (AR 27 31). The ALJ found Dr. Franklin’s findings to be indicative of “possible malingering” and full of 28 “multiple inconsistent accounts” of Plaintiff’s drug and alcohol use. (Id.) Lastly, the ALJ found 9 1 Plaintiff’s testimony lacked credibility because of inconsistent statements to Dr. Gaasbeek. (AR 2 32.) The ALJ also concluded that Plaintiff continues to exacerbate the level of her own mental 3 symptomatology through the continued use of alcohol, marijuana, and cocaine. (Id.) 4 At the fifth step, the ALJ found that Plaintiff is able to perform past relevant work. (AR 5 34.) The ALJ gave significant weight to the testimony of the vocational expert, who stated that 6 Plaintiff would be capable of performing the unskilled light duties of a fast food cashier. (AR 33.) 7 The ALJ also considered Plaintiff’s functional capacity, age, education, and work experience and 8 concluded that there are alternative jobs in the national economy available to Plaintiff, such as 9 hand packager and order filler. (AR 35.) LEGAL STANDARD 11 United States District Court Northern District of California 10 A claimant is considered “disabled” under the Social Security Act if she meets two 12 requirements. See 42 U.S.C. § 423(d); Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). 13 First, the claimant must demonstrate “an inability to engage in any substantial gainful activity by 14 reason of any medically determinable physical or mental impairment which can be expected to 15 result in death or which has lasted or can be expected to last for a continuous period of not less 16 than 12 months.” 42 U.S.C. § 423(d)(1)(A). Second, the impairment or impairments must be 17 severe enough that she is unable to do her previous work and cannot, based on her age, education, 18 and work experience “engage in any other kind of substantial gainful work which exists in the 19 national economy.” 42 U.S.C. § 423(d)(2)(A). To determine whether a claimant is disabled, an 20 ALJ is required to employ a five-step sequential analysis, examining: 21 22 23 24 25 26 27 28 (1) whether the claimant is “doing substantial gainful activity”; (2) whether the claimant has a “severe medically determinable physical or mental impairment” or combination of impairments that has lasted for more than 12 months; (3) whether the impairment “meets or equals” one of the listings in the regulations; (4) whether, given the claimant's “residual functional capacity,” the claimant can still do his or her “past relevant work”; and (5) whether the claimant “can make an adjustment to other work.” Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012); see 20 C.F.R. §§ 404.1520(a), 416.920(a). STANDARD OF REVIEW 10 1 Pursuant to 42 U.S.C. § 405(g), the Court has authority to review an ALJ’s decision to 2 deny benefits. When exercising this authority, however, the “Social Security Administration’s 3 disability determination should be upheld unless it contains legal error or is not supported by 4 substantial evidence.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). The Ninth Circuit defines 5 substantial evidence as “such relevant evidence as a reasonable mind might accept as adequate to 6 support a conclusion”; it is “more than a mere scintilla, but may be less than a preponderance.” 7 Molina, 674 F.3d at 1110–11 (internal citations and quotation marks omitted). To determine 8 whether the ALJ’s decision is supported by substantial evidence, the reviewing court “must 9 consider the entire record as a whole and may not affirm simply by isolating a specific quantum of supporting evidence.” Hill v. Astrue, 698 F.3d 1153, 1159 (9th Cir. 2012) (internal citations and 11 United States District Court Northern District of California 10 quotation marks omitted); see also Andrews, 53 F.3d at 1039 (“To determine whether substantial 12 evidence supports the ALJ's decision, we review the administrative record as a whole, weighing 13 both the evidence that supports and that which detracts from the ALJ's conclusion.”). 14 Determinations of credibility, resolution of conflicts in medical testimony and all other 15 ambiguities are roles reserved for the ALJ. See Andrews, 53 F.3d at 1039. “The ALJ’s findings 16 will be upheld if supported by inferences reasonably drawn from the record.” Tommasetti v. 17 Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) (internal citations and quotation marks omitted); see 18 also Batson v. Comm’r, 359 F.3d 1190, 1198 (9th Cir. 2004) (“When the evidence before the ALJ 19 is subject to more than one rational interpretation, we must defer to the ALJ’s conclusion.”). “The 20 court may not engage in second-guessing.” Tommasetti, 533 F.3d at 1039. “It is immaterial that 21 the evidence would support a finding contrary to that reached by the Commissioner; the 22 Commissioner’s determination as to a factual matter will stand if supported by substantial 23 evidence because it is the Commissioner’s job, not the Court’s, to resolve conflicts in the 24 evidence.” Bertrand v. Astrue, No. 08–CV–00147–BAK, 2009 WL 3112321, at *4 (E.D. Cal. 25 Sept. 23, 2009). 26 27 28 DISCUSSION Plaintiff challenges four aspects of the ALJ’s decision: (1) the ALJ erred in evaluating the medical opinions; (2) the ALJ erred by finding that the claimant’s mental health impairments were 11 1 not severe; (3) the ALJ erred in finding Plaintiff does not meet or equal a listing; (4) the ALJ erred 2 in her determination of Plaintiff’s RFC that she could perform past relevant work or any work; and 3 (5) the ALJ erred in evaluating Plaintiff’s credibility. 4 1. 5 6 The ALJ’s Consideration of the Medical Evidence Plaintiff challenges the ALJ’s consideration of the medical evidence and claims that the ALJ erred in evaluating the medical opinions. 7 A. The Standard for Weighing Medical Evidence 8 As a threshold matter, the ALJ must consider all medical opinion evidence. Tommasetti, 9 533 F.3d at 1041 (citing 20 C.F.R. § 404.1527(b)). In conjunction with the relevant regulations, the Ninth Circuit has “developed standards that guide [its] analysis of an ALJ’s weighing of 11 United States District Court Northern District of California 10 medical evidence.” Ryan v. Comm’r of Soc. Sec. Admin., 528 F.3d 1194, 1198 (9th Cir. 2008). 12 Specifically, a reviewing court must “distinguish among the opinions of three types of physicians: 13 (1) those who treat the claimant (treating physicians); (2) those who examine but do not treat the 14 claimant (examining physicians); and (3) those who neither examine nor treat the claimant 15 (nonexamining physicians).” Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). The opinion of 16 each is accorded a different level of deference, as “the opinion of a treating physician is ... entitled 17 to greater weight than that of an examining physician, [and] the opinion of an examining physician 18 is entitled to greater weight than that of a non-examining physician.” Garrison v. Colvin, 759 F.3d 19 995, 1012 (9th Cir. 2014); see also Orn, 495 F.3d at 631 (“Generally, the opinions of examining 20 physicians are afforded more weight than those of non-examining physicians, and the opinions of 21 examining non-treating physicians are afforded less weight than those of treating physicians.” 22 (citing 20 C.F.R. § 404.1527(d)(1)–(2))). Courts afford medical opinions of a treating physician 23 superior weight because these physicians are in a special position to know plaintiffs as individuals 24 and the continuity of the treatment improves their ability to understand and assess an individual’s 25 medical concerns. See Embrey v. Bowen, 849 F.2d 418, 421–22 (9th Cir. 1988); see also Morgan 26 v. C omm’r of the Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999) (“The opinion of a treating 27 physician is given deference because ‘he is employed to cure and has a greater opportunity to 28 know and observe the patient as an individual.” (citation omitted)). “However, the opinion of the 12 1 treating physician is not necessarily conclusive as to either the physical condition or the ultimate 2 issue of disability.” Morgan, 169 F.3d at 600 (citation omitted). 3 “If a treating physician’s opinion is ‘well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] 5 case record, [it will be given] controlling weight.’” Orn, 495 F.3d at 631 (quoting 20 C.F.R. § 6 404.1527(d)(2)). If a treating physician’s opinion is not given controlling weight because it is not 7 “well-supported” or because it is inconsistent with other substantial evidence in the record, the 8 ALJ must provide “specific and legitimate reasons that are supported by substantial evidence” for 9 rejecting it, and in doing so, the ALJ must consider “specified factors in determining the weight it 10 will be given” to the treating physician’s opinion. Ryan, 528 F.3d at 1198 (internal citations and 11 United States District Court Northern District of California 4 quotation marks omitted). “Those factors include the ‘[l]ength of the treatment relationship and 12 the frequency of examination’ by the treating physician; and the ‘nature and extent of the 13 treatment relationship’ between the patient and the treating physician.” Id. (citing 20 C.F.R. § 14 404.1527(d)(2)(i)–(ii)). 15 Opinions of non-examining doctors alone cannot provide substantial evidence to justify 16 rejecting either a treating or examining physician’s opinion. See Morgan, 169 F.3d at 602. An 17 ALJ may rely partially on the statements of non-examining doctors to the extent that independent 18 evidence in the record supports those statements. Id. Moreover, the “weight afforded a non- 19 examining physician’s testimony depends ‘on the degree to which they provide supporting 20 explanations for their opinions.’” See Ryan, 528 F.3d at 1201 (quoting 20 C.F.R. § 21 404.1527(d)(3)). 22 At bottom, to meet its burden of providing specific and legitimate reasons to reject a 23 treating physician’s opinion, the ALJ must “set[ ] out a detailed and thorough summary of the 24 facts and conflicting medical evidence, stating his interpretation thereof, and making findings.” 25 Cotton v. Bowen, 799 F.2d 1403, 1407 (9th Cir. 1986). In contrast, “[w]hen an ALJ does not 26 explicitly reject a medical opinion or set forth specific, legitimate reasons for crediting one 27 medical opinion over another, he errs. In other words, an ALJ errs when he rejects a medical 28 opinion or assigns it little weight while doing nothing more than ignoring it, asserting without 13 1 explanation that another medical opinion is more persuasive, or criticizing it with boilerplate 2 language that fails to offer a substantive basis for his conclusion.” Garrison, 759 F.3d at 1012–13 3 (internal citation omitted). 4 1. i. 5 6 The ALJ erred in evaluating the medical evidence Examining psychologist Dr. Franklin Plaintiff contends that the ALJ erred by assigning little weight to the opinion of examining 7 psychologist Dr. Franklin without providing specific and legitimate reasons supported by 8 substantiated evidence. The Court agrees. 9 “[T]he opinion of an examining doctor, even if contradicted by another doctor, can only be rejected for specific and legitimate reasons that are supported by substantial evidence in the 11 United States District Court Northern District of California 10 record.” Lester, 81 F.3d at 830-31 (internal citation omitted). “This is so because, even when 12 contradicted, a treating or examining physician’s opinion is still owed deference and will often be 13 entitled to the greatest weight...even if it does not meet the test for controlling weight.” Garrison, 14 759 F.3d at 1012 (internal citation and quotation omitted). 15 The ALJ did not describe how much weight she accorded Dr. Franklin; instead, she found 16 the “conclusions of Dr. Franklin to be unsupported by the record as a whole including their own 17 findings on examination.” (AR 31.) The ALJ’s characterization of Dr. Franklin’s report as 18 “inconsistent with the record as a whole” is not supported by substantial evidence. Dr. Franklin 19 cites many symptoms that are consistent with the record, including difficulty concentrating, 20 hallucinations, and sleep disturbances. Dr. Gaasbeek, another examining doctor to whom the ALJ 21 gave great weight, also recorded that Plaintiff reported trouble sleeping, difficulty concentrating, 22 and hallucinations and diagnosed her with depressive disorder. (AR 389-90.) The Sausal Creek 23 Outpatient Stabilization clinic psychiatric assessment also confirmed Plaintiff’s history of 24 psychosis, difficulty concentrating, and insomnia. (AR 428-430.) The ALJ did not explain how 25 Dr. Franklin’s assessment was inconsistent with the record as a whole in light of this record 26 evidence. 27 28 Further, the ALJ appeared to give as a reason for not crediting Dr. Franklin the fact that the M-FAST test was indicative of possible malingering. (AR 31.) But Dr. Franklin specifically 14 1 identified this finding, and explained that “Ms. Ward endorsed symptoms relating to her mood and 2 depressed symptoms and demonstrated some confusion on a number of the questions.” (AR 489.) 3 The ALJ did not acknowledge this explanation of the test result, let alone explain why it is not 4 entitled to weight. 5 The ALJ also appeared to fault Dr. Franklin because the substance abuse Plaintiff reported 6 to Dr. Franklin was inconsistent with what she later reported. (AR 31.) But the ALJ ignored that 7 Dr. Franklin did not rely solely on Plaintiff’s reporting; instead, she performed several tests. (AR 8 486-489.) Indeed, the ALJ assigned examining consultant Dr. Gaasbeek great weight, but Dr. 9 Gaasbeek neglected to list the types of tests he performed beyond asking Plaintiff basic math problems. (AR 390.) By contrast, Dr. Franklin’s report is a comprehensive analysis of Plaintiff’s 11 United States District Court Northern District of California 10 mental capabilities and describes the series of tests administered to assess her intellectual, 12 cognitive, and emotional functioning. (AR 486-89.) The ALJ provided no reasoning for giving 13 more weight to Dr. Gaasbeek’s less detailed report. The ALJ, therefore, erred in discounting Dr. 14 Franklin’s opinion. See Garrison, 759 F.3d at 1012–13. 15 16 ii. Treating source Lifelong Medical Care The ALJ also erred by giving less weight to the treating source providers at Lifelong 17 Medical Care. (AR 30.) The ALJ did not specify how much weight she allocated to the reports 18 from Lifelong Medical. Instead, the ALJ stated, “I find that the claimant’s current mental status is 19 essentially consistent with the prior mental status evaluation conducted by Dr. Gaasbeek, and the 20 prior consistent mental functional assessments of Dr. Gaasbeek, Luck, and Barrons.” (AR 29-30.) 21 Yet, Drs. Luck and Barron are non-examining physicians and thus deserved less weight than the 22 treating physicians at Lifelong Medical. See Garrison, 759 F.3d at 1012–13. 23 In supporting her conclusion that the treating source medical records were consistent with 24 the findings of Drs. Gaasbeek, Luck, and Barrons, the ALJ stated that on January 26, 2011, “the 25 claimant’s mental status was essentially normal.” (AR 29.) Yet, this conclusion was based on a 26 report from Alameda Medical Center from Plaintiff’s consultation regarding removal of her 27 ganglion cyst, and did not properly consider the Lifelong Medical examinations. (AR 376-77.) 28 The ALJ ignored evidence from Lifelong Medical that on October 27, 2014, treating physicians at 15 1 Lifelong Medical reported that Plaintiff discussed a history of depression, auditory and visual 2 hallucinations, and a history of sexual and physical assaults. (AR 504.) On November 10, 2014, 3 treating physicians at Lifelong Medical reported that Plaintiff had a history of major depressive 4 disorder, alcohol dependence, and cocaine use. (AR 502.) On November 24, 2014, treating 5 physicians at Lifelong Medical found Plaintiff had chronic depression (AR 496) and “likely PTSD 6 given history of trauma.” (AR 498.) Plaintiff also reported drinking 3-4 beers a day, using cocaine 7 twice a month, smoking 1/3 pack a day for about 40 year (AR 497), and smoking marijuana daily. 8 (AR 508.) The ALJ erred in not assigning greater weight to the reports of the treating physicians 9 at Lifelong Medical and instead relying on the assessments of non-examining physicians Drs. 10 United States District Court Northern District of California 11 Luck and Barron. See Garrison, 759 F.3d at 1012–13. iii. Examining Therapist Gino Inesi 12 Plaintiff claims that the ALJ “failed to provide specific and legitimate reasons supported 13 by substantial evidence for granting no weight to the opinion of Gino Inesi.” (Dkt No. 21 at 11.) 14 The Court disagrees. The ALJ provided three specific reasons for discarding Inesi’s evaluation. 15 First, she rejected it as “entirely conclusory, with no clinical findings from mental status 16 evaluations or other underlying treatment documentation to support the findings noted above.” 17 (Id.) The ALJ was correct that there is no underlying treatment documentation in support of 18 Inesi’s findings; Inesi’s report consists of a two-page checklist with no discussion of underlying 19 tests or the basis for Inesi’s findings. (AR 440-41.) See Molina, 674 F.3d at 111-12 (The ALJ 20 may “permissibly reject[]... check-off reports that [do] not contain any explanation for the bases of 21 their conclusions”) (internal citations and quotation marks omitted). 22 Second, the ALJ found the report was “fundamentally inconsistent.” (AR 30.) Inesi 23 marked “yes” to whether Plaintiff’s “mental health condition prevent[s] her from working,” and 24 marked “N.A.” to whether Plaintiff has “work restrictions related to [her] mental health 25 condition.” (AR 30, 441.) Plaintiff contends that there is no inconsistency because the question to 26 which Inesi marked “N.A” states “If yes, please describe any other significant limitations,” and 27 Plaintiff argues that the checked boxes on the prior page constitute a description of these 28 limitations. (Dkt. No. 21 at 11.) 16 1 Plaintiff’s interpretation of the form and its inconsistencies is unpersuasive. Inesi provided 2 no explanation regarding whether the patient had work related restrictions related to her mental 3 health. (AR 441.) The ALJ, therefore, was correct in finding the report “fundamentally 4 inconsistent.” (AR 30.) See Young, 803 F.2d 963, 967-68 (9th Cir. 1986) (Disregarding a 5 doctor’s report for internal inconsistencies because “[D]espite the fact that the [doctor’s] report is 6 the first and only time that [he] suggested that appellant was totally disabled, the report 7 inexplicably lists appellant’s condition as ‘improved.’”) 8 Finally, the ALJ commented that Inesi indicated that Plaintiff “has no history or problems with drugs or alcohol abuse, leading one to question how truthful [Plaintiff] has been to her 10 therapist, as well as how familiar her therapist is with her overall medical record.” (AR 30.) 11 United States District Court Northern District of California 9 Plaintiff does not address this finding. The record is littered with references to Plaintiff’s history 12 of drug and alcohol use. (See, e.g., AR 79, 127, 382, 485, 497.) The ALJ, therefore, reasonably 13 gave no weight to Inesi’s opinion because Inesi’s form report demonstrates little awareness of 14 Plaintiff’s medical history and problems. See 20 C.F.R. § 404.1527(c)(6)(“the extent to which an 15 acceptable medical source is familiar with the other information in your case record [is a] relevant 16 factor[] that we will consider in deciding the weight to give to a medical opinion.”) 17 18 iv. Consultative Examination Psychiatrist Dr. Gaasbeek The ALJ erred in granting Dr. Gaasbeek more weight than Dr. Franklin. The ALJ assigned 19 the greatest weight to Dr. Gaasbeek’s opinion because Dr. Gaasbeek performed an extensive 20 mental examination of Plaintiff and is a specialist in psychology. (AR 29.) 21 “The more a medical source presents relevant evidence to support an opinion, particularly 22 medical signs and laboratory findings, the more weight we will give that opinion.” 20 C.F.R. § 23 404.1527(c)(3). Dr. Gaasbeek’s report, however, contains no evidence of objective, 24 comprehensive psychiatric testing. (AR 388.) By contrast, as discussed above, Dr. Franklin’s 25 report includes a comprehensive analysis of Plaintiff’s mental capabilities and describes the series 26 of tests administered to assess her intellectual, cognitive, and emotional functioning. (AR 486- 27 89.) Moreover, the ALJ gave primary weight to Dr. Gaasbeek because he is a specialist in 28 psychology, which is considered in weighing a medical opinion. 20 C.F.R. § 404.1527(c)(5). 17 1 Under this reasoning, however, Dr. Franklin, who is also a psychology specialist, should be 2 afforded the same weight. 3 4 v. Non-examining physicians Drs. Luck and Barron The ALJ erred in granting significant weight to the opinion of non-examining state agency 5 physicians Drs. Luck and Barrons. (AR 29.) “The opinions of non-treating or non-examining 6 physicians may also serve as substantial evidence when the opinions are consistent with 7 independent clinical findings or other evidence in the record.” Thomas v. Barnhart, 278 F.3d 947, 8 957 (9th Cir. 2002). 9 The ALJ afforded these doctors significant weight based on the contention that the nonexamining physicians “fully reviewed the record...their findings are longitudinally consistent and 11 United States District Court Northern District of California 10 objectively supported” and that there is “no significant credible evidence in the record which 12 would rebut those findings.” (AR 29.) 13 The state agency doctors’ findings are not consistent with the record. Drs. Luck and 14 Barrons found that “there is no evidence that [Plaintiff] experiences visual hallucinations.” (AR 15 83, 116.) However, Plaintiff’s reports of visual hallucinations are repeatedly mentioned in the 16 record. The treating physician at Lifelong Medical reported that Plaintiff saw “shadowy images in 17 the corners of her eyes” and complained of “auditory and visual hallucinations.” (AR 498, 501, 18 504.) Dr. Gaasbeek reported that Plaintiff has “auditory hallucinations of her deceased family 19 members.” (AR 388.) Medical records form Alameda County Medical Center noted that Plaintiff 20 sees “green flashes” and “floaters in vision.” (AR 437.) Medical records from Sausal Creek 21 Stabalization clinic also indicated “auditory hallucinations” and “visual hallucinations.” (AR 22 428.) Thus, the state agency physicians’ opinions are not consistent with the record, and there is 23 credible evidence that rebuts their findings. 24 Moreover, Drs. Luck and Barrons’ assessments do not constitute a full review of the record 25 as they do not take Dr. Franklin’s report into consideration. Dr. Luck provided his opinion on 26 June 18, 2013. (AR 76.) Dr. Barrons provided her opinion on November 20, 2013. (AR 115.) 27 Dr. Franklin’s report was submitted on November 22, 2014. (AR 482.) 28 The ALJ thus erred in assigning significant weight to non-examining physicians Drs. Luck 18 1 2 and Barron without providing specific or legitimate reasons supported by substantial evidence. 2. 3 4 5 6 7 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Step Two: The ALJ’s Determination that Plaintiff’s Mental Impairments Are Not Severe At step two, the ALJ erred in failing to inquire into the severity and listing levels of the Plaintiff’s anxiety and schizophrenia. At the second step, the ALJ has to determine whether the claimant has a “severe medically determinable physical or mental impairment” or combination of impairments that has lasted for more than 12 months. 20 C.F.R. § 416.920(c). The step two inquiry for severity is intended to be a “de minimis screening device to dispose of groundless claims.” Smolen v. Chater, 80 F.3d at 1290. “An impairment or combination of impairments can be found not severe only if the evidence establishes a slight abnormality that has no more than a minimal effect on an individual’s ability to work.” Id. (internal quotation marks and citations omitted). The ALJ found Plaintiff’s severe impairments included major depressive disorder and polysubstance dependence. (AR 23.) The ALJ, however, neglected to inquire into Plaintiff’s anxiety and schizophrenia. Dr. Franklin diagnosed Plaintiff with schizoaffective disorder, posttraumatic stress disorder, and unspecified anxiety disorder. (AR 491.) Given that the ALJ erred in devaluing Dr. Franklin’s opinion, the ALJ was also incorrect in disregarding and not considering the severity of Plaintiff’s schizoaffective disorder. Dr. Franklin found a DSM-V diagnosis of “295.70 Schizoaffective Disorder, Depressive Type, unspecified; 309.81 Posttraumatic Stress Disorder and 300 Unspecified Anxiety Disorder.” (AR 491.) Dr. Franklin concluded that Plaintiff has “severe” impairments in her executive functioning and social functioning. (AR 493.) Moreover, records from the treating source, Lifelong Medical, support a finding that Plaintiff’s schizophrenia and anxiety limit her mental capacity. Dr. Masters at Lifelong Medical found Plaintiff to be “depressed,” seeing “shadowy images in the corners of her eyes,” reporting “auditory and visual hallucinations.” (AR 498, 501, 504.) Dr. Gaasbeek also reported that Plaintiff has “auditory hallucinations of her deceased family members.” (AR 388.) Medical records form Alameda County Medical Center additionally noted that Plaintiff sees “green flashes” and “floaters in vision.” (AR 437.) Medical records from 19 1 Sausal Creek Stabalization clinic from 2006 also indicated “auditory hallucinations” and “visual 2 hallucinations.” (AR 428.) In light of this evidence, the ALJ erred in failing to even consider 3 whether Plaintiff’s schizoaffective disorder, posttraumatic stress disorder, and generalized anxiety 4 disorder are severe. Instead, the ALJ referenced “multiple inconsistent accounts of the claimant’s 5 drug and alcohol use” to discredit the severity of Plaintiff’s impairments. (AR 31.) The ALJ 6 emphasized that on November 24, 2014, Plaintiff reported that she drinks 3-4 beers a day, uses 7 marijuana, and uses cocaine twice a month, but Plaintiff reported to Dr. Franklin that she last used 8 cocaine 20 years ago. (Id.) The inconsistencies related to Plaintiff’s drug and alcohol use, 9 however, do not undermine Dr. Franklin’s diagnosis for schizoaffective disorder, posttraumatic stress disorder, and generalized anxiety disorder, which was based on several objective psychiatric 11 United States District Court Northern District of California 10 assessments, including a Mini-Mental State Examination, Miller Forensic Assessment of 12 Symptoms Test, Repeatable Battery for the Assessment of Neuropsychological Status, Wechsler 13 Abbreviated Scale of Intelligence, Trail Making Test A and B, Beck Depression Inventory, and 14 Beck Anxiety Inventory. (AR 482, 486-89.) Thus, Dr. Franklin’s assessments provided an 15 independent basis for the diagnoses, regardless of Plaintiff’s accounts of drug and alcohol use, and 16 the ALJ erred in not evaluating the severity of these disorders. 17 Defendant claims that “[a]lthough the ALJ specified that Plaintiff’s severe mental 18 impairments were depressive disorder and polysubstance dependence, the ALJ thoroughly 19 considered her mental condition as a whole in assessing her RFC. Thus, any error not designating 20 additional severe impairments was harmless.” (Dkt. No. 20 at 6.) Yet, as the step two inquiry is 21 intended to be “a de minimis screening device to dispose of groundless claims,” the ALJ erred in 22 not considering the substantial evidence relating to Plaintiff’s schizoaffective disorder, 23 posttraumatic stress disorder, and generalized anxiety disorder. See Smolen, 80 F.3d at 1290. 24 Although Plaintiff contends that the ALJ erred in finding that her ganglion cysts are not 25 severe, substantial evidence supports the ALJ’s conclusion. No doctor imposed any functional 26 restrictions based on the cysts. (AR 376-79, 382-83, 389, 447, 450.) On May 17, 2013, Plaintiff 27 had a follow-up appointment after her cyst was surgically removed at which she reported “feeling 28 much better” with “no pain at the site.” (AR 450.) The ALJ appropriately found Plaintiff’s cysts 20 1 were a non-severe impairment. Step Three: The ALJ’s Determination That Plaintiff Does Not Meet a Listing 2 3. 3 Plaintiff also argues that the ALJ erred in finding Plaintiff’s impairments, separately or in combination with other impairments, do not medically equal a listing. “If a claimant has an 5 impairment or combination of impairments that meets or equals a condition outlined in the 6 ‘Listing of Impairments,’ then the claimant is presumed disabled at step three, and the ALJ need 7 not make any specific finding as to his or her ability to perform past relevant work or any other 8 jobs.” Lewis v. Apfel, 236 F.3d 503, 512 (9th Cir. 2001) (citing 20 C.F.R. § 404.1520(d)). “To 9 equal a listed impairment, a claimant must establish symptoms, signs and laboratory findings at 10 least equal in severity and duration to the characteristics of a relevant listed impairment, or, if a 11 United States District Court Northern District of California 4 claimant’s impairment is not listed, then to the listed impairment most like the claimant’s 12 impairment.” Tackett, 180 F.3d at 1099 (internal quotations omitted) (emphasis in original); 20 13 C.F.R. § 404.1526. 14 The ALJ concluded that “the [Plaintiff’s] mental impairments, although ‘severe’ in nature, 15 have not either singly or in combination met or medically equaled the criteria of any appropriate 16 listing section, including section 12.04 or 12.09.” (AR 25.) 17 The ALJ erred in neglecting to consider listings for 12.03 schizophrenic, paranoid, and 18 other psychotic disorder and 12.06 anxiety related disorders. With respect to 12.03, the Franklin 19 report detailed Plaintiff’s “auditory and visual hallucinations.” (AR 485.) The Gaasbeek Report 20 disclosed that Plaintiff has “auditory hallucinations of her deceased family members.” (AR 388.) 21 Medical records form Alameda County Medical Center additionally noted that Plaintiff sees 22 “green flashes” and “floaters in vision.” (AR 437.) Medical records from Sausal Creek 23 Stabalization clinic from 2006 indicated “auditory hallucinations” and “visual hallucinations.” 24 (AR 428.) 25 With respect to 12.06 Anxiety Related disorders, Dr. Franklin described Plaintiff’s 26 symptoms as “restlessness, difficulty maintaining focus, not being able to relax, feeling nervous 27 and scared, and most notably has fears of the worst happening, excessive nervousness, agitated 28 and hyper-vigilant behaviors and frequent nightmares.” (AR 490.) Dr. Franklin also wrote that 21 1 Plaintiff has “fears of dying.” (AR 492.) Both Dr. Franklin and Dr. Masters of Lifelong Medical 2 diagnosed Plaintiff with Posttraumatic Stress Disorder and Unspecified Anxiety Disorder (AR 3 491, 498, 502.) As the ALJ neglected to consider the severity of these diagnoses, it follows that 4 the ALJ failed to continue to step three to consider whether they equal a listing. Step Four: The ALJ’s Residual Functional Capacity (RFC) Determination 5 4. 6 The “Medical-Vocational Guidelines” of the Social Security regulations define RFC as “the maximum degree to which the individual retains the capacity for sustained performance of the 8 physical-mental requirements of jobs.” 20 C.F.R. pt. 404, subpt. P, app. 2, § 200.00(c). It is 9 essentially a determination of what the claimant can still do despite her physical, mental, and other 10 limitations. See 20 C.F.R. § 404.1545(a). “In determining a claimant’s RFC, an ALJ must consider 11 United States District Court Northern District of California 7 all relevant evidence in the record, including, inter alia, medical records, lay evidence, and the 12 effects of symptoms, including pain, that are reasonably attributed to a medically determinable 13 impairment.” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006) (internal citations 14 and quotation marks omitted). 15 The ALJ found that Plaintiff has the “residual functional capacity to perform medium 16 work...relative to the claimants mental residual functional capacity...she is restricted to the 17 performance of unskilled simple and routine job tasks of a low stress nature, not involving quotas 18 or other such measures of production.” (AR 26). The RFC determination is incorrect because it 19 fails to consider Dr. Franklin’s opinion. In posing hypotheticals to the VE, the ALJ did not 20 consider Plaintiff’s schizophrenia, anxiety, and posttraumatic stress disorder. Thus, the 21 hypotheticals may not be an accurate reflection of Plaintiff’s limitations. See Hill v. Astrue, 698 F. 22 3d 1153, 1162 (9th Cir. 2012)(“If a vocational expert’s hypothetical does not reflect all of the 23 limitations, then the expert’s testimony has no evidentiary value to support a finding that the 24 claimant can perform jobs in the national economy.”). Accordingly, the RFC is not supported by 25 substantial evidence. 26 27 28 5. Plaintiff’s credibility i. The standard for assessing credibility The standard to determine whether a claimant’s testimony is credible is different from the 22 1 standard used above for rejecting a physician’s testimony that is based on a claimant’s subjective 2 complaints. To “determine whether a claimant’s testimony regarding subjective pain or symptoms 3 is credible,” an ALJ must use a “two-step analysis.” Garrison, 759 F.3d at 1014. “First, the ALJ 4 must determine whether the claimant has presented objective medical evidence of an underlying 5 impairment which could reasonably be expected to produce the pain or other symptoms alleged.” 6 Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007) (internal citations and quotation marks 7 omitted). “Second, if the claimant meets the first test, and there is no evidence of malingering, the 8 ALJ can reject the claimant’s testimony about the severity of her symptoms only by offering 9 specific, clear and convincing reasons for doing so.” Id. (internal citations and quotation marks 10 United States District Court Northern District of California 11 omitted). An ALJ is not “required to believe every allegation of disabling pain.” Fair v. Bowen, 885 12 F.2d 597, 603 (9th Cir. 1989). A claimant’s credibility is most commonly called into question 13 where her complaint is about “disabling pain that cannot be objectively ascertained.” Orn, 495 14 F.3d at 637. “In weighing a claimant’s credibility, the ALJ may consider [her] reputation for 15 truthfulness, inconsistencies either in [her] testimony or between [her] testimony and [her] 16 conduct, [her] daily activities, [her] work record, and testimony from physicians and third parties 17 concerning the nature, severity, and effects of the symptoms of which [she] complains.” Light v. 18 Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997). “To support a lack of credibility finding” 19 about a claimant’s subjective pain complaints, an ALJ must “point to specific facts which 20 demonstrate that [the claimant] is in less pain than she claims.” Vasquez v. Astrue, 572 F.3d 586, 21 591-92 (9th Cir. 2009) (internal citation and quotation omitted). In sum, the ALJ is required to (1) 22 specify which testimony the ALJ finds not credible, and (2) provide clear and convincing reasons 23 supported by the record for rejecting the claimant’s subjective testimony. See Brown-Hunter v. 24 Colvin, No. 13–15213, 2015 WL 6684997, at *1, *5 (9th Cir. 2015). 25 ii. Analysis 26 The ALJ challenged Plaintiff’s credibility on four grounds: (1) Plaintiff made inconsistent 27 statements related to Plaintiff’s education and drug use; (2) Plaintiff made inconsistent statements 28 related to her activities of daily living; (3) there is an absence of medical evidence supporting her 23 1 statements about her mental disability; and (4) there is no treatment for Plaintiff’s disabling mental 2 symptoms. (AR 31-32.) The ALJ did not provide clear and convincing reasons for rejecting 3 Plaintiff’s testimony as not credible. 4 First, the ALJ incorrectly determined that Plaintiff’s inconsistent statements related to her education undermined her credibility. (AR 31.) The ALJ emphasized that when Plaintiff filed her 6 disability application she disclosed that her highest level of schooling was the ninth grade, but she 7 reported a tenth grade level education to Dr. Gaasbeek, and during a mental status evaluation she 8 reported that she received her GED. (Id.) These statements do not provide “clear and convincing 9 reasons” for rejecting Plaintiff’s credibility because the statements are consistent with the record. 10 Plaintiff dropped out of the tenth grade and subsequently received her GED. (AR 482.) It is not 11 United States District Court Northern District of California 5 obvious that the “highest level of schooling” is a GED rather than the highest grade completed, or 12 that reporting one has a tenth grade education when she partially completed tenth grade is 13 inconsistent with reporting that the highest level of schooling is the level completed—ninth grade. 14 Further, Plaintiff’s supposed confusion about her education is consistent with the 15 symptoms reported by her treating and examining physicians. Dr. Franklin reported that “she 16 exhibits confusion on questions,” Lifelong Medical reported that she has “difficulty 17 concentrating,” and Dr. Gaasbeek noted that her “thoughts were tangential” and she was “difficult 18 to redirect.” (AR 489, 505, 389.) Therefore, the alleged inconsistencies about her education is 19 not a “clear and convincing” reason for discrediting her testimony. 20 The ALJ also highlighted multiple inconsistent statements in the record related to 21 Plaintiff’s alcohol and drug use. (AR 31.) According to Dr. Franklin’s November 2014 report, 22 Plaintiff reported that she drinks 2-4 cans of beer daily, she “occasionally uses marijuana for 23 medicinal purposes,” and the last time she used cocaine was 20 years ago. (AR 485.) In a 24 November 24, 2014 report from Lifelong Medical, Plaintiff reported drinking 3-4 beers a day, 25 using cocaine twice a month, smoking 1/3 pack a day for about 40 year, and smoking marijuana 26 daily (AR 497). Moreover, Dr. Gaasbeek wrote in his June 7, 2013 report that Plaintiff “reported 27 that she was addicted to cocaine in the late 1980s. She completed court-ordered rehabilitation. 28 She reported that she continues to smoke marijuana and drink beer on a daily basis.” (AR 89.) 24 1 Here, Plaintiff’s inconsistent account of her cocaine use is problematic, but it is not clear from the 2 record that these contradictory statements are enough to discredit Plaintiff’s entire testimony. In 3 contrast to Thomas, where the Ninth Circuit agreed that the claimant was not credible because the 4 claimant had not “been a reliable historian, presenting conflicting information about her drug and 5 alcohol usage,” here Plaintiff’s other testimony with respect to her hallucinations, feelings of 6 depression, and history of abuse are consistent across all of her medical records. See Thomas v. 7 Barnhart, 278 F.3d 947, 959 (9th Cir. 2002); AR 79, 388, 428, 437, 485, 495-504. 8 9 Second, the ALJ concluded that Plaintiff’s inconsistent statements relative to her ability to function on a daily basis undermined her credibility. (AR 32.) The ALJ noted that Plaintiff testified that she performs no activities and generally just watches TV all day, but that Plaintiff 11 United States District Court Northern District of California 10 also told Dr. Lewis that she can take care of her own personal needs and performs all household 12 chores. (AR 32.) The ALJ also noted that Plaintiff told Dr. Gaasbeek that she stays in bed most 13 of the day. (AR 32.) These statements, however, do not undermine Plaintiff’s credibility because 14 they are not necessarily inconsistent. Symptoms can range in their intensity and functional effects. 15 Occasional periods without symptoms are not inconsistent with disability. See Lester, 81 F.3d at 16 833. Furthermore, completing basic chores and staying in bed the majority of the day are not 17 mutually exclusive. Plaintiff reported to Dr. Gaasbeek that she “stays in bed most of the day, does 18 not come out until the evening to go to the store for beer and food.” (AR 389.) She also testified 19 that she cleans herself “maybe once a week,” does shopping “once a week,” and does laundry 20 “every couple months.” (AR 65.) Thus, Plaintiff’s statements about going to the store and 21 cleaning are not necessarily inconsistent with her statements that she stays in bed most of the day. 22 Third, the ALJ found that the Plaintiff’s complaints were “generally unsupported by the 23 medical record.” (AR 31.) As discussed above, Plaintiff’s testimony as to her visual 24 hallucinations and depression are corroborated by Dr. Franklin’s objective psychiatric 25 assessments. (AR 486-89.) Plaintiff’s references to her auditory and visual hallucinations and 26 depression are corroborated by Dr. Franklin’s tests. (AR 488-90.) Dr. Franklin found that 27 Plaintiff has “many of the physical and emotional symptoms of anxiety and depression.” (AR 28 490.) Dr. Franklin further concluded: 25 1 2 3 4 5 6 7 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Neuropsychological testing on this client indicates Ms. Ward is experiencing serious impairments in areas of executive functioning. It is likely these impairments are the direct result of intrusive emotional difficulties caused by the combination of an extensive history of trauma, the overwhelming loss of family members and close friends, and the significant stress associated with her housing and financial difficulties. Disordered thinking and visual/auditory hallucinations also likely impact Ms. Ward’s executive functioning and processing skills. (AR 492.) Fourth, the ALJ concluded that Plaintiff lacks credibility because “[Plaintiff’s] allegations relative to severe psychiatric symptomatology and associated functional limitations are not supported by her concurrent level of medical treatment.” (AR 32.) The ALJ impermissibly faults Plaintiff for not seeking more treatment. The ALJ writes, “[W]hen examined by Dr. Gaasbeek, the claimant noted significant symptoms related to depression. However, despite such allegations of debilitating symptomatology, she further indicated that she was not taking any psychotropic medications at that time.” (AR 32.) Yet, a claimant may not be faulted for failing to seek treatment, particularly when the claimant suffers from mental illness. See Regennitter v. Comm’r of Soc. Sec. Admin., 166 F.3d 1294, 1299–300 (9th Cir. 1999) (quoting Nguyen v. Chater, 100 F.3d 1462, 1465 (9th Cir. 1996)) (“we have particularly criticized the use of a lack of treatment to reject mental complaints both because mental illness is notoriously underreported and because ‘it is a questionable practice to chastise one with a mental impairment for the exercise of poor judgment in seeking rehabilitation.’”) Thus, the ALJ failed to provide clear and convincing reasons supported by the record for refusing to credit Plaintiff’s testimony. 6. Scope of Remand Plaintiff asks the Court to remand for immediate benefits. Generally, when the Court reverses an ALJ’s decision, “the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation.” Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004). However, a court may remand for an immediate award of benefits where “(1) the record has been fully developed and further administrative proceedings would serve no useful purpose; (2) the ALJ has failed to provide legally sufficient reasons for rejecting evidence, 26 1 whether claimant testimony or medical opinion; and (3) if the improperly discredited evidence 2 were credited as true, the ALJ would be required to find the claimant disabled on remand.” 3 Garrison, 759 F.3d at 1020. 4 Each part of this three-part standard must be satisfied for the court to remand for an award 5 of benefits, id., and “[i]t is the ‘unusual case’ that meets this standard.” Williams v. Colvin, No. 6 12–CV6179, 2014 WL 957025, at *14 (N.D. Cal. Mar. 6, 2014) (quoting Benecke, 379 F.3d at 7 595). Moreover, if “an evaluation of the record as a whole creates serious doubt that a claimant is, 8 in fact, disabled,” a court should remand for further proceedings “even though all conditions of the 9 credit-as-true rule are satisfied.” Garrison, 759 F.3d at 1021; see also Treichler, 775 F.3d at 1106 (“[A] reviewing court is not required to credit claimants’ allegations regarding the extent of their 11 United States District Court Northern District of California 10 impairments as true merely because the ALJ made a legal error in discrediting their testimony.”). 12 However, “an award under this rule is a rare exception, and the rule was intended to deter ALJs 13 from providing boilerplate rejections without analysis.” Leon v. Berryhill, No. 15-15277, 2017 14 WL 5150294, at *2 (9th Cir. Nov. 7, 2017). Indeed, “where ... an ALJ makes a legal error, but the 15 record is uncertain and ambiguous, the proper approach is to remand the case to the agency.” Id. 16 (citing Treichler, 775 F.3d at 1105). 17 The first part of the analysis asks whether the record has been fully developed, whether 18 there are outstanding issues that must be resolved before a determination of disability can be 19 made, and whether further administrative proceedings would be useful.” Id. at *4. Here, remand 20 is useful because questions exist regarding the extent of the severity of Plaintiff’s schizoaffective 21 disorder, posttraumatic stress disorder, and anxiety disorder. Second, the ALJ has failed to 22 provide legally sufficient reasons for discrediting Dr. Franklin’s medical opinion and allocating 23 greater weight to the opinions of non-examining physicians. 24 Even if the record were fully developed and the improperly discredited evidence is credited 25 as true, it is not certain that the ALJ would be required to find Plaintiff legally disabled under the 26 third part of the credit-as-true standard. Id. at *4. Because the record creates doubts as to whether 27 Plaintiff is in fact disabled, the rare circumstances that result in a direct award of benefits are not 28 present in this case. See id. The Court thus declines to reach the credit-as-true rule and must 27 1 instead remand for further proceedings. CONCLUSION 2 3 For the reasons stated above, the Court GRANTS Plaintiff’s Motion for Summary 4 Judgment (Dkt. No. 15), DENIES Defendant’s Cross-Motion for Summary Judgment (Dkt. 21). 5 The Court VACATES the ALJ’s final decision and REMANDS for reconsideration consistent 6 with this order. 7 This Order terminates Docket Nos. 15 and 21. 8 IT IS SO ORDERED. 9 Dated: November 28, 2017 10 United States District Court Northern District of California 11 J Q JACQUELINE JACQUELINE SCOTT CORLEY CORLEY LE LE U i d States M i United S Magistrate J d Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 28

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