Reyes v. Colvin

Filing 18

ORDER denying 15 Motion for Summary Judgment; granting 16 Motion for Summary Judgment.In the attached order, the court denies Ms. Reyes's summary-judgment motion and grants the Commissioner's cross-motion. (Beeler, Laurel) (Filed on 9/28/2017)

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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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KIMBERLYDAWN BORJA REYES,

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Plaintiff,
v.

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NANCY A. BERRYHILL,
Defendant.

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Case No. 16-cv-06958-LB
ORDER DENYING PLAINTIFF’S
SUMMARY-JUDGMENT MOTION
AND GRANTING DEFENDANT’S
CROSS-MOTION FOR SUMMARY
JUDGEMENT
Re: ECF Nos. 15 & 16

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INTRODUCTION

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Plaintiff Kimberlydawn Reyes seeks judicial review of a final decision by the Commissioner

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of the Social Security Administration denying her claim for Supplemental Security Income

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(“SSI”) benefits under Title XVI of the Social Security Act.1 She moved for summary judgment;

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the Commissioner opposed the motion and filed a cross-motion.2 Under Civil Local Rule 16-5, the

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matter is deemed submitted for decision by this court without oral argument. All parties consented

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to magistrate-judge jurisdiction.3 The court denies Ms. Reyes’s summary-judgment motion and

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grants the Commissioner’s cross-motion for summary judgment.

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Cross-Motion – ECF No. 16.

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Consent Forms – ECF Nos. 6, 11.

Summary-Judgment Motion ̶ ECF No. 15. 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.

ORDER – No. 16-cv-06958-LB 

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STATEMENT
1. Procedural History
On February 28, 2013, Ms. Reyes, then age 38, filed a claim for SSI benefits based on

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depression, anxiety, right-hand weakness, back problems, arthritis, foot pain, hip problems, and

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head pain.4 Ms. Reyes’s alleged disability onset date is April 1, 2011.5 On March 14, 2013, R.

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Augello interviewed Ms. Reyes at a field office and completed a disability report, screening for

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prior claims.6 Her claim is similar to a previous claim she filed in February 2010,7 which the

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Commissioner and ultimately Administrative Law Judge Richard Laverdure denied in December

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2011.8
The Commissioner denied her current claim for SSI benefits initially and upon

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United States District Court
Northern District of California

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reconsideration.9 After the appointment of non-attorney advocate Dennis Contreras,10 Ms. Reyes

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timely appealed the Commissioner’s determination.11 On May 11, 2015, Administrative Law

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Judge Mary Parnow (the “ALJ”) held a hearing and heard testimony from Ms. Reyes and

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vocational expert Jo Ann Yoshioka.12 On August 14, 2015, the ALJ issued an unfavorable

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decision.13 The Appeals Council denied Ms. Reyes’s request for review of the decision.14 Ms.

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Reyes timely filed this action on December 2, 201615 and moved for summary judgment.16

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Administrative Record (“AR”) 14, 141, 158–59, 246.

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AR 160.

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AR 265–72.

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AR 119, 160.

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AR 116–34.

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AR 157, 172.

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AR 175–76.

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AR 191–96.

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AR 92–115.

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AR 11–28.

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AR 1–3.

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Compl. – ECF No. 1.

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Summary-Judgment Motion – ECF No. 15.

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ORDER – No. 16-cv-06958-LB

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The Commissioner opposed the motion and filed a cross-motion for summary judgment.17 Ms.

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Reyes elected not to file a response and submitted the matter.18

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2. Summary of Record and Administrative Findings

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2.1 Medical Records

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2.1.1

Dr. Nefissa Chambi: Primary-Care Physician – Treating

Ms. Reyes was treated by her primary-care physician Dr. Chambi and other healthcare

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providers at the Permanente Medical Group from April 2010 through July 2011 for a variety of

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aliments including hypertension, diabetes, common colds, and skin ailments.19 When Ms. Reyes

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complained about intermittent pain in her hip, knee, and hand (possibly related to an old injury

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United States District Court
Northern District of California

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and “retained metal in [her] pinky finger”),20 Dr. Chambi ordered hip and hand x-rays that showed

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no problems with her hips and no metal in her hand.21 Ms. Reyes felt she could not work and

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needed “documentation stating that her hand is not normal.”22 Dr. Chambi noted that Ms. Reyes

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was “[t]rying to get disability; reports that [she] cannot do her regular job (typing) due to old

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finger injury”23 and wrote that she discussed the finger issue with Ms. Reyes and said that it was

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“[n]ot a reason to get disability.”24 Ms. Reyes later said that she was having “serious issues” and

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thought that Dr. Chambi was “trying to keep her away from seeing the specialist [be]cause you are

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hidding [sic] something.”25 Dr. Chambi referred Ms. Reyes to an orthopedist, but advised her “that

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there is no[t] much that they can do for her finger.”26

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Cross-Motion – ECF No. 16.

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Notice of Submission – ECF No. 17.

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AR 390–563.

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AR 431.

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AR 434.

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Id.

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AR 439.

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AR 440–41.

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AR 443.

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AR 442.

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ORDER – No. 16-cv-06958-LB

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2.1.2

Joanne Ramos: Physician’s Assistant – Treating

In January 2011, Ms. Reyes saw P.A. Ramos about her pinky finger, hip pain, and lower back

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pain.27 P.A. Ramos performed a physical examination and determined that the right hip was

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“normal.”28 She ordered x-rays of the spine and knee.29 P.A. Ramos examined Ms. Reyes’s left

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knee in February 2011 and found there was a “slight lateral tilt of the left patella,” so she

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recommended a knee brace and exercises.30 When Ms. Reyes complained about her knee pain

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several weeks later, P.A. Ramos referred her to physical therapy.31
In November 2011, P.A. Ramos saw Ms. Reyes again and noted that the February 2011 x-ray

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showed “[e]arly degenerative disc disease at the L4-5 and L5-S1 levels.”32 P.A. Ramos concluded
that Ms. Reyes knees had “mild subchondral sclerosis,”33 but that she had “no swelling, no

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Northern District of California

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erythema, no tenderness to palpation, [and] full range of motion. . . .”34 P.A. Ramos wrote that she

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did not “see any orthopedic pathology other than patella alta on the left [and] mild degenerative

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changes in both knees [that] won’t explain the pressure-like pain radiating from the hip down the

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lateral aspect of the lower extremities.”35 P.A. Ramos referred Ms. Reyes to physical therapy.36
In November 2012, Ms. Reyes returned and reported lower back pain, knee pain, swelling in

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her leg and ankle, and chest pain.37 A November 2012 x-ray showed “some mild degenerative

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changes in her knees.”38 P.A. Ramos noted that Ms. Reyes was “not a very reliable historian” and

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27

AR 447–52.

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AR 450.

29

AR 450–51.

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30

AR 476.

31

AR 489.

32

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AR 612–13.

33

AR 613.

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34

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35
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37

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Id.
Id.
Id.
AR 903.
Id.

ORDER – No. 16-cv-06958-LB

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questioned whether her symptoms were “really true.”39 Ms. Reyes was given a cortisone injection

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for her left knee.40 In March 2013, when Ms. Reyes asked P.A. Ramos for a note stating that “she

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is unable to sit or stand due to her hip and knees [sic] problem,” P.A. Ramos stated she did not

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“see any reason to restrict her from sitting or standing.”41

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2.1.3

Dr. Binh Luu: Spine Specialist – Treating

Ms. Reyes saw Dr. Luu about her lower back pain in November 2011.42 Dr. Luu found she had

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early degenerative disc disease; he prescribed physical therapy and ordered an MRI.43 The MRI

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revealed “very mild degenerative changes.”44 “There is a mild BB disc bulge at L4-5 that may be

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leading to mild/subtle lateral recess narrowing.”45 Ms. Reyes received an epidural steroid injection

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in May 2012.46 At a follow-up visit, Ms. Reyes complained that the injection did not help, but Dr.

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Luu did “not recommend any repeat epidural steroid injection.”47
In March 2013, Ms. Reyes asked Dr. Luu for a note “stating that she is unable to sit and stand

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due to her back problem.”48 Dr. Luu declined because there were “[n]o restrictions from spine

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standpoint”; he stated “she only has very mild degenerative changes in her back but this does not

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prevent her from sitting or standing.”49

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39

Id.

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40

AR 903.

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41

AR 1085–86.

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AR 623–28.

43

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AR 626.

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AR 643.

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45

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Id.

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AR 644 (order), 789–808 (injection procedure).

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AR 822.

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AR 1086.

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49

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Id.

ORDER – No. 16-cv-06958-LB

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2.1.4

Dr. Jill Smith Forster: Orthopedic Surgeon – Treating

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Ms. Reyes had surgery on her flexor tendon twenty years ago,50 and she visited the same

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orthopedic surgeon (Dr. Smith Forster) again in February 2011 because she could not move her

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right pinky finger well and wanted a “note so she can be declared handicapped.”51 Ms. Reyes

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could not “state when the finger stopped working.”52 Dr. Smith Forster prescribed a splint and

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injection, which she found to be partially effective at a follow-up appointment in April 2011.53 In

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September 2011, Dr. Smith Forster declined to sign paperwork that Ms. Reyes brought in for her

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SSI claim because Ms. Reyes had full range of motion in her hand, with the exception of a slight

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deviation of her pinky that would not prevent her from using her hand, and said that she “see[s] no
reason from a hand point of view why this patient cannot be gainfully employed.”54 In March

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2013, when Ms. Reyes asked for a disability note, Dr. Smith Forster reported that she had “not

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seen this patient for several years,” but that “[s]he is not a candidate for ssi for her hand and can

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use it with no restrictions.”55

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2.1.5

Dr. Hyeon Choe: Primary-Care Physician – Treating

Ms. Reyes began seeing a new primary-care physician, Dr. Choe, in September 2011 for a

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“routine check up and exam [but ] . . . mainly to discuss about her SSI application.”56 Dr. Choe

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noted she had an appointment with orthopedics and did not complete her requested SSI

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paperwork.57
In December 2011, Ms. Reyes called Dr. Choe, reporting depression and anxiety and seeking

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50
51

AR 471.
Id.

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52

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53

AR 471–72, 510.

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AR 585.

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AR 1086.

56

AR 575.

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AR 581.

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Id.

ORDER – No. 16-cv-06958-LB

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anti-depressant medication as recommended by her therapist.58 Dr. Choe also noted that Ms.

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Reyes filed for SSI and had been advised to contact her primary-care physician for her “depression

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issue.” 59 Dr. Choe diagnosed her with major depression, prescribed medication, and referred her

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for mental-health services.60 The next month, Ms. Reyes had another appointment, where Dr.

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Choe noted that the 5’ 2” Ms. Reyes had lost weight but still weighed 182 pounds and needed to

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control her diabetes.61 Throughout 2012, Dr. Choe, along with other staff at the Permanente

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Medical Group, continued to treat her for diabetes, common colds, and skin ailments.62

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In September 2012, Ms. Reyes reported experiencing arm pain.63 Dr. Choe diagnosed her with

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“lateral epicondylitis of elbow” (or “tennis elbow”) and prescribed rest, exercises, and ibuprofen.64
In November 2012, Ms. Reyes visited Dr. Choe about leg and ankle swelling, chest pain, and

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numb hands.65 Dr. Choe gradually lowered her dosage of a diabetes medication, and by April

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2013, the swelling had improved significantly.66 Dr. Choe continued to treat Ms. Reyes for

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diabetes, colds, and skin ailments through 2014.67

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2.1.6

In May 2014, Ms. Reyes had another MRI taken of her spine.68 The MRI showed “mild

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Dr. Preston-Hsu and Dr. Lau: Spine Specialists – Treating

discogenic disease of the cervical spine . . . .”69 Two physicians in the Spine Clinic at the

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AR 638.

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AR 638.

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Id.; see also AR 646 (noting Dr. Choe’s referral for “depression and stress”).

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AR 663–64.

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AR 668–73, 685–726, 731–43, 757–65, 768–88, 809–17, 842–45, 861–63, 913–19, 922–23, 926–
1008.

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AR 855.

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AR 854–60.

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65

AR 896.

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AR 896–97, 1107.

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AR 1166–69, 1202–08.

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AR 1178–81.

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AR 1178.

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ORDER – No. 16-cv-06958-LB

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Permanente Medical Group reviewed the MRI with Ms. Reyes.70 In May 2014, Dr. Preston-Hsu

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went over the imaging with Ms. Reyes and noted that she had “mild” degenerative disc disease.71

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In October 2014, Dr. Lau discharged Ms. Reyes from the spine clinic, stating, “there is no further

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management or diagnostic process that [the] spine clinic can offer.”72 Dr. Lau noted that there

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were “no signs of MRI findings to support [diagnosis] of cervical radic[ulopathy] or lumbar

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radic[ulopathy].”73

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2.1.7 Anneli Keller: Physical Therapist – Treating
Ms. Reyes had three physical therapy appointments with Anneli Keller to manage chronic pain

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in October and November 2014.74 The parties do not address these records, which do not

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otherwise contain information material to the issues presented, and so the court does not

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summarize them here.

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2.1.8

Dr. Daniel Dal Corso: Clinical Psychologist – Treating

In December 2011, Ms. Reyes began seeing psychologist Daniel Dal Corso, who diagnosed

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her with major depression and adjustment disorder with anxious mood based on her reports of

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“depression including depressed mood, anhedonia, significant appetite change, decreased energy

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and decreased concentration.”75 He recommended that she continue taking her antidepressants and

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going to therapy.76 He treated Ms. Reyes for depression and anxiety throughout the following

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year.77
In January 2012, Dr. Dal Corso observed that Ms. Reyes had a “hyperverbal rambling

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AR 1182–90, 1209–14.

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AR 1189.

72

AR 1213.

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73

AR 1213.

74

AR 1215–17, 1219–21, 1224–26.

75

AR 645–47.

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26
27

76

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77

Id.
AR 679–82, 744–46, 818–20, 836–38, 845–47, 864–66, 869–70.

ORDER – No. 16-cv-06958-LB

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presentation,” possibly from being “overly caffeinated.”78 Dr. Dal Corso noted Ms. Reyes

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indicated that “she is currently disabled and not working but not able to answer what her disability

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is.”79 In March 2012, Ms. Reyes was “anxious about money” and “somewhat rambling,” making it

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“hard to track how she’s doing.”80 In May 2012, Dr. Dal Corso diagnosed her with “ADD/ADHD”

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and noted that Ms. Ramos reported being “calmer” on her medication and received an epidural

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three weeks earlier that helped “considerably with [her] pain.”81 In July 2012, Ms. Reyes reported

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that she was “feeling calmer” due to her medication but was stressed due to conflicts with

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neighbors and a perceived lack of family support.82 Dr. Dal Corso observed that her “line of

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thought [was] somewhat tangential.”83 Dr. Dal Corso “repeatedly encouraged [Ms. Reyes] to make
[an] appointment with [a] Medi-Cal psychiatrist for evaluation/treatment for attention deficit

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disorder.”84
In September 2012, Ms. Reyes reported that she had made an appointment with a Medi-Cal

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psychiatrist.85 She also noted that she was “feeling very nervous,” which she thought was “likely

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due to [her] kids starting back to school and having trouble coordinating and keeping up with

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everything.”86
In October 2012, she reported “ongoing anxiety about not being organized, forgetting things to

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AR 680.

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79

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80

AR 745.

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AR 818–20.

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AR 837.

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83

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Id.

84

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Id.

Id. The ALJ stated that while “the claimant’s treatment providers questioned that she might have had
ADHD, there was never a diagnosis or specific treatment.” (AR 16.) Dr. Dal Corso and therapist Amy
Walker did, however, list a diagnosis of ADD/ADHD. (AR 818, 1135.) But, as acknowledged by the
ALJ, Dr. Dal Corso recommended further evaluation, and the record does not reflect what (if any)
specific treatment Ms. Reyes received for ADD or ADHD. Because Ms. Reyes does not raise this
particular statement by the ALJ or the issue of ADD/ADHD, the court does not consider it as a
potential error here. See Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997) (declining to address
arguments not raised in the district court).

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AR 846, 865 (confirming appointment scheduled with Dr. Vallas).

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86

AR 846.

ORDER – No. 16-cv-06958-LB

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do, worry about [her] kids, [and] worry about other relatives saying negative things about her.”87

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She had experienced “numbness in the left side and [shortness of breath] for ‘about the past

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week.’”88 Dr. Dal Corso diagnosed her with “generalized anxiety disorder” and recommended that

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she call the advice nurse to see if she needed treatment for her physical symptoms.89

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2.1.9

Leslie Zuska: Marriage and Family Therapist – Treating

Ms. Reyes began seeing Ms. Zuska in October 201190 to treat her “anxiety, depression,

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suspiciousness and possibly paranoid ideation about her family members.”91 The record contains

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chart notes from two therapy sessions in July and September 2013.92 In July, Ms. Zuska observed

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that Ms. Reyes’s fear, tangential thinking, and incoherence seemed “to be resolving a bit.”93 Ms.

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Reyes reported that she was working on managing her diet and diabetes.94

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In September 2013, Ms. Zuska observed that Ms. Reyes was “a bit agitated” but otherwise

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very involved in her children’s education and on top of their homework and other issues.95 Ms.

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Zuska noted that Ms. Reyes had a “new level of self-awareness” and coherence, noting during the

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session that “she stopped herself mid-sentence to say ‘let me go back and finish one thought

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first.’”96 Ms. Zuska also observed that Ms. Reyes “continues to be unable to sit through a 45

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minute session without walking to relieve pain in hip and knee.”97

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87

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88

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AR 870.
Id.
Id.

90

AR 375.

91

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AR 1114.

92

AR 1113–18.

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93

AR 1118.

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95

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96

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97

Id.
Id.
Id.
Id.

ORDER – No. 16-cv-06958-LB

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2.1.10 Dr. Melissa Vallas: Psychiatrist – Treating
In September 2012, Ms. Reyes saw Dr. Vallas for an initial assessment at Pathways to

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Wellness after her psychologist, Dr. Dal Corso, referred her to be evaluated for attention deficit

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hyperactivity disorder.98 Dr. Vallas found Ms. Reyes had “excessive anxiety affecting

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relationships” and moderate functional limitations of performing daily activities, maintaining

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social relationships, and maintaining concentration, persistence, and pace.99 She described Ms.

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Reyes as cooperative, euthymic in affect, okay in mood, and having a linear thought process

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without hallucinations or delusions.100
In February 2013, Ms. Reyes saw Dr. Vallas again and complained that her anxiety level was

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“7-8/10” and she was stressed about her finances.101 Dr. Vallas found Ms. Reyes had “residual

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[symptoms] of anxiety bordering on psychosis” and increased her dose of Risperidone.102 But she

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also found that Ms. Reyes was cooperative and had good judgment and a linear thought process

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without hallucinations or delusions.103
In March 2013, Ms. Reyes reported to Dr. Vallas that her anxiety was a “6-7/10” and she

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continued to suffer from panic episodes, excessive worry, and financial strain.104 Dr. Vallas

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concluded that Ms. Reyes had “chronic severe anxiety bordering on psychotic” and “residual sleep

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problems.”105 She prescribed Seroquel instead of Risperidone and kept her on Celexa.106

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In April 2013, Ms. Reyes reported that she was feeling calmer and less anxious, sleeping

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better, and having fewer headaches.107 She said that she was unemployed and applying for SSI.108

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25
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98

AR 376–82.

99

AR 380.

100

AR 379.

101

AR 388–89.

102

AR 389.

103

AR 388–89.

104

AR 386.

105

AR 387.

106

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107

28

108

Id.
AR 384.
Id.

ORDER – No. 16-cv-06958-LB

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Dr. Vallas made no changes to Ms. Reyes’s medications and noted that she should continue to

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chart her moods and monitor any changes in symptoms.109

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2.1.11 Dr. Soleng Tom: Psychiatrist – Treating
On February 3, 2014, Ms. Reyes returned to Pathways to Wellness, reported a decreased

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appetite, but denied having panic attacks or insomnia.110 Dr. Tom examined Ms. Reyes and

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reported that she was oriented, verbal, polite, and articulate and clinically stable with intact

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memory, linear thought process and “fair” judgment and insight; he also noted that she was calm,

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cooperative with normal speech and appropriate affect and that her mood was “euthymic” (normal,
non-depressed) “on medication.”111 He recommended that she continue taking Seroquel, Prozac,

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and clonazepam at her current dosages.112

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2.1.12 Dr. Chris Esguerra: Psychiatrist – Treating
Ms. Reyes saw Dr. Esguerra at Pathways to Wellness from February 2014 to August 2014.113

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On February 20, 2014, Dr. Esguerra reported that she was “calm,” “cooperative,” and “adequately

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groomed” with a “normal gait and tone.”114 Ms. Reyes reported subjective symptoms of

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“debilitating anxiety with all day worry occurring 4–5 days out of the week” and an inability to

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leave the house due to “racing thoughts” and “feeling under pressure” with “low energy” and “ok”

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but “variable” sleep patterns.115 Dr. Esguerra found her speech to be “loud” but her affect to be

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appropriate, her thought process linear, her thought content to be within normal limits, her

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memory intact, her judgment good, her attention, concentration, and insight to be fair, and that she

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23

109

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AR 385.

110

AR 1128.

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111

AR 1128–29.

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112

Id.

113

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AR 1121–27, 1153–58.

114

AR 1126.

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115

Id.

ORDER – No. 16-cv-06958-LB

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presented no danger to herself or others.116 Dr. Esguerra did find that her “Generalized Anxiety

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Disorder [was] still minimally managed” and adjusted her dosages of Seroquel, Prozac, and

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clonazepam; he scheduled a follow-up visit in 3 to 6 weeks.117
At the follow-up visit on March 11, 2014, Ms. Reyes reported that her anxiety was “up and

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down” and that she worried a lot about her kids, who were struggling in school and with other

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issues.118 She noted that she had been hit recently in the arm by a female student at her son’s

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school and that she sometimes felt like people were against her or going to attack her when she

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went out in public.119 Dr. Esguerra found her appearance to be healthy and adequately groomed

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with a “steady” gait and “good” tone; she appeared “[t]ense,” and she was cooperative with

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normal (but loud) speech.120 Ms. Reyes’s affect was appropriate but she exhibited negative

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thoughts and had fragmented thought content.121 Dr. Esguerra found her memory to be intact and

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her attention, concentration, and judgment to be fair.122 Dr. Esguerra noted that Ms. Reyes was

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“struggling with coping with her anxiety, particularly around her kids” and that she needed to

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continue with therapy, breathing exercises, and her medication.123 Dr. Esguerra scheduled a

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follow-up visit in four weeks.124
On April 3, 2014, Ms. Reyes reported having two panic attacks a week and continued stress

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about her children.125 Ms. Reyes did state that she was doing the breathing exercises (albeit for

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shorter periods than prescribed) but found it helpful.126 She also noted that she was sleeping “ok”

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116

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AR 1126–27.

117

AR 1127.

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118

AR 1124 (report signed by both Dr. Esguerra and a registered nurse).

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119
120

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121

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122

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123
124

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125

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126

Id.
Id.
AR 1125.
Id.
Id.
Id.
AR 1121.
Id.

ORDER – No. 16-cv-06958-LB

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and eating less, and her energy was “ok.”127 Dr. Esguerra recommended that she continue her

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medication and therapy regimen and noted that she was cooperative and appropriate in dress, with

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normal speech and a normal, non-depressed “euthymic” mood and affect.128 He also noted that

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Ms. Reyes’s thought process was goal-directed with normal content, her memory, insight,

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judgment, attention, and concentration were all in intact, her gait, muscle strength and tone were

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all normal, and her fund of knowledge was “average.”129 Dr. Esguerra increased the interval for

7

Ms. Reyes’s next follow-up visit to six weeks.130
In May 2014, Dr. Esguerra filled out a check-the-box assessment for Ms. Reyes’s SSI claim.131

8
9

Dr. Esguerra found slight limitations of her ability to (1) remember locations and work-like
procedures, (2) maintain attention and concentration for simple tasks, (3) adhere to a schedule,

11
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10

(4) work close to others without being distracted, and (5) maintain socially appropriate behavior

12

and cleanliness.132 Ms. Reyes had moderate limitations of her ability to (1) understand and

13

remember both simple and detailed instructions, (2) maintain attention and concentration for

14

detailed tasks, (3) interact appropriately with the public, and (4) work with others without causing

15

distractions.133 Ms. Reyes had marked limitations of her ability to (1) perform at a consistent pace

16

without an unreasonable number or length of rest periods, (2) handle normal work stress, and (3)

17

accept instructions and criticism.134 Dr. Esguerra opined that he would expect Ms. Reyes to miss

18

12 days of work each month as a result of her conditions.135
In June 2014, Ms. Reyes saw Dr. Esguerra, reporting “some shortness of breath lately” and

19
20
21
22
23

127
128
129

Id.
AR 1122.
Id.

24

130

AR 1123.

25

131

AR 1139–41.

132

AR 1139–40.

26

133

Id.

27

134

AR 1140.

28

135

AR 1141.

ORDER – No. 16-cv-06958-LB

14 

1

“two panic attacks.”136 She reported that the attacks were “due to worries about her house

2

hunting.”137 Dr. Esguerra noted that Ms. Reyes had “severe [Generalized Anxiety Disorder] with

3

appropriate stress due to housing and medical issues.”138 He recommended that she focus on

4

therapy and work with her primary-care physician to stabilize her shortness of breath and blood

5

sugar.139 Dr. Esguerra’s previous positive exam findings in April 2014 about her appearance,

6

behavior, speech, mood, affect, thought process, judgment, insight, memory, attention, et cetera

7

remained unchanged.140 Dr. Esguerra maintained the interval for Ms. Reyes’s next follow-up visit

8

at six weeks.141
In August 2014, Ms. Reyes reported she was “dealing with ups and downs” and sometimes

10

still felt overwhelmed “by social stressors,” including family and relationship issues, but also was

11
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Northern District of California

9

more excited, energetic, and positive.142 Dr. Esguerra noted that her generalized anxiety disorder

12

was improving, she was “better handling her stressors,” therapy had proven “helpful,” and her

13

diabetes appeared to better controlled, but she was “not yet ready” to reduce her clonazepam

14

dosage.143 Dr. Esguerra’s previous positive exam findings in April and June 2014 about her

15

appearance, behavior, speech, mood, affect, thought process, judgment, insight, memory,

16

attention, et cetera remained unchanged.144 Dr. Esguerra also increased the interval for Ms.

17

Reyes’s next follow-up visit to eight weeks.145
There are no records of visits with Dr. Esguerra in 2015, but a letter “created per the request of

18
19

the addressee,” Ms. Reyes, and signed by “Elizabeth Mole, MSN, RN, PMHNP” on January 28,

20
21

136

22

137

23

138
139

AR 1156.
Id.
AR 1157.
Id.

24

140

25

141

AR 1158.

142

AR 1153.

143

AR 1154.

26
27

144

28

145

Id.

Id.
AR 1155.

ORDER – No. 16-cv-06958-LB

15 

1

2015 states that Ms. Reyes has been a patient at Pathways to Wellness since September 10, 2012,

2

and is “currently diagnosed with Generalized Anxiety Disorder.”146

3
4

2.1.13 Amy Walker: Marriage and Family Therapist – Treating

5

Ms. Reyes had four therapy sessions with Ms. Walker between March 2014 and May 2014 to

6

treat anxiety, depression, and symptoms of attention-deficit hyperactivity disorder.147 Ms. Walker

7

found Ms. Reyes had “tangential and disorganized” speech.148 Ms. Reyes consistently expressed

8

worries and concerns about her family and finances.149 Ms. Reyes noted that she was not

9

managing her diabetes very well; at one session, she reported that she could not discern whether

10

she was experiencing high blood sugar or anxiety.150
In May 2014, Ms. Walker completed a check-the-box report for Ms. Reyes.151 She found slight

United States District Court
Northern District of California

11
12

limitations of Ms. Reyes’s ability to (1) accept instructions and criticism from supervisors and

13

(2) maintain socially acceptable behavior.152 She found moderate limitations of Ms. Reyes’s

14

ability to (1) remember locations and work-like procedures and (2) understand and remember

15

simple and detailed instructions.153 Ms. Reyes had marked limitations of her ability to (1) handle

16

normal work stress, (2) interact appropriately with the public, and (3) work without distracting

17

others.154 Ms. Walker identified extreme limitations of Ms. Reyes’s ability to (1) maintain

18

attention and concentration for simple and detailed tasks, (2) adhere to a schedule, (3) work close

19

to others without being distracted, and (4) perform at a consistent pace without an unreasonable

20
21
22
23

146

AR 1227.

147

AR 1134–35.

148

Id.

24

149

25

150

AR 1135.

151

AR 1131–32.

152

27

AR 1132.

153

AR 1131.

28

154

AR 1132.

26

Id.

ORDER – No. 16-cv-06958-LB

16 

1

number or length of rest periods.155

2

2.1.14 Dr. Carmen Roman: Psychiatrist – Treating
In October 2014, Ms. Reyes saw Dr. Roman at Pathways to Wellness.156 Ms. Reyes reported

3

still feeling overwhelmed by “social stressors,” including mild stress due to “family and

5

relationship concerns,” but said that she had more excitement and better energy.157 Dr. Roman

6

diagnosed her with generalized anxiety disorder but noted that she had been “stable on [her]

7

current medications” and that her “[m]ain issues are related to family stress.”158 Dr. Roman noted

8

that she presented as anxious with rapid/pressured speech and that she was otherwise cooperative,

9

goal-directed, alert, with intact judgment, memory, attention, concentration, and language, with an

10

average fund of knowledge and a normal gait and muscle strength and tone — though Ms. Reyes

11
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4

did report a history of “chronic pain.”159

12
13

2.1.15 Mary Ann Vigilanti: State Agency Psychologist – Examining

14

Dr. Vigilanti evaluated Ms. Reyes’s mental status on May 11 and 21, 2010.160 Dr. Vigilanti

15

conducted the examination in two separate visits “because of the length of time it took to complete

16

one test.”161 Dr. Vigilanti described Ms. Reyes as “hyper verbal with excessive details” and

17

“present[ing] as anxious, almost manic.”162 Dr. Vigilanti noted that Ms. Reyes’s “thinking became

18

tangential when responding to some questions, becoming incoherent.”163 Dr. Vigilanti listed

19

diagnoses of anxiety disorder, unknown substance-related disorder (based on prescribed

20
21
22
23

155

AR 1131–32.

156

AR 1150.

157

Id.

24

158

AR 1152.

25

159

AR 1150–51.

160

AR 354.

161

AR 355.

26
27

162

28

163

Id.
Id.

ORDER – No. 16-cv-06958-LB

17 

1

medications), and cognitive disorder.164
Dr. Vigilanti administered the WAIS-111, Wechsler Memory-111, and Bender-Gestalt

2
3

Tests.165 The tests showed Ms. Reyes has a full scale IQ of 78.166 Dr. Vigilanti found Ms. Reyes

4

could follow simple instructions but might struggle with following through due to confusion.167

5

Dr. Vigilanti found that Ms. Reyes would struggle to maintain attendance, work consistently, and

6

maintain concentration.168 Dr. Vigilanti recommended that Ms. Reyes receive “special and

7

additional supervision” and work “in low stress environments, that are predictable and structured

8

[and] that do not involve decision making or judgment.”169

9
10

2.1.16 Dr. Sandra Battis and Dr. J.R. Saphir – Reviewing Physicians
On July 30, 2013, Dr. Sandra Battis, a reviewing physician, found that the evidence supported

United States District Court
Northern District of California

11
12

adopting Ms. Reyes’s residual functional capacity as determined by ALJ Laverdure in 2011.170

13

She highlighted that Ms. Reyes was limited in handling and fingering with her right hand based on

14

the problem with her right pinkie.171 On March 10, 2014, Dr. J.R. Saphir reached the same

15

conclusion, noting that there was no additional medical evidence “showing worsening.”172

16
17

2.2 Function Report

18

Louisa Reyes, Ms. Reyes’s mother, completed a third-party function report on May 22,

19

2013.173 Louisa Reyes described her daughter’s routine and daily activities as follows; Ms. Reyes

20
21

164

AR 357–58.

22

165

AR 355–56.

23

166
167

24

168

25

169

Id.
AR 357.
Id.
Id.

170

AR 151–53.

171

27

AR 153.

172

AR 168–69.

28

173

AR 292–99.

26

ORDER – No. 16-cv-06958-LB

18 

1

gets up in the morning and takes her medication before waking up her children and getting them

2

ready for school; sometimes, Ms. Reyes’s children wake her up in the morning.174 Ms. Reyes

3

makes sure that her children are showered, fed, and ready for school and activities (such as

4

church) but sometimes her mother helps out.175 She is nervous while her children are at school,

5

and “[d]epending on her stress level[,] she may watch TV.”176 When Ms. Reyes is in pain, she

6

sleeps, showers, and “sometimes [ ] forces herself to get up to eat.”177
Ms. Reyes needs some help with “getting up on the tub” and personal care, but can eat and use

7
8

the restroom independently.178 Sometimes she needs to be reminded to take her medicine on

9

time;179 she needs to take her anxiety and pain medicine to sleep.180 Ms. Reyes does some chores,
but her mother and children help out too by carrying the laundry, sweeping and mopping, and

11
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10

preparing some meals.181 Ms. Reyes drives and goes to the store, but her mother and children

12

usually accompany her to help unload the groceries; she does not have her own bank account.182

13

Ms. Reyes can walk five minutes before taking a 15-minute break.183 Ms. Reyes spends time with

14

her immediate family, briefly visits with other relatives, goes to church, and meets with her

15

psychiatrist, but she is less outgoing and social than she used to be; she gets nervous and

16

“panicky.”184 Her ability to concentrate and follow instructions “varies” and “depends on her

17

stress level.”185
Ms. Reyes filled out a function report the same day as her mother, and it is nearly (word-for-

18
19
174

AR 292.

175

21

AR 293–94.

176

AR 292, 296.

22

177

AR 292.

178

AR 293.

179

24

AR 294.

180

AR 293.

25

181

AR 294.

182

AR 295.

183

27

AR 297.

184

AR 296–98.

28

185

AR 297.

20

23

26

ORDER – No. 16-cv-06958-LB

19 

1

word) identical, and so the court does not summarize it here.186

2
3

2.3 Ms. Reyes’s Testimony

4

At the hearing, Ms. Reyes testified that she was a single, high-school graduate who lived with

5

her mother, brother, sister-in-law, two adult nephews, and four teenage children.187 Her only

6

income sources were “food stamps and cash aid.”188 She had “problems standing, sitting, and

7

walking” that required shifting every ten minutes to alleviate pain in her back, feet, arm, hip, and

8

leg.189 She suffered from numbness and imbalance due to diabetes.190 Ms. Reyes said that she did

9

not have “full control of [her] right hand” because she “cut a tendon muscle.”191
She suffers from severe depression four to five days a week, and her antidepressants make her

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Northern District of California

10

tired and disoriented such that she would “lie down a lot, four to six times a day.”192 She has panic

12

attacks five to six days a week that last from one to four hours; during that time, she is short of

13

breath and disoriented.193 She has difficulty sleeping and addresses it by taking “Tylenol, Codeine

14

3[,] and Seroquel.”194
Ms. Reyes’s mother and children help her with dressing, laundry, and household chores.195

15
16

When she has severe pain, her mother prepares meals for her children and transports them.196

17
18
19
20

186

21

AR 300–07.

187

AR 97–98.

22

188

AR 98.

23

189

Id.

190

24

AR 98–100.

191

AR 101.

25

192

AR 103.

193

AR 103–04.

194

27

AR 107–08.

195

AR 106–07.

28

196

26

Id.

ORDER – No. 16-cv-06958-LB

20 

1

2.4 Vocational Expert Testimony

2

Vocational expert (“VE”) Jo Ann Yoshioka testified at the hearing.197 Because Ms. Reyes

3

lacked any recent past relevant work experience, the VE testified based only on hypotheticals.198

4

The VE testified that an individual of Ms. Reyes’s age, education, and experience could work as a

5

classifier, laundry folder, or housekeeper/cleaner based on the following functional limitations:

6

occasionally lift twenty pounds; frequently lift ten pounds; walk, sit, or stand for six hours in an

7

eight-hour day; occasionally climb, stoop, crouch or crawl; frequently kneel and balance;

8

frequently handle and occasionally finger and push/pull with the non-dominant hand; and rare

9

public interaction.199
When Ms. Reyes’s advocate asked whether Ms. Reyes could work if she needed to stand or sit

10

United States District Court
Northern District of California

11

“at will,” the VE excluded the housekeeper/cleaner job.200 The VE testified that an individual

12

could not perform any of the three jobs she identified if he or she was limited to simple tasks with

13

additional supervision, was off task 15 percent of the time, or needed to take unscheduled rest

14

breaks throughout the day.201

15
16

2.5 Previous Determination of Nondisability

17

On February 1, 2010, Ms. Reyes filed an earlier claim for SSI benefits (as distinct from the

18

claim now at issue), which the Commissioner denied initially and upon reconsideration.202

19

Administrative Law Judge Richard Laverdure rendered an unfavorable decision that the present

20

ALJ, Mary Parnow, gave great weight in the decision presently under review.203
Following the five-step sequential evaluation process, ALJ Laverdure first found Ms. Reyes

21
22
23

197

AR 110–14.

24

198

25

199

AR 110–11.

200

AR 114.

201

27

AR 113–14.

202

AR 119.

28

203

AR 21 (relying on AR 119–30).

26

Id.

ORDER – No. 16-cv-06958-LB

21 

1

had severe impairments including: “mild degenerative disc disease; obesity; right small finger

2

flexion deformity; anxiety; and depression.”204 He concluded these impairments did not meet the

3

applicable listings, and so he evaluated Ms. Reyes’s residual functional capacity (“RFC”).205 ALJ

4

Laverdure found that Ms. Reyes had the RFC to perform light work involving frequent handling,

5

occasional fingering, and occasional pushing or pulling (except with her right upper extremity)

6

with rare public interaction.206 Because Ms. Reyes could work as a housekeeper/cleaner based on

7

her RFC, ALJ Laverdure concluded that she was not disabled.207 The Appeals Council denied Ms.

8

Reyes’s request for review,208 and the record does not reflect that she sought judicial review.

9
2.6 Administrative Findings

11
United States District Court
Northern District of California

10

The ALJ followed the five-step sequential evaluation process and concluded Ms. Reyes was

12

not disabled.209
At step one, the ALJ found that Ms. Reyes had not engaged in substantial gainful activity since

13
14

she filed her application for SSI benefits on February 28, 2013.210
At step two, the ALJ found that Ms. Reyes had the following severe impairments:

15
16

“degenerative disc disease of the lumbar spine, obesity, right small finger flexion deformity,

17

generalized anxiety disorder, [and] depressive disorder.”211 The ALJ found that Ms. Reyes’s

18

diabetes and hypertension were non-severe impairments because medication compliance

19

controlled her symptoms.212 The ALJ found attention deficit hyperactivity disorder was not one of

20
21
204

AR 121.

205

AR 121–23.

206

24

AR 123.

207

AR 129–30.

25

208

AR 135–37.

209

AR 14–23.

210

AR 16.

22
23

26
27

211

28

212

Id.
Id.

ORDER – No. 16-cv-06958-LB

22 

1

Ms. Reyes’s impairments because “there was never a diagnosis or specific treatment.”213

2

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

3

impairments that met or medically equaled the severity of a listed impairment.214 Specifically, the

4

ALJ found that Ms. Reyes’s hand and back impairments did not meet Listings 1.02 and 1.04.215

5

Although the ALJ considered obesity as an aggravating factor, she found no evidence that obesity

6

caused any other severe impairments to meet the listings.216 The ALJ found that Ms. Reyes’s

7

mental impairments — both individually and combined — did not meet Listings 12.04 and 12.06

8

because Ms. Reyes did not have marked limitations of daily living, social functioning, or

9

concentration, persistence or pace.217 The ALJ found mild restrictions of daily living, moderate
difficulties with social functioning, and moderate difficulties with concentration because Ms.

11
United States District Court
Northern District of California

10

Reyes could prepare meals, drive a car, shop for groceries, attend medical appointments, and help

12

her children with homework.218

13

At step four, to determine Ms. Reyes’s RFC, the ALJ followed a two-step process. First, she

14

determined whether Ms. Reyes suffered from an underlying medically determinable physical or

15

mental impairment (i.e. an impairment that could be shown by medically acceptable clinical and

16

laboratory diagnostic techniques) that could reasonably be expected to produce her pain or other

17

symptoms.219 The ALJ then evaluated the intensity, persistence, and limiting effects of Ms.

18

Reyes’s symptoms to determine the extent to which they limited her functioning.220 The ALJ

19

found that Ms. Reyes’s medically determinable impairments could reasonably be expected to

20

cause her symptoms, but that her statements about their intensity, persistence, and limiting effects

21
22
23

213
214

24

215

25

216

26

217

Id.
AR 17.
Id.
Id.
Id.

218

27

AR 17–18.

219

AR 18.

28

220

AR 19.

ORDER – No. 16-cv-06958-LB

23 

1

were not entirely credible.221 The ALJ found that Ms. Reyes’s treating physicians directly

2

contradicted her allegations about her physical ailments,222 and that Ms. Reyes’s claims about the

3

severity of her mental ailments were not supported by the medical records, including her “normal

4

mental status examinations” and the absence of records showing hospitalization.223 The ALJ

5

concluded that Ms. Reyes had the RFC to perform light work involving frequent handling,

6

occasional fingering, and occasional pushing or pulling (except with her right upper extremity)

7

with rare public interaction.224
At step five, the ALJ determined that Ms. Reyes could perform work as a classifier, laundry

8
9

folder, or housekeeper/cleaner.225 The ALJ concluded that Ms. Reyes was not disabled.226

10

United States District Court
Northern District of California

11
12

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

13
14

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

15

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

16

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

17

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

18

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

19

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

20

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

21

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

22

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

23
24

221

25

222

AR 19–20.

223

AR 20–21.

224

27

AR 18.

225

AR 22.

28

226

AR 23.

26

Id.

ORDER – No. 16-cv-06958-LB

24 

1

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

2

and may not substitute its own decision. Tackett v. Apfel, 180 F.3d 1094, 1097–98 (9th Cir. 1999).

3

“Finally, [a court] may not reverse an ALJ’s decision on account of an error that is harmless.”

4

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

5
6

2. Applicable Law

7

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

8

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

9

be expected to last for a continuous period of not less than twelve months,” and (2) the
“impairment or impairments are of such severity that he or she is not only unable to do his

11
United States District Court
Northern District of California

10

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

12

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

13

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

14

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

15

20 C.F.R. § 404.1520).

16
17
18
19
20
21
22
23
24
25
26
27
28

Step One. Is the claimant presently working in a substantially gainful activity? If
so, then the claimant is “not disabled” and is not entitled to benefits. If the claimant
is not working in a substantially gainful activity, then the claimant case cannot be
resolved at step one, and the evaluation proceeds to step two. See 20 C.F.R.
§ 404.1520(a)(4)(i).
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 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
ORDER – No. 16-cv-06958-LB

25 

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.

1
2
3
4
5
6
7

For steps one through four, the burden of proof is on the claimant. At step five, the burden
shifts to the Commissioner. Gonzales v. Sec’y of Health & Human Servs., 784 F.2d 1417, 1419
(9th Cir. 1986).

8
9

3. Application

10

United States District Court
Northern District of California

11
12
13
14
15
16

Ms. Reyes does not challenge the ALJ’s determination of her impairments at step two or the
conclusion at step three that these impairments do not meet the applicable listings. Instead, Ms.
Reyes contends that substantial evidence does not support the ALJ’s conclusion at step four that
she had the RFC to perform light work with certain limitations.227 Specifically, Ms. Reyes argues
that the ALJ improperly weighed (1) the previous finding of nondisability made by ALJ Richard
Laverdure and (2) the opinion of treating psychiatrist Dr. Esguerra in his May 16, 2014 assessment
(“Esguerra Assessment”).228

17
18

3.1 The ALJ Properly Considered the Prior ALJ’s Determination of Nondisability

19
20
21
22
23

In giving great weight to the prior decision of ALJ Laverdure (finding that Ms. Reyes was not
disabled), the ALJ held that Ms. Reyes was not disabled because the “evidence of record did not
support any worsening of symptoms of previously found severe impairments and did not support
the finding of any new severe impairment in the interim between the prior decision and the instant
one.”229 Ms. Reyes argues ALJ Parnow erred because her circumstances in fact changed.

24
25
26

227

27

AR 18.

228

Summary-Judgment Motion – ECF No. 15 at 5–11.

28

229

AR 21.

ORDER – No. 16-cv-06958-LB

26 

“The principals of res judicata apply to administrative decisions, although the doctrine is

1
2

applied less rigidly to administrative proceedings than to judicial proceedings.” Chavez v. Bowen,

3

844 F.2d 691, 693 (9th Cir. 1988). “The claimant, in order to overcome the presumption of

4

continuing nondisability arising from the first administrative law judge’s findings of nondisability,

5

must prove ‘changed circumstances’ indicating a greater disability.” Id. (internal citation omitted).

6

Changed circumstances include a new impairment or a change in the severity of an existing

7

impairment. Id.; see also Lester v. Chater, 81 F.3d 821, 827 (9th Cir. 1995). Even if the plaintiff

8

can overcome the presumption of nondisability, prior determinations such as the RFC “are res

9

judicata in the subsequent proceeding absent ‘new and material’ evidence on those issues.”
Stephens v. Colvin, No. 14-CV-02484-YGR, 2015 WL 3430586, at *6 (N.D. Cal. May 28, 2015)

11
United States District Court
Northern District of California

10

(quoting Chavez, 844 F.2d at 694).
Ms. Reyes identifies two changed circumstances: (1) mild degenerative disc disease and

12
13

(2) pain on the right side of her head.230
Ms. Reyes argues that her previously diagnosed mild degenerative disc disease is different

14
15

from her subsequently diagnosed degenerative disc disease.231 Ms. Reyes does not cite any

16

authority or evidence to support her argument. The Commissioner’s disability Listing 1.04 for

17

spine disorders simply references “degenerative disc disease,” not “mild degenerative disc

18

disease.” See 20 C.F.R. Pt. 404, Subpt. P, App. 1. Ms. Reyes does not have a new impairment

19

based upon these terminology differences.
To the extent Ms. Reyes alleges that she experienced a change in the severity of her

20
21

degenerative disc disease, the record does not support her position. In her summary-judgment

22

motion, Ms. Reyes relies on a new MRI performed in May 2014 as evidence of her “new

23

impairment,” but this imaging does not show her condition worsened.232 A previous 2011 MRI

24

revealed only “mild multi-level degenerative changes,”233 and the 2014 MRI showed only “mild

25
26

230
231

Summary-Judgment Motion – ECF No. 15 at 11.
Id.

27

232

Id. (citing AR 640, 1177–78).

28

233

AR 640.

ORDER – No. 16-cv-06958-LB

27 

1

discogenic disease of the cervical spine . . . .”234 In 2011 and 2012, Dr. Luu (a spine specialist)

2

noted Ms. Reyes had “very mild degenerative changes”235 and “very minimal age expected

3

findings . . . .”236 In 2013, Dr. Luu declined to provide Ms. Reyes with a note she requested; Ms.

4

Reyes stated that “she is unable to sit and stand due to her back problem.”237 Dr. Luu stated that

5

there were “[n]o restrictions from spine standpoint,” and that Ms. Reyes “only has very mild

6

degenerative changes in her back” that do “not prevent her from sitting or standing.”238 Dr.

7

Preston-Hsu, another spine specialist, reviewed the 2014 MRI and described Ms. Reyes’s

8

degenerative disc disease as “mild”239 before Dr. Lau discharged her from the spine clinic several

9

months later.240 In sum, the record does not show the severity of her degenerative disc disease
worsened, resulting in changed circumstances for res judicata purposes. See Chavez, 844 F.2d at

11
United States District Court
Northern District of California

10

693.
Ms. Reyes also states that in her “second application[,] [she] claim[s] pain on the right side of

12
13

the head.”241 She does not elaborate. ALJ Parnow acknowledged that Ms. Reyes “alleged

14

disability due to . . . pain in the right side of the head”242 but found this was not one of Ms.

15

Reyes’s severe impairments at step two of the sequential evaluation.243 Ms. Reyes does not argue

16

the ALJ erred at step two or identify any evidence of pain on the right side of her head. Moreover,

17

in April 2013, Ms. Reyes told Dr. Vallas she had been experiencing fewer headaches.244 But while

18

there is one note about headaches, there is little other evidence of head pain generally (inclusive of

19
20

234

21

AR 1178.

235

AR 643.

22

236

AR 822.

237

AR 1086.

23

238

Id.

24

239

AR 1189.

25

240

AR 1213.

241

Summary-Judgment Motion – ECF No. 15 at 11.

242

27

AR 19 (citing AR 274; see also AR 141).

243

AR 16.

28

244

AR 384.

26

ORDER – No. 16-cv-06958-LB

28 

1

headaches) or pain on the right side of the head specifically in the medical record. Given these

2

circumstances, Ms. Reyes does not show that her circumstances changed based on pain on the

3

right side of the head. See id.

4

Because Ms. Reyes does not show her circumstances changed and identifies no new and

5

material evidence, she fails to demonstrate that ALJ Parnow erred by giving great weight to the

6

findings and determination of nondisability made previously by ALJ Laverdure. See id.

7
8

3.2 Substantial Evidence Supports the ALJ’s Weighing of Dr. Esguerra’s Opinion

9

Although the ALJ “gave some weight to the opinion of [Ms. Reyes’s] treating psychiatrist,
Chris Esguerra, M.D,”245 Ms. Reyes argues the ALJ improperly rejected the “more restrictive

11
United States District Court
Northern District of California

10

limitations” in the Esguerra Assessment246 — including his finding of “marked limitations in her

12

ability to perform at a consistent pace, handle normal stress, and accept criticism from

13

supervisors.” 247 The ALJ found that these aspects of the Esguerra Assessment were unsupported

14

“by the evidence of record including the normal mental status examination, and the claimant’s

15

ability to drive, shop, and help her children with their homework.”248
The ALJ is responsible for “‘resolving conflicts in medical testimony, and for resolving

16
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 C.F.R. § 416.927(b); see also Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (“[A] reviewing

21

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

22

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

23
24

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

25
245

AR 21.

246

27

AR 1139–41.

247

AR 21.

28

248

26

Id.

ORDER – No. 16-cv-06958-LB

29 

1

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

2

case law distinguish among three types of physicians (or other “acceptable medical sources”):

3

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

4

§ 416.927(c), (e); Lester, 81 F.3d at 830. “Generally, a treating physician’s opinion carries more

5

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

6

than a reviewing [non-examining] physician’s.” Holohan v. Massanari, 246 F.3d 1195, 1202 (9th

7

Cir. 2001) (citing Lester, 81 F.3d at 830); Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996).

8
9

An ALJ, however, may disregard the opinion of a treating physician, whether or not
controverted. Andrews, 53 F.3d at 1041. “To reject [the] uncontradicted opinion of a treating or
examining doctor, an ALJ must state clear and convincing reasons that are supported by

11
United States District Court
Northern District of California

10

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

12

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

13

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

14

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

15

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

16

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

17

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

18

substantial evidence.”) (internal quotation marks and citation omitted).

19

The Ninth Circuit has “held that the ALJ may ‘permissibly reject[ ] . . . check-off reports that

20

[do] not contain any explanation of the bases of their conclusions.’” Molina, 674 F.3d at 1111

21

(quoting Crane v. Shalala, 76 F.3d 251, 253 (9th Cir. 1996)) (alteration in original). This is

22

because “the regulations give more weight to opinions that are explained than to those that are

23

not.” Holohan, 246 F.3d at 1202; but see Popa v. Berryhill, No. 15-16848, 2017 WL 4160041, at

24

*5 (9th Cir. Sept. 20, 2017) (holding that under the circumstances of that case, a “check-box form”

25

was not a germane reason to reject “other source” evidence).

26

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

27

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

28

Security] Administration considers specified factors in determining the weight it will be given.”
ORDER – No. 16-cv-06958-LB

30 

1

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

2

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

3

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

4

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

5

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

6

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

7

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

8

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

9

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

10

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

United States District Court
Northern District of California

11

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

12

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

13

sources and [the testimony] from nonmedical sources.” See 20 C.F.R. § 416.927(f)(1). An “ALJ

14

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

15

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

16

Here, the ALJ properly assigned little or no weight to the marked limitations in the Esguerra

17

Assessment because they were (1) not supported by Dr. Esguerra’s own examination notes (and

18

lacked any explanation reconciling this assessment with his notes), (2) inconsistent with the

19

examination notes from other treating or examining acceptable medical source providers, and

20

(3) inconsistent with Ms. Reyes’s level of daily activities and the relatively conservative treatment

21

she has received. The court addresses each reason in turn.
First, the ALJ found that Dr. Esguerra’s own treatment notes and clinical records do not

22
23

support the extent of Ms. Reyes’s limitations found in the Esguerra Assessment.249 While Dr.

24

Esguerra’s treatment notes and clinical records do reflect that Ms. Reyes suffers from anxiety and

25

stress, they also show that Dr. Esguerra repeatedly assessed her as cooperative with an average

26

fund of knowledge, appropriate in affect and appearance, with intact memory, euthymic mood

27
28

249

AR 21, 1121–27, 1139–41, 1153–58.

ORDER – No. 16-cv-06958-LB

31 

1

(normal, non-depressed), and fair judgment, insight, attention, and concentration.250 Dr. Esguerra’s

2

clinical notes reflect that Ms. Reyes’s therapy with her new therapist was going well,251 her

3

medication adequately managed her symptoms,252 and she was “better handling her stressors.”253

4

Dr. Esguerra’s clinical notes also reflect Ms. Reyes’s subjective reports of feeling overwhelmed

5

by family and financial stressors, but in general, Dr. Esguerra’s mental-status examinations

6

remained unremarkable over the course of the treatment relationship.254 Moreover, in completing

7

the Esguerra Assessment, Dr. Esguerra did not provide any detailed explanation for his check-the-

8

box assessment or attempt to reconcile it with his examination notes.255 Given these

9

circumstances, the ALJ did not err by giving the Esguerra Assessment less than controlling
weight. See Molina, 674 F.3d at 1111 (ALJ properly rejected check-the-box report that lacked a

11
United States District Court
Northern District of California

10

supporting explanation and clinical findings); see also Bayliss v. Barnhart, 427 F.3d 1211, 1216

12

(9th Cir. 2005) (holding that even under the heightened “clear and convincing” standard, the ALJ

13

properly discredited a treating physician’s opinion when it was not supported by the physician’s

14

own clinical notes); Meanel v. Apfel, 172 F.3d 1111, 1113–14 (9th Cir. 1999) (affirming an ALJ’s

15

discrediting of a treating physician’s conclusory and minimally supported medical opinion).
Second, the severity of Ms. Reyes’s mental limitations set forth in the Esguerra Assessment is

16
17

not supported by the treatment notes and clinical records of Drs. Dal Corso, Vallas, Tom, and

18

Roman, who also treated Ms. Reyes. In addition, the ALJ gave great weight to the State agency

19

examining psychologist.256
Dr. Dal Corso’s notes from visits in 2012, two years before the Esguerra Assessment, reflect

20
21
250

AR 1122, 1124–27, 1154, 1157.

251

AR 1124; see also AR 1154 (“therapy helpful”).

252

24

AR 1124, 1126.

253

AR 1154.

25

254

AR 1122, 1127, 1154, 1157.

255

AR 1140.

22
23

26
27
28

256

AR 21 (ALJ noted that the State examining psychologist, Dr. Vigilanti, had “opined that [Ms.
Reyes] could perform routine one or two step assignments with limited interactions with the general
public.”) Ms. Reyes does not argue that Dr. Vigilanti’s findings support the Esguerra Assessment,
which in any event, predated the Esguerra Assessment by four years. See AR 354–58.
ORDER – No. 16-cv-06958-LB

32 

1

that Ms. Reyes felt stressed and anxious about relationships with her family and neighbors but also

2

felt calmer on her medication.257 That same year, Dr. Vallas described Ms. Reyes as excessively

3

anxious but also cooperative, euthymic in affect, okay in mood, and having a linear thought

4

process (without any hallucinations or delusions); Dr. Vallas’s assessment did note moderate

5

limitations of Ms. Reyes’s daily life, social functioning, concentration and persistence, and

6

undetailed “[e]pisodes of decomposition.”258 Dr. Vallas’s subsequent progress notes from 2013,

7

however, reflect that Ms. Reyes continued to have normal mental-status assessments and was

8

improving, noting that she slept better and had fewer headaches and less anxiety.259
In February 2014, a few months before Dr. Esguerra completed his assessment, Dr. Tom

9

described Ms. Reyes as oriented, verbal, polite, and articulate and clinically stable with intact

11
United States District Court
Northern District of California

10

memory, linear thought process and “fair” judgment and insight; he also noted that she was calm,

12

cooperative with normal speech and appropriate affect, and her mood was “euthymic on

13

medication.”260

14

In October 2014, several months after Dr. Esguerra’s assessment, Dr. Roman noted that Ms.

15

Reyes had mild stress due to “family and relationship concerns,” but that she had more excitement

16

and better energy.261 In January 2015, Elizabeth Mole, a nurse at Pathways to Wellness, signed

17

what appears to be a stand-alone form letter stating that Ms. Reyes has generalized anxiety

18

disorder; the letter is not accompanied by an explanation or clinical findings.262

19

In sum, the notes and medical records from Ms. Reyes’s treating psychologists and

20

psychiatrists show Ms. Reyes had anxiety and felt stressed, particularly with respect to her

21

children and family relationships. They do not, however, support the severity of the limitations in

22

the Esguerra Assessment because they reflect that Ms. Reyes was managing her anxiety,

23
24

257

AR 818–20, 837, 870.

25

258

AR 379–80.

259

AR 384–87.

260

27

AR 1128–29.

261

AR 1150.

28

262

AR 1227.

26

ORDER – No. 16-cv-06958-LB

33 

1

continuously improving, and otherwise presenting with normal mental status.
With respect to the consistency of the Esguerra Assessment and other evidence in the record,

2
3

Ms. Reyes’s therapist, Amy Walker, provided an “other source” medical opinion via a check-the-

4

box report in May 2014.263 Ms. Walker’s report is not wholly consistent with the Esguerra

5

Assessment or with the medical assessments of Ms. Reyes’s other “acceptable medical source”

6

treatment providers. While she indicated, like Dr. Esguerra, that Ms. Reyes had a marked

7

limitation of her ability to handle normal work stress, she found that Ms. Reyes had extreme

8

limitations in the area of attention and concentration whereas Dr. Esguerra found those areas to be

9

only slightly or moderately impaired in the Esguerra Assessment264 (or intact or normal in his
clinical examination findings265 and in the findings of other “acceptable source” treatment

11
United States District Court
Northern District of California

10

providers266). Ultimately, the ALJ gave little weight to Ms. Walker’s opinion because of its

12

inconsistency with the record and because she is not an acceptable medical source.267 Although

13

Ms. Reyes points to the cover letter for Ms. Walker’s check-the-box report as evidence that Ms.

14

Reyes is disorganized, forgetful, and tangential in her thinking, she does not argue or identify any

15

basis for finding that the ALJ erroneously discounted Ms. Walker’s opinion for non-germane

16

reasons. See Molina, 674 F.3d at 1111.268 Moreover, the cover letter does not clearly show what

17
18

263

AR 1131–32.

19

264

Compare AR 1131–32 with AR 1139–40.

265

AR 1122, 1125, 1127, 1154, 1157.

266

AR 379, 1129, 1151.

20
21
22
23
24
25
26
27
28

267

AR 21–22. As previously discussed, an ALJ must consider the opinions of medical sources who are
not “acceptable medical sources,” but may discount or disregard those opinions for “germane” reasons.
See Molina, 674 F.3d at 1111. As such, the fact that Ms. Walker may not be an acceptable medical
source by itself is not a basis to disregard her opinion. While licensed psychologists qualify as
acceptable medical sources, the record does not reflect that Ms. Walker is a licensed psychologist. See
Gomez v. Chater, 74 F.3d 967, 971 (9th Cir. 1996), superseded on other grounds as stated in Boyd v.
Colvin, 524 F. App’x 334, 336 (9th Cir. 2013) (mem.). She signed her report (AR 1130–32), not as an
“LFMT” or licensed marriage and family therapist, but as an “IFMT.” See Jager v. Barnhart, 192 F.
App’x 589, 591(9th Cir. 2006) (therapists opinion entitled to less weight as an “other source” than
opinion from an acceptable medical source). Regardless of whether Ms. Walker is an “acceptable
medical source,” the ALJ’s other reasons for discounting her opinion (e.g., the inconsistency of her
opinion with the rest of the medical record, et cetera) are “specific and legitimate” and “supported by
substantial evidence in the record” and thus are sufficient. Reddick, 157 F.3d at 725.

268

Summary-Judgment Motion – ECF No. 15 at 8.

ORDER – No. 16-cv-06958-LB

34 

1

Ms. Reyes asserts that it does. In actuality, Ms. Walker stated that Ms. Reyes’s “attendance has

2

been good for the most part” and that she only “occasionally forgets about her appointments.”269

3

Ms. Walker stated that Ms. Reyes reported forgetfulness and disorganization but also stated that

4

“Ms. Reyes is a delightful and kind client” who “consistently shares examples of how she places

5

the needs of her children above her own . . . .”270
Accordingly, the court finds that ALJ’s determination — that the medical record, as a whole,

6
7

is not consistent with the severity of the limitations opined in the Esguerra Assessment — is

8

supported by “specific and legitimate” reasons based on “substantial evidence.” See Reddick, 157

9

F.3d at 725.
Finally, the ALJ also gave little or no weight to the Esguerra Assessment because she found

10

United States District Court
Northern District of California

11

the severity of those purported limitations to be inconsistent with Ms. Reyes’s daily activities,

12

including her “ability to drive, shop, and help her children with their homework.”271 Ms. Reyes

13

contends that these activities are not necessarily inconsistent with the marked limitations of her

14

ability to perform at a consistent pace, handle normal stress, and accept criticism from supervisors

15

as noted in the Esguerra Assessment.272
An ALJ may discredit or discount evidence of disability “when the claimant reports

16
17

participation in everyday activities indicating capacities that are transferrable to a work setting.”

18

Molina, 674 F.3d at 1112–13. “Even where those activities suggest some difficulty functioning,

19

they may be grounds for discrediting” evidence in the record. Id. at 1113; see Rollins v.

20

Massanari, 261 F.3d 853, 857 (9th Cir. 2001).

21

Here, it is undisputed that Ms. Reyes participates in day-to-day activities such as shopping,

22

driving, and caring for her children.273 Ms. Reyes told Dr. Esguerra that she picked her children up

23
24
25
26

269
270

AR 1130.
Id.

271

27

AR 21.

272

Summary-Judgment Motion – ECF No. 15 at 8–9.

28

273

AR 292–95, 1118.

ORDER – No. 16-cv-06958-LB

35 

1

from school and was “focusing on her younger son to help him get through high school.”274 Ms.

2

Reyes’s mother wrote that she makes “sure [the children are] fed, showered and ready for

3

school/church or other activities.”275 In September 2013, therapist Leslie Zuska noted that Ms.

4

Reyes “is trying to track each kid’s curriculum and homework” and appeared to be “doing better

5

with school LOOP and [ ] to be more on top of her children’s issues than in previous years.”276

6

The court does not doubt parenting can be a challenging and stressful endeavor, but substantial

7

evidence in the record reflects that Ms. Reyes cared for herself and her children.277 The record also

8

indicates that Ms. Reyes is able to drive, shop, and appropriately interact with family, treatment

9

providers, school personnel, and others.278 Here, the inconsistency between the alleged severity of
Ms. Reyes’s impairments and her daily activities constitutes an additional, “specific and

11
United States District Court
Northern District of California

10

legitimate” reason for discounting the weight given to the Esguerra Assessment. As such, the ALJ

12

did not err by finding these daily activities to be inconsistent with the purported severity of Ms.

13

Reyes’s mental limitations as set forth in the Esguerra Assessment. 279

14
274

AR 1153.

275

16

AR 293.

276

AR 1118.

17

277

AR 292–95, 1118, 1153.

278

AR 293–95, 1132.

15

18
19
20
21
22
23
24
25
26
27
28

279

The ALJ also noted that Ms. Reyes’s alleged severe mental limitations were not supported by her
“fairly conservative treatment with only medication management and therapy” and because Ms. Reyes
had not been hospitalized or visited an ER because of her mental-health issues. See AR 21. The Ninth
Circuit has held that “evidence of ‘conservative treatment’ is sufficient to discount a claimant’s
testimony regarding severity of an impairment.” Parra v. Astrue, 481 F.3d 742, 751 (9th Cir. 2007)
(citing Johnson v. Shalala, 60 F.3d 1428, 1434 (9th Cir.1995)). Whether “medication management and
therapy” are sufficiently “conservative” treatments for undermining the severity of a claimant’s
mental-health impairment does not appear to have been decided by the Ninth Circuit, but it is
questionable. See Goodwin v. Comm’r of Soc. Sec. Admin., No. 09-CV-00469-LEK, 2011 WL
4498962, at *5 (D. Haw. Sept. 26, 2011) (finding that ALJ’s characterization of mental-health
treatment of medication and therapy as “conservative” was inconsistent with the record as a whole);
Merker v. Astrue, No. 10-CV-4058-JCG, 2011 WL 2039628, at *7 (C.D. Cal. May 25, 2011) (based on
“Plaintiff’s treatment history of having weekly therapy sessions and using medication, the Court
cannot conclude that Plaintiff’s treatment was conservative when viewed holistically, and on this
record.”); Garcia v. Colvin, No. 14-CV-00092-AS, 2015 WL 4450901, at *3 (C.D. Cal. July 20, 2015)
(court held that ALJ erred in finding Plaintiff’s treatment conservative because the court considered
biofeedback therapy and Xanax prescriptions as non-conservative treatment) (citing Parra, 481 F.3d at
751 (finding “conservative treatment” as “treat[ment] with an over-the-counter pain medication.”)).
Nevertheless, because the court finds that the ALJ’s determination is supported by substantial evidence
based on other specific and legitimate reasons, it does not need to make that determination here.

ORDER – No. 16-cv-06958-LB

36