Willman v. Colvin

Filing 19

ORDER by Magistrate Judge Jacqueline Scott Corley granting in part and denying in part 16 Motion for Summary Judgment; granting in part and denying in part 17 Motion for Summary Judgment. (ahm, COURT STAFF) (Filed on 12/1/2017)

1
2
3
4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6
7

SANDY LYNN WILLMAN,
Plaintiff,

8
9
10

United States District Court
Northern District of California

11

Case No.16-cv-07361-JSC

v.
NANCY A. BERRYHILL,
Defendant.

ORDER RE: PLAINTIFF’S MOTION
FOR SUMMARY JUDGMENT AND
DEFENDANT'S CROSS-MOTION FOR
SUMMARY JUDGMENT
Re: Dkt. Nos. 16, 17

12
13

Plaintiff Sandy Lynn Willman brings this action pursuant to 42 U.S.C. § 405(g), seeking

14

judicial review of a final decision by Defendant Carolyn W. Colvin, the Commissioner of the

15

Social Security Administration, denying Plaintiff’s application for Supplemental Social Security

16

income under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381, 1383(f). Both parties have

17
18
19
20
21
22
23
24
25
26

consented to the jurisdiction of the undersigned magistrate judge. (Dkt. Nos. 5, 9.) Now pending
before the Court is Ms. Willman’s motion for summary judgment, and Defendant’s cross-motion
for summary judgment. (Dkt. Nos. 16, 17.) After carefully considering the parties’ submissions,
the Court GRANTS in part and DENIES in part Plaintiff’s motion, and GRANTS in part and
DENIES in part Defendant’s cross-motion. The Administrative Law Judge’s determination that
Plaintiff could perform simple, repetitive tasks and was not limited to one and two-step job
instructions was supported by substantial evidence; however, as the ALJ found that Ms. Willman
is moderately limited in concentration, persistence or pace the ALJ erred in not including that
limitation in her RFC and hypothetical to the vocational expert.
LEGAL STANDARD
Plaintiff is considered “disabled” under the Social Security Act if she meets two

27

requirements. See 42 U.S.C. § 423(d); Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999).

28

First, the claimant must demonstrate “an inability to engage in any substantial gainful activity by

1

reason of any medically determinable physical or mental impairment which can be expected to

2

result in death or which has lasted or can be expected to last for a continuous period of not less

3

than 12 months.” 42 U.S.C. § 423(d)(1)(A). Second, the impairment or impairments must be

4

severe enough that she is unable to do her previous work and cannot, based on her age, education,

5
6
7
8
9
10

and work experience “engage in any other kind of substantial gainful work which exists in the
national economy.” 42 U.S.C. § 423(d)(2)(A). To determine whether a claimant is disabled, an
ALJ is required to employ a five-step sequential analysis, examining:
(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;

United States District Court
Northern District of California

11

(3) whether the impairment “meets or equals” one of the listings in the regulations;

12

(4) whether, given the claimant’s “residual functional capacity,” the claimant can

13

still do her “past relevant work”; and

14

(5) whether the claimant “can make an adjustment to other work.”

15

Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012); see 20 C.F.R. §§ 404.1520(a), 416.920(a).

16

PROCEDURAL HISTORY

17

On February 5, 2013, Plaintiff submitted an application for Supplementary Security

18

Income (“SSI”) under title XVI of the Social Security Act. (AR 90, 31, 33.) Plaintiff alleged

19

disability since February 5, 2013. (AR 12.) The Commissioner denied the claim on September

20

26, 2013 and denied reconsideration on January 21, 2014. (AR 90, 104.) Plaintiff then requested

21

a de novo hearing before an Administrative Law Judge (ALJ). (AR 133.) The hearing was held

22
23
24

before ALJ Maxine R. Benmour on June 25, 2015. (AR 29-59; 60-89.) The ALJ concluded
Plaintiff was not disabled. (AR 9-28.)
Plaintiff then requested that her case be reviewed by the Appeals Council. (AR 708.) One
year later, on October 25, 2016, the Appeals Council denied review. (AR 1-6.) This lawsuit in

25
26
27

which Plaintiff seeks judicial review of the SSA’s disability determination under 42 U.S.C. section
405(g) followed. Now pending before the Court are the parties’ cross-motions for summary
judgment. (Dkt. No. 16, 17.)

28
2

FACTUAL BACKGROUND

1

Plaintiff Sandy Lynn Willman, a California resident, was born on April 5, 1961 and is 56

2
3

years old. (AR 153, 91.) Plaintiff has a 9th grade education and never obtained her GED. (AR

4

229.) She filed her Social Security claim on February 5, 2013. (AR 90, 153, 229.)
From 1980 to 1985, Plaintiff was employed as a housecleaner. (AR 171.) From 1985

5
6
7
8

through 1988, Plaintiff worked as an office cleaner and earned seven dollars an hour. (Id.) In
1989, Plaintiff stopped working due to her depression. (AR 91, 170.) She attempted to work as a
dog washer in 2004 but was terminated shortly after her employment. (AR 51.)
In her initial application, Plaintiff alleged disability on the basis of her depression. (AR

9
10

United States District Court
Northern District of California

11
12

90, 91.) She reported memory loss, anxiety attacks, excessive crying, and trouble getting out of
bed. (AR 189.) She stated that her depression adversely impacts her ability to work. (Id.) At the
time of the hearing, Plaintiff was living in her mother’s garage. (AR 273, 229.) She moved in
with her mother because she was unable to pay her property taxes and lost her home. (Id.)

13

Currently, Plaintiff, her son, her son’s girlfriend, and their pets reside with Plaintiff’s mother. (AR

14

36.)

15
16

A. Medical and Third Party Evidence:
Plaintiff suffers from depression, anxiety, and memory loss. (AR 189.) She has trouble

17

concentrating. (Id.) Plaintiff cries a lot and has trouble getting out of bed. (AR 189.) In the past,

18

she was able to train horses but can no longer do so. (AR 190.) Plaintiff received medication for

19

her depression. (AR 40.)

20
21
22
23
24

The earliest records in the Administrative Record (“AR”) date back to 2004 medical notes
from Dr. Neil Ehrlich, Plaintiff’s Treating Physician. (AR 267.) A discussion of the relevant
medical evidence follows:
1. Plaintiff’s Medical history & Evaluations
Plaintiff underwent multiple medical examinations in support of her application for
disability. (AR 265-316.) Medical evidence included medical records from Plaintiff’s two

25
treating physicians: Dr. Neil Ehrlich and Dr. Rhonda Berney. (AR 267-299.) Both treating
26
27

physicians completed a “Mental Residual Functional Capacity Questionnaire.” (Id.) Two
consultative non-treating physicians also evaluated Plaintiff: Dr. Calvin Pon and Dr. Les Kalman.

28
3

1

(AR 274-291.) Upon SSA’s request, they both completed a “Physical Residual Functional

2

Capacity (RFC) Assessment” form. (Id.) Moreover, SSA’s psychological examiners, Dr. F.

3

Mateus and Dr. Phaedra Caruso-Radin, reviewed Plaintiff’s file for initial determination and

4

reconsideration. (AR 100, 115.)

5
6
7
8
9
10

United States District Court
Northern District of California

11

i.

Treating Physicians
a) Dr. Neil Ehrlich

Dr. Neil Ehrlich, a treating physician and psychiatrist, has seen Plaintiff since 2004. (AR
267.) In a note dated June 5, 2013, Dr. Ehrlich described Plaintiff’s long history with depression.
(Id.) Dr. Ehrlich reported that Plaintiff’s depression dated back to her teens and worsened after
giving birth to her son. (Id.) Dr. Ehrlich also reported that Plaintiff tried several anti-depressants
“but they had minimal benefit.” (Id.) He stated that her symptoms included “anhedonia, poor
concentration, no motivation, high levels of anxiety, lack of interest in doing anything,

12

hypersomnia, minimal attention to her activities of daily living, and social avoidance.” (Id.) Dr.

13

Ehrlich diagnosed Plaintiff with “major depression, recurrent, severe, treatment resistant.

14

Prognosis is poor.” (Id.) He reported that, in the past, Plaintiff drank beer to lift her mood but she

15

stopped doing so in 2004. (Id.)

16

Dr. Ehrlich prescribed Plaintiff three medications: (1) Pristiq at 100 mg a day (2) Abilify

17

at 5 to 10 mg a day; and (3) Hydroxyzine at 25 mg three times a day depending on anxiety levels.

18

(Id.) He reported that, despite medication and anti-depressants, Plaintiff’s level of functioning

19

continued to decline. (Id.) Dr. Ehrlich also noted that Plaintiff has low to average intelligence and

20

never developed work skills. (Id.) Consequently, he noted that Plaintiff would have difficulty in

21

any work setting due “to her high anxiety, difficulty concentrating, poor stress tolerance, social

22
23
24
25
26
27

withdrawal, and lack of motivation and energy.” (AR 268.) Dr. Ehrlich concluded that Plaintiff is
“clearly unable to work and this disability has existed for some time and is likely to continue for
the foreseeable future.” (AR 267, 268.)
On April 10, 2015, Dr. Ehrlich completed a “Mental Residual Functional Capacity
Questionnaire.” (AR 303.) The form has a checklist and room for comments. (Id.) The
symptoms Dr. Ehrlich identified in the checklist included: emotional withdrawal or isolation,
generalized persistent anxiety, mood disturbance, decreased energy, feelings of guilt and

28
4

1

worthlessness. (AR 304.) He also indicated that Plaintiff would be unable to maintain attention

2

for two hour segments, carry out detailed instructions, deal with stress of work, understand and

3

remember detailed instructions, interact with the general public, or maintain social appropriate

4

behavior. (AR 306.)
In the comment section, Dr. Ehrlich wrote that Plaintiff’s clinical findings included

5
6
7
8

“depression, anxiety, low stress tolerance, poor coping skills, low self-esteem, lack of motivation.”
(AR 303.) He also mentioned Plaintiff’s below average IQ, an overall score of 38 for Global
Functional Assessment (GAF), and that Plaintiff’s “depression, anxiety… [and] low self-esteem
would interfere [with her work.]” (AR 305.)

9

b) Dr. Rhonda Berney

10

United States District Court
Northern District of California

11

As of March 2015, Plaintiff had seen Dr. Rhonda Berney, a treating physician, for
approximately fifteen years. (AR 296.) On December 2, 2008, Plaintiff went to see Dr. Berney

12

for a follow up appointment regarding her “hypertension and depression.” (AR 252.) During that

13

visit, Dr. Berney noted that Plaintiff “continued with medication except only taking one

14

Wellbutrin daily” and that Plaintiff’s “depression continues but moderately.” (Id.) On March 23,

15

2009, Dr. Berney reported that Plaintiff continued to “be somewhat depressed.” (AR 253, 254.)

16

Similarly, on June 15, 2009, Dr. Berney reported that Plaintiff “has trouble remembering to take

17

her birth control daily… poor sleep. Continued depressive symptoms, low energy… depression

18

and anxiety not completely controlled.” (AR 257.) Finally, on July 21, 2010, Dr. Berney wrote

19

that Plaintiff was “sad appearing,” that her “depression [was] inadequately controlled due to lack

20

of affording optimal medication,” and that Plaintiff lacked enjoyment in enjoyable activities. (AR

21

261.)

22
23
24

On March 16, 2015, Dr. Berney completed a “Mental Residual Functional Capacity
Questionnaire.” (AR 269, 300.) The form is mainly a checklist but also has some questions and
room for short commentary. (AR 269.) The symptoms Dr. Berney selected from the checklist
included: motor tension, maladaptive patterns of behavior, generalized persistent anxiety,

25
difficulty thinking and concentrating, persistent disturbance of mood, and recurrent panic attacks
26
27

manifested by sudden unpredictable onset of the intense apprehension. (AR 297.) Moreover, Dr.
Berney concluded that Plaintiff is not able to maintain attention for two hour segments, work in

28
5

1

proximity to others without being distracted, interact appropriately with the general public, or

2

complete a regular workday without psychological interruptions. (AR 298, 299.) In the note

3

section, Dr. Berney reported that Plaintiff has “decreased concentration and follow through, [and]

4

inattention.” (AR 299.)

5
6
7
8

ii.

Examining Physicians
c) Dr. Les Kalman

Dr. Les Kalman, a Consultative Examiner and non-treating physician, conducted a
psychological evaluation on July 18, 2013. (AR 93.) Dr. Kalman noted that Plaintiff would be
able to work with supervisors or workers, deal with the public, and is able to understand, carry out,

9
10

United States District Court
Northern District of California

11
12
13

and remember simple one and two step tasks, maintain attention, concentration, and memory, and
handle stress and pressures associated with daily work activities. (AR 274.) Dr. Kalman noted
that Plaintiff does her own shopping, housekeeping, cooking, and hygiene, but cannot manage her
own transportation and has no friends. (Id.)
In a psychiatric evaluation, Dr. Kalman noted that Plaintiff “tends not to travel because she

14

gets lost and forgets where she is.” (AR 272.) He also reported that Plaintiff has been depressed

15

since her teenage years. (Id.) Dr. Kalman wrote that, during the examination, Plaintiff “recalled

16

none of three objects at five minutes… She could not do serials... She could not spell the word

17

‘world’ backwards. She just kind of gave up and was tearful.” (AR 273.) Plaintiff was able to

18

add, subtract, multiply and had average intelligence. (Id.) Plaintiff was also able to recall three of

19

the last five presidents. (Id.) Finally, Dr. Kalman noted that Plaintiff’s abstractions were not

20

intact and that “her insight into her mental illness was poor and her judgment was poor” because

21

Plaintiff said she would throw away a stamped address envelope if she found it on the ground.

22
23
24
25
26
27

(AR 273, 274.) Under affective status, Dr. Kalman wrote Plaintiff’s mood was depressed, she had
suicidal thoughts, and “vegetative signs includ[ing] hypersomnia, decreased attention,
concentration and memory.” (AR 274.) Dr. Kalman also gave Plaintiff an overall GAF score of
50 and noted that her condition is not expected to “improve significantly within the next 12
months.” (AR 275.)
d) Dr. Calvin Pon
On August 28, 2013, Dr. Calvin Pon, a physician board certified in orthopedics and

28
6

1

internal medicine, performed a physical examination on Plaintiff. (AR 99, 289.) Prior to the

2

examination, Dr. Pon read and reviewed Plaintiff’s initial disability application. (AR 289.) At the

3

time of the examination, Plaintiff was 52 years old. (Id.)
Dr. Pon found that Plaintiff had an active range and motion and walked without the need

4
5
6
7
8

for assistance. (Id.) He also reported that Plaintiff sat comfortably during the history taking, was
able to rise from her chair and sit normally, and that she had no restrictions when it came to
standing or walking. (Id.) Dr. Pon noted that Plaintiff is functional on all ranges of movement.
(Id.) Overall, Dr. Pon concluded that Plaintiff had no functional limitations. (AR 291.)
iii.

9
10

United States District Court
Northern District of California

11

Non-Examining Physicians

On July 30, 2013, Dr. Mateus reviewed Plaintiff’s medical records and opined that her
depression would impact her ability to concentrate, understand, and remember things. (AR 100.)
However, Dr. Mateus also noted that Plaintiff is able to remember and understand very simple and

12

short instructions. (Id.) On January 13, 2014, Plaintiff’s file was reviewed at reconsideration by

13

Dr. Caruso-Radin. (AR 114, 115.) Dr. Caruso-Radin reported that Plaintiff can remember,

14

understand and carry out two-step commands with simple instructions, can focus for up to four

15

hour increments, and is able to complete a usual work day or work week. (Id.)

16

iv.

Third Party Function Report

Kevin Moore, Plaintiff’s cousin, submitted a Third Party Questionnaire on April 22, 2013.

17
18

(AR 210.) Mr. Moore described how Plaintiff’s family gave her a hard time and did not

19

understand her depression. (AR 202.) He noted how Plaintiff has had a lot of trouble socializing

20

and trouble with her memory “which affects her understanding and ability to follow instructions.”

21

(AR 207.) He also reported that Plaintiff has trouble “remembering important little details” with

22
23
24
25
26

spoken instructions. (Id.) Moreover, he wrote that Plaintiff has trouble getting up in the morning
and her anxiety makes it hard for her to focus. (AR 202.) In the comment section, Mr. Moore
wrote:
Even simple instructions she has problems remembering. Forgets thing I’ve told
her. Sometimes within a minute, sometime the only reason she gets out of bed is
too feed pet... She seems to get tired out easily doing light chores. Her house is
dirty and messy. (AR 209.)

27

While Plaintiff does take care of her pets, Mr. Moore noted that she sometimes has trouble getting

28

out of bed so her son feeds the dogs. (AR 203.) Finally, he reported that Plaintiff handles stress
7

1

very poorly and “gets anxious and/ or depressed” easily. (AR 203, 208.)

2

B. The ALJ Hearing:

3

On June 25, 2015, Plaintiff appeared with her Representative, Dan McCaskell, at her

4
5
6
7
8
9
10

United States District Court
Northern District of California

11

scheduled hearing before ALJ Maxine Benmour in San Rafael, California. (AR 31.) Plaintiff and
Vocational Expert (“VE”), David Dettmer, testified at the hearing. (Id.)
i. Plaintiff’s testimony
Plaintiff’s testimony was mostly limited to her work history dating back to the 1980s, her
depression, anxiety, medication, and current living conditions. (AR 22-57.) Plaintiff alleged an
onset benefit date of January 1, 1989, which was amended, upon the Representative’s request, to
February 5, 2013. (AR 31, 33.)
At the beginning of the hearing, Plaintiff’s Representative directed the ALJ’s attention to a
potential discrepancy in the record regarding the DDS assessment. (AR 33.) He noted that Dr.

12

Kalman gave Plaintiff a GAF of 50 and reported that Plaintiff could “sustain concentration, pace

13

and persistence up to four hours and not eight.” (Id.) According to the Representative’s

14

interpretation, an individual with a GAF score of 50 could not work for eight hours a day five days

15

a week. (Id.) Plaintiff’s Representative wanted to ensure that the evaluator, Dr. Kalman, wrote

16

what he meant. (Id.)

17

The ALJ asked Plaintiff some general background questions, primarily about Plaintiff’s

18

work and education. (AR 34.) Plaintiff never graduated from high school or earned a GED. (Id.)

19

Plaintiff also stated that she does not remember if she had any work experience since 1994. (Id.)

20

After further questioning, Plaintiff testified that she worked as a house cleaner for a short period.

21

(AR 33.) She stopped working afterwards because the economy got worse and people were no

22
23
24

longer able to afford house cleaners. (Id.)
The ALJ then questioned Plaintiff about her depression. (AR 35.) Plaintiff has been
depressed for most of her life but her depression worsened after difficult life events. (AR 35, 36.)
Initially, Plaintiff had difficulty recalling those events. (Id.) Upon further questioning, Plaintiff

25
26
27

mentioned her father’s death, divorcing her husband, and selling her home and moving in with her
mother. (AR 35, 36.) Plaintiff had to sell her home because she was no longer able to pay
property taxes. (AR 35.) She could not remember exactly when she sold her home and moved in

28
8

1

with her mother, who has dementia. (AR 36.) Plaintiff was also not able to recall exactly when

2

her father died. (Id.) Plaintiff said “I can’t tell you for sure. It was a couple of years ago I

3

believe.” (Id.)

4
5
6
7
8

The ALJ then asked Plaintiff about her living arrangements. (AR 36.) Plaintiff lives with
her mother, her twenty-two year old son, his girlfriend, and pets. (Id.) Neither the son nor his
girlfriend help around the house. (AR 38.) Since her mother is sick, Plaintiff cleans the house,
mows the lawn, prepares meals, does laundry, and shops for groceries. (AR 36, 37, 47.)
Plaintiff’s mother is too sick to leave the home, so Plaintiff takes care of her. (AR 38.)
Plaintiff explained that it is unsafe to leave her mother home alone because she poured

9
10

gasoline in the dog’s bowl and cannot properly clean herself. (AR 46.) Her mother needs help
showering. (AR 47.) In particular, Plaintiff needs a bathmat to get her mother out of the bathtub.

United States District Court
Northern District of California

11

(Id.) Dr. Berney visited Plaintiff’s mother on a monthly basis for medical check-ups. (AR 37.)

12

Dr. Berney treats both Plaintiff and her mother. (AR 37, 41.) Previously, Plaintiff’s mother was

13

Dr. Berney’s bookkeeper. (Id.) Plaintiff’s mother is struggling with her finances and is unable to

14

pay her bills. (AR 38.) In addition to medical care, a volunteer from the Council of Aging has

15

been assisting Plaintiff and her mother with their bills and getting Plaintiff’s mother back on

16

MediCal. (Id.)

17

Plaintiff’s depression impacts her memory and concentration. (AR 45.) She forgets

18

simple things on a daily basis, including names, dates, places, and difficult life events. (AR 45,

19

46, 51.) Plaintiff is on medication due to her depression. (AR 39.) Dr. Ehrlich prescribed

20

Plaintiff Effexor over the phone when she got divorced from her husband. (AR 38, 40, 41.) The

21

medication stopped Plaintiff from crying during her divorce. (AR 38, 40.) Plaintiff also self-

22
23
24

medicates on Trazadone to help her go to sleep. (AR 39.) Plaintiff initially testified that she has
been seeing Dr. Ehrlich for a while, but she couldn’t recall exactly when. (AR 40.) After some
questioning, Plaintiff testified that she only saw him once over the past year or five years. (Id.)
Plaintiff has frequent anxiety attacks. (AR 43.) While she could not initially remember

25
how often, she later said it was typically on a daily basis. (AR 42, 43.) She was even anxious
26
27

about coming to the hearing. (AR 42.) Plaintiff grits her teeth and takes marijuana to calm down.
(AR 43.) She has consumed marijuana for the past couple of years. (Id.) Recently it has become

28
9

1

a daily habit in order to help calm her down. (Id.) Plaintiff testified that Dr. Berney is aware of

2

the marijuana consumption because Plaintiff got her signature in order to buy it. (AR 44.)

3

Plaintiff spends her days taking care of her mother, walking the dogs, and watching television.

4

(AR 48, 49.)

5
6
7
8
9
10

ii.

The Representative pointed out Plaintiff’s memory problems by reminding her of her
earlier testimony about Dr. Ehlrich. (AR 50.) Earlier, Plaintiff testified that she saw Dr. Ehlrich
for a couple of years. (Id.) The Representative informed her that the letter Dr. Ehlrich wrote
dated back to 2004. (Id.) Plaintiff responded “I will just have to go along with that.” (Id.)
Plaintiff confirmed that this was an example of her poor memory. (Id.) She also testified that she
has the “ability to forget the hard stuff.” (Id.)

United States District Court
Northern District of California

11
12

Examination of Plaintiff by the Representative

The Representative moved on to remind Plaintiff about the dog washer job that they
discussed. (AR 51.) Plaintiff forgot about it and remembered it upon questioning. (Id.) Plaintiff

13

worked part-time but did not recall how many days a week she worked. (AR 54.) As a dog

14

washer, Plaintiff was not able to get herself to pull hair out from poodles’ ears because she thought

15

they would be in pain. (AR 51.) She also had trouble clipping dogs’ nails and digressed to

16

speaking about her experience mistakenly clipping her own dog into bleeding. (AR 52.) While

17

working on the job, one of the dogs bled while Plaintiff was trimming it. (AR 52.) Plaintiff was

18

terminated from her job and believes it was because she did not work fast enough. (AR 53.) The

19

ALJ briefly asked Plaintiff when this occurred. (Id.) Plaintiff responded that it was about four or

20

five years around the time of her divorce. (Id.) When the Representative asked her if it was

21

around the time she first saw Dr. Ehrlich in 2004 Plaintiff responded “it’s not the first time I have

22
23
24

seen him, I don’t remember why I saw him before that.” (Id.) Plaintiff confirmed that, this too,
was part of her trouble remembering. (AR 54.) Finally, the Representative explained to the ALJ
that it sounded like a failed work attempt. (Id.) The Representative also noted that there was no
record of the dog washer job and that Plaintiff receives $600 a month from spousal support. (AR

25
55, 57.)
26
27

iii.

Vocational Expert’s testimony

VE David Dettmer reviewed Plaintiff’s file and was present during Plaintiff’s testimony.

28
10

1

(AR 56-57.) He testified to Plaintiff’s vocational history, identified the exertional and skill levels

2

of those jobs, and ultimately provided testimony as to whether Plaintiff could perform the past

3

relevant work. (Id.)

4
5
6
7
8
9
10

United States District Court
Northern District of California

11

The ALJ posed a hypothetical to the VE to determine whether there are existing jobs in the
national economy that Plaintiff can perform despite her impairments. (AR 56.) The ALJ stated a
hypothetical of someone like Plaintiff with no relevant work experience and who has not been
employed in the past fifteen years. (Id.) She imposed the following limitations: “no exertional
limitations and only limitation is limited to simple repetitive tasks.” (Id.) The VE responded that
“unskilled, light work or… unskilled work” is available such as a mail clerk, fast food worker, or
housekeeper. (AR 56.) Then, the ALJ imposed a new restriction on the hypothetical, inquiring
whether it would be acceptable if the worker missed three days a month. (AR 57.) The VE
responded that it would be unacceptable because that amount is too excessive, especially with

12

entry-level work “where people are easily replaced and productivity and attendance is important.”

13

(Id.) The VE concluded no jobs would be available. (Id.)

14
15

C. ALJ findings:
In a written decision, the ALJ found that Plaintiff was not disabled under 1614(a)(3)(A) of

16

the Social Security Act (“SSA”), taking into consideration the testimony and evidence, and using

17

the SSA’s five-step sequential evaluation process for determining disability. See C.F.R. section

18

404.1520(a).

19

At step one, the ALJ concluded that because Plaintiff stopped working, she did not engage

20

in substantial gainful activity during the period in question. (AR 14.) At step two, the ALJ

21

concluded that the objective medical evidence demonstrates that Plaintiff’s depression and anxiety

22
23
24

constitutes a severe impairment. See C.F.R. section 416.920(c). (AR 14.) However, the ALJ
noted that hypertension was non-severe because it does not impact Plaintiff’s ability to work. (Id.)
At the third step, the ALJ determined that Plaintiff did not have an impairment or a
combination of impairments that meet or medically equals the severity of one of the impairments

25
listed in 20 C.F.R. Part 404. Subpart P, Appendix 1 (20 CFR 416.920(d), 416.925 and 416.926).
26
27

(AR 14.) This step is divided into a two part assessment: “paragraph B” and “paragraph C.” (AR
15, 16.) The ALJ concluded Plaintiff’s conditions did not satisfy “paragraph B” because

28
11

1

Plaintiff’s medical records failed to demonstrate that her condition impacted at least two of the

2

following: her daily living, social functioning, concentration, or decomposition. (AR 15.) For

3

daily living, the ALJ used Plaintiff’s ability to prepare meals, drive, grocery shop, and manage her

4

own finances as evidence that Plaintiff only has mild restrictions. (Id.) For social functioning, the

5
6
7
8

ALJ noted that Plaintiff only has mild difficulties because she can get along with others and did
not demonstrate “difficulties responding appropriately to questions at the hearing.” (Id.) For
concentration, the ALJ concluded that Plaintiff has no more than “moderate difficulties” because
she is able to maintain her own finances, drive, prepare meals, and maintained attention
throughout the hearing. (Id.) With regards to decomposition, the ALJ found that Plaintiff

9
10

United States District Court
Northern District of California

11
12
13

“experienced no episodes of decomposition” because there was no evidence in the record
regarding “acute care or hospitalization related to psychological symptoms. (Id.) Because
Plaintiff’s mental condition does not cause two marked impairments, paragraph B was not
satisfied. (Id.)
The ALJ also assessed whether Plaintiff satisfied requirements of “paragraph C.” (AR 16.)

14

The ALJ concluded that the record did not have any evidence demonstrating repeated

15

decomposition episodes nor did plaintiff demonstrate “complete inability to function

16

independently outside the area of her home.” (AR 15.) The ALJ found that Plaintiff’s record was

17

devoid of evidence supporting “paragraph C.” (Id.) Moreover, the ALJ found that Plaintiff is

18

capable of performing “a full range of work at all exertional levels, but that Plaintiff is limited to

19

simple repetitive tasks.” (AR 16.)

20
21
22
23
24

At step four, after examining the record, the ALJ found that Plaintiff’s “statements
concerning the intensity, persistence, and limiting effects of these symptoms are not entirely
credible.” (AR 17.) The ALJ concluded that the record, objectively, does not support Plaintiff’s
allegations of limitations and disabling symptoms imposed by her depression. (AR 22.)
To reach this conclusion, the ALJ discredited Plaintiff’s testimony and gave great weight
to DDS reviewers’ assessments. (AR 19, 20.) The ALJ used the contradictions in Plaintiff’s

25
testimony to demonstrate lack of credibility. (AR 18.) Moreover, the ALJ noted that Plaintiff has
26
27

no trouble in her daily life, is independent with her hygiene, and cares for her mother who suffers
from dementia. (AR 17.)

28
12

1

In regards to the medical opinion evidence, the ALJ concluded the opinions of the DDS

2

reviewers, Dr. Pon and Dr. Kalman, were fully supported by Plaintiff’s medical records. (AR 19,

3

20.) The ALJ gave limited weight to the medical source statements of Drs. Ehrlich and Berney,

4

Plaintiff’s treating physicians, on the basis that there was not sufficient support in the record for

5
6
7
8

their conclusions. (Id.) The ALJ noted that Dr. Ehlrich “treated the claimant only intermittently…
and does not provide notes to document any recent visits.” (AR 19.) The ALJ also pointed to the
following inconsistencies in Dr. Ehrlich’s report: (1) that Plaintiff has chronic depression but Dr.
Ehrlich diagnosis is based upon his limited medical treatment of Plaintiff and (2) Dr. Ehrlich
stated that Plaintiff cannot live independently but she lives independently and cares for her

9
10

United States District Court
Northern District of California

11
12

mother. (Id.) Likewise, the ALJ gave Dr. Berney’s opinion limited weight because she “has seen
the claimant only for rare office visits” and has not treated Plaintiff for her anxiety and depression
for many years. (Id.) Moreover, the ALJ pointed out that there appears to be a family/social
relationship which suggests that Dr. Berney may not be objective about her opinion. (Id.) She

13

also mentioned that that Dr. Berney’s assessment of Plaintiff’s inattention may be due to her daily

14

use of marijuana. (AR 20.)

15

The ALJ gave Dr. Kalman’s opinion partial weight. She found that his findings that

16

Plaintiff could interact with supervisors and co-workers; deal with the public; understand,

17

remember, and carry out simple one to two step instructions; maintain attention, concentration,

18

and memory; and withstand the stress and pressure associated with daily work activity supports

19

that Plaintiff retains the ability to do simple, repetitive work without further restriction. However,

20

she gave Dr. Kalman’s computation of a GAF score of 50 partial weight because it was

21

“inconsistent with the assessed functional limitations.” (AR 20.)

22
23
24

At step five, the ALJ considered whether there are other jobs for Plaintiff given her age,
educational background, work experience, and residual functional capacity. (AR 22.) After
assessing the documents in the record, the ALJ concluded that there were jobs that Plaintiff could
obtain. (Id.) The ALJ thus concluded that Plaintiff is not disabled. (Id.)

25
LEGAL STANDARD
26
27

Pursuant to 42 U.S.C. § 405(g), the Court has authority to review an ALJ’s decision to
deny benefits. When exercising this authority, however, the “Social Security Administration’s

28
13

1

disability determination should be upheld unless it contains legal error or is not supported by

2

substantial evidence.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). The Ninth Circuit defines

3

substantial evidence as “such relevant evidence as a reasonable mind might accept as adequate to

4

support a conclusion”; it is “more than a mere scintilla, but may be less than a preponderance.”

5
6
7
8
9
10

United States District Court
Northern District of California

11

Molina v. Astrue, 674 F.3d 1104 (9th Cir. 2012) (internal citations and quotation marks omitted).
To determine whether the ALJ’s decision is supported by substantial evidence, the reviewing court
“must 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 quotation marks omitted); see also Andrews, 53 F.3d at 1039 (“To determine whether
substantial evidence supports the ALJ’s decision, we review the administrative record as a whole,
weighing both the evidence that supports and that which detracts from the ALJ’s conclusion.”)
Determinations of credibility, resolution of conflicts in medical testimony and all other

12

ambiguities are roles reserved for the ALJ. See Andrews, 53 F.3d at 1039. “The ALJ’s findings

13

will be upheld if supported by inferences reasonably drawn from the record.” Tommasetti v.

14

Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) (internal citations and quotation marks omitted); see

15

also Batson v. Comm’r, 359 F.3d 1190, 1198 (9th Cir. 2004) (“When the evidence before the ALJ

16

is subject to more than one rational interpretation, we must defer to the ALJ’s conclusion.”). “The

17

court may not engage in second-guessing.” Tommasetti, 533 F.3d at 1039. “It is immaterial that

18

the evidence would support a finding contrary to that reached by the Commissioner; the

19

Commissioner’s determination as to a factual matter will stand if supported by substantial

20

evidence because it is the Commissioner’s job, not the Court’s, to resolve conflicts in the

21

evidence.” Bertrand v. Astrue, No. 08–CV–00147–BAK, 2009 WL 3112321, at *4 (E.D. Cal.

22

Sept. 23, 2009).
DISCUSSION

23
24
25
26
27

Plaintiff’s challenge is narrow. First, she insists the ALJ erred by finding that Plaintiff had
the Residual Functional Capacity (RFC) to perform “simple repetitive tasks” rather than being
limited to “simple one and two-step job instructions.” Second, she contends the ALJ failed to
provide a hypothetical to the VE that includes the moderate limitation in concentration,
persistence, or pace.

28
14

1
2

A.

3

Plaintiff argues that the ALJ erred by rejecting Dr. Kalman’s limitation of “simple one and

4
5
6
7
8

The RFC is Supported by Substantial Evidence

two-step job instructions” without providing specific and legitimate reasons for doing so. See
Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1995). The distinction between being able to
perform simple repetitive tasks and simple one and two step jobs is important because individuals
limited to simple one and two step job instructions arguably cannot perform the Level 2 work the
ALJ found Plaintiff could perform. See Rounds v. Comm’r, Soc. Sec. Admin., 807 F.3d 996, 1003
(9th Cir. 2015).

9
10

United States District Court
Northern District of California

11
12

The flaw in Plaintiff’s argument, however, is that it assumes that Dr. Kalman limited
Plaintiff to performing work with simple one and two-step job instructions. The record supports a
finding that Dr. Kalman did not find that Plaintiff was so limited. Instead, Dr. Kalman found what
Plaintiff could do:

13

1) able to interact with supervisors and co-workers;

14

2) able to deal with the public;

15

3) able to understand, remember and carry out simple one and two-step job instructions;

16

4) able to maintain attention, concentration and memory;

17

5) able to withstand the stress and pressures associated with daily work activities.

18

(AR 274-75.) Plaintiff’s insistence that the fact that Dr. Kalman assessed Plaintiff with the

19

limitation of carrying out simple one two-step job instruction “is evident with the fact that the

20

other limitations were prefaced with ‘able to . . .’” (Dkt. No. 16 at 6) does not make sense. All the

21

“limitations,” including carrying “out simple one and two-step job instructions,” are prefaced by

22
23
24
25
26
27

“able to.” (AR 274-75.) Dr. Kalman no more found Plaintiff limited to simple one and two-step
job instructions than he found Plaintiff limited to being able to interact with supervisors or coworkers or being able to maintain attention, concentration and memory.
The relevant question then is whether substantial evidence supports the ALJ’s finding that
Plaintiff can perform simple repetitive work. It does. Dr. Kalman’s mental-status findings
that Ms. Willman could interact with supervisors and co-workers; deal with the public;
understand, remember, and carry out simple one to two step instructions; maintain attention,

28
15

1

concentration, and memory; and withstand the stress and pressure associated with daily work

2

activity is consistent with the RFC finding. Further, that Plaintiff lives with and cares full time for

3

her mother who suffers from dementia, and all that such responsibilities involve, are also

4

consistent with the ALJ’s finding. Regardless of whether the ALJ could have found otherwise, the

5
6
7
8

record supports the ALJ’s RFC finding and thus the ALJ’s RFC opinion must be affirmed.
B.

Plaintiff’s Limitations in Concentration, Persistence or Pace

The ALJ found that Ms. Willman has moderate limitations in concentration, persistence or
pace. (AR 15.) Ms. Willman maintains that the ALJ erred by not posing a hypothetical to the VE
that took into account this limitation. The Court agrees.

9
10

United States District Court
Northern District of California

11

The ALJ was required to address all of Plaintiff’s limitations, including her moderate
limitation in concentration, persistence or pace, in the RFC and hypothetical to the vocational
expert. See Magallanes v. Bowen, F. 2d 747, 756 (9th Cir. 1989); 20 C.F.R. § 416.945; see also

12

Lubin v. Comm’n of Social Sec. Admin., 507 Fed.Appx. 709, 712 (9th Cir. Feb. 8, 2013) (“The

13

ALJ must include all restrictions in the residual functional capacity determination and the

14

hypothetical question posed to the vocational expert, including moderate limitations in

15

concentration, persistence, or pac.”) (emphasis added). The ALJ, however, failed to do so. (AR

16

16-22, 56-57.) The Commissioner does not argue otherwise; indeed, the Commissioner’s motion

17

does not address the issue at all. (Dkt. No. 17.)

18

Accordingly, the Commissioner’s disability decision must be reversed on this ground.

19

C.

20

Plaintiff requests the Court to reverse and remand for benefits or, alternatively, remand for

21
22
23
24

Scope of Remand

further proceedings. (Dkt. No. 16 at 11.) 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). The
credit-as-true rule permits, but does not require, the ALJ to award benefits only under certain
circumstances. Leon v. Berryhill, No. 15-15277, 2017 WL 5150294, at *2 (9th Cir. Nov. 7, 2017).

25
26
27

A court may remand for an immediate award of benefits when “(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, whether claimant testimony

28
16

1

or medical opinion; and (3) if the improperly discredited evidence were credited as true, the ALJ

2

would be required to find the claimant disabled on remand.” Garrison, 759 F.3d at 1020. Each

3

part of this three-part standard must be satisfied for the court to remand for an award of benefits,

4

id., and “[i]t is the ‘unusual case’ that meets this standard.” Williams v. Colvin, No. 12–CV6179,

5
6
7
8
9
10

2014 WL 957025, at *14 (N.D. Cal. Mar. 6, 2014) (quoting Benecke, 379 F.3d at 595). Moreover,
if “an evaluation of the record as a whole creates serious doubt that a claimant is, in fact,
disabled,” a court should remand for further proceedings “even though all conditions of the creditas-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
impairments as true merely because the ALJ made a legal error in discrediting their
testimony.”). However, “an award under this rule is a rare exception, and the rule was intended to

United States District Court
Northern District of California

11

deter ALJs from providing boilerplate rejections without analysis.” Leon v. Berryhill, No. 15-

12

15277, 2017 WL 5150294, at *2 (9th Cir. Nov. 7, 2017). Indeed, “where ... an ALJ makes a legal

13

error, but the record is uncertain and ambiguous, the proper approach is to remand the case to the

14

agency.” Id. (citing Treichler, 775 F.3d at 1105).

15

Here, Plaintiff cannot be awarded benefits because the first condition—the only relevant

16

condition here—is not satisfied because the record has not been fully developed. In particular, the

17

ALJ erred in not posing a hypothetical to the VE regarding Plaintiff’s moderate limitations with

18

concentration, persistence, or pace. Thus, the Court declines to reach the credit-as-true rule and

19

instead remands for further proceedings.

20
21

CONCLUSION
The ALJ’s failure to limit Ms. Willman to one to two-step job instructions is supported by

22

substantial evidence; however, the ALJ erred in not presenting a hypothetical to the VE which

23

includes the moderate limitation in concentration, persistence, or pace as found by the ALJ.

24

The Court has discretion to determine whether to reverse or remand a social security case.

25

Lewin v. Schweiker, 654 F.2d 631, 635–36 (9th Cir. 1981); Harman v. Apfel, 211 F.3d 1172, 1178

26

(9th Cir. 2000). “If additional proceedings can remedy defects in the original administrative

27

proceedings,” the case should be remanded. Lewin, 654 F.2d at 635. Here, remand is warranted

28

because additional proceedings may remedy the defects in the ALJ’s analysis.
17

1

For the foregoing reasons, Plaintiff’s motion for summary judgment and Defendant’s

2

cross-motion for summary judgment is GRANTED in part and DENIED in part. The Court

3

REMANDS this case for further proceedings consistent with this Order.

4

This Order disposes of Docket Nos. 16 and 17.

5

IT IS SO ORDERED.

6

Dated: December 1, 2017

7
8
JACQUELINE SCOTT CORLEY
United States Magistrate Judge

9
10

United States District Court
Northern District of California

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
18