Hampton v. Commissioner of Social Security

Filing 20

ORDER granting 16 Motion for Summary Judgment. The court grants Mr. Hampton's summary-judgment motion, denies the Commissioner's cross-motion, and remands this case for further proceedings consistent with this order. (Beeler, Laurel) (Filed on 6/8/2018)

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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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DENNIS L. HAMPTON,

Case No. 17-cv-02004-LB

Plaintiff,

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v.

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NANCY A. BERRYHILL, Acting
Commissioner of Social Security,

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Defendant.

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ORDER GRANTING PLAINTIFF’S
MOTION FOR SUMMARY
JUDGMENT AND DENYING
DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT
Re: ECF No. 16
INTRODUCTION

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Plaintiff Dennis L. Hampton seeks judicial review of a final decision by the Commissioner of

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the Social Security Administration (“Commissioner”) denying his claim for disability benefits

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under Title II of the Social Security Act.1 Mr. Hampton moved for summary judgment;2 the

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Commissioner opposed the motion and filed a cross-motion for summary judgment.3 Under Civil

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Local Rule 16-5, the case is submitted for decision without oral argument. All parties have

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Compl. ‒ ECF No. 1 at 2 (¶ 9). Record citations refer to material in the Electronic Case File (“ECF”);
pinpoint citations are to the ECF-generated page numbers at the top of the documents.

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Mot. ‒ ECF No. 16.

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Mot. ‒ ECF No. 19.

ORDER – No. 17-cv-02004-LB 

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consented to magistrate jurisdiction.4 The court grants the plaintiff’s motion, denies the

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Commissioner’s cross-motion, and remands for further proceedings.

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STATEMENT
1. Procedural History and Prior Administrative and Judicial Rulings
In 2004, Mr. Hampton, then age 35, filed an application for Social Security disability

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insurance (“SSDI”) benefits under Title II of the Social Security Act, alleging a back injury,

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arthritis in his back, and depression.5 He also filed a claim for supplemental security income

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(“SSI”) benefits under Title XVI.6 The Commissioner denied his SSDI and SSI claims,7 and Mr.

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Hampton timely requested a hearing before an Administrative Law Judge (“ALJ”).8 On August

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United States District Court
Northern District of California

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30, 2005, the ALJ heard testimony from Mr. Hampton.9 On December 29, 2005, the ALJ found

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that Mr. Hampton was not disabled because he could perform his past work as an office worker.10

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Mr. Hampton reapplied for SSDI benefits on February 2, 2007 and December 31, 2008.11 The

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Commissioner denied those applications.12
On July 7, 2010, Mr. Hampton, then age 41, filed another application for SSDI benefits,

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alleging back and neck injury, arthritis, fibromyalgia, bipolar, severe depression, and anxiety.13 He

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Consents ‒ ECF Nos. 4, 8.

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AR 110, 849.

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Id.

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AR 110.

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AR 110, 849.

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AR 110.

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AR 119, 121.

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AR 181.

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Id.

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AR 123, 126, 178. The application was filed on July 7, 2010 (AR 123) and completed on July 19,
2010 (AR 178).

ORDER – No. 17-cv-02004-LB

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alleged an onset date of December 26, 2006.14 On December 3, 2010, the Commissioner denied

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his claim.15

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Mr. Hampton timely appealed the Commissioner’s decision and requested an ALJ hearing.16

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On September 19, 2011, ALJ K. Kwon held the hearing and heard testimony from Mr. Hampton

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and a vocational expert.17 On November 5, 2011, the ALJ issued an unfavorable decision (“2011

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ALJ decision”), holding that Mr. Hampton was not disabled because despite his limitations, he

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was capable of working at jobs that exist in the national economy.18 The Appeals Council denied

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Mr. Hamilton’s request for review on June 19, 2013.19
On October 4, 2013, Mr. Hampton appealed the 2011 ALJ decision to this court.20 Mr.

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Hampton argued that the ALJ erred by (1) improperly rejecting the medical evidence from the

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United States District Court
Northern District of California

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examining psychologist, Dr. Zipperle, and (2) failing to provide legally sufficient reasons to reject

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Mr. Hampton’s testimony.21 On August 12, 2014, the district judge remanded the case for further

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administrative proceedings. Hampton v. Colvin, No. 13-cv-04624-MEJ, 2014 WL 3962618 (N.D.

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Cal. Aug. 12, 2014) (“Hampton I”). For the first issue (the “limited weight” that the ALJ gave to

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examining psychologist Dr. Zipperle’s opinion), the court held that the ALJ provided “a specific

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and legitimate reason to discount Dr. Zipperle’s opinion.” Id. at *7. For the second issue (the

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ALJ’s assessment of the credibility of Mr. Hampton’s testimony about his symptoms), the court

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held that the ALJ “failed to provide legally sufficient reasons to reject . . . [Mr. Hampton]’s

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testimony.”22 The court observed that in evaluating Mr. Hampton’s credibility, the ALJ could

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discredit Mr. Hampton’s testimony based on his reported activities, his treatment records, and his

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AR 178.

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AR 123, 126‒30.

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AR 110, 145‒46, 849.

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AR 38‒105, 849.

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AR 23‒33.

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AR 7‒9.

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AR 871‒73.

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Id.; AR 891.

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Id.

ORDER – No. 17-cv-02004-LB

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treatment-seeking history; the court held, however, that the ALJ, “was required to provide clear

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and convincing reasons for discrediting [Mr. Hampton’s] subjective complaints” about the

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severity of his symptoms and had not done so.23 The court directed the following: “on remand the

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ALJ must reassess the evidence in the record, and if the ALJ continues to discount any of

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Plaintiff’s subjective complaints, must provide clear and convincing reasons for doing so

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consistent with this order.”24
On August 10, 2015, ALJ Kwon held a supplemental hearing on remand.25 Mr. Hampton and

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vocational expert Stephen P. Davis testified at the hearing.26 On November 23, 2015, the ALJ

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issued her decision (“2015 ALJ decision”).27 The ALJ noted that the Social Security Act required

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Mr. Hampton to establish his disability on or before the expiration of his coverage on December

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Northern District of California

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31, 2011 (and sometime after his alleged onset date of December 26, 2006) (the “relevant

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period”).28 The ALJ denied Mr. Hampton disability benefits because his impairments during the

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relevant period were not severe enough to keep him from performing his past relevant work as a

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vending machine attendant.29 In the alternative, the ALJ found that “[b]ased on the testimony of

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the vocational expert” and “considering [Mr. Hampton’s] age, education, work experience, and

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residual functional capacity (“RFC”), [Mr. Hampton] was capable of making a successful

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adjustment to other work that existed in significant numbers in the national economy” during the

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relevant period. The Appeals Council denied Mr. Hampton’s request for review.30 Mr. Hampton

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Id.

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Id.

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AR 806–45.

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Id.

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AR 788‒99.

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AR 789, 791.

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AR 797‒99.

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AR 776‒79, 784.

ORDER – No. 17-cv-02004-LB

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timely appealed the 2015 ALJ decision and moved for summary judgment.31 The Commissioner

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opposed the motion and filed a cross-motion for summary judgment.32

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2. Summary of Medical Evidence

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2.1.1 Dr. John Pendleton: Primary-Care Physician — Treating

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Mr. Hampton began seeing Dr. John Pendleton at the Petaluma Health Center in 2005.33 Dr.

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Pendleton’s treatment notes show a history of depression, chronic pain, insomnia fibromyalgia,

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syncope (fainting), degenerative disc disease, anxiety, and hypertension.34
In 2008, Mr. Hampton was struggling with obesity, insomnia, chronic pain, and anxiety.35 Dr.

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Pendleton prescribed the following medications: Effexor, Remeron, Ambien, and Klonopin.36 In

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Northern District of California

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late 2009, Dr. Pendleton reported that Mr. Hampton was using marijuana twice a day for his

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anxiety and depression.37 Dr. Pendleton started Mr. Hampton on Vistaril and Xanax to treat his

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anxiety.38

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In early 2010, Dr. Pendleton began treating Mr. Hampton for fibromyalgia, irritable-bowel

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syndrome, hypertension, and lower-back syndrome (in addition to treating Mr. Hampton’s chronic

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pain, anxiety disorder, and bipolar disorder).39 Dr. Pendleton prescribed Mr. Hampton the

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following medications: Dilaudid, Methadone, Klefex, and Baclofen for pain management; Ambien

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for insomnia; Albuterol; Xanax or Cymbalta for anxiety; Terazosin; Phenegran, Indomethacin;

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Mot. ‒ ECF No. 16.

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Mot. ‒ ECF No. 19.

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AR 472.

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AR 296–367, 43660, 12961304.

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AR 340‒48.

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Id.

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AR 315.

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Id.

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AR 297‒309.

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Lyrica; Lisinopril; Klonopin; Donnotal; Effexor or Tegretol for bipolar; and Metropolol for

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hypertension.40
Dr. Pendleton’s notes from June 2010 indicate a “red flag” when Mr. Hampton was “unable to

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give [a] urine sample” and were notated to: “follow opiate use carefully.”41 In August 2010, Dr.

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Pendleton stated that Mr. Hampton was “not sleeping well,” had “increased depression,” and was

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“trying to do on-line school.”42
On March 3, 2011, Dr. Pendleton completed a Cervical Spine Residual Functional Capacity

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Questionnaire43 and diagnosed Mr. Hampton with degenerative-disc disease and chronic neck-

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and-back pain.44 Dr. Pendleton noted that Mr. Hampton was “quite impaired by chronic insomnia,
anxiety, [and] depression.”45 He described the severity of Mr. Hampton’s pain as “daily pain for

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Northern District of California

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most of the day.”46 Mr. Hampton experienced side effects of dizziness and drowsiness from

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Dilaudid/Klonopin that “may have implications for working.”47 Dr. Pendleton said that Mr.

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Hampton could sit, stand, or walk for a total of two hours within an eight-hour working day48 and

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must include five minutes of walking every 30 minutes during his work day.49 Dr. Pendleton noted

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that he would need to do an “O.T. evaluation” to answer the questions about how much weight

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Mr. Hampton could carry in a competitive work situation or how long Mr. Hampton could sit or

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stand at one time.50 Dr. Pendleton stated that the description of symptoms and limitations applied

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as early as 2007.51

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AR 297‒309.

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AR 440.

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AR 299.

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AR 472‒76.

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AR 472.

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AR 476.

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AR 472.

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AR 473.

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AR 475.

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Id.

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AR 474‒75.

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AR 476.

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2.1.2 Dr. Ken Weinstock: Psychiatrist — Treating

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Dr. Ken Weinstock is a psychiatrist at Petaluma Health Center and is Dr. Pendleton’s

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colleague. Dr. Weinstock saw Mr. Hampton on October 19, 201152 and April 11, 201253 (after the

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November 2011 ALJ hearing). In his October 2011 notes, Dr. Weinstock indicated that Mr.

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Hampton had a history of bipolar disorder, had an assessment of personality disorder, and was in

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remission for amphetamine dependency.54 Dr. Weinstock noted that Mr. Hampton’s mood was

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“irritable and frustrated” and that his demeanor was “friendly, calm, and not at all sedated.”55 He

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reported that Mr. Hampton was irritated by his wife’s “change in personality” when she returned

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from rehab.56 Mr. Hampton was taking Metroprolo, Listinopril, Ventolin, Ambien, Tenezosin,
Remeron, Klonophin, Tegretol, Carbmarsepine, Pentanyl, and Percocet.57 Mr. Hampton’s

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United States District Court
Northern District of California

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“medications and general affect [were] well regulated to his baseline.”58 Dr. Weinstock had no

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acute psychiatric concerns that day.59
In April 2012, Dr. Weinstock noted that Mr. Hampton “recently filed divorce papers” from his

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fourth wife and was “smoking [marijuana] occasionally.”60 Dr. Weinstock’s psychiatric exam

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noted that Mr. Hampton had a “friendly and calm” demeanor and a “frustrated” mood. Dr.

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Weinstock recommended that Mr. Hampton “continue Remeron, Effexor, [and] Tregretol.”61

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AR 1191.

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AR 1187.

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AR 1191.

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Id.

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Id.

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Id.

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Id.

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Id.

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AR 1187.

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Id.

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2.1.3 Dr. John Alchemy: Family Practitioner — Examining

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On October 24, 2010, Dr. John Alchemy completed a comprehensive internal-medicine

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evaluation.62 He diagnosed Mr. Hampton with “chronic low back and neck pain, uncontrolled

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substance, . . . [h]ypertension, not controlled, . . . [and] [o]ngoing tobacco abuse.”63 Dr. Alchemy

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did not evaluate Mr. Hampton’s history of bipolar, depression, and anxiety.64 Dr. Alchemy found

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that Mr. Hampton had “[n]o limitations” for “sitting, walking, standing, or lifting,”65 but he noted

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that Mr. Hampton “walk[ed] in a slightly flexed posture with a cane . . . [and] moans when he

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stands up from a chair.”66
While Dr. Alchemy was testing Mr. Hampton’s range of motion, Mr. Hampton momentarily

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lost consciousness when he “turn[ed] his head to the right side and titlt[ed] back.”67 Mr. Hampton

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United States District Court
Northern District of California

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“close[d] his eyes and list[ed] backward.”68 During this episode, Mr. Hampton “[was] easily

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supported and his eyes open[ed] within 23 seconds.”69 Mr. Hampton and his wife reported that

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“this [was] [a] normal event [for Mr. Hampton] with neck motion.”70 Dr. Alchemy could not

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provide a reason “related to an objective documented condition” for Mr. Hampton’s “brief

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momentary loss of consciousness.”71 Dr. Alchemy found that Mr. Hampton should “no[t] work at

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heights, around heavy machinery, at extreme temperatures, or in safety-sensitive work

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environments.”72 Dr. Alchemy imposed “workplace environmental activity limitations” due to Mr.

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Hampton’s “stated loss of consciousness.”73 Dr. Alchemy concluded that Mr. Hampton should

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AR 379‒83, 459‒64.

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AR 382, 463.

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Id.

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AR 382-83, 464.

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AR 381, 462.

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AR 381.

68

Id.

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AR 381, 462.

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Id.

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Id.

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AR 383, 464.

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Id.

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“no[t] climb[] or balance[]” and should “continue using the cane” for comfort, but he could not

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“document a condition [] which would necessitate the use of a cane.”74

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2.1.4 Dr. Marion-Isabelle Zipperle: Psychologist — Examining

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On October 28, 2010, Dr. Marion-Isabelle Zipperle, a clinical psychologist, performed a

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comprehensive psychiatric evaluation of Mr. Hampton.75 During the examination, Mr. Hampton

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claimed that he was “in chronic pain, [] depressed[,] and moody.”76 Dr. Zipperle reported that Mr.

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Hampton “need[ed] help to bathe and dress”77 and did not perform yard work or help clean the

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house because “he c[ould] not bend.”78 Mr. Hampton also stated that he “very rarely dr[ove],” but

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Dr. Zipperle’s staff saw Mr. Hampton drive himself away after the examination.79 Mr. Hampton

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had trouble walking and brought a cane to the examination.80 Mr. Hampton was cooperative and

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United States District Court
Northern District of California

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“[d]epressed, quiet, coherent, and logical” and “despairing.”81 Dr. Zipperle noted no deficits in

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intellectual functioning.82
Dr. Zipperle diagnosed Mr. Hampton with a “pain disorder, post-traumatic stress disorder,

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bipolar disorder, panic disorder with agoraphobia, amphetamine dependence in remission, and a

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personality disorder.”83 Dr. Zipperle gave the following prognosis:
The claimant’s prognosis is poor due to the fact that he has mood swing keeping him
from functioning correctly. He is expansive, has racing thoughts, is impulsive, does
things he regrets, has poor judgment, had an accident in which that he re-lives,
flashbacks, nightmares, intrusive thoughts, becomes equally depressed, no
motivation, no energy, withdrawn, crying, helpless, hopeless, feeling self-esteem,
self-confidence, suicidal with no plan, nightmares, anxiety about going out and being
in crowds and open spaces. He does not have any apparent cognitive impairment.

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74

AR 383.

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AR 386‒89.

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AR 386.

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AR 387.

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Id.

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AR 386.

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AR 387.

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AR 387‒88.

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AR 388.

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Id.

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His impairments are emotional, psychological, and they would not improve in 12
months. He is in therapy periodically.84

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Dr. Zipperle described Mr. Hampton’s functional assessment as follows:

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The claimant can manage his own money.

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The claimant can perform simple and repetitive tasks.

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The claimant could not accept instructions from supervisors or interact with
coworkers and the public.

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The claimant would need special or additional instructions to work. He could not
maintain regular attendance in a workplace and he would have problems completing
a workday because of his performance issue from his psychiatric problems.

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The claimant has impaired ability to handle stress in a workplace.85

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2.1.5 Dr. Norman Zukowsky: Psychiatric Consultant (PhD) — Consulting

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United States District Court
Northern District of California

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On November 17, 2010, Dr. Norman Zukowsky, PhD, the state-agency psychiatric consultant,

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completed two checklist forms, a Psychiatric Review Technique and a Mental Residual Functional

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Capacity Assessment.86 In the Psychiatric Review Technique, Dr. Zukowsky found that Mr.

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Hampton had mild restriction of activities in daily living, moderate difficulties in maintaining

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social functioning, moderate difficulties maintaining concentration, persistence, and pace, and no

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repeated episodes of decompensation.87

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In the Mental Residual Functional Capacity Assessment, Dr. Zukowsky found that Mr.

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Hampton was moderately limited in the following: “ability to understand and remember detailed

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instructions;” “ability to carry out detailed instructions;” and “ability to interact appropriately with

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the general public.”88 Dr. Zukowsky said that Mr. Hampton could “understand and remember 1-

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and 2-step instructions,” “accept supervision[,] and generally get along with others.”89 He noted

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that Mr. Hampton’s “psychiatric symptoms may interfere with interactions with others at times, so

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84

AR 389.

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Id.

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AR 393‒406.

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AR 401.

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AR 404‒05.

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AR 406.

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[Mr. Hampton] should not interact with the public consistently.”90 Dr. Zukowsky said that Mr.

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Hampton was “most likely” to have “employment success . . . if assigned 1- or 2-step duties in a

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non-public setting.”91

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As part of Mr. Hampton’s case analysis, Dr. D. Pong, MD, reported that Dr. Zukowsky had

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noted that (1) the accuracy of Mr. Hampton’s (and his wife’s) “ADL” (Activities of Daily Living)

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questionnaire was uncertain based in part on Mr. Hampton’s claim that he did not drive but was

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seen driving away from his appointment with Dr. Zipperle;92 (2) Dr. Zipperle’s assessment

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“confuses what [Mr. Hampton] has reported and what she [Dr. Zipperle] observe[d] or

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conclude[d],” (3) the “diagnoses and deficits in [Mr. Hampton’s] work abilities appear largely
unsupported except by [Mr. Hampton’s] allegation[s],”93 and (4) “because [Mr. Hampton] [was]

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able to drive/travel independently when necessary, [was] fulfilling requirements of an online

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school, and interact[ed] with others in an acceptable fashion,” Mr. Hampton “c[ould] at least

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perform duties of a few steps in a competitive, nonpublic work setting.”94

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3. Mr. Hampton’s Testimony — 2011 and 2015 Hearings
At the September 19, 2011 hearing, Mr. Hampton testified that he worked as a truck driver

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from 1999 to December 26, 2006, the date of a syncope-related accident, and had not worked

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since.95 At the time of the hearing, Mr. Hampton was living with his third wife,96 “living off of

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family loans, [his] wife’s trust fund, and [a] worker’s comp claim.”97 In 2010, Mr. Hampton

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enrolled in online classes at the Art Institute in Pittsburg and took one class every six weeks.98 Mr.

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90

Id.

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Id.

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AR 409. The attribution to Dr. Zukowsky of these obstacles is in a report signed by “D. Pong MD.”

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Id.

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Id.

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AR 93435.

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AR 934.

97

AR 936.

98

AR 939.

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Hampton testified that he had four to five assignments per week and spent roughly ten hours a

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week on his assignments — roughly an hour and a half a day.99 He failed a class “due to an

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inability to spend that much time on a computer,”100 and his prescribed medication made him

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drowsy.101
The ALJ asked Mr. Hampton what was keeping him from working.102 Mr. Hampton testified

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that his back and neck caused him a lot of pain so he “constantly had to change [his] position,

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can’t sit upright in a chair for very long, [and] had to be able to get up and walk around . . . about

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every 10 to 20 minutes . . . or lean against a wall . . . and then lay down . . . at least a half an hour

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of every hour.”103 Mr. Hampton testified that he saw his primary care physician, Dr. Pendleton,

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once a month.104 Dr. Pendleton prescribed his medications “for the last couple of years.”105 Mr.

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Northern District of California

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Hampton reported that the medications “cover about 75% of the pain.”106 Mr. Hampton

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acknowledged that he had not sought treatment for the rest of the pain.107 He reported that an

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average day consisted of his waking up at “10 or 10:30 a.m.,” taking his medication, sitting “in

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bed for two hours [un]til the medicine takes effect,” “get[ting] out of bed . . . [to] sit in his recliner

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for part of the day, . . . and then, about halfway through the day, I end up back in the bedroom

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again laying down because the recliner started to hurt my back, so I need to change positions.”108

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If it is a “good day,” Mr. Hampton would get dressed and goes with his wife to the grocery

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99

AR 940‒41, 943.

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AR 944.

101

AR 960.

102

AR 946.

103

AR 946‒47.

104

AR 950.

105

AR 960.

106

AR 947.

107

AR 948.

108

AR 961.

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store.109 Mr. Hampton testified about the side effects from the medications, such as his being

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“lethargic, sleepy, dizzy” and having “diarrhea.”110
Regarding his syncope, Mr. Hampton said that he passed out “once every two, three days,”111

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requiring either trips to the emergency room (mostly) or crawling back into bed (sometimes)

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because112 “it’s not worth sitting in the emergency room for seven hours.”113 Mr. Hampton

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testified that he could carry up to 10 pounds,114 was pursuing a hobby in photography,115 and

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“visit[ed] his parents weekly.116 He said that he did not drive except for in “a rare emergency”

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such as when his wife was really sick.117
On August 10, 2015, Mr. Hampton testified on remand before ALJ Kwon at a supplemental

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hearing.118 The ALJ questioned Mr. Hampton about matters including his marital status, living

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United States District Court
Northern District of California

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situation, education level, daily living activities, medical conditions, and work history.119 Mr.

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Hampton testified that he was now divorced and living with his parents (but had been living with

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his ex-wife during the relevant period).120 Mr. Hampton completed high school and a year and a

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half of college credits as a part-time student but was unable to finish his degree because of the side

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effects of his medications, which “fuzz[ed] his brain.”121
Mr. Hampton testified that he last worked as commercial truck driver but had not worked since

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December 26, 2006, when he was in a traffic accident after a syncope episode where he “blacked

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109

AR 962.

110

AR 960.

111

AR 950‒51.

112

Id.

113

AR 951.

114

AR 964.

115

AR 965.

116

AR 967.

117

AR 938.

118

AR 806‒08.

119

AR 811‒36.

120

AR 811.

121

AR 811, 822‒23, 840.

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out behind the wheel and hit a guy head-on” in his truck and lost his commercial driver’s license;

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he eventually lost his regular driver’s license too because of his medical condition.122 Mr.

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Hampton testified that he had blacked out a few times before the accident123 and “once every two

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to three months” after the accident.124 Mr. Hampton described a syncope episode as “hit[ting] the

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floor and out cold for . . . 30 seconds.”125 Mr. Hampton said that he was now better able to

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recognize an upcoming syncope episode, which includes “tingling up the back of [his] neck” and

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“lightheadedness.”126 He testified that his current medications stabilized his syncope and bipolar

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symptoms and that he had not had an episode for approximately one year or more.127
Mr. Hampton testified that he spent most of his time at home128 and that his parents assisted

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him with laundry and cooking129 (although he did “laundry a couple times” and “occasionally

11
United States District Court
Northern District of California

10

cook[ed] a meal.”130 Mr. Hampton said that he did not now do any grocery shopping131 but made

12

his bed and took care of personal care: “dressing, showering and all that. . . . .”132 Mr. Hampton

13

testified that he had a girlfriend and occasionally saw friends.133
Mr. Hampton testified that he had not driven since 2006, except for once when he “drove [his]

14
15

girlfriend home because she had a little too much to drink.”134 Family members gave him rides,

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

122

AR 811‒14.

123

AR 813.

124

AR 814‒15.

125

AR 816.

126

AR 817.

127

AR 815, 818.

128

AR 826.

129

Id.

130

Id.

131

AR 827.

132

AR 826.

133

AR 827.

134

AR 813‒14.

ORDER – No. 17-cv-02004-LB

14 

1

and he took the bus.135 Mr. Hampton testified he did photography “occasionally . . . once every

2

two to three months” between 2006 and 2011.136
He testified that a psychiatrist at Petaluma Health Center first prescribed him medication, but

3
4

he could not recall her name.137 Then, Mr. Hampton’s primary-care physician, Dr. Pendleton,

5

started monitoring Mr. Hampton’s medications because Mr. Hampton did not have a good

6

relationship with the psychiatrist.138 The ALJ asked Mr. Hampton how he managed his pain.139

7

Mr. Hampton responded that from 2006 to 2011, he took Dilauded, Percocet, Tegretol, and

8

Morphine for pain management.140 He said that he spent lots of time in bed and was often fatigued

9

during the day,141 napping between two to four hours every day.142 Mr. Hampton tried physical
therapy unsuccessfully for six months.143 He tried acupuncture, which gave him temporary relief

11
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Northern District of California

10

for one to two hours after each appointment.144 Mr. Hampton testified that he started using a

12

fentanyl pain patch on his back in October 2011,145 which was more effective for pain

13

management than pills, which he described as a “pill rollercoaster.”146 Mr. Hampton testified that

14

he changed positions often throughout the day to manage the pain.147

15

The ALJ asked Mr. Hampton about his experience “ghost hunting” in 2008.148 Mr. Hampton

16

explained he got into “ghost hunting” in early 2008 through a friend and “quit going four months

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

135

AR 827.

136

AR 828.

137

AR 820.

138

AR 820‒21.

139

AR 831.

140

AR 838.

141

Id.

142

AR 839.

143

AR 830.

144

AR 831.

145

Id.

146

AR 831, 1303.

147

AR 831.

148

AR 831–32.

ORDER – No. 17-cv-02004-LB

15 

1

later.”149 He described “ghost hunting” as answering house calls for people who believe that their

2

house is haunted150 and using monitoring equipment to detect paranormal activity.151 Mr.

3

Hampton’s role was watch the monitor to give the group members bathroom or other breaks, and

4

he was an active participant for 10 to 15 minutes at a time.152

5
6

4. Vocational Expert Stephen P. Davis’s Testimony — 2015
Stephen P. Davis, a vocational expert (“VE”), testified at the ALJ hearing on remand on

7

August 10, 2015.153 The ALJ asked Mr. Davis to classify Mr. Hampton’s past work.154 Mr. Davis

9

stated that Mr. Hampton had been a truck driver, dump-truck driver, warehouse worker, title clerk,

10

vending machine attendant, and dishwasher.155 The ALJ posed a hypothetical question to the VE:

11
United States District Court
Northern District of California

8

whether an individual of Mr. Hampton’s age, education, and vocational history could perform any

12

of his past relevant work if that person had the following limitations: could “perform light work;”

13

was precluded from “jobs that require climbing ladders, ropes, and scaffolding;” could do “no

14

work at heights or with heavy and hazardous machinery or driving;” was restricted to jobs that

15

“remain simple and routine with a maximum [Special Vocational Preparation] SVP of 2;” could

16

perform no jobs with “interaction with the general public in terms of the primary duties of the

17

job;” and could not do “teamwork projects.”156 Mr. Davis testified that such a person could

18

perform Mr. Hampton’s past work as a “vending machine vendor.”157 The ALJ then asked the VE

19

to “give three [additional] examples that would fit [the] hypothetical.”158 Mr. Davis stated that

20
21
22
23
24
25
26
27
28

149

AR 832.

150

AR 831833.

151

Id.

152

AR 834.

153

AR 806, 841‒45.

154

AR 842.

155

AR 852.

156

AR 842‒43.

157

AR 843.

158

Id.

ORDER – No. 17-cv-02004-LB

16 

1

such a person also could work as an “assembler of electrical equipment,” a “shipping and

2

receiving weigher,” and a “lamination inspector.”159

3

Then the ALJ posed a second hypothetical, adding that the person would either “miss work

4

three days or more every single month or be off task while they are at work, one or the other, on a

5

25% or more chronic basis.”160 Mr. Davis testified that a person with those limitations could not

6

perform the above-mentioned work, and the limitations “would rule out all work” in the national

7

economy.161

8

Mr. McCaskell, Mr. Hampton’s representative, asked the VE, “if the person [from the first

9

hypothetical] was unable to concentrate for two-hour windows at a time to do simple repetitive

10

tasks, would they be able to perform any of that work.”162 Mr. Davis testified, “no.”163

United States District Court
Northern District of California

11
ANALYSIS

12
13

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

14
15

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

16

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

17

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

18

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

19

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

20

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

21

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

22

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

23

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

24
25
26
27
28

159

AR 843‒44.

160

AR 844.

161

Id.

162

Id.

163

Id.

ORDER – No. 17-cv-02004-LB

17 

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). “To determine whether or not a claimant is disabled, [the] ALJ follows a

14

five-step evaluation.” Zavalin v. Colvin, 778 F.3d 842, 846 n.1 (9th Cir. 2015) (citing 20 C.F.R. §

15

416.920(a)(4)). This five-step analysis is as follows. Tackett, 180 F.3d at 1098 (citing 20 C.F.R. §

16

404.1520).

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).
ORDER – No. 17-cv-02004-LB

18 

Step Five. Considering the claimant’s RFC, age, education, and work experience, is
the claimant able to “make an adjustment to other work?” If not, then the claimant is
disabled and entitled to benefits. See 20 C.F.R. § 404.1520(a)(4)(v). If the claimant
is able to do other work, the Commissioner must establish that there are a significant
number of jobs in the national economy that the claimant can do. There are two ways
for the Commissioner to show other jobs in significant numbers in the national
economy: (1) by the testimony of a vocational expert or (2) by reference to the
Medical-Vocational Guidelines at 20 C.F.R., part 404, subpart P, app. 2.

1
2
3
4
5

For steps one through four, the burden of proof is on the claimant. At step five, the burden

6
7

shifts to the Commissioner. Gonzales v. Sec’y of Health & Human Servs., 784 F.2d 1417, 1419

8

(9th Cir. 1986).

9

3. Application
On remand, the ALJ followed the five-step sequential evaluation process to determine whether

10

United States District Court
Northern District of California

11

Mr. Hampton was disabled and concluded that he was not.164

12

At step one, the ALJ found the Mr. Hampton did not engage in substantial gainful activity

13

during the relevant period (from his alleged onset date of December 26, 2006 through his last day

14

of coverage on December 31, 2011).165
At step two, the ALJ found that Mr. Hampton had the following severe impairments: “arthritis,

15
16

headaches, fibromyalgia, obesity, depressive disorder, [and] anxiety disorder.”166 The ALJ found

17

that Mr. Hampton’s “medically established disorders more than minimally affect[ed] [his] ability

18

to perform work related activities, and . . . [were] severe.”167 The ALJ noted there was evidence of

19

other impairments in Mr. Hampton’s medical records, such as, “hypertension, asthma, bronchitis,

20

appendicitis, and obesity” but found that there was “no evidence [that the] impairments

21

interfere[d] with [Mr. Hampton]’s ability to work.”168

22
23
24
25
26
27
28

164

AR 789; see also 20 CFR 404.1520(a).

165

AR 791.

166

Id.

167

Id.

168

Id.

ORDER – No. 17-cv-02004-LB

19 

1

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

2

impairments that met or medically equaled a listed impairment.169 The ALJ found that the record

3

did not support the existence of any such functional limitations, and “no treating or examining

4

physician [] reported findings, which either [met] or [were] equivalent in severity to the criteria of

5

any listed impairment.”170 The ALJ found that Mr. Hampton’s mental impairments — individually

6

and combined — did not meet Listings 12.04 and 12.06 because Mr. Hampton did not have

7

“marked” limitations in daily living, social functioning, or concentration, persistence, or pace.171

8

The ALJ found only mild restrictions in daily living because Mr. Hampton “testified he [was]

9

able to pursue his hobby of photographing families and landscapes from his car, use[d] Photoshop
to edit pictures, . . . and [was] able to cook, do laundry, and carry light groceries.”172 The ALJ

11
United States District Court
Northern District of California

10

noted that Mr. Hampton “was actively part of a ghost hunting group, enrolled as a part time

12

student for most of the period at issue, and was able to drive independently.”173
The ALJ found mild to moderate difficulties in social functioning based on the assessment of

13
14

Mr. Hampton’s examining psychologist.174 In addition, giving Mr. Hampton the “benefit of the

15

doubt,” the ALJ found “moderate limitations” with concentration, persistence and pace even

16

though Mr. Hampton “testified he is able to read, watch TV, and take online university classes for

17

photography”175 and — according to his examining and non-examining psychiatric evaluations —

18

was “able to carry out simple instructions without difficulties.”176 The ALJ found no episodes of

19

decompensation of an extended duration.177

20
21
22
23
24
25
26
27
28

169

Id.

170

Id.

171

AR 792.

172

Id.

173

Id.

174

Id.

175

Id.

176

Id.

177

Id.

ORDER – No. 17-cv-02004-LB

20 

Before considering whether Mr. Hampton was able to do any work that he had done in the past

1
2

under step four of the evaluation process, the ALJ followed a two-step process to determine (1)

3

“whether there [was] an underlying medically determinable physical or mental impairment(s) …

4

that could reasonably be expected to produce [Mr. Hampton’s] pain or other symptoms” and (2)

5

the extent to which “the intensity, persistence, or functionally limiting effects of pain or other

6

symptoms” limit Mr. Hampton’s functioning. 178 In doing so, the ALJ found that Mr. Hampton’s

7

“medically determinable impairments could reasonably be expected to cause his symptoms;

8

however [his] statements concerning the intensity, persistence, and limiting effects of [his]

9

symptoms [were] not entirely credible.”179
Specifically, the ALJ found that Mr. Hampton’s testimony was inconsistent with his

10

United States District Court
Northern District of California

11

“treatment-seeking history, mild findings on examination, and activities of daily living.”180 The

12

ALJ said that Mr. Hampton’s allegations that he was “in constant pain, unable to do most daily

13

activities,” and “pass[ing] out every 23 days” were “belied by the medical record.”181 The ALJ

14

observed that “despite regular office visits, [Mr. Hampton] did not report frequent syncope

15

episodes at any of his appointments in 2009, 2010 or 2011.”182 The ALJ noted that Mr. Hampton

16

was an active participant in a “ghost hunting group . . . which likely required physical and mental

17

activity inconsistent with the level of pain and fatigue [Mr. Hampton] allege[d].”183 The ALJ

18

stated that Mr. Hampton had “generally reported good relief from pain medication” and testified

19

that he “visit[ed] his parents weekly and [was] able to cook, shop, do laundry, and carry groceries

20

weighing less than 10 pounds, as well as drive.”184 The ALJ noted that Mr. Hampton had told the

21

consultative psychiatric examiner, Dr. Zipperle, that “he very rarely drives;” “however, after the

22
23
24
25
26
27
28

178

AR 793.

179

AR 794.

180

Id.

181

AR 795.

182

Id.

183

Id.

184

Id.

ORDER – No. 17-cv-02004-LB

21 

1

examination, [Mr. Hampton] was observed driving away in his truck.”185 The ALJ determined that

2

Mr. Hampton’s symptoms were not “as severe and limiting as alleged” and were not supported by

3

the medical record.186
The ALJ determined that Mr. Hampton had the RFC

4

8

to perform light work as defined in 20 C.F.R. 404.1567(b) except the claimant cannot
climb ladders, ropes or scaffolding, no work at heights, or around heavy or hazardous
machinery or driving. The claimant can perform work that is simple and routine with
a maximum Specific Vocational Preparation (SVP) of 2. The claimant should avoid
interaction with the general public as a primary duty of the job and no teamwork
projects with coworkers.187

9

Applying this RFC and the other factors at step four, the ALJ found that Mr. Hampton was

10

“capable of performing past relevant work as a vending machine attendant.”188 The ALJ noted that

11

such a finding was sufficient to find Mr. Hampton “not disabled” but nevertheless also analyzed

12

his claim under step five as an “alternative” basis for her decision finding no disability.189

5
6

United States District Court
Northern District of California

7

13

At step five, the ALJ found that “[b]ased on the testimony of the vocational expert” and

14

“considering [Mr. Hampton’s] age, education, work experience, and RFC, [Mr. Hampton] was

15

capable of making a successful adjustment to other work that existed in significant numbers in the

16

national economy,”190 specifically as an electrical equipment assembler, shipping-and-receiving

17

weigher, or laminator inspector.191 Ultimately, the ALJ found that Mr. Hampton was not disabled

18

any time during the relevant period from December 26, 2006 through December 31, 2011.192

19
20
21
22
23
24
25
26
27
28

185

Id.

186

Id.
AR 793 (emphasis added). Special Vocational Preparation (“SVP”) is defined “as the amount of
lapsed time required by a typical worker to learn the techniques, acquire the information, and develop
the facility needed for average performance in a specific job-worker situation.” Dictionary of
Occupational Titles (“DOT”), App. C, 1991 WL 688702 (4th ed. 1991).
188
AR 797‒98.
189
AR 798.
190
AR 799.
191
Id.
192
Id.
187

ORDER – No. 17-cv-02004-LB

22 

In his pending motion for summary judgment, Mr. Hampton contends that the ALJ’s decision

1
2

is not supported by substantial evidence because the ALJ “implicitly” rejected the opinion of state-

3

agency psychiatric consultant, Dr. Norman Zukowsky (PhD), despite the ALJ’s purporting to give

4

it “great weight.”193 Specifically, Mr. Hampton contends that the ALJ erred by effectively

5

equating Dr. Zukowsky’s assessment that Mr. Hampton could “understand and remember 1- and

6

2-step instructions” with the ALJ’s RFC determination that Mr. Hampton “can perform work that

7

is simple and routine.”194
Before reviewing the merits of this contention, the court addresses whether Mr. Hampton is

8
9

barred from raising this issue because the court conclusively adjudicated it in Hampton I.
3.1

11
United States District Court
Northern District of California

10

Law of the Case Doctrine Does Not Bar Mr. Hampton’s Action

In its cross-motion for summary judgment, the Commissioner contends that Mr. Hampton is

12

barred from raising his challenge to the ALJ’s decision based on principles of “res judicata (or

13

claim preclusion)”195 because the district court’s prior decision in Hampton I “resulted in a final

14

decision on the merits” that affirmed the ALJ’s weighting and assessment of the medical evidence,

15

including Dr. Zukowsky’s assessment.196
Although couched as an issue of res judicata or claim preclusion, the Commissioner’s

16
17

argument is based in the doctrine of the “law of the case.” Under the law-of-the-case doctrine, a

18

court is precluded from revisiting issues that have been decided — either explicitly or implicitly

19

— in a previous decision of the same court or a higher court. Hall v. City of L.A., 697 F.3d 1059,

20

1067 (9th Cir. 2012); Thomas v. Bible, 983 F.2d 152, 154 (9th Cir. 1993). Thus, under the law-of-

21

the-case doctrine, “the decision of an appellate court on a legal issue must be followed in all

22

subsequent proceedings in the same case.” United States v. Cote, 51 F.3d 178, 181 (9th Cir. 1995)

23
24
25
26
27
28

193

Mot. ‒ ECF No. 16 at 6.

194

Id. at 59.

195

The Supreme Court uses the term “res judicata” to refer collectively to claim preclusion and issue
preclusion. See, e.g., Taylor v. Sturgell, 553 U.S. 880, 892 (2008).

196

Mot. – ECF No. 19 at 6-7.

ORDER – No. 17-cv-02004-LB

23 

1

(quoting Herrington v. Cty. of Sonoma, 12 F.3d 901, 904 (9th Cir. 1993) (internal quotations

2

omitted)).

3

In the context of Social Security benefits determinations, the Ninth Circuit has held that the

4

law-of-the-case doctrine applies. Stacy v. Colvin, 825 F.3d 563, 567 (9th Cir. 2016). Moreover,

5

“as a general principle, the United States Supreme Court has recognized that an administrative

6

agency is bound on remand to apply the legal principles laid down by the reviewing court.” Ischay

7

v. Barnhart, 383 F.Supp.2d 1199, 1213–14 (C.D. Cal. 2005) (citations omitted); see Sullivan v.

8

Hudson, 490 U.S. 877, 886 (1989) (deviation from the court’s remand order in a subsequent

9

administrative proceedings is itself legal error, subject to reversal on further judicial review).
Thus, “[w]hen acting under an appellate court’s mandate, an inferior court is bound by the decree

11
United States District Court
Northern District of California

10

as the law of the case.” Vizcaino v. U. S. Dist. Court, 173 F.3d 713, 719 (9th Cir. 1999) (internal

12

quotation marks omitted). In Smith v. Berryhill, No. 2:17-CV-00873-DWC, 2018 WL 1633822, at

13

*2–3 (W.D. Wash. Apr. 5, 2018), the district court summarized the relevant Social Security

14

regulations as follows:

15
16
17
18
19
20
21
22
23

When a Federal court remands a case to the Commissioner for further consideration,
the Appeals Council, acting on behalf of the Commissioner, may make a decision,
or it may remand the case to an administrative law judge with instructions to take
action and issue a decision or return the case to the Appeals Council with a
recommended decision. If the case is remanded by the Appeals Council, the
procedures explained in [20 C.F.R.] § 404.977 will be followed. 20 C.F.R. § 404.983
(emphasis added).
Under 20 C.F.R. § 404.977, when the Appeals Council remands a case to the ALJ,
the ALJ “shall take any action that is ordered by the Appeals Council and may take
any action that is not inconsistent with the Appeals Council’s remand order.”
Accordingly, on remand, the ALJ must follow the specific instructions of the
reviewing court. See Stacy, 825 F.3d at 567-69.
The Ninth Circuit has described the law-of-the-case doctrine as “a judicial invention designed

24

to aid in the efficient operation of court affairs . . . . Further, the doctrine serves to advance the

25

principle that in order to maintain consistency during the course of a single lawsuit,

26

reconsideration of legal questions previously decided should be avoided.” United States v. Smith,

27

389 F.3d 944, 948 (9th Cir. 2004) (citations and internal quotation marks omitted). Moreover, in

28

Stacy, the Ninth Circuit explained that the doctrine of the law of the case “is concerned primarily
ORDER – No. 17-cv-02004-LB

24 

1

with efficiency, and should not be applied when the evidence on remand is substantially different,

2

when the controlling law has changed, or when applying the doctrine would be unjust.” 825 F.3d

3

at 567.
In Hampton I, Mr. Hampton challenged the ALJ decision on the grounds that (1) the ALJ

4
5

improperly gave “limited weight” to medical evidence opinion given by the examining

6

psychologist, Dr. Zipperle, and (2) the ALJ failed to provide legally sufficient reasons to reject

7

Mr. Hampton’s testimony.197 2014 WL 3962618, at *6.

8

On the first issue, the court upheld the ALJ’s decision to give only “limited weight” to Dr.

9

Zipperle’s opinion, finding that it was supported by “specific and legitimate reason[s].” 2014 WL
3962618, at *9. As such, this determination is now law of the case. See Stacy, 825 F.3d at 567;

11
United States District Court
Northern District of California

10

Hall, 697 F.3d at 1067. Likewise, on the second issue, the court found that the ALJ had “failed to

12

provide “clear and convincing reasons for discrediting [Mr. Hampton’s] subjective complaints”

13

about the severity of his symptoms and remanded the case to allow the ALJ to “reassess the

14

evidence in the record, and if the ALJ continues to discount any of Plaintiff’s subjective

15

complaints, … [to] provide clear and convincing reasons for doing so consistent with this order.”

16

2014 WL 3962618, at *10-11.
Accordingly, this court must determine whether these determinations (or any determinations

17
18

implicit in them) bar either party from pursuing any particular challenge to or defense of the

19

subsequent 2015 ALJ decision. See Stacy, 825 F.3d at 567; Hall, 697 F.3d at 1067.
In the present action, Mr. Hampton’s only argument is his contention that the ALJ erred by

20
21

failing to explain or provide a legally sufficient basis to support her RFC determination that Mr.

22

Hampton “can perform work that is simple and routine,” given Dr. Zukowsky’s assessment that

23

Mr. Hampton could “understand and remember 1- and 2-step instructions,” which Mr. Hampton

24

contends is a lower functional limitation than the “simple and routine” limitation in the ALJ’s

25

RFC.198 In Hampton I, the court reviewed and discussed Dr. Zukowsky’s opinion, but only in the

26
27
28

197

AR 891.

198

Mot. ‒ ECF No. 16 at 5-9.

ORDER – No. 17-cv-02004-LB

25 

1

context of the extent to which the ALJ could appropriately rely on Dr. Zukowsky’s opinion as a

2

contradictory medical opinion to support her decision to give only limited weight to Dr. Zipperle’s

3

medical opinion. 2014 WL 3962618, at *69. In these circumstances, the court declines to find

4

that Mr. Hampton’s current issue on review (relating to Dr. Zukowsky’s opinion regarding Mr.

5

Hampton’s ability to “understand and remember 1- and 2-step instructions”) is barred under the

6

doctrine of the law of the case, given that that element was not a substantive part of the court’s

7

decision in Hampton I. See Ortega v. O’Connor, 50 F.3d 778, 780 (9th Cir. 1995) (“‘[A] judgment

8

of reversal by an appellate court is an adjudication only of matters expressly discussed and

9

decided.”’) quoting Hansen & Rowland v. C.F. Lytle Co., 167 F.2d 998, 999 (9th Cir. 1948).
The court now turns to the merits of Mr. Hampton’s argument in this action.

11
United States District Court
Northern District of California

10

3.2

12

“[T]he ALJ is responsible for translating and incorporating clinical findings into a succinct

Inconsistency between ALJ’s RFC and Dr. Zukowsky’s Assessment

13

RFC.” Rounds v. Com’r of Social Sec. Admin., 807 F.3d 996, 1006 (9th Cir. 2015); see also

14

Vertigan v. Halter, 260 F.3d 1044, 1049 (9th Cir. 2001) (“it is the responsibility of the ALJ, not

15

[a] physician, to determine residual functional capacity [RFC]”). The ALJ’s determination of a

16

claimant’s RFC must be based on the medical opinions and the totality of the record. 20 C.F.R. §§

17

404.1527(d), 404.1546(c). Moreover, the ALJ is responsible for “‘resolving conflicts in medical

18

testimony, and for resolving ambiguities.’” Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014)

19

(quoting Andrews, 53 F.3d at 1039). In weighing and evaluating the evidence, the ALJ must

20

consider the entire case record, including each medical opinion in the record, together with the rest

21

of the relevant evidence. 20 C.F.R. § 416.927(b); see also Orn v. Astrue, 495 F.3d 625, 630 (9th

22

Cir. 2007) (“[A] reviewing court must consider the entire record as a whole and may not affirm

23

simply by isolating a specific quantum of supporting evidence.”) (internal quotation marks and

24

citation omitted).

25
26

As noted above, Mr. Hampton contends that the ALJ erred in formulating her RFC assessment
because the ALJ “implicitly” rejected the medical opinion of the non-examining psychiatric

27
28
ORDER – No. 17-cv-02004-LB

26 

1

consultant, Dr. Zukowsky.199 Specifically, Mr. Hampton argues that although the ALJ stated that

2

she gave “great weight” to Dr. Zukowsky’s opinion, her RFC assessment (finding that Mr.

3

Hampton could perform work that is “simple and routine within a maximum Specific Vocational

4

Preparation (SVP) of 2”) was not supported by Dr. Zukowsky’s medical opinion (which assessed

5

Mr. Hampton as being able to “understand and remember 1- and 2-step instructions” and

6

concluded that “[e]mployment success [is] most likely if assigned 1- or 2-step duties in a non-

7

public setting”).200 Mr. Hampton asserts that while these two assessments (in the ALJ’s RFC and

8

in Dr. Zukowsky’s report) “may seem consistent,” they are “not the same.”201 The court agrees.
As a preliminary matter, Mr. Hampton notes that the ALJ’s finding that Mr. Hampton was

9

limited to work with a “maximum SVP of 2”202 “is not the determinative factor in assessing

11
United States District Court
Northern District of California

10

whether the ALJ’s RFC determination is consistent with Dr. Zukowsky’s opinion.”203 The court

12

agrees. “The SVP level is not [] synonymous with the simplicity of a task.” Ferguson v. Colvin,

13

No. 3:15-CV-01532-SU, 2016 WL 7042076, at *2–3 (D. Or. Dec. 2, 2016) (citing Smith v. Colvin,

14

No. 3:14-cv-01210-PA, 2016 WL 680535, at *11 (D. Or. Feb. 19, 2016) (finding that the “ALJ

15

conflated two separate vocational considerations in formulating the RFC …: the SVP level and the

16

simplicity or complexity of the task”)).

17

Instead, Mr. Hampton contends, the DOT’s general education development (“GED”)

18

Reasoning Level is the “relevant vocational factor” by which to assess a claimant’s ability to

19
20
21
22
23
24
25
26
27
28

199

Id. at 5–6.

200

Id. at 5–6 (quoting AR 793 & 406).

201

Id. at 6.

202

The Social Security Administration uses (and has taken administrative notice of) the DOT,
which gives detailed physical requirements for a variety of jobs. See 20 C.F.R. §§ 416.966(d)(1),
15666(d)(1). The DOT defines “significant vocational preparation” or “SVP” as the “amount of lapsed
time required by a typical worker to learn the techniques, acquire the information, and develop the
facility needed for average performance in a specific job-worker situation.” DOT, App. C, § 2, 1991
WL 688702 (4th ed. 1991). “The higher the SVP rating, the more time it takes to equal average
performance in that occupation.” Nava v. Colvin, No. 3:14-cv-01348-AA, 2015 WL 5854074, at *5
(D. Or. Oct. 6, 2015). An SVP of 2 means “anything beyond a short demonstration up to and including
1 month.” See Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1230 (9th Cir. 2009).
203
Mot. ‒ ECF No. 16 at 6.
ORDER – No. 17-cv-02004-LB

27 

1

perform a given job.204 In support of his argument, he cites Hiblar v. Colvin, No. C15-5093-BJR-

2

MAT, 2015 WL 5254276, at *6 (W.D. Wash. Aug. 11, 2015), report and recommendation

3

adopted, No. C15-5093-BJR, 2015 WL 5285806 (W.D. Wash. Sept. 9, 2015) (finding that “[t]he

4

relevant vocational factor would be, instead [of the SVP level], the general education development

5

reasoning level, which measures the level of general education required to perform particular job

6

tasks”).
The Ninth Circuit took a similar approach in Rounds and observed:

7

There are six GED Reasoning Levels that range from Level One (simplest) to Level
Six (most complex). The lowest two levels are:

8
9

Level 1: Apply commonsense understanding to carry out simple one- or twostep instructions. Deal with standardized situations with occasional or no
variables in or from these situations encountered on the job.

10

United States District Court
Northern District of California

11

Level 2: Apply commonsense understanding to carry out detailed but
uninvolved written or oral instructions. Deal with problems involving a few
concrete variables in or from standardized situations.

12
13
14

807 F.3d at 1002–03 (citations omitted).

15

In Rounds, the Ninth Circuit remanded an appeal from the denial of disability when the ALJ

16

(and the VE) failed to “address[] whether Rounds’ limitation to one- to two-step tasks [as stated in

17

the RFC] was consistent with jobs requiring Level Two reasoning and, if so, why.” 807 F.3d at

18

1003. The court noted that “[t]here was an apparent conflict between Rounds’ RFC, which limits

19

her to performing one- and two-step tasks, and the demands of Level Two reasoning, which

20

requires a person to ‘[a]pply commonsense understanding to carry out detailed but uninvolved

21

written or oral instructions;’” the court noted that “[t]he conflict between Rounds’ RFC and Level

22

Two reasoning is brought into relief by the close similarity between Rounds’ RFC and Level One

23

reasoning. Level One reasoning requires a person to apply commonsense understanding to carry

24

out simple one- or two-step instructions.” 807 F.3d at 1003 (internal quotation marks and citation

25

omitted).

26
27
28

204

Id. at 7.

ORDER – No. 17-cv-02004-LB

28 

Here, Mr. Hampton’s contention is a similar, but slightly precursor, argument. Mr. Hampton

1
2

contends that the ALJ erred because she gave “great weight” to Dr. Zukowsky’s assessment,

3

including specifically noting Dr. Zukowsky’s assessment that Mr. Hampton could “understand and

4

remember to one- and two-step instructions,” but failed to explicitly consider or reflect that in her

5

RFC (or explain with appropriate reasons why she was not incorporating that medical assessment

6

into her RFC).205 The court agrees. Specifically, Mr. Hampton, relying on Rounds, argues that (1)

7

Dr. Zukowsky’s assessment of Mr. Hampton’s ability to “understand and remember 1- and 2-step

8

instructions” matches the Level 1 standard of “carry[ing] out simple one- or two-step instructions”

9

and is exceeded by the Level 2 standard of “carry[ing] out detailed but uninvolved written or oral
instructions,” and (2) the jobs that the ALJ determined (in consultation with the VE) that Mr.

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United States District Court
Northern District of California

10

Hampton was capable of performing were all GED Level 2 or even Level 3 positions (an assertion

12

that the Commissioner does not dispute).206
Applicable regulations, rulings, and case law require that an ALJ’s determination of a

13
14

claimant’s RFC must be based on the medical opinions and the totality of the record and that if the

15

ALJ’s RFC assessment “conflicts with an opinion from a medical source, the adjudicator must

16

explain why the opinion was not adopted.” Social Security Ruling 96–8p;207 20 C.F.R. §§

17

404.1546(c), 416.927(b) (ALJ must consider the entire case record, including each medical

18

opinion in the record, together with the rest of the relevant evidence); Lubin v. Comm’r of Soc.

19

Sec. Admin, 507 Fed. Appx. 709, 712 (9th Cir. 2013) (“ALJ must include all restrictions in the

20

residual functional capacity [RFC] determination”); see Lusardi v. Astrue, 350 Fed. Appx. 169,

21

173 (9th Cir. 2009) (in determining claimant’s RFC, the ALJ must not reject “significant probative

22

evidence” without explanation); Nguyen v. Chater, 100 F.3d 1462, 1464 (9th Cir. 1996) (an ALJ

23
24
25
26
27
28

205

Id. at 6 (citing AR 797).

206

Id. at 6-9; see generally Mot. ‒ ECF No. 19.

207

“Social Security Rulings (SSRs) ‘do not carry the “force of law,” but they are binding on ALJs
nonetheless.’ Bray v. Comm’r Soc. Sec. Admin., 554 F.3d 1219, 1224 (9th Cir.2009). They “‘reflect the
official interpretation of the [SSA] and are entitled to some deference as long as they are consistent
with the Social Security Act and regulations.”’ Id. (alteration in original) (quoting Avenetti v.
Barnhart, 456 F.3d 1122, 1124 (9th Cir. 2006)).” Molina, 674 F.3d at 1114.

ORDER – No. 17-cv-02004-LB

29 

1

errs when he rejects a medical opinion by ignoring it or failing to provide specific and legitimate

2

reasons for crediting a different opinion over the one in question); Rounds, 807 F.3d at 1006 (ALJ

3

is responsible for reviewing and incorporating medical “findings into a succinct RFC”); Garrison,

4

759 F.3d at 1010 (ALJ is responsible “for resolving ambiguities” in the record and errs if she

5

“rejects a medical opinion or assigns it little weight” without explanation or without explaining

6

why) (internal quotation marks and citation omitted); see also Huntsberry v. Berryhill, 2017 WL

7

2438527, at *9 (N.D. Cal. June 6, 2017) (citing Magallanes v. Bowen, 881 F.2d 747, 753 (9th Cir.

8

1989) (ALJ, however, “is not required ‘to agree with everything [that a non-treating, non-

9

examining physician] says in order to find that his testimony contains ‘substantial evidence’

10

United States District Court
Northern District of California

11
12
13
14
15
16

supporting the ALJ’s determination”). Moreover, the Ninth Circuit has held:
A hypothetical question [to the VE] should set out all of the claimant’s impairments.
If the [RFC and] the “assumptions [upon which] the hypothetical are [based are] not
supported by the record, the opinion of the vocational expert that claimant has a
residual working capacity has no evidentiary value. The most appropriate way to
insure the validity of the hypothetical question posed to the vocational expert is to
base it upon evidence appearing in the record, whether it is disputed or not. . . . Unless
there is record evidence to adequately support this assumption, the opinion expressed
by the vocational expert is meaningless. [If] neither the hypothetical nor the answer
properly set forth all of [the claimant’s] impairments, the vocational expert’s
testimony cannot constitute substantial evidence to support the ALJ’s findings.

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

Gallant v. Heckler, 753 F.2d 1450, 1456 (9th Cir. 1984) (internal quotation marks and citation
omitted); Lubin v. Comm’r of Soc. Sec. Admin, 507 Fed. Appx. 709, 712 (9th Cir. 2013) (“ALJ
must include all restrictions in . . . the hypothetical question posed to the vocational expert [VE]”).
Here, the Commissioner resists the obvious similarity between Dr. Zukowsky’s assessment
and the GED Reasoning Level 1 and the apparent discrepancy between Dr. Zukowsky’s “1- and 2step instructions” assessment and the ALJ’s RFC assessment by raising various counterarguments, including, inter alia, the following: (1) Dr. Zukowsky “merely” found that Mr.
Hampton could follow “1- and 2-step instructions,” not that this was necessarily the limit of his
capability; (2) other evidence in the record as a whole supports the ALJ’s RFC, including Dr.
Zipperle’s assessment (that Mr. Hampton could “perform simple and repetitive tasks,” an
assessment previously given only “limited weight” by the ALJ); and (3) Dr. Zukowsky found that
ORDER – No. 17-cv-02004-LB

30 

Mr. Hampton could “‘at least perform duties of a few steps in a competitive, nonpublic work

2

setting,’” 208 implying that Mr. Hampton could “perform[] at least three step tasks.”209 While these

3

various explanations and rationales offered by the Commissioner may or may not have merit, the

4

ALJ did not adopt or reference them or otherwise adequately articulate her reasonings. The court

5

declines the Commissioner’s entreat to undertake such an endeavor on behalf of the ALJ. The

6

court instead finds that the ALJ failed to articulate an adequate reason for her decision to

7

incorporate (or not) this part of Dr. Zukowsky’s assessment into her RFC assessment and that her

8

failure to do so in these circumstances was an error. See generally Garrison, 759 F.3d at 1012–13.

9

On remand, the ALJ may be able to offer reasons, but the court “cannot affirm the decision of an

10

agency on a ground that the agency did not invoke in making its decision.” Rounds, 807 F.3d 996,

11
United States District Court
Northern District of California

1

1003–04 (9th Cir. 2015) (internal quotation marks and citations omitted). An ALJ does not have to

12

address all grounds for its decision for a court to uphold the ALJ’s decision as supported by

13

substantial evidence in the record as a whole. Molina, 674 F.3d at 1122 (failure to discuss certain

14

evidence was inconsequential to the ultimate disability determination). And an error — viewed in

15

the context of the record as a whole — can be harmless. Id. at 1111, 1122. But the omitted

16

considerations here — the interplay between Dr. Zukowsky’s assessment of Mr. Hampton’s

17

ability and the jobs that the ALJ identified (after consulting with the VE) that appear to be GED

18

Reasoning Level 2 or higher — are material considerations, and the court cannot find the ALJ’s

19

failure to consider them explicitly to be harmless. See id. at 1115; see also Zavalin v. Colvin, 778

20

F.3d 842, 848 (9th Cir. 2015); Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir.

21

2006) (holding that the ALJ’s failure to reconcile apparent conflict between the RFC and DOT

22

was not harmless error). It is the ALJ’s job to determine the RFC based on the medical opinions

23

and the totality of the record and to resolve any ambiguities. 20 C.F.R. §§ 404.1527(d),

24
25
26
27
28

208

Mot. ‒ ECF No. 19 at 8 (quoting from AR 409). The court finds some ambiguity regarding whether
it is appropriate to attribute this finding (and others from this same AR citation) to Dr. Zukowsky. The
Commissioner and the district court in Hampton I all attributed it to Dr. Zukowsky. See e.g., AR 896.
The document itself appears to be a summary of various medical evidence that was signed by a “D.
Pong, MD.” On remand, it may be possible to clarify and resolve this ambiguity and determine to what
extent, if any, this affects the analysis of Mr. Hampton’s claim.

209

Mot. ‒ ECF No. 19 at 8.

ORDER – No. 17-cv-02004-LB

31 

1

404.1546(c); Garrison, 759 F.3d at 1010.

2

3.3

3

Finally, the ALJ concluded, based on the medical evidence, that Mr. Hampton has “moderate

The ALJ’s Failure to Consider All of Mr. Hampton’s Limitations in the RFC

4

difficulties” with regard to “concentration, persistence or pace.”210 The ALJ did not address this

5

limitation in her RFC analysis or her questions to the VE,211 and it is an additional basis for

6

remand.
As previously discussed, the ALJ concluded that Mr. Hampton can perform “light work” that

7
8

is “simple and routine with a maximum Specific Vocational Preparation (SVP) of 2.”212 This RFC

9

does not explicitly account for the moderate limitations that the ALJ assigned to Mr. Hampton
regarding concentration, persistence, and pace. See Friesth v. Berryhill, 2017 WL 901882, at *5

11
United States District Court
Northern District of California

10

(C.D. Cal. Mar. 7, 2017) (the ALJ erred when the ALJ determined that the claimant was

12

moderately limited in maintaining concentration, persistence, or pace, but the RFC only limited

13

the claimant to simple, repetitive work); Jahnsen v. Berryhill, 265 F. Supp. 3d 992, 999 (D. Alaska

14

July 13, 2017). Similarly, in her first hypothetical question to the VE, the ALJ did not explicitly

15

incorporate any limitations in concentration, persistence, or pace.213 See Brink v. Comm’r of Soc.

16

Sec. Admin., 343 Fed. Appx. 211, 212 (9th Cir. 2009) (accepting medical evidence that claimant

17

had moderate difficulty maintaining concentration, persistence, or pace and holding that posing the

18

hypothetical question to vocational expert referencing “simple, repetitive work” was error).

19
20
21
22
23
24
25
26
27
28

210

AR 792.

211

Mr. Hampton does not raise this issue explicitly in his summary-judgment motion. Ordinarily, a
court “will not consider any claims that were not actually argued in appellant’s opening brief.” Indep.
Towers of Wash. v. Washington, 350 F.3d 925,929 (9th Cir. 2003). But the “court [has a] duty to make
‘a full review of the facts’ and ‘an independent determination as to whether the [Commissioner’s]
findings are supported by substantial evidence.’” Farley v. Colvin, 231 F. Supp. 3d 335, 339 & n.5
(N.D. Cal. 2017) (quoting Stone v. Heckler, 761 F.2d 530, 532 (9th Cir. 1985) (In Farely, the district
court raised an issue sua sponte in a Social Security denial-of-benefits case despite the normal
presumptions against the court’s sua sponte raising non-jurisdictional claims and provided a summary
of other similar decisions in other districts);Vasquez, 572 F.3d at 591(court has the obligation to
review the record for findings that are based on legal error or that are not supported by substantial
evidence in the record as a whole).
212

AR 793.

213

AR 842–44.

ORDER – No. 17-cv-02004-LB

32 

An ALJ’s failure to explicitly consider concentration, persistence, and pace limitations is not

1
2

necessarily error. Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 2015). In Stubbs-

3

Danielson, for example, the Ninth Circuit held that the ALJ translated the plaintiff’s condition —

4

including the pace and mental limitations — into a physician’s assessment of a restriction to

5

“simple tasks.” Id. (following other circuits and holding that an ALJ’s assessment of a claimant

6

adequately captures restrictions related to concentration, persistence, or pace where the assessment

7

is consistent with restrictions identified in the medical testimony). But here, given the omission

8

regarding the interplay between Dr. Zukowsky’s assessment of Mr. Hampton’s ability and the jobs

9

identified by the ALJ that appear to be GED Reasoning Level 2 or higher (considerations that the
court deems material), the ALJ on remand should specifically address the limitations related to

11
United States District Court
Northern District of California

10

concentration, persistence, or pace in the RFC determination and the questions posed to the VE.

12

See Lubin v. Comm’r of Soc. Sec. Admin, 507 Fed. Appx. 709, 712 (9th Cir. 2013) (“ALJ must

13

include all restrictions in the residual functional capacity [RFC] determination and the

14

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

15

concentration, persistence, or pace”); Brink v. Comm’r of Soc. Sec. Admin., 343 Fed. Appx. 211,

16

212 (9th Cir. 2009). On this record, the court does not find the error harmless. See Molina, 674

17

F.3d at 1115.
CONCLUSION

18

The court grants Mr. Hampton’s summary-judgment motion, denies the Commissioner’s

19
20

cross-motion, and remands this case for further proceedings consistent with this order.214

21

IT IS SO ORDERED.

22

Dated: June 8, 2018

23

______________________________________
LAUREL BEELER
United States Magistrate Judge

24
25
26
27
28

214

The court has “discretion to remand a case either for additional evidence and findings or for an
award of benefits.” McCartey v. Massanari, 298 F.3d 1072, 1076 (9th Cir. 2002) (citing Smolen v.
Charter, 80 F.3d 1273, 1292 (9th Cir. 1996); McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989))
(“[t]he decision whether to remand for further proceedings or simply to award benefits is within the
discretion of [the] court”). Generally, “‘[i]f additional proceedings can remedy defects in the original
administrative proceeding, a social security case should be remanded.’” Garrison, 759 F.3d at 1019
(quoting Lewin v. Schweiker, 654 F.2d 631, 635 (9th Cir. 1981)) (alteration in original).
ORDER – No. 17-cv-02004-LB

33