Grant v. Berryhill

Filing 21

ORDER by Judge Laurel Beeler granting 18 Motion for Summary Judgment; denying 19 Cross-Motion for Summary Judgment.The court grants Mr. Grant's motion for summary judgment, denies the Commissioner's cross-motion for summary judgment, and remands this case for further proceedings consistent with this order. (lblc1S, COURT STAFF) (Filed on 9/24/2018)

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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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ANTHONY M. GRANT,

Case No. 17-cv-03423-LB

Plaintiff,

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v.

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NANCY A. BERRYHILL,
Defendant.

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ORDER GRANTING PLAINTIFF’S
MOTION FOR SUMMARY JUDGMENT
AND DENYING DEFENDANT’S
CROSS-MOTION FOR SUMMARY
JUDGMENT
Re: ECF Nos. 18, 19

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INTRODUCTION

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Plaintiff Anthony Grant seeks judicial review of a final decision by the Commissioner of the

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Social Security Administration denying his claim for disability benefits under Title II and Title

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XVI of the Social Security Act.1 He moved for summary judgment.2 The Commissioner opposed

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the motion and filed a cross-motion for summary judgment.3 Under Civil Local Rule 16-5, the

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matter is submitted for decision without oral argument. All parties consented to magistrate-judge

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Mot. – ECF No. 18 at 4. Citations refer to material in the Electronic Case File (“ECF”); pinpoint
citations are to the ECF-generated page numbers at the top of documents.
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Id. at 1.

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Cross-Mot. – ECF No. 19.

ORDER – No. 17-cv-03423-LB

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jurisdiction.4 The court grants the plaintiff’s motion, denies the Commissioner’s cross-motion, and

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remands for further proceedings.

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STATEMENT
1. Procedural History

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On November 15, 2012, Mr. Grant, born on August 31, 1970 and then age 42, filed a claim for

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social-security disability insurance (“SSDI”) benefits under Title II of the Social Security Act.5 On

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December 28, 2012 he filed a claim for supplemental security income (“SSI”) benefits under Title

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XVI.6 He alleged congestive heart failure, sleep apnea, cellulitis with acute edema, high blood
pressure, swelling in both legs, shortness of breath, and chest pain.7 On reconsideration, Mr. Grant

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United States District Court
Northern District of California

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alleged that he was suffering from depression, his legs were “constantly swollen,” and he had

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greater difficulty breathing.8 He alleged an onset date of July 30, 2010.9 The Commissioner denied

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his SSDI and SSI claims initially and on reconsideration.10 Mr. Grant timely requested a hearing.11

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On July 20, 2015, Administrative Law Judge Richard P. Laverdure (the “ALJ”) held a hearing

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in Oakland, California.12 Attorney Reed Wickham represented Mr. Grant.13 The ALJ heard

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testimony from Mr. Grant, vocational expert (“VE”) Timothy Farrell and medical expert (“ME”)

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James Todd, M.D.14 On August 25, 2015, the ALJ issued an unfavorable decision.15 Mr. Grant

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Consent Forms – ECF Nos. 7, 9.

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Administrative Record (“AR”) 228.

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AR 236.

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AR 93–94, 135–36, 278.

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AR 136.

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Id.

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AR 105, 133 (determinations on SSDI claim); AR 118 and 147 (determinations on SSI claim).

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AR 171.

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AR 48.

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Id.

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Id., AR 32 (Dr. Todd testified by telephone).

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AR 29.

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ORDER – No. 17-cv-03423-LB

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timely appealed the decision to the Appeals Council on September 15, 2015.16 The Appeals

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Council denied Mr. Grant’s request for review on April 10, 2017.17 On June 13, 2017, Mr. Grant

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timely filed this action for judicial review18 and subsequently moved for summary judgment on

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April 6, 2018.19 The Commissioner opposed the motion and filed a cross-motion for summary

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judgment on May 4, 2018.20 Mr. Grant filed a reply on May 18, 2018.21

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2. Summary of Record and Administrative Findings

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2.1

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Medical Records
2.1.1

Alta Bates Summit Medical Center Physicians — Treating

Mr. Grant was treated on multiple occasions at the Alta Bates Summit Medical Center from

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United States District Court
Northern District of California

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January 2009 through August 2015.22 The records reflect his morbid obesity: for example as of

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August 23, 2015, he was 5’ 8” tall and weighed 405 pounds.23 Mr. Grant often was admitted for

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shortness of breath or difficulty breathing,24 chest pain,25 leg pain,26 and leg swelling.27 During the

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course of these visits, emergency room physicians28 and specialists29 saw Mr. Grant and diagnosed

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AR 27–28.

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AR 1–7.

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Compl. – ECF No. 1 at 1–2.

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Mot. – ECF No. 18.

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Cross-Mot. ‒ ECF No. 19.

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Reply ‒ ECF No. 20.

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AR 599–746, 803–71, 1042–65, 1604–1781.

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AR 1729.

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See, e.g., AR 628, 700, 758, 1045, 1773.

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See, e.g., AR 1045, 1733.

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See, e.g., AR 1607, 1624.

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See, e.g., AR 1045, 1607, 1613, 1624, 1740.

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Mr. Grant saw numerous emergency room physicians, including Dennis Bouvier, D.O., Rebeka
Barth, M.D., Reina Rodriguez, M.D., Benjamin Lerman, M.D., Justin Paul Lee, M.D., Christopher
Michael Kolly, D.O., Melissa Tang, M.D., and Keala Landry, M.D. See AR 758, 1045–52, 1605,
1613, 1624, 1627, 1694, 1733, 1772.

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ORDER – No. 17-cv-03423-LB

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him with numerous chronic health problems, including morbid obesity,30 restrictive lung disease

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due to morbid obesity,31 polysubstance abuse,32 hypertension,33 sleep apnea,34 edema,35 kidney

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disease or kidney injury,36 dyspnea,37 cellulitis or sepsis secondary to cellulitis,38 diastolic

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dysfunction,39 respiratory failure,40 congestive heart failure,41 lymphadenopathy,42 depression,43

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chronic pain,44 and noncompliance or suspected noncompliance with his medications or dietary

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regimen.45
Discharge summaries and consultation notes from two recent, fairly long admission periods at

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Alta Bates Summit Medical Center illustrate some of the complications that Mr. Grant

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experienced due to his chronic medical conditions. The first extended hospital stay was from

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United States District Court
Northern District of California

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Mr. Grant saw numerous specialists, including Henry Tan, M.D., an intensive-care unit physician,
James McFeely, M.D., a pulmonologist, Ole Dierks, M.D., a nephrologist, James Perlada, M.D., an
infectious disease specialist, and Collin Mbanugo, M.D., a surgeon. See AR 729, 769, 1607.

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See, e.g., AR 628, 752, 769, 1049, 1607, 1685, 1773.

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See, e.g., AR 769.

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See, e.g., AR 628, 1539, 1773.

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See, e.g., AR 628, 769, 786, 1049, 1607, 1627, 1685, 1699, 1773.

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See, e.g., AR 628, 769, 1049, 1685, 1724, 1773.

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See, e.g., AR 729, 769, 783, 786, 807, 1737.

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See, e.g., AR 628, 769, 1607, 1627, 1685, 1724, 1740, 1773.

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See, e.g., AR 767, 780, 786, 1685. “Dyspnea refers to the sensation of difficult or uncomfortable
breathing.” Neal v. Colvin, No. 1:14-cv-01503-SKO, 2015 WL 5232328, at *1 n.3 (E.D. Cal. Sept. 8,
2015) (citing Dorland’s Illustrated Medical Dictionary 589, 1359 (31st ed. 2007)).

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See, e.g., AR 1607, 1627, 1724, 1731, 1773.

See, e.g., AR 1694, 1724, 1740, 1773. “‘Diastolic dysfunction’ refers to an abnormality in how the
heart fills with blood during the first part of the two parts of a heartbeat.” Smith v. Colvin, No. 1:14-cv03139-AJB, 2016 WL 1211952, at *8 n.13 (N.D. Ga. Mar. 28, 2016) (quoting Texas Heart Institute,
Diastolic Dysfunction, http://www.texasheart.org/HIC/Topics/Cond/ddisfunc.cfm).

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See, e.g., AR 730, 769.

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See, e.g., AR 786, 1694, 1773.

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See, e.g., AR 1607, 1773. Lymphadenopathy is characterized as “enlarged lymph nodes.” Hamm v.
Comm’r, Alabama Dep’t of Corr., 725 F. App’x 836, 837 (11th Cir. 2018).

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43

See, e.g., AR 1627.

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See, e.g., 1627, 1773.

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See, e.g., AR 628, 766–67, 769, 1049.

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ORDER – No. 17-cv-03423-LB

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November 19, 2014 through December 7, 2014.46 He weighed 364 pounds during this stay.47

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Rachel Kalpna Munzni, M.D., noted that Mr. Grant came to the hospital for left leg swelling and

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pain.48 Mr. Grant’s discharge diagnoses were sepsis (resolved), left leg cellulitis with DVT (deep-

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vein thrombosis) ruled out, hypertension, acute kidney injury on chronic kidney disease,

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lymphadenopathy, and morbid obesity.49 Mr. Grant underwent testing for deep-vein thrombosis,

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including a Doppler ultrasound and a CT scan, and the test results were negative.50
David Perlada, M.D., an infectious-disease specialist, examined Mr. Grant’s “worsening

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cellulitis” on his left leg.51 Dr. Perlada’s impression was that Mr. Grant was suffering from

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“severe lymphedema”52 in his left leg “with superimposed cellulitis and probably a reactive
lymphadenopathy on [his] left groin.”53 Dr. Perlada prescribed numerous antibiotics,

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United States District Court
Northern District of California

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recommended that an interventional radiology specialist aspirate the big lymph node in Mr.

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Grant’s left groin, and deferred to a nephrologist concerning Mr. Grant’s “aggressive diuresis.”54
Collin Mbanugo, M.D., provided a surgical consultation.55 Dr. Mbanugo noted that Mr.

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Grant’s left leg was swollen to twice the size of his right leg and that he did not see “any drainable

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abscess.”56 Dr. Mbanugo concluded that “there [was] nothing that require[d] any surgical

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46

AR 1605.

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AR 1615.

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AR 1607.

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Id.

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50

Id.

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AR 1638.

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AR 1641. “Lymphedema is a ‘swelling that generally occurs in one of your arms or legs.’” Hooper
v. Astrue, No. 7:11-CV-244-D, 2012 WL 6645006, at *2 (E.D.N.C. Dec. 20, 2012) (quoting
Lymphedema, Mayo Clinic, http://www.mayoclinic.com/health/lymphedema/DS00609).

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AR 1641.

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Id.

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AR 1642.

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Id.

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ORDER – No. 17-cv-03423-LB

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drainage” and recommended that Mr. Grant take an aggressive regimen of antibiotics and elevate

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his left leg.57

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Ole Dierks, M.D., a nephrologist, also saw Grant during this admission period.58 Dr. Dierks

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assessed that Mr. Grant had an acute kidney injury on chronic kidney disease, left-lower-extremity

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cellulitis, severe hypertension, obesity, lymphadenopathy, edema, OSA (obstructive sleep apnea),

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hypertensive heart disease, leukocytosis,59 and anemia.60 Dr. Dierk’s plan was that Mr. Grant

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should stop taking Lasix and start taking antibiotics.61
The second hospital stay was from March 16, 2015 through April 16, 2015.62 Leif R. Hass,

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M.D., noted in Mr. Grant’s discharge summary that Mr. Grant was admitted “for treatment of
CHF [congestive heart failure] exacerbation.”63 He weighed 384 pounds at the end of this hospital

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Northern District of California

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stay.64 Christopher Kolly, D.O., an emergency-room physician, noted that Mr. Grant “arrived

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diaphoretic, clammy, [and] in significant respiratory distress.”65 Mr. Grant was “only able to

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verbalize one word sentences.”66 Mr. Grant’s discharge diagnoses were acute diastolic-congestive

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heart failure “due to noncompliance and etoh (alcohol) use,” significant dyspnea and chronic

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edema, acute kidney injury, obstructive sleep apnea, morbid obesity, chronic pain, polysubstance

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abuse, debility, and anxiety due to recent trauma, namely, the death of a friend two weeks before

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Mr. Grant’s admission to Alta Bates Summit Medical Center.67 Dr. Hass instructed Mr. Grant to

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Id.

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AR 1628.

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“Leukocytosis is an increase in the number of white blood cells in the blood.” Boyle v. Colvin, No.
1:14-cv-1294, 2015 WL 350383, at *4 n.3 (N.D. Ohio Jan. 23, 2015) (quoting Leukocytosis,
Dictionary.com, http://dictionary.reference.com/browse/leukocytosis).

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AR 1628.

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Id.

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AR 1685. The record is not entirely clear in that there are two discharge dates listed. The other
discharge date is March 19, 2015.
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Id.

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AR 1687.

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AR 1698.

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Id.

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AR 1685.

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ORDER – No. 17-cv-03423-LB

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follow up with his primary-care physician within five days, and he noted that Mr. Grant would

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receive outpatient care at home.68

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2.1.2

Eastmont Wellness Center Physicians — Treating

From February 11, 2011 to December 22, 2011, Mr. Grant received treatment at the Eastmont

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Medical Center.69 The medical evidence from Eastmont Wellness Center contains several

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handwritten progress notes, many of which are difficult to read. The record indicates, however,

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that physicians treated Mr. Grant for diastolic dysfunction, cellulitis, hypertension, congestive

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heart failure, edema, and obstructive sleep apnea.70 The doctors on these visits would adjust Mr.

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Grant’s medications to treat his symptoms. For example, on August 25, 2011, the doctor
prescribed “flurosemide, metoprolol, enalapril”71 and recommended “venous stasis stockings to

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United States District Court
Northern District of California

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use in morning.”72

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2.1.3

San Leandro Hospital Physicians — Treating

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Mr. Grant was admitted to San Leandro Hospital on two occasions. His first admission period

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was from March 2 to March 7, 2011 for cellulitis, edema, redness, and pain in his right leg.73 Mr.

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Grant also had a “significant leukocytosis of 21,000.”74 Zarlasht Fakiri, D.O., wrote Mr. Grant’s

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discharge summary.75 Mr. Grant’s discharge diagnoses were right-lower-extremity cellulitis with

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acute edema (improved), chronic lower-right-extremity edema (likely secondary to venous

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insufficiency), acute clinical congestive heart failure (improved with Lasix and likely systolic),

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morbid obesity, hypertension (improved), borderline diabetes mellitus (aggravated by Mr. Grant’s

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Id.

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69

AR 575.

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See e.g., AR 582–84.

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AR 582–83.

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72

AR 583.

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AR 414, 416.

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AR 416.

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See AR 415–18.

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ORDER – No. 17-cv-03423-LB

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obesity), hyponatremia76 (improved with fluid restriction), hypokalemia77 (secondary to Lasix), a

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history of obstructive sleep apnea, pneumonia, normocytic anemia,78 and hypoalbuminemia.79 Dr.

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Fakiri noted that Mr. Grant initially had a fever, but his temperature decreased and leukocytosis

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improved after starting antibiotics.80 During the course of Mr. Grant’s stay, Mr. Grant was

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eventually able to walk using a walker, his dyspnea improved, and his antibiotic regimen was

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“tapered.”81 Dr. Fakiri noted that he had spoken with Mr. Grant “at length on several occasions

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with his mother present” concerning weight loss, nutrition, and an exercise regimen.82 Joseph C.

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Cheng, M.D., an orthopedic surgeon, consulted and found that Mr. Grant could continue to wear

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“hardware” on his right ankle that he had typically worn due to an earlier ankle fracture because

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the hardware was not infected and because of Mr. Grant’s weight.83
The second admission period at San Leandro Hospital was from June 26 to June 28, 2013.84

United States District Court
Northern District of California

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Madhumati Rampure, M.D., wrote in Mr. Grant’s discharge summary that Mr. Grant was

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hospitalized for shortness of breath with acute respiratory failure.85 Mr. Grant’s admitting

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diagnosis was acute respiratory failure (improved with no evidence of infection), mild congestive

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“Hyponatremia is ‘a condition that occurs when the level of sodium in your blood is abnormally
low.’” Marshall v. Astrue, No. 4:10-CV-1978, 2011 WL 5862625, at *8 n.28 (M.D. Pa. Nov. 22,
2011) (quoting Hyponatremia, Definition, Mayo Clinic staff, http://www.mayoclinic.com/health/
hyponatremia/DS00974).
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“‘Hypokalemia’ is the name for abnormally low potassium concentration in the blood which may
result from excessive potassium loss by the renal or gastrointestinal route, from decreased intake, or
from transcellular shifts.” Collins v. Astrue, 493 F. Supp. 2d 858, 871 n.24 (S.D. Tex. Apr. 16, 2007)
(quoting Dorland’s Illustrated Medical Dictionary 513 (29th ed. 2000).
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“Normochomic normocytic anemia is ‘a reduction below normal concentrations of red blood cells in
which the hemoglobin content and red blood cell size are still normal.’” Buford v. Comm’r of Soc.
Sec., No. 12-cv-5751 (KAM), 2015 WL 8042210, at *4 n.10 (E.D.N.Y. Dec. 3, 2015) (citations
omitted).
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AR 415–16. Hypoalbuminemia is characterized as “low levels of albumin in the blood.” Houston v.
Colvin, Civil Action No. 1:12-CV-2148, 2014 WL 901095, at *7 n.24 (M.D. Pa. Mar. 7, 2014).
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AR 416.

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AR 417.

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Id.

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83

AR 416.

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AR 1013–16, see also id. at 1486–1516.

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AR 1013.

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ORDER – No. 17-cv-03423-LB

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heart failure (improved with Lasix), morbid obesity, a history of hypertension, a history of sleep

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apnea, “[p]robably compensated respiratory acidosis,”86 chronic kidney disease (currently stable),

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normocytic anemia (with no evidence of an active bleed), chronic bilateral lower extremity

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swelling (right lower extremity more swollen than the left lower extremity), and a history of

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polysubstance abuse.87 Dr. Rampure noted that because Mr. Grant “initially was very lethargic and

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sleepy,” T. Craig Williams, M.D., had concluded that Mr. Grant’s CPAP machine was most likely

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leaking.88 Mr. Grant also underwent a CT scan to rule out a stroke, and the results were negative.89

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Mr. Grant was placed on a BiPAP (bilevel positive airway pressure) machine, and his condition

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improved.90 He was transferred out of the intensive-care unit and prescribed antibiotics and

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steroids, which were later discontinued.91

United States District Court
Northern District of California

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2.1.4

Frank Chen, M.D. — Examining

On July 30, 2011, Dr. Chen performed an internal-medicine evaluation of Mr. Grant, who then

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weighed 340 pounds.92 He diagnosed Mr. Grant with hypertension (advising him to seek medical

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attention), shortness of breath (likely due to obesity), chronic edema of both lower legs (greater in

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the right due to venous stasis and prior history of cellulitis of the right lower leg), and morbid

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obesity.93 Dr. Chen made the following functional-capacity assessment:

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The number of hours that claimant could stand and walk in an 8-hour workday is
about 4–6 hours. He may sit for 6 hours in an 8-hour work day. No assistive device
is medically necessary. The amount of weight that claimant could lift or carry is 50

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“Respiratory acidosis, also called respiratory failure or ventilator failure, is a condition that occurs
when lungs can’t remove enough of the carbon dioxide (CO2) produced by the body . . . Respiratory
acidosis is typically caused by an underlying disease or health condition . . . such as asthma, COPD,
pneumonia, or sleep apnea.” Jackson v. Berryhill, No. 3:13-00692, 2017 WL 4937612, at *6 n.6 (M.D.
Tenn. Aug. 14, 2017) (quoting Healthline, Respiratory Acidosis, http://www.healthline.com/health/
respiratory-acidosis#Overview1).
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87

AR 1013.

88

AR 1014.

89

Id.

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90

Id.

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91

Id.

92

AR 563–65.

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AR 565.

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ORDER – No. 17-cv-03423-LB

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pounds occasionally and 25 pounds frequently. There are no postural limitations on
bending, stooping or crouching and the claimant can perform this frequently. There
are no manipulative limitations on reaching, handling, feeling, grasping or
fingering, and the claimant can perform this frequently. There are no workplace
environmental limitations.94

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A corrective action letter was issued September 2, 2011, questioning “[the] quality of [Dr.

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Chen’s] CE [(consultative examination)] reports, [and] thoroughness of examinations.”95

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Subsequently, Dr. Chen was removed from the Disability Determination Services (“DDS”) “panel

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for his unprofessional manner and failure to adequately correct deficiencies in his CE reports.”96

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(The ALJ assigned no weight to his opinion.97)

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2.1.5

Louis Giorgi, M.D. — Non-Examining

Dr. Giorgi filled out a physical-residual functional-capacity assessment on August 25, 2011

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United States District Court
Northern District of California

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and concluded the following about Mr. Grant: (1) exertional limitations: occasionally lift 20

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pound; frequently lift 10 pounds; stand and/or walk (with normal breaks) for a total of 6 hours in

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an 8-hour workday; sit (with normal breaks for 6 hours in an 8-hour workday; and unlimited push

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and/or pull (including operation of hand and/or foot controls); explained the evidence in support of

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these assessments as “gait normal” and “bilat. lower extremities: pitting edema;” (2) postural

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limitation: occasionally climb ramps/stairs/ladders/rope/scaffolds, crouch, and crawl; frequently

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balance, stoop, and kneel; (3) manipulative limitations: none; (3) communicative limitations:

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none; and (4) postural limitations: none.98 Dr. Giorgi further noted that Mr. Grant suffered from

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hypertension and had been advised to seek medical attention.99

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94

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Id.

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AR 40 n. 1. (ALJ quoting first “Corrective Action” letter).

AR 40 n. 1 (quoting third and final “Corrective Action” letter); see also Hart v. Colvin, No.15-cv00623 (JST), 2016 WL 6611002, at *7 (N.D. Cal. Nov. 9, 2016) (approving a class-action settlement
that included provisions for re-opening certain disability cases where the claimant was examined by
Dr. Chen, but providing that “if Dr. Chen’s CE report was explicitly afforded no weight in the
analysis, that individual [would] not be eligible for another review of his or her claim.”).
96

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97

AR 40 n. 1.

98

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AR 567–571.

99

Id.

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ORDER – No. 17-cv-03423-LB

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2.1.6

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Jodi Snyder, Psy.D. — Examining

On June 25, 2013, Dr. Snyder, a psychologist, examined Mr. Grant.100 She reviewed his

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medical history, considered his chief complaint (obstructive sleep apnea, hypertension, and

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shortness of breath), identified his substance-abuse history (denied present use, self-described

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alcoholic with seven DUI’s and his last drink the day before), reviewed his employment history

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(past construction and in-home care with last job four years ago).101 She administered a battery of

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tests: a complete psychological exam, the Folstein Mini Mental Status Exam, the Wechsler Adult

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Intelligence Scale, the Weschler Memory Scale, and Trails A & B.102 For the Mental Status Exam:

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she noted his cooperative and friendly attitude, his fair eye contact, his falling asleep and poor

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attention, his poor insight and judgment, and his depressed mood, among other things.103 His

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United States District Court
Northern District of California

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intelligence test had borderline results for verbal comprehension, perceptual reasoning, and

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working memory, and extremely low results for processing speed and FSIQ.104 His Auditory

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Memory Index Score was extremely low, and his Visual Working Memory Index was low

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average.105 Her summary reflected the following additional points, among others: (1) cognitive

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functioning: score suggested difficulties with cognition (but “considering he fell asleep, please

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interpret with caution”); (2) emotional functioning: client reported depression due to worsening

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medical issues; and (3) prognosis/discussion: “Guarded: Diffuse difficulty with cognition noted to

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all domains. However, considering he fell asleep several times during the testing, please interpret

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with caution. Claimant’s issues appear primarily medical in nature with secondary depression.

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Will defer to medical opinion to address medical issues.”106

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100

AR 798–802

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101

AR 798–99.

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102

AR 800.

103

Id.

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Id. “FSIQ” is an abbreviation for “full-scale IQ.” See Nicholson v. Colvin, 106 F. Supp. 3d 1190,
1195 (D. Or. 2015).
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105

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AR 801.

106

Id.

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ORDER – No. 17-cv-03423-LB

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Her diagnosis was as follows: (1) Axis I: depressive disorder, not otherwise specified (NOS),

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and cognitive disorder, NOS; (2) Axis II: deferred; (3) Axis III: hypertension; shortness of breath,

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chronic edema of both legs (right greater than left); morbid obesity; and obstructive sleep apnea;

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(4) Axis IV: chronic health concerns; economic problems; limited support system; occupational

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problems; and (5) Axis V: a global assessment of functioning (GAF) score of 61.107
In her medical-source statement, she reported the following level of impairments for work-

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related activities: (1) unimpaired: ability to follow simple instructions and ability to maintain

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adequate pace or persistence to perform one or two simple repetitive tasks; (2) mildly impaired:

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ability to maintain adequate attention/concentration; ability to adapt to changes in job routine;

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ability to interact appropriately with co-workers, supervisors, and the public on a regular basis;

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United States District Court
Northern District of California

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and ability to adapt to changes, hazards, or stressors in a workplace setting; (3) mild-moderate

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impaired: ability to follow complex/detailed instructions; ability to maintain adequate pace or

13

persistence to perform complex tasks; ability to adapt to changes in job routine; and ability to

14

withstand the ability of a routine workday; and (4) no ability to manage funds.108
2.1.7

15

Preston Davis, Psy.D. — Non-Examining

16

On July 28, 2013, Dr. Davis, a psychologist, reviewed Mr. Grant’s medical records through

17

July 9, 2013.109 The records note Mr. Grant’s height and weight of 5’8” and 375 pounds.110 Dr.

18

Davis identified the following impairments, alleged and discovered: CHF (congestive heart

19

failure), sleep apnea, acute edema, HTN (hypertension), bilateral leg swelling, SOB (shortness of

20
21
AR 801–02. A Global Assessment of Functioning (“GAF”) score purports to rate a subject’s mental
state and symptoms; the higher the rating, the better the subject’s coping and functioning skills. “A
GAF score is a rough estimate of an individual’s psychological, social, and occupational functioning
used to reflect the individual’s need for treatment.” See Worsham v. Colvin, No. 15CV55-WQH-MDD,
2016 WL 750108, at *3 n.1 (S.D. Cal. Jan. 12, 2016) (report and recommendation), adopted, No.
15CV55-WQH-MDD, 2016 WL 739792 (S.D. Cal. Feb. 25, 2016). “According to the DSM–IV, a
GAF score between 61 and 70 describes “mild symptoms . . . but generally functioning pretty well
. . . . [sic] DSM–IV–TR, p.34.” Id.
107

22
23
24
25

27

108

AR 802.

109

26

AR 93–100.

110

AR 93.

28
ORDER – No. 17-cv-03423-LB

12

1

breath), chest pain, and discovered DAA (drug and alcohol abuse) issues.111 After reviewing Mr.

2

Grant’s medical history, Dr. Davis identified the following medically determinable impairments:

3

essential hypertension (primary, severe), obesity (secondary, severe), organic mental disorders

4

(other, non severe), and affective disorders (other, non severe).112 He found mild restrictions for

5

activities of daily living, difficulties maintaining social functioning, and difficulties in maintaining

6

concentration, persistence, or pace.113 There was “insufficient evidence” to evaluate if Mr. Grant

7

experienced “Repeated Episodes of Decompensation.”114 He concluded that Mr. Grant did not

8

meet the “A,” “B” or “C” criteria for Listings 12.02 or 12.04.115

9

2.1.8

Nick Mansour, M.D. — Non-Examining

On July 22, 2013, Dr. Mansour reviewed Mr. Grant’s records and made a residual-functional

10

United States District Court
Northern District of California

11

capacity (“RFC”) assessment.116 Mr. Grant’s exertional limitations based on his morbid obesity

12

are as follows: occasionally lift and/or carry (including upward pulling) 25 pounds; frequently lift

13

and/or carry (include upward pulling) 10 pounds; stand/walk (with normal breaks) for a total of

14

four hours; sit (with normal breaks) for about six hours in an eight-hour workday; and unlimited

15

push and/or pull (including operation of hand and/or foot controls).117 Mr. Grant’s postural

16

limitations were as follows: frequently climb ramps/stairs; occasionally climb

17

ladders/ropes/scaffolds; frequently balancing; frequently stooping; frequently kneeling;

18

occasionally crouching; and occasionally crawling.118 Dr. Mansour offered the following

19

additional explanation:

20

This man’s main problem is his morbid obesity. He has actually diastolic
dysfunction which is called diastolic CHF. I find no evidence of frank pulmonary

21
22

111

AR 97.

23

112

AR 99.

113

AR 100.

114

Id.

25

115

Id.

26

116

AR 101–03.

117

AR 102.

118

Id.

24

27
28

ORDER – No. 17-cv-03423-LB

13

1

edema or CHF and it appears that part of the problem may be excessive alcoholic
intake and lack of compliance with his hypertension medications.119

2
3

He opined that Mr. Grant could not do his past relevant work as a home attendant or a security

4

guard because he was limited to sedentary work.120 He gave “great weight” to Dr. Frank Chen,

5

because it was “[consistent with] findings,”121 and less weight to Dr. Snyder’s analysis because the

6

opinion was “not fully supported by other evidence from other evidence of record.”122

7

2.1.9

On January 20, 2014, Dr. Saphir made an RFC assessment.123 He repeated Dr. Mansour’s

8
9

conclusions, also discounting Dr. Snyder and assigning “great weight” to Dr. Chen.124

10

2.1.10 Patrice Solomon, Ph. D. — Non-Examining

11

United States District Court
Northern District of California

J.R. Saphir, M.D. — Non-Examining

On January 21, 2014, Dr. Solomon reviewed Mr. Grant’s medical records through January 1,

12

2014.125 She reported the following medical impairment/diagnoses: essential hypertension

13

(primary, severe); obesity (secondary, severe); organic mental disorder (other, non-severe);

14

affective disorder (other, non-severe); and substance-abuse disorders (other, non-severe).126 Dr.

15

Solomon also reviewed Mr. Grant’s psychological records and concluded that Mr. Grant did not

16

suffer from severe mental limitations.127 Concerning the “paragraph B” criteria for Listings 12.02

17

and 12.04, Dr. Snyder found that Mr. Grant had only mild limitations.128 She concluded that the

18
19
20
119

AR 103.

120

AR 104.

22

121

AR 101.

23

122

AR 103.

123

AR 130–31.

124

Id.

25

125

AR 121–29.

26

126

AR 128.

127

AR 127–29.

128

AR 128.

21

24

27
28

ORDER – No. 17-cv-03423-LB

14

1

evidence did not establish that Mr. Grant satisfied the “paragraph C” criteria for Listings 12.02 or

2

12.04.129
2.1.11 Lifelong Medical Care — Treating

3

Beginning December 26, 2012, Mr. Grant sought medical treatment at Lifelong Medical Care

4
5

in East Oakland, California.130 Mr. Grant went to Lifelong Medical Center until at least August 14,

6

2015.131 Mr. Grant mainly saw Aguia Heath, M.D.,132 and Serena Wu, M.D.;133 both were his

7

primary-care physicians.134 Mr. Grant also regularly met with pharmacists, who advised him about

8

his medications, stressed the importance of compliance with all of his medications, and

9

encouraged him to adopt a healthier lifestyle.135 On a less frequent basis, Mr. Grant saw Morgen
Yao-Cohen, M.D.,136 a physician in Lifelong Medical Care’s congestive heart failure practice

11

United States District Court
Northern District of California

10

group,137 and Eric Fuller, D.P.M., a podiatrist.138 Mr. Grant also saw social workers139 at Lifelong

12

Medical Center for his depression, anxiety, and polysubstance abuse, and they conducted home

13

visits.140 Mr. Grant visited Lifelong Medical Care for a variety of health issues, including foot

14

pain,141 issues with foot care,142 foot and leg swelling,143 a chronic cough,144 rashes,145 and ear

15
129

16

Id.

130

AR 921.

17

131

AR 1574.

18
19
20

132

See, e.g., AR 876–90, 897–908, 912–44, 969–80, 984–92, 1224–27, 1234–42, 1247–59, 1263–66,
1269–72, 1277–79.
133

See, e.g., AR 1035–37, 1176–79, 1184–94, 1199–1204, 1212–23, 1579–85, 1593–96.

134

The record indicates that Dr. Wu is a family practice physician. See AR 1037.

135

21
22

See, e.g., AR 894–96, 960–61, 966–68, 1168–72, 1180–83, 1195–98, 1205–11, 1228–33, 1260–62,
1267–68, 1273–76, 1560–63, 1586–87.
136

See, e.g., AR 1164–67, 1173–75, 1574–78, 1588–92.

137

23

AR 1187.

138

See, e.g., AR 891–93, 909–11, 981–83, 1243–46.

24

139

25
26
27

Mr. Grant saw Claudia Madison, LCSW, in August 2013 for his depression and alcohol abuse. See
AR 993–94, 1569–70. He also saw Jennifer Wachter, LCSW, in July 2015 for his anxiety. See AR
1550–52.
140

Brigitte Peltekof and Celina Ramirez, LCSW, visited Mr. Grant at his home in June 2014. See AR
1565–66. Ms. Peltekof returned in April 2015 for another home visit with Clipper Young, Pharm.D.,
and a student intern. See AR 1562–63.
141

28

See, e.g., AR, 905, 977.

ORDER – No. 17-cv-03423-LB

15

1

problems,146 but practitioners at Lifelong Medical Care also addressed many of his chronic health

2

conditions, such as obstructive sleep apnea,147 polysubstance abuse,148 cardiomyopathy,149

3

hypertension,150 edema,151 respiratory failure,152 congestive heart exacerbation or failure,153

4

cellulitis,154 kidney disease,155 noncompliance with his medications, dietary regimen, or use of his

5

CPAP machine,156 shortness of breath or breathing problems,157 intertrigo,158 and morbid

6

obesity.159 In addition to prescribing and adjusting Mr. Grant’s medications,160 the physicians at

7

Lifelong Medical Care repeatedly encouraged Mr. Grant to adopt healthy lifestyle changes, such

8
142

See, e.g., AR 909, 909–11, 977, 989, 1245.

143

See, e.g., 909–11, 921, 956, 1243–46.

144

See, e.g., AR 951, 956, 1250.

11

145

See, e.g., AR 901, 905, 917, 973, 977.

12

146

See, e.g., AR 901, 905, 962, 969, 973, 977.

147

See, e.g., AR 903, 908, 992, 1263, 1266, 1269, 1579, 1593.

9

United States District Court
Northern District of California

10

13
14

148

See, e.g., AR 912, 917, 924, 951, 956, 959, 969, 971, 986, 989, 992–93, 1184, 1239, 1254, 1263,
1269, 1586.
See, e.g., AR 912, 924, 951, 956, 986, 1212, 1220–21, 1227, 1242, 1254, 1256. “Cardiomyopathy is
‘a general diagnostic term designating primary noninflationary disease of the heart muscle, often of
obscure or unknown etiology and not the result of ischemic, hypertensive, congenital, valvular, or
pericardial disease.’” Hargrove v. Colvin, No. 2:14-cv-196-KS-MTP, 2016 WL 418172, at *1 n.1
(S.D. Miss. Jan. 4, 2016) (quoting Dorland’s Illustrated Medical Dictionary 287 (29th ed. 2000)).
149

15
16
17
18

150

See, e.g., AR 924, 951, 962, 971, 1184, 1239, 1242, 1247, 1250–51, 1254, 1276–77, 1279, 1574,
1579, 1586.
151

See, e.g., AR 959, 986, 1246, 1254, 1266.

152

See, e.g., AR 899, 971 (same visit repeated in the record).

20

153

See, e.g., AR 992, 1167, 1175–76, 1184, 1192, 1199, 1216, 1579, 1586, 1593.

21

154

See, e.g., AR 1192.

155

See, e.g., id.

156

See, e.g., AR 905, 961, 1212, 1266.

23

157

See, e.g., AR 1216, 1218.

24

158

19

22

25
26

See, e.g., AR 1227, 1254. Intertrigo is characterized as “a rash that shows up between the folds of
skin. It is a very common skin rash that can crop up throughout life.” Williams-Bey v. Carpenter, No.
14-0490-CG-C, 2015 WL 4602871, at *2 n.3 (S.D. Ala. July 29, 2015) (quoting WebMD,
http://webmd.com/skin-problems-and-treatments/guide/intertrigo-symptoms-causes-treatmentrisk_factors_).
159

27

See, e.g., AR 1254.

160

See, e.g., AR 899, 903, 920, 924, 954, 959, 964, 967, 1178, 1237.

28
ORDER – No. 17-cv-03423-LB

16

1

as limiting his sodium intake to reduce his hypertension,161 increasing his daily exercise

2

regimen,162 restricting his fluid intake to prevent fluid overload,163 eating healthier,164 and

3

monitoring his blood pressure at home with a blood pressure monitor that they provided for

4

him.165 Mr. Grant’s physicians repeatedly advised him to decrease his alcohol intake or abstain

5

from cocaine and alcohol use altogether.166 They also advised Mr. Grant to increase his

6

compliance with his medications167 and the use of his CPAP machine, stressing that it needed to

7

be fitted properly.168 They also provided assistance with leg and foot care, such as debriding and

8

trimming his nails and wrapping his legs when he suffered from edema.169
Dr. Wu — addressed by the ALJ because she did an RFC assessment — saw Mr. Grant

10

approximately twelve times between June 2014 and August 2015.170 Dr. Wu began treating Mr.

11

United States District Court
Northern District of California

9

Grant on June 26, 2014.171 The record reflects that Mr. Grant’s height and weight of 5’8’’ and

12

361.5 pounds.172 Dr. Wu saw Mr. Grant for a check-up and noted that Mr. Grant’s previous

13

primary-care physician was Dr. Heath.173 Dr. Wu listed Mr. Grant’s chronic problems (including

14

health-care maintenance, morbid obesity, obstructive-sleep apnea, hypertension, cardiomyopathy,

15

chemical dependency, alcohol abuse, a history of myocardial infarction,174 tinea,175 pedal edema,

16
17

161

See, e.g., AR 1167, 1261, 1276.

18

162

See, e.g., AR 967, 1175, 1261, 1584.

163

See, e.g., AR 895, 967, 1167, 1591.

164

See, e.g., AR 895, 967, 1175, 1584.

20

165

See, e.g., AR 1255.

21

166

See, e.g., AR 899, 959, 971, 980.

167

See, e.g., AR 1197, 1211, 1255, 1591.

168

See, e.g., AR, 908, 980, 1190.

23

169

See, e.g., AR 983, 1245–46.

24

170

See, e.g., AR 1176–79, 1184–94, 1199–1204, 1212–23, 1579–85, 1593–96.

171

AR 1221.

172

AR 1223.

26

173

AR 1221.

27

174

19

22

25

A myocardial infarction is commonly known as a heart attack. See Avello v. Colvin, No. 2:13-cv00504-JAD-GWF, 2014 WL 5506746, at *2 (D. Nev. Sept. 16, 2014).

28
ORDER – No. 17-cv-03423-LB

17

1

cocaine use, intertrigo, TMJ (temporomandibular joint) arthropathy,176 depression, and gait

2

instability, and reviewed his medical history (including Mr. Grant’s active medications, allergies,

3

and family medical history).177 Dr. Wu treated Mr. Grant for cardiomyopathy and stopped two of

4

his medications, but she was unable to review his medications fully because Mr. Grant failed to

5

bring them to his appointment.178
On July 28, 2014, Dr. Wu completed an RFC evaluation for Mr. Grant.179 Dr. Wu recorded

6
7

“date of first contact” as December 26, 2012, presumably because this is the date that Mr. Grant

8

first began medical treatment at Lifelong Medical Center.180 She diagnosed him with morbid

9

obesity, obstructive sleep apnea, hypertension, and cardiomyopathy, with a fair prognosis. 181 She
listed his symptoms as severe fatigue, limited mobility, and limited ability to ambulate. 182 She

11

United States District Court
Northern District of California

10

expected his impairments to last over 12 months, and she noted that Mr. Grant was not a

12

malingerer.183 During a typical eight-hour workday, with the ordinary breaks, Mr. Grant’s pain

13

symptoms were “constantly” severe enough to interfere with the attention and concentration

14

necessary to sustain simple, repetitive, work tasks.184 Mr. Grant could tolerate moderate stress.185

15

In a competitive work situation, Mr. Grant could not sit (at any one time) for more than 45

16
17
18
175

19
20
21

Tinea is usually a fungal and bacterial infection. See Rickert v. Astrue, No. 1:07CV122, 2008 WL
820170, at *3 n.5, n.6 (N.D. W. Va. Mar. 26, 2008) (citations omitted).
Arthropathy is defined as “an inflammatory joint disease, such as rheumatoid arthritis.” Sandoval v.
Barnhart, 209 F. App’x 820, 824 n.2 (10th Cir. 2006) (quoting Taber’s Cyclopedic Medical Dictionary
169 (19th ed. 2001)).
176

177

22

AR 1221–23.

178

AR 1223.

23

179

AR 1035–38.

180

AR 921, 1035, 1221.

24

181

25

AR 1035.

182

Id.

26

183

AR 1036.

184

Id.

185

Id.

27
28

ORDER – No. 17-cv-03423-LB

18

1

minutes, and his limitations (considered in combination) were likely to produce good and bad

2

days, resulting in absences from work of about two days a month.186

3

Dr. Wu next saw Mr. Grant on August 7, 2014 for a check-up appointment concerning his

4

breathing issues.187 He weighed 367.5 pounds.188 Mr. Grant complained of shortness of breath and

5

edema.189 He was not compliant with his Lasix medication because he had gone “away for a few

6

days” and failed to bring it with him.190 Mr. Grant reported that “he at baseline sle[pt] sitting up”

7

and “denie[d] nocturnal dyspnea or orthopnea.”191 Dr. Wu treated Mr. Grant for cardiomyopathy,

8

adjusted his medications, and ordered testing.192 She “g[ave] [Mr. Grant] strict ED (emergency

9

department) precautions.”193 Dr. Wu may have next seen Mr. Grant on August 12, 2014, when she

10

conducted “chart prep.”194
Mr. Grant next saw Dr. Wu on August 21, 2014.195 He weighed 378 pounds at this visit.196 He

United States District Court
Northern District of California

11
12

was in the hospital and requested a larger hospital bed.197 Mr. Grant presented with

13

cardiomyopathy, and his symptoms were improving since he had become more compliant in

14

taking Lasix as prescribed.198 Dr. Wu “discussed with [Mr. Grant] going to another cardiologist”

15

in order to obtain “better documentation and communication,” and Mr. Grant was amenable to

16
186

AR 1036–37.

187

AR 1218–20.

188

AR 1220.

19

189

AR 1218.

20

190

Id.

17
18

Id. (punctuation altered). “Orthopnea is the sensation of breathlessness in the recumbent position,
relieved by sitting or standing.” Jackson, 2017 WL 4937612, at *4 n.4 (quoting Vaskar Mukerji,
Dyspnea, Orthopnea, and Paroxysmal Nocturnal Dyspnea, Clinical Methods: The History, Physical,
and Laboratory Examinations (3rd ed. 1990), https://www.ncbi.nlm.nih.gov/books/NBK213/).
191

21
22

192

AR 1220.

193

Id.

194

AR 1203. The date of this visit is somewhat ambiguous in that October 10, 2014 is also listed.

25

195

AR 1212–15.

26

196

AR 1214.

197

Id.

198

AR 1212.

23
24

27
28

ORDER – No. 17-cv-03423-LB

19

1

doing so.199 Dr. Wu addressed Mr. Grant’s chronic health problems, namely congestive heart

2

failure, his history of myocardial infarction, obstructive sleep apnea, and hypoventilation

3

associated with obesity.200 She conducted a physical exam, and Mr. Grant’s respiratory and

4

cardiovascular systems were normal.201 His condition was stable.202 Dr. Wu ordered a larger

5

hospital bed and referred him to see a cardiologist.203
Dr. Wu next saw Mr. Grant on November 12, 2014 for a check-up appointment concerning his

6
7

congestive heart failure, and he also presented with a rash on the left side of his face that had

8

persisted for two weeks.204 Her report — like others — details his history, his medical problems,

9

his vital signs (including his weight of 372 pounds), and his high blood pressure (with the notation
that Mr. Grant forgot to take his medication the night before so his blood pressure was high).205

11

United States District Court
Northern District of California

10

Mr. Grant did not have a follow-up appointment scheduled with his new cardiologist, but he

12

indicated that he would make one so that he could discuss the results of a stress test he had

13

taken.206 Dr. Wu diagnosed Mr. Grant with a mild tinea infection on the left side of his face and

14

prescribed an antifungal cream.207 She performed a physical exam, and all of her findings were

15

normal.208 She referred Mr. Grant to a nutritionist and “encouraged” him to schedule an

16

appointment with his cardiologist.209

17
18
19
199

Id.

200

Id.

201

AR 1214.

22

202

Id.

23

203

AR 1215.

204

AR 1199–1202.

205

AR 1199.

25

206

AR 1202.

26

207

Id.

208

AR 1201.

209

Id.

20
21

24

27
28

ORDER – No. 17-cv-03423-LB

20

Dr. Wu next saw Mr. Grant on December 17, 2014 for a follow-up appointment concerning his

1
2

recent hospital admission for cellulitis and acute kidney injury on chronic kidney disease. 210 Mr.

3

Grant stopped taking Lasix during his hospital stay due to his kidney injury, but Dr. Wu indicated

4

that she wanted to restart Lasix once his kidney injury was resolved.211 She deferred prescribing

5

Lasix until she received the laboratory results from Mr. Grant’s recent hospital stay.212 She

6

conducted a physical exam, and all of her findings were normal.213
Mr. Grant next saw Dr. Wu on January 8, 2015 for a routine visit.214 Mr. Grant was previously

7
8

admitted to Alta Bates Summit Medical Center, where he had been diagnosed with diverticulitis

9

and prescribed medication.215 Mr. Grant reported “great improvement” with respect to his heartfailure symptoms because he had lost some weight.216 At the time of this visit, Mr. Grant weighed

11

United States District Court
Northern District of California

10

351 pounds.217 Mr. Grant “was off diuretics completely, and [he] report[ed] no active cellulitis.”218

12

Mr. Grant reported, however, that he continued to suffer from lymphedema.219 He reported that he

13

was considering undergoing a cardiology procedure and was due to see a cardiologist the

14

following month.220 Dr. Wu conducted a physical exam of Mr. Grant, and all of her findings we

15

normal except for some “lichenified patches” on his left shin.221 She adjusted his medications and

16

ordered a new mask for his CPAP machine.222

17
18

210

AR 1192–94.

19

211

AR 1194.

20

212

Id.

213

Id.

214

AR 1188–91.

22

215

AR 1188.

23

216

Id.

217

AR 1190.

218

AR 1188.

25

219

Id.

26

220

Id.

221

AR 1190.

222

AR 1190.

21

24

27
28

ORDER – No. 17-cv-03423-LB

21

1

Dr. Wu next saw Mr. Grant on March 30, 2015 for a follow-up appointment concerning his

2

chronic heart failure, hypertension, chronic cough, and mental health issues.223 He weighed 379.5

3

pounds at this visit. 224 Mr. Grant had recently been admitted to the intensive-care unit for chronic

4

heart-failure exacerbation, and Dr. Wu scheduled an appointment for Mr. Grant at a congestive

5

heart-failure group.225 She deferred adjusting Mr. Grant’s medication for congestive heart failure

6

until she could obtain additional laboratory test results.226 She also waited to see Mr. Grant’s

7

discharge summary before putting him back on certain medications for hypertension.227 Dr. Wu

8

“suspect[ed]” that Mr. Grant’s chronic cough was due to a “multitude” of factors, including his

9

chronic heart failure and “possibly undiagnosed COPD” (chronic obstructive-pulmonary
disease).228 She prescribed medication and ordered an inhaler for Mr. Grant.229 She also referred

11

United States District Court
Northern District of California

10

Mr. Grant to therapy for his depression.230 Lastly, Dr. Wu conducted a physical exam, and all of

12

her findings were normal.231
Mr. Grant next saw Dr. Wu on April 13, 2015 for a follow-up visit concerning his congestive

13
14

heart failure.232 Mr. Grant’s weight was “up from baseline,” as he weighed 384 pounds.233 Mr.

15

Grant’s congestive heart failure was “poorly controlled,” and he had “pitting edema up to [his]

16

mid thigh.”234 Mr. Grant indicated that he was going to a lymphedema clinic and that he would

17

like a referral for general physical-therapy outpatient services at the same location.235 Dr. Wu

18
223

19

AR 1184–87.

224

AR 1186.

20

225

Id.

226

Id.

21

227

22

Id.

228

Id.

23

229

Id.

230

AR 1187.

24

231

25

AR 1186.

232

AR 1176–79.

26

233

AR 1176.

234

Id.

235

Id.

27
28

ORDER – No. 17-cv-03423-LB

22

1

noted that “home health” care services “was ordered” for Mr. Grant, but Mr. Grant reported that

2

“no one ha[d] shown up yet.”236 Dr. Wu conducted a physical exam, and all of her findings were

3

normal except for Mr. Grant’s chronic pitting edema.237 Dr. Wu adjusted Mr. Grant’s medications,

4

made an appointment for Mr. Grant at the congestive heart failure group, and indicated she would

5

check on the status of his home health referral.238

6

Dr. Wu next saw Mr. Grant on June 23, 2015 for a follow-up appointment concerning his

7

lymphedema and congestive heart failure.239 Dr. Wu referred him for home health care for his

8

lymphedema, and she also referred him to see a nutritionist.240 Mr. Grant’s condition was

9

“worsening since [he] left the lymphedema clinic,” and he did not have a “home RN (registered
nurse) to help him with [his] leg wrappings.”241 Because of Mr. Grant’s body shape, he was unable

11

United States District Court
Northern District of California

10

to wrap his legs by himself.242 Mr. Grant had not been “watching [his] diet,” and his congestive

12

heart failure was difficult to control.243 Dr. Wu spoke with him “extensively” about his diet and

13

exercise regimen and made an appointment for him at the congestive-heart-failure group.244

14

Mr. Grant’s last visit in the record with Dr. Wu was an August 3, 2015 for a follow-up

15

concerning his congestive-heart failure, hypertension, and sleep apnea.245 Mr. Grant recently

16

experienced shortness of breath, and he also had gained weight since his last visit.246 He weighed

17

403 pounds.247 Dr. Wu conducted a physical exam, and all of her findings were normal.248 She

18
236

19

Id.

237

AR 1178.

20

238

Id.

239

AR 1583–85.

21

240

22

AR 1584.

241

Id.

23

242

Id.

243

Id.

24

244

25

Id.

245

AR 1579–82, 1593–96 (same visit repeated in the record).

26

246

AR 1579, 1593.

247

AR 1581, 1595.

248

AR 1581, 1595.

27
28

ORDER – No. 17-cv-03423-LB

23

1

noted that Mr. Grant was supposed to have a follow-up appointment with a cardiologist but failed

2

to make one.249 Mr. Grant’s blood pressure “contin[ued] to be elevated,” and Dr. Wu made an

3

appointment for Mr. Grant at a blood-pressure clinic.250 Because Mr. Grant indicated that his

4

settings for his CPAP mask were not as effective as they had been, Dr. Wu scheduled a sleep-

5

study retest for him.251 Dr. Wu conducted a physical exam, and all of her findings were normal.252

6

She also adjusted his medications.253
2.1.12 Vincent Baldwin M.D. — Treating

7

Dr. Baldwin treated Mr. Grant from January 6, 2012 to April 3, 2015 for pain management

9

resulting from a right ankle fracture in 2010.254 He diagnosed him with “Status post Fracture of the

10

Right Ankle,” chronic pain syndrome, keloid255/ right ankle surgical scar, anxiety/depression, and

11

United States District Court
Northern District of California

8

bilateral lower extremity edema.256 Dr. Baldwin also diagnosed Mr. Grant with instability in his

12

right ankle257 and lower back pain258 at subsequent visits. His treatment included acupuncture with

13

electrostimulation, lower extremity massages, medication management, behavioral modification

14

techniques, vocalization of Mr. Grant’s psychological/emotional issues, a home exercise program,

15

and psychological/emotional support.259 Dr. Baldwin recommended that Mr. Grant receive

16

acupuncture and massage therapy two to three times weekly for the following twelve to sixteen

17
18
249

AR 1579, 1593.

250

Id.

251

Id.

21

252

AR 1581, 1594.

22

253

Id.

254

AR 1066–1154.

19
20

23
24

“A keloid is ‘a raised area caused by an overgrowth of scar tissue.’” Buford, 2015 WL 8042210, at
*4 n.8 (E.D.N.Y. Dec. 3, 2015) (quoting Mayo Clinic, Keloid, http://www.mayoclinic.org/keloid/
img20007748).

25

256

AR 1152.

26

257

See, e.g., AR 1138, 1141, 1128.

258

See, e.g., AR 1067, 1070 (same visit repeated in the record).

259

AR 1152–53.

27

255

28
ORDER – No. 17-cv-03423-LB

24

weeks.260 He prescribed pain medication and discussed changing Mr. Grant’s sleeping habits,

2

decreasing the amount of time Mr. Grant spent standing, and taking up aquatic aerobics. For

3

subsequent visits, Dr. Baldwin would see Mr. Grant “as needed for medication management,

4

treatment for flare-ups and exacerbations, and provide the necessary psychological and emotional

5

support.”261 Mr. Grant was “temporarily totally disabled” and “unable to do modified or his

6

regular occupation.”262 In March 2012, Mr. Grant’s conditions had improved, he had been

7

undergoing gait training to avoid falling, and while he was still “totally disabled and unable to do

8

modified work,” Dr. Baldwin “suspect[ed] that he should be able to return to work within . . . 3–4

9

months.”263 Subsequent recent treatment records indicate, however, that his conditions worsened

10

when he discontinued acupuncture, electrostimulation, and massage therapy because his insurance

11

United States District Court
Northern District of California

1

carrier “denied the utilization of acupuncture and electrical stimulation and hands-on massage

12

therapy as primary treatment modalities.”264

13

At his most recent visit in April 2015, Mr. Grant continued to suffer from right ankle pain,

14

right knee pain, and lower back pain as well as other chronic health conditions, including edema,

15

congestive heart failure, pickwickian syndrome265 and severe narcolepsy.266 He recently had been

16

hospitalized numerous times for “hypertension and congestive heart failure as well as [an]

17

inability to ambulate due to the pain and discomfort in his lower extremities.”267 Dr. Baldwin

18

diagnosed Mr. Grant with a “right ankle fracture status post ORIF (open reduction internal

19

fixation),” right knee strain/osteoarthritis, chronic lower back pain/strain, congestive heart failure,

20
260

AR 1153.

261

AR 1153–54.

22

262

AR 1154.

23

263

AR 1119.

264

AR 1079–80.

21

24
25
26

Pickwickian syndrome is characterized “as a condition in which ‘impairment of breathing leads to
hypercapnia, a reduced effect of CO2 in simulating respiration, hypoxia, cor pulmonale, and a risk of
premature death.” Dyson v. Massanari, 149 F. Supp. 2d 1018, 1021 n.3 (N.D. Ill. July 9, 2001)
(quoting Merck Manual 60 (17th ed. 1999)).
265

266

27

AR 1067, 1170.

267

Id.

28
ORDER – No. 17-cv-03423-LB

25

1

morbid obesity, severe lower extremity and abdominal edema, anxiety/depression, and

2

narcolepsy.268 Dr. Baldwin continued to prescribe pain medication.269 Mr. Grant’s depression and

3

anxiety were “so severe” that Dr. Baldwin also prescribed medication “for severe anxiety

4

spells.”270 Mr. Grant’s “overall prognosis [was] quite poor,” and Dr. Baldwin determined that he

5

was “permanently disabled and will be so for the rest of his life.”271
2.1.13 Berkeley Cardiovascular Medical Group — Treating

6

Dr. Wu referred Mr. Grant here for treatment for his cardiac condition.272 The treatment

7
8

records cover the period from September 11, 2014 to April 15, 2015 and reflect the following

9

information.
On September 11, 2014, Duane Stephens, M.D., a cardiologist, evaluated Mr. Grant, noting his

10

United States District Court
Northern District of California

11

past medical history, his medications, his physical condition (including weight of 370 pounds,

12

normal gait, and absent lower-extremity edema), and diagnosed him with cardiomyopathy and

13

obesity, among other conditions, and said that further cardiac evaluation was needed.273 He

14

underwent tests in September and October 2014.274 Mr. Grant came in for an office visit in

15

January 2015 after he had recently been hospitalized for a leg infection and diverticulitis.275 He

16

weighed 354 pounds.276 Dr. Stephens’s impression was that Mr. Grant suffered from

17

cardiomyopathy, old MI (anterior wall myocardial infarction), and obesity.277 Dr. Stephens

18

planned to keep Mr. Grant on the “chronic medical therapy” he was receiving for his

19

cardiomyopathy and myocardial infarction, and while Mr. Grant’s obesity had improved since his

20
268

AR 1069, 1072.

269

Id.

22

270

AR 1068, 1071.

23

271

AR 1069, 1072.

272

AR 1212, 1542.

273

AR 1542–43.

25

274

AR 1524–25, 1530–31.

26

275

AR 1547–48.

276

AR 1547.

277

AR 1548.

21

24

27
28

ORDER – No. 17-cv-03423-LB

26

1

last visit, Dr. Stephens “instructed” Mr. Grant on a low-fat diet.278 Mr. Grant saw Dr. Stephens

2

again for a follow-up in April 2015.279 Dr. Stephens diagnosed Mr. Grant with the same medical

3

conditions and determined that further cardiac evaluation was needed for Mr. Grant’s myocardial

4

infarction.280 He did not make any changes to Mr. Grant’s medical therapy.281
2.1.14 Eden Medical Center — Treating

5

Dr. Wu referred Mr. Grant for therapy at the lymphedema clinic at Eden Medical Center.282

6

Mr. Grant went to Eden Medical center from January 14, 2015 to June 5, 2015 for physical

8

therapy and lymphedema treatment.283 In January 2015, Mr. Grant saw Allyn Martinez, OT, for a

9

lymphedema evaluation.284 Ms. Martinez reviewed Mr. Grant’s medical history.285 Her clinical

10

impression was that Mr. Grant suffered from bilateral stage 3 edema in his right lower leg and

11

United States District Court
Northern District of California

7

entire left leg and that Mr. Grant had numerous other impairments including his skin integrity, a

12

risk of infection, and a lack of a lymphedema management program.286 She planned a therapeutic

13

program lasting four to six weeks, with Mr. Grant’s receiving manual lymph drainage,

14

bandaging/compression garments, a home exercise program, and the use of a compression

15

pump.287 Over the course of Mr. Grant’s treatment, occupational therapists repeatedly cleaned and

16

wrapped Mr. Grant’s lower extremities in compression bandages288 and discussed the benefits of

17

obtaining compression garments.289 They also taught Mr. Grant and his brother how to bandage

18
19

278

Id.

20

279

AR 1544–46.

280

AR 1546.

21

281

22

Id.

282

AR 1308–09, 1392–94.

23

283

AR 1286–1485.

284

AR 1297–1302.

24

285

25

AR 1311–14.

286

AR 1300.

26

287

AR 1301.

288

See, e.g., AR 1320, 1331, 1340, 1362, 1471.

289

See, e.g., AR 1340.

27
28

ORDER – No. 17-cv-03423-LB

27

1

his lower extremities.290 In April 2015, Marina Villarey, OT, saw Mr. Grant and found that he was

2

“progressing slower than anticipated toward [his] goals”291 of having effective compression

3

garments, being able to effectively manage his lymphedema at home, being able to stand for

4

longer than 15 minutes, and being able to walk approximately one block “with less pain.”292 His

5

progress continued to be slower than anticipated the following month due to multiple missed

6

appointments, lack of compliance at home, and an inability to purchase compression garments. 293
In a May 2015 physical therapy evaluation with Raphael Joson, PT, Mr. Grant’s goal was to

7
8

get back into shape, particularly in terms of increasing his ability to walk, stand, and engage in

9

recreational activities.294 Mr. Joson characterized Mr. Grant’s rehabilitation potential as “fair”
because he expected Mr. Grant’s progress “to be hindered by the severity and irritability of [his]

11

United States District Court
Northern District of California

10

condition” as well as “the presence of comorbitities” such as chronic heart failure.295 Mr. Joson’s

12

plan for Mr. Grant included “Manual Therapy, Therapeutic Exercise, Therapeutic Activity, Neuro

13

Re-Education, Patient Education, Gait Training, Caregiver/Family Training/Education, ADL

14

Training,” and “Aquatic Therapy and Balance Training.”296 As planned, he started Mr. Grant in

15

pool therapy during his next visit three days later.297
Medical Expert Testimony: James Todd, M.D. — Non-Examining

16

2.2

17

Dr. Todd, a specialist in cardiology and internal medicine, testified by telephone at the July 20,

18

2015 hearing.298 In response to questions by the ALJ, and based on his review of Exhibits 1F–18F

19

the medical records,299 Dr. Todd testified as follows.

20
290

See, e.g., AR 1351, 1362.

291

AR 1372.

292

AR 1300.

23

293

AR 1416, 1450, 1470.

24

294

AR 1383–84.

295

AR 1383.

296

AR 1384.

26

297

AR 1402–03, see also AR 1425–27, 1458–60, 1479–81 (subsequent pool therapy visits).

27

298

21
22

25

AR 50, 60–78; see also AR 1039–41 (Dr. Todd is board certified in cardiology and internal
medicine).

28
ORDER – No. 17-cv-03423-LB

28

1

Mr. Grant had several impairments.300

2

First, he had pain in various parts of his body (“particularly in a non-healing fracture of the

3

right ankle”), but there was “no documentation of physical therapy”301 or evidence that Mr. Grant

4

used an assistive walking device.302 “My estimation is that the pain is definitely present, but not so

5

severe as to interfere with routine repetitive tasks.”303
Second, he had “restrictive lung disease by pulmonary function test.”304 He was hospitalized in

6
7

2010 and on June 26, 2013; “After he recovered in June of 2013[,] it would appear that he’s

8

relatively well as far as his lungs and his heart.”305
Third, he was morbidly obese.306 Dr. Todd lost track of his weight but said it was “well in the

9
10

high 200s,” which “restricts his lungs from taking a full breath.”307
Fourth, he had a history of polysubstance abuse, including possible active use of cocaine and

United States District Court
Northern District of California

11
12

active use of alcohol.308

13

Fifth, he had a depression problem but had not sought care.309

14

Sixth, he “has a global left ventricular ejection fraction, with some evidence of reversible

15

ischemia on the lateral wall and the anterior septal region, with an ejection fraction of 41

16

percent.”310

17
18
19

299

AR 60.

20

300

AR 61.

301

Id.

302

Id.

22

303

Id.

23

304

Id.

305

Id.

306

Id.

25

307

Id.

26

308

AR 62.

309

Id.

310

Id.

21

24

27
28

ORDER – No. 17-cv-03423-LB

29

1

Dr. Todd disagreed with Dr. Wu’s RFC, thinking Mr. Grant was “overrated in terms of his

2

ability to stand and walk.”311 Dr. Todd testified that there should be a six-minute walk test and was

3

unable to locate any physical therapy notes.312 He also indicated that there was no record as to

4

whether Mr. Grant had ever seen a cardiologist.313
Dr. Todd also testified about Mr. Grant’s history of polysubstance abuse, pointing out places

5
6

in the record that indicated Mr. Grant drank one or two pints of vodka on a daily basis and worked

7

in a liquor store.314 Dr. Todd testified that “ongoing alcohol use” weakens the heart.315 He added

8

that Mr. Grant was not compliant with his medications.316 He mentioned that Mr. Grant had seen

9

Claudia Madison, LCSW, at Lifelong Medical Center, whom he referred to as a “psychologist,
possibly,” and that Mr. Grant had discussed his cocaine use with her.317 Dr. Todd further

11

United States District Court
Northern District of California

10

mentioned that Mr. Grant had been “too sleepy during [his session with Ms. Madison] to be able

12

to sign an informed consent.”318 Dr. Todd attributed Mr. Grant’s sleepiness to his substance abuse,

13

rejected Mr. Grant’s explanation that sleep apnea was causing him to be sleepy, and discounted

14

the possibility that Mr. Grant suffered from narcolepsy on the grounds that it was “not mentioned

15

anywhere in the record.”319

16

Dr. Todd then made several recommendations.320

17

First, he recommended that Mr. Grant undergo a six-minute walk test “to see what his

18

problems are in terms of walking and whether he requires a walker or whether he requires a

19

cane.”321

20
311

AR 63.

312

Id.

22

313

AR 63–64.

23

314

AR 64.

315

AR 65.

316

AR 65.

25

317

Id. at 67.

26

318

Id.

319

AR 67.

320

AR 70.

21

24

27
28

ORDER – No. 17-cv-03423-LB

30

1

Second, he suggested that the ALJ “get a list of [Mr. Grant’s] current medications and then

2

verify it with the local pharmacy that he uses” to determine whether Mr. Grant has been compliant

3

with his medications.322
Third, Dr. Todd recommended that the ALJ “get notes from [Mr. Grant’s] physical

4
5

therapy.”323

6

Turning to the RFC, Dr. Todd concluded that, if he were to “take away the ankle problem,”

7

Mr. Grant would have “no trouble” performing “light work, which would be six hours of standing

8

and walking.”324 Even factoring in Mr. Grant’s ankle injury, Mr. Todd found “no reason” why Mr.

9

Grant would be unable to perform sedentary work.325 In response to questioning from Mr. Grant’s
lawyer, Dr. Todd responded that any limitations that Mr. Grant experienced as a result of his

11

United States District Court
Northern District of California

10

edema were entirely of his own making:

12

The bottom line is [Mr. Grant is] causing edema by his bad habits. He needs to take
his medications as directed, and he needs to stop alcohol. So if you’re going to say,
well he needs to drink a pint or two of vodka every day, which it says he does, and,
you know, he’s not going to take his cardiac meds, then he is, in fact, disabled by
edema.

13
14

But it’s caused by him, not by — if he followed medical treatment, this would not
be present. Yes, he has edema, and, yes, that’s limiting, but the treatment, he’s not
following the treatment.326

15
16
17

2.3

18

In response to questions by the ALJ, Mr. Grant testified as follows.327

19

He last worked in 2010 in security and in-home care.328 He stopped working because he broke

20

Mr. Grant’s Testimony

his ankle and got six screws and a plate.329 He looked for security and in-home care work so that

21
321

22

Id.

322

Id.

23

323

Id.

324

AR 76.

24

325

25

AR 77.

326

AR 78.

26

327

AR 52–91.

328

AR 52.

329

AR 52–53.

27
28

ORDER – No. 17-cv-03423-LB

31

he could pay his bills.330 He fell asleep a lot due to sleep apnea.331 He also could not do actually do

2

the work because his legs hurt due to lymphedema and his injured ankle.332 He looked for work

3

where he could sit down most of the day.333 He worked “under the table”334 in 2013 at a liquor

4

store, where he would sit behind the counter for a few hours in the morning and make sure no one

5

was stealing.335 He did not think of it as a “real job” because the store owner was “doing [him] a

6

favor,” paying Mr. Grant’s bills for him in exchange for his supervision.336 He had been going to

7

Lifelong Medical Care for counseling as well as Alcoholics Anonymous meetings. 337 He used a

8

cane for walking around the house, and a walker for long distances.338 When he walked, he needed

9

to take breaks every four or five minutes, and he could walk a half block but had to “stop a couple

10

times” because it was hard for him to breathe and because he sometimes felt pain.339 For about two

11

United States District Court
Northern District of California

1

years, an in-home care worker has helped him do “the chores, the shopping, cooking, helping put

12

clothes on . . . . and bathing.”340 He took his medicine regularly, but he had trouble remembering

13

to take them, and his in-home care worker helped by reminding him.341 He went to physical

14

therapy at Eden Medical Center for his ankle, and including physical therapy “in the pool.”342 He

15
16
330

AR 73.

331

AR 53.

332

AR 73.

19

333

AR 53.

20

334

AR 89.

335

AR 89–90.

336

Id.

22

337

AR 68–69.

23

338

AR 79.

339

AR 84–85.

340

AR 80–81.

17
18

21

24
25
26
27

AR 87 (“I was taking my medicines regularly, but sometime I don’t remember if I took my
medicine, I didn’t take it, so sometime that just throw me off. My in-home care worker, she make sure
I take my medicine on time every day, because sometimes, I think I took my medicine, then I really
haven’t.”).
341

342

AR 73–74.

28
ORDER – No. 17-cv-03423-LB

32

1

slept with a CPAP machine but still feels tired during the day, frequently dozing off. 343 It was

2

difficult for him to lie flat because “then [he] can’t breathe.”344 Due to edema, he contended with

3

leg swelling, kept his legs wrapped up, and sometimes had to elevate them to mitigate the

4

symptoms.345 If he elevated his “feet too long [he] g[ot] like panic attacks,” feeling anxious

5

because elevating his feet made it harder for him to breathe.346 He could elevate his legs only for

6

“[a]bout 10 minutes because I don’t — that’s as long as I can take it.”347 Abstaining from alcohol

7

had not resulted in any noticeable improvement in his symptoms.348

8

2.4

9

In response to questions posed by the ALJ at the July 20, 2015 hearing, VE Farrell testified

Vocational Expert Testimony: Timothy Farrell

that since 2000, Mr. Grant worked as a security guard (semi-skilled with an SVP of 3, light

11

United States District Court
Northern District of California

10

exertion), care-giver (semi-skilled SVP of 3, medium exertion), construction worker (semi-skilled

12

SVP 4; heavy exertion), and parking lot cashier (unskilled with an SVP of 2, light work).349 The

13

ALJ did not pose any hypotheticals to VE Farrell concerning an individual of Mr. Grant’s age,

14

education, and prior work experience.

15

2.5

16

The ALJ followed the five-step sequential evaluation process to determine whether Mr. Grant

17

was disabled and concluded he was not.350
At step one, the ALJ found that that Mr. Grant had not engaged in substantial gainful activity

18
19

Administrative Findings

since his alleged onset date of July 30, 2010.351

20
21

343

AR 82.

22

344

AR 83.

23

345

Id.

346

AR 84.

347

Id.

25

348

AR 86.

26

349

AR 55, 58.

350

AR 32–42.

351

AR 34.

24

27
28

ORDER – No. 17-cv-03423-LB

33

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

1
2

right ankle fracture; cellulitis and lymphedema of the right leg; morbid obesity; history of acute

3

heart failure; sleep apnea; hypertension; and substance abuse disorder, active (ETOH and

4

cocaine).”352 The ALJ also determined that Mr. Grant’s mental impairments were not severe.353
At step three, the ALJ found that Mr. Grant did not have an impairment or combination of

5
6

impairments that met or medically equaled the severity of a listed impairment.354 The ALJ

7

considered “sections 1.02, 3.10, 4.02, and 12.09, which describe major dysfunction of a joint,

8

sleep related breathing disorders, chronic heart failure and substance addiction disorders

9

respectively . . . .”355 Also, “pursuant to Social Security Ruling 02-1p, [the ALJ] considered [Mr.
Grant’s] obesity and combined effects of his impairments.”356 The ALJ found that Mr. Grant

11

United States District Court
Northern District of California

10

“does not have a combination of impairments that meet or medically equal any listed impairment

12

in Appendix 1 to Subpart P of Regulations No. 4.”357 He agreed with and adopted Dr. Todd’s

13

conclusion that Mr. Grant’s “impairments, singly or in combination, does [sic] not meet or equal a

14

listing.” 358
At step four, the ALJ found that Mr. Grant had the RFC “to perform sedentary work as defined

15
16

on a function-by-function basis in 20 C.F.R. 404.1567(a) and 416.967(a), except he cannot climb

17

ladders, ropes or scaffolds and must avoid noxious fumes and extreme cold, heat, and

18

humidity.”359 In reaching this RFC determination, the ALJ relied “for the most part on the

19

assessment of Dr. Todd, according his opinion great weight because it was consistent with the

20
21
22

352

AR 34.

23

353

AR 35–36.

354

AR 36.

355

Id.

25

356

Id.

26

357

Id.

358

Id.

359

AR 37.

24

27
28

ORDER – No. 17-cv-03423-LB

34

1

preponderance of the longitudinal medical evidence of record as a whole” and because “Dr. Todd

2

is the only physician in this case to have reviewed the entire medical evidence of record.”360

3

The ALJ gave “less weight” to the medical opinions of Dr. Saphir, Dr. Mansour, and Dr.

4

Giorgi “to the extent they [we]re inconsistent with the assessment of Dr. Todd.”361 He assigned no

5

weight to the opinion of Dr. Chen, who was “removed from the DDS panel for his ‘unprofessional

6

manner and failure to adequately correct deficiencies in his CE reports.’”362 He accorded “little

7

weight” to Dr. Wu’s assessment:

8

I accord the assessment of Dr. Wu little weight because it is inconsistent with the
preponderance of the longitudinal medical evidence of record as a whole. There is
little basis for Dr. Wu to conclude [Mr. Grant] is unable to sit for at least 6 hours in
an 8-hour workday, and that [Mr. Grant] is likely to be absent from work about 2
days per month. Her statement is conclusory and she did not cite specific findings
or studies. Most tellingly, she failed to mention the likely pervasive adverse effects
of [Mr. Grant’s] substance abuse on his physical functioning. The foregoing leads
me to conclude her statement amounts to mere advocacy rather than objective
analysis.363

9
10

United States District Court
Northern District of California

11
12

The ALJ then discredited Mr. Grant’s testimony, finding his “allegation of complete

13
14

debilitation [was] not generally credible.”364 The ALJ reasoned, relying on Dr. Todd’s testimony,

15

that Mr. Grant’s “physical functioning would be greatly enhanced if he were to cease his substance

16

abuse,” and that the record contains “extensive evidence of non-compliance with medications and

17

diet.”365 He questioned Mr. Grant’s credibility due to his being “a poor historian” and noted that

18

“his claims of abstinence from cocaine and reduced drinking conflict with most of the record.”366

19

The ALJ then found that Mr. Grant was unable to perform any past relevant work experience

20

and proceeded to step five.367

21
22

360

AR 40.

23

361

Id.

362

AR 40 n.1 (quoting a “Corrective Action” letter).

363

AR 40.

25

364

Id.

26

365

Id.

366

Id.

367

Id.

24

27
28

ORDER – No. 17-cv-03423-LB

35

At step five, the ALJ found that “there are jobs that exist in significant numbers in the national

1
2

economy that the [Mr. Grant] can perform” and concluded that he was not disabled.368

3
4

STANDARD OF REVIEW
Under 42 U.S.C. § 405(g), district courts have jurisdiction to review any final decision of the

5
6

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

7

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

8

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

9

586, 591 (9th Cir. 2009) (internal citation and quotation marks omitted); 42 U.S.C. § 405(g).
“Substantial evidence means more than a mere scintilla but less than a preponderance; it is such

11

United States District Court
Northern District of California

10

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

12

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

13

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

14

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

15

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

16

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

17

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

18

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

19
20

GOVERNING LAW

21

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

22

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

23

be expected to last for a continuous period of not less than twelve months,” and (2) the

24

“impairment or impairments are of such severity that he or she is not only unable to do his

25

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

26
27

368

AR 41–42.

28
ORDER – No. 17-cv-03423-LB

36

1

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

2

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

3

within the meaning of the Social Security Act is as follows. Tackett, 180 F.3d at 1098 (citing 20

4

C.F.R. § 404.1520).

5
6
7
8
9
10

United States District Court
Northern District of California

11
12
13
14
15
16

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).

20

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.

21

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

17
18
19

22

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

23

(9th Cir. 1986).

24
25
26

ANALYSIS
Mr. Grant contends the ALJ erred by (1) improperly weighing medical opinion evidence by

27

discounting and disregarding the medical opinions of treating and examining physicians without

28

providing specific and legitimate reasons supported by substantial evidence, (2) failing to include
ORDER – No. 17-cv-03423-LB

37

1

depression, restrictive lung disease, bilateral edema, and congestive heart failure as severe

2

impairments at step two, (3) failing to adequately consider Listings 12.04 and 4.11 at step three,

3

(4) determining an RFC that was not supported by substantial evidence at step four, (5) failing to

4

provide clear and convincing reasons for discrediting Mr. Grant’s testimony, and (6) relying on an

5

erroneous RFC at step five.369

6
7

1. Whether the ALJ Properly Weighed Medical-Opinion Evidence
Mr. Grant argues that the ALJ erred because he improperly weighed the medical-opinion

9

evidence.370 The court agrees with Mr. Grant. The court first discusses the law governing the

10

ALJ’s weighing of medical-opinion evidence and then analyzes the medical-opinion evidence

11

United States District Court
Northern District of California

8

under the appropriate standard.
The ALJ is responsible for “‘resolving conflicts in medical testimony, and for resolving

12
13

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

14

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

15

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

16

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

17

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

18

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

19
20

guide [the] analysis of an ALJ’s weighing of medical evidence.”371 Ryan v. Comm’r of Soc. Sec.,

21

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

22

distinguish between three types of physicians: (1) treating physicians; (2) examining physicians;

23

and (3) non-examining physicians. 20 C.F.R. § 416.927(c), (e); Lester v. Chater, 81 F.3d 821, 830

24

26
27

369

Mot. – ECF No. 18 at 2–22.

370

25

Id. at 6–14.

371

The Social Security Administration promulgated new regulations, including a new § 404.1521,
effective March 27, 2017. The previous version, effective to March 26, 2017, governs based on the
date of the ALJ’s hearing, July 20, 2015.

28
ORDER – No. 17-cv-03423-LB

38

1

(9th Cir. 1995). “Generally, a treating physician’s opinion carries more weight than an examining

2

physician’s, and an examining physician’s opinion carries more weight than a reviewing [non-

3

examining] physician’s.” Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001) (citing

4

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

5

An ALJ may disregard the opinion of a treating physician, whether or not controverted.
Andrews, 53 F.3d at 1041. “To reject [the] uncontradicted opinion of a treating or examining

7

doctor, an ALJ must state clear and convincing reasons that are supported by substantial

8

evidence.” Ryan, 528 F.3d at 1198 (internal quotation marks and citation omitted). By contrast, if

9

the ALJ finds that the opinion of a treating physician is contradicted, a reviewing court will

10

require only that the ALJ provide “specific and legitimate reasons supported by substantial

11

United States District Court
Northern District of California

6

evidence in the record.” Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (internal quotation

12

marks and citation omitted); see also Garrison, 759 F.3d at 1012 (“If a treating or examining

13

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

14

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

15

quotation marks and citation omitted). The opinions of non-treating or non-examining physicians

16

may serve as substantial evidence when the opinions are consistent with independent clinical

17

findings or other evidence in the record. Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002).

18

An ALJ errs, however, when she “rejects a medical opinion or assigns it little weight” without

19

explanation or without explaining why “another medical opinion is more persuasive, or criticiz[es]

20

it with boilerplate language that fails to offer a substantive basis for [her] conclusion.” Garrison,

21

759 F.3d at 1012–13.

22

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

23

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

24

Security] Administration considers specified factors in determining the weight it will be given.”

25

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

26

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

27

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

28

404.1527(d)(2)(i)–(ii)) (alteration in original). “Additional factors relevant to evaluating any
ORDER – No. 17-cv-03423-LB

39

1

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

2

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

3

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

4

providing the opinion . . . .” Id. (citing 20 C.F.R. § 404.1527(d)(3)–(6)).
In addition to the medical opinions of the “acceptable medical sources” outlined above, the

6

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

7

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

8

include nurse practitioners, physicians’ assistants, therapists, teachers, social workers, spouses and

9

other non-medical sources. 20 C.F.R. § 404.1513(a). The ALJ is required to consider observations

10

by “other sources” as to how an impairment affects a claimant’s ability to work, id.; nonetheless,

11

United States District Court
Northern District of California

5

an “ALJ may discount the testimony” or an opinion “from these other sources if the ALJ gives . . .

12

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

13

omitted).
Dr. Snyder — Examining

14

1.1

15

The ALJ rejected Dr. Snyder’s assessment:

16

I reject the assessment of Dr. Snyder, according her opinion little weight. Although
Dr. Snyder mentioned alcohol, she failed to address its effects and did not even
include substance use or abuse in her diagnoses. She also noted [Mr. Grant] was a
poor historian, thereby rendering anything he reported questionable and only
marginally reliable. In addition, [Mr. Grant] denied cocaine use, which conflicts
with the record. As a matter of fact, [Mr. Grant] tested positive for cocaine on May
4, 2013, indicating he was actively using around the time of the evaluation with Dr.
Snyder. Moreover, he was falling asleep during the evaluation, and Dr. Snyder
nonetheless based her conclusions on results that are questionable, as she herself
had noted. The State agency medical examiners properly rejected Dr. Snyder’s
assessment and deemed all mental conditions nonsevere, including [Mr. Grant’s]
polysubstance abuse. Finally, there is no evidence of any mental health treatment,
as [Mr. Grant] reported to Dr. Snyder, despite [Mr. Grant’s] assertion of such at the
hearing. Neither the medical expert nor I could find any, and the representative did
not cite any at the hearing.372

17
18
19
20
21
22
23
24
25
26
27

372

AR 35.

28
ORDER – No. 17-cv-03423-LB

40

1

The ALJ’s first reason for rejecting Dr. Snyder’s opinion — that she did not address the effects

2

of substance abuse — is not a specific and legitimate reason to discount her opinion. Generally, an

3

ALJ conducts the five-step analysis before considering a claimant’s drug and alcohol use:

4
5
6
7
8
9

[A]n ALJ must first conduct the five-step inquiry without separating out the impact
of alcoholism or drug addiction. If the ALJ finds that the claimant is not disabled
under the five-step inquiry, then the claimant is not entitled to benefits and there is
no need to proceed with the analysis under 20 C.F.R. §§ 404.1535 or 416.935. If
the ALJ finds that the claimant is disabled and there is “medical evidence of [his or
her] drug addiction or alcoholism,” then the ALJ should proceed under §§
404.1535 or 416.935 to determine if the claimant “would still [be found] to be
disabled if [he or she] stopped using alcohol or drugs.”
Bustamante v. Massanari, 262 F.3d 949, 955 (9th Cir. 2001) (quoting 20 C.F.R. §§ 404.1535,
416.935) (holding that an ALJ must complete the five-step framework before looking to see

11

United States District Court
Northern District of California

10

whether a claimant would still be disabled if he or she were to cease from using drugs or alcohol).

12

Also, Nieves v. Astrue is instructive: there the district court held that “the fact that [a treating

13

physician] did not specifically discuss whether or how the plaintiff’s mental condition would be

14

affected in the absence of drug and alcohol use is not proper grounds for discrediting his findings.”

15

No. 06-cv-02478-REB, 2008 WL 4277995, at *4 (D. Colo. Sept.16, 2008). Also, as discussed

16

above, Dr. Snyder considered Mr. Grant’s combined impairments, including his alcoholism.

17

The ALJ’s second reason for discounting Dr. Snyder’s assessment — that she considered Mr.

18

Grant a “poor historian” — also does not meet the “specific and legitimate” standard. When a

19

physician’s opinion is heavily based on a claimant’s self-reports, rather than clinical evidence, and

20

the ALJ finds the claimant not credible, then the ALJ may discount the physician’s opinion. See

21

Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014). “However, when an opinion is not more

22

heavily based on a patient’s self-reports than on clinical observations, there is no evidentiary basis

23

for rejecting the opinion.” Id. (citing Ryan, 528 F.3d at 1199–1200). As discussed above, while

24

Dr. Snyder based her conclusions in part on Mr. Grant’s self-reporting, she also based it on her

25

review of his medical and personal history, his medical records, and her administration of tests.

26

The ALJ’s third reason for rejecting Dr. Snyder’s assessment — that Mr. Grant fell asleep

27

during cognitive testing — is not (given the circumstances of the overall assessment) a legitimate

28

reason supported by substantial evidence in the record for disregarding Dr. Snyder’s entire
ORDER – No. 17-cv-03423-LB

41

1

diagnosis. Dr. Snyder accounted for the “falling asleep” issue twice in her summary, writing the

2

following about her assessment about cognition: “considering he fell asleep several times during

3

the testing, please interpret with caution.”373 And her psychological evaluation was based on

4

(again) her own observations and included her assessment that Mr. Grant’s issues were primarily

5

medical. She administered other tests, considered other medical and personal history, reviewed

6

medical records, and made other diagnoses beyond the diagnosis about cognition.374
The ALJ’s fourth reason for discounting Dr. Snyder — that there are no records of mental-

7

health treatment — also is not a specific and legitimate reason supported by substantial evidence

9

because it is inaccurate. At the July 20, 2015 hearing, Dr. Todd mentioned Mr. Grant’s visit with

10

Ms. Madison.375 The ALJ then asked Mr. Grant whether he “went back to [Ms. Madison] or saw

11

United States District Court
Northern District of California

8

some other counselor,” and Mr. Grant testified that he received counseling at Lifelong Medical

12

Center.376 Contrary to the ALJ’s assertion that “there is no evidence of any mental health

13

treatment,”377 Mr. Grant’s testimony was accurate, as records submitted after the July 20, 2015

14

hearing show that he sought counseling at Lifelong Medical Center from Ms. Madison and Ms.

15

Wachter and had home visits with other Lifelong social workers.378 Moreover, records submitted

16

before the July 20, 2015 hearing indicate that Mr. Grant received “psychological and emotional

17

support” during his visits with Dr. Baldwin, including prescription medication for his “severe

18

anxiety spells.”379 Dr. Heath also noted that Mr. Grant had an appointment with a physician

19

concerning his anxiety and depression and that Mr. Grant would benefit from medication.380

20
21
22

373

AR 801.

374

23

AR 798–802.

375

AR 66.

24

376

AR 68–69.

377

AR 35.

25

378

26

See, e.g., AR 1550–59 (counseling with Ms. Wachter), 1560–66 (home visits with social workers
from Lifelong Medical Center) 1567–70 (counseling with Ms. Madison).

28

379

AR 1068–69.

380

27

AR 959, 971.

ORDER – No. 17-cv-03423-LB

42

1

Lastly, treating physicians at Alta Bates Summit Medical Center diagnosed Mr. Grant with

2

depression and prescribed medication.381
Given the court’s remand on other grounds, and Dr. Snyder’s overall comprehensive

3
4

assessment, the ALJ can reconsider Dr. Snyder’s assessment on remand.
Dr. Wu — Treating

5

1.2

6

Mr. Grant argues that the ALJ erred when he attributed “little weight” to Dr. Wu’s RFC

7

assessment:

8

12

I accord the assessment of Dr. Serena Wu little weight because it is inconsistent
with the preponderance of the longitudinal medical evidence of record as a whole.
There is little basis for Dr. Wu to conclude [Mr. Grant] is unable to at least sit for 6
hours in an 8-hour workday, and that [Mr. Wu] is likely to be absent from work
about 2 days per month. Her statement is conclusory and she did not cite specific
findings or studies. Most tellingly, she failed to mention the likely pervasive
adverse effects of [Mr. Grant’s] substance abuse on his physical functioning. The
foregoing leads me to conclude her statement amounts to mere advocacy rather
than objective analysis.382

13

Without specific and legitimate reasons supported by substantial evidence, the ALJ’s first

14

reason for rejecting Dr. Wu’s assessment — that it is “inconsistent with the longitudinal medical

15

evidence of [the] record as a whole”— is boilerplate and insufficient. The ALJ failed to point to

16

any particular parts of the record that were inconsistent with Dr. Wu’s assessment. Garrison, 759

17

F.3d at 1012–13. This conclusion is supported by Sorrell v. Colvin, No. 13-cv-04874-SI, 2015 WL

18

1152781, at *5 (N.D. Cal. Mar. 13, 2015). In Sorrell, the ALJ rejected an RFC assessment by a

19

treating physician, which was contradicted by a non-examining ME, on the ground that it was

20

inconsistent with “the objective medical evidence of record.” Id. The court held that this reason

21

was insufficient because the ALJ did not explain how the treating physician’s assessment

22

conflicted with the medical evidence in the record. Id. Here too, the ALJ failed to “set forth his

23

own interpretations and explain why they, rather than the doctors’, are correct.” Reddick, 157 F.3d

24

at 725 (citing Embrey v. Bowen, 849 F.2d 418, 421–22 (9th Cir. 1988)).

9
10

United States District Court
Northern District of California

11

25
26
381

27

AR 1605, 1627.

382

AR 40.

28
ORDER – No. 17-cv-03423-LB

43

Second, the ALJ rejected Dr. Wu’s opinion concerning Mr. Grant’s inability to sit for at least

1
2

six hours in an eight-hour workday and the likelihood that he would be absent from work

3

approximately two days per month on the ground that “her statement is conclusory and she did not

4

cite specific findings or studies.”383 This also is insufficient to reject her opinion. Treating sources

5

cannot be rejected solely because they “are not well supported by medically acceptable clinical

6

and laboratory . . . techniques.” SSR 96-2p.384

7

10

Adjudicators must remember that a finding that a treating source medical opinion is
not well-supported by medically acceptable clinical and laboratory diagnostic
techniques or is inconsistent with the other substantial evidence in the case record
means only that the opinion is not entitled to "controlling weight," not that the
opinion should be rejected. Treating source medical opinions are still entitled to
deference and must be weighed using all of the factors provided in 20 C.F.R.
404.1527 and 416.927.

11

See also Bennett v. Colvin, 202 F. Supp. 3d 1119, 1133 (N.D. Cal. 2016) (holding that a “fail[ure]

12

to reveal the type of significant and laboratory abnormalities one would expect if the claimant

13

were in fact disabled” did not constitute a specific and legitimate reason for rejecting a physician’s

14

opinion because the ALJ failed to “specify which clinical and laboratory abnormalities one should

15

expect” or “any other support for this conclusion”).

8

United States District Court
Northern District of California

9

It is important that Dr. Wu was part of Mr. Grant’s treatment team at Lifelong Medical Center.

16
17

While she saw him only once before she conducted the RFC assessment, she reviewed his

18

extensive prior treatment with Lifelong, including his visits with her colleague (and his prior

19

primary-care physician) Dr. Heath. This is why she recorded that the first patient contact was

20

December 26, 2012.385 The length of the treatment relationship is relevant in that “the longer a

21

treating source has treated [a claimant] and the more times [that claimant] has been seen by a

22

treating source, the more weight [the Social Security Administration] will give to the source’s

23

medical opinion. 20 C.F.R. § 404.1527(c)(2)(i). Even a physician’s “limited” contact with a

24
25
26
27

383

Id.

384

SSR 96-2p has since been rescinded (as of March 27, 2017) but was in effect at the time of Mr.
Grant’s ALJ hearing.
385

AR 1035.

28
ORDER – No. 17-cv-03423-LB

44

1

patient can be sufficient for that physician to be considered a treating source, provided that “the

2

claimant must have seen ‘the source with a frequency consistent with accepted medical practice

3

for the type of treatment and/or evaluation required for [a claimant’s] medical conditions.” Benton

4

v. Barnhart, 331 F.3d 1030, 1036 (9th Cir. 2003) (quoting 20 C.F.R. § 404.1502). Dr. Wu was in

5

the same practice as Dr. Heath, who saw Mr. Grant many times before Dr. Wu became Mr.

6

Grant’s primary-care physician.386 Indeed, Dr. Wu’s initial assessment of Mr. Grant’s medical

7

condition recognized that Dr. Heath was Mr. Grant’s physician,387 referenced Mr. Grant’s chronic

8

medical issues,388 and was predicated not only on her observations and tests but also on Mr.

9

Grant’s medical records reflecting medical assessments, treatment, and tests conducted by Dr.
Heath, other physicians, pharmacists, and other providers.389 Her assessment cannot be divorced

11

United States District Court
Northern District of California

10

from Mr. Grant’s overall treatment at Lifelong, and thus she is a treating physician. Benton, 331

12

F.3d 1038–39 (explaining that “nothing forecloses” a physician from completing an RFC

13

assessment “on behalf of [a] treatment team”).
The ALJ’s third reason for rejecting Dr. Wu’s opinion — that she “failed to mention the likely

14
15

pervasive effects of the claimant’s substance abuse” — also does not constitute a specific and

16

legitimate reason to discount Dr. Wu’s RFC assessment. See Bustamante 262 F.3d 949, 955 (9th

17

Cir. 2001) (holding that an ALJ must complete the five-step framework before looking to see

18

whether a claimant would still be disabled if he or she were to cease from using drugs or alcohol);

19

Eckermann v. Astrue, 817 F. Supp. 2d 1210, 1224 (D. Idaho 2011) (holding that “the ALJ’s

20

repeated reference to Petitioner’s substance use as a reason for rejecting the opinions of

21

Petitioner’s treating and examining medical sources constituted legal error” because the

22

“implementing regulations contemplate that the ALJ will make an initial disability determination

23
386

24

See, e.g., AR 876–84, 897–908, 912–44, 969–980, 984–92, 1224–27, 1234–42, 1247–59, 1263–66,
1269–72, 1277–79.

25

387

AR 1221.

388

Id.

26
27

389

See, e.g., AR 926–50 (tests ordered by Dr. Heath), 873–75, 891–93 (visits with Dr. Fueller at
Lifelong Medical Center), 894–96 (medical reconciliation visit with Kristin Wong, Pharm.D., and
Shadi Doroudgar, Pharm.D.).

28
ORDER – No. 17-cv-03423-LB

45

1

without regard to substance abuse”); accord Nieves, 2008 WL 4277995 at *4 (discussed above).

2

Moreover, Dr. Wu listed Mr. Grant’s chronic impairments, including chemical dependency and

3

alcohol abuse.390

4

In sum, the ALJ did not have specific and legitimate reasons for discounting Dr. Wu’s opinion.

5

1.3

6

The ALJ gave the greatest weight to Dr. Todd’s opinion:

7

Dr. Todd — Non-Examining

In reaching my RFC determination herein, I rely for the most part on the
assessment of Dr. Todd, according his opinion great weight because it is consistent
with the preponderance of the longitudinal medical evidence of record as a whole.
In addition, Dr. Todd is the only physician in this case to have reviewed the entire
medical evidence of record (except for Exhibit 19F submitted post-closing, which
adds little substantively). 391

8
9
10

United States District Court
Northern District of California

11

The ALJ’s reasons for attributing “great weight” to Dr. Todd’s opinion are insufficient.

12

Initially, the ALJ’s conclusion that Dr. Todd was only physician to review the entire record392

13

is inconsistent with the submission of numerous exhibits after the July 20, 2015 hearing. At the

14

July 20, 2015 hearing, Dr. Todd testified that he had reviewed Exhibits 1–18F,393 and the ALJ

15

asserted that the only remaining medical evidence Exhibit was 19F.394 But the medical evidence

16

consists of Exhibits 1F–23F, meaning that Dr. Todd apparently did not review five exhibits that

17

make up over a third of the pages of medical evidence in the record.395

18

Dr. Todd misreported some exhibits that he did review, and the exhibits submitted after the

19

hearing also are at odds with some of his findings. He testified that Mr. Grant suffered from six

20

medical conditions: chronic pain, respiratory issues/chronic heart failure, morbid obesity,

21
22
23

390

See AR 1221.

24

391

AR 40.

392

Id.

393

AR 60.

26

394

AR 40.

27

395

25

The medical evidence in the record totals 1386 pages. See AR 414–1781. Exhibits 19F–23F total
495 pages. See AR 1286–1781.

28
ORDER – No. 17-cv-03423-LB

46

1

polysubstance abuse, depression, and a global left ventricular ejection fraction. His conclusions

2

were inconsistent with the record with respect to five of them.
First, Dr. Todd testified that Mr. Grant suffered from “pain in various parts of his body, and

3
4

particularly in a non-healing fracture of the right ankle, but there’s no documentation by physical

5

therapy, or whether he uses a device, or a walker, or what he does.”396 But as discussed above, Mr.

6

Grant’s treatment included physical therapy with Mr. Joson at Eden Medical Center.397 As Mr.

7

Grant testified,398 Mr. Grant attended physical therapy sessions that involved treatment in a

8

pool.399 Moreover, in Exhibit 17F, which was available for Dr. Todd’s review,400 treating

9

physician Dr. Baldwin indicated in February 2015 that Mr. Grant’s “ankle is unstable and causes
him to lose his balance and sometimes fall” and that “[h]e is required to use a cane to assist in

11

United States District Court
Northern District of California

10

ambulation.”401 Other medical records in the administrative record also show that at times, Mr.

12

Grant needed to use a cane or a walker. For instance, January 2015 progress notes from Eden

13

Medical Center reflect that Mr. Grant used a single-point cane.402 Ms. Madison noted in July 2015

14

that Mr. Grant “report[ed] increased falls” when he did not use his cane.403 Treating physician Dr.

15

Heath reported in August 2013 that Mr. Grant had fallen recently and occasionally used a cane.404

16

Lastly, as discussed above, treating physician Drs. Fakiri and Cheng reported in March 2011 that

17

Mr. Grant used a walker during a hospital visit and that he typically wore “hardware” on his right

18

ankle.405

19
20
396

AR 61.

397

See AR 1383–84, 1402–03, 1425–27, 1458–60, 1479–81.

22

398

AR 74.

23

399

AR 1402–03, 1425–27, 1458–60, 1479–81.

400

AR 60.

401

AR 1074.

25

402

AR 1299.

26

403

AR 1550.

404

AR 891.

405

AR 415–17.

21

24

27
28

ORDER – No. 17-cv-03423-LB

47

1

Second, Dr. Todd testified that Mr. Grant suffered from breathing problems, including acute

2

respiratory failure and shortness of breath, maybe congestive heart failure, and “lung disease by

3

pulmonary function test.”406 He testified that “it would appear that he’s relatively well as far as his

4

lungs and his heart” following his recovery in June 2013.407 As discussed above, records

5

submitted after the hearing show that Mr. Grant also suffered from breathing issues and congestive

6

heart failure after June 2013. For instance, he was hospitalized beginning in March in 2015 in

7

significant respiratory distress and suffering from acute diastolic congestive heart failure.408 He

8

was in a state of “hypertensive emergency” and was admitted to the intensive-care unit.409 August

9

2015 medical records document visits with Dr. Wu and report that Mr. Grant was suffering from

10

congestive heart failure and shortness of breath.410

United States District Court
Northern District of California

11

Third, Dr. Todd testified that Mr. Grant suffered from morbid obesity and that Mr. Grant’s

12

weight was “well into the 200s,”411 but as discussed above, the record demonstrates that Mr. Grant

13

weighed substantially more than that throughout the relevant time. For example, in April 2015, he

14

weighed 384 pounds.412 In August 2015, records submitted after the hearing show that he weighed

15

405 pounds.413
Fourth, concerning Mr. Grant’s substance abuse, Dr. Todd testified that Mr. Grant’s substance

16
17

abuse was the cause of his falling asleep during his medical appointments:

18

ME: As a medical doctor, when patients are so sleepy like this we know the
problem is substance abuse, and so his sleepiness is a marker of active substance
abuse, which could be just alcohol, it could be additional Oxycodone or Cocaine,
so that’s a problem.

19
20
21
22

406

AR 61.

23

407

Id.

408

See AR 1685–1723.

409

See AR 1708.

25

410

See, e.g., AR at 1593.

26

411

AR 61.

412

AR 1166.

413

AR 1729.

24

27
28

ORDER – No. 17-cv-03423-LB

48

1

ALJ: Of course he’s claiming it’s sleep apnea that causes him to be sleepy during
the day.

2

ME: Well, yeah, but not so sleepy you can’t sign permission for a doctor to treat
you. I mean you don’t fall asleep when you’re in a doctor’s room. Even though you
might be tired, you’re not going to fall asleep. There is a very rare condition that,
you know—paroxysmal—what do they call it? Narcolepsy. He doesn’t have that.
It’s not mentioned anywhere in the record.414

3
4
5

But in fact, Mr. Grant’s treating physicians have attributed his falling asleep during the day,

6
7

even during his medical appointments, to both obstructive sleep apnea and narcolepsy. For

8

example, in February 2013, Dr. Heath noted that he had observed Mr. Grant experience two

9

episodes of obstructive sleep apnea in while he was at Dr. Heath’s office and referred Mr. Grant
for a sleep study.415 In August 2014, Dr. Heath noted a direct correlation between Mr. Grant’s

11

United States District Court
Northern District of California

10

ability to stay awake during an appointment and his use of his CPAP machine to treat his

12

obstructive sleep apnea: “This is the first visit I have had with this patient in which he remained

13

awake throughout. Praised and urged to continue CPAP.”416 Additionally, while Mr. Grant was

14

hospitalized at San Leandro Hospital in July 2013, Dr. Williams suspected that Mr. Grant was

15

very lethargic and sleepy because his CPAP machine was leaking.417 After Mr. Grant was placed

16

on a hospital BiPAP machine, his “condition improved and he actually woke up.”418 These

17

instances, contained in exhibits available for Dr. Todd’s review, indicate that Mr. Grant’s treating

18

physicians believed there was a correlation between their ability to effectively treat his obstructive

19

sleep apnea and his falling asleep frequently during the day. Moreover, in an exhibit submitted

20

after the hearing, a physician at Eden Medical Center observed that it was “[d]ifficult [for Mr.

21

Grant] to remain awake due to sleep apnea.”419 Finally, despite also having this portion of the

22

record available for his review, Dr. Todd asserted that there was no evidence in the record that Mr.

23
414

AR 67.

415

AR 992.

25

416

AR 1266.

26

417

AR 1014.

418

Id.

419

AR 1292.

24

27
28

ORDER – No. 17-cv-03423-LB

49

1

Grant had narcolepsy.420 But treating physician Dr. Baldwin diagnosed Mr. Grant with “severe

2

narcolepsy.”421
Fifth, Dr. Todd testified that Mr. Grant “has a depression problem,” and Mr. Grant was “not on

3
4

any antidepression medications.”422 He further testified that, while Mr. Grant had seen Ms.

5

Madison once, he was unsure if he ever saw her or obtained other treatment following that one

6

visit.423 As discussed above, and as Mr. Grant testified, records submitted after the hearing show

7

that Mr. Grant saw social workers at Lifelong Medical Center for his polysubstance abuse,

8

depression, and anxiety.424 Moreover, as shown in an exhibits available for Dr. Todd’s review, Dr.

9

Baldwin provided Mr. Grant with “psychological/emotional support” and prescribed medication
“for severe anxiety spells.”425 Dr. Heath also noted that Mr. Grant had an appointment with a

11

United States District Court
Northern District of California

10

physician concerning his anxiety and depression and that Mr. Grant would benefit from

12

medication.426 Lastly, exhibits submitted after the hearing indicate that treating physicians at Alta

13

Bates Summit Medical Center diagnosed Mr. Grant with depression and prescribed medication.427

14

In sum, the ALJ’s reasons for attributing great weight to Dr. Todd’s opinions are insufficient.

15

1.4

16

The ALJ gave less weight to the medical opinions of Drs. Saphir, Mansour, and Giorgi “to the

Dr. Saphir and Dr. Mansour — Non-Examining

17

extent they are inconsistent with the assessment of Dr. Todd.”428 Mr. Grant argues that the ALJ

18

committed legal error by giving any — even partial — weight to the opinions of Drs. Saphir and

19

Mansour because they gave “great weight” to the opinion of Dr. Frank Chen.429 The Court agrees.

20
420

AR 67.

421

AR 1067, 1070.

22

422

AR 62.

23

423

AR 66–68.

424

See, e.g., AR 1550–59 (counseling with Ms. Wachter), 1567–70 (counseling with Ms. Madison).

425

AR 1068, 1071.

25

426

AR 959, 971.

26

427

AR 1605, 1627.

428

AR 40.

429

Mot. – ECF No. 18 at 13–14.

21

24

27
28

ORDER – No. 17-cv-03423-LB

50

Dr. Chen evaluated Mr. Grant, and was subsequently removed from the Disability

1

Determination Services (DDS) panel for his “unprofessional manner and failure to adequately

3

correct deficiencies in his CE reports.”430 The ALJ assigned gave no weight to Dr. Chen’s

4

opinion.431 The question remains, however, whether the examinations by Drs. Saphir and Mansour

5

are so tainted by their reliance on Dr. Chen’s findings that they ALJ should not have given them

6

any weight. In Kernan v. Berryhill, another judge in this district addressed a similar set of facts.

7

No. 16-cv-02923-JSC, 2017 WL 3232517, at *9 (N.D. Cal. July 31, 2017). In Kernan, the ALJ

8

gave no weight to Dr. Chen’s assessment but nonetheless relied on another non-examining

9

assessment that had, in turn, relied on Dr. Chen’s findings. Id. The Kernan judge held that the

10

“ALJ erred in according ‘great weight’” to the non-examining physician who had relied on Dr.

11

United States District Court
Northern District of California

2

Chen’s findings. Id. at *8. Because “the ALJ placed ‘great weight’ on [the non-examining

12

doctor’s] opinion, [and because that non-examining doctor] relied on Dr. Chen’s discredited

13

opinion, substantial evidence does not support the ALJ’s determination that Plaintiff could

14

perform medium work. Thus, remand is required for further development of the record regarding

15

Plaintiff’s residual functional capacity.” Id. Here, like the ALJ in Kernan, the ALJ attributed no

16

weight to Dr. Chen’s assessment. And like the ALJ in Kernan, the ALJ relied on the findings of

17

other non-examining physicians who relied on Dr. Chen’s assessment.

18

The court concludes that the ALJ erred by relying on the findings of Drs. Saphir and Mansour

19

because, “[a]s [Dr. Saphir and Dr. Mansour] did not examine [Mr. Grant], it is unclear what parts

20

of [Dr. Saphir and Dr. Mansour’s] assessment[s] are based on Dr. Chen’s previous analysis and

21

what is based on [their] review of other records.” Id. at *8.
Dr. Baldwin — Treating

22

1.5

23

The ALJ erred by failing to address Dr. Baldwin’s findings. The Ninth Circuit has emphasized

24

the high standard required for an ALJ to reject an opinion from a treating or examining doctor,

25

even where the record includes a contradictory medical opinion:

26
430

27

AR 40 n. 1 (quoting third and final “Corrective Action” letter).

431

Id.

28
ORDER – No. 17-cv-03423-LB

51

1

4

Where an ALJ does not explicitly reject a medical opinion or set forth specific,
legitimate reasons for crediting one medical opinion over another, he errs. See
Nguyen v. Chater, 100 F.3d 1462, 1464 (9th Cir. 1996). In other words, an ALJ errs
when he rejects a medical opinion or assigns it very little weight while doing
nothing more than ignoring it, asserting without explanation that another medical
opinion is more persuasive, or criticizing it with boilerplate language that fails to
offer a substantive basis for his conclusion. See id.

5

Garrison, 759 F.3d at 1012–13. The ALJ’s crediting of non-examining medical expert Dr. Todd’s

6

opinion (which contradicted treating physician Dr. Baldwin’s findings) is error because the ALJ

7

did not provide specific and legitimate reasons supported by substantial evidence to reject Dr.

8

Baldwin’s opinion. Id.; see also Marsh v. Colvin, 792 F.3d 1170, 1172–73 (9th Cir. 2015)

9

(“Because a court must give ‘specific and legitimate reasons’ for rejecting a treating doctor’s

2
3

opinions, it follows even more strongly that an ALJ cannot in its decision totally ignore a treating

11

United States District Court
Northern District of California

10

doctor and his or her notes, without even mentioning them.”). The ALJ did not address Dr.

12

Baldwin’s treatment notes, and instead only cited them as an exhibit number in a string cite with

13

many other exhibits as evidence of Mr. Grant’s chronic conditions.432 Under the circumstances —

14

including the ALJ’s failure to mention Dr. Baldwin by name and the fact errors discussed in this

15

order — the court concludes that the ALJ did not provide specific and legitimate reasons for

16

ignoring Dr. Baldwin’s findings and crediting instead Dr. Todd.
*

17

*

For the reasons discussed above, the court remands so that the ALJ may consider the medical-

18
19

*

opinion evidence in this case.

20
21
22

2. Whether the ALJ Erred at Step Two by Failing to Evaluate Mr. Grant’s Depression,
Edema, and Congestive Heart Failure
Mr. Grant argues that the ALJ erred by not finding that depression, bilateral edema, restrictive

23
24

lung disease, and congestive heart failure are severe impairments.433 The court finds that the ALJ

25
26
432

27

AR 37.

433

Mot. – ECF No. 18 at 14–18.

28
ORDER – No. 17-cv-03423-LB

52

1

erred at step two for failing to list Mr. Grant’s depression, congestive heart failure, and restrictive

2

lung disease as “severe” impairments.
At step two of the five-step sequential inquiry, the ALJ determines whether the claimant has a

3
4

medically severe impairment or combination of impairments. Smolen v. Chater, 80 F.3d 1273,

5

1290 (9th Cir. 1996). The ALJ must consider the record as a whole, including evidence that both

6

supports and detracts from its final decision. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998).

7

An impairment is not severe if it does not significantly limit the claimant’s mental or physical

8

abilities to do basic work activities. 20 C.F.R. § 404.1521(a).434 Basic work activities are “abilities

9

and aptitudes necessary to do most jobs,” including, for example, “walking, standing, sitting,
lifting, pushing, pulling, reaching, carrying, or handling.” 20 C.F.R. § 404.1521(b). To determine

11

United States District Court
Northern District of California

10

the severity of a mental impairment specifically, the ALJ must consider four broad functional

12

areas: (1) activities of daily living; (2) social functioning; (3) concentration, persistence, and pace;

13

and (4) episodes of decompensation. 20 C.F.R. § 404.1520a.
“[T]he step two inquiry is a de minimis screening device to dispose of groundless claims.”

14
15

Smolen, 80 F.3d at 1290 (citing Bowen v. Yuckert, 482 U.S. 137 at 153–54 (1987)). Thus, “[a]n

16

impairment or combination of impairments can be found ‘not severe’ only if the evidence

17

establishes a slight abnormality that has no more than a minimal effect on an individual[‘]s ability

18

to work.” Id. (internal quotation marks omitted) (citing SSR 85–28; Yuckert v. Bowen, 841 F.2d

19

303, 306 (9th Cir.1988)).

20

Concerning the ALJ’s failure to list bilateral edema at step two, any error is harmless because

21

the ALJ discussed Mr. Grant’s bilateral edema later in the decision,435 curing any error. See Lewis

22

v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007) (holding that even if the ALJ erred at step two for

23

failure to list a medical condition, the error was harmless because the ALJ discussed the medical

24

condition later in the five-step framework).

25
434

26
27

The Social Security Administration promulgated new regulations, including a new § 404.1521,
effective March 27, 2017. The previous version, effective to March 26, 2017, governs based on the
date of the ALJ’s hearing, May 29, 2015.
435

AR 39.

28
ORDER – No. 17-cv-03423-LB

53

The ALJ erred, however, when he found that Mr. Grant’s depression did not constitute a

1
2

“severe” impairment. Concerning Mr. Grant’s depression, the ALJ improperly rejected the opinion

3

of Dr. Snyder and also found that there was “no evidence of any mental health treatment.”436 As

4

discussed above, and as Mr. Grant testified, he saw social workers at Lifelong Medical Center for

5

his polysubstance abuse, depression and anxiety.437 Dr. Heath also noted that Mr. Grant had an

6

appointment with a physician concerning his anxiety and depression and that Mr. Grant would

7

benefit from medication.438 Moreover, the record shows that treating physicians at Alta Bates

8

Summit Medical Center diagnosed Mr. Grant with depression and prescribed medication.439 The

9

analysis at step two is built on the ALJ’s weighing of the medical evidence. Here, the record as a
whole shows that Mr. Grant’s mental health conditions were more than a “slight abnormality.” See

11

United States District Court
Northern District of California

10

Smolen, 80 F.3d at 1290.

12

The ALJ also erred by failing to list restrictive lung disease and congestive heart failure as

13

“severe” impairments. While the ALJ did discuss some of Mr. Grant’s cardiac and pulmonary

14

conditions later in the five-step framework, he did not address congestive heart failure or

15

restrictive lung disease. Physicians diagnosed Mr. Grant with restrictive lung disease on multiple

16

occasions when Mr. Grant was in the hospital and having difficulty breathing,440 and congestive

17

heart failure is one of Mr. Grant’s most persistent chronic health problems in the record.441

18

Accordingly, these conditions are more than a “slight abnormality” and be considered at step two.

19

See Smolen, 80 F.3d at 1290.
*

20

*

*

21
22
23

436

AR 35.

24

437

See, e.g., AR 1550–59 (counseling with Ms. Wachter), 1567–70 (counseling with Ms. Madison).

438

AR 959, 971.

439

AR 1605, 1627.

26

440

See, e.g., AR 769, 1013–14.

27

441

25

See, e.g., AR 415, 582, 786, 992, 1067, 1070, 1167, 1175–76, 1184, 1192, 1199, 1216, 1579, 1586,
1593.

28
ORDER – No. 17-cv-03423-LB

54

For the reasons discussed above, the ALJ erred at step two. On remand, the ALJ can consider

1
2

the significance of Mr. Grant’s depression, restrictive lung disease, and congestive heart failure.

3
4

3. Whether the ALJ Adequately Considered Listings of Impairments at Step Three

5

Mr. Grant contends that the ALJ erred at step three by not considering whether his

6

impairments met the severity requirements of Listings 4.11 and 12.04.442 The court agrees.
At step three of the five-step framework, “[i]f a claimant has an impairment or combination of

7
8

impairments that meets or equals a condition outlined in the “Listing of Impairments,” then the

9

claimant is presumed disabled.” Lewis, 236 F.3d at 512 (citing 20 C.F.R. § 404.1520(d)). “An ALJ
must evaluate the relevant evidence before concluding that a claimant’s impairments do not meet

11

United States District Court
Northern District of California

10

or equal a listed impairment. A boilerplate finding is insufficient to support a conclusion that a

12

claimant’s impairment does not do so.” Id. (citing Marcia v. Sullivan, 900 F.2d 172, 176 (9th Cir.

13

1990)). “Medical equivalence will be found ‘if the medical findings are at least equal in severity

14

and duration to the listed findings.’” Marcia, 900 F.2d at 175–76 (quoting 20 C.F.R. § 404.1526).

15

Accordingly, at step three, “the ALJ must explain adequately his evaluation of the alternative tests

16

and the combined effects of the impairments” to determine whether a claimant equals a Listing. Id.

17

at 176.
Listing 4.11 states:

18
19

Chronic venous insufficiency of a lower extremity with incompetency or
obstruction of the deep venous system and one of the following:

20

A. Extensive brawny edema (see 4.00 G3) involving at least two-thirds of the leg
between the ankle and knee or the distal one-third of the lower extremity between
the ankle and hip.

21
22

OR

23

B. Superficial varicosities, stasis dermatitis, and either recurrent ulceration or
persistent ulceration that has not healed following at least 3 months of prescribed
treatment.

24
25
26
27

442

Mot. – ECF No. 18 at 21–22.

28
ORDER – No. 17-cv-03423-LB

55

1

20 C.F.R. Pt. 404, Subpt. P, App. 1, 4.11. “Brawny edema,” as outlined in Listing 4.00G3, is:

4

characterized as “swelling that is usually dense and feels firm due to the presence
of increased connective tissue; it is also associated with characteristic skin
pigmentation changes. It is not the same thing as pitting edema. Brawny edema
generally does not pit (indent on pressure), and the terms are not interchangeable.
Pitting edema does not satisfy the requirements of 4.11A.

5

20 C.F.R. Pt. 404, Subpt. P, App. 1, 4.00G3. As discussed above, physicians have characterized

6

Mr. Grant’s edema as “pitting edema,”443 which does not satisfy the requirements of Listing 4.11.

7

But practitioners diagnosed Mr. Grant with lymphedema.444 While lymphedema “does not meet

8

the requirements of [Listing] 4.11, . . . it may medically equal the severity of that listing.” 20

9

C.F.R. Pt. 404, Subpt. P, App. 1, 4.00G4. Given that the ALJ found that Mr. Grant suffered from

2
3

lymphedema at step two of the five-step framework and that lymphedema may equal the

11

United States District Court
Northern District of California

10

requirements of Listing 4.11, the court finds that remand is appropriate. The ALJ should have

12

addressed whether Mr. Grant’s lymphedema was sufficiently severe to equal the requirements of

13

Listing 4.11 and “explained adequately his evaluation of the alternative tests and the combined

14

effects of the impairments” to determine whether Mr. Grant’s impairments equal the requirements

15

of the Listing. Marcia, 900 F.2d at 176.
The “paragraph B” criteria of Listing 12.04 requires that Mr. Grant satisfy least two of the

16
17

following:

18

1. Marked restriction of activities of daily living; or

19

2. Marked difficulties in maintaining social functioning; or

20

3. Marked difficulties in maintaining concentration, persistence , or pace; or

21

4. Repeated episodes of decompensation, each of extended duration.

22

20 C.F.R. Pt. 404, Subpt. P, App. 1, 12.04. As discussed above, Dr. Snyder found that Mr. Grant

23

suffered from only mild to moderate impairments.445 Fully crediting her testimony alone would be

24

insufficient to warrant a remand. Given the other instances in the record where physicians

25

27

443

See, e.g., AR 1176–78.

444

26

See, e.g., AR 1176, 1188, 1300, 1308–09, 1392–94, 1583–85, 1641.

445

AR 802.

28
ORDER – No. 17-cv-03423-LB

56

1

diagnosed Mr. Grant with depression and prescribed him medication after Dr. Snyder’s

2

evaluation,446 however, the court concludes that further administrative review is needed to

3

determine whether the ALJ’s failure to consider Listing 12.04 was, in fact, harmless. See Molina,

4

674 F.3d at 1115 (explaining that the Ninth Circuit applies “harmless error principles” by

5

“look[ing] at the record as a whole to determine whether the error alters the outcome of the case”).
*

6

*

*

7

For the reasons discussed above, the court concludes that the ALJ erred at step three. On

8

remand, the ALJ can consider whether Mr. Grant’s impairments meet or equal Listings 4.11 and

9

12.04.

10

United States District Court
Northern District of California

11
12

4. Whether the ALJ Erred by Finding Mr. Grant’s Reports of His Own Symptoms Not
Credible
Mr. Grant contends that the ALJ erroneously discredited his testimony. In assessing a

13
14

claimant’s credibility, an ALJ must make two determinations. Molina, 674 F.3d at 1112. “First,

15

the ALJ must determine whether there is ‘objective medical evidence of an underlying impairment

16

which could reasonably be expected to produce the pain or other symptoms alleged.’” Id. (quoting

17

Ligenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007)). Second, if the claimant produces that

18

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

19

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

20

symptoms. Id. (internal quotation marks and citations omitted). “At the same time, the ALJ is not

21

‘required to believe every allegation of disabling pain, or else disability benefits would be

22

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

23

v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)). “Factors that an ALJ may consider in weighing a

24

claimant’s credibility include reputation for truthfulness, inconsistencies in testimony or between

25

testimony and conduct, daily activities, and unexplained, or inadequately explained, failure to seek

26
27

446

See, e.g., 1605, 1627.

28
ORDER – No. 17-cv-03423-LB

57

1

treatment or follow a prescribed course of treatment.” Orn, 495 F.3d at 636 (internal quotation

2

marks omitted). “[T]he ALJ must identify what testimony is not credible and what evidence

3

undermines the claimant’s complaints.” Burrell v. Colvin, 775 F.3d 1133, 1138 (9th Cir. 2014)

4

(citing Lester, 81 F.3d at 834) ; see, e.g., Morris v. Colvin, No. 16-CV-0674-JSC, 2016 WL

5

7369300, at *12 (N.D. Cal. Dec. 20, 2016).
The ALJ found the following about Mr. Grant’s testimony:

6
7

Finally, I find [Mr. Grant’s] allegation of complete debilitation not generally
credible. As previously noted, Dr. Todd stated [Mr. Grant’s] physical functioning
would be greatly enhanced if he were to cease substance abuse. In addition, there is
extensive evidence of non-compliance with medications and diet in the record. [Mr.
Grant], who admitted to being an alcoholic, continues to drink around 1–2 pints of
vodka daily, and even works at a liquor store. Also, he was noted to be a poor
historian, and his claims of abstinence from cocaine and reducing drinking conflict
with most of the record.447

8
9
10

United States District Court
Northern District of California

11

The ALJ satisfied the first step of the two-step inquiry when he determined that Mr. Grant’s

12
13

medically determinable impairments “could reasonably be expected to cause some of the

14

symptoms alleged.”448 See Molina, 674 F.3d at 1112. But the ALJ did not provide any evidence or

15

find that Mr. Grant was a malingerer. Accordingly, he needed to provide “specific, clear and

16

convincing reasons” for rejecting the claimant’s testimony regarding the severity of Mr. Grant’s

17

symptoms. Id. (internal quotation marks and citations omitted). Because the ALJ discredited Mr.

18

Grant’s testimony in part on his assessment of the medical-opinion evidence, including Dr. Todd’s

19

testimony, the court remands on this ground too. The ALJ can reassess Mr. Grant’s credibility in

20

context of the entire record.

21
22
23
24
25
26
447

27

AR 40.

448

AR 37.

28
ORDER – No. 17-cv-03423-LB

58

1
2

5. Whether the ALJ’s Determination of Mr. Grant’s RFC Was Supported by Substantial
Evidence
Mr. Grant contends that the ALJ did not properly consider the whole of the medical record and

3
4

thereby arrived at an erroneous RFC that is not supported by substantial evidence.449 “[T]he ALJ

5

is responsible for translating and incorporating clinical findings into a succinct RFC.” Rounds v.

6

Comm’r of Social Sec. Admin., 807 F.3d 996, 1006 (9th Cir. 2015); see also Vertigan v. Halter,

7

260 F.3d 1044, 1049 (9th Cir. 2001) (“it is the responsibility of the ALJ, not the claimant’s

8

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

9

RFC must be based on the medical opinions and the totality of the record. 20 C.F.R. §§
404.1527(d), 404.1546(c). Moreover, the ALJ is responsible for “‘resolving conflicts in medical

11

United States District Court
Northern District of California

10

testimony, and for resolving ambiguities.’” Garrison, 759 F.3d at 1010 (quoting Andrews, 53 F.3d

12

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

13

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

14

C.F.R. § 416.927(b); see also Orn, 495 F.3d at 630 (“[A] reviewing court must consider the entire

15

record as a whole and may not affirm simply by isolating a specific quantum of supporting

16

evidence.”) (internal quotation marks and citation omitted).
The ALJ relied in part on his findings at prior steps within the five-step framework. Because

17
18

the court found errors in these findings, and because the ALJ’s RFC was predicated on these

19

findings, the court remands on this basis too.

20
21

6. Whether the ALJ Erred at Step Five by Relying on an Erroneous RFC
Because the court remands on issues such as the ALJ’s weighing and evaluation of the medical

22
23

records and Mr. Grant’s testimony (predicates for the RFC determination and application of the

24

Medical-Vocational Guidelines), the court remands this issue too for reconsideration based on the

25

full record.

26
27

449

Mot. – ECF No. 18 at 16–17.

28
ORDER – No. 17-cv-03423-LB

59

1
2
3

7. Whether the Court Should Remand for Further Proceedings or Immediately Award
Benefits
The court has “discretion to remand a case either for additional evidence and findings or for an

4

award of benefits.” McCartey v. Massanari, 298 F.3d 1072, 1076 (9th Cir. 2002) (citing Smolen,

5

80 F.3d at 1292); McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989) (“The decision whether

6

to remand for further proceedings or simply to award benefits is within the discretion of [the]

7

court.”) (citing Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1987)). Generally, “‘[i]f additional

8

proceedings can remedy defects in the original administrative proceeding, a social security case

9

should be remanded.’” Garrison, 759 F.3d at 1019 (quoting Lewin v. Schweiker, 654 F.2d 631,
635 (9th Cir. 1981)) (alteration in original); see also Dominguez v. Colvin, 808 F.3d 403, 407 (9th

11

United States District Court
Northern District of California

10

Cir. 2015) (“Unless the district court concludes that further administrative proceedings would

12

serve no useful purpose, it may not remand with a direction to provide benefits.”); McCartey, 298

13

F.3d at 1076 (remand for award of benefits is discretionary); McAllister, 888 F.2d at 603 (remand

14

for award of benefits is discretionary); Connett, 340 F.3d at 876 (finding that a reviewing court

15

has “some flexibility” in deciding whether to remand).

16

For the reasons described above, the court finds that remand is appropriate so as to “remedy

17

defects in the original administrative proceeding.” Garrison, 759 F.3d at 1019 (quoting Lewin v.

18

Schweiker, 654 F.2d at 635 (alteration in original)).

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20
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CONCLUSION
The court grants Mr. Grant’s motion for summary judgment, denies the Commissioner’s cross-

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motion for summary judgment, and remands this case for further proceedings consistent with this

23

order.

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IT IS SO ORDERED.

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Dated: September 24, 2018
______________________________________
LAUREL BEELER
United States Magistrate Judge

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ORDER – No. 17-cv-03423-LB

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