Lennon v. Berryhill
Filing
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ORDER granting 17 Motion for Summary Judgment; denying 21 Motion for Summary Judgment.The court grants Mr. Lennon's summary-judgment motion, denies the Commissioner's cross-motion, and remands this case for further proceedings consistent with this order. (Beeler, Laurel) (Filed on 7/26/2018)
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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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TRAVIS CLINTON LENNON,
Case No. 17-cv-03437-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
Re: ECF Nos. 17, 21
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INTRODUCTION
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Plaintiff Travis Lennon 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 XVI1 of the
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Social Security Act.2 He moved for summary judgment;3 the Commissioner opposed the motion
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and filed a cross-motion.4 Under Civil Local Rule 16-5, the matter is submitted for decision
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without oral argument. All parties consented to magistrate-judge jurisdiction.5 The court grants
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Administrative Record (“AR”) 97; Mot. – ECF No. 17. Record citations refer to material in the
Electronic Case File (“ECF”); pinpoint citations are to the ECF-generated page numbers at the top of
documents.
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Compl. ‒ ECF No. 1 at 1.
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Mot. – ECF No. 17.
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Cross-Mot. – ECF No. 21.
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Consents – ECF Nos. 10, 11.
ORDER – No. 17-cv-03437-LB
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Mr. Lennon’s summary-judgment motion, denies the Commissioner’s cross-motion, and remands
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this case for further proceedings consistent with this order.
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STATEMENT
1. Procedural History
On July 25, 2011, Mr. Lennon — who was born on March 5, 1992 — filed for supplemental
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Social Security income benefits under Title XVI of the Social Security Act alleging an onset date
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of March 5, 20106 and alleging disabilities of “Bi polar” and “mental health.”7 The Social Security
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Administration denied the application initially and on reconsideration.8 On May 23, 2012, Mr.
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Lennon timely requested a hearing.9 On March 22, 2013, Administrative Law Judge (“ALJ”)
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United States District Court
Northern District of California
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Maxine Benmour held a hearing in San Rafael, California.10 Mr. Lennon and Linda Ferrer, a
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vocational expert, testified.11 ALJ Benmour held a supplemental hearing on August 2, 2013.12 At
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the supplemental hearing, medical expert Dr. Betty Borden testified by telephone,13and Mr.
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Lennon and his mother testified in person.14 ALJ Benmour issued an unfavorable decision on
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October 21, 2013.15
The plaintiff asked the Appeals Counsel to review the decision. The Appeals Council denied
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the request initially16 but vacated its order on January 19, 2016 and remanded the case for further
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AR 321. Mr. Lennon’s father, David Lennon, filed for benefits on Mr. Lennon’s behalf.
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AR 150.
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AR 202–07, 211–16.
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AR 225.
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AR 43.
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Id.
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AR 73.
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AR 76.
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AR 82.
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AR 174–89.
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AR 190–93.
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ORDER – No. 17-cv-03437-LB
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proceedings and a new decision.17 The grounds for remand were as follows. First, the ALJ’s
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decision did not address the claimant’s mother’s testimony and the father’s report about the
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claimant’s symptoms.18 In reaching this decision, the Appeals Council noted the claimant’s “clear
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longitudinal history of mental health symptoms with ongoing treatment” and an updated
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November 2015 letter from the parents documenting “a continuation of troublesome symptoms.
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These opinions should be evaluated pursuant to Social Security Ruling 06-3p.”19 Second, the
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ALJ’s decision improperly discounted the medical opinion of his long-term treating physician
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John Leipsic on the ground that he had not seen the patient since March 2010.20 The Council
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observed that Dr. Leipsic’s opinion showed the continuity and stability of the diagnosis of Bipolar
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Disorder and Mr. Lennon’s best (and current) medication response; it also was dated in 2013 and
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United States District Court
Northern District of California
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thus apparently was based on records “during the period at issue, not only through the end of his
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treatment,”21 and — considered in the context of the record, including new records submitted with
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the request for review — “show[ed] the perpetual and persistent nature of the claimant’s
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symptoms over the last decade.”22 The Council concluded, “Further consideration and
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development of the claimant’s condition is warranted.”23 The Appeals Council directed the ALJ to
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do the following on remand:
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Obtain additional evidence concerning the claimant’s mental impairments in order
to complete the administrative record in accordance with the regulatory standards
regarding consultative examinations and existing medical evidence (20 CFR
416.912-913). The additional evidence may include, if warranted and available, a
consultative mental examination and medical source statements about what the
claimant can still do despite the impairments.
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AR 194–98.
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AR 196.
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Id.
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Id.
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Id.
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Id.
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AR 196–97.
ORDER – No. 17-cv-03437-LB
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If warranted and available, obtain additional evidence from a medical expert to
clarify the nature and severity of the claimant’s mental impairments (20 CFR
416.927(e) and Social Security Ruling 96-6p).
Give further consideration to the claimant’s maximum residual functional capacity
during the entire period at issue and provide [a] rationale with specific references to
evidence of record in support of assessed limitations (Social Security Ruling 968p). In so doing, evaluate the treating source opinion and third party opinions
pursuant to the provisions of 20 CFR 416.927 and Social Security Rulings 96-2p,
96-5p, and 06-3p, and explain the weight given to such opinion evidence. As
appropriate, the Administrative Law Judge may request the treating source to
provide additional evidence and/or further clarification of the opinion (20 CFR
416.912).
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If warranted by the expanded record, obtain supplemental evidence from a
vocational expert to clarify the effect of the assessed limitations on the claimant’s
occupational base (Social Security Ruling 83-14). The hypothetical questions
should reflect the specific capacity/limitations established by the record as a whole.
The Administrative Law Judge will ask the vocational expert to identify examples
of appropriate jobs and to state the incidence of such jobs in the national economy
(20 CFR 416.966). Further, before relying on the vocational expert evidence the
Administrative Law Judge will identify and resolve any conflicts between the
occupational evidence provided by the vocational expert and information in the
Dictionary of Occupational Titles (DOT) and its companion publication, the
Selected Characteristics of Occupations (Social Security Ruling 00-4p).24
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United States District Court
Northern District of California
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ALJ Kwon (“the ALJ”) held a new hearing on July 11, 201625 and issued an unfavorable
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decision on October 5, 2016.26 Mr. Lennon asked the Appeal Council to review the decision.27 On
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April 21, 2017, the Appeals Council denied his request for review.28 Mr. Lennon timely filed this
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action on June 14, 2017 and moved for summary judgment.29 The Commissioner opposed the
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motion and filed a cross-motion for summary judgment.30
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AR 197.
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AR 290–94.
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AR 18–42.
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AR 16–17.
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AR 1–6.
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Mot. – ECF No. 17.
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Cross Mot. – ECF No. 21.
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ORDER – No. 17-cv-03437-LB
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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
John Leipsic, M.D. — Treating
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Dr. Leipsic was Mr. Lennon’s sole treating psychiatrist for ten years from February 2000,
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when Mr. Lennon was eight, until March 2010, when he turned eighteen.31 He is board certified in
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psychiatry and adolescent psychiatry, and at the time he submitted his letter on August 1, 2013, he
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was an Assistant Professor of Child Psychiatry in the Department of Pediatrics and Psychiatry at
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the University of Arizona Medical Center.32 Dr. Leipsic began treating Mr. Lennon because of
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“challenging behaviors at home and school.”33 Dr. Leipsic diagnosed Mr. Lennon with a Bipolar
Affective Disorder that remained stable from ages eight to eighteen.34 Mr. Lennon had prior
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Northern District of California
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treatment since age three with a developmental pediatrician, who treated him for ADHD and
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anxiety.35 The earlier diagnosis of ADHD and treatment with stimulants “dropped off as he
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reached upper adolescence.36 “Records of his ten year medication tracking . . . demonstrate the
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challenge of these multiple medication trials and combinations.”37 Dr. Leipsic noted, “Most salient
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in the reading of his extensive treatment records is the continuity and stability of Travis’[s]
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diagnosis of Bipolar Disorder. Further, Travis’[s] medication response has been the best to dual
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antipsychotic mood stabilizers Seroquel and Abilify, a medication regime started in 2005, on
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which he remains to this day.”38 In his letter summarizing Mr. Lennon’s treatment, Dr. Leipsic
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AR 803. Dr. Leipsic followed Mr. Lennon “from my private office, to the Children’s Day Treatment
Center, to his outpatient care at the County of Sonoma Mental Health until we transferred his care back
to my private office.” Id. Other records show some of Mr. Lennon’s treatment and issues during this
time period. See, e.g., AR 795–802.
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AR 803, 863.
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AR 810.
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AR 803.
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Id.
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Id.
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Id.
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Id.
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ORDER – No. 17-cv-03437-LB
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stated, “As Travis Lennon’s treating psychiatrist for ten years, I support his application for Social
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Security Disability Insurance and recommend he be qualified for SSDI.”39
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Until he moved to live with his father in Humboldt County in November 2010,40 Mr. Lennon
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Sonoma County Department of Health Services, Mental Health Division —
Treating
lived with his mother in Sonoma County and received care through Sonoma County.41
Sonia Beck, M.F.T., Ph.D., treated Mr. Lennon from 2009 to 2011.42 In April 2010, Dr. Beck
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diagnosed Mr. Lennon with Bipolar NOS and listed his cannabis abuse.43 In subsequent months,
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she met with Mr. Lennon and his mother, traveled to his school to assess him there, reported that
he did relatively well on his prescribed medications of Abilify, Seroquel, and Wellbutrin,
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Northern District of California
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documented his difficulties (including his mother’s asking him to leave for several days for not
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following the rules), coached him on his drug use (including the dangers of overdoing it), and
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talked with his teachers, among other interventions.44 In October 2010, Dr. Beck assigned him a
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GAF of 53 and documented his deterioration, including his dropping out of his school, trying to
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find another school, and being asked to leave his mother’s house.45 In January 2011, Dr. Beck
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documented that Mr. Lennon had moved to Fortuna to live with his father and had begun to attend
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Id.
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AR 573.
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AR 443.
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AR 440–79. Dr. Beck’s treatment was supplemented during this time period by Jasper
Hollingsworth, M.D., who prescribed medications to Mr. Lennon. See, e.g., AR 447.
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AR 477.
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AR 448–54.
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AR 448, 473. A 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. See Garrison v. Colvin, 759 F.3d 995,
1002 n.4 (9th Cir. 2014) (“[A] GAF score between 41 and 50 describes ‘serious symptoms’ or ‘any
serious impairment in social, occupational, or school functioning.’”).
ORDER – No. 17-cv-03437-LB
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school there while maintaining his responsibilities and following the house rules set by his
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father.46 In January 2011, she assigned a GAF of 65.47
Other medical records show his prescriptions for Abilify, Wellbutrin, and Seroquel and Mr.
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Lennon’s appointments with Jasper Hollingsworth, M.D.48
2.1.3 Humboldt County Mental-Health Services — Treating
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In November 2010, Mr. Lennon moved to Humboldt County to live with his father, and he
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thereafter received care with various medical providers through Humboldt County’s Department
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of Health & Human Services, Mental Health Branch, from January 2011 through March 2015.49
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Mr. Lennon met with Jeremy Nilsen, MFT, on January 4, 2011, with a follow-up school
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observation on January 11.50 Mr. Lennon was referred for an assessment about “whether mental
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Northern District of California
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health symptoms related to ‘emotional disturbance’ [we]re interfering with the client’s ability to
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progress academically.”51 “Client records indicate that the client has displayed mood swings,
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severe irritability, and decreased concentration.”52 Mr. Lennon reported use of marijuana one or
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two times daily, which he said helped him concentrate.53
Client records state that Travis has been designated as emotionally disturbed and
historically had difficulty profiting from his Special Education program due to
aggressive and impulsive behaviors in the classroom. Behavior problems in school
reportedly began in the first grade, and these include extreme emotional sensitivity,
difficulty with transitions, mood swings, aggression, and impulsivity. Client
records also stated that the client has historically been depressed, has feelings of
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AR 443.
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AR 446.
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AR 447, 454.
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AR 443, 568–692, 823.
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AR 629–33. In addition to the medical opinions of the “acceptable medical sources,” the ALJ must
consider the opinions of other “medical sources who are not acceptable medical sources and [the
testimony] from nonmedical sources.” See 20 C.F.R. § 416.927(f)(1). “Other sources” include nurse
practitioners, chiropractors, physicians’ assistants, therapists, teachers, social workers, spouses and
other non-medical sources. 20 C.F.R. § 404.1513(d).
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AR 629.
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Id.
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Id.
ORDER – No. 17-cv-03437-LB
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worthlessness, and flat affect. The client historically had a number of diagnoses,
including ADHD, Depression, and Bipolar Disorder.54
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During the County’s observation of three classes (art, health, and physical education), Mr.
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Lennon worked on an art project, on task and well, followed the teacher’s instructions to clean up,
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transitioned well into the health class, accepted a teacher’s directive to put away his head phones,
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was at times uninterested but not disruptive, and was active in physical education.55 A teacher
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reported that Mr. Lennon had not exhibited any significant behavioral problems, seemed to
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respond well to the school’s flexible schedule, had worked on academics but had not turned in any
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work yet, and been irritable on two minor instances.56
Among other things, Mr. Nilsen recommended medication support to monitor Mr. Lennon’s
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response to his current medication.57 Mr. Lennon then met with Orm Aniline, M.D., on January
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Northern District of California
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24, 2011.58 In a check-the-box form that reflected his mental-status exam, Dr. Aniline observed
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that Mr. Lennon was peculiar (with careless grooming) in appearance, was evasive, guarded, and
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agitated (with poor eye contact) in his behavior, was normal in his psychomotor activity, was
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articulate and normal in his speech, was irritable and neutral in his mood, was full in his affect,
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and was organized and goal-directed in his thought form.59 Dr. Aniline diagnosed Mr. Lennon
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with an impulsive disorder and assigned a GAF of 42.60 Dr. Aniline continued Mr. Lennon’s
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prescription for Seroquel and discontinued the Abilify.61
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Mr. Lennon began meeting with Paula Edwalds, M.D., a psychiatrist, on June 28, 2011.62 Mr.
Lennon reported that he stopped taking his Seroquel in March and was using marijuana daily.63
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Id.
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Id.
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AR 629–30.
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AR 633.
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AR 601.
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AR 601–02.
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AR 603.
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Id.
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AR 596.
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Id.
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ORDER – No. 17-cv-03437-LB
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Mr. Lennon’s father reported that Mr. Lennon had been more depressed and angry over the past
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few weeks preceding the visit.64 Among other observations in the check-the-box form that
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reflected her mental-status exam, Dr. Edwalds noted that Mr. Lennon was threatening, hostile, and
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uncooperative (with poor eye contact) in his behavior, was loud in his speech, and was angry in
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his mood.65 Dr. Edwalds convinced Mr. Lennon to restart the Seroquel.66 Her report reflects an
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Axis I diagnosis of Impulse Control Disorder.67
Mr. Lennon’s father called Humboldt County Mental Health Branch on June 29, 2011.68 He
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reported that Mr. Lennon was “upset at ‘lo[]sing his cell phone’ and that he is ‘lo[]sing it’ and
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‘bright red in the face.’”69 He also reported that Mr. Lennon had moved in with him in November,
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2010, that his son “gets out of control,” and that he had “kicked his son out a few times since he’s
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Northern District of California
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moved in with him for behavior issues.”70 The staff member who took the call “[s]trongly
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suggested that if his son got ‘out of control and physically violent that [Mr. Lennon’s father] call
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the police.’”71 Mr. Lennon’s father stated that he did not want to call the police for a welfare check
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because “he doesn’t trust the Fortuna police and ‘my son would see that as a betrayal.’”72
Over the course of the next several months, some of Dr. Edwalds’s relevant observations are
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as follows. September 19, 2011: Mr. Lennon was calm and cooperative at their meeting,73 was
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losing his temper less frequently, remained anxious in crowds, and was smoking marijuana daily;
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Dr. Edwalds increased his Seroquel dose (and noted that Mr. Lennon had already increased his
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Id.
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AR 596–97.
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AR 596.
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AR 595.
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AR 573.
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Id.
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Id.
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Id.
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Id.
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AR 587.
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ORDER – No. 17-cv-03437-LB
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dose).74 December 5, 2011: Mr. Lennon reported that his mood had been fairly stable on the
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medication, and Dr. Edwalds observed that he was well groomed, calm, and cooperative.75 March
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13, 2012: Mr. Lennon reported that Seroquel left him feeling sedated, and he slept too much, but
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he did not want to decrease his dosage.76
Mr. Lennon’s father called Humboldt County Mental Health Division on May 2, 2012 and
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spoke with the resident nurse.77 He reported that Mr. Lennon was having a meltdown because of
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his SSI application and asked to speak with Dr. Edwalds about what happened at Mr. Lennon’s
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last appointment.78 The resident nurse was unable to answer the father’s question because Mr.
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Lennon had not signed a form allowing release of information.79
Dr. Edwalds saw Mr. Lennon on June 12, 2012.80 Mr. Lennon reported irritability and ongoing
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Northern District of California
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mood swings.81 Dr. Edwalds noted in her progress notes that Mr. Lennon displayed slowed
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thinking, smelled strongly of marijuana, and had an irregular sleep pattern.82 Mr. Lennon asked to
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increase his dosage of Seroquel.83 Her Axis I diagnoses were Impulse Control Disorder, Bipolar
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Disorder, and Cannabis Dependence.84 She assigned a GAF of 40 and increased the Seroquel
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dosage.85
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AR 587, 589.
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AR 584.
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AR 579. Treatment records reflect separate visits with other medical professionals (such as a
registered nurse) on the same schedule (and sometimes more) as the appointments with Dr. Edwalds.
See, e.g., AR 604–16. Overall, the records show visits from January 2011 to July 2013. AR 524, 780.
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AR 668.
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Id.
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Id.
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AR 665.
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Id.
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Id.
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Id.
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AR 667.
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Id.
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ORDER – No. 17-cv-03437-LB
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On July 19, 2012, C. Amen, a senior resident nurse (“SRN”), performed the initial interview
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and observed in the progress notes that Mr. Lennon had an attitude, was angry, showed decreased
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weight, and was not in a receptive mood.86 Dr. Edwalds noted that Mr. Lennon was sullen and
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irritable and that he reported that he was feeling better with the increased dosage of Seroquel.87
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Mr. Lennon reported “[l]ots of stress” including a temporary and unpleasant roommate staying
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with his father and the possibility that Mr. Lennon’s father might relocate to Santa Rosa for
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work.88 In her mental-status exam, Dr. Edwalds checked — among other boxes — uncooperative
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for behavior and angry and irritable for mood.89 Dr. Edwalds assigned Mr. Lennon a GAF of 41.90
On October 9, 2012, Mr. Lennon reported to Dr. Edwalds that his father had moved out, and
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he was adjusting well to living on his own.91 Dr. Edwalds noted in her “response to medications”
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report that Mr. Lennon’s psychiatric condition was improving.92
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Dr. Edwalds saw Mr. Lennon on December 11, 2012.93 SRN C. Amen performed the initial
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interview and noted that Mr. Lennon was working odd jobs, had gained weight, was sleeping fine,
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and was cooperative though evasive when answering his mood assessment.94 Mr. Lennon was not
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interested in counseling options.95 Dr. Edwalds spoke with Mr. Lennon’s mother, who reported
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that her son did well on Abilify in the past; Dr. Edwalds added that prescription and continued the
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Seroquel prescription.96 She noted that Mr. Lennon was using marijuana daily, up to every 20
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AR 664.
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AR 661.
88
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Id.
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AR 661–62.
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90
AR 663.
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AR 658.
92
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AR 659.
93
AR 653.
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94
AR 656.
95
AR 653.
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AR 653, 655.
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ORDER – No. 17-cv-03437-LB
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minutes, and her mental-status exam noted that he smelled like marijuana during the meeting.97
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Her Axis I diagnoses was Impulse Control Disorder, Bipolar Disorder, and Cannabis Dependence,
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and in her Axis IV diagnosis Dr. Edwalds noted that Mr. Lennon had “problems related to social
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environment” and was “anxious in crowds.”98
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Mr. Lennon spoke with SRN C. Amen on February 4, 2013 and stated that he needed a refill
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for his Seroquel and Abilify.99 The SRN noted in the report that Mr. Lennon did not appear to be
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compliant.100 The SRN spoke with Dr. Edwalds, who authorized a one-time refill.101
Dr. Edwalds saw Mr. Lennon on March 7, 2013.102 Mr. Lennon reported that his medications
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were working well.103 Mr. Lennon also reported that he had a new girlfriend, was feeling better
with Abilify, and was no longer breaking things or losing his temper as easily.104
On July 9, 2013, Mr. Lennon reported that he was having problems managing his anger105 and
United States District Court
Northern District of California
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was managing to stay active by riding his bike and helping his uncle with yard work.106 Dr.
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Edwalds assigned Mr. Lennon a GAF of 46.107 Her Axis I diagnoses remained Impulse Control
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Disorder, Bipolar Disorder, and Cannabis Dependence.108 Her Axis IV notes reflected that Mr.
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Lennon was “living in poverty.”109
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97
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AR 653.
98
AR 655.
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99
AR 785.
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Id.
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Id.
102
AR 781.
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103
AR 784.
104
AR 781.
105
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AR 777.
106
Id.
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107
AR 779.
108
AR 783.
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Id.
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ORDER – No. 17-cv-03437-LB
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2.1.4
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Sonoma County Department of Health Services, Mental Health Division —
Treating
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Mr. Lennon moved back to Sonoma County in June 2015 and resumed treatment through the
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County.110 Accompanied by his mother, Mr. Lennon had an assessment interview on June 15,
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2015 with Elizabeth Ehrmann-Subia, LMFT, and Mary Killian, LMFT.111 He reported that he was
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couch-surfing with friends and periodically staying with his mother.112 “He present[ed] as
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extremely agitated and uncooperative, and both he and his mom agree that this is his baseline.”113
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Mr. Lennon declined referrals to counseling and the Department of Rehabilitation.114 The
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assessment reflects his reporting of his present symptoms, including lack of motivation,
indecisiveness, racing thoughts, impulsivity, difficulty sleeping, and anxiety symptoms such as
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Northern District of California
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excessive worrying, feeling easily tired, difficulty concentrating, irritability, and outbursts of
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anger.115 He reported disliking people, anger, and frustration, and his resulting tendency to isolate
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himself.116 His mother reported that he began drinking alcohol and smoking marijuana at age 16,
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and Mr. Lennon reported he used nitris (but was unsure when he did or when he last used it), and
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tried methamphetamine at age 20.117 His mother reported the family’s history of mental-health
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issues, including alcoholism on both sides, the recent ending of Mr. Lennon’s almost-two-year
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relationship, the recent deaths of Mr. Lennon’s friends, his daily use of marijuana, and his interest
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in building things and working on machines.118 When the interviewers asked about work, Mr.
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Lennon reported that he was interested in working but did not want to have a boss, and he believed
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AR 822.
111
Id.
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112
Id.
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Id.
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Id.
115
Id.
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116
Id.
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AR 823.
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AR 823–24.
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ORDER – No. 17-cv-03437-LB
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that no one would hire someone without an education or work experience.119 The assessment
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reflected his diagnoses of Bipolar Disorder (since his youth), Impulse Control Disorder, and
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Cannabis Dependence (with heavy, daily use and withdrawal symptoms when not using).120 It
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documents his medications.121 It summarizes his records beginning as a child, including in the
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time periods 2010 and 2011.122 The report concludes, “Client was angry and guarded. Client had
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so much difficulty completing the assessment that his mother had to answer questions for him with
7
the stipulation that he make corrections if the information shared was inaccurate.”123
Mr. Lennon was referred to Ari Harrison, M.D., a board-certified psychiatrist. Dr. Harrison
9
saw him on July 13, 2015.124 Dr. Harrison’s report documented Mr. Lennon’s medical history,
10
diagnoses, and medications.125 He described his appearance: “yelling, angry self serving with
11
United States District Court
Northern District of California
8
intense affect.” 126 The diagnosis section reads: “mood do nos,” “self reports bipolar,” “self reports
12
adhd,” “thc use d/o,” and “pd nos”.127 The diagnosis section further states, “transitional age youth
13
with a life-long hostile temperament, insomnia, unhappy. Worse x years, but never in control.
14
numerous med trials — no clear efficacy.”128 It also reflects “thc active use” and “wanting only
15
meds at this time, but appears far more impaired and lacking resources.”129 Dr. Harrison
16
prescribed Seroquel and Clonidine.130
17
18
19
119
AR 824.
20
120
AR 823 (citing Humboldt County Records from 7/20/2014).
121
Id.
122
22
AR 835.
123
AR 831.
23
124
AR 835–36.
125
AR 835.
126
25
AR 836.
127
Id.
26
128
Id.
129
Id.
130
AR 837.
21
24
27
28
ORDER – No. 17-cv-03437-LB
14
On August 6, 2015, Dr. Harrison performed a full 90-minute evaluation of Mr. Lennon.131 The
1
evaluation referenced medical records from Humboldt County in 2014 and Sonoma County from
3
childhood and through 2010 and 2011.132 It also includes documentation of a full reporting of Mr.
4
Lennon’s mental-health history and treatment in Sonoma and Humboldt Counties.133 Mr. Lennon
5
reported that he never took the Clonidine, did not want new medications, was continuing the
6
Seroquel, was “doing a little better,” and was less irritable.134 Mr. Lennon’s mother reported that
7
there had been no outbursts for two weeks.135 Dr. Harrison noted that Mr. Lennon’s mood at the
8
evaluation was tired, irritable, and sullen, and he continued to display poor impulse control, but
9
relative to the last visit, he was improved.136 Dr. Harrison increased the dosage of Seroquel.137 Dr.
10
Harrison’s diagnoses were as follows: mood disorder; “self reports bipolar . . . [and] adhd;” THC
11
United States District Court
Northern District of California
2
use disorder, and a learning disorder.138 He lists treatment goals that include building rapport,
12
clarifying dx (which presumably means diagnosis), identifying the best rx (meaning, the best
13
prescription), focusing on harm reduction, including trying for sobriety and decreasing caffeine,
14
and tracking Kaiser labs.139
15
Dr. Harrison met with Mr. Lennon for 30 minutes on September 10, 2015.140 His progress
16
notes documented their interactions, including the following. Mr. Lennon felt calmer than he had
17
18
131
19
132
20
AR 840–41.
AR 842. The reference is to the years “200” to 2011 and includes specific references to 3/31/2010
and 8/27/2010. Id. From the context (including a reference to “kid”, “200” is a typographical error that
likely is 2000, which is the beginning of Mr. Lennon’s treatment with Dr. Leipsic. See supra.
133
AR 842.
134
22
AR 841.
135
AR 840–41.
23
136
AR 843.
137
AR 844.
138
25
AR 843.
139
AR 843–44.
26
140
21
24
27
28
AR 845. Other evaluations took place during the visits. For example, the practice included targeted
case management from Nadine Van Vraken Kemper, LCSW, on September 10, 2011, her subsequent
briefing of Dr. Harrison, and the plan for another visit and thereafter a stepdown to transition Mr.
Lennon to Kaiser. AR 849; cf. AR 848 (referencing Kaiser).
ORDER – No. 17-cv-03437-LB
15
1
in prior months but still declined “offer of any services other than to continue meds.”141 Dr.
2
Harrison’s diagnosis and charting of Mr. Lennon’s symptoms included earlier diagnoses but added
3
“bipolar nos” (omitting the qualifying “self-reported”).142 Dr. Harrison noted that Mr. Lennon was
4
less hostile on the higher dose of Seroquel but was still reactive and sullen with no goals.143 It was
5
unclear whether medication changes could improve Mr. Lennon’s situation.144
Dr. Harrison met with Mr. Lennon and his mother for 30 minutes on October 5, 2015.145 They
6
7
reported that Mr. Lennon had no outbursts since their last meeting, spent his time at home, and
8
avoided doing anything.146 Mr. Lennon again refused case management or therapy.147 Dr. Harris
9
noted that the diagnosis “was uncertain — appears most consistent with bipolar spectrum with
prior ODD and explosive temperament. [T]hc use present but almost certainly not causal.
11
United States District Court
Northern District of California
10
significant improvement [with] seroquel xr 600. unclear if med changes could improve
12
situation.”148 Because Mr. Lennon declined additional services, it was “hard to justify TAY
13
referral — which I think is otherwise clinically indicated. ? kaiser v. brookwood after next appt if
14
situation unchanged.”149 The diagnosis included Bipolar nos, THC use disorder, and a learning
15
disorder.150 Dr. Harrison noted that Mr. Lennon smelled of cannabis and was in an irritable
16
mood.151 The report concluded, “pt at anticipated baseline and unwilling to engage in any
17
[prescription] other than med management, despite [symptom] severity[;] we are left having to
18
19
141
AR 846.
142
AR 847.
143
22
Id.
144
AR 848.
23
145
AR 850.
146
Id.
147
25
Id.
148
Id.
26
149
Id.
150
AR 851.
151
Id.
20
21
24
27
28
ORDER – No. 17-cv-03437-LB
16
1
refer him back to Kaiser Psych.”152 Dr. Harrison said that he would make a six-week follow-up
2
appointment as a safety net to avoid having Mr. Lennon fall through the cracks “but then will
3
close once at kaiser.”153
Dr. Harrison prepared a medical-opinion statement dated October 12, 2015 that reflected a
4
start date for treatment of June 15, 2015 and the following diagnoses: Axis I: Bipolar NOS; and
6
Axis II: Personality Disorder NOS.154 He assigned a GAF of 51.155 He said that the impairment
7
would last at least twelve months, the patient was not a malingerer, and the patient was complaint
8
with treatment.156 Dr. Harrison identified the following diagnostically and clinically significant
9
signs and symptoms for his diagnoses of Bipolar Disorder, ADHD, and Intermittent Explosive
10
Disorder:157 (1) Bipolar Disorder: (a) Criteria for a Manic or Hypomanic Episode: irritability,
11
United States District Court
Northern District of California
5
distractibility, agitation, impulsiveness, restlessness, and mood disturbance severe enough to cause
12
noticeable difficulty at work, school, socially, or in relationships; and (b) Criteria for a Major
13
Depressive Episode: depressed mood, irritability, loss of interest or pleasure in all/most activities,
14
decreased ability to think or concentrate, restlessness or slowed behavior, feelings of
15
worthlessness or guilt, and mood disturbance severe enough to cause noticeable difficulty at work,
16
school, socially, or in relationships; (2) Criteria for ADHD: difficulty listening and/or following
17
instructions, difficulty completing tasks, impulsivity, and inappropriate comments or physical
18
gestures without regard for consequences; and (3) Criteria for Intermittent Explosive Disorder:
19
difficulty controlling impulses that lead to aggressive behavioral outbursts (either verbal or
20
behavioral), recurrent outbursts out of proportion to the magnitude of the stressor and without
21
22
23
152
AR 852.
153
25
Id.
154
AR 854.
26
155
Id.
156
Id.
157
Id.
24
27
28
ORDER – No. 17-cv-03437-LB
17
1
thought to consequences, rage or irritability, shouting, and outbursts that cause impairments in
2
functioning.158
For the impacts of the disability, Dr. Harrison checked the following: marked difficulties in
4
maintaining social functioning, marked difficulties in maintaining concentration, persistence, or
5
pace, and repeated episodes of decompensation, each of extended duration.159 He also checked the
6
alternative “Medically documented history of a chronic affective disorder of at least 2 years’
7
duration that has caused more than a minimal limitation of ability to do basic work activities, with
8
symptoms or signs currently attenuated by medication or psychosocial support, and one of the
9
following: . . . Repeated episodes of decompensation, each of extended duration.”160 The
10
assessment reflects Mr. Lennon’s prescribed Seroquel and answers “Yes” to the following
11
United States District Court
Northern District of California
3
questions: (1) does your patient use drugs or alcohol, (2) if so, would he still be disabled and
12
unable to work if he stopped using drugs or alcohol, and (3) are your patient’s mental limitations
13
the direct result of his mental illness.161
14
Dr. Harrison completed a residual-functional-capacity assessment and found the following
15
limitations in the following areas: (1) Understanding and Memory: a moderate limitation in the
16
ability to understand and remember detailed instructions and no limitation in the ability to
17
understand and remember very short and simple instructions; (2) Sustained Concentration and
18
Persistence: (a) extreme limitations in the ability to carry to carry out detailed instructions,
19
maintain attention and concentration for extended periods, sustain an ordinary routine without
20
special supervision, work in coordination with or proximity to others without being distracted by
21
them, and complete a normal workday and workweek without interruptions from psychologically
22
based symptoms and to perform at a consistent pace without an unreasonable number of and
23
length of rest periods; (b) a marked limitation in the ability to perform activities within a
24
schedule, maintain regular attendance, and function within customary tolerances; and (c) mild
25
26
27
28
158
AR 855–57.
159
AR 858.
160
Id.
161
Id.
ORDER – No. 17-cv-03437-LB
18
1
limitations in the ability to carry out short and simple instructions and make simple work-related
2
decisions; (3) Social Interaction: extreme limitations in the ability to interact with the general
3
public, ask simple questions or request assistance, accept instructions and respond appropriately to
4
criticism from supervisors, get along with co-workers or peers without distracting them or
5
exhibiting behavioral extremes, and maintain socially appropriate behavior and adhere to basic
6
standards of neatness and cleanliness; and (4) Adaptation: (a) an extreme limitation in the ability
7
to tolerate normal levels of stress; (b) a marked limitation in the ability to respond appropriately to
8
changes in the work setting; (c) a moderate limitation in the ability to travel to unfamiliar places or
9
use public transportation, and (d) a mild limitation in the ability to be aware of normal hazards and
10
take appropriate precautions.162
United States District Court
Northern District of California
11
Dr. Harrison’s assessment was that Mr. Lennon would miss all days of work each month
12
because of his mental impairment or for treatment of the mental impairment.163 In response to the
13
question, “Do you believe the patient can manage his own funds?”, Dr. Harrison answered “No”
14
and explained, “Too irritable, no skills.”164
15
2.1.5
Kaiser Records — Treating
Mr. Lennon transferred back to Kaiser from Sonoma County services in November 2015.165
16
17
On December 1, 2015, he saw Christine Bilbrey, M.D., a psychiatrist.166 Her report noted his
18
refusal for treatment other than medications, documented his prior medical history, identified his
19
daily marijuana use (and his refusal to cut it back), reviewed his family history, reviewed his
20
“systems” (such as cardiovascular, gastrointestinal, musculoskeletal, and neurologic systems,
21
among others), documented her mental-status exam, discussed his lab results and other diagnostic
22
studies, and documented her assessment and diagnosis.167 She diagnosed Mr. Lennon with Bipolar
23
162
AR 859–61.
163
25
AR 861.
164
Id.
26
165
AR 876.
166
AR 879.
167
AR 880–82.
24
27
28
ORDER – No. 17-cv-03437-LB
19
1
Disorder type I and continued his medication (albeit under a different brand name).168 Mr. Lennon
2
refused any other treatments, including a baseline EKG.169 Mr. Lennon reported that he was doing
3
well on Seroquel compared to past medications.170 Mr. Lennon and his mother reported that his
4
mood was much steadier and more stable following the increased Seroquel dosage that Dr.
5
Harrison prescribed.171 Dr. Bilbrey noted in her progress notes that Mr. Lennon had a history of
6
“compulsive behaviors over the years with spending,” but that it had become more controlled
7
lately.172 Mr. Lennon reported that his overall mood and energy were better as of late and that he
8
was sleeping well.173 Dr. Bilbrey observed that Mr. Lennon became more irritable with
9
questioning and could not complete his psychological history, but she also was able to redirect his
irritability (such that he was smiling by the end of the interview).174 Mr. Lennon’s attention and
11
United States District Court
Northern District of California
10
concentration were intact.175 She scheduled once-a-month follow-up appointments and gave
12
contact numbers for the clinic so that Mr. Lennon and his mother could call for earlier
13
appointments “as needed.”176
Mr. Lennon met again with Dr. Bilbrey on January 6, 2016.177 Mr. Lennon and his mother
14
15
reported that his mood was more stable since the last visit, and he reported that he had no major
16
mood swings lately, other than intense anxiety that would come on suddenly.178 Dr. Bilbrey noted
17
that Mr. Lennon had a longstanding poor frustration tolerance.179 Mr. Lennon reported feeling
18
19
168
AR 882.
20
169
Id.
170
AR 880.
171
22
Id.
172
Id.
23
173
Id.
174
AR 881.
175
25
Id.
176
AR 882.
26
177
AR 888.
178
Id.
179
Id.
21
24
27
28
ORDER – No. 17-cv-03437-LB
20
1
tired when he took Seroquel, which allowed him to sleep.180 Mr. Lennon was not interested in
2
other treatment options or support at the time, and he raised his voice when the doctor
3
recommended an EKG.181 Dr. Bilbrey noted that Mr. Lennon’s insight and judgment were
4
chronically impaired.182
5
Mr. Lennon met with Dr. Bilbrey on March 23, 2016; Dr. Bilbrey noted his mood was
6
relatively steady.183 Dr. Bilbrey observed that he seemed calmer during the session because he
7
showed no major outbursts and raised his voice only once.184 Mr. Lennon claimed to have a verbal
8
altercation with a neighbor because Mr. Lennon believed the neighbor was monitoring him with a
9
cell phone.185 Dr. Bilbrey thought that this was not a psychotic episode and that the neighbor was
10
really trying to film Mr. Lennon.186
United States District Court
Northern District of California
11
2.1.6
Richard Palmer, Ph.D. — Examining
12
Richard Palmer, Ph.D., a licensed psychologist, performed a psychiatric evaluation of Mr.
13
Lennon on November 28, 2011.187 His evaluation contains his general observations (including Mr.
14
Lennon’s friendly manner, good eye contact, and depressed facial expression),188 Mr. Lennon’s
15
chief complaints (including ADHD, lack of focus, hyperactivity, impulsivity, irritability in
16
crowds, and distractibility), and Mr. Lennon’s reporting regarding the following categories:
17
medication history (and current medication of Seroquel to sleep and focus), psychiatric history,
18
drug and alcohol use (cannabis use since age 16, used that morning, and reported as medicinal),
19
family history of mental illness (reported as none), medical history, family and social history
20
21
22
23
24
180
Id.
181
AR 888–89.
182
AR 889.
183
AR 898. Kaiser records show other records by providers such as Julie Mercer, MA, regarding
prescriptions. AR 894.
184
25
AR 898.
185
Id.
26
186
Id.
187
AR 545.
188
Id.
27
28
ORDER – No. 17-cv-03437-LB
21
1
(including his girlfriend’s dumping him the past Saturday and his couch-surfing and homeless
2
status), educational history (through 10th grade), employment history, stressors, and his level of
3
functioning (independent for basic activities of living, no help needed with meals, and able to
4
manage finances).189 The evaluation also reflects Dr. Palmer’s mental-status examination,
5
diagnosis, and functional assessment.190
Dr. Palmer’s mental-status exam, among other things, noted Mr. Lennon’s appearance
6
(including good grooming), cooperative attitude, good eye contact, alert and fully oriented status,
8
intact intelligence, adequate attention, good concentration, good calculation, good memory, intact
9
ability to abstract, poor judgment, more insight, labile mood, logical and sequential thought
10
process, and unremarkable thought process.191 Dr. Palmer’s Axis I diagnosis was Attention
11
United States District Court
Northern District of California
7
Deficit/Hyperactivity Disorder and Intermittent Explosive Disorder, and his Axis IV diagnosis
12
noted the following: “Problems related to: Coping with psychological condition; unable to work;
13
homeless; financial hardship.”192 He assigned a GAF of 50.193
Dr. Palmer’s functional assessment was as follows:
14
Based on the results of the requested mental status exam and clinical interview,
including personal history and accompanying documents, it is my opinion that from
a psychological standpoint alone, the following statements reasonably reflect Mr.
Lennon’s abilities:
15
16
17
Given the assessment and diagnosis, Mr. Lennon currently:
18
Is questionably capable of managing funds as evidenced by a history of
impulsivity and poor decision making.
Is able to adequately perform one or two step simple repetitive tasks and is
able to adequately perform complex tasks as there are no noted intellectual
impairments at this time.
Has a poor ability to accept instructions from supervisors and interact with
coworkers and the public. There are significant social impairments at this
time.
19
20
21
22
23
24
25
26
27
28
189
AR 546–47.
190
AR 547–50.
191
AR 547–48
192
AR 548.
193
AR 549.
ORDER – No. 17-cv-03437-LB
22
Is able to perform work activities on a consistent basis without special or
additional instructions as there are no noted intellectual impairments at this
time.
Has a poor ability to maintain regular attendance in the workplace as mental
health symptoms will impact attendance.
Has a poor ability to complete a normal workday or workweek without
interruptions from a psychiatric condition as mental health symptoms will
impact attendance.
1
Has a poor ability to handle normal work related stress from a competitive
work environment. Mental health symptoms will impact Mr. Lennon’s ability
to handle work related stress.
2
3
4
5
6
7
8
Given Mr. Lennon’s psychiatric and treatment history and results of this evaluation,
it appears that the mental health symptoms are chronic in nature. Given the current
diagnosis and past mental health involvement, it appears that Mr. Lennon’s current
mental health condition may not abate on its own within a one year period. Mr.
Lennon may benefit from starting therapy and starting psychiatric medication to
address and manage current mental health symptoms. Overall Mr. Lennon’s
prognosis is guarded.194
9
10
United States District Court
Northern District of California
11
12
2.1.7
13
Herbert Tanenhaus, M.D. — Examining
14
Herbert Tanenhaus, M.D., examined Mr. Lennon on May 1, 2013.195 His evaluation contains
15
his general observations (including Mr. Lennon’s unkempt appearance, entering the interview with
16
“an attitude,”196 and increasing cooperativeness as the interview progressed), Mr. Lennon’s chief
17
complaints (anger and lack of trust), his prior diagnoses, his medical history (including being
18
beaten into unconsciousness a year ago, resulting slower thinking197), his medication (Seroquel
19
and Abilify, and his report that without his medication, “he punches walls”), his activities of daily
20
living (lives in a shack with cooking facilities, heat, and water, prepares his own food, keeps the
21
place clean, shops and showers every other day, and spends long periods of time in bed with his
22
thoughts racing), his education and work history (including his being in special education, his
23
24
194
Id.
25
195
AR 763. Mr. Lennon’s father accompanied him. AR 765.
196
AR 766 (emphasis in original).
26
27
28
197
This incident is reflected in the record at AR 680–84 and shows that Mr. Lennon was punched in
the face and received sutures. Victor Wallenkampf, M.D., treated Mr. Lennon’s wounds and concluded
that no head CT was necessary because Mr. Lennon was neurologically intact.
ORDER – No. 17-cv-03437-LB
23
1
desire to become a mechanic, and trimming of marijuana during the two-month season), and his
2
use of marijuana (described by Mr. Lennon as daily use and medicinal).198
Dr. Tanenhaus’s mental-status examination reflects the following: (1) Mr. Lennon’s reported
3
4
depressed mood and score of 38 on the Beck Inventory of Depression, warranting considering
5
treatment with antidepressants; and (2) Mr. Lennon’s cognition (alert and oriented, correct
6
responses, recall after five minutes, adequate fund of information, and average intelligence).199 He
7
diagnosed Mr. Lennon as follows: Axis 1 (Mood Disorder; “I did not elicit a history of bipolar
8
disorder”); and Axis II (Intermittent Explosive Disorder by history and reasonably controlled with
9
medications) and ADHD.200
His diagnosis also stated the following:
10
His activities of daily living were unimpaired by his history.
United States District Court
Northern District of California
11
He had no significant difficulty registering, understanding, recalling, and executing
complicated constructions. However, he was unwilling to discuss certain areas of
his life, when requested, as well as refusing to attempt to arithmetic problems.
12
13
His work history of trimming marijuana suggested a reasonable degree of
competence in dealing with coworkers and with accepting supervision. However,
his almost global mistrust of others suggested that he was capable of only limited
contact with coworkers or with the public. He did not describe difficulty being in
public when he shops.
14
15
16
18
In judging his impairments with concentration, persistence, and pace, his daily
activities suggested some impairment in this area of functioning, perhaps due to
lack of motivation, to work regularly.
19
Mr. Lennon is competent to manage his funds.
20
Please note that this report of my psychiatric evaluation of Travis Lennon was
based on a single interview. It should be considered as supplemental to other
health information available to the division of disability determinations, which will
make the final decision about the applicant’s capacity for gainful employment
based on their guidelines. 201
17
21
22
23
24
25
198
AR 764–65.
26
199
AR 766–67.
200
AR 767.
201
Id. (emphasis in original).
27
28
ORDER – No. 17-cv-03437-LB
24
2.2
1
2
Other Records
2.2.1
David Lennon (Father) — Report
In October 2011, David Lennon submitted a “Third Party Function Report” that discussed Mr.
3
4
Lennon’s health conditions.202 Mr. Lennon was living in a homeless camp at the time.203 In
5
describing Mr. Lennon’s daily activities, David Lennon stated that Mr. Lennon would shower,
6
play video games, and head out to see friends.204 Mr. Lennon’s condition affected his sleep, and
7
Mr. Lennon needed reminders to maintain dental hygiene and take his medications.205 Mr. Lennon
8
sometimes had no appetite, and David Lennon would have to make sure that Mr. Lennon did not
9
burn his frozen meals.206 In response to the question, “[i]f the disabled person doesn’t do house or
yard work explain why not,” David Lennon answered, “[c]an not stay focused more than an
11
United States District Court
Northern District of California
10
hour.”207 David Lennon reported that Mr. Lennon did not drive because “he won’t study the
12
written test,” Mr. Lennon could leave the house on his own, Mr. Lennon did not shop often
13
because he did not do well in crowds, and Mr. Lennon had no income.208
There were no places that Mr. Lennon went on a regular basis, and Mr. Lennon would
14
15
sometimes need someone to accompany him to doctor appointments.209 Mr. Lennon had problems
16
getting along with others, and David Lennon gave the following examples: “he and his sister don’t
17
get along,” and “if he makes a friend it will end in two or three months.”210 In the “Information
18
About Abilities” section, David Lennon indicated that Mr. Lennon’s condition affected the
19
following categories: memory, completing tasks, concentration, understanding, following
20
21
202
22
AR 360–67.
203
AR 367.
23
204
Id.
205
AR 365.
206
25
Id.
207
AR 364.
26
208
Id.
209
AR 363.
210
AR 362.
24
27
28
ORDER – No. 17-cv-03437-LB
25
1
instructions, and getting along with others.211 Mr. Lennon could pay attention for “one or two
2
hours,” did not finish things he started, did not follow written instructions, and had a “fair” ability
3
to follow spoken instructions.212 David Lennon reported that Mr. Lennon had never had a job and
4
did not handle changes in routine well, and that he had not noticed any unusual behavior or fears
5
in Mr. Lennon.213 In response to the question “[h]ow well does the disabled person handle
6
stress?,” David Lennon answered, “[n]ot well at all he will cry or go into a sleep mode.”214
7
2.2.2
In describing Mr. Lennon’s childhood, Mr. Lennon’s parents wrote:
8
9
By age 5 we had taken Travis to a doctor because of his behavior — he had
horrendous tantrums, he couldn’t sit still or do what he was told. We needed to get
him help. He was diagnosed with Attention Deficit Hyperactivity Disorder
(ADHD) and put on Ritalin.
10
11
United States District Court
Northern District of California
Declaration of Michelle Lengjel and David Lennon
By the 2nd Grade his medical care was transferred to a specialist, Dr. Leipsic, M.D.
who treated Travis until age 18. At age 7, Dr. Leipsic diagnosed Travis with
commencing Bipolar Disorder and ADHD. Even with medication and the care of
specialists, he struggled daily and required our constant attention.
12
13
14
At school he was frequently pulled out of classes and sent to the principal’s office
because of his disruptive behavior. At home, his tantrums included him pounding
his head against walls and floors with great force, requiring us to physically restrain
him in very tight “bear hugs.” Even as a small child he didn’t sleep at night and
was constantly into things. We had to lock all interior and exterior doors at the top
where he couldn’t reach.
15
16
17
Travis changed schools 3 times until he ended up at North Valley School which
provided a therapeutic setting. There was a significant individualized attention for
each student and they were allowed to physically restrain kids — which was a
weekly occurrence for Travis.
18
19
20
Unable to meet the demands of high school because of his mental illness and with
no support from Humboldt County services, Travis dropped out of school by age
17. His illness and life have not improved since.215
21
Mr. Lennon’s parents described Mr. Lennon’s adulthood as follows:
22
23
24
25
26
27
28
211
Id.
212
Id.
213
AR 361.
214
Id.
215
AR 402.
ORDER – No. 17-cv-03437-LB
26
Travis is still highly volatile and quick to get upset about the simplest things. He
has a tantrum at least once a day that lasts 20-30 minutes. These tantrums will
happen when he can’t find something, something of his is moved, the family dog
bothers him or the doctor’s office calls to schedule an appointment. In seconds he
will start screaming, yelling and throwing things. There is no way to reach him or
reason with him. When it’s over he can’t stay awake — he passes out. It’s like his
body goes into complete overload.
1
2
3
4
At least once a month Travis has tantrums that we call “episodes” because they are
more intense and severe than his daily tantrums. His episodes have caused our
neighbors to call the police 3 times since he moved back home in June. The most
recent episode was triggered by me, his mom, turning off the TV believing he was
done using it. Travis immediately began jumping up and down on his bed,
screaming, throwing stuff against the wall and pounding his fists on the walls and
yelling “stay away from me, don't come near me.” He went downstairs and starting
pacing and rubbing his head saying, “make it stop, make it stop.” Eventually I got
him in a bear hug, he calmed down and instantly fell asleep.
5
6
7
8
9
Travis is also deeply depressed all the time and multiple times a year he gets even
more depressed and suicidal. Travis’[s] mood is never up, you’d never think of him
as a happy person. And when he gets really depressed he feels deeply lonely. He’ll
ask himself, “why am I even here?” About a year ago, his sister was so concerned
that she called the police to check on him when he was living in Humboldt County.
We have both blocked his Face book on occasion because of the constant
depressive thoughts and talk of suicide.216
10
United States District Court
Northern District of California
11
12
13
Mr. Lennon’s parents described his medications and side effects as follows:
14
Travis is terrified to go without his mediations. As the date of refill approaches his
anxiety skyrockets — he’s scared he'll run out of meds even though a refill requires
just a phone call.
15
16
The most significant side effect we’ve seen is from the antipsychotic, Seroquel,
which he's been on since the 4th or 5th grade. It makes waking up nearly
impossible. It's hard for him to get up and then he's in a “fog” for about 1 to 2 hours
— he can't really think or talk.
17
18
19
Travis also takes medical marijuana daily and we have seen how essential it is to
his wellbeing. We have witnessed all of the following benefits: calmer/more
relaxed, improved mood, and reduced anxiety. It is also essential to helping him
sleep and improving his appetite. Without it his Bipolar Disorder is noticeably
worse.
20
21
22
The medications help to stabilize Travis so that the highs and lows aren't as
extreme but they have not, in any way, allowed him to live an even remotely
normal or functional life.217
23
Mr. Lennon’s parents described his concentration and focus as follows:
24
25
Ever since Travis was a baby he could not concentrate well or follow directions.
And to make it worse, when he gets frustrated or confused he is immediately
26
27
28
216
AR 403.
217
Id.
ORDER – No. 17-cv-03437-LB
27
overwhelmed and has to walk away. Once overwhelmed and frustrated, he’ll
almost never return to that task or topic, he’ll abandon it completely or for months
at a time.
1
2
We ask him to complete simple, household tasks like taking out the garbage, but,
even with prompting he’ll fail to complete it or forget all together. He can only stay
on task for 15-20 minutes before getting distracted or needing to take a long break
We have tried to get him working on a few occasions, but he never made it through
even one day.
3
4
5
We’ve also noticed that he takes a long time to understand and process new
information. He needs everything explained slowly and step by step. We recently
had to fill out a release form and every detail had to be explained before he would
sign it — this took 30 minutes.218
6
7
8
2.3
9
Mr. Lennon’s Testimony
2.3.1
10
March 22, 2013 Hearing
Mr. Lennon testified at the March 22, 2013 hearing before ALJ Maxine Benmour.219 His last
United States District Court
Northern District of California
11
job was working in a school cafeteria around 2006.220 Mr. Lennon testified that he dropped out of
12
school because he was homeless, and school was “hard to do while being homeless.”221 Starting in
13
second grade, Mr. Lennon was in special education at school. 222 Mr. Lennon believed he was in
14
special education “[b]ecause I was a bipolar child who blew up a lot and I needed — they needed
15
to hold me down sometimes because of it.”223 Mr. Lennon later testified that this meant “[t]wo
16
staff one on each arm and leg” and that this had happened since he was in the third grade.224 Mr.
17
Lennon was taking Seroquel and Abilify at the time of the hearing, but testified that the
18
medication “helps but I still blow — I tend to blow up.”225 He explained that when he blows up: “I
19
throw stuff. I punch walls. I can’t control myself. I yell a lot.”226 Mr. Lennon had been living on
20
21
22
218
AR 404.
219
AR 47. The court summarizes Mr. Lennon’s testimony at the March 22, 2013 hearing because ALJ
Kwon said that she would review all the evidence in the record. See AR 96.
220
AR 47.
221
AR 48.
222
25
Id.
223
Id.
26
224
AR 63–64.
225
AR 50.
226
AR 51.
23
24
27
28
ORDER – No. 17-cv-03437-LB
28
1
his own for six months in Fortuna.227 He testified that his episodes of throwing things and
2
punching walls were better when he was alone.228 Mr. Lennon believed that his “blow outs” had
3
caused the recent end of a relationship, and that he would “flip out” around his friends which had
4
led to fighting with them physically.229
5
Mr. Lennon had tried to find a job repairing dirt bikes, but he had been asked by stores if he
6
had certifications, and he was not sure if he could get a certification because he did not know if he
7
could put his mind to it.230 He testified that he would spend his time helping out his “other Mom,”
8
riding his bike, and listening to music.231
2.3.1
9
August 2, 2013 Hearing
Mr. Lennon testified at a supplemental hearing before ALJ Maxine Benmour on August 2,
10
United States District Court
Northern District of California
11
2013 in San Rafael, California.232 Mr. Lennon testified that he had never had a job grooming
12
marijuana plants and said he used marijuana daily to help him calm down, sleep, and to “help[] me
13
to keep from exploding.”233
14
2.3.2
July 11, 2016 Hearing
At the hearing before ALJ Kwon, in response to the ALJ’s questioning, Mr. Lennon testified
15
16
as follows. He was living with his mother, and he previously lived with his father for about a year
17
or two in Humboldt County, stayed up there another five years, moved back, and moved in with
18
his mother roughly a year and a half ago.234 He left Humboldt because he was unsatisfied with the
19
medical services he was receiving but he thought the services were tenfold better in Sonoma
20
21
22
227
AR 52.
23
228
AR 53.
229
AR 54–55.
230
25
AR 56–57.
231
AR 60–61.
26
232
AR 73.
233
AR 81–82.
234
AR 99–100.
24
27
28
ORDER – No. 17-cv-03437-LB
29
1
County.235 For the five years he lived in Humboldt County, he had his own place, but his parents
2
paid the rent.236 He was in special-education classes his entire life, went through 12th grade, and
3
never graduated.237 He was not confident in his reading abilities, believed he read at a 5th grade
4
level, did not know math, and failed his driver’s license test (apparently because he could not
5
read).238 He was seeing a mental-health specialist once a month (and had been for five months) for
6
medications, had cognitive behavioral therapy as a child but not after age 18 because it did not
7
help, and took Seroquel every day because it controlled his bipolar disorder (with symptoms that
8
he described as explosions) and without it, he was unable to sleep.239 He was uninterested in
9
college courses, even as a hobby, because he was not able to graduate from high school, was
horrible with books, and could last only five or ten minutes before flipping out because he could
11
United States District Court
Northern District of California
10
not handle being in public in general, and hid inside all day long.240
In a normal day, he did “[n]othing really, just lay there and do something and then if I do come
12
13
across a task it don’t last that long and it takes me pretty much the whole day to a week to
14
finish.”241 He was able to feed himself (through microwaving, but he did not cook) and could
15
dress and care for himself (although he sometimes went a week without showering because he
16
found the whole world overwhelming and could not find the energy to shower).242 He sometimes
17
stayed in bed for a week.243 He had one friend but never left his home for more than thirty minutes
18
because his social anxiety and big crowds of people overwhelmed him.244 His prescribed
19
marijuana helped his anxiety, and he smoked it five to six times a day, depending on how stressful
20
235
Id.
236
22
AR 100.
237
AR 101.
23
238
AR 102.
239
AR 104.
240
25
AR 103–05.
241
AR 106.
26
242
Id.
243
AR 106–07.
244
AR 108.
21
24
27
28
ORDER – No. 17-cv-03437-LB
30
1
the day was, but it did not allow him to leave the house but kept him from “slamming stuff and
2
punching holes in the walls and stuff like that.”245 He was not able to take public transportation
3
because it put him close to too many people; his mother drives him.246
For hobbies, Mr. Lennon liked working on motors (such as gas scooters and small motors) but
4
5
lately had not because he had no energy.247 His last job was a year and a half ago, through his
6
father, who got him a job digging post holes, but he lasted only one day on the job,248 flipping out
7
because he was overwhelmed, felt pressured, and could not stay still for too long.249 He generally
8
did not shop but did previously (apparently in Humboldt, when he could walk to Safeway) at off
9
hours such as 2:00 a.m., but sometimes it would take him three days to “prep” himself to go out
10
shopping.250 When he had a computer in the past, he sometimes would check Facebook.251
In response to questioning by his attorney, Mr. Lennon testified as follows. He flipped out or
United States District Court
Northern District of California
11
12
had an outburst “any day. It could be every day.”252 At school, they restrained him physically
13
when he had an outburst, but he had learned to remove himself from a situation and walk away.253
14
His cool-down period could sometimes take all day.254 His bipolar disorder affected his sleep, he
15
had problems sleeping all of his life, and smoking marijuana helped with sleep.255 He woke up in a
16
fog each morning at around 11 a.m. or noon; the fog could last for a few hours up to all day, and it
17
made it very difficult to talk and think, and it “play[ed] into bipolar outbursts because I get
18
19
245
AR 109–10.
246
AR 111.
247
22
Id.
248
AR 111–12.
23
249
AR 112–13.
250
AR 114–15.
251
25
AR 115.
252
AR 118.
26
253
Id.
254
AR 119.
255
AR 119–20.
20
21
24
27
28
ORDER – No. 17-cv-03437-LB
31
1
frustrated because I don’t know how to express myself that well.”256 He took all day to clean the
2
house before his mother returned from vacation, and he could work on his scooter for roughly
3
twenty to thirty minutes before he needed to take a break.257
4
2.4
Michelle Lengjel (Mr. Lennon’s Mother) — Testimony
5
Michelle Lengjel — Mr. Lennon’s mother — testified at the July 11, 2016 hearing.258 In
6
response to the ALJ’s questions, she testified as follows. Travis lived with her for almost a year.259
7
He previously lived in a rented room (that she paid for) with his uncle in Humboldt County but his
8
uncle complained about his habits (including a dirty bathroom and kitchen and screaming inside
9
his room) and couldn’t take it anymore, so he moved back with her.260 Mr. Lennon could dress,
feed, and bathe himself.261 She occasionally took Mr. Lennon grocery shopping around midnight,
11
United States District Court
Northern District of California
10
and Mr. Lennon went shopping himself only once every month or two.262 Mr. Lennon has two
12
friends who come to the house.263 He worked on his Goped, a scooter with a motor on it, every
13
two or three weeks if it had problems.264 He saw a psychiatrist for medication and panics without
14
it because “he knows what he’ll be like if he doesn’t take his medication.”265 His medication was
15
Seroquel, and he used therapeutic oils and marijuana for anxiety, smoking three or four times a
16
day.266 She believed that Mr. Lennon’s marijuana use was helpful because it replaced the Abilify:
17
18
19
256
20
AR 120–21.
257
AR 121–22.
21
258
22
259
AR 124.
23
260
AR 124–27.
261
AR 127.
262
25
AR 128–29.
263
AR 129.
26
264
AR 130.
265
AR 133.
266
AR 133–34.
24
27
28
Ms. Lengjel also testified at the August 2, 2013; see AR 82–91. Her testimony was consistent with
her testimony at the July 11, 2016 hearing.
ORDER – No. 17-cv-03437-LB
32
1
“I’ve seen what he’s been like on Abilify and what he’s been like off the Abilify”.267 Marijuana
2
helped relax her son’s anxiety, tension, and panicking.268
Mr. Lennon spent his days listening to music or playing video games, and occasionally (“[n]ot
3
4
very often . . . because it gets him upset”), he checked Facebook on his smartphone.269 Ms.
5
Lengjel prepared Mr. Lennon weeks in advance for medical appointments to mitigate his anxiety,
6
using night tea among other efforts.270
In response to questioning by Mr. Lennon’s attorney, Ms. Lengjel testified as follows. Mr.
7
8
Lennon never had a therapist as an adult because he did not find them helpful as a child.271 She
9
remarked, “he’s gotten all the therapy he could possible get [from age five] . . . [s]hov[ed] down
his throat you might want to say.”272 By age three, Mr. Lennon was prescribed Ritalin, and by age
11
United States District Court
Northern District of California
10
eight, he was diagnosed with bipolar disorder and had been treated for it ever since.273 She was
12
worried that Mr. Lennon might hurt himself given his depression and the family history of bipolar
13
disorder.274
14
2.5
15
Jeffrey Malmouth, a vocational expert (“VE”), testified at the hearing on July 11, 2016 via
Vocational Expert Testimony — July 11, 2016 Hearing
16
telephone.281 The ALJ noted that Mr. Lennon had no SGA.282 The ALJ then posed the following
17
hypothetical to the VE:
18
267
AR 135.
268
20
AR 140.
269
AR 136.
21
270
AR 137.
271
AR 138–39.
272
23
AR 139.
273
AR 140–42.
24
274
AR 143.
281
AR 144.
19
22
25
26
27
28
282
AR 145. “SGA” stands for substantial gainful activity, which is a part of the first step in
determining disability. If the claimant has an SGA, then the claimant is “not disabled” and is not
entitled to benefits. If the claimant has no SGA, then the claimant case cannot be resolved at step one,
and the evaluation proceeds to step two, which looks to the severity of the claimant’s impairment. See
20 C.F.R. § 404.1520(a)(4)(i)-(ii).
ORDER – No. 17-cv-03437-LB
33
“[L]et’s assume we have an individual with the claimant’s age, education, and
background. Hypothetical individual does not have any restrictions from an
exertional standpoint but has the following non-exertional limitations. The job
should be limited to simple, routine tasks, equivalent to a maximum SVP of 2.
There should be no interaction with the general public in terms of the primary
duties of the job. There should be up to occasional interaction with the supervisor
and no team work projects with other co-workers, again, as part of the primary
duties of the job. I want to focus or narrow the range of jobs to those that an
individual can perform pretty much after a simple demonstration certainly within
30 days and is performed regularly on their own so something that doesn’t require
coordination with others and being around lots of people. Can you give me three
examples with numbers for California and the nation, please?”283
1
2
3
4
5
6
7
The VE replied:
8
“Yes . . . the first example I have would be an electrical accessories assembler. The
DOT code is 729.687-010. This is light with an SVP of 2. Nationally there are
approximately 37,000 jobs and in California approximately 4,400 jobs. A second
example is a mail sorter. The DOT code is 209.687-026. This is light with an SVP
of 2. Nationally there are approximately 50,000 jobs and statewide approximately
4,000 jobs. A third example is an inspector and hand packager. The DOT code is
559.687-074. Also light with an SVP of 2, nationally there are approximately
29,000 jobs and in California approximately 3,200 jobs. These are all light
exertional strength. I have medium if you’d like as well.”284
9
10
United States District Court
Northern District of California
11
12
13
The ALJ then posed a second hypothetical:
14
“I added to my first set of restrictions that the hypothetical individual would be off
task on a chronic basis. They are off task 25 percent of work time and this is
happening every single day beyond the probationary period and so forth. What does
that do to the representative three jobs and to competitive work in general?”285
15
16
17
The VE replied:
20
“Well, it would eliminate the three jobs that I discussed. It would also eliminate my
opinion on all other jobs. If the individual were off task fully 25 percent of the day
that means essentially that they would be unable to perform the essential functions
of any job two hours, 25 percent off task is equivalent to two hours a day or a day
in a quarter every week. I don’t believe that that would be tolerated by any
employer in a competitive labor market.”286
21
The ALJ then asked the VE if his testimony was consistent with the DOT. The VE replied:
22
In part, Your Honor. The part about no public interaction, occasional supervision
and no team work, that is based primarily on my experience. Also maybe to a lesser
degree it’s based on quantification of data, people, things in the DOT. With respect
to the second hypothetical, being off task to 25 percent I would analogize that to a
18
19
23
24
25
283
AR 145.
26
284
Id.
285
Id.
286
Id.
27
28
ORDER – No. 17-cv-03437-LB
34
level of absenteeism or to absenteeism on which there’s actually then labor market
surveys and in my opinion the amount of time off task would essentially equate to
almost five days a month that the individual would be unable to perform the
essential functions. For that particular piece of information I often turn to or rely on
a publication, the Journal of Forensic Vocational Analysis where this labor market
survey was published in support of my opinion on this particular issue.287
1
2
3
4
2.6
5
The ALJ followed the five-step sequential evaluation process to determine whether Mr.
6
Lennon was disabled and concluded he was not.288
At step one, the ALJ found that Mr. Lennon had not engaged in substantial gainful activity
7
8
Administrative Findings
since June 29, 2011.289
At step two, the ALJ found that Mr. Lennon had the following severe impairments: “bipolar
9
disorder, attention deficit hyperactivity disorder (ADHD), cannabis dependence, impulse control
11
United States District Court
Northern District of California
10
disorder, and intermittent explosive disorder.”290
At step three, the ALJ found that Mr. Lennon did not have an impairment or combination of
12
13
impairments that met or medically equaled the severity of one of the listed impairments.291 Mr.
14
Lennon’s mental impairments, both individually and combined, did not meet or medically equal
15
listings 12.04, 12.06, and 12.09.292 Mr. Lennon’s mental impairments also did not satisfy the
16
“paragraph B” criteria because the evidence did not show at least two marked functional
17
limitations or one marked limitation and repeated episodes of decompensation.293 Mr. Lennon had
18
only mild restrictions on activities of daily living (citing his activities of riding a bicycle, watching
19
television, going on Facebook, riding and repairing a scooter, doing laundry, caring for his
20
personal hygiene and grooming, and living alone in Humboldt County for a period of time that
21
22
287
AR 145–47.
288
AR 22–36.
289
25
AR 23.
290
Id.
26
291
AR 24.
292
Id.
293
AR 25.
23
24
27
28
ORDER – No. 17-cv-03437-LB
35
1
required him to be independent in shopping and cleaning).294 He had moderate difficulties with
2
social functioning (including disruptive and inappropriate behavior in school, emergency-room
3
records of injuries suffered in altercations, and issues with crowds, irritability, anger and
4
frustration) (but he also interacted with friends, girlfriends, and parents, showing some degree of
5
ability to socialize with others); he also had moderate difficulties with “concentration, persistence,
6
or pace.”295 Mr. Lennon’s mental impairments did not satisfy the “paragraph C” requirements
7
because the evidence did not show a history of chronic affective disorder that lasted at least two
8
years causing more than a minimal limitation of ability to do basic work activities.296 Mr.
9
Lennon’s impairments also lacked one of the following under “paragraph C”: (1) repeated
episodes of decompensation of extended duration; (2) a residual-disease process that has resulted
11
United States District Court
Northern District of California
10
in such marginal adjustment that even a minimal increase in mental demands or change in the
12
environment would be predicted to cause the individual to decompensate; or (3) a current history
13
of one or more years’ inability to function outside a highly supportive living arrangement.297
14
At step four, the ALJ determined that Mr. Lennon had the residual-functional capacity
15
(“RFC”) to perform a full range of work at all exertional levels, with the following nonexertional
16
limitations:
[H]e is limited to simple, repetitive tasks equivalent to unskilled work with a
maximum specific vocational preparation (SVP) of 2, no interaction with the
public, and no team work projects with coworkers that requires coordinating with
others; so that work is performed largely independently.298
17
18
19
The ALJ then found that Mr. Lennon had no past relevant work experience and proceeded to
20
21
step five.299
22
23
294
AR 24.
295
25
Id.
296
AR 25.
26
297
Id.
298
Id.
299
AR 34–35.
24
27
28
ORDER – No. 17-cv-03437-LB
36
At step five, the ALJ determined that, given Mr. Lennon’s RFC, a significant number of jobs
1
2
existed in the national economy that he could perform.300 The ALJ concluded that Mr. Lennon was
3
not disabled.301
ANALYSIS
4
5
1. Standard of Review
Under 42 U.S.C. § 405(g), district courts have jurisdiction to review any final decision of the
6
7
Commissioner if the claimant initiates a suit within sixty days of the decision. A court may set
8
aside the Commissioner’s denial of benefits only if the ALJ’s “findings are based on legal error or
9
are not supported by substantial evidence in the record as a whole.” Vasquez v. Astrue, 572 F.3d
586, 591 (9th Cir. 2009) (internal citation and quotation marks omitted); 42 U.S.C. § 405(g).
11
United States District Court
Northern District of California
10
“Substantial evidence means more than a mere scintilla but less than a preponderance; it is such
12
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
13
Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). The reviewing court should uphold “such
14
inferences and conclusions as the [Commissioner] may reasonably draw from the evidence.” Mark
15
v. Celebrezze, 348 F.2d 289, 293 (9th Cir. 1965). If the evidence in the administrative record
16
supports the ALJ’s decision and a different outcome, the court must defer to the ALJ’s decision
17
and may not substitute its own decision. Tackett v. Apfel, 180 F.3d 1094, 1097–98 (9th Cir. 1999).
18
“Finally, [a court] may not reverse an ALJ’s decision on account of an error that is harmless.”
19
Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012).
20
21
2. Applicable Law
22
A claimant is considered disabled if (1) he or she suffers from a “medically determinable
23
physical or mental impairment which can be expected to result in death or which has lasted or can
24
be expected to last for a continuous period of not less than twelve months,” and (2) the
25
“impairment or impairments are of such severity that he or she is not only unable to do his
26
27
28
300
AR 35.
301
AR 36.
ORDER – No. 17-cv-03437-LB
37
1
previous work but cannot, considering his age, education, and work experience, engage in any
2
other kind of substantial gainful work which exists in the national economy. . . .” 42 U.S.C. §
3
1382c(a)(3)(A) & (B). The five-step analysis for determining whether a claimant is disabled
4
within the meaning of the Social Security Act is as follows. Tackett, 180 F.3d at 1098 (citing 20
5
C.F.R. § 404.1520).
6
7
8
9
10
United States District Court
Northern District of California
11
12
13
14
15
16
17
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).
22
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.
23
For steps one through four, the burden of proof is on the claimant. At step five, the burden
18
19
20
21
24
shifts to the Commissioner. Gonzales v. Sec’y of Health & Human Servs., 784 F.2d 1417, 1419
25
(9th Cir. 1986).
26
27
28
ORDER – No. 17-cv-03437-LB
38
1
3. Application
Mr. Lennon contends that the ALJ erred at step five in determining his RFC because (1) the
2
3
ALJ posed a hypothetical question to the VE that omitted the ALJ’s limitations regarding his
4
interactions with the public and co-workers, (2) the ALJ did not follow the Appeals Council’s
5
directive to ensure that the VE’s testimony was consistent with the Selected Characteristics of
6
Occupations (“SCO”) (in addition to the Dictionary of Occupational Titles (“DOT”)), and (3) the
7
ALJ erred by giving only minimal weight to the medical opinion of his treating physician, Dr.
8
Harrison.302
9
3.1
Whether the ALJ Erred in Formulating the Hypothetical Posed to the VE
Mr. Lennon contends that the ALJ erred by posing a hypothetical to the VE that did not reflect
11
United States District Court
Northern District of California
10
the final limitations the ALJ included in the RFC.303 Specifically, Mr. Lennon alleges that the final
12
RFC included a restriction from any interaction with the public and with co-workers, but the
13
hypothetical posed to the VE stated only that the job should not include interaction with the public
14
or co-workers as a “primary job duty.”304 For the reasons stated below, the court remands on this
15
issue.
The ALJ assigned an RFC to Mr. Lennon that included “no interaction with the public, and no
16
17
team work projects with co-workers that requires coordinating with others; so that work is
18
performed largely independently.”305 In the ALJ’s hypothetical to the VE, the ALJ stated: “[t]here
19
should be no interaction with the general public in terms of the primary duties of the job. There
20
should be up to occasional interaction with the supervisor and no team work projects with other
21
co-workers, again, as part of the primary duties of the job. I want to focus or narrow the range of
22
jobs to those that an individual can perform pretty much after a simple demonstration certainly
23
24
25
302
Reply – ECF No. 22 at 2–3.
26
303
Mot. – ECF No. 17 at 17.
304
Id.
305
AR 25.
27
28
ORDER – No. 17-cv-03437-LB
39
1
within 30 days and is performed regularly on their own so something that doesn’t require
2
coordination with people or being around lots of people.”306
The Ninth Circuit has held generally:
3
A hypothetical question [to the VE] should set out all of the claimant’s impairments.
If the [RFC and] the “assumptions [upon which] the hypothetical are [based are] not
supported by the record, the opinion of the vocational expert that claimant has a
residual working capacity has no evidentiary value. The most appropriate way to
insure the validity of the hypothetical question posed to the vocational expert is to
base it upon evidence appearing in the record, whether it is disputed or not. . . . Unless
there is record evidence to adequately support this assumption, the opinion expressed
by the vocational expert is meaningless. [If] neither the hypothetical nor the answer
properly set forth all of [the claimant’s] impairments, the vocational expert’s
testimony cannot constitute substantial evidence to support the ALJ’s findings.
4
5
6
7
8
9
Gallant v. Heckler, 753 F.2d 1450, 1456 (9th Cir. 1984) (internal quotation marks and citation
11
United States District Court
Northern District of California
10
omitted); see Lubin v. Comm’r of Soc. Sec. Admin, 507 Fed. Appx. 709, 712 (9th Cir. 2013) (“ALJ
12
must include all restrictions in . . . the hypothetical question posed to the vocational expert”); Hill
13
v. Astrue, 698 F.3d 1153, 1162 (9th Cir. 2012) (“If a vocational expert’s hypothetical does not
14
reflect all the claimant’s limitations, then the expert’s testimony has no evidentiary value to
15
support a finding that the claimant can perform jobs in the national economy.”).
16
The ALJ’s final RFC arguably contains a stricter limitation on interactions with the public and
17
co-workers than the restrictions the ALJ posed in her hypothetical to the VE because she added the
18
words “primary duties of the job.” Any error may be harmless for two reasons. First, the VE
19
apparently interpreted the ALJ’s hypothetical to mean no interaction with the public: when asked
20
whether his testimony was consistent with the DOT, the VE replied, “The part about no public
21
interaction, occasional supervision and no team work, that is based primarily on my
22
experience.”307 Second, the government sets out the job duties for the three jobs that the VE
23
identified.308 The government argues persuasively that the job duties do not involve working with
24
25
26
27
28
306
AR 145–46.
307
AR 147.
308
Cross-Mot. – ECF No. 21 at 5–6 & n.4.
ORDER – No. 17-cv-03437-LB
40
1
people and instead involve working with things.309 But Mr. Lennon counters that the jobs require
2
taking instruction according to the SCO grouping “687,” with 8 being the “People category.”310
3
Given that the court remands to the ALJ for further weighing of the medical-opinion evidence,
4
the court remands on this issue too. On remand, the ALJ can reconsider her hypothetical to the VE
5
in light of the parties’ arguments.
6
3.2
7
Whether the ALJ Erred by Failing to Ask the VE if His Testimony Was Consistent
With the Selected Characteristics of Occupations
8
Mr. Lennon argues that the ALJ erred by failing to ask whether the VE’s testimony was
9
consistent with the Selected Characteristics of Occupations (“SCO”).311 The Appeals Council
ordered the ALJ to “identify and resolve any conflicts between the occupational evidence provided
11
United States District Court
Northern District of California
10
by the vocational expert and information in the Dictionary of Occupational Titles (DOT) and its
12
companion publication, the Selected Characteristics of Occupations (Social Security Ruling 00-
13
4p).”312 Mr. Lennon argues that the ALJ’s failure to ask explicitly about the SCO was error
14
because the three jobs that the VE identified — electrical accessories assembler, mail sorter, and
15
inspector and hand packager — require “Taking Instructions — Helping” under the SCO, and her
16
RFC is not consistent with a job that requires taking instructions.313 Mr. Lennon argues that the
17
instructions involve interactions with the public or co-workers.314
Again, any error may be harmless. While the VE did not reference the SCO, he testified that
18
19
the three jobs he identified — electrical accessories assembler, mail sorter, and inspection and
20
hand packager — were consistent with the DOT and included “no public interaction, occasional
21
supervision and no team work” based on the VE’s experience.”315 But because the court remands
22
309
Id. at 5–6.
310
Reply – ECF No. 22 at 8.
311
25
Mot. – ECF No. 17 at 18.
312
AR 197.
26
313
Reply – ECF No. 22 at 8.
314
Id.
315
AR 147.
23
24
27
28
ORDER – No. 17-cv-03437-LB
41
1
for further weighing of the medical-opinion evidence, the ALJ can reconsider her hypothetical and
2
questions to the VE and the parties’ arguments on this issue.
3
3.3
Whether the ALJ Erred in Evaluating and Weighing Dr. Harrison’s MedicalOpinion Evidence
4
Mr. Lennon contends that the ALJ erred when she assigned “minimal weight” to Dr.
5
6
Harrison’s opinion.316 The ALJ’s full discussion of the weight that she afforded Dr. Harrison’s
7
opinion is as follows:
Dr. Harrison was of the opinion the claimant was unable to perform work activity
on a sustained basis due to the emotional disorder. His opinion is based on a very
short period of treatment from June 2015 through October 5, 2015 while the
claimant has alleged an inability to work since March 2010. Thus, Dr. Harrison had
no knowledge of claimant’s emotional status since March 2010 and five months of
treatment does not provide longitudinal knowledge supporting a loss of ability for
all work activity. Minimal weight is given Dr. Harrison’s opinion.317
8
9
10
United States District Court
Northern District of California
11
12
13
14
The court first discusses the law governing the ALJ’s weighing of medical-opinion evidence
and then analyzes the medical-opinion evidence under the appropriate standard.
15
The ALJ is responsible for “‘resolving conflicts in medical testimony, and for resolving
16
ambiguities.’” Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014) (quoting Andrews, 53 F.3d
17
at 1039). In weighing and evaluating the evidence, the ALJ must consider the entire case record,
18
including each medical opinion in the record, together with the rest of the relevant evidence. 20
19
C.F.R. § 416.927(b); see also Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (“[A] reviewing
20
court [also] must consider the entire record as a whole and may not affirm simply by isolating a
21
specific quantum of supporting evidence.”) (internal quotation marks and citation omitted).
22
23
“In conjunction with the relevant regulations, [the Ninth Circuit has] developed standards that
guide [the] analysis of an ALJ’s weighing of medical evidence.”318 Ryan v. Comm’r of Soc. Sec.,
24
25
26
27
28
316
Mot. – ECF No. 17 at 19.
317
AR 33.
318
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 11, 2016.
ORDER – No. 17-cv-03437-LB
42
1
528 F.3d 1194, 1198 (9th Cir. 2008) (citing 20 C.F.R. § 404.1527). Social Security regulations
2
distinguish between three types of physicians (and other “acceptable medical sources”): (1)
3
treating physicians; (2) examining physicians; and (3) non-examining physicians. 20 C.F.R. §
4
416.927(c), (e); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). “Generally, a treating
5
physician’s opinion carries more weight than an examining physician’s, and an examining
6
physician’s opinion carries more weight than a reviewing [non-examining] physician’s.” Holohan
7
v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001) (citing Lester, 81 F.3d at 830).
8
9
An ALJ, however, may disregard the opinion of a treating physician, whether or not
controverted. Andrews, 53 F.3d at 1041. “To reject [the] uncontradicted opinion of a treating or
examining doctor, an ALJ must state clear and convincing reasons that are supported by
11
United States District Court
Northern District of California
10
substantial evidence.” Ryan, 528 F.3d at 1198 (alteration in original) (internal quotation marks and
12
citation omitted). By contrast, if the ALJ finds that the opinion of a treating physician is
13
contradicted, a reviewing court will require only that the ALJ provide “specific and legitimate
14
reasons supported by substantial evidence in the record.” Reddick v. Chater, 157 F.3d 715, 725
15
(9th Cir. 1998) (internal quotation marks and citation omitted); see also Garrison, 759 F.3d at
16
1012 (“If a treating or examining doctor’s opinion is contradicted by another doctor’s opinion, an
17
ALJ may only reject it by providing specific and legitimate reasons that are supported by
18
substantial evidence.”) (internal quotation marks and citation omitted). The opinions of non-
19
treating or non-examining physicians may serve as substantial evidence when the opinions are
20
consistent with independent clinical findings or other evidence in the record. Thomas v. Barnhart,
21
278 F.3d 947, 957 (9th Cir. 2002). An ALJ errs, however, when she “rejects a medical opinion or
22
assigns it little weight” without explanation or without explaining why “another medical opinion is
23
more persuasive, or criticiz[es] it with boilerplate language that fails to offer a substantive basis
24
for [her] conclusion.” Garrison, 759 F.3d at 1012–13.
25
“If a treating physician’s opinion is not given ‘controlling weight’ because it is not ‘well-
26
supported’ or because it is inconsistent with other substantial evidence in the record, the [Social
27
Security] Administration considers specified factors in determining the weight it will be given.”
28
Orn, 495 F.3d at 631. “Those factors include the ‘[l]ength of the treatment relationship and the
ORDER – No. 17-cv-03437-LB
43
1
frequency of examination’ by the treating physician; and the ‘nature and extent of the treatment
2
relationship’ between the patient and the treating physician.” Id. (quoting 20 C.F.R. §
3
404.1527(d)(2)(i)–(ii)) (alteration in original). “Additional factors relevant to evaluating any
4
medical opinion, not limited to the opinion of the treating physician, include the amount of
5
relevant evidence that supports the opinion and the quality of the explanation provided[,] the
6
consistency of the medical opinion with the record as a whole[, and] the specialty of the physician
7
providing the opinion . . . .” Id. (citing 20 C.F.R. § 404.1527(d)(3)–(6)); see also Magallanes v.
8
Bowen, 881 F.2d 747, 753 (9th Cir. 1989) (ALJ need not agree with everything contained in the
9
medical opinion and can consider some portions less significant than others).
Dr. Harrison is a board-certified psychiatrist and therefore is an acceptable medical source.319
10
United States District Court
Northern District of California
11
He was Mr. Lennon’s treating physician at Sonoma County Behavioral Health Department.320 His
12
opinion, including his conclusion that Mr. Lennon would miss all days of work per month due to
13
Mr. Lennon’s mental impairment, is contradicted by Dr. Tanenhaus’s opinion.321 The ALJ
14
therefore was required to give “specific and legitimate reasons” for rejecting his opinion.
15
Garrison, 759 F.3d at 1012.
Mr. Lennon challenges the ALJ’s according minimal weight to Dr. Harrison’s medical opinion
16
17
on the ground that five months of treatment in 2015 did not provide “longitudinal knowledge
18
supporting a loss of ability for all work activity” for a claimant who alleged an inability to work
19
since 2010.322 He also argues that the ALJ erroneously referenced Dr. Harrison’s lack of
20
“knowledge of the claimant’s emotional status since March 2010. . . .”323
Preliminarily, the length of the treatment relationship is relevant. The Social Security
21
22
Administration regulations instruct ALJs to consider the “[l]ength of the treatment relationship
23
24
319
25
AR 862.
320
AR 835‒61.
26
321
AR 767.
322
Mot. – ECF No. 17 at 24 (quoting AR 33).
323
Id.
27
28
ORDER – No. 17-cv-03437-LB
44
1
and the frequency of examination” as one factor in assigning weight to medical opinions,
2
explaining:
Generally, the longer a treating source has treated you and the more times you have
been seen by a treating source, the more weight we will give to the source's medical
opinion. When the treating source has seen you a number of times and long enough
to have obtained a longitudinal picture of your impairment, we will give the
medical source's medical opinion more weight than we would give it if it were from
a nontreating source.324
3
4
5
6
See also Lusardi v. Astrue, 350 Fed. Appx. 169, 171–72 (9th Cir. 2009) (holding that the ALJ
8
satisfied the clear and convincing standard when they assigned minimal weight to a treating
9
physician’s opinion because the ALJ noted the doctor’s infrequent visits with the claimant); Puga
10
v. Colvin, No. 13–cv–03485–JSC , 2014 WL 2452699, at *8 (N.D. Cal. May 30, 2014) (upholding
11
United States District Court
Northern District of California
7
the ALJ’s decision to assign minimal weight to a treating physician because the ALJ considered a
12
decrease in the claimant’s treatment schedule with the treating physician); Grande v. Colvin, No.
13
5:14-cv-05181-PSG , 2015 WL 7454154, at *4 (N.D. Cal. Nov. 24, 2015) (reasoning that the ALJ
14
could assign less weight, but not completely reject, a treating doctor’s opinion because the
15
doctor’s relationship with the patient had only lasted five months).
16
Furthermore, the Ninth Circuit has noted, “Section 404.1502 neither explicitly forbids nor
17
requires crediting a physician ‘treating’ status whose patient contact is thus limited. Its language
18
suggests that ‘a few times’ or contact as little as twice a year would suffice, but it does not state
19
that this frequency of patient contact represents a floor.” Benton ex rel. Benton v. Barnhart, 331
20
F.3d 1030, 1035–36 (9th Cir. 2003). “Rather, the standard it applies is that the claimant must have
21
seen ‘the source with a frequency consistent with accepted medical practice for the type of
22
treatment and/or evaluation required for your medical condition(s).’” Id.
23
Here, the record reflects that Dr. Harrison’s treatment was part of a team approach that
24
included assessments by other Sonoma County mental-health providers in 2015.325 His reports
25
26
324
27
325
28
20 C.F.R. § 404.1527 (c)(2)(i).
AR 840–53; see supra Statement (summarizing the Sonoma County Mental Health Division
records).
ORDER – No. 17-cv-03437-LB
45
1
show his review of records from Humboldt County and earlier Sonoma County record dating back
2
to 2010.326 He conducted a full mental-health assessment in August 2015.327 Mr. Harrison’s
3
mother was there and with Mr. Lennon, provided his full history.328
Given that the County’s mental-health assessment took place over a treatment period that
4
5
spanned June to October 2015 and was based on a full assessment that included Dr. Harrison’s
6
review of Mr. Lennon’s full medical history and records from childhood, the ALJ’s cursory
7
explanation for according the opinion minimal weight was not a “specific and legitimate” reason
8
for rejecting it, especially given the ALJ’s giving significant weight to the 2013 one-time
9
examination by Dr. Tanenhaus.329 Garrison, 759 F.3d at 1012–13. The court remands for the ALJ
10
to reconsider the medical opinion.
United States District Court
Northern District of California
11
12
CONCLUSION
The court grants Mr. Lennon’s summary-judgment motion, denies the Commissioner’s cross-
13
14
motion, and remands this case for further proceedings consistent with this order.
15
IT IS SO ORDERED.
16
Dated: July 26, 2018
______________________________________
LAUREL BEELER
United States Magistrate Judge
17
18
19
20
21
22
23
24
25
26
27
28
326
AR 842.
327
AR 840–41.
328
AR 841–42.
329
AR 32.
ORDER – No. 17-cv-03437-LB
46
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