Barry v. Commissioner of SSA

Filing 32

ORDER by Judge Laurel Beeler granting 25 Motion for Summary Judgment and denying 31 Motion for Summary Judgment. The court GRANTS Mr. Barry's motion for summary judgment, DENIES the Commissioner's cross-motion for summary judgment, and remands the case for further proceedings consistent with this order. Signed by Judge Laurel Beeler on 03/27/2019. (lblc3S, COURT STAFF) (Filed on 3/27/2019)

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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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JASON BARRY,
Plaintiff,

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v.

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Commissioner of Social Security
Administration,

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Defendants.

Case No. 17-cv-06394-LB
ORDER GRANTING PLAINTIFF'S
MOTION FOR SUMMARY
JUDGMENT AND DENYING
DEFENDANT'S CROSS-MOTION FOR
SUMMARY JUDGMENT
Re: ECF Nos. 25, 31

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INTRODUCTION

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Plaintiff Jason Barry seeks judicial review of a final decision by Acting Commissioner of the

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

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the Social Security Act.1 He moved for summary judgment on August 10, 2018.2 The

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Commissioner opposed the motion and filed a cross-motion for summary judgment on November

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9, 2018.3 Under Civil Local Rule 16-5, the matter is submitted for decision by this court without

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oral argument. All parties consented to magistrate-judge jurisdiction.4 The court grants the

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Compl. – ECF No. 1 at 1; Mot. – ECF No. 25 at 4. Citations refer to material in the Electronic Case
File (“ECF”); pinpoint citations are to the ECF-generated page numbers at the top of documents.
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Mot. – ECF No. 25.

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Cross-Mot. (amended) – ECF No. 31.

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Consent Forms – ECF Nos. 12, 13.

ORDER – No. 17-cv-06394-LB

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plaintiff’s motion, denies the Commissioner’s cross-motion, and remands for further proceedings

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consistent with this order.

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STATEMENT

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1. Procedural History

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On October 23, 2014, the plaintiff, then aged 42, filed an application for social-security-

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disability insurance (“SSDI”) benefits under Title II of the Social Security Act (“SSA”).5 He also

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filed an application for supplemental-security income on October 23, 2014 under Title XVI.6 His

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claims were denied on February 27, 2015, and again on reconsideration on June 8, 2015.7 The
plaintiff filed a written request for hearing on June 24, 2015.8 He appeared and testified at a

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United States District Court
Northern District of California

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hearing held on November 1, 2016.9

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Administrative Law Judge Teresa L. Hoskins Hart (“the ALJ”) issued an unfavorable decision

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on January 13, 2017.10 The plaintiff filed this action for judicial review on November 7, 2017 and

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moved for summary judgment on August 8, 2018.11 The Commissioner opposed the motion and

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filed a cross-motion for summary judgment on November 9, 2018.12

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Compl. – ECF No. 1 at 1.

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Id.

AR 130–33, 137–44. Administrative Record (“AR”) citations refer to the page numbers in the bottom
right hand corner of the Administrative Record.
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AR 142.

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AR 44.

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AR 23–38.

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Compl. – ECF No. 1; Mot. – ECF No. 25.

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Cross-Mot. (amended) – ECF No. 31.

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ORDER – No. 17-cv-06394-LB

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2. Summary of the Administrative Record
2.1

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Medical Records
2.1.1

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Amy Solomon, M.D. — Treating

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Dr. Solomon is the plaintiff’s primary-care doctor and — with other health-care providers at

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Balance Health of Ben Lomand — has treated the plaintiff since 1996.13 On December 6, 2013,

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Dr. Solomon diagnosed the plaintiff with chronic pain due to trauma, and on May 4, 2015 she

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diagnosed him with chronic pain lasting longer than three months.14 In August 2014, Dr. Solomon

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diagnosed the plaintiff with a sprain/strain of his shoulder/arm, degenerated-lumbar/lumbosacral

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disc, mixed hyperlipidemia, displaced-lumbar-intervert disc, and testicular hypofunction.15 On
December 17, 2014, Dr. Solomon confirmed her prior diagnoses and diagnosed the plaintiff with

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United States District Court
Northern District of California

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lumbar-spinal stenosis.16 On May 4, 2015, Dr. Solomon confirmed her prior diagnoses and

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diagnosed the plaintiff with degenerative-cervical-spinal stenosis, degenerative-lumbar-spinal

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stenosis, and elevated-intraocular pressure.17
On December 6, 2013, Dr. Solomon diagnosed the plaintiff with chronic pain due to trauma.18

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The plaintiff was back in school for horticulture and “was moving on from [his] wife’s death.”19

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Dr. Solomon noted that the plaintiff was aware of the addictive nature of his medications and was

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trying to decrease morphine use.20 The plaintiff was “well-appearing, well-nourished in no

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distress,” and he had “intact recent and remote memory, judgment and insight, and normal mood

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and affect.”21

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See AR 378–505, 512–29, 603–10, 564.

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AR 381.

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Id.

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Id.

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See 381, 514

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AR 397.

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AR 396.

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Id.

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AR 397.

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ORDER – No. 17-cv-06394-LB

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On July 22, 2014, the plaintiff visited Dr. Solomon and PA Julie Gorshe with shoulder pain

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caused by an injury he sustained getting out of a truck.22 The plaintiff’s shoulder was not

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swollen.23 He had moderate pain that was exacerbated when he moved his shoulder, and it was

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hard for him to hold his arm up.24 The plaintiff had difficulty with heavy lifting, and his activity

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was limited.25 His left shoulder was tender.26 An x-ray of his shoulder was negative for acute

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fracture.27 Dr. Solomon recommended that the plaintiff come in for a follow-up appointment in

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five days.28

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On August 1, 2014, Dr. Solomon noted that the plaintiff had cracking and popping in his

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shoulder and pain with movement.29 There was no “swelling, warmth, numbness or weakness.”30
The plaintiff had stopped swimming since his shoulder injury.31 He had decreased range of motion

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United States District Court
Northern District of California

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in his shoulder.32 Dr. Solomon diagnosed the plaintiff with sprain/strain of the shoulder/arm and

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chronic pain due to trauma.33 Dr. Solomon noted that the plaintiff was too distressed to continue

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with his school, and the stress was making him panic.34 The plaintiff had tried Cymbalta on 30mg

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three years before and stopped because it did not help.35 The plaintiff was willing to try Cymbalta

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again at a higher dose.36 Dr. Solomon noted that the plaintiff could not find a job and had moved

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AR 408.

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Id.

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Id.

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Id.

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AR 409.

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Id.

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AR 410.

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AR 393.

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Id.

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Id.

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AR 394.

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Id.

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AR 393.

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AR 394.

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Id.

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ORDER – No. 17-cv-06394-LB

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back in with his mother.37 Dr. Solomon referred the plaintiff to Dr. Victor Li, a pain-medicine

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specialist.38
On August 21, 2014, Dr. Solomon diagnosed the plaintiff with testicular hypofunction, chronic

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pain due to trauma, a displaced lumbar-intervert disc, and prolonged-depressive reaction.39 Dr.

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Solomon “felt that [the plaintiff] [was] too disabled to work and recommended permanent

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disability.”40 Dr. Solomon said that the plaintiff wanted to go back to work, but was only able to

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perform small chores, including feeding pets and washing dishes.41 Dr. Solomon stated that the

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plaintiff could not walk or swim daily due to shoulder pain.42 Dr. Solomon recommended that the

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plaintiff apply for permanent disability, drop out of school for the semester, and participate in

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volunteer work.43

United States District Court
Northern District of California

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On October 16, 2014, the plaintiff told Dr. Solomon that he spoke with his attorney and agreed

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to apply for social-security benefits based on permanent disability.44 Dr. Solomon wrote, “I do not

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think he is able to work and may even be permanently disabled between the back and PTSD.”45

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Dr. Solomon ordered an x-ray and MRI of the plaintiff’s lower back and suggested that he

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participate in a sleep study.46
On December 17, 2014, the plaintiff reported that he had seen Dr. Li, and approval of an MRI

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was pending for the commencement of injections.47

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37

AR 393.

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AR 394.

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AR 391.

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40

AR 390.

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41

Id.

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AR 391.

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AR 391, 392.

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44

AR 388.

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45

AR 389.

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Id.

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AR 385.

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ORDER – No. 17-cv-06394-LB

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On May 4, 2015, after reviewing x-ray and MRI results, Dr. Solomon confirmed her prior

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diagnoses of degenerative-lumbar-spinal stenosis, degenerative-cervical-spinal stenosis, chronic

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back pain, displacement of lumbar-intervertebral disk, and elevated intraocular pressure.48 Dr.

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Solomon said that the plaintiff would not be able to work and that he could not “sit or stand for

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any length of time and require[d] high dose medication.”49

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On January 28, 2016, Dr. Solomon filled out a Residual Functional Capacity (“RFC”)

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questionnaire for the plaintiff’s SSDI application.50 Dr. Solomon noted that the plaintiff had

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reduced range of motion and positive straight-leg raising on the left and right at 45 degrees.51 Dr.

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Solomon noted that the plaintiff’s impairment was reasonably consistent with his symptoms and
functional limitations.52 She said that the plaintiff could not walk more than one block without

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Northern District of California

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taking a rest, could not sit more than twenty minutes before needing to get up, and could not stand

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more than fifteen minutes before needing to sit down.53 The plaintiff needed a job that allowed

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him to sit, stand, or walk at will and the plaintiff could never lift weight more than ten pounds.54
2.1.2

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Victor Li, M.D. — Treating

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Dr. Li is a specialist in pain medicine. Dr. Solomon referred the plaintiff to Dr. Li for his

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shoulder injury and back pain.55 On December 8, 2014, Dr. Li noted that the plaintiff’s chief

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complaint was low-back pain radiating down to his bilateral-lower extremities with a secondary

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complaint of neck pain radiating down to his bilateral-upper extremities.56 The pain was “aching

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and stabbing,” and the pain in his right knee was constant.57 The plaintiff described the intensity of

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AR 515.

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AR 516.

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50

AR 564–67.

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51

AR 565.

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Id.

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AR 565, 566.

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AR 566.

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AR 370–77, 499.

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AR 370.

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Id.

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ORDER – No. 17-cv-06394-LB

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his pain as a nine out of ten.58 Walking, bending, lifting, sitting, lying down, coughing and

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sneezing made the pain worse, while lying down, sitting, and resting made the pain better.59

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In November 2014, the plaintiff had an x-ray of his lumbar spine, which showed “left-sided

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scoliosis with fairly extensive degenerative-disc disease status post laminectomy.”60 There was

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“mild to moderate leftward scoliosis centered on L3.”61 There was “narrowing of the right aspect

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of the L3–4 disc space [and] the left aspect of the L1–2 disc space,” and a “more diffuse

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narrowing of all of the lumbar disc spaces with spurring at all the lumbar levels anteriorly.”62

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“Some endplate sclerosis [was] seen at L3–4 and L4–5” and the “[a]lignment was otherwise

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maintained.”63
Dr. Li performed lumbar-spine and cervical-spine examinations, and the plaintiff’s muscle

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Northern District of California

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strength in both examinations was five out of five.64 Dr. Li prescribed morphine for the plaintiff’s

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pain and ordered MRIs of his cervical and lumbar spine to determine structural abnormalities.65

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On May 22, 2015, Dr. Li reported that the plaintiff had “continued pain in his low back and

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neck with associated numbness down his bilateral lower extremities, worse on the left,” and “pain

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and numbness radiating to his shoulders and into his bilateral upper extremities and hands.”66 The

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plaintiff’s pain level was seven out of ten.67 Dr. Li found “tenderness to palpation of the lumbar

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and cervical paraspinals” and “[d]istribution of pain along the L3, L4, L5 dermatomes of the

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bilateral lower extremities, left worse than right.”68 Dr. Li suggested that the plaintiff continue

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58

AR 371.

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Id.

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Id.

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AR 375.

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Id.

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Id.

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AR 372, 373.

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65

AR 371, 373.

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AR 535.

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Id.

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AR 536.

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ORDER – No. 17-cv-06394-LB

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with lumbar-epidural-steroid injections and would “consider cervical-epidural-steroid injection

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following lumbar-epidural-steroid injection for relief of neck pain and radiculopathy down the

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upper extremities.”69
On June 29, 2015, Dr. Li found that the plaintiff’s tenderness to palpation and distribution of

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pain was the same as the last visit and that the plaintiff’s level of pain was six out of ten.70 The

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plaintiff denied being depressed and having insomnia.71 Dr. Li stated that he would “consider

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lumbar-epidural-steroid injection as well as cervical-epidural-steroid injection for relief of pain in

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plaintiff’s neck and low back in the future.”72 The plaintiff told Dr. Li that he would like to be

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referred to an orthopedic surgeon before proceeding with epidurals.73 Dr. Li referred him to Dr.

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Mathias Daniels, an orthopedic-spinal surgeon.74
2.1.3

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Northern District of California

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Mathias Daniels, M.D. — Treating

Dr. Daniels noted that the plaintiff had low-back pain, degeneration of the intervertebral disc,

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and lumbar radiculopathy.75 Dr. Daniels completed a physical exam and found that the plaintiff

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was obese.76 The plaintiff had a normal gait, no limp, and ambulated without assistive devices.77

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He had a flat back with loss of lumbar lordosis on visual inspection.78 There was tenderness of the

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spinous process at L4, the transverse process on the right at L3, the transverse process on the left

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at L3, and the sacrum.79 There also was pain with motion and tenderness to the suspranous

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69

Id.

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AR 530.

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Id.

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72

AR 531.

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73

AR 530.

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AR 531

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AR 551.

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76

AR 553.

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77

Id.

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AR 554.

79

Id.

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ORDER – No. 17-cv-06394-LB

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ligament, the paraspinal region at L3, and the iliolumbar region.80 The plaintiff’s motor strength

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was normal and his knee reflexes were diminished.81 The plaintiff had decreased sensation in his

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knee, leg, and foot.82

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On October 21, 2015, the plaintiff visited Dr. Daniels to review lumbar-spine x-rays.83 Dr.

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Daniels said that the plaintiff was likely a surgical candidate.84 He suggested that the plaintiff lose

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weight and decrease his medication to prepare for surgery.85
On December 16, 2015, Dr. Daniels stated that the plaintiff was likely a candidate for LS2–S1

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PSIS.86 He noted that the plaintiff would continue to make attempts at decreasing his weight and

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increasing exercise tolerance.87
On March 21, 2016, the plaintiff reported “lateral and posterior radiating pain left greater than

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Northern District of California

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right into the dorsum of bilateral feet,” and “numbness in the stools of bilateral feet and

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generalized bilateral leg heaviness.”88 The plaintiff’s level of pain was an eight out of ten.89 His

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symptoms included weakness, numbness, tingling and radiation down legs.90 Changing positions,

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resting, and narcotics alleviated the pain, and sitting, standing, walking, twisting, bending and

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squatting, and pushing and pulling aggravated the pain.91 The plaintiff could walk for about ten

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80

Id.

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81

Id.

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Id.

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AR 549.

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84

Id.

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85

Id.

86

AR 545.

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Id.

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88

AR 561.

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89

Id.

90

Id.

91

Id.

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ORDER – No. 17-cv-06394-LB

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minutes before having to sit down because of “heavy legs.”92 Dr. Daniels confirmed his prior

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diagnosis of obesity.93
Dr. Daniels opined that the plaintiff had multilevel-lumbar spondylosis “that had been

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refractory to multiple conservative treatments including activity modification, injections, massage

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therapy, physical therapy, nonsteroidal anti-inflammatories and narcotics.”94 The plaintiff was an

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“appropriate surgical candidate,” but considering his current psychosocial status, Dr. Daniels

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found it reasonable that the plaintiff wished “to defer further discussion of operative intervention

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at [that] point.”95 Dr. Daniels stated that “the patient’s functionality ha[d] decreased over 50%

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over the last 2 years. He [was] also having a difficulty [with] mobility and bending activities. His
activities of daily living such as toileting and cooking [were] limited. The patient [] failed

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United States District Court
Northern District of California

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individual physical therapy/medication trials and injection therapies.”96 Dr. Daniels opined that the

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plaintiff “met all of the criteria of the MTUS [Medical Treatment Utilization Schedule] guidelines

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for an outpatient functional restoration program evaluation.” 97 Dr. Daniels listed the criteria for an

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outpatient pain rehabilitation program under MTUS:
An adequate and thorough evaluation has been made, which we are requesting
today.

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Previous methods of treating chronic pain have been unsuccessful, as mentioned
above for this patient.

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The patient has significant loss of ability to function, and the patient has decreased
his/her activities of daily living since the day of injury.

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He is not a candidate for other surgical interventions.

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The patient exhibits motivation and willingness to forgo secondary gains. . . .98

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92

Id.

93

AR 562.

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Id.

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95

Id.

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96

AR 563.

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Id.

98

Id.

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ORDER – No. 17-cv-06394-LB

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On May 11, 2016, Dr. Daniels noted no “change in [the plaintiff’s] axial back complaints.”99

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Clinical and imaging studies were consistent with multi-level-lumbar spondylosis refractory to

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multiple conservative modalities.100 Dr. Daniels recommended a chronic-pain psychology

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consultation.101 Dr. Daniels opined that the plaintiff was in the process of obtaining permanent

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disability and that it was prudent for him to “defer surgery until after [his] social economic status

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stabilizes.”102 Dr. Daniels diagnosed the plaintiff with degeneration of intervertebral disc and said

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he was “deciding about surgery for a herniated disc.”103
2.1.4

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Aaron Morse M.D. — Treating

The plaintiff visited Central Coast Sleep Disorder Center regarding his sleep problems on May

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21, 2009 and June 4, 2009.104 Nurse Practitioner Helena Norris stated in her preliminary

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consultation notes that the plaintiff had “a history of heavy snoring for many years, witnessed

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apneas and choking and excessive daytime sleepiness” and “chronic back pain due to a work

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related injury in 19[9]7.”105 The plaintiff underwent a sleep study on May 29, 2009.106 Dr. Morse

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found that the plaintiff had “severe complex (central and obstructive) sleep apnea.”107 Dr. Morse

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noted that the “central apnea was [probably] related to his use of narcotic pain medication.”108 The

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plaintiff was put on a continuous positive airway pressure (“CPAP”) machine for apnea.109 Dr.

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99

AR 559.

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Id.

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Id.

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102

Id.

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103

Id.

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AR 339, 341.

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AR 339.

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106

AR 355.

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107

Id.

108

Id.

109

AR 339.

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ORDER – No. 17-cv-06394-LB

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Morse later reported that the CPAP “resulted in improvement in snoring, apnea and hypopneas,

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and improvement in oxygen saturation.”110
2.1.5

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Christopher Summa, M.D. — Treating

The plaintiff visited Dr. Summa, a spinal and orthopedic surgeon, on April 6, 2017.111 Dr.

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Summa diagnosed the plaintiff with severe degenerative scoliosis of the lumbar spine, severe

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spinal stenosis, obesity, and high-dose opiate dependency.112 Due to the degenerative changes

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present in the plaintiff’s lumbar spine, he was a candidate for a reconstructive procedure to his

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lumbar spine.113 Dr. Summa was concerned that, due to the plaintiff’s weight and high-dose

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opiates, he was at significant risk of post-operative complications.114 Dr. Summa suggested that

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the plaintiff work with Dr. Solomon on his opiate use and engage in an aggressive weight-loss

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program in order to continue with plans for a reconstructive surgery.115
2.1.6

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Jennifer Lin, M.D. — Examining

On January 26, 2015 the plaintiff had an MRI of his lumbar spine.116 Dr. Lin reported the MRI

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findings.117 Dr. Lin indicated there was levoscolioisis of the lumbar spine and multilevel-

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degenerative changes of the lumbar intervertebral discs and facets.118 There was central-canal

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stenosis and neural-foraminal narrowing.119 Dr. Lin also reported that there were multiple areas

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with disc desiccation, loss of disc height, lateral protrusions, and joint arthrosis.120

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110

AR 345.

111

AR 8–12.

112

AR 8.

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113

Id.

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114

Id.

115

Id.

116

AR 538, 540.

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117

AR 538.

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118

AR 539.

119

Id.

120

See AR 538.

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ORDER – No. 17-cv-06394-LB

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2.1.7

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Kim Goldman Psy. D. — Examining

In January 2015, Dr. Goldman performed a complete psychological evaluation of plaintiff at

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the request of the Department of Social Services.121 Dr. Goldman noted that the plaintiff “was

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widowed on January 7, 2012. He live[d] with his mother in an apartment. His source of income

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[was] food stamps.”122 The plaintiff dropped out of high school, obtained a GED, completed two

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semesters at a community college, and received vocational training in an “iron worker

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apprenticeship [and an] automotive program.”123 The plaintiff’s longest-held job was as an iron

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worker, which he did “over the course of approximately 12 years.”124 “His most recent job was as

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a caregiver from 2008 through August 15, 2013.125
Dr. Goldman noted that the plaintiff had pain in ‘“[his] whole back, shoulders, knees, [and]

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ankles from all the heaving lifting replacing re-bar, all the labor.’”126 The plaintiff had never been

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psychiatrically hospitalized or treated by an outpatient-mental-health provider.127 The plaintiff

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took Prozac in 2000 for a year until he stopped because he “was feeling better.”128 The plaintiff

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“[drove] a car without restriction. He was able to shower, bathe, groom and dress himself without

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help. He was able to pay bills and keep track of money without help from other people.”129 Dr.

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Goldman continued, “[w]hen asked to describe what he does in a typical day he reported ‘not

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much because my physical condition, sit on the front porch, walk my dog 30 yards.’”130

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121

AR 507–511.

122

AR 508.

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123

Id.

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124

Id.

125

AR 508; see AR 36.

126

AR 509.

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127

Id.

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128

Id.

129

Id.

130

Id.

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ORDER – No. 17-cv-06394-LB

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Dr. Goldman noted that the plaintiff was “pleasant and cooperative throughout the evaluation”

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and that he “presented with a mildly restricted range of affect and mildly dysthymic mood.”131 The

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plaintiff described his mood as “depressed quite a bit, all the losses I’ve had recently, I can’t do

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the work I used to do because of medical problems, see my friends with their children/family that

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affects me.”132 The plaintiff reported that he had difficulty sleeping due to pain and stress.133 “No

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problems with appetite were indicated.”134 Dr. Goldman noted that the plaintiff “responded in a

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coherent and relevant fashion,” he “was alert and aware of his surroundings,” his memory was

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intact, his “attention to instructions was fair and his task persistence was fair,” and he “did not

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appear to be responding to internal stimuli.”135
Dr. Goldman concluded that the plaintiff’s verbal comprehension, working memory,

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Northern District of California

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processing speed, full-scale IQ, logical-memory I, visual-reproduction I, and visual-reproduction

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II were ranked “ low average.”136

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Dr. Goldman diagnosed the plaintiff with depressive disorder and personality disorder and

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ruled out cannabis dependence.137 She noted that the plaintiff had mild difficulties in maintaining

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social functioning, concentration, persistence, and the ability to work at a pace appropriate for his

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age.138 “No repeated episodes of emotional deterioration in work like situations were indicated.”139

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Furthermore, the plaintiff’s ability “to understand, carry out and remember simple instructions was

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not impaired.”140 His abilities to understand, carry out and remember detailed instructions and

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131

Id.

132

Id.

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133

Id.

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134

Id.

135

AR 509, 510.

136

AR 510–11.

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137

AR 511.

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138

Id.

139

Id.

140

Id.

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ORDER – No. 17-cv-06394-LB

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complex tasks, respond appropriately to coworkers, respond appropriately to usual work situations

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were mildly impaired due to depression.141
Disability Determination Explanation — Initial

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2.2

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Tawnya Brode, Psy. D., analyzed the plaintiff’s mental-health records.142 She concluded that

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the plaintiff would have mild difficulty maintaining social function and mild difficulty with

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concentration, persistence, and ability to work at a pace appropriate for his age.143 She found that

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the plaintiff was mildly impaired in his ability to understand, carry out, and remember detailed

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instructions and complex tasks, his ability to respond appropriately to coworkers, supervisors, and

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the public, and his ability to respond to usual work situations and deal with changes in his work
setting.144 His ability to understand, remember, and carry out simple instructions was not

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Northern District of California

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impaired.145
On January 15, 2015, A. Lizarraras, M.D., performed a residual-functional-capacity

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assessment for the plaintiff’s disability determination.146 Dr. Lizarraras found that the plaintiff

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could occasionally lift and carry 20 pounds and could frequently lift and carry ten pounds.147 The

15

plaintiff could stand and walk for a more than six hours on a sustained basis and sit for a total of

16

about six hours in an eight-hour workday.148 His ability to push and pull was “unlimited.”149 The

17

plaintiff had postural limitations: he could “frequently” climb ramps and stairs and balance and

18

could “occasionally” climb ladders, ropes, and scaffolds, stoop, kneel, crouch, or crawl.150 The

19
20
141

Id.

142

AR 81–82.

22

143

AR 82.

23

144

Id.

145

Id.

146

AR 85–88.

25

147

AR 85.

26

148

Id.

149

Id.

150

Id.

21

24

27
28

ORDER – No. 17-cv-06394-LB

15

1

plaintiff had no visual, communicative, or environmental limitations.151 Dr. Lizarraras said that

2

“more weight is assigned to the longitudinal evidence that documents [spinal] L4–5 laminectomy

3

[without] functionally significant neurological deficits or mechanical signs of radiculopathy or

4

symptoms of classical cauda equina syndrome, and [spinal] right knee surgery without e/o

5

instability. OSA is stable [with] CPAP.”152 Dr. Lizarraras concluded that, given the plaintiff’s age,

6

education, and past relevant work, he was “not disabled.”153
Disability Determination Explanation – Reconsideration

7

2.3

8

On May 5, 2015, Dr. Pong made another disability determination at the reconsideration

9

level.154 Dr. Pong reviewed the plaintiff’s MRI, concluded that the MRI findings were “mild to
moderate, 5/5, [normal] gait,” and agreed with Dr. Lizarraras’s findings that modified light work

11

United States District Court
Northern District of California

10

was appropriate for the plaintiff.155
Norman Zykowsky, Ph.D., analyzed the plaintiff’s mental-health records and found that he

12
13

had mild restrictions in his activities of daily living, mild difficulties in maintaining social

14

functioning, and mild difficulties in maintaining concentration, persistence or pace.156 The plaintiff

15

had no repeated episodes of decompensation.157
Orlene Daigle — Function Report

16

2.4

17

Orlene Daigle is the plaintiff’s mother. The plaintiff has lived with her since 2013.158 In a

18

function report dated January 20, 2015, Ms. Daigle stated that the plaintiff was not able to prepare

19

meals, shop, or clean, that he could not “sit or stand for even short periods of time,” he suffered

20
21
22

151

AR 86.

23

152

Id.

153

Id.

154

AR 122–23.

25

155

AR 123.

26

156

Id.

157

Id.

158

AR 252.

24

27
28

ORDER – No. 17-cv-06394-LB

16

1

from high levels of pain and anxiety, and he had panic attacks in public.159 She helped the plaintiff

2

with meals, baths, walking, and taking medications.160 The plaintiff’s sleep was affected because

3

he had to wake up to take medications for his pain and suffered from sleep apnea.161 The plaintiff

4

did not spend time with other people except on the computer or the phone.162 The plaintiff was

5

able to walk only a half of a block before having to rest, and he was able to pay attention for about

6

five minutes at a time.163

7
8

3. Administrative Proceedings
3.1

9

Plaintiff’s Testimony

The plaintiff submitted a work history report on January 13, 2015.164 He worked as an iron

11

United States District Court
Northern District of California

10

worker from 1996 to 2006, as a mechanic from 2006 to 2007, and as a caregiver from 2007 to

12

August, 15, 2013.165 As a caregiver, the plaintiff’s job responsibilities included house cleaning,

13

grocery shopping, giving baths, cleaning the bathroom, laundry, and running errands.166 The job

14

required the plaintiff to walk, stand, stoop, kneel, crouch, reach, write, and type for a significant

15

amount of time.167 It also required lifting and carrying up to 50 lbs.168
The plaintiff submitted an adult-function report on September 13, 2019.169 He described his

16
17

daily routine as follows. He woke up at 6:00 a.m. to take medication and then went back to sleep

18

until 9:00 a.m., then he spent forty-five minutes showering and one hour eating after his mother

19
159

Id.

160

AR 253.

161

Id.

22

162

AR 256.

23

163

AR 257.

164

AR 211–21.

165

AR 238.

25

166

AR 239.

26

167

Id.

168

Id.

169

AR 213–14.

20
21

24

27
28

ORDER – No. 17-cv-06394-LB

17

1

prepared his food.170 He had too much pain when he stood or sat too long and had to lie down to

2

ease the pain.171 He also stated that because three people he cared for as a caregiver died, and

3

because his pain medicine had side effects, it was difficult for him to be around people.172 His

4

pain, anxiety and stress kept him from sleeping.173 He was not able to dress himself, take a bath,

5

take care of his hair, shave, feed himself, or use the toilet until his pain medication took effect.174

6

He needed help from his mother to eat meals and to get around. He could walk only 30 yards

7

before needing to rest for about two to three minutes.175
The plaintiff testified at the hearing on November 1, 2016.176 The ALJ first asked the plaintiff

9

about his work history.177 The plaintiff testified that he was an iron worker for 12 years.178 While

10

working as an iron worker, he lifted 50 pounds without assistance and sometimes more than 100

11

United States District Court
Northern District of California

8

pounds.179 He also went through training to become an auto mechanic and worked in that capacity

12

at two Ford dealerships in Santa Cruz for about three years.180 As a mechanic, the plaintiff lifted

13

more than 50 pounds alone, but he did not lift more than 100 pounds.181 The plaintiff supervised

14

other people while at Scott’s Valley Ford, which consisted of assigning and inspecting their

15

work.182 In 2008, the plaintiff could no longer perform the work of an auto mechanic, and he

16

became an in-home healthcare provider for his ill wife and multiple other patients in the County of

17
18
170

AR 214.

19

171

AR 213.

20

172

Id.

173

AR 214.

174

Id.

22

175

Id.

23

176

AR 48.

177

Id.

178

AR 49.

25

179

Id.

26

180

AR 50–51.

181

AR 50.

182

AR 52.

21

24

27
28

ORDER – No. 17-cv-06394-LB

18

1

Santa Cruz.183 The in-home healthcare-provider job required the plaintiff to perform domestic

2

duties, including laundry, shopping, cleaning, and physical care, such as giving baths. 184 The

3

plaintiff lifted more than 100 pounds while in this job.185 The plaintiff remained in this job until

4

September 2013.186 He has not worked since.187
The ALJ asked the plaintiff about his education.188 The plaintiff received his GED in 1991 (he

5
6

went to high school but did not finish twelfth grade).189 After high school, the plaintiff began and

7

completed a three-year apprenticeship as a union iron worker.190 He also completed a six-month

8

program to become certified as an auto mechanic.191 In August 2013, the plaintiff completed two

9

semesters of school, working toward an associate’s degree in horticulture.192 He was unable to
complete assignments and sit in class due to pain and medication.193 The plaintiff said that

11

United States District Court
Northern District of California

10

“getting to school was an issue, driving, being on medication.”194 He could not sit comfortably

12

through a whole class and was unable to concentrate or retain information.195
The plaintiff had a driver’s license and a car, but he no longer drove “because of [his] pain

13
14

medication.”196 His mother drove him to medical appointments.197

15
16
183

AR 51.

184

AR 53.

185

Id.

19

186

AR 54.

20

187

Id.

188

AR 55.

189

Id.

22

190

Id.

23

191

AR 56.

192

AR 57, 58.

193

AR 57.

25

194

Id.

26

195

Id.

196

AR 58.

197

AR 59.

17
18

21

24

27
28

ORDER – No. 17-cv-06394-LB

19

The ALJ asked the plaintiff about his activities.198 The plaintiff used to be able to surf, hike, go

1
2

rock-climbing and mountain-climbing, and socialize, but he was no longer able to do those

3

things.199 The plaintiff could do a 10- to 15-minute walk, equivalent to about 1,000 yards.200 He

4

did this about two to three times per week, depending on the severity of his pain.201 It had been

5

years since he went biking or swimming.202
The plaintiff lived in a studio apartment with his mother.203 On a typical day, the plaintiff got

6
7

up for about one hour to take his medication and sat in a chair for about 45 minutes waiting for the

8

pain medication to “kick[]-in” and ate food that his mother brought him.204 The plaintiff iced his

9

back three to four times a day.205 He ate dinner at around 6:00 p.m. and then took pain medication,
which made him sleepy.206 The plaintiff watched television, checked email, read magazines, and

11

United States District Court
Northern District of California

10

interacted with friends on Facebook.207
The ALJ asked the plaintiff why he was unable to work.208 The plaintiff said that he was in

12
13

severe pain, he was physically dilapidated, and he needed surgery.209
The plaintiff’s attorney asked him about the accident he suffered and his subsequent

14
15

treatment.210 The plaintiff said that in 2014, he fell off a truck and injured his neck, shoulder, and

16
17
18
198

Id.

19

199

Id.

20

200

Id.

201

Id.

202

AR 59–60.

22

203

AR 60.

23

204

Id.

205

Id.

206

AR 61.

25

207

Id.

26

208

Id.

209

Id.

210

Id.

21

24

27
28

ORDER – No. 17-cv-06394-LB

20

1

lower back.211 He immediately began seeing his primary doctor, Dr. Solomon.212 Dr. Solomon

2

prescribed him hydrocodone and morphine.213 Dr. Li gave the plaintiff epidural injections, which

3

were not successful.214 Dr. Daniels ordered an MRI for the plaintiff’s back, and he noted that the

4

plaintiff had injections, physical therapy, massage therapy, and medications, which were never

5

helpful for his back.215 The plaintiff stated that Dr. Daniels wanted him to lose weight and see his

6

psychiatrist before performing surgery.216 The plaintiff had lost 20 pounds and was in the process

7

of scheduling his surgery.217

8

The plaintiff’s attorney asked him about his activities and limitations.218 The plaintiff said that

9

he could cook and clean in the past, but he could not do so because he was in “too much pain.”219
The plaintiff could sit 20 to 15 minutes and stand for 15 minutes comfortably.220 He had to lie

11

United States District Court
Northern District of California

10

down four to six times per day due to back pain.221 His neck pain gave him headaches and caused

12

his hands and legs to feel numb.222 It was difficult for the plaintiff to bend, lift, or kneel, and the

13

most he could lift was a liter of soda.223 The plaintiff was still on narcotics and had problems with

14
15
16
17
18
19

211

AR 62.

212

Id.

AR 63. The transcript reads “hydro-codeine,” but Dr. Solomon’s records show that he was
prescribed hydrocodone. AR 383.
213

20

214

AR 63.

215

AR 64.

22

216

Id.

23

217

AR 65.

218

Id.

219

AR 66.

25

220

Id.

26

221

Id.

222

Id.

223

Id.

21

24

27
28

ORDER – No. 17-cv-06394-LB

21

1

attention and concentration.224 He had major problems retaining information, such as remembering

2

what he saw on television.225

3

3.2

4

Vocational Expert (“VE”) Darlene McQuary testified at the November 1, 2016 hearing.226

5

The ALJ posed the following hypothetical to the VE:

6

Vocational Expert Testimony

8

Assume an individual who was limited to light exertion that did not require more
than frequent balancing or climbing of stairs and ramps, and did not require more
than occasional stooping, kneeling, crouching, crawling or climbing of ladders, ropes
and scaffolds.227

9

The ALJ asked whether such a person could perform any of the plaintiff’s prior jobs, and the

7

VE said he could not.228 The ALJ asked whether there were other jobs that the hypothetical person

11

United States District Court
Northern District of California

10

could do. The VE gave four possible jobs: companion (SVP of 3, light work, 985,230 jobs

12

nationally), cashier (SVP of 2, light work, 3,920,000 jobs nationally), agriculture sorting and

13

grading (SVP of 2, light work, 500,000 jobs nationally), and egg washing machine operator (SVP

14

of 1, light work, 75,790 jobs nationally).229

15

The ALJ asked the VE to consider the first hypothetical again, and to add “that the person was

16

limited to simple, repetitive tasks.”230 The ALJ asked whether such a person could do the jobs the

17

VE identified, and the VE said that he could.231
Mr. Barry’s attorney posed the following hypothetical:

18
19
20

224

Id.

21

225

AR 66–67.

226

AR 69–73.

227

AR 69.

23

228

Id.

24

229

22

25
26

AR 70–71. Specific Vocational Preparation (“SVP”) is defined “as the amount of lapsed time
required by a typical worker to learn the techniques, acquire the information, and develop the facility
needed for average performance in a specific job-worker situation.” On the SVP scale, a 2 refers to any
training “beyond short demonstration up to and including 1 month.” Dictionary of Occupational Titles,
App. C, 1991 WL 688702 (4th ed. 1991).
230

AR 71.

231

27

Id.

28
ORDER – No. 17-cv-06394-LB

22

If you added onto the [first hypothetical] someone’s off task more than half the day
could not pay attention or concentrate[e], perform simple tasks, [was] unable to sit
or stand more than 20 minutes at a time, and sit and stand cumulatively throughout
the day for four hours; [would need] unscheduled breaks four to six times a day 30
minutes each time; unable to use hands for gripping, turning objects limited to 10%
of the day; unable to use fingers for fine manipulation; unable to use arms for
reaching; missing four days of work per month. Could such a person do any of the
jobs you listed. . . ?232

1
2
3
4
5

The VE answered that such a person could not do the jobs she identified or any job in the

6
7

national economy.233

8

3.3

9

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

10

plaintiff was disabled and concluded that he was not.234
At step one, the ALJ found that the plaintiff had not engaged in substantial gainful activity

United States District Court
Northern District of California

11
12

Administrative Findings

since September 1, 2014 (the alleged onset date).235
At step two the ALJ found that the plaintiff had four severe impairments: degenerative-disc

13
14

disease, status-post-remote-lumbar laminectomy, scoliosis, and obesity.236 The ALJ held that the

15

plaintiff’s medically determinable mental impairments (depressive disorder, personality disorder,

16

and affective disorder) and his right-knee orthoscopy were nonsevere because they did not cause

17

“more than minimal limitation in the claimant’s ability to perform basic work activities.”237 The

18

ALJ also found that the plaintiff’s obstructive-sleep apnea was nonsevere because it was “stable

19

with the usage of the CPAP machine.”238 The ALJ held that the plaintiff’s left-shoulder injury was

20
21
22
232

AR 71–72.

233

AR 72.

234

AR 23–38.

25

235

AR 25.

26

236

Id.

237

AR 26, 28, 29.

238

AR 29.

23
24

27
28

ORDER – No. 17-cv-06394-LB

23

1

nonsevere because he received limited treatment and so it did not “meet the 12-month durational

2

requirement to be a severe impairment.”239
The ALJ held that the plaintiff’s possible cannabis dependence was a non-medically

3
4

determinable impairment because Dr. Goldman raised the issue but never made a diagnosis.240 The

5

ALJ found that the plaintiff’s alleged anxiety and PTSD were non-medically determinable

6

impairments because neither was “established by medical evidence consisting of signs, symptoms,

7

and laboratory findings.”241 The ALJ found the plaintiff’s alleged learning disorder to be non-

8

medically determinable because he was “not diagnosed with a learning disability [by] an

9

acceptable medical source.”242
At step three, the ALJ found that the plaintiff did not have an impairment or combination of

10

United States District Court
Northern District of California

11

impairments that met or medically equaled the severity requirements of a listing.243 Specifically,

12

the ALJ considered listing 1.04 (disorders of the spine) and found that the plaintiff did not meet

13

the criteria because there was “no evidence of positive straight-leg raising in both the sitting and

14

supine positions, reflex loss, muscle weakness or atrophy; or psuedoclaudication and inability to

15

ambulate effectively.”244 While there is no listing specifically addressing obesity, the ALJ held

16
17
239

19
20
21
22
23
24
25
26
27
28

Id.

240

AR 28.

241

Id.

242

Id.

243

18

AR 29–30.

244

AR 30. The listing in full is as follows. Listing 1.04, Disorders of the spine (e.g., herniated
nucleus pulposus, spinal arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc disease,
facet arthritis, vertebral fracture), resulting in compromise of a nerve root (including the cauda
equina) or the spinal cord. With: (A) Evidence of nerve root compression characterized by neuroanatomic distribution of pain, limitation of motion of the spine, motor loss (atrophy with
associated muscle weakness or muscle weakness) accompanied by sensory or reflex loss and, if
there is involvement of the lower back, positive straight-leg raising test (sitting and supine); or (B)
Spinal arachnoiditis, confirmed by an operative note or pathology report of tissue biopsy, or by
appropriate medically acceptable imaging, manifested by severe burning or painful dysesthesia,
resulting in the need for changes in position or posture more than once every 2 hours; or (C)
Lumbar spinal stenosis resulting in pseudoclaudication, established by findings on appropriate
medically acceptable imaging, manifested by chronic nonradicular pain and weakness, and
ORDER – No. 17-cv-06394-LB

24

1

that the plaintiff’s obesity “[did] not meet a listing based on [his] other impairments, or in

2

combination with [his] other impairments.”245
At step four, the ALJ concluded that the plaintiff was unable to perform his past relevant work

3
4

as an iron worker, auto mechanic, or caregiver, which were at medium and/or heavy level.246 The

5

ALJ determined that the plaintiff had the residual functional capacity (“RFC”) to perform light

6

work with “no more than frequent balancing or climbing stairs or ramps; and no more than

7

occasional stooping, kneeling, crouching, crawling or climbing ropes, ladders or scaffolds.”247
The ALJ held that some of the plaintiff’s alleged symptoms could be reasonably expected to

8

be caused by his medically determinable impairments, but his statements concerning the intensity,

10

persistence, and limiting effects of these symptoms were not consistent with the medical evidence

11

United States District Court
Northern District of California

9

and other evidence in the record.”248
The ALJ found that the record did not support the plaintiff’s claims about the ongoing impact

12
13

of his degenerative-disc disease on his life.249 For example, on December 6, 2013, Dr. Solomon

14

reported that the plaintiff was walking three to four times a week for 20 to 45 minutes per day; on

15

July 22, 2014, Julie Gorshe, PA, found that the plaintiff’s back was nontender with normal range

16

of motion; on October 2, 2015, Dr. Solomon found that the plaintiff’s extremities were warm with

17

no C/C/E (cyanosis, clubbing, edema); and in a neurological examination, the strength was five

18

out of five, and sensations were intact.250
The ALJ gave great weight to the State-agency-medical consultants’ opinions.251 They

19
20

“carefully evaluated the claimant’s medical record” and concluded that the plaintiff was “limited

21
22

resulting in inability to ambulate effectively, as defined in 1.00B2b. 20 C.F.R. Part 404, Subpt. P,
appx. 1.

23

245

AR 30.

246

AR 35, 36.

247

AR 30.

25

248

AR 33.

26

249

Id.

250

Id.

251

AR 34.

24

27
28

ORDER – No. 17-cv-06394-LB

25

1

to light work, frequently climbing ramps and stairs and balancing; and occasionally climbing

2

ropes, ladders, or scaffolds, stooping, kneeling, crouching and crawling.”252 The ALJ found that

3

the consultants’ opinions concerning the plaintiff’s residual functional capacity were “consistent

4

with the physical examinations in the medical records, as well as the claimant’s statements of

5

swimming, walking, and biking.”253

6

The ALJ did not give significant weight to Dr. Solomon’s opinion because it was “inconsistent

7

with her own treatment notes, the longitudinal treatment course, other medical findings by treating

8

specialists, other probative medical opinions, daily activities involving biking, swimming and

9

schooling, and other inconsistencies noted in this decision.”254
The ALJ accorded little weight to Orlene Daigle’s third-party function report because she was

10

United States District Court
Northern District of California

11

not an acceptable medical source, her report echoed the plaintiff’s function report, and her

12

description was inconsistent with the medical records and other evidence.255
At step five, the ALJ determined that, considering the plaintiff’s age, education, work

13
14

experience, and residual functional capacity, he had acquired work skills from past relevant work

15

that were transferrable to other occupations with jobs existing in significant numbers in the

16

national economy.256 The ALJ relied on the VE’s testimony that a person with the plaintiff’s RFC

17

could be a companion (985,230 jobs in the national economy), a cashier ( 3,922,000 jobs

18

nationally), an agricultural sorter (500,000 jobs nationally), or an egg washer (75,790 jobs

19

nationally) and concluded that the plaintiff was not disabled.257

20
STANDARD OF REVIEW

21
22

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

23
24

252

Id.

25

253

AR 34, 35.

254

AR 35.

255

Id.

27

256

AR 37.

28

257

AR 37–38.

26

ORDER – No. 17-cv-06394-LB

26

1

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

2

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

3

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

4

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

5

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

6

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

7

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

8

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

9

v. Celebrezze, 348 F.2d 289, 293 (9th Cir. 1965). If the evidence in the administrative record
supports the ALJ’s decision and a different outcome, the court must defer to the ALJ’s decision

11

United States District Court
Northern District of California

10

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

12

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

13

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

14
GOVERNING LAW

15
16

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

17

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

18

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

19

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

20

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

21

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

22

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

23

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

24

C.F.R. § 404.1520).

25

27

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’s case cannot be resolved at step one, and the
evaluation proceeds to step two. See 20 C.F.R. § 404.1520(a)(4)(i).

28

Step Two. Is the claimant’s impairment (or combination of impairments) severe? If not, the

26

ORDER – No. 17-cv-06394-LB

27

claimant is not disabled. If so, the evaluation proceeds to step three. See 20 C.F.R. §
404.1520(a)(4)(ii).

1
2

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).

3
4
5

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).

6
7
8

12

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.

13

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

9
10

United States District Court
Northern District of California

11

14

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

15

(9th Cir. 1986).

16
17

ANALYSIS

18

The plaintiff argues that the ALJ erred by (1) improperly weighing and crediting the opinions

19

of his treating physicians and (2) failing to properly credit plaintiff’s testimony and third-party

20

statements about the nature and impact of his functional limitations. The court holds that the ALJ

21

erred by discounting the opinions of plaintiff’s treating physicians and failing to properly credit

22

the plaintiff’s testimony and third-party statements about his functional limitations.

23
24

1. Failure to Properly Weigh Medical Evidence

25

The plaintiff contends that the ALJ erred by failing to provide legally sufficient reasons for

26

discounting the opinions of Dr. Solomon and Dr. Daniels, the plaintiff’s treating physicians.258

27
28

258

Mot. – ECF No. 25 at 12–26.

ORDER – No. 17-cv-06394-LB

28

1

The court remands because the ALJ did not give specific and legitimate reasons for rejecting their

2

opinions.

3

1.1

4

The ALJ is responsible for “‘resolving conflicts in medical testimony, and for resolving

Legal Standard

5

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

6

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

7

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

8

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

9

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

10

United States District Court
Northern District of California

11

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

12

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

13

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

14

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

15

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

16

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

17

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

18

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

19

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

20

An ALJ may disregard the opinion of a treating physician, whether or not controverted.

21

Andrews, 53 F.3d at 1041. “To reject [the] uncontradicted opinion of a treating or examining

22

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

23

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

24

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

25

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

26

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

27

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

28

doctor’s opinion is contradicted by another doctor’s opinion, an ALJ may only reject it by
ORDER – No. 17-cv-06394-LB

29

1

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

2

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

3

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

4

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

5

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

6

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

7

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

8

759 F.3d at 1012–13.
“If a treating physician’s opinion is not given ‘controlling weight’ because it is not ‘well-

10

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

11

United States District Court
Northern District of California

9

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

12

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

13

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

14

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

15

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

16

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

17

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

18

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

19

providing the opinion....” Id. (citing 20 C.F.R. § 404.1527(d)(3)–(6)).

20

1.2

21

The plaintiff argues that the ALJ failed to properly weigh and credit the opinion of Dr.

22

Dr. Solomon

Solomon without giving legitimate reasons for doing so. The court agrees.

23

Dr. Solomon’s opinion regarding the plaintiff’s functional limitations was contradicted by the

24

opinions of non-examining physicians, Dr. Lizarras and Dr. Pong.259 Thus, the ALJ was required

25

to provide specific and legitimate reasons for discounting Dr. Solomon’s opinion.
In weighing the medical-opinion evidence from Dr. Solomon, the ALJ did not give Dr.

26
27
28

259

Compare AR 566 with AR 85, 112.

ORDER – No. 17-cv-06394-LB

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1

Solomon’s opinion controlling weight because Dr. Solomon’s residual-functional-capacity

2

determination was “inconsistent with her own treatment notes, the longitudinal treatment course,

3

other medical findings by treating specialists, other probative medical opinions, daily activities

4

involving biking, swimming and schooling, and other inconsistencies noted in [the] decision.”260

5

“An ALJ has the obligation to consider all relevant medical evidence and cannot simply

6

cherry-pick facts that support a finding of non-disability while ignoring evidence that points to a

7

disability finding.” Escamilla v. Berryhill, No. 17-CV-01621-BAS-JMA, 2018 WL 2981156, at *6

8

(S.D. Cal. June 14, 2018) (citing Denton v. Astrue, 596 F.3d 419, 425 (7th Cir. 2010)). Here, the

9

ALJ cites two examinations, where Dr. Solomon noted that the plaintiff had normal gait and
strength, to arrive at a conclusion that Dr. Solomon’s opinion should be afforded little weight for

11

United States District Court
Northern District of California

10

lack of consistency.261 The broader record shows that Dr. Solomon’s RFC determination was

12

consistent with her treatment records, other treating doctors’ opinions, and the plaintiff’s

13

limitations in daily activities.
For example, Dr. Lin, who reported the plaintiff’s MRI findings, indicated that the plaintiff

14
15

had levoscoliosis of the lumbar spine and multilevel degenerative changes of the lumbar-

16

intervertebral discs and facets, disc desiccation, loss of disc height, lateral protrusions, and joint

17

arthrosis.262 Dr. Lin opined that the plaintiff had “left-sided scoliosis with fairly extensive

18

degenerative disc disease.”263 Dr. Lin also noted the plaintiff had tenderness to palpitation of the

19

lumbar and cervical paraspinals with distribution of pain along L3, L4, L5 dermatomes of the

20

bilateral lower extremities.264 In 2016, Dr. Daniels opined that the plaintiff’s functionality had

21
22
23
24
260

AR 35.

25

261

Id.

26

262

AR 538–39.

263

AR 371.

264

AR 531.

27
28

ORDER – No. 17-cv-06394-LB

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1

decreased by 50% over the last two years.265 Dr. Daniels also stated that the plaintiff had

2

multilevel lumbar spondylosis that had been refractory to multiple treatments.266
Dr. Solomon’s findings also were consistent with her own treatment records, where she noted

3

chronic pain due to trauma, moderate scoliosis, narrowing of the right aspect of L3 to L4 disc

5

space and left aspect of L1–1 disc space, “fairly extensive degenerative disease,” lumbar

6

radiculopathy, low-back and neck pain with associated numbness, and lumbar spondylosis, among

7

other conditions, over the course of several visits.267 Dr. Solomon’s RFC opinion was the most

8

recent RFC opinion on the record. “[A] treating physician’s most recent medical records are

9

highly probative.” See Osenbrock v. Apfel, 240 F.3d 1157, 1164–65 (9th Cir. 2001). Given that the

10

plaintiff’s functionality decreased over the course of time, any contradicting information about the

11

United States District Court
Northern District of California

4

plaintiff’s functional limitations before Dr. Solomon’s most recent opinion regarding functionality

12

is not necessarily inconsistent with her most recent opinion.268
Dr. Solomon’s findings are also consistent with the record and show that the plaintiff has

13
14

experienced increasingly greater limitations in his daily activities. The plaintiff testified in the

15

November 2016 hearing that he used to be able to perform multiple activities, like biking and rock

16

climbing, but was no longer able to do them due to his pain and medication.269 In 2014, Dr.

17

Solomon indicated in her treatment notes that the plaintiff had been trying to walk and swim daily,

18
19
20
21
22
23
24
25

265

AR 563.

AR 562. The plaintiff also points out that the ALJ did not consider Dr. Daniels’s opinion that the
plaintiff’s “‘functionality has decreased by 50% over the last 2 years. He is also having difficult with
mobility and bending activities. . . . [T]he patient has significant loss of ability to function, and the
patient has decreased his activities of daily living since the day of the injury.’” Mot. – ECF No. 25 at
16 (quoting AR 563). The ALJ summarized some of Dr. Daniels’ opinions but did not mention this
opinion. AR 20–43. This is error. An ALJ must consider each medical opinion and — in weighing the
medical evidence — cannot reject an opinion or assign it little weight without explanation. 20 C.F.R.
§ 416.927(b); Garrison, 759 F.3d at 1012–12. Moreover, “where an ALJ does not explicitly reject a
medical opinion, [she] errs.” Marsh v. Colvin, 792 F.3d 1170, 1173 (9th Cir. 2015) (quoting Garrison,
759 F.3d at 1012). The ALJ can consider Dr. Daniels’s opinion on remand.
266

27

267

AR 499, 375, 533, 528, 536, 551 .

268

AR 563.

269

26

AR 59.

28
ORDER – No. 17-cv-06394-LB

32

1

but his left shoulder pain prevented him from doing so.270 Dr. Solomon noted that the pain, pain

2

medication, and sleep apnea made the plaintiff’s schooling difficult.271
Furthermore, the ALJ gave Dr. Solomon’s opinion less than controlling weight without

3
4

addressing the relevant factors for weighing a treating physician’s opinion. Orn, 495 F. 3d at 631.

5

The ALJ must consider the length of the treatment relationship and the frequency of examination,

6

nature and extent of the treatment relationship, supportability, consistency, specialization, and

7

other factors that tend to support or contradict the opinion. Id. The ALJ did not address the fact

8

that Dr. Solomon had been treating plaintiff as his primary-care physician since 1996 and the

9

evidence of at least ten visits in the administrative record since 2013. And as discussed above, Dr.

10

Solomon’s opinion is consistent with the record as a whole.
The ALJ failed to consider the Orn factors and did not offer specific and legitimate reasons for

United States District Court
Northern District of California

11
12

discounting Dr. Solomon’s opinion. Thus, the ALJ erred by discounting Dr. Solomon’s medical

13

opinion.

14
15

2. Failure to Credit Testimony
Plaintiff’s Testimony

16

2.1

17

The plaintiff argues that the ALJ failed to credit his testimony without articulating clear and

18

convincing reasons. The court agrees.
In assessing a claimant’s credibility, an ALJ must make two determinations. Molina, 674 F.3d

19
20

at 1112. “First, the ALJ must determine whether there is ‘objective medical evidence of an

21

underlying impairment which could reasonably be expected to produce the pain or other

22

symptoms alleged.’” Id. (quoting Ligenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007)).

23

Second, if the claimant produces that evidence, and “there is no evidence of malingering,” the ALJ

24

must provide “specific, clear and convincing reasons” for rejecting the claimant’s testimony

25

regarding the severity of the claimant’s symptoms. Id. (internal quotation marks and citations

26
27

270

AR 390–91.

28

271

AR 390.

ORDER – No. 17-cv-06394-LB

33

1

omitted). “At the same time, the ALJ is not ‘required to believe every allegation of disabling pain,

2

or else disability benefits would be available for the asking, a result plainly contrary to 42 U.S.C. §

3

423(d)(5)(A).’” Id. (quoting Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)). “Factors that an

4

ALJ may consider in weighing a claimant’s credibility include reputation for truthfulness,

5

inconsistencies in testimony or between testimony and conduct, daily activities, and unexplained,

6

or inadequately explained, failure to seek treatment or follow a prescribed course of treatment.”

7

Orn, 495 F.3d at 636 (internal quotation marks omitted). “[T]he ALJ must identify what testimony

8

is not credible and what evidence undermines the claimant’s complaints.” Burrell v. Colvin, 775

9

F.3d 1133, 1138 (9th Cir. 2014) (citing Lester, 81 F.3d at 834); see, e.g., Morris v. Colvin, No. 16-

10

CV-0674-JSC, 2016 WL 7369300, at *12 (N.D. Cal. Dec. 20, 2016).

United States District Court
Northern District of California

11

Here, there was objective medical evidence of the plaintiff’s impairment, and there was no

12

evidence of malingering. Thus, the ALJ needed to provide specific, clear, and convincing reasons

13

for rejecting the plaintiff’s testimony.
The ALJ found that the plaintiff’s “medically determinable impairments could reasonably be

14
15

expected to cause some of alleged symptoms” but that the plaintiff’s “statements regarding the

16

intensity, persistence and limiting effects were not consistent with the medical evidence and other

17

evidence in the record.”272 The ALJ found that the plaintiff’s pain symptoms were not consistent

18

with his treatment with his specialists.273 The ALJ also discussed the plaintiff’s statements

19

indicating that he wanted to postpone his surgery and his statements about daily activities,

20

including driving.274
As stated above, an ALJ may not cherry-pick evidence to support the conclusion that a

21
22

claimant is not disabled. Instead she must consider the evidence as a whole in making a reasoned

23

disability determination. Williams v. Colvin, No. ED CV 14-2146-PLA, 2015 WL 4507174, at *6

24

(C.D. Cal. July 23, 2015). The ALJ selectively relied on some entries in the record while ignoring

25
26
272

AR 33.

27

273

AR 34.

28

274

AR 33.

ORDER – No. 17-cv-06394-LB

34

1

others. A broader analysis of the record shows that the inconsistencies the ALJ relied on can be

2

reconciled with the plaintiff’s statements.
The ALJ cited statements made by Dr. Lin and Dr. Daniels — that the plaintiff should be

3

weaned from his narcotic-pain medication before surgery — as inconsistent with the plaintiff’s

5

pain symptoms.275 The ALJ focused on the doctors’ suggestions about the reduction in narcotic

6

pain medications in the plaintiff’s treatment as opposed to the treatment record as whole, which

7

shows persistent symptoms of pain, worsening of symptoms, and the recommendation of surgery

8

as part of his treatment.276 Though Dr. Li did suggest that the plaintiff reduce narcotic-pain

9

medications in preparation for surgery, he still treated the plaintiff for his pain through cervical,

10

lumbar, and epidural injections.277 Furthermore, as the ALJ noted, more recent treatment notes

11

United States District Court
Northern District of California

4

indicate that the plaintiff continued taking narcotic medications for his pain in October 2016 and

12

April 2017.278 This is consistent with the plaintiff’s continued complaints of pain. Thus, the

13

alleged inconsistence was not a clear and convincing reason to reject the plaintiff’s testimony of

14

his pain symptoms.
The ALJ also stated that the plaintiff’s testimony regarding his inability to drive is inconsistent

15
16

with the record.279 The plaintiff stated that he “no longer drives” and had not driven in the past

17

year.280 The ALJ said this was inconsistent with the plaintiff’s statement to Dr. Goldman 21

18

months prior to the hearing, in February 2015.281 She also cited the plaintiff’s statements that he

19

drove to school in 2013 and 2014 to support her assertion that the statements are inconsistent.282

20

Nonetheless, the plaintiff’s statement about his inability to drive in the past year is consistent with

21
22

275

AR 34.

23

276

Id.

277

AR 28.

278

AR 34, 8.

25

279

AR 34.

26

280

AR 58.

281

AR 34.

282

Id.

24

27
28

ORDER – No. 17-cv-06394-LB

35

1

evidence of his driving more than one year earlier. This was not a clear and convincing reason to

2

reject his testimony.
The ALJ said that the plaintiff’s statements — indicating that he needed to go through various

3

procedures with his doctor prior to surgery — were inconsistent with the plaintiff’s previous

5

statements to his doctor that he wanted to put off surgery until his disability case was settled.283

6

Contrary to the ALJ’s characterization, these two statements are not inconsistent. Dr. Daniels

7

recommended a chronic-pain psychology consultation prior to surgery.284 Dr. Daniels opined that

8

it was “prudent” for the plaintiff to” defer surgery until after his social-economic status

9

stabilizes.”285 Dr. Summa was concerned that, due to the plaintiff’s weight and high-dose opiates,

10

he was at significant risk of post-operative complications.286 The plaintiff told Dr. Solomon that he

11

United States District Court
Northern District of California

4

was “worried that [his having surgery would] cause too much work for his mom” and that he

12

could not afford in-home health care.287 The plaintiff’s desire to postpone surgery appears rooted

13

in financial concerns as opposed to reflecting decreased pain symptoms. Thus, this was not a clear

14

and convincing reason to reject the plaintiff’s testimony.
In sum, the ALJ erred by rejecting the plaintiff’s testimony about his pain symptoms and

15
16

limitations.

17

2.2

18

The plaintiff argues that the ALJ erred by discounting Orlene Daigle’s (the plaintiff’s

19

Third-Party Testimony

mother’s) testimony regarding the plaintiff’s daily activities and limitations.288

20

The ALJ must consider “other source” testimony and evidence from a layperson. Ghanim, 763

21

F.3d at 1161; Molina, 674 F.3d at 1111; Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir. 2009) (“In

22

determining whether a claimant is disabled, an ALJ must consider lay witness testimony

23
24

283

Id.

25

284

AR 559.

285

Id.

286

AR 9.

27

287

AR 576.

28

288

Mot. – ECF No. 25 at 29–31.

26

ORDER – No. 17-cv-06394-LB

36

1

concerning a claimant's ability to work”) (internal quotation marks and citation omitted).

2

“Descriptions by friends and family members in a position to observe a claimant's symptoms and

3

daily activities have routinely been treated as competent evidence.” Sprague v. Bowen, 812 F.2d

4

1226, 1232 (9th Cir. 1987). It is competent evidence and “cannot be disregarded without

5

comment.” Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996). Moreover, if an ALJ decides

6

to disregard the testimony of a lay witness, the ALJ must provide “specific” reasons that are

7

“germane to that witness.” Parra v. Astrue, 481 F.3d 742, 750 (9th Cir. 2007) (internal citations

8

omitted). The Ninth Circuit has not “required the ALJ to discuss every witness's testimony on an

9

individualized, witness-by-witness basis.” Molina, 674 F.3d at 1114. An ALJ may “point to”
reasons already stated with respect to the testimony of one witness to reject similar testimony by a

11

United States District Court
Northern District of California

10

second witness. Id.

12

The ALJ accorded “little weight” to Orlene Daigle’s third-party function report because “she

13

[was] not an acceptable medical source,” the report echoed with plaintiff’s function report, and it

14

was inconsistent with the medical records and other evidence.289
That Ms. Daigle was not an acceptable medical source is not a germane reason to disregard her

15
16

testimony. See Senorina G. v. Berryhill, No. 5:18-cv-00534-JDE, 2019 WL 688206, at *8 (C.D.

17

Cal. Feb. 19, 2019) (holding that the ALJ’s rejection of a layperson’s testimony simply because it

18

is not from a medical professional is an “improper, non-germane” reason). The ALJ erred by

19

rejecting Ms. Daigle’s testimony.

20

The other reason offered by the ALJ — that Ms. Daigle’s testimony was duplicative of the

21

plaintiff’s — could be a germane reason to discount her opinion.290 See Molina, 674 F.3d at 1115

22
23

289

24

290

25
26
27
28

AR 35.

Compare AR 213 (the plaintiff stated that he could not stand, sit, or walk for long due to pain and
that he could not be around a lot of people because of the effects of pain medications) with AR 252
(Ms. Daigle stated that the plaintiff could not sit or stand for even short periods of time and suffered
from high anxiety and panic attacks in public); compare AR 214 (the plaintiff stated that he could
dress himself, take a bath, care for his hair, or shave only after his medication took effect) with AR 253
(Ms. Daigle stated that the plaintiff had to be medicated before he could dress, bathe, care for his hair,
and shave); compare AR 218 (the plaintiff stated that he could walk only 30 yards before taking a twoto three-minute break) with AR 257 (Ms. Daigle stated that the plaintiff could walk a half block before
needing to rest for five minutes).
ORDER – No. 17-cv-06394-LB

37

1

(holding that a layperson’s testimony should be rejected if “it does not change the ultimate

2

result.”). Nevertheless, given the court’s remand for reconsideration of the medical-opinion

3

evidence and the plaintiff’s testimony, the court remands on this issue too.

4
5

CONCLUSION

6

The court grants the plaintiff’s motion for summary judgment, denies the Commissioner’s

7

cross-motion for summary judgment, and remands the case for further proceedings consistent with

8

this order.

9

IT IS SO ORDERED.

10

Dated: March 27, 2019
______________________________________
LAUREL BEELER
United States Magistrate Judge

United States District Court
Northern District of California

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12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
ORDER – No. 17-cv-06394-LB

38