Green v. Berryhill

Filing 33

ORDER In the attached order, the court grants Ms. Green's motion for summary judgment, denies the Commissioner's cross-motion for summary judgment, and remands this case for further proceedings consistent with this order. (Beeler, Laurel) (Filed on 10/16/2018)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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San Francisco Division

United States District Court
Northern District of California

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INELLE L. GREEN,

Case No. 17-cv-06637-LB

Plaintiff,

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v.

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NANCY BERRYHILL,
Defendant.

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ORDER GRANTING PLAINTIFF’S
MOTION FOR SUMMARY
JUDGMENT AND REMANDING CASE
Re: ECF Nos. 28 & 29

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INTRODUCTION

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Plaintiff Inelle Green seeks judicial review of a final decision by the Commissioner of the

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

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

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

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matter is submitted for decision by this court without oral argument. All parties consented to

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Motion for Summary Judgment – ECF No. 28 at 1–2. Record citations refer to the Electronic Case
File (“ECF”); pinpoint citations are to the ECF-generated page numbers at the top of documents.

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Id. at 1.

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Cross-Mot. – ECF No. 29.

ORDER – No. 17-cv-06637-LB 

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magistrate-judge jurisdiction.4 The court grants the plaintiff’s motion, denies the Commissioner’s

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cross-motion, and remands for further proceedings.

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STATEMENT
1. Procedural History
On February 26, 2014, Ms. Green, born on November 14, 1962, and then age 51, filed claims

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for social-security disability insurance (“SSDI”) benefits under Title II of the Social Security Act5

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(“SSA”) and supplemental security income (“SSI”) under Title XVI.6 She alleged degenerative

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disc disease, arthritis in the left hip, Type II diabetes, microbacteria, colitis, sleep apnea, and
bladder problems.7 She alleged an onset date of January 9, 2013.8 The Commissioner denied her

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United States District Court
Northern District of California

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SSDI and SSI claims initially and on reconsideration.9 Ms. Green timely requested a hearing.10

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On November 16, 2016, Administrative Law Judge Phillip C. Lyman (the “ALJ”) held a

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hearing in San Jose, California.11 Attorney Sonya Arellano represented Ms. Green.12 The ALJ

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heard testimony from Ms. Green, vocational expert (“VE”) Ronald Morrell, and medical expert

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(“ME”) Subramaniam Krishnamurthi, M.D.13 On December 13, 2016, the ALJ issued an

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unfavorable decision.14 Ms. Green timely appealed the decision to the Appeals Council on

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Consent Forms – ECF Nos. 14, 16.

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AR 233–36. Administrative Record (“AR”) citations refer to the page numbers in the bottom right
hand corner of the Administrative Record.

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AR 237–42.

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See AR 135–36.

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See AR 233, 237.

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AR 135–39; AR 143–48.

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See AR 150.

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See AR 32–63.

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AR 32.

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AR 32.

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AR 12.

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ORDER – No. 17-cv-06637-LB

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February 15, 2017.15 The Appeals Council denied her request for review on September 19, 2017.16

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On November 17, 2017, Ms. Green timely filed this action for judicial review17 and subsequently

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moved for summary judgment on July 6, 2018.18 The Commissioner opposed the motion and filed

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a cross-motion for summary judgment on August 3, 2018.19 Ms. Green filed a reply on September

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17, 2018.20

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2. Summary of Record and Administrative Findings

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2.1

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Medical Records
2.1.1

Hartford Central — Treating

Ms. Green was treated on multiple occasions at Hartford Central from January 11, 2013

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United States District Court
Northern District of California

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through April 23, 2013 in connection with a worksite injury.21 Ms. Green was diagnosed with a

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sprain and contusion of her left hand and carpal tunnel syndrome.22 Ms. Green was prescribed to

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wear a splint23 and to undergo physical therapy.24 Over the course of her visits, her left-hand pain

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decreased significantly and her injury improved.25 As of February 25, 2013, Ms. Green was

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advised to return to work “without restrictions[,]”26 and as of April 16, 2013, she was performing

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“regular job duties.”27 Ms. Green reported that her condition improved with physical therapy, and

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See AR 5.

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AR 1–6.

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Complaint – ECF No. 1 at 1–2.

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Mot. – ECF No. 28.

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Cross-Mot. – ECF No. 29.

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Reply – ECF No. 32.

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21

AR 374–456.

22

See, e.g., AR 389, 494–96.

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See, e.g., AR 471.

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See, e.g., AR 389.

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25

See, e.g., AR 470.

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AR 401.

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AR 387.

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ORDER – No. 17-cv-06637-LB

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as of April 23, 2013, Ms. Green was released from care “without ratable disability or need for

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future medical care.”28 She further reported that she did not lose any work time as a result of her

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injury.29

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The records reflect Ms. Green’s morbid obesity: for example, as of January 21, 2013, Ms.

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Green was 5’6” and weighed 272 pounds.30 The records also note Ms. Green’s medical history of

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diabetes, tendonitis, carpal tunnel syndrome, and degenerative disc disease.31 At the time, she was

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also undergoing treatment for the following conditions: hypertension, pedal or pretibial edema,

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asthma, recurrent urinary tract infections, back pain, depression, insomnia, and urinary

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frequency.32

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2.1.2

Ms. Green was treated on multiple occasions from February 4, 2013 through April 16, 2016 at

United States District Court
Northern District of California

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Santa Clara Valley Medical Center — Treating

the Santa Clara Valley Medical System.33
On July 10, 2013, Ms. Green underwent phase one of surgery for the placement of a sacral-

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nerve stimulator wire and electrode to alleviate her urinary frequency and urge incontinence.34

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There were no complications.35 During a follow-up appointment on July 18, 2013, Ms. Green

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stated she may have “yanked the lead out” following her surgery but otherwise her condition had

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improved.36 After the surgery, Ms. Green felt she had sufficient time to get to the bathroom and

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she was no longer leaking, whereas before her surgery, she leaked at least twice per day.37 On July

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AR 376.

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AR 374.

30

See AR 511.

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31

See, e.g., AR 387, 399, 494.

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See, e.g., AR 375, 388, 400, 470, 495.

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25

See AR 528, 735–801, 836–1031.

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AR 592–95.

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35

AR 594.

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AR 595.

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Id.

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ORDER – No. 17-cv-06637-LB

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24, 2013, Ms. Green underwent phase two of surgery for programming of the sacral-nerve

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stimulator and implantation of a left-sided pulse generator.38

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On July 31, 2013, Michael Jones, M.D., an emergency-medicine specialist, saw Ms. Green for

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back pain.39 Ms. Green reported that when she was getting out of her car, she had an “acute onset”

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of pain in the right back and right flank that worsened with movement.40 Dr. Jones noted that Ms.

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Green had a “possible post operative hematoma/seroma” although her wound appeared clean, dry,

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and intact.41 He prescribed Ms. Green pain medication.42 Ms. Green also reported that her left-hip

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pain had improved since her procedures for incontinence.43
During follow-up visits, urology resident Janet Lee reported that the surgery had improved Ms.

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Green’s leakage, but she continued to experience urge upon standing up.44 As of October 15,

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United States District Court
Northern District of California

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2013, Ms. Green was back to wearing approximately one to two pads per day, which were moist

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but not soaked.45 Ms. Green experienced intermittent tailbone pain following her surgery, and she

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felt that her arthritis was worsening in her hips.46
On October 17, 2013, Frank Kagawa, M.D., an internist, consulted Ms. Green regarding her

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obstructive sleep apnea.47 Dr. Kagawa noted that Ms. Green’s sleep is disrupted frequently

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throughout the night “[u]sually due to pain, or because of bladder[.]”48 He also noted Ms. Green

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38

AR 599.

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AR 604.

40

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Id.

41

AR 606.

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42

AR 607.

43

AR 604.

44

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AR 528.

45

Id.

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46

AR 527–28.

47

AR 530.

48

Id.

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ORDER – No. 17-cv-06637-LB

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had chronic hip and back pain,49 needed to walk with a cane,50 and needed to sleep in her car

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during the workday to rest her hip and back, and to catch up on sleep.51 Ms. Green requested

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portable oxygen for daytime use when she napped in her car.52 Dr. Kagawa recommended that Ms.

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Green continue BiPAP (bilevel positive airway pressure) therapy and encouraged her to lose

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weight.53
Umaima Marvi, M.D., a rheumatologist, saw Ms. Green for an initial consultation for hip pain

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on December 17, 2013.54 Ms. Green stated that her hip pain began two years prior and that it was

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“constant[.]”55 A steroid shot in her tailbone did not help.56 Ms. Green further stated that her pain

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was worse when in bed and when moving from sitting to standing.57 She lived on the second floor
of her building and would have to take one step at a time.58 She experienced approximately ten

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United States District Court
Northern District of California

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minutes of stiffness each morning.59 Dr. Marvi noted that Ms. Green was not taking any

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medication for her hip pain because Ms. Green was already taking many drugs for her other

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conditions (including diabetes, hypertension, high cholesterol, overactive bladder, and

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microscopic colitis).60 Ms. Green infrequently took ibuprofen and tried to work through the pain.61

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She could walk only approximately ten to fifteen feet without a cane and, as of December 17,

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2013, she had not been to physical therapy.62 Dr. Marvi recommended that Ms. Green take 1000

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49

AR 533.

50

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AR 530.

51

Id.

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52

Id.

53

AR 533.

54

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AR 538.

55

Id.

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56

Id.

57

Id.

58

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Id.

59

Id.

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60

Id.

61

Id.

62

Id.

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ORDER – No. 17-cv-06637-LB

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mg of Tylenol every day, referred her to physical therapy, and noted that she would complete Ms.

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Green’s disability paperwork.63 A December 18, 2013 left-hip x-ray showed that Ms. Green had

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moderate to severe degenerative changes of the left-hip joint.64
On February 19, 2014, Ms. Green was admitted to Santa Clara Valley Medical Center for

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chest pain.65 Ms. Green stated that her pain was severe but had no shortness of breath, diaphoresis,

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or other complaints.66 On that same day, Ms. Green had just completed a course of Doxycycline

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and Prednisone, prescribed for asthmatic bronchitis.67 Michael McCarthy, M.D., an internist,

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opined that Ms. Green’s pain likely resulted from her recent bronchitis exacerbation.68 She was

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discharged on February 20, 2014,69 and as of February 26, 2014, though not completely resolved,

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her pain had improved.70

United States District Court
Northern District of California

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During a follow-up examination, Dr. Michael Jones noted that Ms. Green quit her job at a

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private school (Stratford School) due to “right hip pain[,]”71 which made walking difficult for

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her.72 He also noted that Ms. Green ambulated with a cane and needed a cane to climb stairs.73

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On April 4, 2014, Dr. Marvi saw Ms. Green for a follow-up regarding her left “hip OA[.]”74

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Ms. Green’s hip pain was “still significant,” she could only walk for ten minutes with her cane,

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and her gait was “very antalgic.”75 Ms. Green took Tylenol for the pain, but Tylenol made her

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63

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AR 543.

64

AR 775.

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65

AR 550–64.

66

AR 562.

67

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Id.

68

Id.

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69

See AR 565.

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See AR 567.

71

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AR 558.

72

AR 559.

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73

AR 558.

74

AR 664.

75

Id.

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ORDER – No. 17-cv-06637-LB

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sleepy.76 At that time, she worked as a nanny and drove during the day, so she did not want to take

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medication that made her sleepy or groggy.77 Ms. Green also felt that Vicodin and Codeine were

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ineffective because she had developed a tolerance to those medications.78 Dr. Marvi noted that Ms.

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Green’s left-hip x-ray from December 2013 showed moderate to severe osteoarthritis79 and that

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Ms. Green’s condition had progressed since 201180 and worsened since her last evaluation.81 Dr.

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Marvi also noted that Ms. Green had not yet gone to physical therapy.82 Dr. Marvi again referred

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Ms. Green to physical therapy, referred her to orthopedics, and discussed the need for Ms. Green

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to lose weight.83 On May 19, 2014, Alvaro Davila, M.D., an endocrinologist, noted that Ms.

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Green’s chronic back pain and “severe left hip OA” would require a hip implant that year.84

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On June 5, 2014, Ms. Green reported consistent “lock in key” leakage due to urinary

United States District Court
Northern District of California

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incontinence but said that her condition had improved since receiving the sacral-nerve implant.85

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During a physical-therapy evaluation on June 6, 2014, Ms. Green reported that her left leg

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started “giving out” in about October 2012.86 She stated that after leaving her job in 2013, her pain

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had decreased because she was not standing as frequently.87 She also started to have trouble with

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sustained positions.88 She further reported that she would need to have hip-replacement surgery

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but had to first undergo physical therapy.89 Physical therapist Deborah Chatfield noted the

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76

Id.

77

19

Id.

78

Id.

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79

AR 664; see also AR 775.

80

AR 668.

81

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AR 664.

82

Id.

23

83

AR 668.

84

AR 673–74.

85

25

AR 678.

86

AR 696.

26

87

Id.

88

Id.

89

Id.

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ORDER – No. 17-cv-06637-LB

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following functional limitations: (1) standing for ten minutes; (2) sitting for fifteen minutes; (3)

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walking for ten to fifteen minutes; and (4) difficulty with donning and doffing shoes, and

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sometimes pants.90
On June 16, 2014, Ms. Green visited the Santa Clara Medical Center’s orthopedic clinic for

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left-hip osteoarthritis.91 Physician Assistant Jeffrey Young noted that Ms. Green’s left-groin pain

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had been worsening for two years, she walked with a cane, and she weighed approximately 300

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pounds.92 He noted that she was undergoing physical therapy at that time and that she was “trying

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again” to get on the waiting list for gastric-bypass surgery.93 He advised that Ms. Green return in

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six months for a left-hip x-ray.94
On June 17, 2014, Lynn Ngo, M.D., an internist, saw Ms. Green for hip pain.95 Dr. Ngo noted

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United States District Court
Northern District of California

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that orthopedics recommended weight loss of at least 50 pounds before Ms. Green could undergo

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hip-replacement surgery.96 Ms. Green was evaluated for gastric-bypass surgery, but she missed a

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class that was mandatory for the surgery.97 Ms. Green complained that her physicians did not do

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anything in the clinic to get her the surgery.98 She promised that she would attend the next gastric-

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bypass surgery class.99
Ms. Green began a pool exercise program in July 2014.100 On September 15, 2014, Ms. Green

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reported that she was swimming with a personal trainer approximately six days per week.101 She

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19

90

AR 697–98.

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91

AR 579.

92

Id.

93

22

Id.

94

AR 583.

23

95

AR 709.

96

Id.

97

25

Id.

98

Id.

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99

Id.

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100

AR 719.

101

AR 838.

ORDER – No. 17-cv-06637-LB

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lost about ten pounds as a result and was watching her diet.102 She attended the mandatory

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orientation for gastric-bypass surgery.103 She used a walker and was “not so stable” with a cane.104

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She reported that her right hip pain was worse.105
On November 9, 2015, Ms. Green attended physical therapy following a referral by her

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primary care physician, Bernette Tsai, M.D, an internist.106 At that time, Ms. Green reported that

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she lived with a full-time caregiver and could not clean her house.107 Physical therapist Dawn

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Asano noted Ms. Green’s functional limitations as follows: (1) walking for ten minutes at a time

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and (2) sitting for fifteen minutes at a time.108 During a follow-up therapy session, she noted that

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Ms. Green could no longer afford to go to the pool for exercise.109 She also noted that, during gait

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training, Ms. Green was “teary eyed/crying [] regarding her hip pain[.]”110

United States District Court
Northern District of California

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On December 10, 2015, nurse practitioner (“NP”) Debra Rivas saw Ms. Green for obstructive

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sleep apnea.111 NP Rivas noted that Ms. Green’s weight had increased by 28 pounds over the last

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six months.112 She also noted that a prior sleep study indicated that Ms. Green had severe sleep

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apnea with severe oxygen desaturations.113 Ms. Green had not been compliant with CPAP

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(continuous positive airways pressure)/BiPAP use because she reported falling asleep easily and

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19

102

Id.

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103

Id.

104

Id.

105

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Id.

106

AR 965–77; see also AR 701–19.

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107

AR 969.

108

Id.

109

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AR 975.

110

AR 719.

26

111

AR 1000.

112

AR 1001.

113

Id.

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ORDER – No. 17-cv-06637-LB

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did not think it was necessary.114 NP Rivas recommended that Ms. Green continue with

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CPAP/BiPAP machine use.115

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That same day, Payam Tabrizi, M.D., an orthopedic surgeon, consulted Ms. Green regarding

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her hip pain.116 Dr. Tabrizi noted that bursitis injections were not helpful and that Ms. Green had

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not succeeded in losing weight.117 He also noted that Ms. Green had completed her preparation for

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gastric-bypass surgery and was on the wait list for same.118 He reported that Ms. Green quit

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working a year prior “due to right hip pain” and that she ambulated with a cane.119

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2.1.3

Bernette Tsai, M.D. — Treating Physician120

Dr. Tsai — addressed by the ALJ because she did a residual functional capacity (“RFC”)

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assessment — saw Ms. Green on at least fifteen occasions from May 20, 2013 through May 17,

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United States District Court
Northern District of California

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2016.121 The records reflect Ms. Green’s height and weight of 5’6” and 293 pounds.122 Dr. Tsai

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listed Ms. Green’s active and chronic problems (including diabetes “without mention of

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complication, not stated as uncontrolled[,]” hyperlipidemia, hypertension, obstructive sleep apnea,

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ulcerative colitis, obesity, asthma, lumbago, depressive disorder, positive PPD, osteoarthritis,

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frequent kidney stones, and urge incontinence), and reviewed her medical history (including Ms.

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Green’s active medications, allergies, and family medical history).123 Dr. Tsai treated Ms. Green

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19
114

Id.

115

21

Id.; see also AR 1050–51.

116

AR 1003.

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117

Id.

118

Id.

119

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AR 1004.

120

Dr. Tsai also treated Ms. Green at the Santa Clara Valley Medical Center.

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121

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See AR 514–17, 520–27, 565–68, 588–91, 600–04, 611–20, 831–35 (duplicate December 17, 2013
report), 844–47, 851–54, 865–67, 869–75, 879–82, 933, 936–42, 1025–28, 1032–35, 1059–62, 1069–
72.
122

See AR 566.

123

See, e.g., AR 520–21, 523.

ORDER – No. 17-cv-06637-LB

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for various ailments, including diabetes, hypertension, obstructive sleep apnea, hip pain, and back

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pain.124
During a May 20, 2013 visit, Dr. Tsai treated Ms. Green for obstructive sleep apnea and left-

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hip pain, among other treatments.125 With respect to sleep apnea, Dr. Tsai noted that Ms. Green

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used BiPAP nightly but often took it off because she had difficulty breathing while using it. Ms.

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Green felt tired often.126 Dr. Tsai noted that Ms. Green did not meet the criteria for oxygen.127 In

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regard to her left-hip pain, Dr. Tsai treated it with an injection into the greater trochanter and noted

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that it was likely caused by trochanteric bursitis.128
On July 29, 2013, five days after Ms. Green’s second surgery for incontinence, Dr. Tsai saw

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Ms. Green for left-hip pain.129 Ms. Green’s pain “flared up along with some low back pain” after

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United States District Court
Northern District of California

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the device was implanted “somewhere in [the] lower back.”130 Dr. Tsai noted that the injection

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into Ms. Green’s greater trochanter “didn’t help” and that it was painful for Ms. Green to climb

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stairs.131 She also noted that Ms. Green’s pain may have flared up due to her recent surgeries.132

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Dr. Tsai recommended that Ms. Green continue with her exercise and weight loss plan.133

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16
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19
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124

See, e.g., AR 520–21, 589–91.

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125

AR 590.

126

Id.

127

23

Id.

128

Id.

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129

AR 600.

130

Id.

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131

AR 603; see also AR 1017 (“[Ms. Green] had trochanteric injections by her PCP 2–3 times in the
past, which did not help much.”).

132

AR 603.

133

Id.

ORDER – No. 17-cv-06637-LB

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On August 14, 2013, Dr. Tsai noted that Ms. Green’s low-back pain likely resulted from a

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kidney stone.134 A CT scan showed “possible evidence of passed stone[.]”135 Ms. Green was

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advised to stop Flomax medication, as stone had likely passed.136
For Ms. Green’s back pain — “possible left sacroiliitis” — Dr. Tsai recommended that Ms.

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Green use Lidoderm ointment and reduce ibuprofen usage to once every two to three days.137

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During an August 28, 2013 physical, Dr. Tsai reported that Ms. Green had no tenderness over

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the lumbar spine or sacral area and normal internal and external range of motion of the left hip.138

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She also reported that Ms. Green’s incontinence had improved since her latest surgery.139
On October 9, 2013, Dr. Tsai again saw Ms. Green for hip problems.140 Dr. Tsai noted two

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instances in which Ms. Green fell backwards while trying to get up from a chair.141 Ms. Green had

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United States District Court
Northern District of California

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not experienced dizziness or imbalance but felt like “momentum pushe[d] her backwards.”142 Dr.

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Tsai also noted that it was harder for Ms. Green to get up from a sitting position on the floor.143

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Ms. Green’s weight had increased from August 2013 to October 2013.144 Although she tried to

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improve her diet and walk for exercise, she felt limited by hip pain and continued to drink soda.145

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Ms. Green said she would consider maintaining a food diary.146 Dr. Tsai discussed with Ms. Green

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the option of weight loss to help with her hip pain.147 Dr. Tsai also informed Ms. Green that she

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134

AR 611.

135

19

AR 612.

136

Id.

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137

AR 524.

138

AR 523.

139

22

AR 524.

140

Id.

23

141

Id.

142

Id.

143

25

Id.

144

Id.

26

145

Id.; see also AR 527.

146

AR 527.

147

Id.

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21

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ORDER – No. 17-cv-06637-LB

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does not do functional capacity evaluation forms for disability and advised Ms. Green to take the

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forms elsewhere.148
In a fill-in form dated December 17, 2013, Dr. Tsai diagnosed Ms. Green with “L hip OA”

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(left-hip osteoarthritis).149 Dr. Tsai reported that Ms. Green experienced left-hip pain, stiffness,

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limited mobility, and that she was unable to walk more than two to three minutes due to pain.150

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Dr. Tsai cited her clinical findings as a hip x-ray and “moderate OA[.]”151 From a list of twelve

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psychological conditions, Dr. Tsai reported that Ms. Green experienced one psychological

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condition — sleep disturbance — as a result of her pain.152 Ms. Green’s symptoms also

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“[o]ccasionally” interfered with the attention and concentration needed to perform “simple work

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tasks[.]”153 Dr. Tsai also reported the following functional limitations resulting from Ms. Green’s

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United States District Court
Northern District of California

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pain: (1) walking less than one block without rest or severe pain; (2) sitting for only thirty minutes

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at a time; (3) standing for five to ten minutes at a time; (4) walking around for five minutes every

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thirty minutes during an eight-hour workday; (5) taking four to five unscheduled breaks per day

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during an eight-hour workday; (6) using a cane or other assistive device; (7) never lifting more

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than ten pounds and only occasionally lifting less than ten pounds; (8) never squatting, never

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climbing stairs or ladders, and only rarely twisting and bending; and (9) likely being absent from

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work more than four days per month.154 Dr. Tsai further reported that Ms. Green did not need to

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elevate her legs with prolonged sitting.155 According to Dr. Tsai, Ms. Green’s limitations first

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began two years preceding her December 17, 2013 report.156

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21

148

22

Id.

149

AR 832.

23

150

Id.

151

Id.

152

25

AR 833.

153

Id.

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154

AR 833–35.

155

AR 834.

156

AR 835.

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27
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ORDER – No. 17-cv-06637-LB

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On February 26, 2014, Dr. Tsai saw Ms. Green for worsening left-hip pain — “some pins and

1
2

needles sensation in left toes” — and an employment development department (“EDD”) form.157

3

The “pins and needles” sensation occurred randomly, especially at night, and only in Ms. Green’s

4

left toes.158 Dr. Tsai noted that Ms. Green’s left-hip osteoarthritis appeared on an x-ray.159 She also

5

noted Ms. Green’s limping and that she had a normal range of motion in her left hip but pain with

6

internal and external rotation of that hip.160 Ms. Green had no tenderness in the lumbar spine or

7

left SI joint.161
Ms. Green had started to use a walker with a seat in it and could still only walk for

8
9

approximately ten to fifteen minutes at a time before needing to sit due to pain in the left hip.162
Dr. Tsai also noted that sitting or lying down helped with the pain.163 Ms. Green took 1000 mg of

11
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Northern District of California

10

Tylenol for her pain but such medication made her sleepy.164
On September 29, 2014, Dr. Tsai saw Ms. Green for diabetes and hip pain.165 Dr. Tsai noted

12
13

that Ms. Green swam for exercise approximately two hours per day, six days per week.166 Ms.

14

Green fell at the pool the week prior because she lost her balance.167 Ms. Green reported that she

15

was falling more frequently because if she lost her balance, she could not catch herself due to left-

16

hip pain.168 She also reported that she could not walk or stand on her left hip for more than five

17
18
19

157

AR 565.

20

158

Id.

159

AR 566.

160

22

AR 567.

161

Id.

23

162

AR 565.

163

Id.

164

25

Id.

165

AR 844.

26

166

Id.

167

Id.

168

Id.

21

24

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ORDER – No. 17-cv-06637-LB

15 

1

minutes and that she felt pain in her right hip as well.169 Ms. Green used a walker and cane, could

2

not go upstairs, and had trouble carrying heavier items such as trash.170 Dr. Tsai noted that Ms.

3

Green was on the wait list for a hip replacement.171 Dr. Tsai recommended that Ms. Green use

4

Lidoderm gel during the day and switch from Tramadol to Tylenol at night to control her pain.172

5

Dr. Tsai also submitted paperwork to the housing authority verifying Ms. Green’s need for

6

reasonable accommodation of her limited mobility due to hip pain.173
In a medical-source statement dated January 21, 2015, Dr. Tsai documented the following

7
8

changes in Ms. Green’s medical conditions: Ms. Green’s left-hip pain continued to worsen,

9

causing significant mobility issues and falls due to loss of balance.174 A December 18, 2013 lefthip x-ray showed “moderate to severe degenerative changes in the left hip[,]” and an April 4, 2014

11
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Northern District of California

10

evaluation by rheumatologist Dr. Marvi concluded that Ms. Green’s left-hip arthritis had

12

progressed since 2011.175 Dr. Tsai also reported that Ms. Green was evaluated by an orthopedic

13

surgeon for “total hip arthroplasty” and was placed on a waiting list for that procedure.176 She had

14

recently lost a “significant amount of weight” (more than fifteen pounds) in preparation for a left-

15

hip arthroplasty.177 Ms. Green also developed right hip pain, and another x-ray showed mild

16

arthritis in the right hip.178 Finally, Ms. Green could not stand or walk for more than five to ten

17

minutes at a time or sit still for more than twenty to thirty minutes at a time. She also needed to

18
19
20
169

Id.

170

22

Id.

171

AR 847.

23

172

Id.

173

Id.

174

25

AR 831.

175

Id.

26

176

Id.

177

Id.

178

Id.

21

24

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ORDER – No. 17-cv-06637-LB

16 

1

elevate her legs periodically while sitting, to hip level for approximately fifty percent of the

2

time.179

3

On February 20, 2015, Dr. Tsai again saw Ms. Green for hip pain.180 Ms. Green reported

4

having “spasms” in her right thigh, mainly at nighttime.181 She also reported that she put most of

5

her weight on her right leg due to left-hip pain.182 Dr. Tsai noted that Ms. Green’s right-thigh pain

6

likely resulted from overuse of her right leg due to left-hip pain.183 Dr. Tsai recommended that Ms.

7

Green try Baclofen, continue to take Tylenol at bedtime, and use a Lidoderm patch for pain

8

control.184 On August 8, 2015, Dr. Tsai noted that the Lidoderm patch helped with Ms. Green’s

9

hip pain.185
On August 12, 2015, Dr. Tsai saw Ms. Green for a medication refill and hip pain.186 Ms. Green

10

United States District Court
Northern District of California

11

reported daytime somnolence but said that she did not feel sleepy if she skipped her morning

12

medications.187
On January 13, 2016, Dr. Tsai saw Ms. Green for hip pain.188 Ms. Green reported that she was

13
14

“very stressed” the prior weekend regarding her finances and “wanted to give up.”189 Ms. Green

15

had thoughts of suicide but did not get to the point where she came up with a plan.190 She reported

16

no longer having suicidal thoughts after speaking to a friend and former therapist.191 Ms. Green

17
18

179

19

Id.

180

AR 865.

20

181

Id.

182

Id.

183

22

AR 867.

184

Id.

23

185

AR 872.

186

AR 936.

187

25

Id.

188

AR 1025.

26

189

Id.

190

Id.

191

Id.

21

24

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ORDER – No. 17-cv-06637-LB

17 

1

stated that she was frustrated because she could not improve her health or financial situation.192

2

She reported that chronic pain in her hips, back, and arms made her feel depressed.193 Ms. Green

3

stated that she had a history of nine suicide attempts “many years ago” by overdosing and abusing

4

alcohol.194 She reported improvement in her sleep with a new sleep machine and less daytime

5

sleepiness.195 Dr. Tsai referred Ms. Green to counseling and recommended antidepressants.196 Dr.

6

Tsai also noted that Ms. Green’s chronic pain was likely due to osteoarthritis and obesity.197
As of February 11, 2016, Dr. Tsai reported that Ms. Green’s mood was “more stable” and that

7
8

she denied feeling episodes of depression since her appointments a few weeks prior.198 Dr. Tsai

9

saw Ms. Green again on April 11, 2016.199 Ms. Green reported that she had recently gotten a dog,

10

which helped with her anxiety and mood and forced her to get out of the house and walk.200

United States District Court
Northern District of California

11

2.1.4

Maria Antoinette, Psy.D. — Examining

12

On May 23, 2014, Dr. Antoinette, a psychologist, examined Ms. Green at the request of the

13

SSA for disability determination purposes.201 The records reflect Ms. Green’s height and weight as

14

5’6” and 303 pounds.202 Dr. Antoinette considered Ms. Green’s chief complaints (depression,

15

degenerative disc disease, arthritis of the left hip, and diabetes) and reviewed the following: Ms.

16

Green’s medications; her history of past and present illness (depression since childhood); her

17
18
19
192

Id.

193

Id.

194

22

Id.

195

Id.

23

196

AR 1027.

197

AR 1028.

198

25

AR 1032.

199

AR 1059.

26

200

Id.

201

AR 574–76.

202

AR 574.

20
21

24

27
28

ORDER – No. 17-cv-06637-LB

18 

1

social history (no psychiatric problems but traumatic childhood); and her employment history

2

(including last job at Stratford School one year earlier).203
In regard to her level of functioning, Ms. Green stated that she was capable of performing her

4

personal grooming and hygiene and that she did household chores such as cooking, cleaning, and

5

laundry.204 Dr. Antoinette observed that Ms. Green had good grooming and hygiene, was not in

6

any form of physical distress, ambulated with the aid of a crane, and was obese.205 Dr. Antoinette

7

noted that Ms. Green was coherent and that she denied having hallucinations or suicidal or

8

homicidal ideation.206 She also noted that Ms. Green was mildly depressed “with inappropriate

9

affect.”207 Dr. Antoinette’s medical-source statement also reflected the following unimpaired

10

abilities, among others: (1) able to relate to others in an appropriate manner; (2) able to follow

11
United States District Court
Northern District of California

3

complex, detailed instructions; (3) able to maintain appropriate level of concentration to perform

12

simple tasks; (4) able to tolerate normal daily stress and pressures; and (5) capable of managing

13

funds.208

14

2.1.5

Roger Fast, M.D. — Examining

15

Dr. Roger Fast examined Ms. Green on April 16, 2014.209 He opined as follows: Ms. Green

16

could occasionally lift and carry twenty pounds and frequently carry ten pounds, and she could

17

stand or walk for four hours and sit for six hours in an eight-hour workday.210 In considering her

18

limping gait, pain and tenderness in the left hip, and obesity, Dr. Fast opined that Ms. Green had a

19

“narrow light” RFC.211

20
21

203

22

Id.

204

AR 575.

23

205

Id.

206

Id.

207

25

Id.

208

AR 576.

26

209

AR 89–90.

210

AR 89.

211

AR 90.

24

27
28

ORDER – No. 17-cv-06637-LB

19 

2.1.6

1
2
3
4
5
6
7

On September 17, 2014, Dr. Nasrabadi opined as follows: Ms. Green could occasionally lift
and carry twenty pounds and frequently carry ten pounds, and she could stand or walk for four
hours and sit for six hours in an eight-hour workday.212 Dr. Nasrabadi reported that, based on Ms.
Green’s obesity, her reports of hip pain and lumbago were credible.213 In considering her limping
gait, pain and tenderness in the left hip, and obesity, Dr. Nasrabadi opined that Ms. Green had a
“narrow light” RFC.214
2.2

8

United States District Court
Northern District of California

11
12
13
14
15
16
17
18

Other Opinion Records
2.2.1

9
10

A. Nasrabadi, M.D. — Non-Examining

Andrea Black

Ms. Green’s friend of fourteen years, Andrea Black, submitted a third-party function report in
support of Ms. Green’s disability claims.215 Ms. Black reported that she spent time with Ms. Green
“once to two times a week” during which time they “[watched] movies, shopp[ed], [hung] around
house[.]”216 Ms. Black reported that Ms. Green was “[u]nable to walk a block” and “[u]nable to
shop at Ikea[,]” and that for Ms. Green, it was “[h]ard to get up off the ground/floor[.]”217 Ms.
Black also reported that Ms. Green “[f]eeds & changes litter box” for Ms. Green’s pet but that
“[b]ending down and lifting is difficult for her.”218 According to Ms. Black, before Ms. Green’s
alleged disability, Ms. Green “[u]sed to go [c]amping, [s]hopping without cane or use of
wheelchair[.]”219 “Side sleeping is difficult for her.”220

19
20
21

212

22

AR 108.

213

AR 109.

23

214

Id.

215

AR 319–27.

216

25

AR 319.

217

Id.

26

218

AR 320.

219

Id.

220

Id.

24

27
28

ORDER – No. 17-cv-06637-LB

20 

In terms of personal care, Ms. Green dressed “slowly” because “bending [is] difficult.”221 Ms.

1
2

Black reported that, to her knowledge, Ms. Green had no problem bathing, caring for her hair,

3

shaving, feeding herself, or using the toilet.222 Ms. Green was able to prepare simple meals for

4

herself, such as “[s]andwiches, frozen dinners[,]” during “half the week — 2–3 times a week.”223

5

But in preparing meals, Ms. Black reported, it was “[h]ard for [Ms. Green] to stand. She does not

6

have the energy.”224

7

In regard to Ms. Green’s house and yard work, Ms. Black reported that “[s]weeping and

8

mopping is not ideal for her. Laundry [is] okay” but Ms. Green needed help “lifting clothes from

9

point A to point B.”225 Ms. Black estimated that Ms. Green did chores approximately “once or

10

twice a week.”226 When not in pain, “[Ms. Green] will do what she can.”227
Ms. Black further reported that Ms. Green was able to go outside “daily[,]” alone, and travels

United States District Court
Northern District of California

11
12

by car.228 Ms. Green shopped for “food, clothes . . . depend[ing] on her pain level.”229 She was

13

also able to pay bills, count change, handle a savings account, and use a checkbook or money

14

orders.230 According to Ms. Black, Ms. Green’s hobbies included “[w]atching TV, playing video

15

games, [w]atching [m]ovies” and “anything that involves cats.”231 In addition, about “2–3 times a

16

week” Ms. Green would “chat on [com]puter, chat on phone, [and do g]eneral outings[.]”232 Ms.

17

Black also reported that Ms. Green went to Ms. Black’s house and Ms. Green’s parents’ house on

18
19

221

Id.

20

222

Id.

223

AR 321.

224

22

Id.

225

Id.

23

226

Id.

227

AR 322.

228

25

Id.

229

Id.

26

230

Id.

231

AR 323.

232

Id.

21

24

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28

ORDER – No. 17-cv-06637-LB

21 

1

a regular basis.233 Ms. Black reported changes to Ms. Green’s “[w]alking with friends at park, mall

2

[and] [g]oing [b]owling” since the onset of Ms. Green’s conditions.234
Ms. Black further reported that Ms. Green’s conditions affected the following activities:

4

lifting, squatting, bending, standing, walking, sitting, kneeling, and stair climbing.235 Ms. Black

5

elaborated as follows: “squatting = difficult, walking = only less a block length[,] kneeling = is

6

out!, stair climbing not as easy has to stop after the 2nd or 3rd step.”236 Ms. Green could walk

7

“half a block” before needing a “5–10 min.” rest.237 Ms. Black also reported that Ms. Green could

8

follow written instructions and “take[s] notes with spoken instructions if it details more than three

9

things.”238 It was “[n]ot a problem” for Ms. Green to deal with authority figures.239 Ms. Green’s

10

ability to handle stress was “less than average[,]” and her ability to handle changes in her routine

11
United States District Court
Northern District of California

3

was “[a]verage[.]”240
Ms. Black reported that Ms. Green was prescribed a cane “[s]ometime in 2012” and “she just

12
13

got” a walker.241 Ms. Black further indicated that Ms. Green needed aid “walking, getting out of

14

car and getting out of a chair.”242

15

2.3

16

In regard to her work history, Ms. Green testified that, at the time of the hearing, she worked

17

Ms. Green’s Testimony

from her San Jose home as a patient scheduler for a doctor in Burlingame.243 She did that job

18
19
233

Id.

234

AR 324.

235

22

Id.

236

Id.

23

237

Id.

238

Id.

239

25

AR 325.

240

Id.

26

241

Id.

242

Id.

243

AR 36.

20
21

24

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28

ORDER – No. 17-cv-06637-LB

22 

1

because she “ha[d] no other income coming in.”244 Ms. Green added that she “cannot do any job

2

where [she is] going to be standing or sitting for long periods of time.”245
That job entailed scheduling appointments with patients, ordering prescriptions, and answering

3
4

office phones.246 Beginning June 6, 2016 through at least November 16, 2016, Ms. Green worked

5

in that capacity full-time — eight hours per day, five days per week, “or more if needed,

6

depending on [the doctor’s] patient load” — and earned $11 per hour.247 She previously worked in

7

that capacity part-time, from November 11, 2014 through June 6, 2016, and earned $10 per

8

hour.248
Before she worked as a patient scheduler, Ms. Green worked as a lunch assistant at Stratford

9

School, a private elementary school, for approximately four and one-half years, ending in or

11
United States District Court
Northern District of California

10

around February 2013.249 At that job, Ms. Green distributed lunches and monitored children on the

12

playground.250
Ms. Green completed two years of junior college.251 She had a driver’s license, could operate a

13
14

vehicle, and knew how to use a computer.252

15

In regard to her hip pain, Ms. Green testified that if she was on her feet for too long, she

16

tended to feel pain on her “left side and sometimes it sho[t] down.”253 She could walk only short

17

distances and had to keep moving so that her leg did not get stiff.254 She “kind of wobble[d] side

18

to side because [she could not] walk normally and it just tend[ed] to take a lot of energy out of

19
244

Id.

245

Id.

246

22

Id.

247

Id.

23

248

AR 36–37.

249

AR 39–40.

250

25

AR 329.

251

AR 38.

26

252

AR 38–39.

253

AR 47.

254

Id.

20
21

24

27
28

ORDER – No. 17-cv-06637-LB

23 

1

[her].”255 She testified that she could walk unassisted, at most, for one block.256 She used her

2

walker when she was in pain and felt like she was going to collapse.257 Ms. Green testified that she

3

also started to use two walking canes approximately one to two years before the hearing because

4

they provided more stability.258 She testified that she could stand for “about 15 minutes” before

5

she would begin to feel pain and have to sit down.259 She also testified that, after sitting for long

6

periods of time, “the pain [would] start shooting in [her] lower back” and she tended to move to

7

relieve the pain.260 Ms. Green further testified that elevating her legs alleviated pain in her hip and

8

swelling in her feet.261
At the time of the hearing, Ms. Green was on a one-year waiting list for hip surgery.262 She

9

testified that she had to “hold off” on her hip surgery until she had gastric-bypass surgery, which

11
United States District Court
Northern District of California

10

she “ha[d] been trying to do for the last few years[.]”263 She testified that her gastric-bypass

12

surgery was scheduled to take place the week following the hearing.264 Ms. Green estimated that

13

her hip surgery would take place approximately six months after her gastric-bypass surgery.265
The ALJ asked Ms. Green how she had been dealing with her limitations since she started

14
15

working full-time as a patient scheduler.266 She testified that she would “kind of forget about

16

what’s around [her]” and “forget sometimes to stand.”267 After sitting for about one hour, it was

17
18

255

19

Id.

256

AR 47–48.

20

257

AR 48.

258

Id.

259

22

Id.

260

Id.

23

261

AR 61–62.

262

AR 42–43.

263

25

AR 43.

264

Id.

26

265

Id.

266

AR 49.

267

Id.

21

24

27
28

ORDER – No. 17-cv-06637-LB

24 

1

very hard for her to stand because of her hip and knees.268 She would get up and walk around for

2

approximately ten to fifteen minutes after sitting for “[m]aybe an hour or two.”269 She also

3

testified that she could safely lift “under ten pounds[,]” but if the weight was any heavier, her back

4

“lets [her] know about it[.]”270 She stated that she had degenerative disc disease in her lower

5

back.271
Ms. Green testified that arthritis in her hands also prohibited her from lifting “if it’s too heavy”

6
7

but she did not have radiographic imaging of her hands.272
The ALJ then asked Ms. Green about her issues with incontinence.273 In or around February

8
9

2013, Ms. Green had to wear “protection” for her incontinence and she sometimes did not make it
to the bathroom in time.274 It also caused her to get up approximately six to seven times each

11
United States District Court
Northern District of California

10

night, which obstructed her sleep.275 She testified that she was “always tired” due to her

12

incontinence and sleep apnea.276 After her surgery to place a sacral-nerve stimulator, Ms. Green’s

13

incontinence “reduced considerably.”277 Ms. Green’s issue with leakage resolved “[s]omewhat,

14

but not completely” and it was better than it was before that surgery.278 For the leakage, Ms. Green

15

used pads and changed those throughout the day.279

16
17
18
19

268

Id.

20

269

Id.

270

Id.

271

22

Id.

272

AR 49–50.

23

273

AR 50.

274

Id.

275

25

Id.

276

Id.

26

277

AR 52.

278

Id.

279

AR 52–53.

21

24

27
28

ORDER – No. 17-cv-06637-LB

25 

When asked by her attorney what would make it difficult for her to continue her full-time job

1
2

as a patient scheduler, Ms. Green testified that she would have issues with her back and hip.280 She

3

further testified that she dealt with her pain at her full-time job because she “[could not] afford not

4

to work.”281

5

2.4

6

Vocational Expert Ronald Morrell testified before the ALJ on November 16, 2016.282 He

Vocational Expert Testimony

7

identified Ms. Green’s current work as that of an appointment clerk (DOT #237.367–010), and her

8

past work as that of a receptionist (DOT #237.367–038).283
The ALJ asked VE Morrell whether an individual of Ms. Green’s age, education, and

9

vocational history could perform any of her past work if that person had the following limitations:

11
United States District Court
Northern District of California

10

(1) occasionally capable of lifting and carrying twenty pounds and frequently capable of lifting

12

and carrying twenty pounds; (2) standing and walking two hours per eight-hour workday; (3)

13

sitting six hours per eight-hour workday; (4) never using ladders, scaffolds, or ropes; (5) capable

14

of reaching, handling and fingering bilaterally; (6) no limitations in hearing, seeing, or speaking;

15

(7) and no environmental limitations.284 VE Morrell testified that Ms. Green could not perform

16

work as a teacher aide or in food service but she could perform receptionist and/or appointment

17

clerk jobs.285 He further testified that the use of a walker or two walking sticks would not affect

18

the ability of an individual to perform the sedentary jobs mentioned above.286
VE Morrell then considered whether an individual could perform such work with the added

19
20

limitation of needing to take breaks every hour for ten to fifteen minutes.287 He testified there be

21
22

280

AR 53–54. Ms. Green also testified that she had tendinitis and carpal tunnel in both arms and
hands, but there is no recent evidence of those issues in the record. Id.

281

AR 62.

282

AR 38.

283

25

AR 38, 40.

284

AR 55.

26

285

AR 56.

286

AR 58.

287

AR 57–58.

23
24

27
28

ORDER – No. 17-cv-06637-LB

26 

1

no work for such an individual.288 VE Morrell testified that there was work in the national

2

economy for an individual “off task” approximately fifteen percent of the workday due to pain or

3

other symptoms, but no work for an individual “off task” more than 15 percent during the

4

workday.289
VE Morrell then considered whether an individual’s need to elevate her legs while sitting to

5
6

hip level approximately fifty percent of the time would affect that person’s ability to work.290 VE

7

Morrell testified that there would be no work available to such a person.291

8

2.5

9

Medical Expert Subramaniam Krishnamurthi, M.D. testified before the ALJ on November 16,

Medical Expert Testimony

2016.292 He testified that, based on his review of Ms. Green’s medical records and his medical

11
United States District Court
Northern District of California

10

training and experience, Ms. Green’s impairments did not meet or equal any listing of the

12

Commissioner either individually or in combination.293 Dr. Krishnamurthi testified that regarding

13

Ms. Green’s arthritis of the left hip, she maintained RFC to “lift frequently 10 pounds,

14

occasionally 20 pounds, and sit six out of eight-hour period, stand and walk together total two out

15

of eight-hour period.”294 Dr. Krishnamurthi testified that Ms. Green could frequently use her

16

hands, including reaching, handling, fingering, feeling, and grasp bilaterally.295 Also according to

17

Dr. Krishnamurthi, Ms. Green could never use ladders, scaffolds, or ropes but could occasionally

18

bend, stoop, kneel, and crouch.296 Ms. Green had no environmental limitations but had high blood

19

pressure and diabetes.297

20
288

AR 58.

289

22

Id.

290

AR 59–60.

23

291

AR 60.

292

AR 41.

293

25

Id.

294

Id.

26

295

AR 42.

296

Id.

297

Id.

21

24

27
28

ORDER – No. 17-cv-06637-LB

27 

1

2.6

2

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

3

Administrative Findings

was disabled and concluded that she was not.298

4

At step one, the ALJ found that Ms. Green engaged in substantial gainful activity for the time

5

period of June 6, 2016 through November 16, 2016 (the date of the hearing).299 In so holding, the

6

ALJ explained that Ms. Green reported “working on a ‘full-time’ basis, 8 hours a day, 8 days a

7

week, or even more if the doctor needs it, as a medical appointment scheduler.”300 For the time

8

period from January 9, 2013 through June 6, 2016, the ALJ found that Ms. Green did not engage

9

in substantial gainful activity.301 The ALJ’s remaining findings addressed the time period when

10

Ms. Green was not engaged in substantial gainful activity.302
At step two, the ALJ found that Ms. Green had the following severe impairments: left-hip pain

United States District Court
Northern District of California

11
12

associated with degenerative change in the sacroiliac (“SI”) joint in combination with obesity but

13

without end organ damage, such as diabetic nephropathy, congestive heart failure, or chronic

14

kidney disease; diabetes “without mention of complication and not stated as uncontrolled;”

15

hypertension; non-durational colitis by history; sleep apnea and not tolerant of CPAP but with

16

benefit from BiPAP; incontinence but improved with nerve generator implant; and non-durational

17

back pain or sciatica and without x-ray findings.303 Due to a lack of objective medical signs and

18

laboratory findings, the ALJ found that all other conditions mentioned in the record — such as

19

Ms. Green’s “mild” carpal tunnel syndrome, asthma, and depression — were “non-severe”

20

impairments for purposes of the decision.304

21
22
298

AR 16–26.

299

AR 17.

300

25

Id.

301

AR 17–18.

26

302

AR 18.

303

Id.

304

AR 18–19.

23
24

27
28

ORDER – No. 17-cv-06637-LB

28 

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

1
2

impairments, that met or medically equaled the severity of one of the listed impairments.305 The

3

ALJ explained that the record “does not document clinical signs or findings to show durational

4

inability to use the limbs effectively or of marked gait dysfunction.”306 In addition, Ms. Green’s

5

activities of daily living, including sustained part-time work in 2013 through 2015 and full-time

6

work in 2016, demonstrated that Ms. Green “is at least relatively functional using her cane or two

7

canes[.]”307 The ALJ further explained that there is no specific listing for obesity, and there is no

8

evidence of end organ damage such as diabetic nephropathy, congestive heart failure, or chronic

9

kidney disease.308
Before considering the fourth step, the ALJ determined that Ms. Green had the residual

10

United States District Court
Northern District of California

11

functional capacity to perform light work, except that she could only stand and walk for two hours

12

cumulatively in an eight-hour workday.309 In addition, Ms. Green should never climb ladders,

13

ropes, or scaffolding, and only occasionally should climb stairs or ramps, or balance, stoop, kneel,

14

crouch, or crawl.310 In making this determination, the ALJ afforded significant weight to the

15

impartial medical expert, who concluded that Ms. Green only used a cane and walker

16

intermittently and on many different examinations, her gait was reported to be “grossly within

17

normal limits.”311 The impartial medical expert further testified that, according to the record, Ms.

18

Green’s implanted device had improved her urinary incontinence control and did not support the

19

degree of limitation as alleged by Ms. Green.312

20
21
22

305

AR 22.

23

306

Id.

307

Id.

308

25

Id.

309

Id.

26

310

Id.

311

Id.

312

AR 22–23.

24

27
28

ORDER – No. 17-cv-06637-LB

29 

The ALJ rejected the forms and letters submitted by Ms. Green’s treating physician Dr. Tsai

1
2

because Dr. Tsai’s fill-in form purportedly did not include correlation with laboratory findings or

3

examination findings, nor did it include medical foundation for the “assessment of extreme

4

limitations [] as [Ms. Green] was admittedly working part-time at the time of this form, for years,

5

then changed to full-time work in June 2016.”313 In addition, the ALJ explained, Dr. Tsai’s form

6

cited a “vague and inappropriate” onset date for Ms. Green’s alleged “bedridden debilitation” as

7

“2 years ago[,]” which would have predated Ms. Green’s alleged onset date by more than one full

8

year.314 The ALJ said that Dr. Tsai’s second letter cited worsening pathology for Ms. Green’s left

9

hip but provided no updated radiographic findings.315 The ALJ explained that, although Ms. Green
reported being on “waiting lists” for total hip-replacement and gastric-bypass surgeries, he found

11
United States District Court
Northern District of California

10

no corroborative pre-surgical examinations or plans.316 Rather, the ALJ noted, Ms. Green missed

12

mandatory pre-surgical appointments.317 For these reasons, the ALJ accorded no significant

13

weight to the “morbidly less than sedentary assessments” in Dr. Tsai’s fill-in form and letter.318
To make this RFC finding, the ALJ followed a two-step process to determine (1) whether there

14
15

were underlying medically determinable physical or mental impairments that could reasonably be

16

expected to produce Ms. Green’s pain or other symptoms, and (2) the extent to which the

17

impairments limited Ms. Green’s functioning.319 For this purpose, if statements about the

18

intensity, persistence, or functionally limiting effects of pain or other symptoms are not

19

substantiated by objective medical evidence, the ALJ must consider other evidence in the record to

20

determine whether Ms. Green’s symptoms limit her ability to do work-related activities.320

21
22

313

AR 23.

23

314

Id.

315

Id.

316

25

Id.

317

Id.

26

318

Id.

319

AR 24.

320

Id.

24

27
28

ORDER – No. 17-cv-06637-LB

30 

1

The ALJ considered multiple credibility factors, including the following: (1) Ms. Green’s

2

intermittent complaints; (2) the purported lack of corroborative clinical findings; (3) the purported

3

absence of corroborative diagnostic findings; (4) Ms. Green’s disability-seeking behaviors; and (4)

4

her receipt of routine and conservative treatments.321
The ALJ considered that although she alleged January 9, 2013 as her disability onset date, Ms.

5
6

Green continued to work on at least a part-time basis of more than twenty hours per week

7

throughout “virtually all relevant periods.”322 Further, the sustained part-time work did not include

8

Ms. Green’s eight to ten hours of nanny duties each week.323 The ALJ considered Ms. Green’s

9

testimony that she could walk only “for a very short distance, perhaps 1 block” and that she could
sit only “for about 1–2 hours and needs to change positions.”324 Ms. Green testified that, at the

11
United States District Court
Northern District of California

10

time of the hearing, she was on a liquid-only diet in anticipation of gastric-bypass surgery and felt

12

weak and sleepy, so she slept through her alarm.325 She used pads for her urinary incontinence,

13

said that she had tendonitis and carpal tunnel syndrome, diabetes, and high blood pressure, and

14

reported left-hip arthritis and her need to have her right hip replaced.326

15

The ALJ considered the purportedly inconsistent reports regarding Ms. Green’s hip

16

impairments.327 The evidence indicated that Ms. Green had been assessed with left-hip

17

osteoarthritis, or without recent x-rays, “generalized osteoarthritis[.]”328 But, the ALJ noted, Ms.

18

Green was reported to have “likely” tendonitis or bursitis or possibly diabetic neuropathy, which

19

would be unrelated to arthritis.329 Furthermore, although Ms. Green cited a “radiology report” as

20
21

321

22

AR 24–26.

322

AR 24.

23

323

Id.

324

Id.

325

25

Id.

326

Id.

26

327

AR 24–25.

328

AR 24.

329

Id.

24

27
28

ORDER – No. 17-cv-06637-LB

31 

evidence of her hip impairments, the report showed only a “grossly normal” chest x-ray.330 The

2

ALJ found no x-rays in the record showing moderate to severe osteoarthritis and identified only a

3

2015 finding regarding a “suboptimal visual[]” on a left-hip x-ray, in which the radiologist

4

purportedly agreed with a prior impression of osteoarthritis.331 The ALJ concluded that there was

5

“only a solitary finding of ‘degenerative changes’ of the SI joints but with normal sacrum and

6

otherwise normal tailbone.”332 Even accepting as accurate reports of “moderate to severe” left-hip

7

osteoarthritis, without any MRI report, the ALJ questioned Ms. Green’s testimony regarding

8

needing total hip replacement “without such usual diagnostic findings” in cases like “end stage

9

arthritis or necrosis.”333 The ALJ considered information in the record indicating that, as of June

10

22, 2015, Ms. Green stopped working due to right-hip pain, but noted that Ms. Green repeatedly

11
United States District Court
Northern District of California

1

reported left-hip pain and that she was in fact working in 2015.334
In regard to Ms. Green’s claim of severe diabetes, the ALJ found there was no evidence of

12
13

diabetic retinopathy or diabetic peripheral neuropathy, but rather found her diabetes had been

14

described as “without mention of complications and not stated as uncontrolled[.]”335 She was,

15

admittedly, “still drinking soda[.]”336 The ALJ further considered the fact that medical treatment

16

such as Ms. Green’s sacral-nerve implant had improved her urinary incontinence symptoms.337

17

Moreover, although Ms. Green testified that she could not do any job involving sitting or standing,

18

the ALJ found that she contradicted herself by performing her current job in that fashion, as she

19

sustained that work for years on a part-time basis and since June 2016 on a full-time basis.338 Ms.

20
21

330

22

Id.

331

Id.

23

332

Id.

333

AR 24–25.

334

25

AR 25.

335

Id.

26

336

Id.

337

Id.

338

Id.

24

27
28

ORDER – No. 17-cv-06637-LB

32 

1

Green claimed that she worked only twenty-five hours per week in 2014 through June 2016, but

2

the ALJ found no medical explanation in the record to medically support a finding that Ms. Green

3

was limited to working only twenty-five hours per week during that time.339 In addition, Ms.

4

Green admitted to an additional eight to ten hours of work each week as a nanny during that time

5

period.340
In regard to her mental health, Ms. Green reported that she had suffered severe depression for

6

20 years.341 The ALJ determined, however, that the record documents no psychiatric or

8

psychotherapy treatment, and the consultative psychiatrist found no significant mental limitations

9

based on her full status evaluation and interview.342 Although the record suggested that Ms. Green

10

experienced some degree of over-sedation, Ms. Green admitted to making that realization herself

11
United States District Court
Northern District of California

7

and adjusting her medication accordingly.343
Finally, the ALJ considered a third-party function report submitted by Ms. Green’s friend of

12
13

fourteen years, Andrea Black. The ALJ found that the form “essentially repeat[ed] the claimant’s

14

own subjective complaints[,]” such as Ms. Green’s inability to walk or shop.344 Ms. Black

15

reported, however, that Ms. Green engaged in “relatively full activities of daily living and social

16

functioning[,]” including the ability to self-groom, leave the house daily, drive a car, prepare

17

simple meals, shop in public, pay bills and handle bank accounts, watch TV, and take care of pets,

18

amongst other activities.345

19

After considering the evidence, the ALJ determined that Ms. Green’s impairments could

20

reasonably be expected to cause the alleged symptoms.346 But her statements concerning the

21
22

339

Id.

23

340

Id.

341

Id.

342

25

Id.

343

Id.

26

344

Id.

345

AR 25–26.

346

AR 26.

24

27
28

ORDER – No. 17-cv-06637-LB

33 

1

intensity, persistence and limiting effects of those symptoms were not entirely consistent with the

2

evidence in the record.347

3

As to step four, the ALJ determined that Ms. Green was capable of performing past relevant

4

work as an appointment clerk/receptionist and an administrative receptionist.348 Such work, the

5

ALJ explained, does not require the performance of work-related activities precluded by Ms.

6

Green’s RFC.349 In so holding, the ALJ relied upon the vocational expert’s opinion that Ms.

7

Green’s self-reported use of two canes would not preclude her ability to function successfully at

8

these jobs.350 Additionally, the ALJ found that Ms. Green could elevate her legs appropriately at

9

such jobs in the outside workforce, as she reports doing at home.351
In comparing Ms. Green’s RFC with the physical and mental demands of such work, the ALJ

11
United States District Court
Northern District of California

10

found that Ms. Green could perform such work.352 The ALJ thus found Ms. Green “not disabled”

12

at the fourth step of the analysis.353 Accordingly, the ALJ held that Ms. Green had not been under

13

a disability during the relevant time period and denied Ms. Green SSDI and SSI benefits.354

14
STANDARD OF REVIEW

15

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

16
17

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

18

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

19

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

20

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

21

§ 405(g). “Substantial evidence means more than a mere scintilla but less than a preponderance; it

22
23
24
25
26
27
28

347

Id.

348

Id.

349

Id.

350

Id.

351

Id.

352

Id.

353

Id.

354

Id.

ORDER – No. 17-cv-06637-LB

34 

1

is such relevant evidence as a reasonable mind might accept as adequate to support a

2

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

3

uphold “such inferences and conclusions as the [Commissioner] may reasonably draw from the

4

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

5

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

6

the ALJ’s decision and may not substitute its own decision. Tackett v. Apfel, 180 F.3d 1094, 1097–

7

98 (9th Cir. 1999). “Finally, [a court] may not reverse an ALJ’s decision on account of an error

8

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

9
GOVERNING LAW

10

United States District Court
Northern District of California

11

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

12

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

13

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

14

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

15

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

16

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

17

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

18

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

19

C.F.R. § 404.1520).

20
21
22
23
24
25
26
27
28

Step One. Is the claimant presently working in a substantially gainful activity? If so,
then the claimant is “not disabled” and is not entitled to benefits. If the claimant is
not working in a substantially gainful activity, then the claimant’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).
Step Two. Is the claimant’s impairment (or combination of impairments) severe? If
not, the claimant is not disabled. If so, the evaluation proceeds to step three. See 20
C.F.R. § 404.1520(a)(4)(ii).
Step Three. Does the impairment “meet or equal” one of a list of specified
impairments described in the regulations? If so, the claimant is disabled and is
entitled to benefits. If the claimant’s impairment does not meet or equal one of
the impairments listed in the regulations, then the case cannot be resolved at step
three, and the evaluation proceeds to step four. See 20 C.F.R. § 404.1520(a)(4)(iii).
ORDER – No. 17-cv-06637-LB

35 

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).

1
2
3

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.

4
5
6
7
8
9

For steps one through four, the burden of proof is on the claimant. At step five, the
burden shifts to the Commissioner. Gonzales v. Sec’y of Health & Human Servs., 784 F.2d 1417,

11
United States District Court
Northern District of California

10

1419 (9th Cir. 1986).

12

ANALYSIS

13

Ms. Green contends that the ALJ erred by (1) rejecting the opinions of Ms. Green’s treating

14

and examining doctors, (2) rejecting Ms. Green’s testimony, (3) rejecting lay-witness testimony,

15

and (4) determining that Ms. Green could perform relevant past work.355

16
17

1. Whether the ALJ Properly Weighed Medical-Opinion Evidence

18

Ms. Green argues that the ALJ erred because he improperly weighed the medical-opinion

19

evidence.356 The court agrees with Ms. Green.357 The court first discusses the law governing the

20

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

21

under the appropriate standard.

22
23
24
25
26
27
28

355

Mot. – ECF No. 28 at 6.

356

Mot. – ECF No. 28 at 16–18.

357

The court agrees with Ms. Green as to the ALJ’s improper weighing of treating physician Dr. Tsai’s
assessments. To the extent Ms. Green asserts that the ALJ should have credited the “supporting
opinions” from Timothy Ong, M.D., and Victoria Chen, M.D. (Mot. – ECF No. 28 at 14), those two
doctors did not provide any opinion regarding Ms. Green’s functional limitations, but rather examined
her once and twice, respectively, mostly before the alleged onset date. See AR 802–06, 811–15, 819–
22.
ORDER – No. 17-cv-06637-LB

36 

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

1
2

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

3

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

4

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

5

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

6

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

7

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

8
9

guide [the] analysis of an ALJ’s weighing of medical evidence.”358 Ryan v. Comm’r of Soc. Sec.,
528 F.3d 1194, 1198 (9th Cir. 2008) (citing 20 C.F.R. § 404.1527). Social Security regulations

11
United States District Court
Northern District of California

10

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

12

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

13

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

14

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

15

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

16

Lester, 81 F.3d at 830); Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996).
An ALJ may disregard the opinion of a treating physician, whether or not controverted.

17
18

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

19

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

20

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

21

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

22

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

23

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

24

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

25

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

26
27
28

358

The Social Security Administration promulgated new regulations, including a new § 404.1521,
effective March 27, 2017. The previous version, effective to March 26, 2017, governs based on the
date of the ALJ’s hearing, November 16, 2016.

ORDER – No. 17-cv-06637-LB

37 

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

In addition to the medical opinions of the “acceptable medical sources” outlined above, the

21

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

22

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

23

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

24

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

25

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

26

nonetheless, an “ALJ may discount the testimony” or an opinion “from these other sources if the

27

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

28

and citations omitted).
ORDER – No. 17-cv-06637-LB

38 

The ALJ rejected treating physician Dr. Tsai’s RFC assessment wholesale, finding it

1
2

inconsistent with other evidence in the record.359 He explained as follows:

3

In this case, the record includes [] a fill-in form submitted and added to the record
twice, at Ex. 2F and Ex. 11F. Neither is accorded any significant weight because it
includes no correlation with laboratory findings or examination findings in treatment
notes. Therefore, there is no medical foundation offered for the assessment of
extreme limitations even as the claimant was admittedly working part-time at the
time of this form, for years, and then changed to full-time work in June 2016. Further
the form cites a vague and inappropriate onset date by more than a full year [sic].
The later letter submitted by Dr. Tsai is not much better in that it cites worsening
pathology for the claimant’s left hip but provides no updated radiograph findings.360
. . . While it is true, that the claimant reports being on “waiting lists” for total hip
replacement and gastric-bypass surgeries, the undersigned finds no corroborate presurgical examinations or plans. . . . For these reasons, the undersigned rejects and
accords no significant weight to the morbidly less than sedentary assessments in the
fill-in forms and letters submitted by Dr. Tsai.361

4
5
6
7
8
9
10

United States District Court
Northern District of California

11

The ALJ’s first reason for rejecting Dr. Tsai’s opinion — that it “includes no correlation with

12
13

laboratory findings or examination findings” — does not constitute a specific and legitimate

14

reason to discount Dr. Tsai’s RFC assessment because it is inaccurate. Contrary to the ALJ’s

15

assertion, the record includes multiple hip x-rays showing moderate to severe hip degeneration.

16

Although the ALJ correctly points out that a June 22, 2015 x-ray of Ms. Green’s left hip was

17

inconclusive due to “suboptimal visualization[,]”362 at least two other x-ray images support Dr.

18

Tsai’s assessment and treatment regarding Ms. Green’s hip conditions.363 First, a December 18,

19

2013 left-hip x-ray shows “moderate to severe degenerative changes of the left hip joint[.]”364

20

Second, a December 15, 2014 x-ray — taken one month before Dr. Tsai’s RFC letter — shows

21

“[m]oderate to marked apparent degenerative change at the left hip[.]”365 The ALJ erred by not

22
359

AR 22–23.

360

AR 23.

361

25

Id.

362

AR 1152.

26

363

See AR 775, 1147–48.

364

AR 775.

365

AR 1147–48.

23
24

27
28

ORDER – No. 17-cv-06637-LB

39 

1

evaluating this evidence. “[C]arefully search[ing] the record” and not finding significant medical

2

evidence is not a specific and legitimate reason for discounting a medical opinion.366 See

3

Garrison, 759 F.3d at 1012–13 (“an ALJ errs when he rejects a medical opinion or assigns it very

4

little weight while doing nothing more than ignoring it”).
The ALJ also erred by discounting Dr. Tsai’s assessment on account of her supposedly

5
6

“conservative” treatment.367 Dr. Tsai attempted to treat Ms. Green’s hip pain with steroid

7

injections,368 which were ineffective,369 as well as physical therapy.370 But these treatments did not

8

result in “significant improvement.”371 Dr. Tsai’s treatment notes document worsening pain, more

9

frequent falls, and a decreased ability to stand and walk.372 “Any evaluation of the aggressiveness
of a treatment regimen must take into account the condition being treated.” Revels v. Berryhill,

11
United States District Court
Northern District of California

10

874 F.3d 648, 667 (9th Cir. 2017). Ms. Green received multiple hip injections373 and was

12

prescribed a variety of medications for her pain, including Vicodin and Codeine.374 She also

13

attended at least seven physical therapy sessions,375 during which she was “teary eyed/crying []

14

regarding her hip pain[.]”376 The ALJ provided no explanation why he deemed this treatment

15

“conservative” for Ms. Green’s hip osteoarthritis. See id. (doubting that “epidural steroid shots . . .

16

qualify as ‘conservative medical treatment.’”) (quoting Garrison, 759 F.3d at 1015 n.20).

17
18
19

366

20

AR 21.

367

AR 23.

21

368

See AR 538, 589–90, 1003, 1017, 1023.

369

22

See AR 603 (“Injection into greater trochanter didn’t help.”); see also AR 1003 (“[I]njections into
bursitis by GP not helpful already on waitlist”).

23

370

AR 701–19.

371

AR 1017.

372

25

See AR 567, 953, 955, 1003, 1017, 1024.

373

See AR 538, 589–90, 1003, 1017, 1023.

26

374

See AR 664.

375

See AR 697–720, 965–77.

376

AR 719.

24

27
28

ORDER – No. 17-cv-06637-LB

40 

The ALJ’s second reason for rejecting Dr. Tsai’s opinion — that there is no evidence to

1
2

corroborate Ms. Green’s being on waiting lists for hip-replacement and gastric-bypass surgeries —

3

also does not constitute a specific and legitimate reason to reject Dr. Tsai’s RFC assessment

4

because it is inaccurate. As the record reflects, Ms. Green was indeed evaluated for both hip-

5

replacement377 and gastric-bypass surgeries.378 Although Ms. Green missed one mandatory

6

appointment for gastric-bypass surgery,379 as the ALJ acknowledges,380 she later satisfied that

7

prerequisite.381 Ms. Green also testified at the November 16, 2016 hearing that she was scheduled

8

for gastric-bypass surgery that very next week and her hip-replacement surgery would likely take

9

place six months after that.382
Notably, it appears that the ALJ failed to consider the length of Dr. Tsai’s treatment of Ms.

11
United States District Court
Northern District of California

10

Green, instead reducing Dr. Tsai’s extensive treatment history to “fill-in form” testimony.383 Dr.

12

Tsai saw Ms. Green in connection with her hip pain and other ailments at least fifteen times

13

between March 20, 2013 and May 17, 2016.384 See 20 C.F.R. § 404.1527(c)(1)–(2), (f) (explaining

14

that an opinion from a source who has examined the claimant and had a longer treatment

15

relationship should generally be given greater weight). She consistently saw Ms. Green during her

16

pain treatment and received reports from specialists.385 See id. § 404.1527(c)(2)(ii) (in determining

17

the weight that should be given to an opinion, the ALJ should look at “the treatment the source has

18

provided and . . . the kinds and extent of examinations and testing the source has performed or

19
20

377

21

378

See AR 1003.

22

379

AR 709.

380

AR 23.

381

24

See AR 838 (“[Ms. Green] went to Sept 2nd orientation for gastric bypass.”).

382

AR 43.

25

383

AR 23.

23

26
27
28

See, e.g., AR 1023 (“She has tried multiple other therapies for the hip and has been evaluated by
orthopedic surgery and she is currently on waitlist for hip replacement.”); see also AR 709, 847.

384

See AR 514–17, 520–27, 565–68, 588–91, 600–04, 611–20, 831–35 (duplicate December 17, 2013
report), 844–47, 851–54, 865–67, 869–75, 879–82, 933, 936–42, 1025–28, 1032–35, 1059–62, 1069–
72.
385

See, e.g., 831.

ORDER – No. 17-cv-06637-LB

41 

1

ordered from specialists”). The fill-in form was one of Dr. Tsai’s many assessments indicating

2

severe restrictions on Ms. Green’s abilities.386 Cf. Trevizo v. Berryhill, 871 F.3d 664, 677 n.4 (9th

3

Cir. 2017) (“[T]he ALJ was not entitled to reject the responses of a treating physician without

4

specific and legitimate reasons for doing so, even where those responses were provided on a

5

‘check-the-box’ form, were not accompanied by comments, and did not indicate to the ALJ the

6

basis for the physician’s answers.”).
In sum, the ALJ erred by failing to: (1) give specific and legitimate reasons for rejecting Dr.

7
8

Tsai’s opinions; and (2) consider those opinions in the context of the totality of the medical

9

evidence, including Dr. Tsai’s extensive treatment history with Ms. Green. These errors require

10

remand.

United States District Court
Northern District of California

11
12
13

2. Whether the ALJ Erred by Finding Ms. Green’s Reports of Her Own Symptoms Not
Credible

14

Ms. Green contends that the ALJ erroneously discredited her testimony.387 In assessing a

15

claimant’s credibility, an ALJ must make two determinations. Molina, 674 F.3d at 1112. “First,

16

the ALJ must determine whether there is ‘objective medical evidence of an underlying impairment

17

which could reasonably be expected to produce the pain or other symptoms alleged.’” Id. (quoting

18

Ligenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007)). Second, if the claimant produces that

19

evidence, and “there is no evidence of malingering,” the ALJ must provide “specific, clear and

20

convincing reasons” for rejecting the claimant’s testimony regarding the severity of the claimant’s

21

symptoms. Id. (internal quotation marks and citations omitted). “At the same time, the ALJ is not

22

‘required to believe every allegation of disabling pain, or else disability benefits would be

23

available for the asking, a result plainly contrary to 42 U.S.C. § 423(d)(5)(A).’” Id. (quoting Fair

24

v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)). “Factors that an ALJ may consider in weighing a

25

claimant’s credibility include reputation for truthfulness, inconsistencies in testimony or between

26
27
28

386

See, e.g., AR 524, 565–67, 600, 603, 844, 865–72.

387

Mot. – ECF No. 28 at 14–17.

ORDER – No. 17-cv-06637-LB

42 

1

testimony and conduct, daily activities, and unexplained, or inadequately explained, failure to seek

2

treatment or follow a prescribed course of treatment.” Orn, 495 F.3d at 636 (internal quotation

3

marks omitted). “[T]he ALJ must identify what testimony is not credible and what evidence

4

undermines the claimant’s complaints.” Burrell v. Colvin, 775 F.3d 1133, 1138 (9th Cir. 2014)

5

(citing Lester, 81 F.3d at 834) ; see, e.g., Morris v. Colvin, No. 16-CV-0674-JSC, 2016 WL

6

7369300, at *12 (N.D. Cal. Dec. 20, 2016).
The ALJ found the following about Ms. Green’s testimony:

7

While the claimant testified that she was working at home because she had no other
income (than from working), the undersigned observes that many people work for
the same reason. Further, when the claimant insists that she cannot do any other job
involving sitting or standing, she is in fact contradicting herself by being able to
perform her current job in that fashion, sustaining that work for years on a part-time
basis and since June 2016 on a full-time basis. The undersigned appreciates the
claimant’s unconfirmed report that in 2014 until June 2016, she was only working
25 hours a week. However, the undersigned cannot find a medical explanation in the
record to medically support a finding that the claimant was limited to working only
25 hours a week during that time. In fact, the claimant even admitted to additional
work as a nanny and during every week in addition to those 20-something hours each
week.388

8
9
10

United States District Court
Northern District of California

11
12
13
14
15
16

As discussed above, the ALJ failed to properly consider the full laboratory and examination

17

findings submitted in support of Ms. Green’s allegations — including reports of her hip x-rays and

18

Dr. Tsai’s treatment relationship with Ms. Green. See 20 C.F.R. § 404.1529(c)(1)–(2) (explaining

19

that the ALJ considers “all of the available evidence from [claimant’s] medical sources and

20

nonmedical sources” and objective medical evidence).
Because the ALJ discredited Ms. Green’s testimony in part based on his assessment of the

21
22

medical-opinion evidence, the court remands on this ground as well. The ALJ can reassess Ms.

23

Green’s credibility in context of the entire record.

24
25
26
27
28

388

AR 25.

ORDER – No. 17-cv-06637-LB

43 

1

3. Whether the ALJ Erred by Discounting the Lay Witness Testimony

2

Ms. Green argues that the ALJ erred by giving minimal weight to Ms. Black’s statement.389

3

The ALJ is required to consider “other source” testimony and evidence from a layperson.

4

Ghanim v. Colvin, 763 F.3d 1154, 1161 (9th Cir. 2014); Molina, 674 F.3d at 1111; Bruce v.

5

Astrue, 557 F.3d 1113, 1115 (9th Cir. 2009) (“In determining whether a claimant is disabled, an

6

ALJ must consider lay witness testimony concerning a claimant’s ability to work”) (internal

7

quotation marks and citation omitted). “Descriptions by friends and family members in a position

8

to observe a claimant’s symptoms and daily activities have routinely been treated as competent

9

evidence.” Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987). It is competent evidence and
“cannot be disregarded without comment.” Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir.

11
United States District Court
Northern District of California

10

1996). Moreover, if an ALJ decides to disregard the testimony of a lay witness, the ALJ must

12

provide “specific” reasons that are “germane to that witness.” Parra v. Astrue, 481 F.3d 742, 750

13

(9th Cir. 2007). The Ninth Circuit has not “required the ALJ to discuss every witness’s testimony

14

on an individualized, witness-by-witness basis.” Molina, 674 F.3d at 1114. An ALJ may “point to”

15

reasons already stated with respect to the testimony of one witness to reject similar testimony by a

16

second witness. Id.
The ALJ found the following regarding Ms. Black’s testimony:

17

The record includes a third party function report submitted by a friend of the claimant
for 14 years. The form begins by essentially repeating the claimant’s own subjective
complaints such as that she was unable to walk a block and unable to shop at Ikea.
However, the claimant’s longtime friend reports relatively full activities of daily
living and social functioning for the claimant including that she was able to selfgroom, leave the house daily, drive a car, prepare simple meals, shop in public, pay
bills and handle bank accounts, watch TV, play video games, watch movies, take
care of cats, chat on the phone, log onto the computer, and go to her parents’ house
(Ex. 6E). The undersigned has carefully and fully considered the totality of this lay
third party form but has accorded it no more than its appropriate, minimal, weight.390

18
19
20
21
22
23
24
25
26
27
28

389

Mot. – ECF No. 28 at 21–23.

390

AR 25–26.

ORDER – No. 17-cv-06637-LB

44 

As discussed above, the ALJ’s reasons for rejecting Ms. Green’s own complaints were

1
2

improper. The ALJ found Ms. Green’s allegations inconsistent with the medical record, in large

3

part, because the ALJ did not review all relevant medical evidence in the record — including x-ray

4

reports indicating Ms. Green’s worsening hip pathology.391 The ALJ erred by doing so. For this

5

reason, to the extent the ALJ relied on the same flawed reasoning to reject Ms. Black’s statement

6

“essentially repeating” Ms. Green’s allegations, the ALJ erred by discounting Ms. Black’s

7

statement.
Furthermore, the ALJ erred by discounting Ms. Black’s statement in light of Ms. Green’s

8
9

activity of daily living. While a claimant’s daily activities may provide a legitimate basis for a
finding of inconsistency with her disabling conditions, see Orn, 495 F.3d at 636, the Ninth Circuit

11
United States District Court
Northern District of California

10

has “repeatedly warned that ALJs must be especially cautious in concluding that daily activities

12

are inconsistent” with eligibility for disability benefits, Garrison, 759 F.3d at 1017. In Garrison,

13

the Ninth Circuit recognized that “disability claimants should not be penalized for attempting to

14

lead normal lives in the face of their limitations,” and found that “only if her level of activity were

15

inconsistent with a claimant’s claimed limitations would these activities have any bearing on her

16

credibility.” Id. at 1016 (quotations and citations omitted); see also Smolen, 80 F.3d at 1287 n.7

17

(“The Social Security Act does not require that claimants be utterly incapacitated to be eligible for

18

benefits. . . .”).
Finally, because the ALJ did not adequately identify which of Ms. Black’s statements he

19
20

discredited, it is not clear whether his reasons for discrediting Ms. Black’s statements are germane.

21

Given these circumstances, the court finds that the ALJ erred by not providing “specific” reasons

22

that are germane to Ms. Black’s statement. See Nguyen, 100 F.3d at 1467.

23
24
25

4. Whether the ALJ Erred by Finding that Ms. Green Could Return to Her Past Relevant
Work
Ms. Green argues that the ALJ erred by finding that she could return to her past relevant work.

26
27
28

391

See AR 775, 1147–48.

ORDER – No. 17-cv-06637-LB

45 

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

1
2

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

3

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

4

the claimant’s physician, to determine residual functional capacity”). The ALJ’s determination of

5

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

6

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

7

medical testimony, and for resolving ambiguities.’” Garrison, 759 F.3d at 1010 (quoting Andrews,

8

53 F.3d at 1039). In weighing and evaluating the evidence, the ALJ must consider the entire case

9

record, including each medical opinion in the record, together with the rest of the relevant
evidence. 20 C.F.R. § 416.927(b); see also Orn, 495 F.3d at 630 (“[A] reviewing court must

11
United States District Court
Northern District of California

10

consider the entire record as a whole and may not affirm simply by isolating a specific quantum of

12

supporting evidence.”) (internal quotation marks and citation omitted).

13

After considering only part of the relevant evidence in the record, the ALJ found that Ms.

14

Green had the RFC to perform “light work”392 and that she could return to her past relevant work

15

as an appointment clerk or administrative assistant.393 In so finding, however, the ALJ failed to

16

consider all medical evidence and the VE’s testimony in its totality. Specifically, as discussed

17

above, the ALJ erroneously discredited treating physician Dr. Tsai’s RFC assessment when he

18

overlooked x-ray reports supporting Ms. Green’s allegations and failed to consider Dr. Tsai’s

19

extensive treatment relationship with Ms. Green, documenting worsening hip pathology over

20

time.394

21

In addition, the ALJ credited the VE’s initial conclusion that Ms. Green’s use of two canes

22

would not preclude her ability to function successfully at these jobs and that she could elevate her

23

legs “appropriately” at such a job in the outside workforce as she reported doing at home.395 But

24
25

392

AR 22–26.

26

393

AR 26.

394

See AR 567, 953, 955, 1003, 1017, 1024.

395

AR 26.

27
28

ORDER – No. 17-cv-06637-LB

46 

1

he failed to consider the VE’s testimony that no work would be available to Ms. Green if she

2

needed to elevate her legs to hip level for approximately fifty percent of the workday, as Dr. Tsai

3

opined.396

4

After considering all the relevant evidence excluded from the initial ALJ decision, the ALJ

5

may very well come to the same conclusion. Ms. Green is, however, entitled to fair consideration

6

by the ALJ.

7

CONCLUSION

8
9
10

United States District Court
Northern District of California

11

The court grants Ms. Green’s motion for summary judgment, denies the Commissioner’s
cross-motion for summary judgment, and remands this case for further proceedings consistent
with this order.

12

IT IS SO ORDERED.

13

Dated: October 16, 2018

14

______________________________________
LAUREL BEELER
United States Magistrate Judge

15
16
17
18
19
20
21
22
23
24
25
26
27
28

396

AR 59–60.

ORDER – No. 17-cv-06637-LB

47