Waltz v. Berryhill

Filing 29

ORDER by Judge Laurel Beeler denying 26 Motion for Summary Judgment; granting 27 Motion for Summary Judgment. In the attached order, the court denies Mr. Waltz's motion for summary judgment and grants the Commissioner's cross-motion for summary judgment. (lblc2, COURT STAFF) (Filed on 11/13/2018)

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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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JACOB WALTZ,
Plaintiff,

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v.

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NANCY A. BERRYHILL,
Defendant.

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Case No. 17-cv-06654-LB
ORDER DENYING PLAINTIFF’S
MOTION FOR SUMMARY
JUDGMENT AND GRANTING
DEFENDANT’S CROSS-MOTION
Re: ECF Nos. 26 & 27

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INTRODUCTION

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Plaintiff Jacob Waltz seeks judicial review of a final decision by the Commissioner of the

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

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

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

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

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Compl. – ECF No.1 at 1; Motion for Summary Judgment (“Motion”) – ECF No. 26 at 5–11. 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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Motion – ECF No. 26.

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Cross-Mot. – ECF No. 27.

ORDER – No. 17-cv-06654-LB 

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

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Commissioner’s cross-motion.

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STATEMENT
1. Procedural History
On January 28, 2014, Mr. Waltz, born on August 28, 1971, filed claims for social-security

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disability insurance (“SSDI”) under Title II of the Social Security Act5 (“SSA”) and supplemental

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security income (“SSI”) under Title XVI.6 He alleged affective disorder,7 personality disorder,

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anxiety, chronic insomnia, degenerative disc disease, hypertension, blood clots in his right leg,

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Tendonitis in his left leg, sprains, and strains.8 He alleged an onset date of September 15, 2011.9

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The Social Security Administration denied the application initially10 and on reconsideration.11 On

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United States District Court
Northern District of California

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February 19, 2015, Mr. Waltz requested a hearing.12 On May 26, 2016, Administrative Law Judge

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(“ALJ”) Suzanne Krolikowski held a hearing in San Rafael, California.13 Attorney Dan McCaskell

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represented Mr. Waltz.14 Mr. Waltz and vocational expert Robert Cottle testified in person.15 On

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September 8, 2016, the ALJ issued an unfavorable decision.16 Mr. Waltz appealed the decision to

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Consent Forms – ECF Nos. 5, 9.

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See AR 266–72. Administrative Record (“AR”) citations refer to the page numbers in the bottom
right hand corner of the Administrative Record.

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See AR 136–37.

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Specifically, as to his alleged affective disorder, Mr. Waltz alleged manic depression, bipolar
disorder, restlessness, post-traumatic-stress disorder (“PTSD”), and obsessive-compulsive disorder
(“OCD”). AR 102, 119.

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See AR 24, 102, 119.

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See AR 266, 273.

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AR 173–76, 177–81.

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AR 185–89, 190–94.

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AR 195–96.

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See AR 50–97.

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See AR 50.

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See AR 50–51.

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AR 19.

ORDER – No. 17-cv-06654-LB

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the Appeals Council on September 30, 2016.17 On October 2, 2017, the Appeals Council denied

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his request.18 On November 17, 2017, Mr. Waltz filed this action for judicial review19 and

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subsequently moved for summary judgment on August 16, 2018.20 The Commissioner opposed

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the motion and filed a cross-motion for summary judgment.21

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2. Summary of Record and Administrative Findings

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2.1

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Medical Records
2.1.1

Les Kalman, M.D., Psy.D. — Examining

On March 15, 2011, before the alleged onset date, and in connection with an earlier claim, Les

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Kalman, M.D., Psy.D., a psychiatrist, conducted a psychiatric evaluation of Mr. Waltz.22 Mr.

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United States District Court
Northern District of California

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Waltz’s chief complaint was that he was tired and experienced difficulty sleeping “for the past 26

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years.”23 He reported feeling depressed, stressed, and anxious and experiencing auditory

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hallucinations telling him to hurt people.24 He also reported past homicidal thoughts, which were

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not directed at anyone in particular.25 His last job was in November 2010 as In Home Support

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Service for his mother.26 He stated that he could no longer work in that capacity because he had

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difficulty caring for his mother and would “get mad at people or just feel too stressed.”27 Dr.

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Kalman noted that Mr. Waltz had no past psychiatric conditions.28

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AR 262–63.

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AR 1–6.

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Complaint – ECF No. 1.

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Motion – ECF No. 26.

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Cross-Mot. – ECF No. 27.

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AR 423–27.

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AR 423.

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AR 423, 425.

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AR 423.

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AR 424.

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Id.

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Id.

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Dr. Kalman noted that Mr. Waltz was pleasant and cooperative, he spoke at an average rate

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and volume, and his eye contact was good.29 Mr. Waltz’s level of functioning included the

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following: doing his own shopping, cooking, and housekeeping; managing his own transportation;

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caring for his personal hygiene; and paying his bills.30
Dr. Kalman opined that Mr. Waltz was able to relate to supervisors, co-workers, and peers.31

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Mr. Waltz also was able to understand and carry out simple work instructions, maintain attention,

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concentration and memory, and withstand the stress and pressures associated with daily work.32

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Dr. Kalman diagnosed Mr. Waltz with cyclothymia,33 ruled out schizoaffective disorder, and noted

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Mr. Waltz’s sustained polysubstance dependence.34

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2.1.2

Mr. Waltz visited Brookwood Health Center on various occasions from November 2011

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United States District Court
Northern District of California

Brookwood Health Center — Treating

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through July 2014.35 On November 28, 2011, Theresa Wade, a family nurse practitioner (“FNP”),

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saw Mr. Waltz regarding antidepressant medication.36 Mr. Waltz stated that he had been “angry

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and raging” as well as “withdrawn from life, apathetic.”37 He reported hearing voices, “sometimes

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an actress’s voice and sometimes voices he does not recognize. The voices t[old] him to hurt other

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people — to hit/kick/throw them on the ground.”38 He heard those voices “daily for the past 2

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Id.

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AR 425.

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Id.

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AR 425–26.

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“[T]he essential feature of Cyclothymic Disorder [cyclothymia] is a chronic, fluctuating mood
disturbance involving numerous periods of hypomanic symptoms . . . and numerous periods of
depressive symptoms.” Reynolds v. Apfel, 1 F. Supp. 2d 223, 224 n.2 (W.D.N.Y. 1998) (internal
citation omitted).
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AR 426.

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See AR 440, 446–47, 451–52, 462, 465–66, 472, 480–81.

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AR 480.

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Id.

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Id.

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months consistently” when his “anger start[ed] up.”39 He also experienced some visual

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hallucinations.40 FNP Wade noted that Mr. Waltz was stressed.41 Based on FNP Wade’s

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assessment, Mr. Waltz had the following conditions: psychosis; hypothyroidism; and insomnia.42

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FNP Wade prescribed Mr. Waltz Abilify for psychosis, Levothyroxine for hypothyroidism, and

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Amitriptyline for insomnia.43 During a March 2012 visit, Mr. Waltz reported sleeping well since

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taking Elavil and Benadryl.44
In March 2013, FNP Wade saw Mr. Waltz regarding pain in the lower calf of his right leg.45

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Mr. Waltz stated that he had a blood clot in this leg approximately ten years prior.46 Mr. Waltz

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admitted that he used “meth” in the past and that he had been using it again.47 He also stated he
may have hit his right leg while riding his bike but was uncertain.48 He was living “on the streets”

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Northern District of California

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and wanted to do “the Orenda Center 31 day program and then their aftercare program” but

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needed to first save money for the programs.49 FNP Wade noted that Mr. Waltz appeared to be

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pleasant, alert, and in normal affect and mood and that he walked with a limp.50 FNP Wade

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referred him to ultrasound imaging to rule out deep-vein thrombosis (“DVT”) in his right leg.51

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The ultrasound was unremarkable.52

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Id.

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Id.

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AR 481.

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Id.

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Id.

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AR 472.

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AR 465.

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Id.

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Id.

48

Id.

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Id.

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Id.

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AR 466.

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AR 440.

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In April 2014, Suegee Tamar Mattis, D.O., a doctor of osteopathic medicine and family

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practitioner, saw Mr. Waltz regarding Mr. Waltz’s thyroid condition and throat pain.53 Dr. Mattis

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noted that Mr. Waltz appeared pleasant, alert, and in normal affect and mood.54 Dr. Mattis stated

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that Mr. Waltz likely had GERD (gastroesophageal reflux disease), rather than thyroid issues, and

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recommended that Mr. Waltz take Omeprazole.55
In July 2014, FNP Mary C. Papsco saw Mr. Waltz regarding insomnia and a mole on his

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cheek.56 FNP Papsco reported that Mr. Waltz was not sleeping well. He did not sleep much at

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night and needed to sleep during the day to catch up on sleep.57 He also needed a bed pass for Sam

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Jones, a homeless shelter.58 FNP Papsco refilled Mr. Waltz’s sleep medication.59 In regard to the

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mole on his cheek, FNP Papsco noted that the mole was not normal and that she wanted to have it

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Northern District of California

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removed and tested.60 She noted that it would swell up and sometimes break open and bleed.61

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2.1.3

Michael Kozart, M.D. — Treating

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On January 30, 2013, Michael Kozart, M.D., a psychiatrist, saw Mr. Waltz for a follow-up

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visit.62 Mr. Waltz reported that he had been off his medications for “a while.”63 He was homeless

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and living outside under a bridge.64 At the time, he was applying for General Assistance (“GA”)

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benefits and was on food stamps and County Medical Services Program (“CMSP”) benefits.65 He

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AR 451.

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Id.

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AR 452.

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AR 446.

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Id.

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Id.; see also AR 534.

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AR 447.

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AR 446.

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Id.

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AR 467.

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Id.

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Id.

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Id.

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had not yet applied for disability benefits.66 His anger issues “remain[ed] a problem” and led to

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Mr. Waltz losing his job as a building manager in 2009.67 Dr. Kozart treated an infection on Mr.

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Waltz’s finger and advised that he quit smoking.68
In July 2013, Dr. Kozart saw Mr. Waltz regarding Mr. Waltz’s medications.69 Mr. Waltz stated

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that had not taken levothyroxine “for many months,” intermittently took Metoprolol, and took

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100–150 mg of Amitriptyline.70 Mr. Waltz reported that he was homeless, living under a bridge,

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and had been clean and sober for four days.71 He also reported that he “[s]till smokes MJ.”72 Dr.

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Kozart ordered lab tests and advised Mr. Waltz to continue Metoprolol and increase Amitriptyline,

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as needed, for sleep.73
Dr. Kozart saw Mr. Waltz again in February 2014.74 Mr. Waltz reported that he applied for

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United States District Court
Northern District of California

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social security.75 He stated he could not work because he had a learning disability.76 He claimed he

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could not think “as fast as other people.”77 His last job was at Target, where he was supposed to

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re-stock items, but he “couldn’t do it fast enough for his supervisors/managers.”78 “When he began

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to falter, [he] lost his patience, got angry, and was fired.”79 Dr. Kozart examined Mr. Waltz and

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Id.

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Id.

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AR 467–69.

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AR 463.

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Id.

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Id. The record also indicated that Mr. Waltz had “no [substance] use for 3 years.” See id.

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Id.

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AR 464.

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AR 454.

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Id.

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Id.

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Id.

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Id.

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Id.

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noted that Mr. Waltz appeared calm, spoke fluently, and was alert and logical.80 Dr. Kozart also

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noted that “[e]ssentially [Mr. Waltz] gets very angry when asked to complete tasks.”81

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On November 17, 2014, Dr. Kozart saw Mr. Waltz for psychiatric services.82 Mr. Waltz

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reported “a chronic inability to work due to a number of MH [mental health] issues,” which Mr.

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Waltz defined as “[d]epression, [a]nxiety, PTSD, [b]ipolar, [and] learning disability.”83 He

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believed that because he had “been knocked out before, [his] brain doesn’t work like other

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peoples.”84 Also, his memory “doesn’t work.”85

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Mr. Waltz reported that he had not pursued vocational rehabilitation therapy.86 He also

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reported that he had recovered from alcohol and hard drugs but was still using marijuana.87 He
was still “homeless, outdoors” and stated that he did not stay at the Sam Jones shelter because he

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United States District Court
Northern District of California

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wanted to spend time with family over the holidays.88 Dr. Kozart recommended that Mr. Waltz

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consider vocational rehabilitation, quit cannabis, and follow up with his therapist.89

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2.1.4

Jamie Larson, Psy.D. — Examining

On July 26, 2014, Jamie Larson, Psy.D., a psychologist, conducted a psychiatric evaluation of

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Mr. Waltz for disability purposes.90 Mr. Waltz reported that a diagnosis of bipolar disorder,

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chronic insomnia, and anxiety issues.91 When asked to elaborate on his bipolar difficulties, Mr.

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Id.

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Id.

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AR 589.

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Id.

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Id.

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Id.

86

Id.

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Id.

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Id. “[I]n general, one only gets a 2 day pass from the shelter, and [Mr. Waltz] occasionally visits
with family to spend more than 2 nights [sic].”

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89

AR 589–90.

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AR 428–32.

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AR 428.

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Waltz stated that he was “frequently irritable.”92 Mr. Waltz reported various anxiety symptoms,

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including agitation, fearfulness, irritability, and difficulty concentrating.93 He reported that his

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mood depended on the amount of sleep he got in any given night.94 He also reported that he sank

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into a “deep depression” approximately four to five times per week and sometimes multiple times

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per day.95
In regard to his educational history, Mr. Waltz reported that he dropped out of high school in

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the 11th grade but then later returned.96 He was kicked out of school “due to memory

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difficulties.”97 Mr. Waltz reported that he had never been formally diagnosed with a learning

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disability, and he had not taken special-education classes, but he expressed a suspicion that he

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should have been so diagnosed.98 Regarding his work history, Mr. Waltz reported that he last

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United States District Court
Northern District of California

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worked in 2011 as a stocker for Target.99 He was “fired because he could not fulfill his obligations

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due to his psychiatric symptoms.”100 Mr. Waltz denied current use of alcohol or drugs, stating that

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he had not used drugs since January 18, 2014.101
Mr. Waltz reported that, on a typical day, if he had not received much sleep, he lacked

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motivation and did “virtually nothing throughout the day.”102 If he had slept, he typically would

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shower, eat, go to the bread line, and hang out in parks; but he “usually stay[ed] to himself due to

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Id.

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Id.

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Id.

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Id.

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AR 429.

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Id.

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Id.

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Id.

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Id.

101

Id.

102

Id.

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his anxiety.”103 Mr. Waltz reported “longing for the manic episodes” because they gave him

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“energy and focus” but would also “quickly fade into depression.”104
Dr. Larson reported that Mr. Waltz was able to maintain focus throughout the evaluation with

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no need for redirection.105 Mr. Waltz was well-groomed and dressed appropriately for the

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season.106 He gave good eye contact and had a pleasant attitude.107 No “loose associations or

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confusion” were indicated.108 There was also no indication of psychotic thought processes, and

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Mr. Waltz denied suicidal and homicidal ideation.109 Dr. Larson noted that Mr. Waltz’s remote

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memory was “mildly impaired” and that his delayed recall was “severely impaired” —

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specifically, Mr. Waltz recalled “0/3 objects after a short delay and could not even guess.”110 Mr.

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Waltz’s fund knowledge was moderately impaired.111 He also indicated that he was unable to do

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United States District Court
Northern District of California

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calculations.112

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Dr. Larson concluded that if Mr. Waltz were allotted benefits, he would likely require a

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payee.113 Mr. Waltz appeared to have mild difficulty performing simple and repetitive tasks and

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moderate difficulty performing detailed and complex tasks.114 “In particular, abstract thinking

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[was] quite challenging for him as all as any calculations,” he appeared to get distracted, and had

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“some difficulty focusing.”115 Mr. Waltz overall had good insight.116 Moreover, though Mr. Waltz

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103

Id.

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Id.

105

AR 430.

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Id.

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Id.

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Id.

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Id.

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Id.

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Id.

112

Id.

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AR 432.

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Id.

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Id

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Id.

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had only mild difficulty accepting instructions from supervisors, there was “a likelihood of

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moderate to severe difficulties interacting with coworkers and the public on a consistent basis.”117

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Mr. Waltz “would likely need some additional instructions to perform work activities

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consistently.”118
Dr. Larson further found that Mr. Waltz “would have severe difficulty maintaining regular

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attendance in the workplace or completing a normal workweek without disruptions from a

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psychiatric condition.”119 In addition, “stressors encountered in the workplace would lead to a

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likely rapid deterioration or decompensation of [Mr. Waltz’s] functioning.”120

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2.1.5

Steven E. Gerson, D.O. — Examining

On August 14, 2014, Steven E. Gerson, D.O., a doctor of osteopathic medicine and internist,

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United States District Court
Northern District of California

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conducted an internal medicine evaluation of Mr. Waltz at the request of the Bureau of Disability

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Adjudication Services from California.121 Mr. Waltz’s chief complaint was chronic insomnia.122

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He reported that Amitriptyline “helped a little” with his sleep pattern.123 He stated that he felt tired

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“almost all the time” and that his memory could be “off.”124 He also stated that when sleep

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deprived, he heard “more voices.”125 He reported that his insomnia was “gradually getting worse”

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over time.126 He also reported “mild nonspecific pain in the midline lumbar spine.”127

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117

Id.

118

Id.

119

Id.

120

Id.

121

AR 482–89.

122

AR 482.

123

Id.

124

Id.

125

Id.

126

AR 483.

127

AR 485.

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Mr. Waltz reported that he quit drinking alcohol the year prior and that after he quit drinking,

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his sleep patterns worsened.128 Mr. Waltz was not aware of any liver disease or any other problems

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resulting from prior alcohol consumption.129 Mr. Waltz reported that, at thirty years old, he had

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DVT in his left leg.130 He had chronic swelling of the left leg as a result of the DVT.131 Mr. Waltz

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stated that he could walk up to half a mile at a time before stopping “due to the foot pain and flat

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feet.”132 He also stated that he could use a mobile bicycle for up to two to three miles at a time.133

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Dr. Gerson noted that Mr. Waltz had smoked for twenty-four years and smoked half a pack of

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cigarettes per day.134 He also noted that Mr. Waltz last worked in 2010 as a shelf-stocker at

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Target.135 At the time of the exam, Mr. Waltz was well-developed, well-nourished, properly

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dressed, coherent, and cooperative.136

United States District Court
Northern District of California

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Dr. Gerson noted that Mr. Waltz was able to relate to him, follow instructions without

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difficulty, and was “not unstable.”137 He also noted that Mr. Waltz’s short term memory was

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mildly decreased at times, and his long term memory was “grossly intact.”138 Mr. Waltz had no

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need for an assistive device.139 Dr. Gerson diagnosed Mr. Waltz with chronic insomnia and

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histories of the following conditions: DVT; pes planus; elevated blood pressure; “possibly a little”

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arthritis; a bicycle injury with chest plate contusion and back pain; and thyroid disease.140

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128

AR 482.

129

Id.

130

AR 482–83.

131

AR 483.

132

Id.

133

Id.

134

Id.

135

Id. According to other reports in the record, Mr. Waltz last worked — at Target — in 2011, not
2010. See, e.g., AR 429.
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AR 484.

137

AR 485.

138

Id.

139

Id.

140

AR 486.

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Dr. Gerson reported that Mr. Waltz had the following functional limitations: (1) occasionally

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lifting and carrying fifty pounds and frequently carrying and lifting twenty-five pounds; (2)

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standing and/or walking for up to six hours in an eight-hour workday; (3) frequently climbing,

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balancing, and kneeling and occasionally stooping/bending, crouching/squatting, and crawling; (4)

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and frequently restricted regarding heights and moving machinery due to insomnia and back

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pain.141 Dr. Gerson also noted that Mr. Waltz carried a heavy backpack plus another heavy bag

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“without obvious pain, awkwardness or distress.”142

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2.1.6

Marcos Lopez, Ph.D. — Treating

Dr. Lopez treated Mr. Waltz on multiple occasions between January 2015 and March 2016.143

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On January 27, 2015, Dr. Lopez saw Mr. Waltz regarding Mr. Waltz’s anxiety, bipolar disorder,

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United States District Court
Northern District of California

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blood clots in the right leg, and tendonitis in the left leg.144 Mr. Waltz reported that he had alcohol

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problems in the past and was involved with AA (alcoholics anonymous).145 He also reported that

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he was homeless and wanted to get SSI benefits.146 Dr. Lopez indicated that Mr. Waltz had

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“[m]oderately severe depression.”147 Mr. Waltz reported that he was “clean and sober” and had not

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abused alcohol for three years.148 Mr. Waltz had normal speech, appropriate appearance and

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behavior, and his thought process was intact coherent.149 He reported memory problems.150

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On December 21, 2015, Dr. Lopez completed a mental-residual functional-capacity

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questionnaire for Mr. Waltz.151 As of that time, Dr. Lopez had treated Mr. Waltz “for the past

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141

AR 486–87.

142

AR 487.

143

See, e.g., AR 556–58, AR 540–41, AR 538–39.

144

AR 556.

145

Id.

146

Id.

147

AR 556–58.

148

AR 557.

149

Id.

150

Id.

151

AR 491–95.

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year, approximately once every month.”152 He reported that Mr. Waltz “suffer[ed] from significant

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insomnia [and] manic symptoms that le[d] him to engage in risky behaviors (e.g. sexual

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promiscuity).”153 Dr. Lopez noted that Mr. Waltz’s response to treatment had been “minimal due

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to significant stressors (homeless [and] no [f]inancial income).”154 Dr. Lopez identified the

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following signs and symptoms: impairment in impulse control; generalized persistent anxiety;

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sleep disturbance; substance dependence (past); memory impairment; and decreased need for

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sleep.155

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In regard to Mr. Waltz’s ability to do work-related activities on a day-to-day basis, Dr. Lopez

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opined as follows. As to Mr. Waltz’s mental ability and aptitude to do unskilled work, Dr. Lopez
opined that Mr. Waltz was “[s]eriously limited, but not precluded” in the following five (out of

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United States District Court
Northern District of California

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sixteen total) categories: (1) maintaining attention for two hours; (2) maintaining regular

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attendance and punctuality; (3) completing normal workday and workweek without interruptions

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from psychologically based symptoms; (4) performing at consistent pace without an unreasonable

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number and length of rest periods; and (5) dealing with normal work stress.156 Mr. Waltz’s work-

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related abilities were “limited but satisfactory” with regard to remembering work-like procedures,

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understanding, remembering, and carrying out “very short and simply instructions,” sustaining an

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ordinary routine without special supervision, make simple work-related decisions, getting along

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with co-workers or peers without “unduly distracting them or exhibiting behavioral extremes,” and

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responding appropriately to changes in a routine work setting, amongst other tasks.157 Dr. Lopez

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further provided that Mr. Waltz’s “attention [and] ability to focus and ability to maintain a

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152

AR 491.

153

Id.

154

Id.

155

AR 492.

156

AR 493.

157

Id.

ORDER – No. 17-cv-06654-LB

14 

1

consistent schedule is severely impaired due to his manic symptoms inhibiting his ability to sleep

2

(suffer from insomnia), as well as imparting his impulse control.”158
As to Mr. Waltz’s ability to aptitude to do semiskilled and skilled work, Dr. Lopez opined that

3
4

Mr. Waltz was “[s]eriously limited, but not precluded” in each of the four categories: (1)

5

understanding and remembering detailed instructions; (2) carrying out detailed instructions; (3)

6

setting realistic goals or making plans independently of others; and (4) dealing with stress of

7

semiskilled and skilled work.159
As to Mr. Waltz’s ability and aptitude to do particular types of jobs, Dr. Lopez opined that Mr.

8
9

Waltz could do the following without limitation: (1) adhere to basic standards of neatness and
cleanliness; (2) travel in unfamiliar places; and (3) use public transportation.160 Mr. Waltz’s

11
United States District Court
Northern District of California

10

abilities were “[l]imited but satisfactory” regarding interacting appropriately with the general

12

public and maintaining socially appropriate behavior.161
Dr. Lopez stated that Mr. Waltz’s impairments lasted, or could be expected to last, at least

13
14

twelve months.162 He also stated that Mr. Waltz was not a malingerer.163 Dr. Lopez opined that

15

Mr. Waltz would have difficulty working at regular job on a sustained basis because his “lack of

16

permanent housing is a severe barrier” as well as “the insomnia that accompanies it” and “issues

17

of safety.”164 Dr. Lopez stated that Mr. Waltz could manage benefits in his best interests and that

18

Mr. Waltz did not have a low IQ or reduced intellectual functioning.165

19
20
21
22
23
24
25
26
27
28

158

Id.

159

AR 494.

160

Id.

161

Id.

162

AR 495.

163

Id.

164

Id.

165

Id.

ORDER – No. 17-cv-06654-LB

15 

1

Dr. Lopez treated Mr. Waltz again January 29, 2016.166 They discussed recent events that

2

contributed to Mr. Waltz’s “depressive emotional state,” including relationship problems and an

3

argument Mr. Waltz had with his mother.167 Dr. Lopez recommended that Mr. Waltz practice

4

“grounding tools” to improve his mood and consider writing letters to cope with the loss of his

5

friend.168
On March 16, 2016, Dr. Lopez saw Mr. Waltz for a follow-up session.169 Dr. Lopez noted Mr.

6

Waltz’s bipolar disorder, homelessness, and substance abuse in remission.170 Mr. Waltz reported

8

improvements in his personal relationships.171 Dr. Lopez provided Mr. Waltz with acupressure

9

beads to use in his ears at the Shen Men, Liver, and Lung points.172 Dr. Lopez reported that Mr.

10

Waltz’s speech was normal, his appearance and behavior were appropriate, his thought process

11
United States District Court
Northern District of California

7

was intact and coherent, and he had no memory problems.173

12

2.1.7

Scott Karpowicz, M.D. — Examining

On February 13, 2015, Scott Karpowicz, M.D, a family-medical doctor, examined Mr. Waltz

13
14

and discussed his GA paperwork.174 Dr. Karpowicz noted that Mr. Waltz applied for and was

15

denied SSI benefits.175 Mr. Waltz reported that he was knocked unconscious at five years old and

16

that “things just don’t register.”176 He felt like his brain worked “much more slowly than other

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

166

AR 540–41.

167

AR 540.

168

AR 541.

169

AR 538.

170

Id.

171

Id.

172

Id.

173

Id.

174

AR 583.

175

Id.

176

Id.

ORDER – No. 17-cv-06654-LB

16 

1

people’s.”177 Mr. Waltz reported difficulty with insomnia, anxiety, and “bipolar at times.”178 When

2

he had a job, he got angry and had a difficult time with the schedule.179 He stated that it was

3

difficult to find a job because he had “been on SSI for 9 years previously.”180
Dr. Karpowicz opined that it was “[n]ot entirely clearly to [him] what the underlying diagnosis

4
5

is.”181 It was also not clear whether Mr. Waltz had “a severe enough illness that would make him

6

completely unfit for work.”182 To the contrary, Dr. Karpowicz opined that it “may in fact be

7

harmful for [Mr. Waltz] to continue to be out of the workforce.”183 Dr. Karpowicz agreed to order

8

one month of GA benefits for Mr. Waltz “to give him time have additional psychiatric follow up

9

to determine firm diagnosis and appropriateness of disability.”184

10

2.1.8

In March 2015, Mr. Waltz visited the emergency room for a rash on his face.185 Mr. Waltz was

11
United States District Court
Northern District of California

Santa Rosa Memorial Hospital — Treating

12

treated for a similar rash ten days prior.186 Physician Assistant (“PA”) Isis A. Laland noted that

13

Mr. Waltz had cellulitis on his forearms, redness on his neck, face, and arms, and an itchy rash on

14

his chest and shoulders.187 PA Laland also noted that Mr. Waltz lived in a homeless shelter (Sam

15

Jones) and bathed in a communal bathing facility.188 PA Laland diagnosed Mr. Waltz with tinea

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

177

Id.

178

Id.

179

Id.

180

Id.

181

Id.

182

Id.

183

Id.

184

Id.

185

AR 534.

186

Id.

187

Id.

188

Id.

ORDER – No. 17-cv-06654-LB

17 

1

corporis and prescribed him cephalexin, hydrocortisone, hydroxyzine, and ketoconazole.189 During

2

the exam, Mr. Waltz’s mood, affect, and speech were normal.190
In November 2015, Mr. Waltz visited the emergency room for back pain.191 Mr. Waltz

3
4

reported that, the week prior, he fell off his bike as he rode it down a flight of stairs.192 Mr. Waltz

5

was ambulatory and had no incontinence.193 He received a “back — lumbar” x-ray, which

6

indicated chronic back pain and degenerative disc disease at L5-S1.194 Mr. Waltz had no fractures

7

in his back nor significant arthritis changes.195 Rather, he likely had muscle spasms.196

8

2.1.9

Corinne Duncan, N.P. — Treating

In January 2016, Corinne Duncan, a nurse practitioner (“NP”), saw Mr. Waltz for severe back

9

pain and a medication refill.197 Mr. Waltz felt pain in his low- and mid-back after he lifted heavy

11
United States District Court
Northern District of California

10

things while helping his friend move.198 Mr. Waltz reported no substance abuse and that he had

12

been sober for three years.199 NP Duncan noted that Mr. Waltz was pleasant, alert, and “clearly

13

uncomfortable with pain.”200 She prescribed Mr. Waltz gel for eczema and recommended that if

14

his back pain persisted for more than one week, he should return to the clinic for a physical

15

therapy referral.201

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

189

AR 537.

190

AR 536.

191

AR 506–10.

192

AR 506.

193

Id.

194

AR 510.

195

Id.

196

Id.

197

AR 560.

198

Id.

199

Id.

200

Id.

201

AR 561.

ORDER – No. 17-cv-06654-LB

18 

1

2.1.10 J. Schnitzler, D.O. — Non-Examining202

2

On August 27, 2014, J. Schnitzler, D.O., a state agency psychological and psychiatric

3

consultant, opined as follows.203 No objective evidence supported Mr. Waltz’s alleged bipolar

4

disorder.204 Mr. Waltz was able to
maintain focus throughout [his] evaluation with no need for redirection. He was well
groomed and dressed appropriately for the season. Overall attitude was described
most appropriately as pleasant. Conversational flow was relatively normal. No
indications of psychotic process. Mood remained neutral throughout the evaluation
and affect was consistent.205

5
6
7
8

Mr. Waltz could perform simple “1–2 step tasks with limited public contact.”206

9

2.1.11 D. Pong, M.D. — Non-Examining207

10

In August 2014, D. Pong, M.D., a state agency medical consultant, opined that Mr. Waltz

United States District Court
Northern District of California

11

could do (1) occasionally lift or carry fifty pounds and frequently lift and carry twenty-five

12

pounds, and (2) stand, walk, or sit for approximately six hours in an eight-hour workday.208 In

13

addition, Mr. Waltz was required to avoid concentrated exposure to hazards such as machinery

14

and heights.209

15

2.2

16

At the May 26, 2016 hearing before the ALJ, Mr. Waltz testified as follows.210 He lived at a

17

Mr. Waltz’s Testimony

homeless shelter with approximately 120 others and got along with them “fairly well.”211 He had

18
19
20
21
22
23
24
25
26
27
28

202

In January 2015, L. Gottschalk, M.D., another non-examining state agency psychological and
psychiatric consultant, completed a mental residual functional capacity assessment that mirrored that
of Dr. Schnitzler. See AR 148–51.
203

AR 110, 127.

204

AR 110, 127.

205

AR 110, 127.

206

AR 110, 127.

207

In January 2015, A. Pan, M.D., another non-examining state agency medical consultant, completed
a residual functional capacity assessment that mirrored that of Dr. Pong. See AR 147–48.
208

AR 129.

209

AR 130.

210

See AR 61–93.

211

AR 62.

ORDER – No. 17-cv-06654-LB

19 

1

insomnia, so he slept during the day and went out at night, to AA (alcoholics anonymous) and NA

2

(narcotics anonymous) meetings.212 At the shelter, Mr. Waltz did laundry for the house — for

3

example, he did nine loads the night before the hearing.213 To get around during the day or at

4

night, Mr. Waltz rode a bicycle or the bus.214
In regard to his education, Mr. Waltz testified that he was “pretty much thrown out” of high

5

school in the 11th grade.215 He believed his insomnia “had a lot to do with that.”216 He never

7

received his GED.217 He last worked in September 2011218 at Target as a shelf-stocker but was

8

“fired” because the job was “too complicated” for him.219 He “only worked there two months”

9

before he was fired.220 He “couldn’t understand exactly where everything went,” even when his

10

job was to restock the “easiest section . . . [he] just couldn’t do it.”221 He was trained “numerous

11
United States District Court
Northern District of California

6

times” but still could not handle the task.222 He testified that he had sleep issues at that point.223
The ALJ pointed out that one of Mr. Waltz’s doctors recommended that Mr. Waltz do

12
13

vocational rehabilitation.224 Mr. Waltz testified that he had not tried vocational rehabilitation but,

14

if he did, he would “work someplace . . . like a Goodwill and [he] probably w[ould] look into

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

212

Id.

213

Id.

214

AR 63.

215

AR 64.

216

Id.

217

AR 64–65.

218

It is not entirely clear from the record when Mr. Waltz began working at Target, or for how long.
He testified that he “believe[d]” he started in February 2011, see AR 87, but also testified that his last
job was at Target in September 2011, see AR 65. If Mr. Waltz worked at Target from February 2011
through September 2011, he clearly worked at that job for more than two months.
219

AR 65.

220

AR 87.

221

AR 77.

222

AR 78.

223

Id.

224

AR 65.

ORDER – No. 17-cv-06654-LB

20 

1

it.”225 It was just “really far” from where he stayed at that time.226 He further testified that he used

2

to volunteer at Interlink, a mental-health service, which was also a “long distance” — about eleven

3

miles — from his current housing.227 He stated that he would “probably try to start going back [to

4

Interlink] too.”228 There, he used to water flowers, clean, and wash dishes.229
Mr. Waltz testified that he could not perform the above tasks at a job full-time.230 Instead, he

5
6

could do them when he had “the energy or like in small amounts” because he got “too easily

7

confused,” would “start misunderstanding stuff,” and only got “periodic sleep.”231
Mr. Waltz previously worked full-time at the Casual Male store as a sales person.232 His boss,

8

another AA member, was “very lenient” and gave him breaks because it took Mr. Waltz “a long

10

time to learn stuff.”233 It took him “a long time to learn what how to do what was supposed to be

11
United States District Court
Northern District of California

9

done” at the store.234 Mr. Waltz used the cash register and rang up purchases for customers.235 He

12

testified that “[f]or the most part,” the cash register came up correct and that there “wasn’t ever an

13

issue” with him entering the wrong amounts or forgetting the amounts.236 He estimated that he

14

probably stood and walked “6 out of 10 hours” while he worked at the store but later testified that

15

he sat for “half the day.”237 Mr. Waltz testified that he probably lifted twenty pounds at the job.238

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

225

AR 66.

226

Id.

227

Id.

228

Id.

229

Id.

230

Id.

231

AR 66–67.

232

AR 67, 83.

233

AR 67.

234

AR 80.

235

AR 67.

236

AR 80.

237

AR 68–69.

238

AR 69.

ORDER – No. 17-cv-06654-LB

21 

1

He called in sick “[n]ot very often . . . [m]aybe once or twice.”239 Mr. Waltz worked at the store

2

for “[a] little over” one year.240 He voluntarily quit that job because he “wasn’t going anywhere

3

with it” and “seemed like [he] was stuck in the same spot.”241
Mr. Waltz testified that at age nineteen, he was involved in a major car accident where he was

4
5

thrown from a car as it rolled.242 He was unconscious for three days, and he could not remember

6

his name or age following the accident.243
In 2005, Mr. Waltz worked part-time as a caregiver for his mother.244 He never looked into

7
8

working as a caregiver for others.245
Mr. Waltz testified that his insomnia, bipolar disorder, and depression prevented him from

10

working.246 He also stated that his “motivation is like real down” and that he “just can’t sleep.”247

11
United States District Court
Northern District of California

9

Mr. Waltz took hydroxyzine, amitriptyline, and melatonin for insomnia and Elavil for both

12

insomnia and bipolar disorder.248 His sleep medication helped him fall asleep “sometimes,” but he

13

still slept “about five nights out of seven.”249 Mr. Waltz also testified that seeing his psychologist,

14

Dr. Lopez, “help[ed him] to relax some.”250 Mr. Waltz stated that Dr. Lopez gave him techniques

15

for sleep and “[p]robably for bipolar.”251 Mr. Waltz testified that he also had anxiety “since [he]

16

was younger.”252

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

239

AR 83.

240

AR 80–81.

241

AR 82–83.

242

AR 78.

243

Id.

244

AR 69–70.

245

AR 70.

246

Id.

247

Id.

248

Id.

249

AR 71–72.

250

AR 72–73.

251

AR 73.

252

Id.

ORDER – No. 17-cv-06654-LB

22 

Mr. Waltz testified that he had a history of alcohol and drug abuse but had been sober since

1
2

January 9, 2014.253 He was sober between March 2007 and February 2011254 and not sober from

3

February 2011 to January 9, 2014.255 He testified that he was clean when he worked at Target in

4

2011.256 He tried heroin and meth “a little bit . . . occasionally, but [he] never mainlined with

5

drugs, [he] never sho[t] a needle in [his] arm” to get high.257 He tried smoking crystal meth “a few

6

times” but “didn’t do a whole lot” for him, and he did not “much care for it” because he “already

7

[had] sleep issues.”258 Alcohol helped him “pass out,” but he still struggled with sleep when he

8

drank.259 Marijuana helped him sleep; he used to smoke a “couple joints” of marijuana per

9

week.260
In regard to Mr. Waltz’s claimed blot clots and tendonitis, he testified that “both of [his] legs

10

United States District Court
Northern District of California

11

are okay . . . . [He] can’t walk too far because it might start to ache a little bit and they can get a

12

little sore sometimes when [] riding [his] bicycle, but . . . they’ve healed very well.”261 He could

13

walk “probably half a mile” and rode his bicycle “three or four miles . . . maybe five.”262 He

14

attended “about four or five” AA meetings per week, and he sometimes hung out with friends.263

15

He also testified that he had never undergone therapy to improve his cognitive ability (i.e.,

16

memory and concentration).264 Furthermore, Mr. Waltz believed that he had a learning disability,

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

253

Id.

254

Mr. Waltz could not recall whether he began using drugs and alcohol again in February 2011 or
April 2011. AR 84–85.
255

AR 84–85.

256

AR 74.

257

Id.

258

Id.

259

AR 85.

260

AR 85–86.

261

AR 75.

262

Id.

263

AR 76.

264

Id.

ORDER – No. 17-cv-06654-LB

23 

1

although he was never so diagnosed.265

2

2.3

3

Robert Cottle, a vocational expert (“VE”), also testified at the May 26, 2016 hearing.266 The

4

Vocational Expert Testimony

ALJ posed the following hypothetical:
[A] hypothetical individual [of] the claimant’s age and education and with the past
jobs [of sales representative, general merchandise; DOT 279-357-014; SVP 4; light
strength] . . . . [T]his individual is limited to medium work as defined in the
regulations except frequent balance, stoop, kneel, crouch, crawl, and clime ramps
and stairs. So those are all frequent. No climbing ropes, ladders, or scaffolds; no
exposure to high-exposed places or moving mechanical parts; and can understand,
remember, and carry out simple instructions and make simple work-related
decisions, can tolerate occasional interaction with the public.267

5
6
7
8
9

VE Cottle testified that such a hypothetical individual could not perform any of Mr.

11
United States District Court
Northern District of California

10

Waltz’s past jobs as actually performed or generally performed in the national economy.268

12

He further testified that such a hypothetical individual could perform other kinds of

13

work.269 Specifically, VE Cottle testified that such an individual could work as a laundry

14

worker (DOT 361.685-018; SVP 2; medium strength; nationally, 199,300), dryer attendant

15

(DOT 581.686-018; SVP 1; medium strength; 106,200) or box bender (DOT 641.687-010;

16

SVP 1; medium strength; nationally, 206,600).270

17
18

VE Cottle then considered a second hypothetical: the individual in the first
hypothetical was limited to frequent interaction with coworkers and occasional interaction

19
20
21
22
23
24
25
26
27
28

265

AR 81.

266

AR 88–97.

267

AR 89–90.

268

AR 90.

269

Id.

270

AR 90–92. VE Cottle initially testified that such an individual could also work as a linen room
attendant, but then eliminated that possibility because it was “not [] simple” and “some judgment []
involved” in that job. AR 91–92.
ORDER – No. 17-cv-06654-LB

24 

1

with supervisors.271 VE Cottle indicated that the jobs of laundry worker, dryer attendant,

2

and box bender would still apply.272
VE Cottle considered a third hypothetical: the individual in the first hypothetical could

3
4

perform routine tasks at a consistent pace but not at a production rate pace, where each task

5

must be performed according to a strict deadline.273 He testified that such an individual

6

could work as a laundry worker, dryer attendant, or frame stripper (DOT 559.687-046;

7

SVP 1; medium strength; nationally, 426,700).274 That individual could not work as a box

8

bender.275
VE Cottle testified that if the third hypothetical individual were off task for fifteen to

9

twenty percent of the day, such an individual would not be able to perform the jobs of

11
United States District Court
Northern District of California

10

laundry worker, dryer attendant, or frame stripper.276 That individual could perform those

12

jobs, however, even if off task for five percent of the day.277
He further testified that if an individual needed to miss more than three days per month of

13
14

work, such an individual would not be able to perform any of the above-mentioned jobs.278

15

Likewise, if an individual “needed additional instructions well beyond that of a normal employee”

16

for one-third of the time, such an individual would not be able to perform any of those jobs.279

17

Finally, if an individual occasionally “was not able to get alone with coworkers and supervisors

18

one-third of the workday,” such an individual could not perform any of those jobs.280

19
20
21
22
23
24
25
26
27
28

271

AR 92.

272

Id.

273

Id.

274

AR 92–93.

275

AR 92.

276

AR 93.

277

Id.

278

AR 94.

279

AR 94–95.

280

AR 95.

ORDER – No. 17-cv-06654-LB

25 

1

2.4

2

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

3

was disabled and concluded that he was not.281
At step one, the ALJ found that Mr. Waltz had not engaged in substantial gainful activity since

4
5

Administrative Findings

September 15, 2011.282
At step two, the ALJ found that Mr. Waltz had the following severe impairments: chronic

6
7

insomnia; degenerative-disc disease; hypertension; affective disorder; personality disorder; anxiety

8

and sprains and strains.283 The ALJ found that Mr. Waltz had several non-severe impairments,

9

including but not limited to deep-vein thrombosis, tendonitis, hypothyroidism, chronic skin
conditions, and a back sprain.284 The ALJ also found that Mr. Waltz’s alleged learning disability

11
United States District Court
Northern District of California

10

was not a medically determinable impairment.285

12

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

13

impairments that met or medically equaled the severity of one of the listed impairments.286 In

14

addition, no treating or examining physician had mentioned findings equivalent in severity to the

15

criteria of any listed impairment.287 Specifically, the ALJ found that, with respect to Mr. Waltz’s

16

hypertension (which was evaluated by reference to specific body systems), there was no evidence

17

in the record of a specific body system so affected as to meet a listing.288 With respect to Mr.

18

Waltz’s degenerative-disc disease, the ALJ found that it did not meet Listing 1.04 (disorders of the

19
20
21
22
23
24
25
26
27
28

281

AR 23–39.

282

AR 24.

283

AR 24–25.

284

AR 25.

285

Id.

286

AR 25–28.

287

AR 25.

288

AR 25–26.

ORDER – No. 17-cv-06654-LB

26 

1

spine) because the record did not demonstrate any compromise of a nerve root or the spinal cord

2

with any additional findings.289
The ALJ also found that Mr. Waltz’s mental impairments, considered singly and in

3
4

combination, did not meet or medically equal the criteria of any of the following listings: 12.04

5

(affective disorder); 12.06 (anxiety-related disorders); 12.08 (personality disorders); and 12.09

6

(substance addition disorders).290 In making such a determination, the ALJ considered whether

7

Mr. Waltz’s mental impairments resulted in at least two of the following: (1) marked restriction of

8

activities of daily living; (2) marked difficulties in maintaining social functioning; (3) marked

9

difficulties in maintaining concentration, persistence, or pace; or (4) repeated episodes of

10

decompensation, each of extended duration.291
With respect to (1), the ALJ found that Mr. Waltz had only mild restrictions in activities of

United States District Court
Northern District of California

11
12

daily living.292 Mr. Waltz could, for example, prepare his own meals and cook at his shelter, use

13

public transportation independently, walk, ride his bicycle, do laundry, frequently volunteer at

14

Interlink doing gardening and cleaning, shop in stores, and remember and attend appointments.293

15

With respect to (2), the ALJ found that Mr. Waltz had moderate difficulties in social

16

functioning.294 Specifically, on the one hand, Mr. Waltz sometimes had conflict with others

17

(which resulted in losing a job), had issues with crowds, and did not socialize often with friends

18

due to feelings of anxiety or depression.295 On the other hand, Mr. Waltz got along well with

19
20
21
22
23
24
25
26
27
28

289

AR 26.

290

Id.

291

Id.

292

Id.

293

Id.

294

Id.

295

Id.

ORDER – No. 17-cv-06654-LB

27 

1

authority figures and felt he had no problem getting along with family or friends.296 He also was

2

involved in a satisfying relationship with an individual at his homeless shelter.297

3

With respect to (3), the ALJ found that Mr. Waltz had moderate difficulties with

4

“concentration, persistence, or pace.”298 On the one hand, Mr. Waltz could remember

5

appointments, read regularly (and well), and processed spoken instructions (better than written

6

instructions).299 On the other hand, he felt that his mind drifted after only ten minutes, he did not

7

handle stress or changes in his routine well, and his short-term memory was at times “mildly

8

decreased.”300 With respect to (4), Mr. Waltz experienced no episodes of decompensation.301
Overall, the ALJ found that there was insufficient objective medical evidence to establish that

9

Mr. Waltz had a disabling affective disorder, anxiety-related disorder, or substance-abuse

11
United States District Court
Northern District of California

10

disorder.302
Before considering the fourth step, the ALJ determined that Mr. Waltz had the residual-

12
13

functional capacity (“RFC”) to perform medium work, but with the following limitations: able to

14

frequently balance, stoop, kneel, crouch, crawl, and climb; unable to climb ladders, ropes, or

15

scaffolds; unable to have any exposure to high, exposed places or moving mechanical parts; able

16

to understand, remember, and carry out only simple instructions and make simple work-related

17

decisions; able to tolerate only occasional interaction with the public; able to perform routine tasks

18

at a consistent pace, but not a production rate pace where each task must be performed within a

19

strict time deadline; and he would be off task for five percent of the workday.303

20
21
22
23
24
25
26
27
28

296

Id.

297

Id.

298

AR 26–27.

299

AR 26.

300

AR 26–27.

301

AR 27.

302

AR 27–28.

303

AR 28.

ORDER – No. 17-cv-06654-LB

28 

The ALJ further provided:

1

7

[Mr. Waltz’s] generative disc disease and fatigue due to insomnia, plus hypertension
(at times uncontrolled but not apparently controlled) and periodic sprains and strains
justify a limitation to work at no more than a medium level of exertion, with
corresponding postural limitations. [His] insomnia and side effects from medication
make appropriate a prohibition on exposure to hazards. [His] anxiety and personality
disorders result in a significant restriction on his contact with the public. [His]
affective disorder makes necessary a limitation on the complexity of instructions he
can process and perform and the pace at which he can do such things. Finally, [his]
combined physical and mental impairments call for an allowance for the claimant to
be off-task a small but significant portion of the workday (5%).304

8

At step four, the ALJ concluded that, because Mr. Waltz’s past job as a sales representative

2
3
4
5
6

9

exceeded his ability to perform work involving no more than simple instructions and only
occasional interaction with the public, Mr. Waltz was unable to perform his past relevant work.305

11
United States District Court
Northern District of California

10

At step five, the ALJ determined that, given Mr. Waltz’s age, education, work experience and

12

RFC, and based on the VE’s testimony, “significant numbers” of jobs existed in the national

13

economy that Mr. Waltz could perform.306 The ALJ thus concluded that Mr. Waltz was not

14

disabled.307

15

STANDARD OF REVIEW

16

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

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

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

23

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

24
25
26
27
28

304

AR 37.

305

Id.

306

AR 38.

307

AR 38–39. Because the ALJ found that Mr. Waltz was not disabled — even considering his “severe
substance abuse impairment” — the ALJ did not consider the issue of “materiality” of drug and
alcohol abuse. See 20 C.F.R. § 404.1535; 20 C.F.R. § 416.935.
ORDER – No. 17-cv-06654-LB

29 

1

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

2

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

3

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

4

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

5

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

6

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

7
GOVERNING LAW

9

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

10

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

11
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Northern District of California

8

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

12

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

13

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

14

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

15

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

16

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

17

C.F.R. § 404.1520).

18
19
20
21
22
23
24
25
26
27
28

Step One. Is the claimant presently working in a substantially gainful activity? If so,
then the claimant is “not disabled” and is not entitled to benefits. If the claimant is
not working in a substantially gainful activity, then the claimant’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 the listed specified
impairments described in the regulations? If so, the claimant is disabled and is
entitled to benefits. If the claimant’s impairment does not meet or equal one of
the impairments listed in the regulations, then the case cannot be resolved at step
three, and the evaluation proceeds to step four. See 20 C.F.R. § 404.1520(a)(4)(iii).
Step Four. Considering the claimant’s RFC, is the claimant able to do any work that
he or she has done in the past? If so, then the claimant is not disabled and is not
entitled to benefits. If the claimant cannot do any work he or she did in the past, then
ORDER – No. 17-cv-06654-LB

30 

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

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.

3
4
5
6
7

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

8
9
10

burden shifts to the Commissioner. Gonzales v. Sec’y of Health & Human Servs., 784 F.2d 1417,
1419 (9th Cir. 1986).

United States District Court
Northern District of California

11

ANALYSIS

12

Mr. Waltz contends that the ALJ erred by discrediting his testimony.308 Specifically, Mr.

13

Waltz argues that the ALJ erred by finding that his testimony was inconsistent with (1) objective

14

medical evidence and treatment sought,309 and (2) his work history.310 The court disagrees.
In assessing a claimant’s credibility, an ALJ must make two determinations. Molina, 674 F.3d

15
16

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

17

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

18

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

19

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

20

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

21

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

22

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

23

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

24

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

25

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

26
27
28

308

Motion for Summary Judgment – ECF No. 26 at 5, 7–10.

309

Id. at 7–9.

310

Id. at 9–10.

ORDER – No. 17-cv-06654-LB

31 

1

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

2

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

3

Orn v. Astrue, 495 F.3d 625, 636 (9th Cir. 2007) (internal quotation marks omitted). “[T]he ALJ

4

must identify what testimony is not credible and what evidence undermines the claimant’s

5

complaints.” Burrell v. Colvin, 775 F.3d 1133, 1138 (9th Cir. 2014) (citing Lester v. Chater, 81

6

F.3d 821, 834 (9th Cir. 2014)); see, e.g., Morris v. Colvin, No. 16-CV-0674-JSC, 2016 WL

7

7369300, at *12 (N.D. Cal. Dec. 20, 2016).
Here, the ALJ gave specific, clear and convincing reasons for discounting Mr. Waltz’s

8
9
10

testimony. Although Mr. Waltz discusses only two, the ALJ gave five reasons for discounting Mr.
Waltz’s testimony. The court considers each in turn.

United States District Court
Northern District of California

11

First, as Mr. Waltz points out, the ALJ found that Mr. Waltz’s treatment history undercut the

12

accuracy of his testimony.311 See 20 C.F.R. § 404.1529(c)(3)(iv) (identifying nature of treatment

13

as factor to consider when assessing subjective allegations). Specifically, the ALJ found that Mr.

14

Waltz’s allegations about the severity of his impairments were “inconsistent with his history of

15

seeking minimal — or, at best, highly conservative — treatment.”312 See Johnson v. Shalala, 60

16

F.3d 1428, 1434 (9th Cir. 1995) (“conservative treatment” suggested “lower lever of both pain and

17

functional limitation”). For example, although Mr. Waltz claimed disabling mental impairments,

18

including bipolar disorder, depression, and anxiety, he did not regularly receive psychotherapy or

19

take psychotropic medication.313 See Ostenbrock v. Apfel, 240 F.3d 1157, 1166 (9th Cir. 2001)

20

(finding ALJ properly rejected claimant’s subjective complaints where he did not use medication

21

commonly prescribed for alleged symptoms).
Moreover, regarding Mr. Waltz’s psychological impairments, the ALJ found that

22
23

his comments to providers suggest he sought treatment for the primary purpose of
obtaining benefits . . . . Vocational rehabilitation was suggested for the claimant, as

24
25
26
27
28

311

See AR 33–34.

312

AR 33.

313

AR 32, 429.

ORDER – No. 17-cv-06654-LB

32 

an alternative to his expressed desire to receive disability benefits, and remaining out
of the workforce was considered potentially damaging to [his] mental health.314

1
2

See 20 C.F.R. § 404.1529(c)(3)(vii)(4). On February 13, 2015, Mr. Waltz saw Dr. Karpowicz, in

3

part, for “GA” (general assistance benefits).315 As the ALJ pointed out, Dr. Karpowicz stated that

4

it was “not entirely clear” what Mr. Waltz’s underlying diagnosis was for his disabling

5

symptoms.316 He further noted that it was not clear that Mr. Waltz had a “severe enough illness

6

that would make him completely unfit for work” and that it “may in fact be harmful for him to

7

continue to be out of the workforce.317 Although that opinion is reserved for the Commissioner, it

8

is “indicative of the objective severity of [Mr. Waltz]’s impairment.318

9

Second, as Mr. Waltz discusses, the ALJ found Mr. Waltz’s work history to be inconsistent
with the alleged severity of his symptoms.319 The ALJ observed that even though Mr. Waltz

11
United States District Court
Northern District of California

10

claimed to have difficulty getting along with coworkers and that he lost a job due to his alleged

12

anger issues — the record did not demonstrate social issues in Mr. Waltz’s past employment or

13

volunteer work.320 The ALJ noted that Mr. Waltz lived in a house with over 100 others and had no

14

problem getting along with them.321 The ALJ further noted that although Mr. Waltz was fired from

15

his last job, he quit his previous job because he felt it “wasn’t going anywhere.”322 See Drouin v.

16

Sullivan, 966 F.2d 1255, 1256 (9th Cir. 1992) (finding ALJ properly rejected the claimant’s pain

17

testimony because the claimant was laid off from work for reasons unrelated to her pain). The

18

ALJ’s consideration of Mr. Waltz’s work history was proper and supported by substantial

19

evidence.

20
21
22
23
24
25
26
27
28

314

AR 32.

315

AR 583.

316

AR 36, 583.

317

AR 36; see also AR 583.

318

AR 36.

319

AR 34.

320

AR 36.

321

Id.

322

AR 34; see also AR 82–83.

ORDER – No. 17-cv-06654-LB

33 

Third, the ALJ found that Mr. Waltz’s activities of daily living demonstrated a level of

1
2

functioning beyond his alleged level of functioning.323 See 20 C.F.R. § 404.1529(c)(3)(vii)(4); see

3

also Orn, 495 F.3d at 636 (“[I]nconsistencies . . . between [a claimant’s] testimony and [his]

4

conduct [or] daily activities” is a legitimate factor “in weighing a claimant’s credibility.”). For

5

example, Mr. Waltz claimed disability in part based on anger issues and impatience with others.324

6

He stated that he had difficulty being around others and that he was once fired from a job due to

7

his anger issues.325 But, as the ALJ noted, Mr. Waltz lived in a shelter with over 100

8

individuals.326 He had no altercations with his cohabitants, was involved in a relationship with

9

someone from his shelter, and got along well with authority figures, family, and friends.327 The
ALJ further noted that Mr. Waltz rode public transportation independently, volunteered, and

11
United States District Court
Northern District of California

10

attended appointments.328
Fourth, the ALJ found that the medical evidence undermined Mr. Waltz’s claims of disabling

12
13

limitations and supported his RFC for work involving simple instructions, simple work-related

14

decision-making, limited social contact, flexible deadlines, and the ability to be off task for five

15

percent of the workday.329 Mr. Waltz failed to address the breadth of normal examination

16

findings330 or explain how the ALJ erred in weighing the medical evidence with respect to his

17

RFC. The ALJ concluded that the medical evidence did not support Mr. Waltz’s allegations.

18
19
20
21
22
23
24
25
26
27
28

323

AR 26, 29, 33; see also AR 61–62, 315, 317–19, 320, 538.

324

AR 33, 318, 320.

325

AR 26, 318, 320.

326

AR 36.

327

AR 26, 33, 61–62.

328

AR 26; see also AR 315, 317–19.

329

AR 37.

330

See, e.g., AR 424–26 (where Dr. Kalman noted that Mr. Waltz was pleasant and cooperative, he
spoke at an average rate and volume, and his eye contact was good; Mr. Waltz could relate to
supervisors, co-workers, and peers, and he could withstand the stress and pressures associated with
daily work); AR 583 (where Dr. Karpowicz opined that it was “not clear” that Mr. Waltz had “a severe
enough illness that would make him completely unfit for work”); AR 430 (where Dr. Larson reported
that Mr. Waltz was able to maintain focus throughout the evaluation with no need for redirection, gave
good eye contact, had a pleasant attitude, and no “loose associations or confusion” were indicated);
ORDER – No. 17-cv-06654-LB

34 

Fifth, the ALJ found that Mr. Waltz’s conflicting accounts of his cannabis and alcohol use

2

undercut the accuracy of his allegations.331 See 20 C.F.R. § 404.1529(c)(4) (“We will consider

3

whether there are any inconsistencies in the evidence and the extent to which there are any

4

conflicts between your statements and the rest of the evidence.”); Thomas v. Barnhart, 278 F.3d

5

948, 959 (9th Cir. 2002) (rejecting claimant’s statements where “the ALJ found that [the claimant]

6

had not ‘been a reliable historian, presenting conflicting information about her drug and alcohol

7

usage’”); Rusten v. Comm’r of Soc. Sec., 468 F. App’x 717, 719 (9th Cir. 2012) (“Inconsistent or

8

dishonest statements about drug use can be used to infer a lack of veracity in the claimant’s other

9

assertions.”) (citing Thomas, 278 F.3d at 959). For example, as the ALJ noted, Mr. Waltz testified

10

that he had not used cannabis since January 9, 2014,332 but the record shows that he reported using

11
United States District Court
Northern District of California

1

cannabis through at least March 2015.333 The ALJ properly found that Mr. Waltz’s inconsistent

12

statements undermined his claims.
The court concludes that the ALJ gave specific, clear and convincing reasons for discounting

13
14

Mr. Waltz’s testimony.

15

CONCLUSION
The court denies Mr. Waltz’s motion for summary judgment and grants the Commissioner’s

16
17

cross-motion for summary judgment.

18

IT IS SO ORDERED.

19

Dated: November 13, 2018
______________________________________
LAUREL BEELER
United States Magistrate Judge

20
21
22
23
24
25

AR 485 (where Dr. Gerson noted that Mr. Waltz was able to relate to him, follow instructions without
difficulty, and was “not unstable”).

26

331

AR 29, 31–32, 34, 73, 534, 589.

332

AR 34, 73.

27
28

333

On November 7, 2014, Mr. Waltz told Dr. Kozart that he still used cannabis. AR 589; see also AR
535.
ORDER – No. 17-cv-06654-LB

35