Busby v. Berryhill

Filing 28

ORDER by Judge Laurel Beeler granting 23 Motion for Summary Judgment. The court GRANTS Mr. Busby's motion for summary judgment, DENIES the Commissioner's cross-motion for summary judgment, and remands the case for further proceedings consistent with this order. (lblc3S, COURT STAFF) (Filed on 3/25/2019)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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San Francisco Division

United States District Court
Northern District of California

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STEPHEN R. BUSBY,

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Plaintiff,
v.

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NANCY A. BERRYHILL,
Defendant.

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Case No. 17-cv-06928 -LB
ORDER GRANTING PLAINTIFF’S
MOTION FOR SUMMARY
JUDGMENT AND DENYING
DEFENDANT’S CROSS-MOTION FOR
SUMMARY JUDGMENT
Re: ECF Nos. 23, 24.

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INTRODUCTION

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The plaintiff seeks judicial review of a final decision by the Commissioner of the Social

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

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Security Act.1 He moved for summary judgment.2 The Commissioner opposed the motion and

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

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for decision by this court without oral argument. All parties consented to magistrate-judge

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Mot. for Summary Judgment – ECF No, 23 at 5. Citations refer to material in the Electronic Case
File (“ECF”); pinpoint citations are to the ECF-generated page numbers at the top of documents.
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Mot. – ECF. No. 23.

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Cross-Mot. – ECF No. 24.

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ORDER – No. 17-cv-06928-LB

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

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remands for further proceedings.

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STATEMENT

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1. Procedural History

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On April 16, 2014, the plaintiff, then age 47, filed a claim for social-security disability

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insurance (“SSDI”) benefits under Title XVI of the Social Security Act (“SSA”).5 He alleged a

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gunshot wound to the left leg, a lower-back injury, and depression with an onset date of March 1,

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2001.6 The Commissioner denied his SSDI claim initially and on reconsideration.7
Administrative Law Judge Suzanne Krolikowski (“the ALJ”) held a hearing in San Rafael,

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United States District Court
Northern District of California

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California on May 4, 2016.8 The plaintiff was represented by an attorney.9 The ALJ heard

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testimony from the plaintiff and from vocational expert (“VE”) Connie Guillory.10 On September

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23, 2016, the ALJ issued an unfavorable decision.11 The plaintiff appealed the decision to the

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Appeals Council on October 18, 2016.12 The Appeals Council denied his request for review on

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October 5, 2017.13

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AR 190, 77.

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AR 77–86 (initial determination); AR 88–99 (reconsideration).

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AR 35–76.

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AR 37.

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Consent Forms – ECF. Nos. 9, 10.

AR 190–98. Administrative Record (“AR”) citations refer to the page numbers in the bottom right
hand corner of the Administrative Record.

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AR 45, 68.

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AR 14.

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AR 189.

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AR 1–6.

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ORDER – No. 17-cv-06928-LB

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The plaintiff filed this action on December 4, 2017 and moved for summary judgment on

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October 26, 2018.14 The Commissioner opposed the motion and filed a cross-motion for summary

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judgment on November 23, 2018.15

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2. Summary of Medical Records
Clarence David, M.D. — Treating

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2.1

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Dr. David treated the plaintiff in San Quentin State Prison on several occasions from August

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28, 2013 to July 23, 2014.16 Dr. David treated the plaintiff for multiple conditions, including

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chronic intermittent low-back pain, chronic axial low-back pain, hypertension, and right-wrist-

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thumb discomfort.17
Beginning on April 24, 2013, Dr. David noted low-back pain with pain shooting down the

United States District Court
Northern District of California

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plaintiff’s right leg.18 The plaintiff reported on July 23, 2013 that medication was not easing his

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pain, and his low back pain continued.19 He also reported that he had pain in his entire body from

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his neck down to his left leg.20 Dr. David noted that the plaintiff had full strength (rated five out of

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five) in his upper and lower extremities and deep-tendon reflexes 2+ bilaterally.21 On August 28,

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2013, the plaintiff complained about continuing low-back pain and shooting pain in his leg.22 Dr.

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David noted that the plaintiff’s symmetrical strength was five out of five in the upper and lower

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Compl. – ECF. No. 1; Mot. – ECF. No. 23.

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Cross-Mot. – ECF. No. 24.

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AR 280, 282, 287, 289, 291, 293.

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AR 280, 282, 287, 289, 291, 293, 306.

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AR 306, 293, 291.

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AR 293.

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Id.

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Id. Deep-tendon reflex tests are used to determine the integrity of the spine and peripheral nervous
system. The response levels of deep-tendon reflexes are level 0-4+, with 2+ being normal. Alexander
Reeves and Rand Swenson, Disorders of the Nervous System: A Primer, DARTMOUTH MEDICAL
SCHOOL, https://www.dartmouth.edu/~dons/part_1/chapter_8.html (last visited Mar. 12, 2019).
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AR 291.

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ORDER – No. 17-cv-06928-LB

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extremities, deep tendon reflexes were 2+ bilaterally, and his gait was normal.23 Dr. David

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reported chronic low-back pain with some parethesias, but no neurologic or motor deficits.24
On September 16, 2013, Dr. David evaluated the plaintiff for right-wrist pain.25 The plaintiff’s

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low-back pain was “doing much better with the Tylenol.”26 Dr. David evaluated the plaintiff’s

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wrist and concluded there was “no point tenderness, but some discomfort over the base of his

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thumb.”27 There was no soft-tissue swelling, there was a prominent radial head, but no deformity,

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and there was no crepitus or effusion.28 The plaintiff complained of wrist pain on November, 20,

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2013, December 21, 2013, January 15, 2014, and February 26, 2014.29 On February 26, 2014, Dr.

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David noted that there were no bony abnormalities shown in the x-rays, and he prescribed a wrist

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splint.30

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Northern District of California

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Dr. David treated the plaintiff for hypertension via medication and monitoring.31 On July 23,

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2013, the plaintiff’s blood pressure was “mildly elevated.”32 On August 28, 2013, it was “mildly

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increased.”33 On November 20, 2013 and January 14, 2015, his blood pressure was “well

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controlled.”34

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Id.

Id. Parethesias refers to a burning or prickling sensation usually felt in the arms, legs, or feet.
NATIONAL INSTITUTE OF NEUROLOGICAL DISORDERS AND STROKE,
https://www.ninds.nih.gov/Disorders/All-Disorders/Paresthesia-Information-Page (last visited Mar. 12,
2019).

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AR 289.

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Id.

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Id.

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Id. Crepitus of the knee is a cracking, popping, or crunching sensation that takes place upon
movement of the knee. Brian Wu, What’s to Know About Crepitus of the Knee? MEDICAL NEWS
TODAY (Aug. 30, 2018), https://www.medicalnewstoday.com/articles/310547.php (last visited Mar.
12, 2019).
29

AR 287, 285, 282, 280.

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AR 280.

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31

AR 282, 287, 293, 291.

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32

AR 293.

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AR 291.

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AR 287, 282.

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ORDER – No. 17-cv-06928-LB

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R. Ponath, PsyD — Treating

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2.2

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Dr. Ponath treated the plaintiff in San Quentin State Prison for depression.35 On April 5, 2013,

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Dr. Ponath noted that the plaintiff was ambulating in an “impaired manner consistent with pain

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complaint.”36 Dr. Ponath prescribed the plaintiff an increased dosage of venlafaxine (for his

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depression) continued hydroxyzine (for his anxiety).37 On November 7, 2013, Dr. Ponath noted

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that the plaintiff’s chronic back pain “limits him and causes him depression and anxiety over his

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condition.”38 After a suicide-risk evaluation conducted on November 7, 2013, Dr. Ponath noted

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that the plaintiff was “doing well [and had] less depression and anxiety.”39
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Clinician H. Taylor — Treating

On January 10, 2014, Dr. Taylor treated the plaintiff in San Quentin State Prison.40 The

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Northern District of California

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plaintiff reported that he was always in pain but tried not to think about it.41 The plaintiff also

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reported that his antidepressant worked fairly well.42 Dr. Taylor noted that the plaintiff’s affect

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was full range and appropriate and his cognitive function was intact. 43
Carla Schwarz, ASW — Treating

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2.4

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On April 3, 2014, Ms. Schwartz stated in her pre-release notes that the plaintiff was feeling

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positive and future-oriented about his release.44 Mental health was “not a concern” for him, and he

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AR 295.

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Id.

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Id.

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AR 296.

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AR 302.

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AR 305.

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Id.

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Id.

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Id.

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AR 304.

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ORDER – No. 17-cv-06928-LB

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was “feeling blessed.”45 Ms. Schwarz noted that the plaintiff had anxiety and depression but was

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no longer taking any medications for mental health.46
Samuel S. Chua, M.D. — Treating

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Dr. Chua treated the plaintiff from June 2014 to June 2016.47

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On June 16, 2014, Dr. Chua assessed the plaintiff for depression, hypertension, causalgia of
the lower limb, and lesion of femoral nerve.48 The plaintiff reported that he wanted to get back on

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his blood-pressure medication.49 Dr. Chua noted that the plaintiff’s leg pain was at an eight out of

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ten, occurred constantly, and was worsening.50 He also noted that the plaintiff’s back pain was at

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an eight out of ten, was worsening, and occurred persistently.51 Dr. Chua added that the plaintiff’s

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back may have been subjected to an unusual strain as a result of the plaintiff’s walking with a limp

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Northern District of California

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due to weakness and neuralgic pain in the left leg.52

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Dr. Chua performed a physical exam of the plaintiff. He stated that the plaintiff’s gait was

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antalgic and his posture had lumbar prominence. 53 Furthermore, the plaintiff’s muscle tone in the

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lower extremity was diminished on the left side and that he moved “with pain.”54 The plaintiff had

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an increased lumbar paraspinal on the left, a lumbar spasm, and paraspinous lumbar tenderness;

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his right buttock was painless while his left was painful, his greater trochanter on the right and left

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Id.

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Id.

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AR 322–361, 408–413.

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AR 327.

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Id.

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AR 328.

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Id.

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Id.

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AR 330. Antalgic gait is a limp that develops as a result of a person taking uneven strides in
response to pain. Kanna Ingleson, All You Need to Know About Antalgic Gait, MEDICAL NEWS TODAY
(Oct. 26, 2017), https://www.medicalnewstoday.com/articles/319829.php (last visited Mar. 12, 2019).
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Id.

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ORDER – No. 17-cv-06928-LB

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were painless, and the sacroiliac joint in the left was painless. 55 Dr. Chua prescribed the plaintiff

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felodipine (for hypertension), fluoxetine (for depression), hydrocodone-acetaminophen (for pain),

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Irbesartan (for hypertension), hydrochlorothiazide (for hypertension), and Neurontin (for pain).56

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On August 13, 2014, Dr. Chua ordered lab tests for the plaintiff including a lipid panel,

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urinalysis, TSH (thyroid-stimulating hormone), CBC (complete blood count) with differential,

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Vitamin D, 25-Hydrocy, and CMP (comprehensive metabolic panel).57 The results of these tests

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included findings that CBC and CMP were within normal limits, lipid panel was elevated, Vitamin

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D was low at 14, and the urinalysis was positive for leukocyte esterase, but negative for nitrite.58
On September 10, 2014, Dr. Chua assessed the plaintiff for hypertension, depression, causalgia

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of lower limb, and high cholesterol.59 The plaintiff had anxiety and back pain.60 He prescribed

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Northern District of California

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atorvastatin (for cholesterol), felodipine (for hypertension), fluoxetine (for depression),

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hydrocodone-acetaminophen (for pain), irbesartan (for hypertension), hydrochlorothiazide (for

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hypertension), Neurontin (for pain), and Vitamin D3.61
On October 29, 2014, Dr. Chua noted that the plaintiff’s depression had “good improvement”

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on fluoxetine.62 The plaintiff reported functioning as “somewhat difficult” and presented with

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fatigue and decreased libido.63 The plaintiff’s hypertension was controlled, and no changes were

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made to medications and monitoring.64 There was “good relief” of causalgia of lower limb with

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Id. The paraspinal muscles are a set of three back muscles which function to extend and bend the
spine. Anne Asher, What Are the Paraspinal Muscles? VERYWELL HEALTH (Nov. 19, 2018),
https://www.verywellhealth.com/paraspinal-muscles-297191 (last visited Mar. 12, 2019).
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AR 330.

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AR 358.

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AR 333. A positive finding of leukocyte esterase in the urine is indicative of an infection. Leukocyte
Esterase, UCSF HEALTH, https://www.ucsfhealth.org/tests/003584.html (last visited Mar. 25, 2019).
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AR 332.

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AR 334.

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AR 334–35.

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AR 336.

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Id.

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Id.

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ORDER – No. 17-cv-06928-LB

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his combination of medication.65 Dr. Chua described the plaintiff’s pain as “fluctuating” and

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“throbbing.”66 His pain was aggravated by climbing and descending stairs, movement, walking,

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and standing.67 The pain was relieved by exercise, heat, ice, pain medication and mobility.68 Dr.

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Chua prescribed astorvastin (for cholesterol), felodipine (for hypertension), fluoxetine (for

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depression), hydrocodone-acetaminophen (for pain), irbesartan (for hypertension),

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hydrochlorothiazide (for hypertension), Neurontin (for pain), Vitamin D3, and Viagra (for erectile

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dysfunction).69
On April 24, 2015, Dr. Chua indicated that the plaintiff’s hypertension was “mild-moderate”

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and was currently stable.70 He also noted that the plaintiff continued to have symptoms of
causalgia of the lower limb and that it was in “fairly good control with gabapentin and narcotic

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Northern District of California

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pain meds.”71 He noted that the severity level of leg pain was a level eight out of ten and that it

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was improving.72 Dr. Chua prescribed the plaintiff atorvastatin (for cholesterol), Chantix (for

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smoking cessation), felodipine (for hypertension), fluoxetine (for depression), fluticasone (for

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pain), hydrocodone-acetaminophen (for pain), irbesartan (for hypertension), hydrochlorothiazide,

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Neurontin (for pain), Viagra (for erectile dysfunction), and Vitamin D3.73
On September 2, 2015, Dr. Chua noted that the plaintiff’s hypertension was mild and did not

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make any changes to medication and monitoring of the hypertension.74 With regard to the

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plaintiff’s leg pain, Dr. Chua indicated that the severity level was a level eight out of ten and that it

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65

Id.

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AR 337.

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67

Id.

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68

Id.

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AR 339–40.

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AR 341.

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Id.

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72

AR 342.

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AR 344–45.

74

AR 346–47.

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occurred constantly and was worsening.75 He also noted that the pain was aching, sharp, and

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aggravated by standing.76 During this visit, the plaintiff reported that he went to the emergency

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room via ambulance early that morning for severe pain in his left leg.77 The plaintiff reported that

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he had a fall and was “not too sure as to why he fell.”78 Dr. Chua noted that the symptoms of

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causalgia lower limb “may be worsening as this may be affecting the motor function of the

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LLE.”79 During this visit, Dr. Chua prescribed atorvastatin (for cholesterol), Chantix (for smoking

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cessation), felodipine (for hypertension), fluoxetine for depression), fluticasone (for pain),

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hydrocodone-acetaminophen (for pain), irbesartan (for hypertension), hydrochlorothiazide (for

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hypertension) , ketotifen (for allergies), Neurontin (for pain), Viagra (for erectile dysfunction), and

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Vitamin D3.80

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Northern District of California

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On January 27, 2016, Dr. Chua did not make any changes to the plaintiff’s medication or

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monitoring for hypertension.81 Dr. Chua noted that, given the most recent hospitalization of the

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plaintiff, where he had to be placed on the ventilator for severe intoxication with narcotic

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medication in his system, he would never give him narcotic analgesics for his leg pain.82 He

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advised the plaintiff that he violated the narcotics contract, which was grounds for discharging him

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from Dr. Chua’s practice.83 Dr. Chua advised the plaintiff to look for another provider as he

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“[could] not trust him anymore with this history.”84 The plaintiff asked for more pain medications

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to replace the ones he was given at the hospital and subsequently lost.85 Dr. Chua started, stopped,

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75

AR 347.

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Id.

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Id.

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78

AR 348.

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79

AR 346.

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AR 350.

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AR 352.

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82

Id.

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Id.

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Id.

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AR 353.

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or renewed the following medications for the plaintiff: acetaminophen, atorvastatin, azithromycin

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(an antibiotic), Chantix, Felodipine, fluoxetine, fluticasone, hydrocodone, irbesartan, ketotifen,

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Neurontin, Viagra, and Vitamin D3.86 It is unclear from the record which medications were

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started, stopped, or renewed during this visit.87

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On June 15, 2016, Dr. Chua noted that the plaintiff’s hypertension was under “suboptimal

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control,” and he reviewed and made changes to his medication and monitoring.88 With regard to

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the causalgia of left lower limb, Dr. Chua noted that gabapentin was controlling the pain.89 He also

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indicated that the plaintiff did not ask for any pain medication during this visit and that he told Dr.

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Chua that he was “functional with present level of pain control, although ambulation [was] still

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difficult for him.90 Finally, during this visit, Dr. Chua encouraged the plaintiff to stop smoking.91
Dr. Chua completed a medical-source statement regarding the plaintiff’s impairments.92 Dr.

United States District Court
Northern District of California

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Chua certified that the plaintiff had an impairment of “major disfunction of a joint” as defined by

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Listing 1.02.93 Dr. Chua noted that the plaintiff had a “gunshot wound . . . several years ago with

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residual nerve injury and development of causalgia and complex regional pain syndrome.”94 He

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also noted that the plaintiff had undergone reconstructive surgery and that there was “no joint

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involved, just the r[ight] femur.”95 He indicated that the plaintiff was unable to walk a block at a

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reasonable pace on rough or uneven surfaces or climb several stairs at a reasonable pace.96 He was

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86

AR 356–57.

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Id.

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AR 408.

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89

AR 409.

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90

Id.

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Id.

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AR 322.

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Id.

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Id.

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Id.

96

AR 323.

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able to use standard public transportation and carry out routine ambulatory activities.97 Dr. Chua’s

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diagnosis of the plaintiff was causalgia of right lower extremity.98 Dr. Chua indicated that the

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plaintiff’s prognosis was “poor” and that the following conditions applied to him: chronic pain,

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chronic stiffness, chronic tenderness, limitation of motion, contracture, bony of fibrous ankylosis,

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quadriceps muscle atrophy, and inability to ambulate effectively.99 He noted that depression and

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loss of interest in activities affected the plaintiff’s physical conditions.100
Dr. Chua indicated that the plaintiff’s pain and other symptoms were severe enough to

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interfere with attention and concentration needed to perform even simple work tasks.101 According

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to Dr. Chua, the plaintiff could sit about two hours, stand or walk for less than two hours, and
required three to four unscheduled breaks during a typical eight-hour work day.102 He could never

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Northern District of California

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climb stairs or ladders, crouch, or squat and he could rarely twist or stoop.103 Dr. Chua opined that

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the plaintiff would need to be absent from work more than four days per month.104
North Bay Medical Center — Treating

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2.6

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The plaintiff was admitted to North Bay Medical Center on January 24, 2016 and discharged

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on January 25, 2016.105 He was transported there via ambulance after he fell face forward on the

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street while he was “extremely intoxicated with alcohol and apparent prescription medications.”106

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The plaintiff was intubated because he was “unable to protect the airway and was having

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significant apneic episodes.”107 Laboratory and imaging tests indicated the following findings:

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97

Id.

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Id.

99

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Id.

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100

AR 324.

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101

Id.

102

Id.

103

AR 325.

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104

Id.

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105

AR 372.

106

AR 372, 375.

107

AR 376.

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fatty infiltration of the liver, simple left renal cysts, mildly enlarged heart with normal appearance

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of the aorta, spine disc space narrowing from C4-C5 through C6-C7 levels, anterior and posterior

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osteophytes at multiple levels, and minimal degenerative changes were present within the thoracic

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and lumbar spine.108
Sutter Solano Medical Center — Treating

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2.7

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On September 2, 2015, the plaintiff arrived at Sutter Solano Medical Center via ambulance.109

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He complained of pain in his left leg and hip.110 The plaintiff stated that his left leg “gave out” as

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he was walking and that he had been unable to walk on it since then.111 An imaging study showed

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“there [were] two buckshot pellets overlying the medial aspect of the proximal
thigh. The soft tissues [were] otherwise within normal limits. The bony structures
[were] intact and normal and there [was] no evidence of any significant
osteoarthritic change in the hip except for minor marginal osteophyte formation.”112

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X-rays were within normal limits, and the plaintiff was deemed stable for discharge.113 Upon

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discharge, the plaintiff insisted on staying longer, said he could not walk on his leg, urged medical

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providers to “do more so [he could] walk again”, and “attempted to purposely fall on the floor.”114
On February 5, 2016, the plaintiff was treated at Sutter Solano Medical Center for complaints

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of chest pain.115 The plaintiff was intoxicated.116 Chest x-ray results showed normal heart and

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mediastinal contours, clear lungs, no infiltrate or vascular congestion, and no pneumothorax or

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pleural effusion.117

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108

AR 369, 378, 380, 384.

109

AR 398.

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110

Id.

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111

Id.

112

AR 396.

113

AR 400.

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114

AR 398.

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115

AR 403.

116

Id.

117

AR 404.

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Edie Glantz, M.D. — Examining

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2.8

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Dr. Glantz conducted a comprehensive internal-medicine evaluation of the plaintiff on

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November 14, 2014 for the plaintiff’s Disability Determination.118 The plaintiff’s chief complaints

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were low-back pain that occasionally radiated to his left thigh, a gunshot wound to his posterior

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thigh, and hypertension.119 Dr. Glantz noted that the plaintiff limped about the room and

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“appear[ed] uncomfortable when changing positions.”120 Dr. Glantz further noted that the plaintiff

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was unable to get up from a chair without pushing up with his arms due to his low-back pain and

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left-thigh pain.121 Dr. Glantz observed that the plaintiff was able to get his jacket on over his head,

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manipulate a paperclip with both hands, and pick it up from the table without difficulty.122 Dr.
Glantz noted that the plaintiff had antalgic gait.123 Dr. Glantz also observed that the plaintiff

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Northern District of California

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limped and favored his left leg.124 Dr. Glantz reported that the plaintiff had difficulty standing on

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his heels, particularly with the left leg, and that his tandem gait was mildly impaired.125
Dr. Gantz diagnosed the plaintiff with a left-thigh gunshot wound with muscular injury,

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weakness of the left hamstring with chronic pain, low-back pain, hypertension, and

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hypercholesterolemia.126 Dr. Gantz’s functional assessment stated that the plaintiff’s maximum

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standing and walking capacity was four hours.127 He also indicated that the plaintiff’s standing and

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walking capacity was limited by his left-hamstring injury status post-gunshot wound with

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118

AR 315.

119

Id.

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120

AR 316.

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121

Id.

122

Id.

123

AR 317.

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124

Id.

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125

Id.

126

AR 318.

127

Id.

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ORDER – No. 17-cv-06928-LB

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weakness and chronic pain.128 Dr. Glantz’s assessment indicated that the plaintiff could lift twenty

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pounds occasionally and ten pounds frequently, limited by his low-back pain.129
J. Zheutin, M.D. — Non-Examining

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2.9

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On June 19, 2014, Dr. Zheutin conducted a Disability Determination Explanation.130 His

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assessment indicated that that the plaintiff could only occasionally lift or carry up to twenty

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pounds and frequently lift ten pounds.131 He noted that the plaintiff could stand, walk, or sit for

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about six hours in an eight-hour workday.132 He also noted that the plaintiff could climb stairs

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frequently and ladders occasionally.133 He added that the plaintiff could balance, kneel, crawl, and

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crouch frequently.134
2.10 F. Greene, M.D. — Non-Examining

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Northern District of California

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On October 15, 2014, Dr. Greene completed a Disability Determination Explanation at the

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reconsideration level.135 He affirmed Dr. Zheutin’s findings and concluded that the plaintiff was

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limited to lifting or carrying twenty pounds occasionally and ten pounds frequently.136He also

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indicated that the plaintiff could stand, walk, or sit for a total of six hours during an eight-hour

15

day.137 He opined that the plaintiff could climb ramps and stairs, balance, kneel, crouch, and crawl

16

frequently while he could climb ladders and stoop occasionally.138

17
18
19
128

Id.

129

AR 319.

130

AR 83–86.

22

131

AR 83.

23

132

Id.

133

AR 84.

134

Id.

25

135

AR 95–97.

26

136

AR 96.

137

Id.

138

Id.

20
21

24

27
28

ORDER – No. 17-cv-06928-LB

14

1

3. Administrative Proceedings and Findings
The Plaintiff’s Testimony

2

3.1

3

A hearing was held before the ALJ on May 4, 2016.139 She asked the plaintiff about his

4

education and prior work experience.140 The plaintiff testified that he had a GED.141 He formerly

5

worked at a refinery, but he did not remember the dates he worked there.142 He had not worked for

6

pay or profit at any time since April 16, 2014.143
The plaintiff’s injury stemmed from a gunshot wound.144 He was shot during a car-jacking and

7
8

he still had pellets in his back, near his spinal cord.145 The ALJ asked the plaintiff what prevented

9

him from working.146 He testified that he had pain in his back, leg, and entire left side, which was
“hurting real bad” and kept him from working.147 If he tried to work, he would “start hurting so

11

United States District Court
Northern District of California

10

bad and hurt the next day” that he “couldn’t even make the job if he wanted to go.”148 If he

12

“strain[ed] [his] body too hard,” it “locked up” and caused pain.149 He took the hydrocodone-

13

acetaminophen his doctor prescribed as needed every four to six hours, gabapentin three times per

14

day, and fluoxetine once per day.150 He had not had any side effects from the medications.151 He

15

used a cane sometimes when he had pain.152 The plaintiff was transported mostly by family or

16
17
139

AR 37.

140

AR 47.

19

141

Id.

20

142

AR 48.

143

Id.

144

AR 56.

22

145

AR 56, 66–67.

23

146

AR 49.

147

Id.

148

AR 50.

25

149

Id.

26

150

AR 50, 52–53.

151

AR 54.

152

Id.

18

21

24

27
28

ORDER – No. 17-cv-06928-LB

15

1

friends, but took public transportation “every now and again” a few years ago.153 He believed his

2

mental-health problems worsened since he left prison, and he was working with his doctor to

3

improve it.154
The ALJ asked the plaintiff what he did during the day.155 The plaintiff testified that he was

4
5

homeless and sometimes stayed with his mother, aunt, or sister.156 When he was stayed at his

6

mother’s home, he was able to take out the garbage “now and then.”157 He did not do laundry or

7

wash the dishes.158 He did not do grocery shopping, but he did buy food for himself, such as

8

sandwiches and chips.159 He also went to church with his mother.160 While at church, he needed to

9

stand and walk around every fifteen or twenty minutes for two to three minutes at a time.161 He

10

was able to walk for about ten minutes before experiencing pain.162
The plaintiff smoked about five cigarettes per day and was trying to quit.163 He testified that he

United States District Court
Northern District of California

11
12

stopped drinking alcohol six months to a year before the date of the hearing.164
His attorney asked the plaintiff what was the biggest issue keeping him from work.165 The

13
14

plaintiff said that his leg, back, and neck hurt.166 He said that he still had pellets in his back and

15

that he did not want to undertake the risk of spinal surgery to remove them.167

16
153

AR 55.

154

AR 57–58.

155

AR 58.

19

156

AR 46.

20

157

AR 59.

158

Id.

159

Id.

22

160

AR 60.

23

161

Id.

162

AR 62.

163

AR 62–63.

25

164

AR 63.

26

165

AR 66.

166

Id.

167

AR 66–67.

17
18

21

24

27
28

ORDER – No. 17-cv-06928-LB

16

Vocational Expert Testimony — Connie Guillory

1

3.2

2

VE Connie Guillory testified at the May 4, 2016 hearing. The ALJ posed a hypothetical to the

3

VE:
Assuming a hypothetical individual of the claimant’s age and education and with
the past jobs that you described, further assume that this individual is limited to
light work as defined in the regulations, except frequent balance, kneel, crouch,
crawl, and climb ramps and stairs, occasional stoop and climb ropes, ladders and
scaffolds. Can the hypothetical individual perform any work, and if so, could you
give me a few examples with numbers of jobs for each occupation?168

4
5
6
7

The VE responded that the hypothetical individual could be a hand packer, a folder, or a light-

8

duty cleaner.169 There were 100,000 jobs nationally for hand-packer (559.687-074) positions.170

10

There are 180,000 jobs nationally for a folder (686.685-030).171 Finally, there were 60,000 full-

11

United States District Court
Northern District of California

9

time positions for a light-duty cleaner (323.687-014).172
The ALJ posed a second hypothetical:

12

17

Now, if the individual is further limited to occasional balance, kneel, crouch, crawl,
and climb ramps and stairs, no climbing ropes, ladder or scaffold, no exposure to
high-exposed places or moving mechanical parts, can stand and walk four hours in
an eight-hour workday would need an option to alternate to sitting for every—for 20
to 30 minutes after every 20 to 30 minutes of standing or walking and would require
a cane to ambulate on uneven terrain. Can that hypothetical individual perform any
work, and, if so, could you give me a few examples with numbers of jobs for each
occupation?173

18

The VE stated that this individual could perform the job of ticket taker, information clerk, or

13
14
15
16

19

order caller.174 There were 50,000 full-time ticket taker (344.677-010) positions nationally, but

20

due to the individual being able to stand or walk only four hours in an eight-hour day, Ms.

21
22
168

AR 69.

169

AR 69–70.

170

AR 70.

25

171

Id.

26

172

Id.

173

Id.

174

AR 70–71.

23
24

27
28

ORDER – No. 17-cv-06928-LB

17

1

Guillory would erode those numbers by twenty percent.175 There were 75,000 full-time

2

information clerk (237.367-018) positions nationally, and the VE would erode those numbers by

3

twenty percent due to the four-hour standing or walking limitation.”176 Finally, there were 29,000

4

full-time order caller (209.667-014) positions nationally that this hypothetical individual could

5

perform, and the VE would erode these numbers by twenty percent for the same reason.177
The ALJ posed a third hypothetical:

6

10

Now, if I changed the exertional level to sedentary, so assuming a hypothetical
individual was limited to sedentary work as defined by the regulations, except
occasional balance, stoop, kneel, crouch, crawl, and climb ramps and stairs, no
climbing ropes, ladders, or scaffolds and no exposure to high-exposed places or
moving mechanical parts. What kind of [work] can the hypothetical individual
perform, and if so could you give me a few examples?178

11

The VE stated that this hypothetical individual could perform the job of document preparer,

7
8

United States District Court
Northern District of California

9

12

telephone quote clerk, and ticket clerk.179 There were 10,000 full-time document preparer

13

(249.587-018) positions nationally, 60,000 full-time telephone quote clerk (237.367-046) positions

14

nationally, and 50,000 ticket clerk (219.587-010) positions nationally.180
The ALJ posed a fourth hypothetical:

15

17

Now if that individual is further limited so they would need an option to stand for
one minute after every 20 minutes of sitting and can remain on task while standing
would those jobs still exist or apply or are there any other jobs that would?181

18

The VE responded that the document preparer, telephone quote clerk, and ticker clerk jobs

19

would remain available.182 But, if the hypothetical individual needed to stand and walk for one

20

minute every twenty minutes, the above positions would remain available with an erosion of zero

16

21
22

175

AR 70.

23

176

AR 71.

177

Id.

178

Id.

25

179

AR 71–72.

26

180

Id.

181

AR 72.

182

Id.

24

27
28

ORDER – No. 17-cv-06928-LB

18

1

to twenty percent.183 The VE added that if the hypothetical individual were standing and walking

2

and stretching more than ten percent of the time (six minutes per hour) and, not able to stay on

3

task, then the positions above would not be available.184 Moreover, if the hypothetical individual

4

were limited to sitting a total of two hours in an eight-hour workday, that would not be considered

5

full-time competitive employment.185 Lastly, if this individual were to miss more than four days of

6

work per month, he would not be working commensurate with expected standards by the

7

employer.186

8

3.3 Administrative Findings

9

The ALJ issued an unfavorable decision on September 23, 2016.187 The ALJ followed the fivestep sequential-evaluation process to determine whether the plaintiff was disabled and concluded

11

United States District Court
Northern District of California

10

that he was not.188
At step one, the ALJ found that the plaintiff had not engaged in substantial gainful activity

12
13

since April 8, 2014, the application date.189
At step two, the ALJ found that the plaintiff had two severe impairments — obesity and

14
15

osteoarthritis and allied disorders.190
At step three, the ALJ found that the plaintiff did not have an impairment or combination of

16
17

impairments that met or medically equaled the severity of one of the listed impairments (namely

18

listings 1.02, 1.04, and 12.04).191 She observed that while the plaintiff’s physician indicated that he

19

met listing 1.02, the physician noted that the injury did not involve a joint, and thus, he did not

20
183

AR 72–73.

184

AR 73.

185

AR 74.

23

186

Id.

24

187

AR 14.

188

AR 14–34.

189

AR 19.

26

190

Id.

27

191

21
22

25

AR 21. 1.02: Major dysfunction of a joint(s) due to any cause. 1.04:Disorder of the spine. 12.04:
Depressive, bipolar, and related disorders.

28
ORDER – No. 17-cv-06928-LB

19

1

apply the listing criteria correctly.192 Moreover, the ALJ concluded that, because the plaintiff

2

testified that he often walked without a cane, he did not meet the “inability to ambulate

3

effectively” requirement, as defined by the regulation.193 She found that the evidence did not

4

support a finding that the plaintiff’s history of chronic affective disorder met the criteria in Listing

5

12.04.194
At step four, the ALJ concluded that the plaintiff had the residual-functional capacity (RFC) to

6
7

perform light work as defined by the regulation.195 The ALJ gave little weight to Dr. Chua’s

8

September 10, 2014 opinion (set forth on a one-page form report for Solano County Health and

9

Social Services).196 She said:

10

15

The doctor cites an EMG/NCV study, but he did not attach a copy, and it does not
appear in the medical evidence of record. The opinion is also inconsistent with the
majority of physical examinations in the record, which often show good range of
motion, 5/5 strength, and normal gait []. The form report does not require the doctor
to support the opinion with objective and subjective findings, and is suitable for the
Social Services purposes, but is not useful in deciding the Social Security issues.
Further, the opinion impinges on an issue reserved for the Commissioner of the
Social Security Administration (SSR 96-5p). For these reasons, the undersigned
gives this opinion little weight.197

16

The ALJ also noted that Dr. Chua “appear[ed] to have become an advocate for his patient,

United States District Court
Northern District of California

11
12
13
14

17

rather than remaining a neutral observer of medical facts.”198 She concluded that “other medical

18

opinions were more consistent with the longitudinal record” and gave the opinions of non-

19

examining physicians, Dr. Zheutlin and Dr. Greene, greater weight than the opinion of Dr.

20

Chua.199

21
22

192

AR 21.

23

193

Id.

194

Id.

195

AR 22.

25

196

AR 26–27.

26

197

Id.

198

AR 27.

199

Id.

24

27
28

ORDER – No. 17-cv-06928-LB

20

The ALJ also gave the opinion of Dr. Glantz, an examining physician, less weight than the

1
2

opinions of the non-examining physicians, Dr. Greene and Dr. Zheutlin.200 She noted that Dr.

3

Glantz “did not have the opportunity to review the entire record, including the claimant’s written

4

and spoken statements.”201 The ALJ added that the Dr. Glantz “afford[ed] the claimant greater

5

consistency” than she [did].202 Because the state agency medical advisors “had the benefit of more

6

of the medical record,” the ALJ gave their opinions greater weight than Dr. Glantz’s opinion.203
The ALJ found that the plaintiff’s “medically determinable impairments could reasonably be

7

expected to cause some of the alleged symptoms; however his statements concerning the intensity,

9

persistence, and limiting effects of the symptoms [were] not entirely consistent with the medical

10

evidence and other evidence in the record.”204 She cited inconsistent statements by the plaintiff

11

United States District Court
Northern District of California

8

regarding alcohol use.205 She noted that findings of the plaintiff’s conditions primarily depended

12

on subjective statements from him and on examination findings that require subjective responses

13

from him.206 The ALJ determined that, besides the metal pellets in the plaintiff’s left thigh and

14

back, “there [were] no other strictly objective findings regarding cause for claimant’s primary

15

complaints of leg and back pain.”207 Ultimately, she concluded that the objective evidence

16

supported a finding that the plaintiff had the residual-functional capacity to perform light work.208

17

At step five, the ALJ found that, given the plaintiff’s age, education, work experience, and

18

residual-functional capacity, there were jobs that existed in significant numbers in the national

19

economy that he could perform.209 She added that, even if the plaintiff were “limited to four hours

20
200

AR 26.

201

Id.

22

202

Id.

23

203

Id.

204

AR 28.

205

AR 25–26.

25

206

Id.

26

207

Id.

208

AR 28.

209

Id.

21

24

27
28

ORDER – No. 17-cv-06928-LB

21

1

standing/walking during an eight-hour workday, as suggested by Dr. Glantz, that would not be

2

outcome determinative.”210

3
STANDARD OF REVIEW

4

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

5
6
7
8
9
10

United States District Court
Northern District of California

11
12
13
14
15
16
17
18

Commissioner if the claimant initiates a suit within sixty days of the decision. A court may set
aside the Commissioner’s denial of benefits only if the ALJ’s “findings are based on legal error or
are not supported by substantial evidence in the record as a whole.” Vasquez v. Astrue, 572 F.3d
586, 591 (9th Cir. 2009) (internal citation and quotation marks omitted); 42 U.S.C. § 405(g).
“Substantial evidence means more than a mere scintilla but less than a preponderance; it is such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). The reviewing court should uphold “such
inferences and conclusions as the [Commissioner] may reasonably draw from the evidence.” Mark
v. Celebrezze, 348 F.2d 289, 293 (9th Cir. 1965). If the evidence in the administrative record
supports the ALJ’s decision and a different outcome, the court must defer to the ALJ’s decision
and may not substitute its own decision. Tackett v. Apfel, 180 F.3d 1094, 1097–98 (9th Cir. 1999).
“Finally, [a court] may not reverse an ALJ’s decision on account of an error that is harmless.”
Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012).

19
GOVERNING LAW

20

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

21
22
23
24
25
26

physical or mental impairment which can be expected to result in death or which has lasted or can
be expected to last for a continuous period of not less than twelve months,” and (2) the
“impairment or impairments are of such severity that he or she is not only unable to do his
previous work but cannot, considering his age, education, and work experience, engage in any
other kind of substantial gainful work which exists in the national economy. . . .” 42 U.S.C. §

27
28

210

AR 29.

ORDER – No. 17-cv-06928-LB

22

1

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

2

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

3

C.F.R. § 404.1520).

4
5
6
7
8
9
10

United States District Court
Northern District of California

11
12
13
14
15

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).
Step Four. Considering the claimant’s RFC, is the claimant able to do any work that
he or she has done in the past? If so, then the claimant is not disabled and is not
entitled to benefits. If the claimant cannot do any work he or she did in the past, then
the case cannot be resolved at step four, and the case proceeds to the fifth and final
step. See 20 C.F.R. § 404.1520(a)(4)(iv).

20

Step Five. Considering the claimant’s RFC, age, education, and work experience, is
the claimant able to “make an adjustment to other work?” If not, then the claimant is
disabled and entitled to benefits. See 20 C.F.R. § 404.1520(a)(4)(v). If the claimant
is able to do other work, the Commissioner must establish that there are a significant
number of jobs in the national economy that the claimant can do. There are two ways
for the Commissioner to show other jobs in significant numbers in the national
economy: (1) by the testimony of a vocational expert or (2) by reference to the
Medical-Vocational Guidelines at 20 C.F.R., part 404, subpart P, app. 2.

21

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

16
17
18
19

22

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

23

(9th Cir. 1986).

24
25
26

ANALYSIS
The plaintiff contends that the ALJ erred by (1) improperly rejecting the opinion of the treating

27

and examining doctors, (2) improperly rejecting his own testimony at the hearing, and (3) not

28

providing substantial evidence at step five of the analysis.
ORDER – No. 17-cv-06928-LB

23

1

The court holds that the ALJ erred by discounting the opinions of Dr. Chua and Dr. Glantz,

2

and by discounting the plaintiff’s testimony. Because the ALJ’s analysis was predicated on her

3

findings, the court also finds that the step-five analysis was not supported by substantial evidence.

4
5

1. Whether the ALJ Properly Weighed Medical-Opinion Evidence
The plaintiff argues that the ALJ erred by failing to properly weigh the opinion of Dr. Chua,

6
7

the plaintiff’s treating physician, and Dr. Glantz, an examining physician.211
The ALJ is responsible for “‘resolving conflicts in medical testimony, and for resolving

8

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

10

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

11

United States District Court
Northern District of California

9

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

12

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

13

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

14

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

15

“In conjunction with the relevant regulations, [the Ninth Circuit has] developed standards that

16

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

17

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

18

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

19

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

20

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

21

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

22

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

23

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.

24
25

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

26

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

27
28

211

Mot. – ECF No. 23 at 8–11.

ORDER – No. 17-cv-06928-LB

24

1

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

2

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

3

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

4

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

5

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

6

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

7

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

8

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

9

may serve as substantial evidence when the opinions are consistent with independent clinical
findings or other evidence in the record. Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002).

11

United States District Court
Northern District of California

10

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

12

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

13

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

14

759 F.3d at 1012–13.

15

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

16

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

17

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

18

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

19

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

20

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

21

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

22

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

23

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

24

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

25

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

26

1.1 Dr. Chua

27

The ALJ gave little weight to Dr. Chua’s September 10, 2014 opinion because he did not

28

attach a copy of the EMG/NCV study and because the opinion was “inconsistent with the majority
ORDER – No. 17-cv-06928-LB

25

1

of physical examinations on the record.”212 She gave Dr. Chua’s January 6, 2015 opinion less

2

weight than the opinions of non-examining physicians Dr. Zheutlin and Dr. Greene.213 The ALJ

3

said that Dr. Chua “appear[ed] to have become an advocate for his patient,” and “appear[ed] to

4

have taken claimant’s complaints at face value.”214 She said that Dr. Chua also failed to provide

5

evidence that he saw the plaintiff seven years before.215

6

Dr. Chua’s opinion is contradicted by Dr. Zheutlin’s and Dr. Greene’s opinions.216 Thus, the

7

ALJ was required to give specific and legitimate reasons supported by the record for discounting

8

the opinion. Reddick, 157 F.3d at 725. The ALJ did not meet this standard.
The ALJ’s first reason for discounting Dr. Chua’s opinion — that he did not attach a copy of

9

the EMG (electromyography)/NCV (nerve-conduction velocity) study — is not a specific and

11

United States District Court
Northern District of California

10

legitimate reason. Treating sources cannot be rejected solely because they “are not well-supported

12

by medically acceptable clinical and laboratory . . . techniques.” SSR 96-2p.217 Furthermore, an

13

ALJ is not entitled to reject the responses of a treating physician without specific and legitimate

14

reasons for doing so, even where those responses were provided on a ‘check-the-box’ form, were

15

not accompanied by comments, and did not indicate to the ALJ the basis for the physician’s

16

answers. Trevizo v. Berryhill, 871 F.3d 664, 677 n.4 (9th Cir. 2017). Dr. Chua documented an

17

actual diagnostic study.218 Dismissing the opinion for a clerical error is not a specific and

18

legitimate reason to discount an opinion based on a treating doctor’s long-term relationship.

19
20
21
22

212

AR 26–27. An EMG/NCV study finds the presence, location, and extent of diseases that damage
the nerves and muscles. Johns Hopkins Medicine,
https://www.hopkinsmedicine.org/healthlibrary/test_procedures/neurological/nerve_conduction_veloci
ty_92,P07657 (last visited Mar. 12, 2019).

23

213

AR 27.

24

214

Id.

215

Id.

216

Compare AR 322–325 with AR 83–84 and 95–96.

25
26
27

217

SSR 96-2p has since been rescinded (as of March 27, 2017) but was in effect at the time of Mr.
Busby’s ALJ hearing.
218

AR 312.

28
ORDER – No. 17-cv-06928-LB

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The ALJ further held that Dr. Chua’s opinion was inconsistent with the majority of the

1

medical-physical examinations in the record. The ALJ said the record established the plaintiff had

3

good range of motion and a normal gait, and this was contrary to Dr. Chua’s opinion.219 The

4

record demonstrates that this is not the case. Multiple examinations by different doctors during

5

different time periods demonstrate that the plaintiff walked with an altered gait.220 For example, in

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April 2013, Dr. Ponath evaluated the plaintiff in San Quentin State Prison and said the plaintiff

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was “ambulating in an impaired manner consistent with pain.”221 In November 2014, Dr. Glantz

8

noted that the plaintiff had an antalgic gait and walked with a limp favoring his left leg.222 Dr.

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Glantz also noted that an 80-degree leg raise elicited low-back pain for the plaintiff.223 Dr. Chua

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observed that the plaintiff was “walking with a limp” in June 2014.224 In January 2015, Dr. Chua

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Northern District of California

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said that the plaintiff suffered from an inability to ambulate effectively and limitation of motion.225

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The ALJ’s inaccurate assertion — that Dr. Chua’s opinion is inconsistent with the longitudinal

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medical record — thus was not a specific and legitimate reason to give Dr. Chua’s opinion less

14

weight.
The ALJ also said that Dr. Chua “seem[ed] to have become an advocate for his patient.”226 The

15
16

ALJ does not provide a basis for her assertion that Dr. Chua became an advocate who was not

17

neutral observer of medical facts. The Ninth Circuit has held that ALJs “may not assume that

18

doctors routinely lie in order to help their patients collect disability benefits.” Lester v. Chater, 81

19

F.3d 821, 832 (9th Cir. 1995) (quoting Ratto v. Secretary, 839 F. Supp. 1415, 1426 (D. Or. 1993)).

20

Because the ALJ did not provide any evidence supporting her conclusion about Dr. Chua, her

21
22

219

AR 27.

23

220

AR 295, 317, 318, 319, 328.

221

AR 295.

222

AR 317.

25

223

AR 318.

26

224

AR 328.

225

AR 323.

226

AR 27.

24

27
28

ORDER – No. 17-cv-06928-LB

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1

assertion was no more than an assumption and was thus was not a specific and legitimate reason

2

supported by the record for discounting his testimony.

3

The ALJ also cited Dr. Chua’s taking the plaintiff’s complaints at face value as a reason to

4

discount his medical opinion.227 “[W]hen an opinion is not more heavily based on a patient's self-

5

reports than on clinical observations, there is no evidentiary basis for rejecting the opinion.”

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Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014). Dr. Chua’s medical opinion is based on

7

physical examinations and laboratory tests, not just on the plaintiff’s self-reporting of his

8

symptoms.228 This was not a specific and legitimate reason to discount his medical opinion.
Furthermore, the ALJ gave Dr. Chua’s opinion less than controlling weight without addressing

9

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

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Northern District of California

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must consider the length of the treatment relationship and the frequency of examination, nature

12

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

13

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

14

plaintiff visited Dr. Chua at least eight times over the course of two years.229 See, e.g., Perry v.

15

Colvin, No. 14-CV-01411-JSC, 2015 WL 1090420 at *11 (N.D. Cal. Mar. 12, 2015) (a

16

physician’s two-year treatment relationship with the claimant was sufficient to entitle his opinion

17

to “great weight”). Additionally, the ALJ did not address the fact that Dr. Chua’s opinion was

18

consistent with the diagnoses made by Dr. Glantz, the examining physician, of a left-thigh gunshot

19

wound with muscular injury and weakness of the left hamstring with chronic pain and low-back

20

pain and with the plaintiff’s complaints of low back pain that radiated to his thigh.230 The fact that

21

the ALJ failed to consider the Orn factors undermines the ALJ’s discounting of Dr. Chua’s

22

opinion.

23
24
25

227

AR 27.

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228

AR 322–361, 408–413.

229

AR 322–361, 408–413.

230

AR 315, 319.

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28

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In sum, the ALJ did not provide specific and legitimate reasons supported by the record to

1
2

discount Dr. Chua’s medical opinion.

3

1.2 Dr. Glantz

4

The ALJ gave “some, but less, weight to Dr. Glantz than the weight given to the opinions of

5

the state agency medical advisors [] who had the benefit of more of the medical record.”231 The

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ALJ said that Dr. Glantz “did not have the opportunity to review the entire record, including the

7

claimant’s written and spoken statements.”232 She noted that Dr. Glantz “afford[ed] the claimant

8

more consistency that [she did].”233 The ALJ’s objections to Dr. Glantz’s opinion also were based

9

on the limited scope of Dr. Glantz’s interaction with the plaintiff and on the plaintiff’s being an

10

unreliable source of information.
Dr. Glantz’s opinion is contradicted by Dr. Zheutlin’s and Dr. Greene’s opinions.234 Thus, the

United States District Court
Northern District of California

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12

ALJ was required to give specific and legitimate reasons supported by the record for discounting

13

the opinion. Reddick, 157 F.3d at 725. The ALJ did not meet this standard.
The ALJ’s first reason for discounting Dr. Glantz’s opinion — that Dr. Glantz “did not have

14
15

the opportunity to review the entire record” — is not legitimate. It is not legitimate for an ALJ to

16

reject an examining physician’s opinion because the physician does not haver all medical records

17

to review. See Rivada v. Berryhill, No. 17-CV-06895-LB, 2019 WL 26605 at *11 (N.D. Cal. Jan.

18

19, 2019). This reason is not legitimate because the Social Security Administration routinely

19

orders and relies on consultative examinations, such as the one Dr. Glantz performed. Rejecting an

20

examining physician’s opinion on the ground that it was a one-time evaluation is “‘legally

21

erroneous’ because ‘[t]he ALJ’s rationale would render all examining opinions superfluous, and

22

[it] is contrary to the requirement that the ALJ consider all relevant evidence, including the

23

medical opinions of examining doctors.’” Brown v. Berryhill, No. 17-02834 (JCS), 2018 WL

24

4700348 at *17 (N.D. Cal. September 29, 2018) (citing Thompson v. Berryhill, No. 17-305 (BAT),

25
231

AR 26.

232

Id.

27

233

Id.

28

234

Compare AR 314–319 with AR 83–84 and 95–96.

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1

2017 WL 4296971, at *5 (W.D. Wash. Sept. 29, 2017) (citing 20 C.F.R. § 416.945(a), which

2

requires the ALJ to review “all of the relevant medical and other evidence”)).
The ALJ’s second reason for discounting Dr. Glantz’s opinion — that Dr. Glantz “afforded the

3
4

claimant more consistency that the [ALJ did]” — is not a specific and legitimate reason to

5

discount the testimony either. “When an opinion is not more heavily based on a patient’s self-

6

reports than on clinical observations, there is no evidentiary basis for rejecting the opinion.” Id.

7

Dr. Glantz’s opinion was based on a one-time, in-person examination of the plaintiff.235 Dr. Glantz

8

examined the plaintiff and considered his reported medical history, including his gunshot wound,

9

chronic low-back pain, and hypertension, and drew conclusions that were consistent with the

10

medical record.236
The ALJ did not provide specific and legitimate reasons supported by the record to reject Dr.

United States District Court
Northern District of California

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12

Glantz’s medical opinion.

13
14

2. Whether the ALJ Improperly Rejected The Plaintiff’s Testimony

15

The plaintiff contends that the ALJ improperly rejected the plaintiff’s symptom testimony.237

16

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

17

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

18

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

19

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

20

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

21

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

22

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

23

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

24

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

25
26
235

AR 315.

27

236

Id.

28

237

Mot. – ECF No. 23 at 15–18.

ORDER – No. 17-cv-06928-LB

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1

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

2

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

3

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

4

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

5

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

6

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

7

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

8

CV-0674-JSC, 2016 WL 7369300 at *12 (N.D. Cal. Dec. 20, 2016).
The ALJ found that the plaintiff’s “medically determinable impairments could reasonably be

9

expected to cause some of the alleged symptoms, however his statements concerning the intensity,

11

United States District Court
Northern District of California

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persistence, and limiting effects of the symptoms [were] not entirely consistent with the medical

12

evidence and other evidence in the record.”238 She cited past inconsistent statements by the

13

plaintiff about his alcohol use.239 She observed that there were “many examinations where he had

14

normal strength, good range of motion, and ambulated normally.”240

15

Though the ALJ cited the reasons why she finds the plaintiff to not be credible, she did not

16

identify what specific portions of the plaintiff’s testimony she found not fully credible. Garrison,

17

759 F.3d at 1014–15; Holohan v. Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001); see also 42

18

U.S.C. § 405(b)(1) (noting the ALJ’s responsibility to provide “a discussion of the evidence”).241

19

Furthermore, occasional symptom-free periods are not inconsistent with disability. See Leidler v.

20

Sullivan, 885 F.2d 291, 292 n. 3 (5th Cir.1989); Poulin v. Bowen, 817 F.2d 865, 875 (D.C. Cir.

21

1987). Finally, the plaintiff testified about his symptoms consistent with parts of the medical

22

record, including the opinions of Dr. Chua and Dr. Glantz.

23
24
25

238

AR 28.

26

239

AR 25.

240

Id.

241

U.S.C. § 405(b)(1) was overruled in 2018, after the ALJ issued her decision.

27
28

ORDER – No. 17-cv-06928-LB

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In sum, the ALJ failed to make the required determinations to to reject the plaintiff’s

1
2

testimony.

3
4

3. Whether the ALJ’s Step-Five Finding Was Supported by Substantial Evidence
The ALJ found that a light-exertional level was the “most limitation” she believed

5
6

appropriate.242 Because the court remands for a reweighing of medical-opinion evidence and

7

claimant’s testimony, and because the RFC assessment is built on these assessments, the court

8

remands on this ground too.

9
CONCLUSION

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United States District Court
Northern District of California

10

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

12

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

13

this order.
This disposes of ECF 23 and 24.

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15
16

IT IS SO ORDERED.

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Dated: March 25, 2019
______________________________________
LAUREL BEELER
United States Magistrate Judge

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19
20
21
22
23
24
25
26
27
28

242

Id.

ORDER – No. 17-cv-06928-LB

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