McCrady v. Berryhill

Filing 19

ORDER re 16 Motion for Summary Judgment and 17 Cross-Motion for Summary Judgment. The court GRANTS Mr. McCrady's motion for summary judgment, DENIES the Commissioner's cross-motion for summary judgment, and remands the case for further proceedings. Signed by Judge Laurel Beeler on 11/1/2018. (lblc3S, COURT STAFF) (Filed on 11/1/2018)

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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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ANTHONY MCCRADY,

Case No. 18-cv-00931-LB

Plaintiff,

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ORDER GRANTING PLAINTIFF’S
MOTION FOR SUMMARY
JUDGMENT AND DENYING
DEFENDANT’S CROSS-MOTION FOR
SUMMARY JUDGMENT

v.

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NANCY A. BERRYHILL,
Defendant.

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Re: ECF No. 16, 17

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INTRODUCTION

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Plaintiff Anthony McCrady seeks judicial review of a final decision by the Commissioner of

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

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Security Act.1 Mr. McCrady moved for summary judgment.2 The Commissioner opposed the

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

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

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judge jurisdiction.4 The court grants Mr. McCrady’s motion for summary judgment and denies the

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Compl. – ECF No. 1 at 1; Motion – ECF No. 16 at 4. Citations refer to material in the Electronic
Case File (“ECF”); pinpoint citations are to the ECF-generated page numbers at the top of documents.
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Compl. – ECF No. 1; Motion – ECF No. 16.

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Cross-Motion – ECF No. 17.

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Consent Forms – ECF Nos. 8, 10.

ORDER – No. 18-cv-00931-LB

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government’s cross-motion and remands the case for further proceedings consistent with this

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order.

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STATEMENT
1. Procedural History
Mr. McCrady, then aged 48, filed his application for supplemental security income on June 25,

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2013, alleging Post-Traumatic Stress Disorder (“PTSD”), depression, anxiety, and insomnia.5 His

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alleged onset date is June 25, 2013.6 The application was initially denied on March 5, 2014, and

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denied on reconsideration on August 15, 2014.7 Mr. McCrady then asked for a hearing before an

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Administrative Law Judge (“ALJ”).8
On June 20, 2016, the ALJ held a hearing and heard testimony from Mr. McCrady

United States District Court
Northern District of California

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(represented by attorney Amy Orgain).9 A Vocational Expert (“VE”) was present via

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teleconference but did not testify.10 The ALJ issued an unfavorable ruling on October 19, 2016.11

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On October 28, Mr. McCrady’s attorney sent a letter to the ALJ requesting that he re-open the

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hearing decision.12 The ALJ denied the request.13 Mr. McCrady filed a request for review with the

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Appeals Council, which denied the request on December 19, 2017.14

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AR 24, 51.

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AR 24.

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AR 84, 94.

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AR 131.

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AR 38.

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AR 38; see AR 38–50.

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AR 38, 21.

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AR 18.

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AR 16.

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AR 187, 1.

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ORDER – No. 18-cv-00931-LB

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2. Summary of Record and Administrative Findings

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2.1

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Medical Records
2.1.1

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Alameda County Behavioral Health Care Services — Treating

Mr. McCrady received treatment from February 2012 to November 2012 while incarcerated in

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Santa Rita Jail in Alameda County.15 Mr. McCrady was prescribed Zoloft (for depression),

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Trazodone (for insomnia), and Depakote (an antipsychotic).16 At an appointment on June 5, 2012,

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Mr. McCrady inquired about receiving a Social Security referral through the jail clinic.17 When the

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clinician asked Mr. McCrady about his history, Mr. McCrady said that he was “gainfully

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employed until 2004, when he came out of prison, moved to Sacramento and worked, and moved
to Texas and back to CA, when he became homeless.”18 He “reported working warehouse jobs

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United States District Court
Northern District of California

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loading and unloading, shipping and receiving and sales.”19 His stated reason for unemployment

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was “increased drug use (crack cocaine).”20

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At a visit on July 9, 2012, Mr. McCrady reported that his medications were helping him and

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that he felt that he was “not so quick to anger any longer.”21 He discussed medication and

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treatment options post-release.22
Mr. McCrady had another appointment with Behavioral Health Care Services on October 10,

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2012 after he was arrested for violating his parole.23 Neal Edwards, M.D., reported that Mr.

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McCrady’s “speech [was] normal rate and tone” and that he was “cooperative.”24 Mr. McCrady’s

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AR 387–451 (the records are presented in reverse-chronological order; some of the records are
indecipherable (see, e.g., AR 400–01)).
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AR 402.

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AR 405.

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Id.

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Id.

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Id.

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AR 403.

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Id.

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AR 397.

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Id.

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ORDER – No. 18-cv-00931-LB

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“mood [was] euthymic” and his “thought [was] coherent.”25 On October 11, 2012, Mr. McCrady

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underwent a mental-status exam in the Santa Rita Jail clinic, where he presented with a depressed

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mood and reported “frequently cutting his wrists [and that he was] unable to sleep well, [and was]

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feeling hopeless.”26 He denied having suicidal ideation.27 On November 6, 2012, the clinician

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noted that Mr. McCrady “seemed very depressed, anxious and irritable” and “[c]omplained that

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his psych meds [were] not working.”28 Mr. McCrady told the clinician that he recently found out

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that his mother was diagnosed with lung cancer, and he was worried that he wouldn’t be able to

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see her when he was released.29

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2.1.2

Sausal Creek Outpatient Clinic — Treating

Mr. McCrady was examined at the Sausal Creek Outpatient Stabilization clinic in Oakland,

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United States District Court
Northern District of California

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California on January 29, 2013.30 He presented with “depr[essed] mood, anx[iety], insomnia,

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nightmares, and delicate cutting.”31 The physician who examined Mr. McCrady prescribed Zoloft

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(for depression), Trazodone (for insomnia), Depakote (an antipsychotic), and Visatril (for

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anxiety).32
Mr. McCrady reported that he was attending a Narcotics Anonymous program and that he

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would like to reconnect with his adult children and “become independent.”33

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2.1.3

The medical records indicate that Mr. McCrady had multiple scheduled appointments at the

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Parole Outpatient Clinic — Treating

Parole Outpatient Clinic (“POC”) but attended only one (on July 9, 2013) with Licensed Clinical

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Id.

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AR 396.

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Id.

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AR 390.

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Id.

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AR 507.

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AR 508.

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AR 507.

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AR 511.

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ORDER – No. 18-cv-00931-LB

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Social Worker (“LCSW”) Donna Pedroza.34 Ms. Pedroza reported that Mr. McCrady was “polite

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overall,” that “his speech was generally clear,” and he was “quite talkative.”35 Mr. McCrady was

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under the influence during the meeting, so while they discussed some of Mr. McCrady’s history,

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Ms. Pedroza was “unable to complete [the] initial interview.”36 She referred Mr. McCrady to a

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POC psychiatrist and encouraged him to attend all of his POC appointments.37

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2.1.4

LifeLong Medical Care Clinic — Treating

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Mr. McCrady began receiving treatment at LifeLong Medical Care clinic in downtown

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Oakland in September 2015.38 At his initial visit, Physician’s Assistant (“PA”) Gretchen Duran

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examined him.39 He presented with symptoms of anxiety, depression, and insomnia.40 PA Duran

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prescribed Depakote (an antipsychotic), Trazodone (for insomnia), and Zoloft (for depression).41
From October 26, 2015 to May 24, 2016, Mr. McCrady attended five appointments with Nurse

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Northern District of California

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Practitioner Skyler Loeb at LifeLong Medical Care.42 Ms. Loeb’s treatment notes reflect that Mr.

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McCrady was steadily medicated and that by March 14, 2016, he was still having trauma related-

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nightmares but was “getting things done,” “sleeping well,” and not having panic attacks.43 In May

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2016, Mr. McCrady reported that “he had trouble refilling medications and decided to just stop

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them,” which led to “a resurgence of anhedonia and depressed mood.”44 The notes indicated that

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Mr. McCrady was drinking alcohol throughout treatment.45

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34

See AR 326–30; AR 326.

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35

AR 326.

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Id.

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Id.

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AR 531.

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AR 531–33.

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AR 531.

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AR 533.

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AR 535–49.

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AR 544.

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AR 547.

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See e.g.AR 535, 538, 541.

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ORDER – No. 18-cv-00931-LB

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Work with or near others without being unduly
distracted or distracting them
Interact appropriately with coworkers
Interact appropriately with the general public
Respond appropriately to changes in a routine work
setting
Deal with normal work stress
Adhere to basic standards of neatness and
cleanliness

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Ms. Loeb characterized Mr. McCrady’s “deficiencies of concentration, persistence or pace” as
“Extreme” and checked a box indicating that his impairments would interfere with his
concentration or pace of work 50% of the day.55 She wrote that Mr. McCrady “would likely
decompensate in the setting of [full-time] work” and that he “requires mental health rehabilitation
services in an intensive way that would interfere with [full-time] work.”56

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2.1.5
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Northern District of California

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Marc Tietelbaum, Licensed Marriage and Family Therapist (“MFT”) —
Treating

Mr. McCrady had two psychotherapy sessions with Mr. Tietelbaum, one on January 22, 2014,

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and a second on March 12, 2014.57 In his notes, Mr. Tietelbaum wrote that Mr. McCrady was

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“fairly comfortable . . . from the start and was quite articulate and engaging” at the first visit.58 Mr.

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McCrady described “his struggles with depression and anger” and said that he has PTSD from

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years spent in prison cells.59 Mr. McCrady said that “the reason he has often preferred

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homelessness is because he did not feel confined.”60 Mr. McCrady told Mr. Teitelbaum that his

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mother — who abused him when he was young — died recently and that he was “full of grief”

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and couldn’t seem to “get over her death.”61 Mr. McCrady described being a “basketball star” in

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high school and college but left St. Mary’s College after he had problems with a new coach.”62

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AR 530.

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Id.

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AR 497–98 (records are in reverse-chronological order).

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AR 498.

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Id.

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Id.

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Id.

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Id.

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ORDER – No. 18-cv-00931-LB

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Mr. McCrady described feeling depressed and hopeless and having “angry outbursts.”63 Mr.

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McCrady said he has “tremendous regret about his life,” specifically around drug use and his time

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spent in prison.64 He said that he found it hard to function but that he was proud that he had “been

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clean from crack cocaine the past year.”65
In his notes from a subsequent session, Mr. Teitelbaum wrote that Mr. McCrady “appeared

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more depressed and despondent than in previous sessions.”66 Mr. McCrady said that he stopped

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taking medication for depression and insomnia a year before, and Mr. Teitelbaum suggested that

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he get his prescriptions refilled and resume taking them.67 He told Mr. Teitelbaum that he

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“typically drinks a case of malt liquor a day” but “doesn’t consider himself an alcoholic because

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he doesn’t get the DT’s68 when he doesn’t drink.”69 Mr. McCrady talked about a suicide attempt

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United States District Court
Northern District of California

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“a few years ago” but said he did not have a current plan to harm himself or others.70 Mr.

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Teitelbaum noted that Mr. McCrady cut himself somethings and had “lots of cuts.”71
Mr. McCrady also discussed feeling “upset and despondent over having his [disability] claim

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denied” and that he “feels incapable of working and holding a job.”72

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2.1.6

Dr. Laura Catlin, Psy.D. — Examining

Dr. Laura Catlin performed a psychological-disability evaluation report after examining Mr.

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McCrady on October 22, 2013.73 Dr. Catlin reported that Mr. McCrady approached her in “a

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guarded yet cooperative manner” and that he was “responsive” and “appeared to be a credible

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Id.

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Id.

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Id.

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66

AR 497.

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Id.

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“DT’s” is a common way of referring to delirium tremens, a severe form of alcohol withdrawal.

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AR 497.

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Id.

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Id.

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Id.

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AR 332.

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ORDER – No. 18-cv-00931-LB

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historian.”74 At the time Dr. Catlin examined him, Mr. McCrady had not taken his medication for

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two weeks.75 Dr. Catlin performed a clinical interview and three tests on Mr. McCrady: the

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Weechsler Abbreviated Scale of Intelligence (WASI), the Beck Depression Inventory (BDI), and

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the Brief Symptom Inventory (BSI).76 She also provided a medical-source statement based on her

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evaluation and review of Mr. McCrady’s records.77
In the clinical interview, Dr. Catlin wrote that Mr. McCrady’s “affect was frustrated and

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irritated” but said that he was “polite and well-spoken during the interview.”78 His mood was

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“depressed and agitated.”79 Mr. McCrady described alternating between feeling very agitated and

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very depressed.80 He reported that he witnessed extreme violence in prison and was sodomized
while incarcerated and that he had “persistent and unwanted” memories and nightmares about his

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Northern District of California

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time in prison.81 He described having “great difficulty performing all activities of daily living” due

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to his long-term homelessness.82 He reported that after being released from prison, he attempted

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suicide by cutting his wrists.83 He also reported having an imaginary friend named “Maynard” that

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he “talks to and has communicated with since he was a child.”84 Dr. Catlin reported Mr.

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McCrady’s history of crack cocaine and alcohol abuse and noted that he continued to drink

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Id.

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AR 334.

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AR 332.

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77

AR 337.

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AR 335, 334.

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AR 334.

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AR 332.

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81

AR 332–33.

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82

AR 333.

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Id.

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AR 335.

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ORDER – No. 18-cv-00931-LB

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alcohol “on occasion.”85 Dr. Catlin concluded from the interview that Mr. McCrady’s insight and

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judgment were “impaired” and that his thought “consisted primarily of depressive thoughts.”86

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Dr. Catlin administered the WASI, which “measures general intelligence.”87 Dr. Catlin

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reported that Mr. McCrady’s score on this test placed him within the “borderline range of

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intellectual functioning.”88 Mr. McCrady “scored a 27 on the BDI indicating symptoms of

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moderate depression.”89 Mr. McCrady’s score on the BSI placed him in the 80th percentile, which

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means “he is experiencing high levels of psychological distress.”90
In her medical-source statement, Dr. Catlin reported that Mr. McCrady was “experiencing

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symptoms of depression and PTSD” as a result of severe traumatization in prison.91 She
determined that Mr. McCrady’s ability to perform in the workplace was “severely impaired” as a

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United States District Court
Northern District of California

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result of these symptoms.92 She determined that restrictions on Mr. McCrady’s activities of

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everyday life were “within the extreme range,” that he “has marked difficulties in maintaining

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social functioning,” and that his “deficiencies of concentration, persistence or pace are in the

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extreme range.”93

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2.1.7

Dr. Kyle Van Gaasbeek, Psy.D. — Examining

Dr. Van Gaasbeek performed a comprehensive psychological examination of Mr. McCrady on

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February 3, 2014.94 Dr. Van Gaasbeek found Mr. McCrady to be a reliable historian.95 Mr.

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McCrady reported that he “has been depressed all of his life,” he has “a lack of motivation, low

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85

AR 334.

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AR 335.

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AR 336.

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88

Id.

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89

Id.

90

Id.

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AR 337.

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92

Id.

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93

AR 338.

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AR 492.

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Id.

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ORDER – No. 18-cv-00931-LB

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self esteem [sic] and fear of violence,” and he refuses to take his medications “because they make

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him sluggish.”96 He told Dr. Van Gaasbeek that he had been to jail and prison “over 20 times,” he

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“used to have a problem with crack cocaine” but has been clean for a year, he drinks alcohol daily,

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and he had been to rehab 4–5 times.97 He reported that he spends his days riding his bicycle,

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recycling, and sitting in the park.98
Dr. Van Gaasbeek described Mr. McCrady as appearing older than his age and being

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“somewhat malodorous.”99 For some of the interview, Mr. McCrady was “alert and oriented” but

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at other times he was “restless,” made poor eye contact, and “was slumped over in his chair.”100

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Mr. McCrady’s concentration, persistence, and pace were “a bit slow,” and his concentration was
“adequate.”101 Mr. McCrady “denied any current suicidal thoughts.”102 Dr. Van Gaasbeek assessed

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United States District Court
Northern District of California

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Mr. McCrady’s immediate memory as good (“[i]mmediate recall of three objects was 3/3”), his

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recent memory as “poor,” and his past memory as “fair.”103 He rated Mr. McCrady’s fund of

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knowledge and information as “fair,” his ability to perform calculations as “good,” his

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concentration as “fair,” his abstract thinking as “concrete,” and his judgment and insight as

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“adequate.”104
Based on this examination, Dr. Van Gaasbeek diagnosed Mr. McCrady with major depressive

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disorder, moderate cocaine dependence in remission, and alcohol dependence.105 He also noted

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“antisocial personality traits.”106 He assigned Mr. McCrady a Global Assessment of Functionality

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Id.

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AR 493.

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Id.

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99

Id.

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AR 493–94.

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AR 493.

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AR 494.

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103

Id.

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104

Id.

105

Id.

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Id.

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ORDER – No. 18-cv-00931-LB

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(“GAF”)107 score of 55.108 He wrote, “The claimant’s depression is treatable. He has recently

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begun receiving treatment for this condition. His depression is complicated by his ongoing

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alcoholism. This is an obstacle towards his recovery and improvement.”109
Dr. Van Gaasbeek provided a medical-source statement.110 He found that the following of Mr.

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McCrady’s work-related abilities were unimpaired: “[Mr. McCrady’s] ability to perform simple

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and repetitive tasks;” his ability to perform “detailed and complex tasks;” “his ability to accept

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instructions from supervisors;” “his ability to perform work activities on a consistent basis without

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special or additional instructions,” and his “ability to maintain regular attendance in the

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workplace.”111 He determined that Mr. McCrady’s abilities “to interact with coworkers and the
public,” “to complete a normal workday, without interruptions from a psychiatric condition,” and

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United States District Court
Northern District of California

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“to deal with the usual stress encountered in the workplace” were “mild[ly] to moderately

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impaired.”112

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2.1.8

Dionne Childs, MS and Lesleigh Franklin, Ph.D. — Examining

Ms. Childs — under the supervision of Dr. Franklin — examined Mr. McCrady on April 14,

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2016.113 She issued a “Confidential Psychological Evaluation” report on May 13, 2016.114 Ms.

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Childs conducted a clinical interview and also administered the Beck Anxiety Inventory (“BAI”),

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the BDI, the Miller Forensic Assessment of Symptoms (“M-FAST”), the Repeatable Battery for

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the Assessment of Neuropsychological Status (“RBANS”), and the WASI.115 Ms. Childs observed

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A GAF score purports to rate a subject’s mental state and symptoms; the higher the rating, the
better the subject’s coping and functioning skills. See Garrison v. Colvin, 759 F.3d 995, 1002 n.4 (9th
Cir. 2014). A GAF score of 55 indicates “moderate difficulty in occupational functioning.” Craig v.
Colvin, 659 Fed.Appx 381, 382 (9th Cir. 2016).
107

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108

AR 495.

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109

Id.

110

Id.

111

Id.

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112

Id.

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113

AR 518.

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Id.

115

Id.

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ORDER – No. 18-cv-00931-LB

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that Mr. McCrady’s “attention was impaired,” “he worked at a rate that was slow as compared

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with peers,” and he exhibited severe “delayed and immediate memory problems.”116 His affect

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was “relatively flat . . . [and] [h]is mood was depressed.”117
In the clinical interview, Mr. McCrady described past physical and mental abuse by his

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mother, and he discussed getting into drugs, being in prison, and his struggles with depression.118

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He told Ms. Childs that sometimes he had violent outbursts and sudden bouts of crying.119 He

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related a past suicide attempt.120 He said that he had terrible nightmares about prison that

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sometimes “cause urination” and that his behavior and “feelings of comfort with people” changed

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after he was incarcerated.121 He reported that he had “full conversations with himself” and that “no

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psychotropic medicines have really worked for him.”122

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Northern District of California

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Mr. McCrady told Ms. Childs that he lived in a motor home with roommates and went “to his

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father’s house to shower sometimes.”123 Regarding his work history, Mr. McCrady stated that he

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did “manual labor, warehouse work, and sales on one occasion” and that at the time of the

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interview he, “recycle[d] to earn money.”124
On the WASI, Mr. McCrady scored a 79, which “place[d] him in the 8th percentile, as

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compared with adults in his age group” and showed that “Mr. McCrady’s intellectual functioning

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[fell] within the Well Below Average Range.”125 He scored a 55 on the RBANS, placing him “in

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the 0.1 percentile and in the Extremely Low range.”126 Mr. McCrady’s results on the M-FAST test

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116

AR 519.

117

AR 520.

118

Id.

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119

AR 519.

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120

Id.

121

Id.

122

Id.

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123

Id.

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124

AR 518.

125

AR 520.

126

AR 521.

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“suggest[ed] that he was not prone to overstate the severity of his symptoms.”127 His scores on the

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BAI “indicate that he is experiencing severe anxiety,” and “[s]cores for the BDI indicate that he is

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experiencing severe depression.128
Based on her tests and observations, Ms. Childs concluded that Mr. McCrady “display[ed] an

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impairment of general mental abilities.”129 She offered eight possible diagnoses, noting that “the

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results of the evaluation are limited in scope by the records available, the time of the evaluation,

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and the client’s self-report.”130 The diagnoses were “Unspecified Depressive Disorder,

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Posttraumatic [sic] Stress Disorder, Unspecified Psychotic Disorder, Unknown Substance Use

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Disorder, Borderline Intellectual Functioning, Relational Problems, Occupational Problems, and

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Low Income.”131

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Northern District of California

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2.1.9

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Michael Hammonds, Ph.D., Beverley Morgan, M.D. and Norman Zukowski,
PhD. — Non-Examining

Two Disability-Determination Explanations (“DDE”) were issued during the pendency of Mr.
McCrady’s disability claim.132 In the first DDE at the initial-claim level, Dr. Hammonds found
that Mr. McCrady was not disabled.133 Mr. McCrady’s “historical symptoms [did] not indicate
marked functional limitations.”134 Based on his review of the records, Dr. Hammonds opined that
Mr. McCrady’s condition “result[ed] in some limitations in [his] ability to perform work related
activities” but was “not severe enough to keep [him] from working.”135 He said that Mr. McCrady
would be “limited to unskilled work” and provided three examples of occupations with a

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127

AR 522.

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128

Id.

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129

Id.

130

Id.

131

Id.

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132

AR 51–65; AR 66–83.

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133

AR 64.

134

AR 60.

135

AR 64.

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ORDER – No. 18-cv-00931-LB

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significant number of jobs that exist in the national economy that Mr. McCrady could perform:

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textile checker; folder; and dowel inspector.136
At the reconsideration level, Dr. Morgan analyzed Mr. McCrady’s history and records and

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determined that Mr. McCrady did not have a medical disability that “would cause significant

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limitations in the last 12 months” and that Mr. McCrady’s “physical impairments [were] non-

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severe.”137 Dr. Zukowski found that Mr. McCrady was not credible, noting that he “allege[d]

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treatment, but none is documented,” and that he was “noncompliant with [his] medication

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regime.”138 He agreed with Dr. Hammond’s assessment that Mr. McCrady’s “[h]istorical

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symptoms [did] not indicate marked functional limitations.” In June, he found him not disabled.139

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United States District Court
Northern District of California

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2.2

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Other Opinion Records
2.2.1

Robert McCrady — Brother

Robert McCrady, the plaintiff’s brother, submitted a Third-Party Function Report on October

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16, 2013.140 Robert McCrady has known the plaintiff his entire life.141 He said that he spent “no

15

time at all” with the plaintiff.142 In response to a question about what the plaintiff did all day,

16

Robert McCrady repeated that he doesn’t see his brother often but if he “had to say[,] he

17

drinks.”143 He stated that the plaintiff used to be “socially active in sports and maintained a

18

relationship” before his conditions.144 According to his brother, the plaintiff did not sleep often

19

and had frequent nightmares.145 Robert McCrady wrote that his brother does not take personal care

20
136

AR 63.

137

AR 76.

22

138

AR 78.

23

139

AR 81.

140

AR 222.

141

Id.

25

142

Id.

26

143

Id.

144

AR 223.

145

Id.

21

24

27
28

ORDER – No. 18-cv-00931-LB

15

1

of himself.146 He can feed himself and use the toilet without assistance.147 He needed someone to

2

take him to pick up medicine and to remind him to take it.148
According to Robert McCrady, the plaintiff did not prepare food or meals or do house chores

3
4

because he had “no interest or energy.”149 He was able to pay bills, count change, handle a savings

5

account, and use a checkbook and money orders.150 He went outside daily, and shopped in stores

6

for beer, cigarettes, and food.151 The plaintiff enjoyed riding his bike and would go out places

7

“when made to.”152 He tended to stay away from family, friends, neighbors, or others, but was

8

“coming around more” due to his mother’s illness.153 “He does not like or trust people.”154 Since

9

his condition began, he had been “anti social [sic] and depressed.”155

10

2.2.2

On October 13, 2013, Jeffrey Davis, supervised by LCSW Katrina Steer, performed an

11

United States District Court
Northern District of California

Mental Health Advocates — Examining

12

employment assessment on Mr. McCrady at Mental Health Care Advocates in Berkeley,

13

California.156 He described Mr. McCrady as “somewhat apathetic” but said that he was “more

14

open and talkative near the end of the interview.”157 Mr. McCrady provided background

15

information about his life and his struggles with depression.158 In his assessment, Mr. Davis wrote

16

that Mr. McCrady was “able to find employment but quickly loses interest and walks away.”159 He

17
146

Id.

147

Id.

19

148

AR 224.

20

149

AR 224–25.

150

AR 225.

151

Id.

22

152

AR 226.

23

153

AR 227.

154

Id.

155

Id.

25

156

AR 500–06.

26

157

AR 501.

158

AR 500–02.

159

AR 502.

18

21

24

27
28

ORDER – No. 18-cv-00931-LB

16

1

noted that Mr. McCrady “could benefit from a more thorough psychological evaluation and

2

consideration of resumption of medication.”160

3

2.3

4

On June 20, 2016, the ALJ held a hearing.161 At the hearing, Mr. McCrady was represented by

Hearing Testimony

5

attorney Amy Orgain from the Homeless Action Center.162 The ALJ first asked Mr. McCrady

6

questions about his daily life. Mr. McCrady testified that he was “currently displaced” and that he

7

got around on his bicycle.163 When asked by the ALJ what medicine he took, he responded,

8

“Prozac and Risperdal and something else. I don’t know what the other one is.”164 The ALJ asked

9

Mr. McCrady if he still recycled (to make money), and Mr. McCrady answered that he hadn’t
recycled “in a while.”165 He said that he didn’t “have the best trust relations with people” and that

11

United States District Court
Northern District of California

10

he [was] usually just “around his dog.”166

12

Mr. McCrady’s attorney then questioned him. She asked him to describe symptoms of his

13

depression to which he responded, “I mostly just like to be by myself. I don’t — I don’t really

14

trust people. My interactions are with my dog mostly and family. My days are — I don’t know. . .

15

Some days I don’t like to go outside, I don’t feel like putting on clothes, I don’t feel like bathing,

16

whatever. I don’t want to listen to music. I have no energy sometimes.”167 He continued, “[t]hen

17

there’s other times where I have mood swings. I can be laughing, playing, and then I’ll just be

18

angry for no reason. Sometimes I just — I don’t understand but I don’t always like myself.”168

19

Counsel asked whether Mr. McCrady thought the medicine that he took helped with his

20
21
160

AR 502.

22

161

AR 38.

23

162

AR 41.

163

AR 43.

164

Id.

25

165

AR 44.

26

166

Id.

167

AR 44–45.

168

AR 45.

24

27
28

ORDER – No. 18-cv-00931-LB

17

1

symptoms.169 He responded that he didn’t really know what the medicine did but that he said one

2

helped him sleep at night.170 His doctor told him that he “can’t really say which medicine is going

3

to be the right medicine. It’s like some guinea pig stuff. . . .”171 He testified that while he was

4

incarcerated, his depression felt like “a dark cloud.”172 Counsel asked whether there was anything

5

else about his symptoms that he would like to tell the judge, and he said that “sometimes things

6

seem like they just aren’t going to get any better” and that he felt that cutting himself was a

7

release.173

8

Mr. McCrady’s attorney then asked him about his day-to-day activities. He testified that he got

9

food for himself at the store “all day every day” because his medicine made him hungry.174 He did
not give a discernible answer when asked whether he did chores.175 He said that he washed his

11

United States District Court
Northern District of California

10

own laundry “about once a month.”176 He did not see his family very often, but he talked to his

12

dad by text or on the phone every day.177 He talked to his two brothers “from time to time.”178 He

13

had not spoken to his sister since his mother died, but he would like to reestablish a relationship

14

with her.179
His attorney asked Mr. McCrady whether he had difficulty concentrating and focusing, and he

15
16

said “Yea, I guess,” and that he forgot “a lot of stuff.”180 She asked a number of questions about

17

his drug and alcohol use. He testified that he had not used drugs in years and that within the two or

18
19

169

Id.

20

170

Id.

171

AR 45–46.

172

AR 48.

22

173

AR 49.

23

174

AR 46.

175

Id.

176

Id.

25

177

Id.

26

178

AR 46–47.

179

AR 46.

180

AR 47.

21

24

27
28

ORDER – No. 18-cv-00931-LB

18

1

three months before to the hearing he stopped drinking.181 He said he never considered himself an

2

alcoholic but was a “recovered drug addict.”182 He testified that he had been “drinking since [he]

3

was born.”183 He claimed that he had problems with his stomach when he was born and could not

4

drink milk, so the doctor prescribed beer.184 Ms. Orgain asked about his drinking before he

5

stopped, and he said that he drank practically every day but he “didn’t have a problem — it wasn’t

6

a problem.”185 He went to a treatment program for substance abuse and drinks because he “like[d]

7

to enjoy the buzz of beer” but that it was not his “lifeline.”186

8

A VE was on speakerphone during the hearing but was not asked any questions.187

9

2.4

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

10

United States District Court
Northern District of California

11

McCrady was disabled and concluded that he was not.188
At step one, the ALJ found that Mr. McCrady had not engaged in substantial gainful activity

12
13

Administrative Findings

since the application date (June 25, 2013).189

14

At step two, the ALJ found that Mr. McCrady had the following severe affective disorder,

15

anxiety disorder, and substance abuse disorder.190 The ALJ also found that those disorders caused

16

“more than minimal functional limitations with respect to the [plaintiff’s] ability to perform basic

17

work activities.191

18
19
181

AR 47.

182

Id.

183

Id.

22

184

AR 48.

23

185

Id.

186

Id.

187

AR 41; see AR 40–50.

25

188

AR 24–32.

26

189

AR 26.

190

Id.

191

Id.

20
21

24

27
28

ORDER – No. 18-cv-00931-LB

19

At step three, the ALJ found that none of Mr. McCrady’s impairments, alone or in

1
2

combination, met or medically equaled the severity of a listed impairment.192 The ALJ considered

3

whether the paragraph B criteria of any listing were satisfied. To satisfy paragraph B, the “mental

4

impairments must result in at least two of the following: marked restriction of activities of daily

5

living; marked difficulties in maintaining social functioning; marked difficulties in maintaining

6

concentration, persistence, or pace; or repeated epoxides of decompensation, each of an extended

7

duration.”193 The ALJ found that Mr. McCrady had “mild restriction in activities of daily living,

8

mild to moderate difficulties in social functioning, and mild to moderate difficulties in

9

concentration, persistence, or pace, with no episodes of decompensation of extended duration” and

10

thus did not satisfy the paragraph B criteria for any listing.194

United States District Court
Northern District of California

11

The ALJ also determined that Mr. McCrady did not meet the paragraph C criteria for any

12

listing because he did “not have a medically documented history of a chronic affective disorder of

13

at least 2 years’ duration [] that has caused more than a minimal limitation of ability to do basic

14

work activities, with symptoms or signs currently attenuated by medication or psychosocial

15

support” and “does not have a complete inability to function independently outside the area of the

16

home.”195
Step four was not at issue in this case, because Mr. McCrady did not have past relevant work

17
18

for the ALJ to consider.196
At step five, the ALJ found that considering Mr. McCrady’s age, education, work experience,

19
20

and residual functional capacity, there were jobs that existed in the national economy that he could

21

perform.197 The ALJ determined that Mr. McCrady had “the residual functional capacity to

22

perform a full range of work at all exertional levels and that he [would be] able to perform simple

23
192

Id.

193

Id.

25

194

AR 27.

26

195

Id.

196

AR 31.

197

Id.

24

27
28

ORDER – No. 18-cv-00931-LB

20

1

routine tasks equating to unskilled work with occasional contact with coworkers or the public.”198

2

The ALJ based this determination on his finding that while Mr. McCrady’s medically

3

determinable impairments could reasonably be expected to cause his reported symptoms,199 “the

4

claimant’s statements concerning the intensity, persistence, and limiting effects of these symptoms

5

are not found consistent with the medical evidence and other evidence in the record . . . .”200 The

6

ALJ noted that findings on clinical examination had been “generally within normal limits” and

7

that Mr. McCrady stated that his conditions were “‘manageable with medication’ when he took

8

them.”201 Additionally, the ALJ noted that Mr. McCrady reported that “many of his mood

9

problems were ‘situational,’ suggesting transient symptoms and further supporting the finding that
a more restrictive residual functional capacity is not warranted for any twelve-month period.”202

11

United States District Court
Northern District of California

10

He indicated that Mr. McCrady’s poor work history suggested that “his current unemployment

12

might be attributable to reasons other than functional limitations arising from his impairments.”203

13

In so finding, the ALJ relied heavily on the report of psychological consultative examiner Kyle

14

Van Gaasbeek, Psy.D., who assigned Mr. McCrady a GAF score of 55, indicating “moderate

15

symptoms of impairment.”204 The ALJ found Dr. Van Gaasbeek’s opinion to be consistent with

16

the record as a whole.205 Conversely, he afforded Dr. Catlin’s GAF score of 45, “indicating serious

17
18

198

AR 27.

Mr. McCrady’s reported symptoms included “mood swings, poor sleep, nightmares, neglecting
personal care, anhedonia, low energy, needing reminders to take medications, inability to cook because
he has ‘[b]urned up the stove,’ not doing household chores because of lack of interest or energy, racing
thoughts, a history of self-harm, fear of people, distrust and dislike of others, discomfort in crowds,
social isolation, paranoia, hypervigilance, intrusive memories and ruminating thoughts of past trauma,
easily startling at loud noises, uncontrollable temper, violent episodes, getting along poorly with
authority figures, difficulty adjusting to life outside prison, having an imaginary friend, and auditory
hallucinations” and “difficulty concentrating, paying attention for longer than five to 10 minutes,
following written or spoken instructions, handling stress or changes in routine, and getting along with
others.” AR 28.
199

19
20
21
22
23

200

AR 28.

201

AR 29.

25

202

Id.

26

203

AR 30.

204

Id.

205

Id.

24

27
28

ORDER – No. 18-cv-00931-LB

21

1

symptoms or impairment,” little weight, “in light of the weight of the evidence now of record,

2

including findings on mental status examinations and other opinion evidence.”206 The ALJ

3

similarly weighed the form completed by Nurse Practitioner Loeb, finding it to be “unsupported

4

by the clinical signs and findings and contradicted by the weight of the evidence.”207 He found that

5

the assessments of Ms. Childs and Dr. Franklin were “consistent to the record only to the extent

6

consistent with [the ALJ’s] finding.”208 The ALJ did not give significant weight to Robert

7

McCrady’s report, finding that it was “essentially a reiteration of the claimant’s subjective

8

allegations.”209

9
10

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

United States District Court
Northern District of California

11
12

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

13

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

14

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

15

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

16

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

17

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

18

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

19

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

20

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

21

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

22

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

23

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

24

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

25
206

Id.

207

Id.

27

208

Id.

28

209

Id.

26

ORDER – No. 18-cv-00931-LB

22

1

GOVERNING LAW

2

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

3

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

4

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

5

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

6

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

7

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

8

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

9

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

10

United States District Court
Northern District of California

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

C.F.R. § 404.1520).
Step One. Is the claimant presently working in a substantially gainful activity? If
so, then the claimant is “not disabled” and is not entitled to benefits. If the claimant
is not working in a substantially gainful activity, then the claimant case cannot be
resolved at step one, and the evaluation proceeds to step two. See 20 C.F.R.
§ 404.1520(a)(4)(i).
Step Two. Is the claimant’s impairment (or combination of impairments) severe? If
not, the claimant is not disabled. If so, the evaluation proceeds to step three. See 20
C.F.R. § 404.1520(a)(4)(ii).
Step Three. Does the impairment “meet or equal” one of a list of specified
impairments described in the regulations? If so, the claimant is disabled and is
entitled to benefits. If the claimant’s impairment does not meet or equal one of the
impairments listed in the regulations, then the case cannot be resolved at step three,
and the evaluation proceeds to step four. See 20 C.F.R. § 404.1520(a)(4)(iii).
Step Four. Considering the claimant’s RFC, is the claimant able to do any work
that he or she has done in the past? If so, then the claimant is not disabled and is not
entitled to benefits. If the claimant cannot do any work he or she did in the past,
then the case cannot be resolved at step four, and the case proceeds to the fifth and
final step. See 20 C.F.R. § 404.1520(a)(4)(iv).
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.

28
ORDER – No. 18-cv-00931-LB

23

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

1
2

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

3

(9th Cir. 1986).

4
5

ANALYSIS
Mr. McCrady contends that the ALJ erred by:

6
7

(1) incorrectly weighing the medical opinion evidence;

8

(2) finding that Mr. McCrady’s condition does not meet or equal a listing;

9

(3) assessing Mr. McCrady’s residual functional capacity; and
(4) determining that Mr. McCrady was able to perform other work.210

10

Mr. McCrady seeks remand for payment of benefits or, in the alternative, further

United States District Court
Northern District of California

11
12

proceedings.211

13
14

1. Whether the ALJ Erred By Weighing Medical-Opinion Evidence
Mr. McCrady contends that the ALJ erred by failing to provide legally sufficient reasons for

15
16

discounting the opinions of Dr. Catlin, Dr. Franklin, and Nurse Practitioner Loeb.212 The court

17

remands because the ALJ did not give specific and legitimate reasons for rejecting the opinions of

18

Drs. Catlin and Franklin and did not provide germane reasons for rejecting Nurse Practitioner

19

Loeb’s.
The court first discusses the law governing the ALJ’s weighing of medical-opinion evidence

20
21

and then analyzes the medical-opinion evidence under the appropriate standard.

22

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

23

ambiguities.’” Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2015) (quoting Andrews v.

24

Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)). In weighing and evaluating the evidence, the ALJ

25
26
210

Motion – ECF No. 16 at 4.

27

211

Id. at 17.

28

212

Id. at 4.

ORDER – No. 18-cv-00931-LB

24

1

must consider the entire case record, including each medical opinion in the record, together with

2

the rest of the relevant evidence. 20 C.F.R. § 416.927(b); see Orn v. Astrue, 495 F.3d 625, 630

3

(9th Cir. 2007) (“[A] reviewing court must consider the entire record as a whole and may not

4

affirm simply by isolating a specific quantum of supporting evidence.”) (internal punctuation and

5

citation omitted).

6

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

7

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

8

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

9

distinguish between three types of accepted medical sources: (1) treating physicians; (2)
examining physicians; and (3) non-examining physicians. 20 C.F.R. § 416.927(c), (e); Lester v.

11

United States District Court
Northern District of California

10

Chater, 81 F.3d 821, 830 (9th Cir. 1995). “Generally, a treating physician’s opinion carries more

12

weight than an examining physician’s, and an examining physician’s opinion carries more weight

13

than a reviewing [non–examining] physician’s.” Holohan v. Massanari, 246 F.3d 1195, 1202 (9th

14

Cir. 2001) (citing Lester, 81 F.3d at 830); Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996).

15

“To reject [the] uncontradicted opinion of a treating or examining doctor, an ALJ must state

16

clear and convincing reasons that are supported by substantial evidence.” Ryan, 528 F.3d at 1198

17

(alteration in original) (internal quotation marks and citation omitted). By contrast, if the ALJ

18

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

19

that the ALJ provide “specific and legitimate reasons supported by substantial evidence in the

20

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

21

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

22

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

23

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

24

marks and citation omitted).

25

The opinions of non-treating or non-examining physicians may serve as substantial evidence

26

when the opinions are consistent with independent clinical findings or other evidence in the

27

record. Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). An ALJ errs, however, when he

28

“rejects a medical opinion or assigns it little weight” without explanation or without explaining
ORDER – No. 18-cv-00931-LB

25

1

why “another medical opinion is more persuasive, or criticiz[es] it with boilerplate language that

2

fails to offer a substantive basis for [her] conclusion.” Garrison, 759 F.3d at 1012–13.

3

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

4

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

5

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

6

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

7

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

8

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

9

§ 404.1527(d)(2)(i)–(ii)) (alteration in original). “Additional factors relevant to evaluating any
medical opinion, not limited to the opinion of the treating physician, include the amount of

11

United States District Court
Northern District of California

10

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

12

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

13

providing the opinion . . . .” Id. (citing 20 C.F.R. § 404.1527(d)(3)–(6)); see also Magallanes v.

14

Bowen, 881 F.2d 747, 753 (9th Cir. 1989) (ALJ need not agree with everything contained in the

15

medical opinion and can consider some portions less significant than others).

16

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

17

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

18

and [the testimony] from nonmedical sources.” 20 C.F.R. § 414.1513(a). The ALJ is required to

19

consider observations by “other sources” as to how an impairment affects a claimant’s ability to

20

work, id.; nonetheless an “ALJ may discount the testimony” or an opinion “from these other

21

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

22

quotations and citations omitted). An opinion from “a medical source who is not an acceptable

23

medical source may outweigh the medical opinion of an acceptable medical source.” 20 C.F.R. §

24

404.1527(f)(1). “For example, it may be appropriate to give more weight to the opinion of a

25

medical source who is not an acceptable medical source if he or she has seen the individual more

26

often than the treating source, has provided better supporting evidence and a better explanation for

27

the opinion, and the opinion is more consistent with the evidence as a whole.” Id.

28
ORDER – No. 18-cv-00931-LB

26

1

1.1

Dr. Catlin and Dr. Franklin

2

Dr. Catlin — an examining physician — performed a psychological-disability evaluation on

3

Mr. McCrady on October 22, 2013.213 Dr. Franklin — also an examining physician — supervised

4

a psychological evaluation of Mr. McCrady on April 14, 2016 and certified the resulting report

5

filed on May 13, 2016.214 The opinions of both Dr. Catlin and Dr. Franklin are contradicted by Dr.

6

Van Gaasbeek’s opinion and the DDEs.215 Thus, to discount these opinions, the ALJ was required

7

to give “specific and legitimate reasons supported by substantial evidence in the record.” Reddick,

8

157 F.3d at, 725 (internal quotation marks and citation omitted); see also Garrison, 759 F.3d at

9

1012 (“If a treating or examining doctor’s opinion is contradicted by another doctor’s opinion, an
ALJ may only reject it by providing specific and legitimate reasons that are supported by

11

United States District Court
Northern District of California

10

substantial evidence.”).
Regarding Dr. Catlin’s opinion, the ALJ wrote, “[t]his opinion is given little weight, in light of

12
13

the evidence now of record, including findings on mental status examinations and other opinion

14

evidence, as well as other relevant factors including activities, as discussed herein.”216 As to Dr.

15

Franklin’s opinion (completed by Ms. Childs under Dr. Franklin’s supervision), the ALJ wrote

16

that the findings were “consistent with the record only to the extent consistent with this finding for

17

the same reasons discussed.”217 Such conclusory statements do not qualify as “specific and

18

legitimate reasons” within the meaning of Garrison. See 759 F.3d at 1012; McConner v. Halter,

19

15 F. App’x 399 (9th Cir. 2000).
The ALJ’s reference to the opinions being inconsistent with Mr. McCrady’s “activities,”

20
21

without further explanation, also does not constitute a “specific and legitimate” reason to give

22

them less weight. Garrison, 759 F.3d at 1012. While a claimant’s daily activities may provide a

23

specific and legitimate basis for a finding of inconsistency with his disabling conditions, see

24
213

AR 332.

214

AR 518.

215

Compare AR 332–339 and AR 518–523 with AR 492–495, AR 50–64 and AR 65–82.

27

216

AR 30.

28

217

Id.

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ORDER – No. 18-cv-00931-LB

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1

Molina v. Astrue, 674 F.3d 1104, 1113 (9th Cir. 2012); Curry v. Sullivan, 925 F.2d 1127, 1130

2

(9th Cir. 1991), the Ninth Circuit has recognized that disability claimants should not be penalized

3

for attempting to lead normal lives in the face of their limitations. Garrison, 759 F.3d at 1016. In

4

Garrison , the court found that “only if [her] level of activity were inconsistent with [a claimant’s]

5

claimed limitations would these [daily] activities have any bearing on her credibility.” Id.

6

(alterations in original) (internal quotations omitted); see also Smolen, 80 F.3d at 1284 n.7 (“The

7

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

8

benefits, and many home activities may not be easily transferable to a work environment where it

9

might be impossible to rest periodically or take medication.”); Fair v. Bowen, 885 F.2d 597, 603
(9th Cir. 1989) (“[M]any home activities are not easily transferable to what may be the more

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Northern District of California

10

grueling environment of the workplace, where it might be impossible to periodically rest or take

12

medication.”); Reddick ,157 F.3d at 722 (“disability claimants should not be penalized for

13

attempting to lead normal lives in the face of their limitations.”)

14

Here, the “activities” that the ALJ discusses in his opinion, namely that Mr. McCrady was able

15

to “obtain free meals, ride his bicycle ‘everywhere,’ recycle to earn money, go out alone, go places

16

when picked up by someone, and shop for necessities”218 are basic requirements of daily living,

17

particularly if one is homeless. The ALJ failed to engage in the necessary specific analysis of the

18

inconsistencies between the severity of Mr. McCrady’s reported limitations and his daily activities

19

to enable appropriate review. In particular, the ALJ failed to discuss how Mr. McCrady’s alleged

20

mental limitations were inconsistent with his reported daily activities.

21

1.2

22

As a nurse practitioner, Ms. Loeb qualifies as an “non-acceptable” medical source. 20 C.F.R. §

Nurse Practitioner Skyler Loeb

23

414.1513(a). As such, the ALJ was required to give “germane” reasons for discounting her

24

testimony. The ALJ’s stated reason for giving little weight to Ms. Loeb’s opinion was that it was

25

“unsupported by the clinical signs and findings and contradicted by the weight of the evidence.”219

26
27

218

Id.

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219

Id.

ORDER – No. 18-cv-00931-LB

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1

First, in the Ninth Circuit, “contradictory medical evidence is not a germane reason to reject

2

lay witness testimony.” Burns v. Berryhill, 731 F. App’x 609, 613 (9th Cir. 2018) (citing Diedrich

3

v. Berryhill, 874 F.3d 634, 640 (9th Cir. 2017)).

4

Second, Mr. McCrady’s argument that Ms. Loeb’s opinion should be given additional weight

5

based on her history with Mr. McCrady has merit. As discussed above, a non-acceptable medical

6

source’s opinion can outweigh that of an acceptable medical source where the non-acceptable

7

medical source has seen an individual more than once. See 20 C.F.R. §404.1527(f)(1). Here, Mr.

8

McCrady attended at least five sessions with Ms. Loeb at LifeLong Medical Care. 220 Ms. Loeb

9

had significantly more experience with Mr. McCrady than any other medical source in the record.
As outlined above, Ms. Loeb found Mr. McCrady to have “Extreme” limitations in four out of

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Northern District of California

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thirteen functions related to work and “Marked” limitations in an additional four.221 Notably, Ms.

12

Loeb indicated that Mr. McCrady had an “Extreme” limitation in his ability to “perform at a

13

consistent pace.”222 Given the generality of the reasons proffered by the ALJ, the court cannot

14

properly assess whether they are germane and thus remands for reconsideration of this issue.

15
16
17

2. Whether the ALJ Erred By Finding that Mr. McCrady’s Condition Does Not Meet or
Equal a Listing
At step three, the ALJ evaluated Mr. McCrady under two listed impairments: 12.04

18
(Depressive, bipolar and related disorders) and 12.06 (Anxiety and obsessive-compulsive
19
20

disorders). 20 C.F.R. pt. 4, subpt. P, app’x 1. To meet the paragraph B criteria for listings 12.04
and 12.06, a claimant must demonstrate an “[e]xtreme limitation of one, or marked limitation of

21
two, of the following areas of mental functioning: (1) Understand, remember, or apply
22
information; (2) Interact with others; (3) Concentrate, persist, or maintain pace; (4) Adapt or
23
manage oneself.” Id. In order to meet the C criteria for listings 12.04 and 12.06, a claimant must
24

have a “mental disorder . . . [that] is ‘serious and persistent’ . . .” and that there must be “evidence

25
26
220

AR 535–49.

27

221

AR 529–30.

28

222

AR 530.

ORDER – No. 18-cv-00931-LB

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1

of both (1) Medical treatment, mental health therapy, psychosocial support(s), or a highly

2

structured setting(s) that is ongoing and that diminishes the symptoms and signs of your mental

3

disorder; and (2) Marginal adjustment, that is, you have minimal capacity to adapt to changes in

4

your environment or to demands that are not already part of your daily life.” Id.
The claimant bears the burden of proving that an impairment or combination of impairments

5
6

meets or equals the criteria of a listing. Tackett, 180 F.3d at 1100. “An ALJ must evaluate the

7

relevant evidence before concluding that a claimant’s impairments do not meet or equal a listed

8

impairment. Lewis v. Apfel, 236 F.3d 503, 512 (9th Cir. 2001). Generally, a “boilerplate finding is

9

insufficient to support a conclusion that a claimant’s impairment does not” meet or equal a
listing.” Id; see also, e.g., Marcia v. Sullivan, 900 F.2d 172, 176 (9th Cir. 1990) (noting that ALJ’s

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Northern District of California

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unexplained finding at step three was reversible error), unless the ALJ’s discussion of the relevant

12

medical evidence adequately supports the conclusion. Lewis, 236 F.3d at 513.
Here, the ALJ concluded that Mr. McCrady’s impairments did not meet the paragraph B or C

13
14

criteria for either listing because he had “mild restriction in activities of daily living, mild to

15

moderate difficulties in social functioning, and mild to moderate difficulties in concentration,

16

persistence or pace, with no episodes of decompensation of extended duration. . . .”223 The ALJ

17

did not discuss specifically what evidence he relied upon in making this determination. Without

18

more, the court cannot find that there was sufficient evidence underlying the ALJ’s determination

19

that Mr. McCrady’s impairments met the paragraph B or C criteria for listing 12.04 and/or 12.06.

20

Therefore, the court remands on this issue.

21
22

3. Whether the ALJ Erred by Assessing the Residual Functional Capacity (“RFC”)

23

The ALJ found that Mr. McCrady had an RFC that allowed him to “perform a full range of

24

work at all exertional levels and [found] that he is able to perform simple routine tasks equating to

25

unskilled work with occasional contact with coworkers or the public.”224 As discussed above, the

26
27

223

AR 27.

28

224

Id.

ORDER – No. 18-cv-00931-LB

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1

ALJ did not provide adequate reasons for discounting certain medical testimony. Because the

2

court remands for a reweighing of medical-opinion evidence and the RFC assessment is built on

3

the ALJ’s assessment at the prior steps in the sequential-evaluation process, the court remands

4

here too.

5
6
7
8
9
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Northern District of California

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4. Whether the ALJ Erred by Determining that Mr. McCrady Was Able to Perform Other
Work
At step five, the burden shifts to the ALJ to determine whether the claimant can “make an
adjustment to other work.” Tackett, 180 F.3d at 1098 (citing 20 C.F.R. § 404.1520). If the ALJ
finds that the claimant can adjust to other work, he must then establish that “there are a significant
number of jobs in the national economy that the claimant can do.” Id. This can be established by
either referring to the Medical-Vocational guidelines (the “Grids”) in 20 C.F.R., part 404, subpart

12
P, appendix 2, or by taking testimony from a vocational expert. Id.
13
Here, the ALJ relied solely on the Grids in making his assessment. Whether or not this was
14
15
16
17

proper depends on whether the Grids “accurately and completely describe the claimant’s abilities
and limitations.” Reddick, 157 F.3d at 729 (citing Jones v. Heckler, 760 F.2d 993, 998 (9th Cir.
1985)). Whether this is true in this case, in turn, depends on the ALJ’s determination of Mr.
McCrady’s abilities and limitations, which may or may not differ after reconsideration of the

18
medical-opinion testimony. The court remands this issue for reconsideration too.
19
20
21

CONCLUSION
The court grants Mr. McCrady’s summary-judgment motion, denies the Commissioner’s

22
cross-motion, and remands the case for further proceedings consistent with this order.
23
24
IT IS SO ORDERED.
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Dated: November 1, 2018
26
______________________________________
LAUREL BEELER
United States Magistrate Judge

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ORDER – No. 18-cv-00931-LB

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