Hayden v. Berryhill

Filing 22

ORDER by Judge Laurel Beeler granting 15 Motion for Summary Judgment. The court GRANTS Ms. Hayden's motion for summary judgment, DENIES the Commissioner's cross-motion for summary judgment, and remands the case for further proceedings consistent with this order. Signed by Judge Laurel Beeler on 03/25/2019. (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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SARA R. HAYDEN,

Case No. 18-cv-01198-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 BERRYHILL,
Defendant.

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Re: ECF Nos. 15, 18

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INTRODUCTION
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Plaintiff Sara Hayden seeks judicial review of a final decision by the Commissioner of the
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Social Security Administration denying her claim for disability-insurance benefits under Title II of
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the Social Security Act, 42 U.S.C. §§ 416 and 423.1 She moved for summary judgment, and the
Commissioner opposed the motion and filed a cross-motion for summary judgment.2 All parties
consented to magistrate-judge jurisdiction.3 Under Civil Local Rule 16–5, the matter is submitted

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Compl. – ECF No. 1 at 9; Cross-Mot. – ECF No. 18 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. 15; Cross-Mot. – ECF No. 18.

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Consent Forms – ECF Nos. 7, 8.

ORDER – No. 18-cv-01198-LB

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for decision by this court without oral argument. The court grants the plaintiff’s motion for

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summary judgment.

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STATEMENT

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1. Procedural History

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On July 14, 2011, the plaintiff, then 48 years old, filed an application for disability-insurance

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benefits under Title II of the Social Security Act.4 The plaintiff alleged the following conditions:

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major depressive disorder, inability to concentrate, difficulty retaining new information,

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rheumatoid arthritis, neck pain, and Sjoren’s syndrome.5 She had been unable to work since
January 20, 2010.6 The agency denied the plaintiff’s application in March 2012 and upon

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United States District Court
Northern District of California

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reconsideration in August 2012.7 The plaintiff requested a hearing, which was held on February

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28, 2013.8 The ALJ in Arizona denied the plaintiff’s application.9 The plaintiff appealed the

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decision to the District of Arizona, which remanded the case for further proceedings on March 25,

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2016.10 The Appeals Council vacated the earlier decision and remanded the case to an ALJ in

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California.11 The new ALJ held a hearing on April 26, 2017 and issued a decision finding the

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plaintiff not disabled on October 24, 2017.12

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Compl. – ECF No. 1 at 9; Cross-Mot. – ECF No. 18 at 5.

Administrative Record (“AR”) 80; The plaintiff initially alleged an onset date of September 24, 2009,
but later amended the onset date to January 20, 2010. See AR 10, 164.
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AR 80.

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AR 116–19, 121–23.

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AR 25.

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AR 10–19.

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AR 974.

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AR 977.

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AR 852–61.

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ORDER – No. 18-cv-01198-LB

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The plaintiff timely filed this action for judicial review and filed a motion for summary

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judgment.13 The Commissioner filed a cross-motion for summary judgment.14

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2. Summary of Administrative Record
2.1

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Medical Records
2.1.1

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Catalina Pointe Arthritis & Rheumatology Specialists — Treating

On January 3, 2013, Physician’s Assistant Carol Tran noted that the plaintiff was “doing fairly

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well in terms of her RA [meaning rheumatoid arthritis]” and that “stiffness” lasted “anywhere

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from 2 minutes to 1 hour.”15 The plaintiff reported that Orencia was “helping significantly.”16 On
February 27, 2013 Michael Maricic, M.D., examined the plaintiff.17 Her chief complaint was

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United States District Court
Northern District of California

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“right wrist pain and swelling.”18 Dr. Maricic administered injections of corticosteroids and

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Xylocains.19

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2.1.2

Santsaran Patel, M.D. — Treating

The plaintiff visited the Patel Medical Clinic on February 21, 2013, complaining of pain in her

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forearms and hands.20 Nurse Practitioner Ellen Lintner observed that the plaintiff was “well

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developed, well nourished, well groomed, [in] no apparent distress, [and] seem[ed] to be in mild

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pain.”21 On May 28, 2013 the plaintiff was positive for “fatigue” and “excruciating calf pain.”22

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Nurse Lintner noted a decreased range of motion and pain in her left knee.23 On June 18, 2013, the

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Compl. – ECF No. 1; Mot. – ECF No. 15.

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Cross-Mot.– ECF No. 18.

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AR 1089.

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Id.

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AR 1093.

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Id.

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AR 1094.

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AR 1104.

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AR 1106.

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AR 1109.

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AR 1112.

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ORDER – No. 18-cv-01198-LB

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plaintiff “present[ed] with numbness” of “moderate intensity” and “lumbar back pain.”24 Nurse

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Lintner noted that the plaintiff had “a long history of back problems” and had been lifting boxes in

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preparation for her move to California.25
Dr. Patel and Nurse Lintner sent the plaintiff to Sierra Vista Regional Health Center for tests

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and imaging.26 An ultrasound on May 30, 2013 showed a “large popliteal cyst” that extended

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“down to the calf region.”27 An MRI on June 25, 2013 showed a “moderate degree of spinal

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stenosis.”28
2.1.3

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Melissa Lim, M.D. — Treating

The plaintiff saw Dr. Lim on January 25, 2015.29 The plaintiff complained of “fatigue,

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shortness of breath, asthma, and obstructive sleep apnea.”30 After examination, Dr. Lim diagnosed

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Northern District of California

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the plaintiff with mild obstructive-pulmonary disease.31
2.1.4

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Cynthia Furze, Ph.D. — Treating

Dr. Furze has been the plaintiff’s treating psychologist since 2008.32 In February 2013, Dr.

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Furze submitted a medical-source statement.33 The form required Dr. Furze to rate the plaintiff’s

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ability to perform a number of work-related tasks on a scale of “not significantly limited” to

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“markedly limited.”34

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AR 1115.

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AR 1118.

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AR 1120–32.

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AR 1120.

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AR 1121–22.

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AR 1198.

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Id.

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Id.

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AR 1550.

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AR 781–83.

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Id. The definitions provided for the rating scale were as follows: “not significantly limited” means
that the claimant has the ability to perform the activity in a normal work setting; “mildly limited”
means the claimant is occasionally unable to adequately perform the activity; “moderately limited”
means the claimant is frequently unable to adequately perform the activity, but could perform it 50%
of the time; and “markedly limited” means the claimant is unable to perform the activity at all or is
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ORDER – No. 18-cv-01198-LB

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Dr. Furze rated the plaintiff as “not significantly limited” in the ability to get along with co-

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workers or peers without distracting them or exhibiting behavioral extremes.35

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She rated the plaintiff as “mildly limited” in the ability to maintain attention and concentration

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for brief periods, the ability to ask simple questions or request assistance, the ability to be aware of

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normal hazards and take appropriate precautions, and the ability to travel in unfamiliar places or

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use public transportation.36
She rated the plaintiff as “moderately limited” in the ability to remember locations and work-

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like procedures, the ability to carry out short and simple instructions, the ability to accept

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instructions and respond appropriately to criticism from supervisors, the ability to maintain
socially appropriate behavior and to adhere to basic standards of neatness and cleanliness, and the

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ability to respond appropriately to changes in the work setting.37
She rated the plaintiff as “markedly limited” in the ability to understand and remember short,

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simple instructions, the ability to understand and remember detailed instructions, the ability to

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carry out detailed instructions, the ability to maintain attention and concentration for extended

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periods, the ability to perform activities within a schedule, the ability to sustain an ordinary routine

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without special supervision, the ability to make simple work-related decisions, the ability to

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complete a workday and a workweek without interruptions from psychologically based symptoms

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and to perform at a consistent pace without more than the normal rest periods, and the ability to set

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realistic goals or make plans independently of others.38

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unable to perform it more than 50% of the time. There was also an option to mark “not ratable on
available information”.

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AR 782.

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AR 781–83.

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Id.

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Id.

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ORDER – No. 18-cv-01198-LB

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Dr. Furze reported that the plaintiff could work zero hours per day.39 The limitations indicated

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in the report were effective in 2009 and were “ongoing.”40 Dr. Furze opined:

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[The plaintiff’s] relative strength with respect to social interactions does not mitigate
her impairments in memory, concentration, and planning which render her unable to
work in any capacity at the present time. The impact of her depression and resulting
cognitive impairments is worsened by her chronic and multiple medical problems.41

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In May 2013, Dr. Furze submitted a letter in response to the ALJ’s unfavorable decision.42 Dr.

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Furze wrote that since January 2010, the plaintiff was “unable to perform sustained attentional and

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cognitively-focused work of any kind. She has also become socially withdrawn, unable to

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maintain her physical fitness and significantly impaired in her basic self-care and personal
grooming.”43 Dr. Furze opined, “The nature of [the plaintiff’s] impairment is chronic and ongoing

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Northern District of California

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since January of 2010, despite aggressive and ongoing psychological and psychiatric

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intervention.”44 Dr. Furze rejected the notion that the plaintiff’s depression was reactive to

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situational issues in her life, writing, “[w]hile [the plaintiff] ha[d] additionally experienced some

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significant life stressors . . .[,] the depression preexisted these events and has continued

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throughout this period up to the present time.”45 She clarified that “[a]s a routine matter,” she did

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not use her clinical notes as “an ongoing documentation of symptoms for the patient” and so the

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“absence of observations regarding functioning in [her] office notes [did] not mean that they were

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absent in the patient.”46

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In an undated letter “addressing two issues” related to the plaintiff’s case, Dr. Furze wrote:

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Regarding the issue of [the plaintiff’s] being assessed as “well groomed” in some of
the other doctors’ records. It is a standard part of a medical exam. . . to note the

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AR 783.

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Id.

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Id.

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AR 847–48.

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AR 847.

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Id.

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Id.

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AR 848.

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ORDER – No. 18-cv-01198-LB

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patient’s appearance. This can reflect a general observation that the person appears
normal. It is not an in-depth comment on the person’s appearance. What would
usually qualify for further note-taking would be obvious signs of inability to
function: tattered clothing, smears of dirt on the face or body, matted hair, untied
shoelaces, glasses held together by tape, etc.. [The plaintiff] presents herself as a
normal-appearing woman. Her hair is straight and she has a pleasant smile and
manner. She rarely sweats and has little body odor. Her hair is dry and disinclined to
appear dirty, even if she doesn’t shampoo it for several weeks. . . . These other
physicians’ notes reflect a quick and general standard note for the record that was
not accompanied by asking questions.47

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Dr. Furze noted that when the plaintiff was flying back and forth from California and Arizona,

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she was “struck by [the plaintiff’s] inability to check other airlines or prices” and the plaintiff “had

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relatives, her father specifically, who would make travel arrangements for her.”48
On December 27, 2016, Dr. Furze submitted an additional letter, reporting that the plaintiff

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Northern District of California

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had suffered from depression since 2008.49 Dr. Furze “treated the plaintiff for psychological issues

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related to her rheumatoid arthritis prior to the depression” and so was “in a unique clinical position

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to observe her loss of functioning since 2009.”50 It was “apparent” to Dr. Furze that the plaintiff

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was “unable to work and [was] among the most severely impaired by mental illness patients

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(outside of psychotic disorders) that [she had] seen in thirty years of practicing psychology.”51

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2.1.5

David L. Smith, M.D. — Treating

Dr. Smith is the plaintiff’s treating psychiatrist.52 Dr. Smith submitted a letter on February 12,

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2013 indicating that he “reviewed the diagnostic criteria for depression listed on Social Security

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regulation 12.04 and the plaintiff meets or exceeds the listed criteria.”53

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AR 1683.

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AR 1684.

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AR 1550.

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Id.

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Id.

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AR 1592.

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AR 652.

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ORDER – No. 18-cv-01198-LB

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Dr. Smith submitted a medical-source statement on April 3, 2017.54 He reported that the

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plaintiff had “a long history of chronic major depression.”55 Her symptoms “wax[ed] and

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wane[d]” but she had “a chronic underlying component of neurovegetative symptoms” including

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“poor energy, poor concentration, lower interest level in typically enjoyable activities (anhedonia),

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and problems with poor sleep quality.”56 Medication improved these symptoms but “even with

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medication treatment she still ha[d] residual dysthymic-level symptoms (lower level but chronic

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depression) that contribute[d] to her disability and difficulty with cognitive and emotional

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functioning well enough to work.”57
The plaintiff’s symptoms caused “clinically significant restriction in maintaining

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concentration, persistence or pace and social functioning as evidenced by difficulty following

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Northern District of California

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directions, following a conversation, or following a television show because she does not

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comprehend or retain the information.”58 She often did not leave the house and tended to isolate.59
2.1.6

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The plaintiff received treatment for rheumatoid arthritis at Sports, Orthopedics and

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Rehabilitation Medicine Associates (“SOAR”) beginning in 2002. 60
2.1.6.1

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Nichole Barry, M.D.

On March 16, 2010 and May 15, 2012, Dr. Barry aspirated fluid from the plaintiff’s knee.61 On

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Sports, Orthopedics and Rehabilitation Medicine Associates — Treating

June 28, 2012, Dr. Barry reported that the plaintiff’s knees were swelling, one knee was very

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AR 1592.

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Id.

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Id.

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Id.

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Id.

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Id.

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AR 785.

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AR 817.

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ORDER – No. 18-cv-01198-LB

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painful, and she had a “mild flare.”62 On July 24, 2012, Dr. Barry examined the plaintiff and

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aspirated a recurring cyst in her knee.63
On July 9, 2013, Dr. Barry aspirated fluid from a cyst in the plaintiff’s knee and injected

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Kenalog and lidocaine.64 Dr. Barry’s impression was “[r]heumatoid arthritis with ongoing activity

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also manifested by synovitis in the right knee leading to the development of a popliteal cyst.”65 On

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August 6, 2013, Dr. Barry reported “deep” pain in the plaintiff’s shoulder.66 On August 28, 2013,

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Dr. Barry reported wrist pain.67 On September 13, 2013, Dr. Barry performed an ultrasound and

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injection in the plaintiff’s left wrist.68 The plaintiff had been experiencing a significant flare.69 Dr.

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Barry noted that the plaintiff had “failed all TNF inhibitors including Remicade and Humira.”70
On September 13, 2013, Dr. Barry noted “moderate swelling” in the plaintiff’s left wrist.71 Her

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Northern District of California

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impression was that she had “active polysynovitis related to her rheumatoid arthritis, now

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complicated by secondary carpal tunnel syndrome as well.”72 Dr. Barry administered a lidocaine

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injection.73 Dr. Barry ordered repeated medication infusions to treat the plaintiff’s rheumatoid

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arthritis.74

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AR 816.

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AR 815.

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AR 1250.

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AR 1251. “Synovitis is ‘[i]nflammation of the synovial membrane, the lining of the joint.’” Spencer
v. Barnhart, No. 04-876 RHS, 2005 WL 8163728 at *3 n.3 (D. New Mexico, July 18, 2005) (citations
omitted).
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66

AR 1248.

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AR 1245.

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AR 1240.

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Id.

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AR 1241.

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AR 1133.

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Id.

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Id.

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See, e.g., AR 1224–47.

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2.1.6.2

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Robert S. Gamburd, M.D.

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On March 9, 2012, Dr. Gamburd reported that the plaintiff “had a flare of radicular pain in the

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right leg.”75 He reported that she had “no pain with straight left raising or femoral stretch testing”

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but did have “pain with lumbar extension and with right-sided bending.”76 He ordered an epidural

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because she had “excellent relief previously” from that treatment.77
The plaintiff saw Dr. Gamburd on December 14, 2012 for a recheck of her neck pain.78 The

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plaintiff experienced “increased clicking and instability sensation in the low neck,” and her

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“rheumatoid arthritis [had] been aggravated in her wrist and swollen.”79 She had numbness and

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tingling in her forearm.80 Dr. Gamburd’s examination revealed “painful” cervical spine rotation.81
2.1.7

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Dr. Barry referred the plaintiff to Dr. Hu at the University of California, San Francisco

United States District Court
Northern District of California

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Serena Hu, M.D. ⎯ Treating

(“UCSF”) Department of Orthopedic Surgery for issues related to pain in her neck.82

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On September 16, 2008, Dr. Hu noted that the plaintiff had “some upper thoracic pain that

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occasionally radiate[d] into the arms, back and elbow, worse on the left than the right. Her hands

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go numb and give her pain, and result in decreased activity.”83 She reported swelling in the

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plaintiff’s neck and low back pain.84 Dr. Hu wrote that “given the current medical management

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of” the plaintiff’s rheumatoid arthritis, “it would be very reasonable for her not to need any more

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aggressive treatment.”85

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AR 819.

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Id.

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Id.

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78

AR 813.

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79

Id.

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Id.

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AR 814.

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AR 821.

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AR 829.

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Id.

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AR 830.

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On July 6, 2009, Dr. Hu reported “catching” in the plaintiff’s neck but said that otherwise, her

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rheumatoid arthritis was “under control with conservative treatment.”86
On July 12, 2010, Dr. Hu noted that the plaintiff “had been in remission for about five years”

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but had a recent significant flare-up.87 Dr. Hu’s clinical examination was “unremarkable,” and the

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plaintiff’s “range of motion [was] essentially full and not painful.”88 Dr. Hu planned to follow up

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in one year.89
2.1.8

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The plaintiff made multiple trips to the emergency room (“ER”) at Sequoia Hospital in

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Sequoia Hospital — Treating

Redwood City, California. On April 3, 2010, she visited the ER complaining of an “[e]pisode of
shakiness, diaphoresis, [and] vomiting.”90 Gary D. MacGregor, M.D., noted his impression as

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Northern District of California

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“possible drug reaction in the tramadol and Cymbalta combination.”91 The plaintiff’s symptoms

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resolved with rehydration and she was discharged.92
On October 31, 2013, the plaintiff presented at the ER with “low back pain mainly on the right

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side.”93 She reported taking four tablets of hydrocodone and Aleve and applying ice “without

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much relief.”94 Physician’s Assistant Putnam administered Diluadid, Phenegan, and Valium,

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which made her feel better.95 Physician’s Assistant Putnam’s clinical impression was “acute-on-

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chronic back pain” and she sent the plaintiff home with a prescription for Valium.96

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86

AR 827.

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AR 821.

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Id.

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89

Id.

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90

AR 823.

91

AR 824.

92

Id.

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93

AR 1141.

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94

Id.

95

AR 1142.

96

Id.

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2.1.9

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Gregory Engel, M.D. — Treating

On September 12, 2013, the plaintiff had an appointment with Dr. Engel.97 She complained of

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“stomach and epigastric pain which” radiated up.98 Dr. Engel noted that the plaintiff’s “blood

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pressure” was “clearly inadequately controlled” and that he would “follow closely.”99 He

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determined that her pain did not “appear to be cardiac.”100
On December 11, 2014, Dr. Engel reported that the plaintiff was “still having dyspnea which

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has been getting worse since her last visit.”101 She was “well appearing” and in “no acute

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distress.”102 The plaintiff saw Dr. Engel again on March 27, 2014.103 She was “well appearing”

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and “in no acute distress.”104 He increased the dosage of her blood-pressure medication.105
On February 27, 2015, Dr. Engel noted the plaintiff’s blood pressure was “within a normal

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range with a couple [of] borderline readings.”106 She reported “exertional dyspnea with walking or

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folding laundry.”107 On October 8, 2015, Dr. Engel reported that the plaintiff’s “breathing

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problems [had] improved but [had] not resolved completely” and observed that she was “well

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appearing” and in “no acute distress.”108

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97

AR 1160–63.

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98

AR 1160.

99

AR 1163.

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100

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AR 1162.

AR 1213. “Dyspnea refers to the sensation of difficult or uncomfortable breathing.” Neal v. Colvin,
No. 1:14-01503-SKP, 2015 WL 5232328, at *1 n.3 (E.D. Cal. Sept. 8, 2015) (citing Dorland’s
Illustrated Medical Dictionary 589, 1359 (31st ed. 2007)).
101

102

AR 1215.

103

AR 1155.

104

AR 1157.

25

105

AR 1158.

26

106

AR 1206.

107

Id.

108

AR 1201, 1203.

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2.1.10 Bryan Gesuk, M.D. — Treating

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Dr. Gesuk has treated the plaintiff for her rheumatoid arthritis at the San Mateo Medical

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Center since February 2015.109 Dr. Gesuk submitted a “Medical Work Tolerance

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Recommendations” form.110 Dr. Gesuk indicated that the plaintiff could do two hours of sedentary

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work per day, one hour of light work per day, and no hours of medium or heavy work per day.111

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The plaintiff could stand for five minutes at one time and could sit for ten minutes at one time.112

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The plaintiff would have to change positions frequently during the day (at least once per hour).113

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She could climb one flight of stairs per day.114 The plaintiff needed to avoid bending, crouching,

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and squatting, and she could occasionally kneel, sit in a clerical position, reach above shoulder
level, and work with arms extended in front.115 She needed to avoid power gripping, pushing and

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pulling, but could occasionally pinch with her thumb and index finger, perform fine movements,

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and feel/touch where sensation was required.116 Dr. Gesuck concluded that the plaintiff could

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work three hours per day and two days per week.117
2.2

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Non-Medical Evidence
2.2.1

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Norman Bell

Mr. Bell was the plaintiff’s supervisor at the San Jose Business Journal from 2007 to 2010.118

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Mr. Bell described the accommodations he made for the plaintiff, including a handicapped-parking

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spot, ergonomic restructuring of her workspace, and providing her with a flexible schedule.119 It

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109

AR 1287–1547.

110

AR 1712.

111

Id.

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112

Id.

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113

Id.

114

Id.

115

AR 1713.

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116

Id.

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117

Id.

118

AR 227.

119

Id.

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ORDER – No. 18-cv-01198-LB

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was “not uncommon to find [the plaintiff] stretched out on the floor, straightening her back.”120

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Her lack of mobility limited her typing, and it was “clear she was frequently in pain from the

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simple act of walking.”121 When in pain, the plaintiff “could be a challenge to those around her,”

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but she “recognized that and made efforts to avoid conflict.”122
2.2.2

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Maria Pazos

Ms. Pazos worked with the plaintiff at the San Jose Business Journal from 2004 to 2008.123

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Ms. Pazos detailed the difficulties that the plaintiff had at work due to her rheumatoid arthritis.124

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The plaintiff had difficulty “maintaining a regular schedule due to a huge number of doctor visits

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and medicine adjustments” but “was a real trooper” and made up the time “at all sorts of hours.”125

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The plaintiff had swelling in her hands, and sustained typing was painful.126 “Towards the end” of

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her time there, the plaintiff “was in extreme discomfort pretty much all day.”127
2.2.3

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Karen Bell-Zinn

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Ms. Bell-Zinn worked with the plaintiff at the Phoenix Business Journal in the 1990s, and they

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remained friends after that.128 The plaintiff “had physical stamina, and as a member of the editorial

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department. . . was one of [the] best copy editors.”129 Ms. Bell-Zinn documented changes she saw

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in the plaintiff beginning in the early 2000s.130 The plaintiff “was slower to get around, and by

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2005, her stamina was extremely low.”131 She also “became somewhat forgetful and

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120

Id.

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121

Id.

122

Id.

123

AR 1079.

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124

Id.

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125

Id.

126

Id.

127

Id.

25

128

AR 1081.

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129

Id.

130

Id.

131

Id.

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ORDER – No. 18-cv-01198-LB

14

1

withdrawn.”132 In the “past decade,” the plaintiff seemed “more and more forgetful and even

2

somewhat disoriented.”133 Ms. Bell-Zinn believed that the plaintiff was “unable to have the vibrant

3

life and career that she began before her illness took away her future.”134
2.2.4

4

Timothy Roberts

Mr. Roberts worked with the plaintiff at the San Jose Business Journal.135 They both “worked

5
6

long hours and did hard work during a very challenging period for the newspaper.”136 He

7

described the plaintiff’s work as “a lot of computer work, phone calls, faxing and note taking.”137

8

She also “present[ed] her plans for each edition of the paper at staff meetings, coordinate[d] with

9

reporters and editors, guide[d] reporters on their own research and proofread the final edit of the
main news pages.”138 The plaintiff worked “energetically the first two years, but in 2002 she

11

United States District Court
Northern District of California

10

“began to experience pain and tiredness.”139 The plaintiff “did whatever she could to stay up with

12

work,” including working late and on the weekends.140 The plaintiff’s “hands were swollen and it

13

was clear that she walked with pain.”141 It was painful for Mr. Roberts to “watch her stiff walking

14

and painful typing.”142 Once, the plaintiff came into work the day after being treated at the hospital

15

for anaphylactic shock.143 It took the plaintiff “longer and longer to get her work done.”144 By

16

2008, the “new publisher was not interested in working with Sara” and fired her in 2008.145

17
132

Id.

133

Id.

19

134

Id.

20

135

AR 1083.

136

Id.

137

Id.

22

138

Id.

23

139

Id.

140

Id.

141

Id.

25

142

Id.

26

143

Id.

144

Id.

145

Id.

18

21

24

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ORDER – No. 18-cv-01198-LB

15

2.2.5

1

The plaintiff completed a Function Report in conjunction with her application for disability

2
3

Function Report

benefits on December 2, 2011.146
Before her conditions, the plaintiff was able to read complex texts, problem solve, complete

4
5

tasks, supervise the work of others, follow directions, and converse intelligently.147 As a result of

6

her conditions, she “easily [lost] track of things” and experienced a “loss of vocabulary and

7

comprehension [and had] difficulty concentrating” and “difficulty finishing tasks.”148 Emailing

8

took “an unreasonable amount of time.”149 For most of the day, she stayed “in bed watching

9

TV.”150 “Sometimes she move[d] to the sofa to watch TV.”151
Her meals were “sporadic,” and she occasionally went to the store or the doctor, and

10

United States District Court
Northern District of California

11

sometimes “visit[ed] her father.”152 She bathed about two times a month and had not changed her

12

bed sheets in months.153 She needed to be told to bathe but did not “have anyone to do that.”154

13

She had to set reminders on her phone to remember to take medication.155 She was “partially able”

14

to do household chores, but she either forgot or was “not motivated.”156 She went outside “maybe

15

once a day.”157

16
17
18
19

146

AR 192–200.

20

147

AR 193.

148

AR 192.

149

AR 193.

22

150

Id.

23

151

Id.

152

Id.

153

AR 194.

25

154

Id.

26

155

Id.

156

AR 195.

157

Id.

21

24

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ORDER – No. 18-cv-01198-LB

16

1

Her conditions negatively affected her ability to handle money.158 Her hobbies and interests

2

were “reading” and “writing fiction” but she “almost stopped because [she got] frustrated when

3

[she did not] understand text and [her] creativity was gone.”159 The plaintiff used “Skype to talk to

4

friends” and visited in person “once in a while.”160 She did not “enjoy leaving home” and “stopped

5

going to book club, lectures, classes, bookstores, the library, [and] window shopping.”161

6

The plaintiff’s conditions affected talking, memory, completing tasks, concentrating,

7

understanding, and following instructions.162 She felt like her brain was “injured.”163 She could

8

walk for 45 minutes without having to stop and rest, and she needed to rest for “a day” before

9

walking again.164 She could follow written instructions “with great difficulty” and could not
follow spoken instructions.165 She did not handle stress well and did not have any routines.166 She

11

United States District Court
Northern District of California

10

was “afraid of dealing with money and legal issues.”167
The plaintiff noted that she “had rheumatoid arthritis for 9 years” and that it exacerbated her

12
13

depression and sometimes gave her “suicidal ideation.”168 She said she used to be

14

a great self-starter with lots of ambition and motivation” but now she was “none of that.”169

15
16
17
18
19

158

AR 196.

20

159

Id.

160

Id.

161

AR 196–97.

22

162

AR 197.

23

163

Id.

164

Id.

165

Id.

25

166

AR 198.

26

167

Id.

168

AR 199.

169

AR 199–200.

21

24

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ORDER – No. 18-cv-01198-LB

17

1

3. Administrative Hearing Held February 28, 2013
Plaintiff’s Hearing Testimony

2

3.1

3

The plaintiff appeared and testified at a hearing on February 28, 2013, represented by an

4

attorney.170 The plaintiff clarified that her disability onset date was January 20, 2010 (not

5

September 24, 2009, as she originally claimed).171
The ALJ questioned the plaintiff. She testified that she had not worked at all since January 20,

6

2010.172 She felt like she had “brain damage” and her brain did not “connect the dots the way it

8

did” before.173 The ALJ asked whether any health provider used that term (brain damage), and the

9

plaintiff said “no, that’s what it feels like to me . . . inside my head.”174 She found it “very difficult

10

to concentrate and to focus” and had “extreme difficulty reading and writing.”175 Her psychiatrist

11

United States District Court
Northern District of California

7

told her that this was a “neurodegenerative aspect of depression.”176 The plaintiff was not sure

12

why she was depressed, but she had “a rough year the year before 2008 or two years before 2008,”

13

and her psychiatrist said that “eventually [they would] find the right cocktail of drugs that [would]

14

get [her] back on track and [she could] go back to being productive someday.”177 She testified that

15

she has been seeing her psychiatrist, Dr. Smith, since September 2009 and saw him “every three to

16

five months or so.”178 She also saw her psychologist, Dr. Cynthia Furze, twice per week for

17

“seven or eight years.”179

18
19
20
170

AR 25.

171

AR 29–30.

22

172

AR 30.

23

173

AR 30–31.

174

AR 33.

175

AR 30–31.

25

176

AR 31.

26

177

Id.

178

Id.

179

AR 32.

21

24

27
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ORDER – No. 18-cv-01198-LB

18

1

The plaintiff testified that her rheumatoid arthritis and stomach problems kept her from

2

working.180 She was diagnosed with gastroparesis.181 Her doctor in Tucson thought she had

3

internal bleeding and was running tests to see where the bleeding was coming from.182
The ALJ asked whether the plaintiff’s health improved or got worse between January 20, 2010

4
5

and the date of the hearing.183 She responded that her stomach was “definitely worse.”184 Her

6

joints were “flaring more often,” and she had “numbness in [her] hands from [the] wrist down.

7

Both of [her] hands [went] completely numb during the day.”185 She experienced “very intense

8

bone depth dull pain” in her forearms several times a day, usually lasting 10 or 15 minutes.186 Her

9

neck pain was worse.187 Her “overall mood” had improved since her onset date, and she did not
“have as much crying as [she] did when” she initially “got depression.”188 She used to weigh over

11

United States District Court
Northern District of California

10

200 pounds, but now she weighed “about 190.”189

12

The ALJ asked the plaintiff about litigation she was involved in with her deceased mother’s

13

widower over her mother’s estate.190 She won that litigation.191 She also filed a lawsuit against her

14

last employer because they did not give her appropriate accommodations for her rheumatoid

15
16
17
18

180

AR 33.

Id. “Gastroparesis is a digestive disorder wherein the gastric system does not empty food properly.”
Proof v. Intel Corp. Long Term Disability Plan, No. 2:12-cv-01716-TLK-CKD, 2014 WL 4960927, at
n.5 (E.D. Cal. Sept. 30, 2014) (citing Gastroparesis Overview: Causes & Symptoms,
http://www.webmd.com/digestive_disorders/digestive-disorders-gastroparesis).
181

19
20

182

AR 33–34.

183

AR 35–36.

22

184

AR 36.

23

185

Id.

186

Id.

187

AR 37.

25

188

Id.

26

189

AR 39.

190

AR 37–38.

191

AR 38.

21

24

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28

ORDER – No. 18-cv-01198-LB

19

1

arthritis.192 The suit was settled out of court.193 The plaintiff testified that, at the time, if she had

2

been given her accommodations, she could have still done that job.194
The ALJ asked the plaintiff whether she exercised, and she testified that she tried to “walk 20

3
4

to 30 minutes a few times a week.”195 Her occupation was listed as “writer,” and so he asked

5

whether she was currently working on anything.196 She stated that she had not written anything of

6

significance since 2009.197 The ALJ asked whether the plaintiff experienced any side effects from

7

her medications, and she said that one gave her “esophagitis” and the others made her nauseous,

8

drowsy, sleepy, and sometimes dizzy.198 The ALJ noted that in a report from one of her doctors,

9

the plaintiff reported no side effects and asked her to explain the discrepancy. 199 She said that at
the time, she did not have any “new side effects to report to him but he would have been aware of

11

United States District Court
Northern District of California

10

my previous side effects.”200
The ALJ asked the plaintiff about her living situation and her travel. The plaintiff testified that

12
13

she lived in Northern California in 2012 and moved to Sierra Vista Arizona in June 2011.201 She

14

traveled between Arizona and Northern California five times between June 2011 and the end of

15

2011 and four times in 2012.202 She traveled to Redwood City, California “right before Christmas”

16
17
18
19
192

Id.

193

AR 39.

194

Id.

22

195

AR 43.

23

196

Id.

197

Id.

198

AR 44.

25

199

AR 45.

26

200

Id.

201

AR 35, 41.

202

AR 41.

20
21

24

27
28

ORDER – No. 18-cv-01198-LB

20

1

in 2012 to visit family and see her psychiatrist.203 She eventually wanted to move back to

2

California.204

3

The ALJ asked the plaintiff how her rheumatoid arthritis was doing.205 She testified that “right

4

now it’s in a period of flaring. It goes up and down. . . But in the past few months it’s been flaring

5

fairly well, which among other things, has resulted in having all the swelling in my wrist and

6

having to get injections there.”206 The ALJ pointed out a treatment note from January 3, 2013 that

7

said the plaintiff was “doing fairly well in terms of her [rheumatoid arthritis] and stiffness can last

8

anywhere from two minutes to one hour . . . She is able to do her activities of daily living.”207 He

9

asked whether she remembered saying that.208 She did not recall “saying that directly” but she

10

spoke to a physician’s assistant who “took some notes.”209
The plaintiff’s attorney then asked her questions. The plaintiff testified that she got an infusion

United States District Court
Northern District of California

11
12

once a month at the hospital for her rheumatoid arthritis.210 The infusion took approximately two

13

hours.211 She also had to give herself injections.212 Counsel asked the plaintiff what she meant

14

when she told a doctor she was “doing okay” with her rheumatoid arthritis, and the plaintiff said

15

she probably meant that “there’s nothing new and wild coming at [her] and that it’s just pretty

16

much status quo.”213 If she had a flare, she would not necessarily tell her doctor because she has

17

“had so many of them in the past and [she knew] what they would say. . . .”214 Specifically,

18
19

203

AR 47.

20

204

AR 46.

205

AR 47.

206

Id.

22

207

AR 47–48.

23

208

AR 48.

209

Id.

210

AR 49.

25

211

Id.

26

212

Id.

213

AR 50.

214

Id.

21

24

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28

ORDER – No. 18-cv-01198-LB

21

1

counsel confirmed that at the January 3, 2013 appointment (raised by the ALJ), the plaintiff’s

2

doctor found that she had “synovitis, swelling in [her] left wrist and [her] fingers as well.”215
The plaintiff tried to avoid getting steroid injections because they caused her mood to change

3
4

and sometimes made her suicidal and made her “heart race.”216 The other medicines that she took,

5

Orencia and methotrexate, suppressed her immune system.217 To avoid infections, she had to “stay

6

home, stay away from people, use Purell constantly and mostly just avoid contact with other

7

people.”218
Counsel asked the plaintiff why she maintained her team of doctors in California, and she said

8
9

it was because she “had them for so long” and they knew “how [her] body work[ed].”219 She
moved to Arizona to be with her father (who died), and her intention was to move back to

11

United States District Court
Northern District of California

10

California but it was not financially possible at the time of the hearing.220

12

The plaintiff described accommodations that she was given at her former job.221 She had a

13

handicapped parking spot and was allowed to have a “sporadic” schedule.222 She was allowed to

14

stretch out on the floor when her back hurt.223 She could use a keyboard for ten minutes (or for

15

fifteen to twenty if her wrist was not hurting as badly).224 Her fingers, hands, and wrists would get

16

a “dull ache pain” and would get “a little more inflamed” if she overdid it on a keyboard.225 When

17
18
19
215

Id.

216

AR 51.

217

Id.

22

218

AR 52.

23

219

Id.

220

AR 53.

221

AR 54.

25

222

AR 55–56.

26

223

AR 56.

224

AR 57.

225

AR 57–58.

20
21

24

27
28

ORDER – No. 18-cv-01198-LB

22

1

a new publisher joined the journal, he no longer allowed the plaintiff to have these

2

accommodations.226

3

Finally, the plaintiff’s attorney asked her to give the ALJ some examples from her daily life

4

about how her “brain damage” impacted her.227 She said she left things in the oven to cook and

5

forgot about them and they burned.228 She sometimes could not follow television shows, and it felt

6

like “there [was] no root for” the information to “get to [her] brain.”229 She forgot to pay her bills

7

and had her electricity and water and gas shut off.230 She testified that she was working to get back

8

to work and definitely did not want to “be like this forever.”231
3.2

9

Vocational Expert

Ruth Van Vleet, vocational expert (“VE”) testified at the hearing.232 She classified the

10

United States District Court
Northern District of California

11

plaintiff’s past relevant work based on listings in the Dictionary of Occupational Titles

12

(“DOT”).233 The VE said the plaintiff’s work aligned with the DOT listings for “editor of a

13

magazine” (listing 132.037-022) with a Special Vocational Preparation (“SVP”) SVP of 8 and

14

“Journalist” (listing 131.262.018) with an SVP of 7.234 She characterized the plaintiff’s position as

15

an exhibitor-services manager as a combination of “exhibitor” (listing 239.357-101) with an SVP

16
17
18
19
226

AR 56.

227

AR 58.

228

Id.

22

229

Id.

23

230

Id.

231

AR 59.

232

AR 25.

25

233

AR 60.

26

234

20
21

24

27

AR 60–61. Special Vocational Preparation (“SVP”) is defined as “the amount of lapsed time
required by a typical worker to learn the techniques, acquire the information, and develop the facility
needed for average performance in a specific job-worker situation.” DOT, App. C. 1991 WL 688702
(4th ed. 1991).

28
ORDER – No. 18-cv-01198-LB

23

1

of 3 and “sales manager” (listing 163.167-018) with an SVP of 8.235 She noted that in her job as an

2

editor, the plaintiff sat for “eight plus hours a day and lifted at times up to 20 pounds.”236
The ALJ presented the VE with the following hypothetical:

3

The individual in question can occasionally lift up to 20 pounds, frequently 10. Stand
and walk six out of every eight hours. Sit six out of every eight hours. Her pushing
is commensurate with her lifting and carrying limitations, however her pulling
limitations of 20 occasionally, 10 frequently is limited to frequently. The
hypothetical claimant’s handling and fingering are also limited to frequently. The
hypothetical claimant is to avoid concentrated exposure to extreme cold, extreme
heat, vibrations, extreme vibrations, fumes, odors, dust, gasses, poor ventilation or
the like. The individual is to avoid even moderate exposure to hazards, hazards being
commonly defined as dangerous machinery or unprotected heights. The individual
in question cannot perform or work in a fast-paced production environment. . . The
individual in question can attend and concentrate at two-hour blocks of time
throughout an eight-hour workday provided the individual received the two
customary 10 to 15-minute breaks and the 30 to 50-minute lunch period.237

4
5
6
7
8
9
10

United States District Court
Northern District of California

11

The ALJ asked the VE whether this hypothetical individual could do any of the plaintiff’s past

12
13

relevant work.238 She responded that the work the plaintiff did previously would be “methodical

14

and would fit within the limitations.”239 The ALJ asked, “if an individual for any reason is unable

15

to attend and concentrate in two hour blocks of time throughout an eight hour workday,” what

16

effect would that have on the individual’s ability to maintain employment.240 The VE said that

17

person would need “a specially accommodated job and [] would not be considered competitively

18

employable.”241 The VE testified that the allowable range of absences would be “one day per

19

month up to 12 per year. Anything in excess [would mean that] an individual would need either a

20
21
22
235

AR 60–61.

236

AR 60.

237

AR 63–64.

25

238

AR 64.

26

239

Id.

240

AR 65.

241

Id.

23
24

27
28

ORDER – No. 18-cv-01198-LB

24

1

special accommodation but typically would be terminated if they couldn’t adhere to the

2

standards.”242
The plaintiff’s attorney asked the VE how an individual’s telecommuting “one to two days per

3
4

week” would affect the hypothetical raised by the ALJ.243 She said that “would need to be an

5

accommodation by an employer.”244
The plaintiff’s attorney stated that the plaintiff’s “treating psychologist. . . indicated that her

6
7

ability to understand and remember short and simple instructions [was] markedly limited,” and

8

asked, “what effect that would have on the positions that the [VE] indicated under the first

9

hypothetical.”245 The ALJ, the VE and the plaintiff’s attorney then had the following exchange:
ALJ:

Wait, wait. Counsel, madam VE, does the term marked have any meaning
within the definition of the DOT?

VE:

No.

12

ALJ:

Counsel, I think you’re asking for —

13

ATTY: Well let me expand then, because —

14

ALJ:

10

United States District Court
Northern District of California

11

15

I think I’ve already done that for you though with the two-hour limitation.
See, if she can’t attend and concentrate within two-hour blocks of time, we
already know she can’t work.

17

ATTY: Well why don’t we just cut to the chase then, judge, and if I could just get
an agreement that under the limitations set forth by her treating psychologist
—

18

ALJ:

16

Yes, that, yes.

ATTY: — she would be unemployable.

19

ALJ:
20

And you’ve already got that as well through Dr. Barry who says she meets a
listing so.

ATTY: Dr. Smith.

21

ALJ:

22

I’m sorry, Dr. Smith.

ATTY: Okay.

23

ALJ:

So, yes.

24
25

242

AR 66.

26

243

AR 67.

244

AR 68.

245

AR 69.

27
28

ORDER – No. 18-cv-01198-LB

25

ATTY: All right, so we can —

1

ALJ: I —

2

ATTY: — move on.

3

ALJ: — agree. If she’s as limited as these folks say she is, yes.246

4
5

3.3

6

The first ALJ issued an unfavorable ruling on April 1, 2013.247 Initially, the ALJ determined

7

that the plaintiff met the “insured status requirements of the Social Security Act through December

8

31, 2013.”248 The ALJ then followed the five-step sequential-evaluation process to determine

9

whether the plaintiff was disabled and concluded that she was not.249

April 2013 ALJ Decision and Reversal on Appeal

At step one, the ALJ concluded that the plaintiff had “not engaged in substantial gainful

11

United States District Court
Northern District of California

10

activity since January 20, 2010, the alleged onset date.”250 At step two, the ALJ determined that

12

the plaintiff had “the following severe impairments: rheumatoid arthritis; Sjogren’s syndrome;

13

cervical spine degenerative disc disease; gastritis; and obesity.”251 He held that the plaintiff had

14

the “medically determinable mental impairment of depression” that did not “cause more than

15

minimal limitation in [her] ability to perform basic mental work activities and [was] therefore

16

nonsevere.”252 The ALJ opined, “Clinical signs and findings reported in the case record and

17

consultative examiners Drs. Salk and Marks’ opinions support[ed] this determination.”253 He said

18

that the plaintiff’s physical-health treatment records did “not document any significant and

19
20
21
22

246

AR 69–70.

23

247

AR 10–19.

248

AR 12.

249

AR 12–19.

25

250

AR 12.

26

251

Id.

252

Id.

253

AR 13.

24

27
28

ORDER – No. 18-cv-01198-LB

26

1

persistent depressive symptoms,” and he discussed examples of the plaintiff’s behaving normally

2

and appropriately at medical appointments.254

3

The ALJ assigned “substantial weight” to the state agency consultants’ and assigned “little

4

weight” to Dr. Smith’s opinion that the plaintiff’s depression met the criteria of listing 12.04 and

5

Dr. Furze’s opinion that the plaintiff has “disabling depression.”255 He held that the treating

6

doctors’ opinions were “inconsistent with the mental status examination findings showing [the

7

plaintiff] had appropriate affect, logical thoughts and was cooperative, and her relatively good

8

activities of daily living . . . including her frequent travel between Arizona and California.”256
At step three, the ALJ found that the plaintiff did not have “an impairment or combination of

10

impairments that [met] or medically equal[ed] the severity of” a listed impairment because “[n]o

11

United States District Court
Northern District of California

9

physician [] credibly opined that the claimant’s conditions [met] or equal[ed] any listing, and the

12

state agency program physicians opined that they [did] not.”257
Finally, the ALJ determined that the plaintiff had the residual-functional capacity (“RFC”) to

13
14

perform the following work:

15

The claimant retains the capacity to lift and carry 20 pounds occasionally, and 10
pounds frequently; stand and walk for 6 hours in an 8 hour workday; sit for 6 hours
in an 8 hour workday; pushing is commensurate with the aforementioned lifting and
carry limitations; the claimant may frequently pull a weight commensurate with the
aforementioned lifting and carrying limitations: 20 pounds occasionally, and 10
pounds frequently; perform frequent handling and fingering; must avoid
concentrated exposure to extreme cold and heat, extreme vibration, fumes, odors,
dusts, gases and poor ventilation, or the like; avoid even moderate exposure to
workplace hazards, such as unprotected heights or dangerous machinery; must not
work in a fast-paced production environment; and is able to attend and concentrate
for 2 hour blocks of rime throughout an 8 hour workday with the two customary 10
to 15 minute breaks, and the customary 30 to 60 minute lunch period.258

16
17
18
19
20
21
22
23
24
254

Id.

25

255

AR 14.

26

256

Id.

257

Id.

258

Id.

27
28

ORDER – No. 18-cv-01198-LB

27

Considering the entire record and applying this process, the ALJ found that “[the plaintiff’s]

1
2

medically-determinable impairments could reasonably be expected to cause the alleged

3

symptoms,” but held that her “statements concerning their intensity, persistence, and limiting

4

effects” were “not entirely credible. . . .”259
The plaintiff appealed the ALJ’s decision to the District of Arizona.260 The district court

5
6

reversed the Commissioner’s decision and remanded the plaintiff’s case to the ALJ for further

7

proceedings.261

8

First, the court held that “the reasons cited by the ALJ for discounting Plaintiff’s credibility

9

either [were] not supported by substantial evidence of record or otherwise [did] not provide a basis
to disbelieve Plaintiff.”262 Second, the court held that the ALJ did not state sufficient reasons for

11

United States District Court
Northern District of California

10

rejecting the opinions of the plaintiff’s treating providers (Dr. Barry, Dr. Smith, and Dr. Furze).263

12

Third, the court held that the ALJ did not provide germane reasons for rejecting Norman Bell’s

13

third-party statement about the plaintiff’s disability.264 Finally, the court held that “the substantial

14

evidence of record at this point, for the reasons stated above, does not support the ALJ’s RFC

15

assessment.”265

16
17

4. Administrative Hearing Held April 26, 2017

18

4.1

19

The plaintiff submitted a pre-hearing memorandum on April 21, 2017.266 In it, she said, “The

20

Pre-Hearing Memorandum

plaintiff has been diagnosed with Rheumatoid Arthritis and treated extensively for it. She also has

21
22

259

AR 15.

23

260

AR 936.

261

AR 974.

262

AR 948.

25

263

AR 956–67.

26

264

AR 968.

265

AR 969.

266

AR 1084.

24

27
28

ORDER – No. 18-cv-01198-LB

28

1

cervical degeneration and lumbar stenosis with radiculopathy. She has the mental impairment of

2

major depressive disorder with cognitive difficulties.”267 She summarized the plaintiff’s medical

3

record as follows:268
The record is replete with objective findings such as limited range of motion,
synovitis, effusion, thrush, swelling, edema and multiple instances of fluid on her
knee requiring aspirations. Laboratory results repeatedly display elevated
inflammatory levels and diagnostics confirm synovitis in her fingers, stenosis in her
spine and swelling in her foot. Moreover, the underlying diagnosis of Rheumatoid
Arthritis is complicated by other conditions and causes complications. For example,
[the plaintiff] has recurrent chronic bronchitis and sinusitis. During periods of active
infections, she must stop the pain saving infusion treatment while she treats the
infections. This results in marked increases in her pain levels. Additionally, the
medication she takes to help with the pain has caused lupus and agitation, insomnia
and fatigue.269

4
5
6
7
8
9
10

United States District Court
Northern District of California

11

The plaintiff asserted that her claim “was mishandled from the beginning,” and the “disability

12

examiner was under the wrong impression that the plaintiff’s date last insured was 12/31/11 when

13

it was actually two years later. . . .”270 “[T]hey looked at this from a skewed legal perspective right

14

from the start. Their position was that she had insufficient evidence to prove disability before

15

12/31/11. This prevented them from looking at any evidence past that date.”271

16

4.2

Administrative Hearing

17

An ALJ in California held a hearing on April 26, 2017 to reconsider the plaintiff’s application

18

for disability benefits.272 The plaintiff was represented by an attorney.273 The plaintiff’s attorney

19

explained that there were “four major components” to the plaintiff’s conditions: rheumatoid

20

arthritis; complications from rheumatoid arthritis including lupus and infections from suppression

21

of her immune system; a lower-back pain issue that ultimately resulted in surgery (after the initial

22
267

Id.

268

AR 1084–85.

269

AR 1085 (emphasis in original).

25

270

AR 1086.

26

271

Id.

272

AR 871.

273

AR 873.

23
24

27
28

ORDER – No. 18-cv-01198-LB

29

1

hearing in 2013); and major depression.274 Counsel explained that based on the previous ALJ’s

2

specific concerns about the plaintiff’s continued travel and Dr. Smith’s explanation about why the

3

plaintiff meets the listings, they submitted additional evidence on those topics.275 Specifically,
The magistrate [in the District of Arizona] [said] [‘]I still have some problems with
[Dr. Furze’s] comments about her grooming and I also have some concerns about the
fact that she kept traveling.[’] So I had [Dr. Furze] specifically address those in letters
and so those have been submitted into evidence, and then he had some issues about
what Dr. Smith, his listings comment. But Dr. Smith, her treating psychiatrist said,
yes she meets the listings. Magistrate judge says you know, he probably didn’t do a
very good job about explaining why she meets the listings. So I went back to Dr.
Smith and I asked him, can you please just elaborate why do you think that she meets
the listing, which he did and again, I provided that explanation into the record,
Judge.276

4
5
6
7
8
9

Plaintiff’s Hearing Testimony

4.3

11

United States District Court
Northern District of California

10

The plaintiff was 53 years old at the time of the second hearing.277 She last worked in June of

12

2008, and after that, she supported herself with a 401(k), and help from her father and cousin.278

13

What kept her from being able to work was “[t]he inability to concentrate, to read, to follow

14

instructions, and to be consistent in a daily schedule.”279
The plaintiff’s attorney asked her about telling Dr. Furze that she wanted to kill herself and

15
16

that she did not “really have a reason to live.”280 The plaintiff said she could “get that way from

17

time to time.”281 When asked to give examples about difficulty concentrating, the plaintiff said:
Trying to read things, I will have to read them seven, eight, nine times and then I still
come away with not understanding what it said and I know that I know these words,
but I can’t put them together. I have done the same thing with trying to watch a
television show, having to rewind things four, five, six times to figure out what

18
19
20
21
22

274

AR 874–77.

23

275

AR 877.

276

Id.

277

Id.

25

278

AR 878.

26

279

Id.

280

Id.

281

Id.

24

27
28

ORDER – No. 18-cv-01198-LB

30

they’re saying and I can’t keep my mind — my mind gets distracted while I’m trying
to focus and I can’t keep it on track.282

1
2
3

She almost lost her house in Arizona “several times,” and her utilities were shut off because she

4

forgot to pay bills.283 Since 2009, she fumbled with “simple words” and “struggle[d] to find the

5

right word.”284
She used to be the research director for the Silicon Valley Business Journal.285 She “interacted

6
7

with people from other companies” to “get information from them.”286 It was a “sedentary, sit

8

down type of job.”287 The most she had to lift was “maybe five pounds of files.”288 She also

9

worked as an exhibitor services manager for a convention registration company.289 She “helped
people who registered as exhibitors to set up booths in the exhibit hall” and coordinated and

11

United States District Court
Northern District of California

10

managed getting the equipment they needed.290 She was on her feet 90 to 100% of the day.291 The

12

most she lifted at that job was 40 pounds.292

13

Her rheumatoid arthritis started spreading in 2002.293 She received monthly injections for

14

rheumatoid arthritis beginning in the summer of 2003.294 During the period from 2000 to 2013 the

15

plaintiff was receiving monthly Orencia infusions.295 She needed to go to the hospital “at some

16
17
282

AR 879.

283

Id.

19

284

AR 879–80.

20

285

AR 880.

286

AR 880–81.

287

AR 881.

22

288

Id.

23

289

Id.

290

Id.

291

AR 882.

25

292

Id.

26

293

Id.

294

AR 883.

295

Id.

18

21

24

27
28

ORDER – No. 18-cv-01198-LB

31

1

point Monday through Friday” and could be there for “three to four hours.”296 Her company

2

provided accommodations for her, including a flexible schedule and an ergonomic specialist to

3

give her “a good desk.”297 She was allowed to work late at nights, on the weekends, and from

4

home.298 She had difficulty typing and could type from five to 20 minutes before needing to stop

5

because of “a very intense ache” in her hands and her wrists.299 She needed to “get up and move

6

around for a few minutes” before typing again.300 She could work like that for two or three hours a

7

day.301 She had to stop after two to three hours because she experienced “numbness and tingling”

8

down her arms and in her hands which caused her to “lose sleep.”302 She had “back problems and

9

neck problems” diagnosed as stenosis in her back.303 She could sit for 20 minutes at a time with a

10

lot of shifting and could walk for 15 to 20 minutes at a time before needing a rest.”304

United States District Court
Northern District of California

11

In 2013, the plaintiff had surgery, which provided her relief for “a couple of months” until she

12

“took a fall.”305 She was told that “disc material could come out again after that surgery[,] and that

13

is what happened after [she] fell.”306 She said that her “rheumatoid arthritis[,] . . . cognitive

14

problems from depression[,]” and gout were the “biggest things” for her.307

15
16
17
18
19

296

AR 883–84.

20

297

AR 882–83.

298

AR 884.

299

AR 884–85.

22

300

AR 885.

23

301

Id.

302

Id.

303

AR 885–86.

25

304

Id.

26

305

AR 886–87.

306

AR 887.

307

Id.

21

24

27
28

ORDER – No. 18-cv-01198-LB

32

1

4.4

2

Ms. Wenz, a Vocational Expert (“VE”), testified at the hearing.308 She characterized the

3

plaintiff’s past work as follows:
[T]here were two areas of previous employment within the last 15 years that are
reflected in the file and were discussed in today’s hearing. One would be that of
exhibit services manager. This would be best defined by DOT code 297.367-010,
and the DOT defines that as light work with an SVP of 5. [The plaintiff] also
worked as a research director. This is DOT code 189.177-010, and it is light work
with an SVP of 8.309

4
5
6
7

The ALJ provided two hypotheticals for the VE to consider.310 The first was:

8
9

[F]or an individual with the same age, education, work background [as the
plaintiff]. This person will be limited to light work, but all postural including
climbing, balancing, kneeling, crouching, and crawling would be occasional.
Handling and fingering would be frequent. This person must avoid exposure to
temperature extremes as well as vibration, fumes, odors, dusts, gases, and poor
ventilation. This person should also not be exposed to hazards or unprotected
heights. Work should not be in [a] fast paced production environment.311

10
11

United States District Court
Northern District of California

Vocational Expert

12
13

The VE testified that hypothetical person could not perform the plaintiff’s past work because

14
15

both positions required “the ability to work at a fast pace and maintain focus [and]

16

concentration.”312 The VE provided three alternative occupations for such a hypothetical person: a

17

furniture-rental clerk313 (light work with an SVP of 2 and 50,000 jobs nationally); a photocopy

18

machine operator (light work with an SVP of 2 and over 18,000 jobs nationally); or an order

19

caller314 (light work with an SVP of 2 and over 10,000 jobs nationally).315 The ALJ’s second

20

hypothetical was “[f]or a person with the same age, education, and work background limited to

21
22

308

Id.

23

309

AR 888.

310

Id.

311

Id.

25

312

Id.

26

313

The transcript reflects that the ALJ reported this as a “film-rental clerk.” AR 860.

314

The ALJ reported this as a “mail handler.” AR 861.

315

AR 888–89.

24

27
28

ORDER – No. 18-cv-01198-LB

33

1

essentially sedentary work, but they can only work for three hours a day and two days per

2

week.”316 The VE said there would not be any work for such a hypothetical person.317

3

The plaintiff’s attorney then questioned the VE.318 First, she asked whether a person

4

“markedly limited in the ability to perform activities within a schedule, maintain regular

5

independence, and be punctual. . . would [be] render[ed] [] unemployable?”319 The VE said yes.320

6

The plaintiff’s attorney asked whether a person “markedly unable to sustain ordinary, routine

7

[work] without special supervision” and “markedly limited” in “the ability to make simple work-

8

related decisions” would be unemployable, and the VE answered yes.321 Finally, the plaintiff’s

9

attorney asked whether a person “markedly limited in the ability to complete a work day and work
week without interruptions from psychologically based symptoms and to perform at a consistent

11

United States District Court
Northern District of California

10

pace without more than normal rest periods” would be unemployable, and the VE answered that

12

she would.322 The VE said that missing more than one day of work a month would “definitely”

13

make a person unemployable and agreed that “adding restrictions of working from home or

14

flexible schedule would require an accommodated position.”323

15

4.5

16

The ALJ issued an unfavorable decision on October 27, 2017.324 Initially, the ALJ determined

17

Administrative Findings Issued October 27, 2017

that the plaintiff met the “insured status requirements of the Social Security Act through December

18
19
20
21
316

AR 889.

22

317

Id.

23

318

Id.

319

Id.

320

Id.

25

321

AR 889–90.

26

322

AR 890.

323

Id.

324

AR 849.

24

27
28

ORDER – No. 18-cv-01198-LB

34

1

31, 2013.”325 The ALJ then followed the five-step sequential-evaluation process to determine

2

whether the plaintiff was disabled and concluded that she was not.326
At step one, the ALJ determined that the plaintiff “did not engage in substantial gainful

3
4

activity during the period from her alleged onset date. . . through her date last insured.”327
At step two, the ALJ determined that the plaintiff had “the following severe impairments:

5
6

rheumatoid arthritis, sinusitis, psoriasis, status-post back surgery, carpal tunnel syndrome,

7

pacemaker, obesity, lupus, and depression.” 328 The ALJ found that those impairments

8

“significantly limit[ed] the ability to perform basic work activities.329 The ALJ found that the

9

plaintiff’s additional medically determinable impairments — status-post laparoscopic
cholecystectomy, sleep apnea, hypertension, hyperthyroidism, left-ankle edema, and pulmonary

11

United States District Court
Northern District of California

10

nodules — were nonsevere.330
At step three, the ALJ found that the plaintiff “did not have an impairment or combination of

12
13

impairments that met or medically equaled the severity of one of the listed impairments in 20 CFR

14

Part 404, Subpart P, Appendix 1.”331 The ALJ opined, “There is no medical evidence that

15

documents listing-level severity for any physical impairment. No acceptable medical-source has

16

mentioned findings equivalent in severity to the criteria of any listed impairment, individually or

17

in combination.”332 As for the plaintiff’s mental impairment (depression), the ALJ held that it did

18

not meet or equal the criteria of listing 12.04 (depressive, bipolar, and related disorders).333 The

19
325

AR 854.

326

AR 854–61.

21

327

AR 854.

22

328

AR 855.

329

Id.

330

Id.

24

331

Id.

25

332

Id.

20

23

26
27
28

Id. Listing 12.04 includes disorders that “are characterized by an irritable, depressed, elevated, or
expansive mood, or by a loss of interest or pleasure in all or almost all activities, causing a clinically
significant decline in function. Symptoms and signs may include, but are not limited to, feelings of
hopelessness or guilt, suicidal ideation, a clinically significant change in body weight or appetite, sleep
disturbances, an increase or decrease in energy, psychomotor abnormalities, disturbed concentration,
333

ORDER – No. 18-cv-01198-LB

35

1

ALJ considered whether the plaintiff’s mental impairment met the “paragraph B criteria” for

2

listing 12.04.334 The ALJ summarized the criteria as follows:
To satisfy the ‘paragraph B’ criteria, the mental impairment must result in at least
one extreme or two marked limitations in a broad area of functioning which are:
understanding, remembering, or applying information; interacting with others;
concentrating, persisting, or maintaining pace; or adapting or managing themselves.
A marked limitation means functioning in this area independently, appropriately,
effectively, and on a sustained basis is seriously limited. An extreme limitation is the
inability to function independently, appropriately or effectively, and on a sustained
basis.335

3
4
5
6
7
8

The ALJ held that the plaintiff had a “moderate limitation” in understanding, remembering or

9

applying information because she “exhibited a linear thought process during an examination.”336
She had a “mild limitation” in interacting with others because” during an examination, the

11

United States District Court
Northern District of California

10

claimant was cooperative and exhibited good eye contact.”337 She had a “moderate limitation” in

12

concentrating, persisting, or maintaining pace because, again, “she exhibited a linear thought

13

process.”338 Finally, she had a “mild limitation” in adapting or managing herself because she

14

“seemed to have relatively full activities of daily living.”339

15
16

The ALJ considered whether the plaintiff’s mental impairment met the “paragraph C” criteria
of listing 12.04 and determined that it did not.340

17

[T]he record does not show a medically documented history of a chronic affective
disorder of at least two years’ duration that has caused more than a minimal limitation

18
19
20

pressured speech, grandiosity, reduced impulse control, sadness, euphoria, and social withdrawal.”
Major depression and depressive disorder are both evaluated under this listing. 20 C.F.R., Pt. 404,
Subpt. P, appx. 1 § 12.00(3)(a).
334

AR 855.

335

Id.

336

Id.

23

337

Id.

24

338

Id.

339

AR 856.

21
22

25

Id. Fulfilling the “paragraph C” criteria of listing 12.04 requires “evidence of both: (1) medical
treatment, mental health therapy, psychosocial support, or a highly structured setting(s) that is ongoing
and that diminishes the symptoms and signs of your mental disorder; and (2) marginal adjustment, that
is, you have minimal capacity to adapt to changes in your environment or to demands that are not
already part of your daily life.” 20 C.F.R., Pt. 404, Subpt. P, appx. A §12.04(C).
340

26
27
28

ORDER – No. 18-cv-01198-LB

36

of ability to od basic work activities, with symptoms or signs currently attenuated by
medication or psychosocial support, and one of the following: repeated episodes of
decompensation, each of extended duration; a residual disease process that has
resulted in such marginal adjustment that even a minimal increase in mental demands
or change in the environment would be predicted to cause the individual to
decompensate; or current history of one or more years’ inability to function outside
a highly supportive living arrangement, with an indication of continued need for such
arrangement.341

1
2
3
4
5

At step four, the ALJ found that the plaintiff had the RFC to “perform light work as defined in

6
7

20 CFR 404.1567(b) except the claimant is limited to occasional postural activities, frequent

8

handling and fingering, cannot work around hazards or unprotected heights, is limited to simple

9

work, and cannot perform fast-paced production work.”342 The ALJ opined that the plaintiff’s
“medically determinable impairments could reasonably be expected to cause the alleged

11

United States District Court
Northern District of California

10

symptoms; however, the claimant’s statements concerning the intensity, persistence and limiting

12

effects of these symptoms are not entirely consistent with the medical evidence and other evidence

13

in the record. . ..”343 The ALJ wrote that “medical records from January 2013 indicate[d] that [the

14

plaintiff] ‘is doing fairly in terms of her [rheumatoid arthritis].’”344 She noted that the plaintiff had

15

back surgery in November 2013 and “was doing well postoperatively.”345 In April 2010, the

16

plaintiff “reported that she has been doing well” with her drug-induced lupus.346 The ALJ noted

17

that she took into account the plaintiff’s wandering atrial pacemaker and chronic sinusitis when

18

formulating the RFC.347 The ALJ “considered and accounted for” the plaintiff’s obesity and found

19
20
21
22
341

AR 856.

342

Id.

343

AR 857.

25

344

Id.

26

345

AR 857–58.

346

AR 858.

347

Id.

23
24

27
28

ORDER – No. 18-cv-01198-LB

37

1

that it did “not affect the claimant’s ability to ambulate effectively.”348 She determined that the

2

plaintiff’s “respiratory and cardiovascular systems [were] not unduly impaired.”349
The ALJ gave “some weight” to the plaintiff’s allegation of depression, but she held that “the

3
4

medical record indicates that the claimant’s depression does not preclude the performance of all

5

work.”350 The plaintiff reported that she was “doing well on Wellbutrin,” and in July 2013, the

6

plaintiff was reported to have “good eye contact, appropriate behavior, and her thought process

7

was linear and logical. It was noted that the claimant still had psychosocial stress, but her

8

depression was stable.”351 The ALJ noted that the plaintiff “described daily activities which [were]

9

not limited to the extent one would expect, given the complaints of disabling symptoms and
limitations,” including frequent travel between the Bay Area and Arizona, writing fiction, and

11

United States District Court
Northern District of California

10

taking walks.352 The ALJ discussed Dr. Furze’s opinion that the plaintiff’s depression rendered her

12

“unable to work,” but gave it little weight, stating that “the record [did] not support such extreme

13

limitations” and “the medical record show[ed] that many of the claimant’s symptoms [were] well-

14

controlled with medication.”353 The ALJ considered Dr. Smith’s opinion that the plaintiff’s

15

symptoms met listing 12.04 but granted it little weight as it was “not supported by the medical

16

record.”354 “Specifically,” the ALJ opined, “the claimant’s activities of daily living and

17

unremarkable objective findings all suggest that the claimant does not meet listing 12.04.”355
The ALJ considered reports from the plaintiff’s former coworkers Karen Zinn and Timothy

18
19

Roberts.356 The ALJ found that their reports regarding the plaintiff’s limitations at work

20
21
348

Id.

22

349

Id.

23

350

Id.

351

Id.

352

Id.

25

353

AR 859.

26

354

Id.

355

Id.

356

Id.

24

27
28

ORDER – No. 18-cv-01198-LB

38

1

“reveal[ed] that the claimant ha[d] a strong work history and [was] hardworking” and that while

2

they supported a finding that the plaintiff could not do her former work, they did “not suggest that

3

the claimant cannot perform any work.”357
Finally, at step five, the ALJ determined that there were “jobs that existed in significant

4
5

numbers in the national economy” that the plaintiff could do.358

6
STANDARD OF REVIEW

7

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

8
9

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

11

United States District Court
Northern District of California

10

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

12

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

13

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

14

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

15

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

16

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

17

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

18

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

19

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

20

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

21

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

22
23

GOVERNING LAW

24

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

25

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

26
27

357

Id.

28

358

AR 860.

ORDER – No. 18-cv-01198-LB

39

1

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

2

“impairment or impairments are of such severity that. . . she is not only unable to do [her] previous

3

work but cannot, considering [her] age, education, and work experience, engage in any other kind

4

of substantial gainful work which exists in the national economy. . . .” 42 U.S.C. § 1382c(a)(3)(A)

5

& (B). The five-step analysis for determining whether a claimant is disabled within the meaning of

6

the Social Security Act is as follows. Tackett, 180 F.3d at 1099 (citing 20 C.F.R. § 404.1520).

7
8
9
10

United States District Court
Northern District of California

11
12
13
14
15
16
17
18

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).

23

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.

24

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

19
20
21
22

25

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

26

(9th Cir. 1986).

27
28
ORDER – No. 18-cv-01198-LB

40

ANALYSIS

1
2

The plaintiff filed a motion for summary judgment and contends that the ALJ erred by:

3

(1) giving little weight to the opinions of her treating psychiatrist and psychologist;

4

(2) ignoring the opinions of her treating rheumatologists;

5

(3) failing to include limitations from third-party statements;
(4) discounting her testimony; and

6

(5) basing her decision on VE testimony where two of the proposed jobs were
inappropriate and the remaining job was not available in significant numbers.359

7
8
9

For the reasons set forth below, the court grants the plaintiff’s motion and remands the case for
reconsideration.

10

United States District Court
Northern District of California

11
12

1. Whether the ALJ Erred by Assigning Little Weight to the Opinions of the Plaintiff’s
Treating Psychologist and Psychiatrist360
The plaintiff alleges that the ALJ did not provide specific and legitimate reasons for

13
14

discounting her treating psychiatrist’s and psychologist’s opinions.361 She also argues that the ALJ

15

“paraphrase[d]” comments from her medical records in a way that made them appear that she was

16

more active than she really was.362 The court holds that the ALJ did not give specific and

17

legitimate reasons supported by substantial evidence for discounting the opinions.

18

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

19

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

20

Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)).363 In weighing and evaluating the evidence, the ALJ

21
22
23
24
25

359

Mot. – ECF No. 15 at 5.

In its opposition to the plaintiff’s motion for summary judgment, the government argues that the
ALJ properly discounted these opinions because “[b]oth Dr. Smith and Dr. Furze provided their
opinions in 2013, well after Plaintiff’s date last insured of December 31, 2011.” Opp. – ECF No. 18 at
7. This argument has no merit because the plaintiff’s date last insured was December 31, 2013. See AR
28–29, 853, 861.
360

361

Mot. – ECF No. 15 at 6.

26

362

Id. at 8.

27

363

28

The Social Security Administration promulgated new regulations, including a new § 404.1521,
effective March 27, 2017. The previous version, effective to March 26, 2017, applies based on the date
of the ALJ’s hearing, November 16, 2016.
ORDER – No. 18-cv-01198-LB

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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); accord Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir.

15

1996).

16

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

17

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

18

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

19

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

20

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

21

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

22

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

23

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

24

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

25

marks and citation omitted).

26

Dr. Furze’s and Dr. Smith’s medical opinions are not contradicted by another doctor’s opinion.

27

Thus, the ALJ was required to give clear and convincing reasons supported by substantial

28

evidence before discounting the opinions. Ryan, 528 F.3d at 1198.
ORDER – No. 18-cv-01198-LB

42

Dr. Smith’s notes and opinions documented objective observations related to the plaintiff’s

1
2

depression including restricted affect and low mood.364 Dr. Furze reported extensively about the

3

plaintiff’s severe depression symptoms including “anhedonia, neurovegetative cognitive

4

impairment, social withdrawal and suicidal ideation.”365 Dr. Furze’s most recent assessment was

5

that it was “apparent” that the plaintiff was “unable to work and [was] among the most severely

6

impaired by mental illness patients (outside of psychotic disorders) that [she had] seen in thirty

7

years of practicing psychology.”366
The ALJ gave Dr. Furze’s medical opinion little weight because “the record [did] not support”

8
9

the recommended restrictions in the opinion, and “many of [the plaintiff’] symptoms are wellcontrolled with medication.”367 The ALJ gave little weight to Dr. Smith’s medical opinion because

11

United States District Court
Northern District of California

10

it was “not supported by the medical record” and the plaintiff’s “activities of daily living and

12

unremarkable objective findings all suggest that [she] does not meet listing 12.04.”368 The three

13

reasons proffered by the ALJ do not constitute clear and convincing reasons supported by

14

substantial evidence.

15

First, “[m]erely stating that a treating physician’s opinions are not supported by objective

16

findings is insufficient.” Morganti v. Colvin, No. C 12–03511 CRB, 2013 WL 1758784 at *6

17

(N.D. Cal. Apr. 24, 2013) (citing Embrey v. Bowen, 849 F.2d 418, 421 (9th Cir. 1988) (“To say

18

that medical opinions are not supported by sufficient objective findings. . . does not achieve the

19

level of specificity our prior cases have required.”). To disregard a treating physician’s opinion,

20

the ALJ must provide “a thorough summary of the facts, his interpretations thereof, and his

21

findings.” Id. (emphasis in original). The ALJ did not provide the requisite specificity here.
Second, that the plaintiff’s symptoms improved with medication is not a clear and convincing

22
23

reason to discount Dr. Furze’s testimony. See Garrison, 759 F.3d at 1017. The Ninth Circuit has

24
364

AR 241–44, 640.

365

AR 847.

366

AR 1550.

27

367

AR 859.

28

368

Id.

25
26

ORDER – No. 18-cv-01198-LB

43

1

emphasized that “while discussing mental health issues, it is error to reject a claimant’s testimony

2

merely because symptoms wax and wane in the course of treatment.” Id. Incidents of improvement

3

must be “interpreted with an awareness that improved functioning while being treated and while

4

limiting environmental stressors does not always mean that a claimant can function effectively in a

5

workplace.” Id. (citation omitted). “Caution in making such an inference is especially appropriate

6

when no doctor or other medical expert has opined. . . that a mental health patient is capable of

7

working or is prepared to return to work.” Id. at 1017–18. Here, Dr. Furze siad that Ms. Hayden’s

8

mental disability prevented her from working altogether.
Finally, the ALJ’s reference to the plaintiff’s activities of daily living is not a clear and

10

convincing reason to discount Dr. Smith’s medical opinion. “The Social Security Act does not

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United States District Court
Northern District of California

9

require that claimants be utterly incapacitated to be eligible for benefits, and many home activities

12

may not be easily transferable to a work environment where it might be impossible to rest

13

periodically or take medication.” Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989) (citation

14

omitted). The Ninth Circuit has held that “disability claimants should not be penalized for

15

attempting to lead normal lives in the face of their limitations.” Reddick, 157 F.3d at 722. Thus,

16

the daily activities cited by the ALJ — traveling to Arizona, writing fiction, and walking — do not

17

constitute clear and convincing reasons to reject Dr. Smith’s opinion that the plaintiff meets listing

18

12.04 and is unable to work.

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2. Whether the ALJ Erred by Ignoring the Opinions of the Plaintiff’s Rheumatologist
The plaintiff contends that the ALJ erred by ignoring the opinion of her treating

21
22

rheumatologists, Dr. Barry.369 She argues that the ALJ was “required to explain the reasons for

23

rejecting” the physicians’ assessments and did not do so.370 The court agrees.
As discussed above, in weighing and evaluating the evidence, the ALJ must consider the entire

24
25

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

26
27

369

Mot. – ECF No. 15 at 9–10.

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370

Id. at 10.

ORDER – No. 18-cv-01198-LB

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1

evidence. 20 C.F.R. § 416.927(b). An ALJ may not “reject[] a medical opinion or assign[] it little

2

weight” without explanation or without explaining why “another medical opinion is more

3

persuasive, or criticize it with boilerplate language that fails to offer a substantive basis for [her]

4

conclusion.” Garrison, 759 F.3d at 1012–13.
At step three, the ALJ said that there was “no medical evidence that documents listing-level

5

severity for any physical impairment” and that “[n]o acceptable medical-source. . . mentioned

7

findings equivalent in severity to the criteria of any listed impairment, individually or in

8

combination.371 The ALJ did not mention Dr. Barry, who diagnosed the plaintiff’s rheumatoid

9

arthritis. Dr. Barry’s 2005 letter “is clear that when Plaintiff is in pain caused by RA and pleurisy,

10

she should be permitted to telecommute. . . Dr. Barry’s letter was written for the direct purpose of

11

United States District Court
Northern District of California

6

indicating an accommodation of functional limitations related to Plaintiff’s employment.”372 The

12

ALJ erred by ignoring Dr. Barry’s opinion.

13
14

3. Whether the ALJ Erred by Not Including Limitations from Third-Party Statements
The plaintiff argues that the erred by not giving germane reasons for discounting the opinions

15
16

of her former coworkers.373
The ALJ must consider “other source” testimony and evidence from a layperson. Ghanim, 763

17
18

F.3d 1154, 1161 (9th Cir. 2014); Molina, 674 F.3d at 1111; Bruce v. Astrue, 557 F.3d 1113, 1115

19

(9th Cir. 2009) (“In determining whether a claimant is disabled, an ALJ must consider lay witness

20

testimony concerning a claimant’s ability to work”) (internal quotation marks and citation

21

omitted). “Descriptions by friends and family members in a position to observe a claimant’s

22

symptoms and daily activities have routinely been treated as competent evidence.” Sprague v.

23

Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987). It is competent evidence and “cannot be disregarded

24

without comment.” Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996). The Ninth Circuit has

25
26
371

AR 855.

27

372

AR 956–57.

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373

Mot. – ECF No. 15 at 11–12.

ORDER – No. 18-cv-01198-LB

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not “required the ALJ to discuss every witness’s testimony on an individualized, witness-by-

2

witness basis.” Molina, 674 F.3d at 1114. An ALJ may “point to” reasons already stated with

3

respect to the testimony of one witness to reject similar testimony by a second witness. Id.
The former coworkers testified about the plaintiff’s debilitating symptoms and need for

4
5

accommodations at work. The ALJ did not discount the opinions and instead said:

6

All of these opinions are given some weight. They reveal that the claimant has a
strong work history and is hardworking. They also suggest that the claimant became
unable to perform her past work, although she tried to perform it with
accommodations for a long time. This is consistent with the finding below that the
claimant is unable to perform her past relevant work. Ms. Zinn’s opinion supports
the finding that the claimant should be limited to simple work. However, these
opinions do not suggest that the claimant cannot perform any work.374

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8
9
10

The ALJ did not reference the limitations in the RFC portion of her analysis but wrote, “[i]n

United States District Court
Northern District of California

11
12

sum, the above residual functional capacity assessment is supported by the medical evidence, the

13

claimant’s activities of daily living, and the record as a whole.”375 Given the court’s remand for

14

reconsideration of the medical-opinion evidence, the court remands on this issue as well.

15
16

4. Whether the ALJ Erred by Discounting the Plaintiff’s Testimony

17

The plaintiff argues that the ALJ found her testimony not credible without providing clear and

18

convincing reasons for doing so.376 She claims that the ALJ used “boilerplate language found

19

repeatedly in Social Security decisions” and did not identify specific statements by the plaintiff as

20

being “inconsistent” with the medical evidence.377 The court agrees.

21

In assessing a claimant’s credibility, an ALJ must make two determinations. Garrison, 759

22

F.3d at 1014. “First, the ALJ must determine whether the claimant has presented objective medical

23

evidence of an underlying impairment which could reasonably be expected to produce the pain or

24

other symptoms alleged.” Id. (quoting Lingerfelter v. Astrue, 504 F.3d 1028, 1035–36 (9th Cir.

25
374

AR 859.

375

Id.

27

376

Mot. – ECF No. 15 at 12.

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377

Id. at 12–13.

26

ORDER – No. 18-cv-01198-LB

46

1

2007) (internal quotations omitted)). Second, if the claimant has produced that evidence, and

2

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

3

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

4

Id. at 1014–15 (quoting Smolen, 80 F.3d at 1281).

5

In order to have meaningful appellate review, the ALJ must explain its reasoning and

6

“specifically identify the testimony [from a claimant] she or he finds not to be credible and . . .

7

explain what evidence undermines the testimony.” Treichler v. Comm’r of Soc. Sec., 775 F.3d

8

1090, 1102–03 (9th Cir. 2014) (“Credibility findings must have support in the record, and

9

hackneyed language seen universally in ALJ decisions adds nothing.”) (emphasis in original,
internal quotations omitted). “That means ‘[g]eneral findings are insufficient.’” Id. at 1102

11

United States District Court
Northern District of California

10

(quoting Lester, 81 F.3d at 834); Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) (“the ALJ

12

must make a credibility determination with findings sufficiently specific to permit the court to

13

conclude that the ALJ did not arbitrarily discredit the claimant’s testimony” (citing Bunnell v.

14

Sullivan, 947 F.2d 341, 345–46 (9th Cir. 1991) (en banc)). Moreover, the court will “review only

15

the reasons provided by the ALJ in the disability determination and may not affirm the ALJ on a

16

ground upon which he did not rely.” Garrison, 759 F.3d at 1010.
The ALJ discounted the plaintiff’s testimony because her “statements concerning the intensity,

17
18

persistence and limiting effects of [her] symptoms are not entirely consistent with the medical

19

evidence and other evidence in the record for the reasons explained in this decision.”378
The ALJ did not identify specifically what portions of the plaintiff’s testimony were not

20
21

credible or specifically identify what medical evidence and other evidence in the record

22

undermined her testimony. This was not a specific, clear and convincing reason for rejecting her

23

testimony. Burrell v. Colvin, 775 F.3d 1133, 1138 (9th Cir. 2014).

24
25
26
27
378

AR 857.

28
ORDER – No. 18-cv-01198-LB

47

1

5. Whether the ALJ Erred by Relying on VE Testimony
The plaintiff argues that the VE testimony is not substantial evidence because there are

2
3

inconsistencies between the VE’s testimony as reflected in the transcript and the ALJ’s description

4

of the testimony in her written opinion.379
A VE’s testimony may lose its evidentiary value if the hypothetical posed by the ALJ fails to

5
6

include a claimant’s limitations. See Ross v. Berryhill, 711 Fed. Appx. 384, 387 (9th Cir. 2017).

7

Here, the VE’s recommendations were based on hypotheticals posed by the ALJ. Those

8

hypotheticals included a few of the physical limitations discussed by Dr. Gesuk and none of the

9

mental limitations discussed by Dr. Furze.380
As discussed above, the ALJ committed reversible error in failing to discuss the plaintiff’s

10

United States District Court
Northern District of California

11

treating rheumatologist and failed to provide legally sufficient reasons for discounting the

12

plaintiff’s testimony and the medical-opinion evidence provided by Drs. Furze and Smith. Thus,

13

“it follows that the hypothetical the ALJ posed to the vocational expert is potentially flawed due to

14

a failure to include the limitations” contained in that testimony. Id. (citing Bray v. Comm’r of Soc.

15

Sec. Admin., 554 F.3d 1219, 1228 (9th Cir. 2009) (“If an ALJ’s hypothetical does not reflect all of

16

the claimant’s limitations, then the expert’s testimony has no evidentiary value to support a

17

finding that the claimant can perform jobs in the national economy.”)) The court holds that the

18

ALJ erred in relying on this flawed VE testimony.

19
20
21
22
23
24
25
26
27

379

Mot. – ECF No. 15 at 15.

28

380

See AR 888–89.

ORDER – No. 18-cv-01198-LB

48

CONCLUSION

1
2

The plaintiff’s motion for summary judgment is granted, and the Commissioner’s cross-

3

motion for summary judgment is denied. The court remands the case for reconsideration

4

consistent with this order.

5
6

IT IS SO ORDERED.

7

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

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9
10

United States District Court
Northern District of California

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ORDER – No. 18-cv-01198-LB

49