Mendoza v. Berryhill

Filing 25

ORDER by Judge Laurel Beeler granting 19 Motion for Summary Judgment; denying 22 Motion for Summary Judgment. In the attached order, the court grants the plaintiff's motion, denies the Commissioner's motion, and remands for further proceedings. (lblc5S, COURT STAFF) (Filed on 9/8/2020)

Case 3:19-cv-02509-LB Document 25 Filed 09/08/20 Page 1 of 22

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

NORTHERN DISTRICT OF CALIFORNIA

10

San Francisco Division

United States District Court
Northern District of California

11

S.M.,

Case No. 19-cv-02509-LB
Plaintiff,

12
v.

13
14

ANDREW SAUL ACTING
COMMISSIONER OF SOCIAL
SECURITY,

15

Defendant.

16

ORDER GRANTING PLAINTIFF’S
MOTION FOR SUMMARY
JUDGMENT AND DENYING
COMMISSIONER’S CROSS-MOTION
FOR SUMMARY JUDGMENT
Re: ECF Nos. 19 & 22

17
INTRODUCTION

18

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

19
20

Security Administration denying her claim for supplemental-security income (“SSI”) benefits

21

under Title XVI of the Social Security Act (“SSA”).1 The plaintiff moved for summary judgment.2

22

The Commissioner opposed the motion and filed a cross-motion for summary judgment.3 Under

23

Civil Local Rule 16-5, the matter is submitted for decision by this court without oral argument.

24
25
26

1

27

2

Mot. – ECF No. 19.

28

3

Cross-Mot. – ECF No. 22.

Compl. – ECF No. 1 at 2; Mot. – ECF No. 19 at 3. Citations refer to material in the Electronic Case
File (“ECF”); pinpoint citations are to the ECF-generated page numbers at the top of documents.

ORDER – No. 19-cv-02509-LB 

Case 3:19-cv-02509-LB Document 25 Filed 09/08/20 Page 2 of 22

1

The court grants the plaintiff’s motion, denies the Commissioner’s motion, and remands for

2

further proceedings.

3
STATEMENT

4
5

1. Procedural History
On February 20, 2015, the plaintiff applied for SSI benefits under Title XVI of the SSA.4 She

6

alleged disability beginning on January 1, 2015 from the following impairments: anger issues;

8

migraines; insomnia; and bipolar disorder.5 Her claim was denied initially and on reconsideration.6

9

The plaintiff requested a hearing before an Administrative Law Judge (“ALJ”), and one was

10

held on October 4, 2017, where a vocational expert (“VE”) testified.7 On March 14, 2018, the ALJ

11
United States District Court
Northern District of California

7

held a second hearing because the plaintiff did not appear at the first hearing.8 The ALJ issued an

12

unfavorable decision on April 4, 2018.9 The Appeals Council denied the plaintiff’s request for

13

review on March 14, 2019.10
The plaintiff timely filed this action on May 9, 2019 and subsequently moved for summary

14
15

judgment.11 The Commissioner opposed the motion and filed a cross-motion for summary

16

judgment.12 All parties consented to magistrate-judge jurisdiction.13

17
18
19
20
21

4

AR 48. Administrative Record (“AR”) citations refer to page numbers in the bottom right-hand
corner of the AR.

5

AR 48–49.

6

AR 57, 72.

7

AR 19.

24

8

Id.

25

9

AR 30.

22
23

10

AR 3.

11

Compl. – ECF No. 1; Mot. – ECF No. 19.

27

12

Cross-Mot. – ECF No. 22.

28

13

Consents – ECF Nos. 11, 14.

26

ORDER – No. 19-cv-02509-LB

2 

Case 3:19-cv-02509-LB Document 25 Filed 09/08/20 Page 3 of 22

1

2. Summary of Administrative Record

2

2.1

Medical Records

3

The plaintiff alleged that she was disabled because of her anger issues, bipolar disorder,

4

migraines, and insomnia.14 The plaintiff submitted the following records in support of her claim:

5

(1) records from Santa Rita Jail from April 25, 2013 to July 23, 2013;15 (2) records from Sausal

6

Creek Outpatient Clinic, where she was treated for bipolar disorder, anxiety, and amphetamine and

7

marijuana dependence;16 (3) records from the Schuman-Liles Clinic, where she was treated for

8

mood disorder and post-traumatic stress disorder (“PTSD”);17 (4) a mental status exam by Paul

9

Martin, Ph.D.;18 and (5) records from John George Psychiatric Hospital.19
Because the plaintiff’s appeal involves her challenge of the ALJ’s assessment of the opinion of

10

United States District Court
Northern District of California

11

examining psychologist Dr. Martin and the plaintiff’s function reports, this order fully recounts

12

these parts of the record. Because the parties also reference the plaintiff’s treatments from Michael

13

Hipolito, M.D., this order also summarizes these records.
2.1.1

14

Michael Hipolito, M.D., treated the plaintiff four times from September 2, 2015 to August 3,

15
16

2016.20 On her initial visit, her chief complaint was anxiety.21
Dr. Hipolito conducted a mental-health status exam on each visit.22 Over an eleven-month

17
18

Michael Hipolito, M.D. — Treating Psychiatrist

period, Dr. Hipolito observed that the plaintiff had normal impulse control, normal thought

19
20
21
14

AR 48.

15

AR 327–48.

16

AR 349–59.

24

17

AR 360–64, 384–99, 465–79.

25

18

AR 365–71.

19

AR 377–83.

20

AR 386, 391, 465, 469.

27

21

AR 392.

28

22

AR 387–88, 393, 467, 471.

22
23

26

ORDER – No. 19-cv-02509-LB

3 

Case 3:19-cv-02509-LB Document 25 Filed 09/08/20 Page 4 of 22

1

process and content, normal speech, fair insight and judgment, good eye contact, good grooming,

2

and no suicidal or homicidal ideations.23
The plaintiff experienced some improvements while she was on medication. For example, on

3
4

September 2, 2015, the plaintiff told Dr. Hipolito that she “felt more relaxed” and that the

5

medications were helpful with no side effects.24 She still complained of anxiety.25

6

On February 11, 2016 the plaintiff’s condition worsened. She had been “off meds for one

7

month” and was “on edge.”26 Her sleep was “fair,” her nightmares had returned, she endorsed a

8

depressed mood, and her anxiety was “high.”27 She did not report any auditory hallucinations,

9

which she previously had experienced.28 On August 3, 2016, the plaintiff had been off her
medications for two-and-a-half months and was feeling “somewhat depressed.”29 Dr. Hipolito

11
United States District Court
Northern District of California

10

described her mood as “dysthymic” and “reactive.”30
Dr. Hipolito diagnosed the plaintiff with “unspecified mood (affective) disorder” and “[p]ost-

12
13

traumatic stress disorder, chronic.”31 He prescribed her Geodon, prazosin, and trazodone.32 He

14

also gave her a GAF score of 45.33

15
16
17
18
23

AR 387–88, 393, 467, 471.

24

AR 393.

25

AR 392.

21

26

AR 470.

22

27

Id.

28

AR 387, 470.

29

AR 467.

24

30

Id.

25

31

Id.

32

AR 468.

19
20

23

26

33

27
28

AR 467. A GAF score purports to rate a subject’s mental state and symptoms; the higher the rating,
the better the subject’s coping and functioning skills. Garrison v. Colvin, 759 F.3d 995, 1002 n.4 (9th
Cir. 2014). A person with a GAF score of 41 and 51 “describes ‘serious symptoms’ or ‘any serious
impairment in social, occupational, or school functioning.” id.
ORDER – No. 19-cv-02509-LB

4 

Case 3:19-cv-02509-LB Document 25 Filed 09/08/20 Page 5 of 22

2.1.2

1

Paul Martin, Ph.D. — Examining Psychologist

On July 13, 2015, Dr. Martin performed a psychological evaluation of the plaintiff.34 He

2
3

considered her a “fair historian.”35 He noted the plaintiff’s adequate grooming.36 She “made good

4

eye contact,” had “normal” facial expressions, and was “100% intelligible.”37 The plaintiff

5

reported taking Geodon, prazosin, and trazodone. She used methamphetamine “for about two or

6

three days” and denied using other drugs. The plaintiff had a history of psychiatric hospitalizations

7

and suicidal ideations, but no suicide attempts.38 She denied suicidal ideations and

8

hallucinations.39 Dr. Martin noted that she had the following daily activities:
The claimant is unable to prepare simple meals[,] . . . do light household chores[,] . . .
make change at the store[,]. . . take public transportation . . . [or] drive a car. She does not
have a valid driver’s license. The claimant reportedly spends the day mostly at home
resting and taking care of basic needs. She lives in a sober living house.40

9
10

United States District Court
Northern District of California

11

The plaintiff complained of bipolar disorder and PTSD. She had “mood swings characterized

12
13

by crying spells and rage.” She was “easily emotional and overwhelmed . . . [and] frequently

14

[became] hyperactive.” Her “expanded moods last[ed] only approximately one hour . . . [and] she

15

often fe[lt] depressed . . . for an entire day.”41 Dr. Martin also noted that the plaintiff had a “history

16

of trauma throughout her life.”42 “[S]he reported having flashbacks, reoccurring dreams,

17

hypervigilance, hyper startle response, and [that] she [was] easily triggered.”43 She experienced

18
19
20
21

34

AR 365.

22

35

Id.

36

AR 367.

37

Id.

24

38

AR 366.

25

39

AR 367.

40

Id.

41

AR 365

27

42

AR 365–66.

28

43

AR 366.

23

26

ORDER – No. 19-cv-02509-LB

5 

Case 3:19-cv-02509-LB Document 25 Filed 09/08/20 Page 6 of 22

1

“mood swings triggered by memories,” and anxiety.44 When asked about her mood, the plaintiff

2

replied, “I feel numb.”45
Dr. Martin found that the plaintiff’s attention and memory were “adequate,” her insight and

3
4

judgment were “fair,” her thought content was “normal,” and her thought process was

5

“[o]rganized, coherent, linear and goal directed.”46
The plaintiff’s psychological-functioning tests showed the following: (1) she had difficulty

7

with attention, concentration, and language-based skills; (2) she had “mild difficulty with new

8

learning and memory;” and (3) she had “significant difficulty with sustained attention and[]

9

mental tracking.”47 Dr. Martin concluded that she was not significantly limited in “performing

10

detailed and complex tasks versus simple and repetitive tasks.” The plaintiff had the following

11
United States District Court
Northern District of California

6

mild limitations: (1) ability to maintain regular attendance in the workplace; (2) ability to perform

12

work activities without special or additional supervision; and (3) ability to accept instructions from

13

supervisors. Her ability to perform work on a consistent basis and ability to interact with

14

coworkers and the public were moderately limited. She had the following marked limitations: (1)

15

her ability to complete a normal workday or workweek without interruptions resulting from the

16

claimant’s psychiatric condition; and (2) her ability to deal with the usual stresses encountered in a

17

competitive work environment.48
Dr. Martin diagnosed the plaintiff with PTSD, chronic and mood disorder (not otherwise

18
19

specified), and gave her a GAF score of 55.49

20
21
22
44

Id.

45

AR 367.

24

46

Id.

25

47

AR 368–69.

48

AR 370.

23

26

49

27
28

AR 369. A person with a GAF score of 51 to 60 may connote “moderate symptoms” (e.g. a flat and
circumstantial speech and occasional panic attacks) or moderate difficulty in social, occupational, or
school and chores-related functioning (e.g. few friends and conflicts with peers or co-workers).
Garrison, 759 F.3d at 1002 n.4.
ORDER – No. 19-cv-02509-LB

6 

Case 3:19-cv-02509-LB Document 25 Filed 09/08/20 Page 7 of 22

1

2.2

Non-Medical Records

2

The plaintiff submitted two function reports—one on May 28, 2015, and another on

3

October 21, 2015.50

4

2.2.1

May 28, 2015 Function Report

In her May 28, 2015 function report, the plaintiff explained that her symptoms affected her

5

memory and concentration and her ability to follow instructions, get along with others, complete

7

tasks, and deal with authority.51 She described problems with sleeping and nightmares that

8

affected her thinking.52 She said that she felt “really depressed” and that her “mind [wa]s speeding

9

and [she] just c[ouldn]’t stay still[.]”53 She described feeling paranoid and reported that she had

10

trouble getting along with family and friends because her “character change[d] quick[ly] [from]

11
United States District Court
Northern District of California

6

[her] bypolar [sic] and that even freak[ed] [her] out sometimes.”54 She “fe[lt] like people stare[d]

12

at [her] or talk[ed] about [her],” and she once “heard things that were not seeming real.”55 She

13

found changes in routine stressful.56
For daily activities, the plaintiff could drive, run errands (such as grocery shopping or going to

14
15

the post office), and do light housekeeping without assistance.57 She tried to make three or four

16

meals per day, and each meal took her around an hour-and-a-half to prepare.58 Sometimes she

17

would “get stuck in front of the food and have to reme[m]ber [she] was going to eat.”59 She had no

18

problems with personal care.60 She attended daily Alcoholics Anonymous meetings and saw her

19
20
50

AR 237–44, 255–63.

21

51

AR 242–43.

22

52

AR 237.

53

AR 238.

54

AR 238, 242.

24

55

AR 244.

25

56

AR 243.

57

AR 236.

58

AR 239.

27

59

Id.

28

60

Id.

23

26

ORDER – No. 19-cv-02509-LB

7 

Case 3:19-cv-02509-LB Document 25 Filed 09/08/20 Page 8 of 22

1

mom and son every day.61 She shopped for groceries twice a month, could pay bills, and count

2

change. She did not need reminders to take her medicine.62 She could not use a checkbook or

3

handle a savings account.63
2.2.2

4

October 21, 2015 Function Report

On October 21, 2015, the plaintiff submitted another function report.64

6

Her symptoms remained similar to those she previously reported. Her medications made her

7

“shaky” and feel “slow.”65 Her anxiety “ma[de] it hard . . . to go out and talk to people” and she

8

had “trouble concentrating and completing tasks.”66 Her anxiety made her mind race, and she still

9

reported paranoia, insomnia, and nightmares.67 She had trouble following written instructions: “I

10

need to re-read thing[s] maybe a dozen times before I understand.”68 For spoken instructions, she

11
United States District Court
Northern District of California

5

often needed people to repeat themselves.69 The plaintiff was taking trazodone, Geodone, and

12

what she described as “nightmare medicine.”70
The plaintiff described some new symptoms. She reported waking up “angry and irritable.”71

13
14

She struggled to wake up on time and had a “very low” appetite, and when she showered, she

15

would turn the water on and off because she felt like someone was talking to her. 72 She was

16

fearful of “crowds, new people, and new places.”73 She avoided people to deal with her stress.74

17
18

61

AR 240.

19

62

AR 239.

63

AR 240.

64

AR 255–63.

21

65

AR 255.

22

66

Id.

67

AR 256.

68

AR 260.

24

69

Id.

25

70

AR 262.

71

AR 256.

72

AR 255–56.

27

73

AR 261.

28

74

Id.

20

23

26

ORDER – No. 19-cv-02509-LB

8 

Case 3:19-cv-02509-LB Document 25 Filed 09/08/20 Page 9 of 22

Her reported daily activities were similar to those in her May function report. Chores still took

1
2

her a “really long” time.75 She was able to leave the house, cook a few meals per day, drive

3

herself, visit her family, manage her own money, and had no issues with personal care.76
Unlike her May report, she now needed reminders to take her medicine, and to start and

4
5

complete chores.77 She also needed reminders on her phone to go places.78 Her mom took her

6

grocery shopping, whereas in May she reported doing so alone.79 This “[took] up to two hours”

7

because she got “distracted by people and tr[ied] to avoid them[;] [her] mom ha[d] to remind [her]

8

what [she was] buying.”80 When she went out, she sometimes needed a roommate to accompany

9

her because of her anxiety.81 The plaintiff could now use a checkbook and handle a savings
account.82 Her new hobbies included reading and watching TV.83 Finally, she fed her goldfish

11
United States District Court
Northern District of California

10

“once or twice a week.”84

12
13

3. Administrative Proceedings

14

3.1

Disability Determination Explanation (“DDE”)

15

During the administrative process, non-examining consultants generated disability-

16

determination explanations (“DDE”), first at the initial level, and then at the reconsideration

17

level.85

18
19
20
75

AR 256–57.

21

76

AR 256–59.

22

77

AR 257.

78

AR 259.

79

AR 258.

24

80

Id.

25

81

Id.

82

Id.

83

AR 259.

27

84

AR 256.

28

85

AR 48–57 (initial), 59–73 (reconsideration).

23

26

ORDER – No. 19-cv-02509-LB

9 

Case 3:19-cv-02509-LB Document 25 Filed 09/08/20 Page 10 of 22

At the initial level, Tawnya Brode, PsyD., found that the plaintiff had substance-addiction

1
2

disorder, a severe impairment.86 Dr. Brode did not assess the plaintiff’s residual-functional

3

capacity (“RFC”) but found that the plaintiff was not disabled.87

4

On reconsideration, Mercedes DeCubas, Ph.D., found that the plaintiff had the following

5

severe impairments: substance addiction disorder, anxiety disorder, and affective disorder.88
Dr. DeCubas assessed the plaintiff’s mental RFC.89 The plaintiff was moderately limited in the

6
7

following areas: (1) ability to understand and remember detailed instructions; (2) ability to carry

8

out detailed instructions; (3) ability to maintain attention and concentration for extended periods;

9

(4) ability to complete a normal workday and workweek without interruptions from
psychologically based symptoms and to perform at a consistent pace without an unreasonable

11
United States District Court
Northern District of California

10

number and length of rest periods; (5) ability to interact appropriately with the general public; (6)

12

ability to accept instructions and respond appropriately to criticism from supervisors; and (7)

13

ability to respond appropriately to changes in the work setting.90
The plaintiff could understand, remember, and carry out simple instructions, follow a

14
15

schedule, and sustain goal-directed activity.91 “Timed work or work requiring quotas would not be

16

suitable” for the plaintiff, and that her “[a]ttention [and] concentration could vary throughout the

17

day.”92 Additionally, she “need[ed] a setting with minimal interpersonal demands” and “may be

18

hypersensitive to negative feedback.”93 The plaintiff may “prefer a setting with minimal changes

19
20
21
22
86

AR 55.

87

AR 56–57.

24

88

AR 67.

25

89

AR 69–71.

90

AR 70–71.

91

AR 69–70.

27

92

AR 70.

28

93

AR 71.

23

26

ORDER – No. 19-cv-02509-LB

10 

Case 3:19-cv-02509-LB Document 25 Filed 09/08/20 Page 11 of 22

1

[or] demands in order to avoid frustration.”94 The agency again found the plaintiff to be not

2

disabled.95

3

3.2

4

The ALJ initially held a hearing on October 4, 2017.96 The plaintiff’s attorney, Raymond

5

Administrative Hearing

Austin, and VE Ron Fleck were present, but not the plaintiff. 97
VE Ron Fleck testified at the hearing.98 The plaintiff had no past relevant work.99 The ALJ

6
7

posed the first hypothetical: “[an] individual of the [c]laimant’s age and education . . . limited to

8

performing simple, routine tasks, limited to occasional interaction with coworkers and the public

9

and limited to simple, work-related decisions.”100 Mr. Fleck testified that such a person could be

10

an almond blancher.101

United States District Court
Northern District of California

11

The ALJ posed a second hypothetical, which was the same as the first except that the person

12

was limited to “simple or detailed but non-complex tasks.”102 Mr. Fleck testified that the following

13

jobs would be available: (1) clothing layer; (2) flower-picker; and (3) almond blancher.103
The ALJ posed a third hypothetical: “a person . . . limited to simple, routine and repetitive

14
15

tasks and limited to occasional interaction with the public.”104 Mr. Fleck testified, in addition to

16

the previously mentioned jobs, the following jobs would be available: (1) vegetable-harvest

17

worker; (2) bakery wrapper; and (3) cleaner.105

18
19

94

Id.

20

95

AR 72.

96

AR 19.

21

97

22

Id. The ALJ held another hearing on March 17, 2018, to allow the plaintiff to appear. The plaintiff
again failed to appear. The record does not contain a transcript for the March hearing. Id.
98

AR 39–47.

99

23

AR 40.

24

100

Id.

25

101

AR 41.

102

AR 42.

103

AR 42–43.

27

104

AR 43.

28

105

AR 43–44.

26

ORDER – No. 19-cv-02509-LB

11 

Case 3:19-cv-02509-LB Document 25 Filed 09/08/20 Page 12 of 22

The ALJ posed a fourth hypothetical where a person had the same limitations listed in the third

1
2

hypothetical, but was also off-task fifteen percent of the time.106 Mr. Fleck testified that no job

3

would be available to such a person.107

4

3.3

5

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

6

plaintiff was disabled and concluded she was not.108
At step one, the ALJ found that that the plaintiff had not engaged in substantial gainful activity

7
8

since her application date of February 20, 2015.109
At step two, the ALJ found that the plaintiff had the following severe impairments: mood

9
10

disorder, PTSD, and substance use disorder.110
At step three, the ALJ found that the plaintiff had no impairment or combination of

United States District Court
Northern District of California

11
12

Administrative Findings

impairments that met or medically equaled the severity of a listed impairment.111
Before reaching step four, the ALJ determined that the plaintiff had the RFC to “perform a full

13
14

range of work at all exertional levels but . . . is limited to performing simple, routine, and

15

repetitive tasks . . . [and] occasional interaction with the public.”112

16

At step four, the ALJ concluded that the plaintiff had no past relevant work.113

17

At step five, the ALJ held that the following jobs were available to the plaintiff given her RFC:

18

(1) vegetable-harvest worker; (2) cleaner; and (3) racker.114

19

The ALJ found the plaintiff to be “not disabled.”115

20
21

106

AR 44–45.

22

107

AR 45.

108

AR 30.

109

AR 21.

24

110

Id.

25

111

AR 22.

112

AR 24.

113

AR 29.

27

114

AR 29–30.

28

115

AR 30.

23

26

ORDER – No. 19-cv-02509-LB

12 

Case 3:19-cv-02509-LB Document 25 Filed 09/08/20 Page 13 of 22

STANDARD OF REVIEW

1
2

Under 42 U.S.C. § 405(g), district courts have jurisdiction to review any final decision of the
Commissioner if the claimant initiates a suit within sixty days of the decision. A court may set

4

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

5

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

6

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

7

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

8

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

9

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

10

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

11
United States District Court
Northern District of California

3

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

12

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

13

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

14

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

15

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

16
GOVERNING LAW

17
18

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

19

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

20

to last for a continuous period of not less than twelve months;” and (2) the “impairment or

21

impairments are of such severity that he is not only unable to do his previous work but cannot,

22

considering his age, education, and work experience, engage in any other kind of substantial

23

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

24

five-step analysis for determining whether a claimant is disabled within the meaning of the Social

25

Security Act is as follows. Tackett, 180 F.3d at 1098–99 (citing 20 C.F.R. § 404.1520).

26
27

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

28
ORDER – No. 19-cv-02509-LB

13 

Case 3:19-cv-02509-LB Document 25 Filed 09/08/20 Page 14 of 22

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).

1
2

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).

3
4

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).

5
6
7
8

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).

9
10

United States District Court
Northern District of California

11
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.

12
13
14
15
16
17

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

18

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

19

1986).

20
21

ANALYSIS

22

The plaintiff contends that the ALJ erred by (1) underweighing the opinion of examining

23

psychologist Paul Martin, Ph.D., (2) overweighing non-examining state consultants’ opinions, and

24

(3) failing to base the plaintiff’s RFC on substantial evidence.116 For the reasons stated below, the

25

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

26

motion, and remands the case for further proceedings.

27
28

116

Mot. – ECF No. 19. at 7–15.

ORDER – No. 19-cv-02509-LB

14 

Case 3:19-cv-02509-LB Document 25 Filed 09/08/20 Page 15 of 22

1

1. Whether the ALJ Erred in Weighing the Medical-Opinion Evidence
The plaintiff contends that the ALJ failed to provide specific and legitimate reasons for

2
3

according partial weight to examining psychologist Dr. Martin, and great weight to the opinions of

4

non-examining psychologists Drs. Brode and DeCubas.117 The court remands on this ground.
The ALJ is responsible for “‘resolving conflicts in medical testimony, and for resolving

5
6

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

7

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

8

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

9

20 C.F.R. § 416.927(b); see Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (“[A] reviewing
court must consider the entire record as a whole and may not affirm simply by isolating a specific

11
United States District Court
Northern District of California

10

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

12
13

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

14

F.3d 1194, 1198 (9th Cir. 2008) (citing 20 C.F.R. § 404.1527).118 Social Security regulations

15

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

16

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

17

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

18

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

19

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

20

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

21
22

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

23

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

24
25

117

26

118

27
28

Id. at 8–13.

The Social Security Administration promulgated new regulations effective March 27, 2017. The
previous version, effective to March 26, 2017, applies here. See 20 C.F.R. § 404.614(a) (“[A]n
application for benefits, or a written statement, request, or notice is filed on the day it is received by an
SSA employee at one of our offices or by an SSA employee who is authorized to receive it at a place
other than one of our offices.”).
ORDER – No. 19-cv-02509-LB

15 

Case 3:19-cv-02509-LB Document 25 Filed 09/08/20 Page 16 of 22

1

evidence.” Ryan, 528 F.3d at 1198 (alteration in original) (cleaned up). By contrast, if the ALJ

2

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

3

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

4

record.” Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (cleaned up); see Garrison, 759

5

F.3d at 1012 (“If a treating or examining doctor’s opinion is contradicted by another doctor’s

6

opinion, an ALJ may only reject it by providing specific and legitimate reasons that are supported

7

by substantial evidence.”) (cleaned up). “The opinions of non-treating or non-examining

8

physicians may [] serve as substantial evidence when the opinions are consistent with independent

9

clinical findings or other evidence in the record.” Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir.

10

United States District Court
Northern District of California

11

2002).
An ALJ errs when he “rejects a medical opinion or assigns it little weight” without explanation

12

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

13

boilerplate language that fails to offer a substantive basis for his conclusion.” Garrison, 759 F.3d

14

at 1012–13. “[F]actors relevant to evaluating any medical opinion, not limited to the opinion of the

15

treating physician, include the amount of relevant evidence that supports the opinion and the

16

quality of the explanation provided[,] the consistency of the medical opinion with the record as a

17

whole [and] the specialty of the physician providing the opinion . . . ” Orn, 495 F.3d at 631 (citing

18

20 C.F.R. § 404.1527(d)(3)–(6)); see also Magallanes v. Bowen, 881 F.2d 747, 753 (9th Cir.

19

1989) (an ALJ need not agree with everything contained in the medical opinion and can consider

20

some portions less significant than others).

21

1.1

Dr. Martin

22

Because Dr. Martin’s opinion was contradicted by the opinions of the state consultants, the

23

ALJ was required to provide specific and legitimate reasons in partially rejecting Dr. Martin’s

24

opinion. He did not do so.

25

In rejecting Dr. Martin’s findings, the ALJ reasoned that they were “inconsistent with the

26

opinions of the State agency psychological consultants, inconsistent with the claimant’s function

27
28
ORDER – No. 19-cv-02509-LB

16 

Case 3:19-cv-02509-LB Document 25 Filed 09/08/20 Page 17 of 22

1

report, and inconsistent with the medical evidence of record as a whole.” 119 This conclusory

2

statement, with only a string citation to the record and no interpretation of the medical evidence, is

3

insufficient. See, e.g., Cox v. Colvin, No. 15-cv-00190-JSC, 2015 WL 8596436, at *11 (N.D. Cal.

4

Dec. 14, 2015) (“before rejecting a medical opinion an ALJ must do more than merely identify

5

conflicting evidence”) (cleaned up); Cox v. Berryhill, No. C 16-07183 WHA, 2018 WL 1536668,

6

at *4 (N.D. Cal. Mar. 29, 2018) (“reference to 58 pages of treatment notes, without discussion,

7

does not satisfy the ALJ’s burden to set out a detailed and thorough summary of the facts and

8

conflicting clinical evidence, state his interpretation hereof, and make findings”) (cleaned up).
Similarly, the ALJ did not explain why the plaintiff’s function reports were inconsistent with

10

Dr. Martin’s opinion. For example, the plaintiff described struggling to wake up on time, having

11
United States District Court
Northern District of California

9

difficulty with concentrating and completing tasks, experiencing anxiety around others, and

12

needing reminders to take her medicine.120 The ALJ did not explain why this is inconsistent with

13

Dr. Martin’s finding of marked limitation in the plaintiff’s ability to complete a normal workday

14

without interruption or deal with the usual stresses in a competitive work environment.121 Cf.

15

Eiswald v. Berryhill, No. 18-cv-03714-LB, 2019 WL 3068339, at *22 (N.D. Cal. July 12, 2019)

16

(the ALJ erred when he failed to “provide more specific details as to why working part-time as a

17

housekeeper . . . is inconsistent with [the doctor’s] report indicating the plaintiff has a market

18

limitation in concentration and stability”).
Moreover, the ALJ erred when he found that the opinion was “undermined because the

19
20

claimant was not forthcoming about her substance abuse, which resulted in Dr. Martin’s not being

21

able to ask the claimant whether her anger and lashing out were related to her methamphetamine

22

use.”122 This mischaracterizes the evidence. Dr. Martin knew about the plaintiff’s past drug use.

23

He reported that the plaintiff used methamphetamine for “about two or three days” and was in a

24
25
119

AR 28.

120

AR 255–59.

27

121

AR 370.

28

122

AR 28.

26

ORDER – No. 19-cv-02509-LB

17 

Case 3:19-cv-02509-LB Document 25 Filed 09/08/20 Page 18 of 22

1

sober living environment.123 It is thus unclear how the plaintiff was not “forthcoming.” See Dixon

2

v. Saul, 411 F. Supp. 3d 837, 850–51 (N.D. Cal. 2019) (the ALJ erred in rejecting examining

3

physician’s opinion as uninformed regarding the plaintiff’s drug use, where the physician

4

“express[ly]” acknowledged the “past [drug] use and the lack of present use”).
In sum, the ALJ did not provide specific and legitimate reasons to discount Dr. Martin’s

5
6

opinion.

7

1.2

8

The ALJ also did not provide specific and legitimate reasons for giving great weight to non-

9

examining psychologists Drs. Brode and DeCubas.
The ALJ gave these opinions great weight because:

10

[T]hey are well supported, consistent with the limitations noted in the record, and
consistent with the medical records, which showed symptoms of bipolar disorder,
posttraumatic stress disorder, mood swings, anxiety, agitation, family conflict, and racing
thoughts, but a normal mood, logical thoughts processes, a normal affect, adequate
language skills, good eye contact, cooperativeness, normal thought content, orientation times
four, alertness, and no delusions, hallucinations, suicidal ideations, or homicidal ideations.
Great weight is also given to the opinions of the State agency psychological medical
consultants as they are familiar with, and have knowledge of, the criteria used to
determine disability under the Social Security Act, and they are familiar with the
claimant’s record.124

United States District Court
Northern District of California

11
12
13
14
15
16
17
18
19

Drs. Brode & DeCubas

First, to the extent the ALJ found the opinions consistent with the record, he did not discuss
other parts of the record that were apparently contradictory. For example, on August 3, 2016,
Dr. Hipolito noted that the plaintiff reported that, at night, she “hears someone trying to call [her]

20

attention, but not voices.”125 The ALJ does not reconcile this with his finding that the record

21

shows “no delusions [or] hallucinations.”126 Second, the ALJ’s finding that the consultants’

22
23

opinions warranted great weight because they were familiar with the record and the SSA criteria is
similarly conclusory and insufficient. Cf. Keelen v. Comm’n of Soc. Sec., No. 19-cv-00461-LB,

24
25
123

AR 366.

124

AR 27–28 (internal citations omitted).

27

125

AR 466.

28

126

AR 28.

26

ORDER – No. 19-cv-02509-LB

18 

Case 3:19-cv-02509-LB Document 25 Filed 09/08/20 Page 19 of 22

1

2020 WL 1306982, at *14 (N.D. Cal. Mar. 19, 2020) (the ALJ erred in according great weight to a

2

medical expert solely because the expert “had the opportunity to review all of the medical

3

evidence of record and his opinion is consistent with the record as a whole”).
In sum, the ALJ erred by failing to provide specific and legitimate reasons in according great

4
5

weight to the non-examining psychologists.

6
2. Whether the ALJ Erred by Assessing the Plaintiff’s RFC
7
The plaintiff argues that the ALJ erred in his RFC determination because (1) he failed to
8
incorporate limitations reported by Dr. DeCubas, and (2) he improperly discredited the plaintiff’s
9

reported activities of daily living.127 The court remands on this ground too.

10
“[T]he ALJ is responsible for translating and incorporating clinical findings into a succinct
11
United States District Court
Northern District of California

RFC.” Rounds v. Comm’r of Social Sec. Admin., 807 F.3d 996, 1006 (9th Cir. 2015); see also
12
Vertigan v. Halter, 260 F.3d 1044, 1049 (9th Cir. 2001) (“it is the responsibility of the ALJ, not
13
the claimant’s physician, to determine residual functional capacity”). The ALJ’s determination of
14
a claimant’s RFC must be based on the medical opinions and the totality of the record. 20 C.F.R.
15
§§ 404.1527(d), 404.1546(c). Moreover, the ALJ is responsible for “‘determining credibility,
16
resolving conflicts in medical testimony, and for resolving ambiguities.’” Garrison, 759 F.3d at
17
1010 (quoting Andrews, 53 F.3d at 1039). In weighing and evaluating the evidence, the ALJ must
18
consider the entire case record, including each medical opinion in the record, together with the rest
19
of the relevant evidence. 20 C.F.R. § 416.927(b); see also Orn, 495 F.3d at 630 (“[A] reviewing
20
court must consider the entire record as a whole and may not affirm simply by isolating a specific
21
quantum of supporting evidence.”) (internal quotation marks and citation omitted). The “ALJ must
22
include all restrictions in the residual functional capacity [RFC] determination.” Lubin v. Comm’r
23
of Soc. Sec. Admin., 507 Fed. Appx. 709, 712 (9th Cir. 2013).
24
First, because the RFC relies on the medical evidence and the ALJ erred in weighing the
25
medical evidence (including the opinion of Dr. DeCubas), the court remands for reconsideration of
26
27
28

127

Mot. – ECF No. 19 at 13–15.

ORDER – No. 19-cv-02509-LB

19 

Case 3:19-cv-02509-LB Document 25 Filed 09/08/20 Page 20 of 22

1

the RFC too.

2

Second, the ALJ erred in discrediting the plaintiff based on her reported daily activities.128

3

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

4

at 1112 (9th Cir. 2012). “First, the ALJ must determine whether [the claimant has presented]

5

‘objective medical evidence of an underlying impairment which could reasonably be expected to

6

produce the pain or other symptoms alleged.’” Id. (quoting Vasquez, 572 F.3d at 591). Second, if

7

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

8

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

9

the severity of the claimant’s symptoms. Id. (internal quotation marks and citations omitted).
“At the same time, the ALJ is not ‘required to believe every allegation of disabling pain, or

10

United States District Court
Northern District of California

11

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

12

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

13

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

14

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

15

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

16

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

17

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

18

F.3d 1133, 1138 (9th Cir. 2014) (internal citation omitted); see, e.g., Morris v. Colvin, No. 16-CV-

19

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

20
21

reasonably be expected to cause the alleged symptoms, and there is no evidence of malingering,

22

the ALJ must provide specific, clear and convincing reasons for rejecting the plaintiff’s

23

statements.129 He did not do so.

24
25
26
27
28

128

AR 24–25. The Commissioner argues that the plaintiff failed to raise this argument. She did. The
plaintiff’s motion challenges the ALJ’s characterization and reliance on the plaintiff’s self-reported
activities of daily living. Mot. – ECF No. 19 at 14–15.
129

AR 24.

ORDER – No. 19-cv-02509-LB

20 

Case 3:19-cv-02509-LB Document 25 Filed 09/08/20 Page 21 of 22

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

1
2

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

3

it might be impossible to rest periodically or take medication.” Fair, 885 F.2d at 603 (citation

4

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

5

attempting to lead normal lives in the face of their limitations.” Reddick, 157 F.3d at 722.
The ALJ rejected the plaintiff’s reported symptoms of her disability because her functions

6
7

report noted that:
[S]he takes care of her goldfish, prepares her own meals, drives a car, cleans the
bathroom, goes grocery shopping, pays bills, counts change, handles a savings account,
uses a checkbook, reads, watches television, spends time with others, visits with her
family on a regular basis, does not need any special reminders to take care of her personal
needs and grooming, has never been fired or laid off from a job due to problems with
others, goes on Facebook, uses a smartphone, bathes herself, and dresses herself.130

8
9
10

United States District Court
Northern District of California

11
12

The ALJ does not explain, however, how these activities translate to a work setting or why they

13

are incompatible with the plaintiff’s reported limitations. See, e.g., Brown v. Berryhill, No. 16-cv-

14

04022-EMC, 2017 WL 4417516, at *10–12 (N.D. Cal. Oct. 4, 2017) (the ALJ erred when he “did

15

not explain why the[] relatively modest, simple tasks like microwaving meals, preparing salads

16

and soups, carrying light groceries . . . , and walking up to two blocks, provide an indication of

17

[the plaintiff’s] increased capabilities beyond those which [she] claimed”) (cleaned up); Cooper v.

18

Bowen, 815 F.2d 557, 561 (9th Cir. 1987) (“[d]isability does not mean that a claimant must

19

vegetate in a dark room excluded from all forms of human and social activity”) (cleaned up).
In sum, the court remands for reconsideration of the RFC.

20
21
22

3. Whether to Remand for Further Proceedings or Determination of Benefits
The court has “discretion to remand a case either for additional evidence and findings or for an

23
24

award of benefits.” McCartey v. Massanari, 298 F.3d 1072, 1076 (9th Cir. 2002) (citing Smolen,

25

80 F.3d at 1292); McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989) (“The decision whether

26
27
28

130

AR 25.

ORDER – No. 19-cv-02509-LB

21 

Case 3:19-cv-02509-LB Document 25 Filed 09/08/20 Page 22 of 22

1

to remand for further proceedings or simply to award benefits is within the discretion of [the]

2

court.”) (citing Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1987)).

3

Generally, “‘[i]f additional proceedings can remedy defects in the original administrative
proceeding, a social security case should be remanded.’” Garrison, 759 F.3d at 1019 (quoting

5

Lewin v. Schweiker, 654 F.2d 631, 635 (9th Cir. 1981)) (alteration in original); Treichler, 775 F.3d

6

at 1099, 1106 (“a reviewing court is not required to credit claimants’ allegations regarding the

7

extent of their impairments as true merely because the ALJ made a legal error in discrediting their

8

testimony;” if “the reviewing court simply cannot evaluate the challenged agency action on the

9

basis of the record before it, the proper course, except in rare circumstances, is to remand to the

10

agency for additional investigation or explanation.”) (citations omitted); see also Dominguez v.

11
United States District Court
Northern District of California

4

Colvin, 808 F.3d 403, 407 (9th Cir. 2015) (“Unless the district court concludes that further

12

administrative proceedings would serve no useful purpose, it may not remand with a direction to

13

provide benefits.”); McCartey, 298 F.3d at 1076 (remand for award of benefits is discretionary);

14

McAllister, 888 F.2d at 603 (remand for award of benefits is discretionary); Connett, 340 F.3d at

15

876 (finding that a reviewing court has “some flexibility” in deciding whether to remand).

16

Here, the court finds that remand is appropriate to “remedy defects in the original

17

administrative proceeding.” Garrison, 759 F.3d at 1019.

18
CONCLUSION

19
20
21

The court grants the plaintiff’s motion, denies the Commissioner’s cross-motion, and remands
for further proceedings consistent with this order.

22
23

IT IS SO ORDERED.

24

Dated: September 8, 2020
______________________________________
LAUREL BEELER
United States Magistrate Judge

25
26
27
28
ORDER – No. 19-cv-02509-LB

22