Scott v. Berryhill

Filing 22

ORDER by Magistrate Judge Donna M. Ryu granting in part 19 Plaintiff's Motion for Summary Judgment; denying 20 Defendant's Motion for Summary Judgment. Signed on 11/13/2018. (dmrlc1, COURT STAFF) (Filed on 11/13/2018)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JUDITH DEBORAH SCOTT,

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Case No. 17-cv-02832-DMR

Plaintiff,
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v.

ORDER ON CROSS MOTIONS FOR
SUMMARY JUDGMENT

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NANCY A. BERRYHILL,

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Re: Dkt. Nos. 19, 20

Defendant.

United States District Court
Northern District of California

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Plaintiff Judith Deborah Scott moves for summary judgment to reverse the Commissioner

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of the Social Security Administration’s (the “Commissioner’s”) final administrative decision,

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which found Scott not disabled and therefore denied her application for benefits under Titles II

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and XVI of the Social Security Act, 42 U.S.C. § 401 et seq. For the reasons stated below, the

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court grants Scott’s motion in part, denies the Commissioner’s motion, and remands this case for

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further proceedings.

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I.

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PROCEDURAL HISTORY
Scott filed applications for Social Security Disability Insurance (SSDI) benefits and

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supplemental security income (SSI) on March 20, 2012, alleging disability beginning January 1,

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2011. Her applications were initially denied on August 28, 2012 and again on reconsideration on

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May 7, 2013. Administrative Record (“A.R.”) 320-321, 322-330, 118-122, 126-131. Scott filed a

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request for a hearing before an Administrative Law Judge (ALJ) on May 28, 2013. A.R. 132-134.

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ALJ Nancy Lisewski held a hearing on July 27, 2015. A.R. 38-61.

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After the hearing, ALJ Lisewski issued a decision finding Scott not disabled. A.R. 17-31.

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The ALJ determined that Scott has the following severe impairments: alcohol abuse and

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depressive disorder, not otherwise specified. A.R. 23. The ALJ found that if Scott “stopped the

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substance use, the remaining limitations would not cause more than a minimal impact on [her]

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ability to perform basic work activities; therefore, [Scott] would not have a severe impairment or

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combination of impairments.” A.R. 25. The ALJ concluded that “[b]ecause the substance use

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disorder is a contributing factor material to the determination of disability, [Scott] has not been

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disabled within the meaning of the Social Security Act at any time from the alleged onset date

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through the date of this decision.” A.R. 30.
The Appeals Council denied Scott’s request for review on March 13, 2017. A.R. 1-6. The

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ALJ’s decision therefore became the Commissioner’s final decision. Taylor v. Comm’r of Soc.

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Sec. Admin., 659 F.3d 1228, 1231 (9th Cir. 2011). Scott then filed suit in this court pursuant to 42

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U.S.C. § 405(g).

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II.

To qualify for disability benefits, a claimant must demonstrate a medically determinable

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United States District Court
Northern District of California

THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS

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physical or mental impairment that prevents her from engaging in substantial gainful activity1 and

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that is expected to result in death or to last for a continuous period of at least twelve months.

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Reddick v. Chater, 157 F.3d 715, 721 (9th Cir. 1998) (citing 42 U.S.C. § 423(d)(1)(A)). The

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impairment must render the claimant incapable of performing the work she previously performed

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and incapable of performing any other substantial gainful employment that exists in the national

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economy. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)(2)(A)).
To decide if a claimant is entitled to benefits, an ALJ conducts a five-step inquiry. 20

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C.F.R. §§ 404.1520, 416.920. The steps are as follows:
1.

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At the first step, the ALJ considers the claimant’s work activity, if any. If the

claimant is doing substantial gainful activity, the ALJ will find that the claimant is not disabled.
2.

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At the second step, the ALJ considers the medical severity of the claimant’s

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impairment(s). If the claimant does not have a severe medically determinable physical or mental

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impairment that meets the duration requirement in [20 C.F.R.] § 416.909, or a combination of

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impairments that is severe and meets the duration requirement, the ALJ will find that the claimant

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is not disabled.

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Substantial gainful activity means work that involves doing significant and productive physical
or mental duties and is done for pay or profit. 20 C.F.R. §§ 404.1510, 416.910.
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3.

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At the third step, the ALJ also considers the medical severity of the claimant’s

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impairment(s). If the claimant has an impairment(s) that meets or equals one of the listings in 20

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C.F.R., Pt. 404, Subpt. P, App. 1 [the “Listings”] and meets the duration requirement, the ALJ will

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find that the claimant is disabled.
4.

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At the fourth step, the ALJ considers an assessment of the claimant’s residual

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functional capacity (“RFC”) and the claimant’s past relevant work. If the claimant can still do his

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or her past relevant work, the ALJ will find that the claimant is not disabled.
5.

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At the fifth and last step, the ALJ considers the assessment of the claimant’s RFC

and age, education, and work experience to see if the claimant can make an adjustment to other
work. If the claimant can make an adjustment to other work, the ALJ will find that the claimant is

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United States District Court
Northern District of California

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not disabled. If the claimant cannot make an adjustment to other work, the ALJ will find that the

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claimant is disabled.

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20 C.F.R. § 416.920(a)(4); 20 C.F.R. §§ 404.1520; Tackett, 180 F.3d at 1098-99.

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III.

FACTUAL BACKGROUND
Scott’s Testimony

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A.

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Scott testified that she was 61 on the date of the hearing. She spent the night before the

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hearing in a car that she borrowed from someone. She had lived with her mother before her

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mother moved to a care home. A.R. 42-43. Scott receives general assistance. She testified that

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she sells “odds and ends” and “thing that people throw out” at the flea market, even though it is “a

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lot of work,” because it “makes [her] feel like [she’s] doing something and not just, you know,

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sitting around.” A.R. 44. She testified that it is not very “lucrative”; for example, she made on

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$38 selling items at the flea market on the day before the hearing. A.R. 44. In describing the

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work at the flea market, Scott testified that there is “always something to do, like, to make sure

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that people aren’t stealing,” and that it is “a lot of lifting and it’s nonstop stuff.” A.R. 45. She

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also testified that she has a lot of foot pain “and the longer [she’s] on them the more they hurt,”

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and described the work as “taxing.” A.R. 45. She started selling items at the flea market when

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she needed to get rid of things that she could not afford to keep in storage. A.R. 46.

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Scott’s last paid position was at Berkeley Bowl, a job that offered health insurance.
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According to Scott, she took the position because she was “desperate to get [her] feet operated

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on,” so six months after starting she had surgery on one foot. A.R. 47. She was unable to take

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time off to have surgery on her other foot, so she “deliberately . . . got [herself] fired” so she could

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use COBRA for her second surgery. A.R. 47-48. Prior to that, she worked as a sous chef and was

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laid off shortly before the business closed. A.R. 46-47. Before that position she worked for

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California State Parks and was terminated following an alcohol relapse. A.R. 47.

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When asked why she is not currently working, Scott testified that she thinks that her

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“behavior is inappropriate sometimes.” She continued:
[F]or an example would be my behavior yesterday with—it was some
things happened and I got very, very angry and, you know, I was very
volatile. I just don’t think I handle the situation like normal people
handle things. . . . Little things seem really big to me.

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A.R. 48-49. Scott testified that those feelings happen more when she is under a lot of stress and

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testified about the difficulty of being homeless given her age and need for safety: “I just feel like

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I’m a fugitive, you know, I feel like I’m an animal, you know . . . I just feel like a crazed animal

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that’s running scared all the time.” A.R. 49.

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United States District Court
Northern District of California

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Scott testified about her use of alcohol, stating that she thinks that her drinking “is a

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symptom of something else,” that “[i]t’s just what I do to give up.” A.R. 50. She drinks because

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of “despondency and wanting just to give up, and that “[i]t’s not like drinking has made me—has

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caused these problems for me, it’s other problems that caused the drinking.” A.R. 50. Those

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problems include “heavy duty life stuff,” including her brother’s murder, her father’s death from

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cancer, her own experience of breast cancer, her “unexpected and painful divorce,” the death of

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five close friends, and the fact that she’s “seen a lot of tragedy.” A.R. 50. Scott testified that

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alcoholism runs in her family and that she no longer drinks. A.R. 51. She has been sober since

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May 2013, when her mother “had her final strokes” and it was a “pretty crazy time.” A.R. 51-52.

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She maintains her sobriety by attending Atheist Agnostic meetings and calling friends. A.R. 52.

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Scott testified that on an average day, she generally does “immediate things, survival type

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things,” such as making sure she eats. A.R. 53. Scott spends time with others in the homeless

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community and recently began riding a bicycle, which helps with her foot pain. A.R. 53-54. She

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takes Zoloft and was prescribed Neurontin, but does not take it because of side effects. A.R. 53.
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She takes ibuprofen for pain. A.R. 53.
Scott testified that she occasionally has difficulty finishing something she has started, and

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that she has trouble concentrating and remembering things. A.R. 55. She also has difficulty

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multi-tasking. As Scott testified, “[i]t’s like going to the supermarket and buying something used

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to be no problem. It’s like I feel like I’m taking forever to put everything back in my wallet, and I

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feel like I’m keeping—holding up the line. It just—everything seems hard.” A.R. 56.

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B.

Relevant Medical Evidence
1.

Nicholas Bagnell, Mental Health Trainee & Tenli Yavneh, Psy.D.

Nicholas Bagnell, a Mental Health Trainee (“MHT”) at Berkeley Mental Health,
completed a Mental Disorder Questionnaire Form on July 23, 2012, which was co-signed by

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United States District Court
Northern District of California

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Clinical Director Tenli Yavneh, Psy.D. A.R. 564-568. Bagnell wrote that he had been treating

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Scott on a weekly basis for three months. A.R. 568.

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Bagnell noted that Scott had been hospitalized numerous times for emergency psychiatric

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services, and that she reported “wanting to ‘be able to deal with life on life’s terms, to avoid

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continued self-medication with alcohol. Sort through and confront elements of grief and trauma.’”

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A.R. 564. Bagnell wrote that Scott is often tearful, fearful, and depressed. According to Bagnell,

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Scott can function “relatively well with day to day activities,” but has difficulty using appropriate

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coping skills “when confronted with a large stressor.” A.R. 565. He noted that Scott “has

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difficulty interacting with others she perceives as being threatening and defends herself,” and is

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“more reactive and fearful of the potential for violence and danger.” A.R. 567. Bagnell noted that

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he had not administered testing to determine her “level of focused attention,” but that she is able to

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focus in session. He wrote that “[s]he may have trouble when she experiences distress.

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Interactions with supervisors may be triggering for her if she feels threatened.” A.R. 567.

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Bagnell diagnosed Scott with alcohol dependence, posttraumatic stress disorder, and

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adjustment disorder, and wrote that her condition could be expected to improve once she “is able

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to procure her own living situation and independence.” A.R. 568.

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2.

State Agency Psychological Consultants

Dan Funkenstein, M.D., reviewed Scott’s medical records and assessed her mental residual
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functional capacity on August 22, 2012. A.R. 62-74. Dr. Funkenstein opined that Scott is

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moderately limited in her ability to understand and remember detailed instructions, carry out

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detailed instructions, maintain attention and concentration for extended periods, perform activities

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within a schedule, sustain an ordinary routine without special supervision, work in coordination

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with or in proximity to others without being distracted by them, and complete a normal workday

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and workweek without interruptions from psychologically based symptoms. A.R. 72-73. He also

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opined that Scott is moderately impaired in her ability to interact appropriately with the general

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public and accept instructions and respond appropriately to criticism from supervisors. A.R 73.

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According to Dr. Funkenstein, Scott is capable of performing non-public, simple repetitive tasks

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when clean and sober. A.R. 73.

United States District Court
Northern District of California

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On May 6, 2013, on reconsideration, L. O. Mallare, M.D., reviewed medical records and

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assessed the same mental limitations as Dr. Funkenstein. A.R. 99-101. Dr. Mallare opined that

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Scott is capable of performing non-public, simple repetitive tasks when clean and sober. A.R.

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101.

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3.

State Agency Medical Consultants

On July 18, 2012, L. Pancho, M.D. reviewed Scott’s medical records and assessed her

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physical residual functional capacity. A.R. 69-72. Dr. Pancho determined that Scott has the

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severe impairment of dysfunction—major joints, A.R. 69, and opined that Scott is limited with

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pushing and pulling in her lower extremities due to a history of “chronic foot pain due to bunion

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deformities s/p bunionectomy on the left.” A.R. 71.

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On May 6, 2013, P. N. Ligot, M.D. affirmed Dr. Pancho’s assessment of Scott’s physical

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limitations. A.R. 95-96, 98-99.

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4.

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Katherine Wiebe, Ph.D.

Katherine Wiebe, Ph.D., performed a consultative psychological examination of Scott on

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November 20, 2012. A.R. 901-916. Scott reported that her medical problems include

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“neuropathy in her feet, degenerative disc problems, and pain in her left arm and shoulder,” and

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that she has had multiple hospitalizations for severe depression and alcohol abuse. A.R. 902. She

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reported having been clean and sober since July 2012. According to Dr. Wiebe, Scott “evinced
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mild to moderate impairments of reasoning, insight, and judgment due to her psychiatric

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symptoms.” A.R. 904.

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In addition to a clinical interview, Dr. Wiebe administered 10 tests. She estimated Scott’s

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IQ to be in the high average range, and assessed moderate impairments in Scott’s attention,

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concentration, and persistence and executive functioning. A.R. 905. Scott’s functioning was

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normal in the domains of memory, language, visual/spatial abilities, and sensory/motor abilities.

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A.R. 905-906. Based on test results, Dr. Wiebe concluded that Scott is not malingering and “is

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experiencing a severe mental disorder.” A.R. 909.

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Dr. Wiebe diagnosed Scott with posttraumatic stress disorder; major depressive disorder,
severe, without psychotic features; bipolar disorder NOS; generalized anxiety disorder; and

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United States District Court
Northern District of California

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alcohol dependence in early full remission. She also diagnosed Scott with narcissistic personality

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disorder, with negativistic personality traits, antisocial personality features, and sadistic

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personality features. A.R. 913. Dr. Wiebe opined that Scott is markedly impaired in her ability to

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maintain attention and concentration; accept instructions and respond appropriately to criticism

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from supervisors; and respond appropriately to changes in a routine work setting and deal with

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normal work stressors. She opined that Scott is extremely impaired in her ability to complete a

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normal workday and workweek without interruptions from psychologically based symptoms. She

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also opined that Scott is moderately impaired in three areas of abilities and aptitudes to do

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unskilled work, including her ability to get along and work with others. A.R. 916.

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5.

John Prosise, Ph.D.

John Prosise, Ph.D., performed a consultative psychological examination of Scott on

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October 2, 2013. A.R. 838-843. Dr. Prosise noted that Scott “responded cautiously to prompts,”

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“complied selectively with direction,” and “fielded unfamiliar questions without distress.” She

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was alert, oriented, and attentive during her interview, with intact concentration. Her insight

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“seemed normal” while her judgment “seemed limited,” and her fund of information “was

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implausibly limited.” Dr. Prosise noted that her “affect was normal, despite one interlude of

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histrionic tears.” A.R. 838.

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Scott reported that she had been taking Zoloft for depression for 15 years, and that she
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“takes a low dosage now, with target symptoms including ‘just not taking care of things,’

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including ‘not opening mail.’” She did not report any other treatment for psychiatric complaints.

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A.R. 839. Scott admitted a history of alcohol abuse, starting at age 21, and reported last

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consuming alcohol one month before the examination, ending a binge in which she consumed

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three quarters of a fifth of a gallon vodka per day. A.R. 839.

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Dr. Prosise assessed Scott’s cognitive abilities. Scott scored in the borderline and low

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average ranges for WAIS-IV indices and full scale IQ, but Dr. Prosise noted that these scores were

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“due to willful item rejections and inventive errors.” He concluded that “[m]ost scores

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underrepresented her demonstrated abilities.” A.R. 839. He further wrote that “[p]ro bono
screening with the Rey-15 returned a score of 6 (of 15), which revealed naively extensive, willful

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United States District Court
Northern District of California

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errors.” A.R. 840.

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Dr. Prosise diagnosed Scott with malingering, alcohol dependence, and depressive disorder

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NOS. A.R. 840. According to Dr. Prosise, Scott’s ability to work is “reportedly limited by

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interpersonal conflicts and unspecified ‘physical limitations,’” but he concluded that her ability to

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work “is impeded more prominently by alcohol dependence” and “is complicated by longstanding,

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neglected depression.” A.R. 840. He opined that by her own reporting Scott is moderately

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impaired in social interaction, but that he concluded that she is unimpaired in that area. The only

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impairment he assessed was a mild impairment in Scott’s psychological adaptability: “She has the

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ability to adjust adequately to physically feasible workplace demands requirements, hazards, and

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changes of routine, health and sobriety permitting.” A.R. 840.

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6.

Patricia Jones, Marriage and Family Therapist Intern & Lesleigh
Franklin, Ph.D.

Patricia Jones, Marriage and Family Therapist Intern (“MFTI”), completed a mental

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impairment questionnaire on August 19, 2015, supervised by Lesleigh Franklin, Ph.D. A.R. 104224
1046. Jones noted that she had had weekly 50-minute sessions with Scott, A.R. 1042, and the
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record contains Jones’s therapy notes for Scott for the time period February 2015 through May

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2015. See A.R. 1018-1041.
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In the questionnaire, Jones noted Scott’s diagnoses of generalized anxiety and borderline

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personality. She wrote that Scott is not a malingerer and that her conditions were expected to last

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at least 12 months. She opined that Scott’s impairments would cause her to be absent from work

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more than four days per month. A.R. 1042.
Jones opined that Scott is markedly impaired in her ability to deal with the stress of

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semiskilled and skilled work. She opined that Scott is moderately impaired in her ability to set

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realistic goals or make plans independently of others, maintain socially appropriate behavior, and

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maintain social functioning. A.R. 1043. Jones also opined that Scott is mildly impaired in several

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areas, including the ability to understand and remember detailed instructions and carry out detailed

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instructions. A.R. 1043. Scott’s symptoms include impairment in impulse control, mood

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disturbance, and emotional lability. A.R. 1045.
In response to the question, “Please describe any additional reasons not covered above why

United States District Court
Northern District of California

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your patient would have difficulty working at a regular job on a sustained basis,” Jones wrote:

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Difficulty dealing with [illegible]. Abrupt mood changes. Dysphoric
mood with a fragile sense of self. A chronic sense of emptiness and
history of unstable relationships.

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A.R. 1046.

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IV.

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STANDARD OF REVIEW
Pursuant to 42 U.S.C. § 405(g), this court has the authority to review a decision by the

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Commissioner denying a claimant disability benefits. “This court may set aside the

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Commissioner’s denial of disability insurance benefits when the ALJ’s findings are based on legal

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error or are not supported by substantial evidence in the record as a whole.” Tackett, 180 F.3d at

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1097 (citations omitted). Substantial evidence is evidence within the record that could lead a

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reasonable mind to accept a conclusion regarding disability status. See Richardson v. Perales, 402

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U.S. 389, 401 (1971). It is more than a mere scintilla, but less than a preponderance. See Saelee

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v. Chater, 94 F.3d 520, 522 (9th Cir.1996) (internal citation omitted). When performing this

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analysis, the court must “consider the entire record as a whole and may not affirm simply by

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isolating a specific quantum of supporting evidence.” Robbins v. Soc. Sec. Admin., 466 F.3d 880,

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882 (9th Cir. 2006) (citation and quotation marks omitted).

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If the evidence reasonably could support two conclusions, the court “may not substitute its
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judgment for that of the Commissioner” and must affirm the decision. Jamerson v. Chater, 112

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F.3d 1064, 1066 (9th Cir. 1997) (citation omitted). “Finally, the court will not reverse an ALJ’s

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decision for harmless error, which exists when it is clear from the record that the ALJ’s error was

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inconsequential to the ultimate nondisability determination.” Tommasetti v. Astrue, 533 F.3d

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1035, 1038 (9th Cir. 2008) (citations and internal quotation marks omitted).

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V.

ISSUES PRESENTED
Scott challenges the ALJ’s decision on several grounds. She argues that the ALJ erred 1)

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in determining her severe impairments; 2) in weighing the medical opinions; 3) in determining

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that her substance use is material; and 4) in assessing Scott’s credibility.
The Commissioner cross-moves to affirm, arguing that the ALJ’s decision is supported by

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Northern District of California

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substantial evidence and is free of legal error.

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VI.

DISCUSSION

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A. Evaluation of Scott’s Medical Impairments

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Scott argues that the ALJ erred by not including personality disorder, anxiety disorder, and

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posttraumatic stress disorder in her analysis and by failing to find that they are severe

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impairments. She also argues that the ALJ erred by failing to discuss evidence of her physical

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impairments and failing to find that they are severe impairments.

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1. Legal Standard

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At step two of the five-step sequential evaluation for disability claims, the ALJ must

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determine whether the claimant has one or more severe impairments that significantly limit a

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claimant’s ability to perform basic work activities. 20 C.F.R. §§ 404.1520(a)(4)(ii) and (c);

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416.920(a)(4)(ii) and (c). “Basic work activities are abilities and aptitudes necessary to do most

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jobs, including, for example, walking, standing, sitting, lifting, pushing, pulling, reaching, carrying

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or handling.” Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996) (quotation omitted). The

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Ninth Circuit has held that “the step-two inquiry is a de minimis screening device to dispose of

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groundless claims.” Id. (citation omitted). “An impairment or combination of impairments can be

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found ‘not severe’ only if the evidence establishes a slight abnormality that has no more than a

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minimal effect on an individual[’]s ability to work.” Id. (quotations omitted). A severe
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impairment “must be established by objective medical evidence from an acceptable medical

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source,” 20 C.F.R. § 416.921, and the ALJ must “consider the claimant’s subjective symptoms,

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such as pain or fatigue, in determining severity.” Smolen, 80 F.3d at 1290 (citations omitted). In

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addition, when assessing a claimant’s RFC, an ALJ must consider all of the claimant’s medically

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determinable impairments, both severe and non-severe. 20 C.F.R. §§ 416.920(e), 416.945; see

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Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008); see also SSR 96-8p,

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1996 WL 374184, at *5 (“In assessing RFC, the adjudicator must consider limitations and

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restrictions imposed by all of an individual’s impairments [because] limitations due to such a ‘not

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severe’ impairment may prevent an individual from performing past relevant work or may narrow

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Northern District of California

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the range of other work that the individual may still be able to do.”).
2.

Analysis
a.

Mental Impairments

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The court concludes that the ALJ erred by omitting Scott’s diagnoses of personality

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disorder, anxiety disorder, and posttraumatic stress disorder in her analysis. The record shows that

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treating and examining physicians and providers diagnosed Scott with these impairments and

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opined that these disorders resulted in symptoms that would likely have more than a minimal

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effect on Scott’s ability to work.

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In July 2012, after three months of treating Scott, MHT Bagnell, who was supervised by

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psychologist Dr. Yavneh, diagnosed Scott with posttraumatic stress disorder and adjustment

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disorder, in addition to alcohol dependence. A.R. 568.

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In November 2012, Dr. Wiebe examined Scott and administered a battery of tests. In

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addition to major depressive disorder and alcohol dependence, which the ALJ found were severe

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impairments, Dr. Wiebe diagnosed Scott with posttraumatic stress disorder; bipolar disorder NOS;

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generalized anxiety disorder; and narcissistic personality disorder, with negativistic personality

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traits, antisocial personality features, and sadistic personality features. A.R. 913. Dr. Wiebe

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offered the following opinion about the impact of Scott’s mental disorders:

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[Scott’s] psychiatric and personality disorder symptoms are chronic
and primary for her. These problems may also significantly affect her
cognitive abilities and emotional functioning at times. Combined,
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these problems make her ability to function in the workplace likely to
be at least intermittently unreliable for at least two years.

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A.R. 912.
Almost three years later, in a 2015 mental impairment questionnaire, treating mental health

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provider MFTI Jones and her supervisor Dr. Franklin noted Scott’s diagnoses of generalized

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anxiety and borderline personality. A.R. 1042. Jones opined that Scott is markedly impaired in

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her ability to deal with the stress of work and moderately impaired in numerous categories of

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mental abilities necessary to work. A.R. 1043. Jones’s treatment notes consistently reflect the

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borderline personality diagnosis. See A.R. 1018-1041.

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In her opinion, the ALJ noted that Scott “has . . . been diagnosed with depression, bipolar
disorder, PTSD, generalized anxiety disorder, and borderline personality disorder,” A.R. 28, but

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Northern District of California

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failed to otherwise discuss the disorders of personality disorder, anxiety disorder, and

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posttraumatic stress disorder in the opinion. She did not include them among Scott’s severe

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impairments, apparently determining that these impairments would have no more than a minimal

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effect on Scott’s ability to work. However, the opinion contains no discussion or explanation of

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how she reached that determination. Further, to the extent that the ALJ determined that Scott’s

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diagnoses of personality disorder, anxiety disorder, and posttraumatic stress disorder were not

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severe, she erred in failing to analyze the disorders’ individual and combined effect on Scott’s

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functioning, or the impact of Scott’s alcohol abuse on each of these disorders, separately and in

19

combination. See Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003) (“the

20

ALJ must consider the ‘combined effect’ of all the claimant’s impairments without regard to

21

whether any such impairment, if considered separately, would be of sufficient severity.” (citing 20

22

C.F.R. § 416.923)).

23

The Commissioner does not dispute that the ALJ failed to discuss Scott’s personality

24

disorder, anxiety disorder, and posttraumatic stress disorder in any detail, but argues that the ALJ

25

did not err because “these uncertain diagnoses were insufficient to support finding that Plaintiff

26

was severely impaired from these conditions.” Opp’n 6. However, the ALJ herself made no such

27

finding in the opinion. “Long-standing principles of administrative law require [this court] to

28

review the ALJ’s decision based on the reasoning and factual findings offered by the ALJ—not
12

1

post hoc rationalizations that attempt to intuit what the adjudicator may have been thinking.” Bray

2

v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1225-26 (9th Cir. 2009) (citation omitted). “A

3

clear statement of the agency’s reasoning is necessary because [the court] can affirm the agency’s

4

decision to deny benefits only on the grounds invoked by the agency.” Brown-Hunter v. Colvin,

5

806 F.3d 487, 492 (9th Cir. 2015). Moreover, the record does not support a finding that the

6

diagnoses were “uncertain”; as discussed above, Scott’s treating providers affirmatively,

7

consistently diagnosed these disorders, as did a consultative examiner. Accordingly, the court

8

concludes that substantial evidence does not support the ALJ’s determination of Scott’s severe

9

mental impairments.

10

United States District Court
Northern District of California

11

b.

Physical Impairments

Scott next argues that the ALJ erred by failing to discuss any of her physical impairments

12

and pain allegations. The record contains diagnoses of numerous physical impairments, including

13

bunion deformity in both of Scott’s feet, status post-bunionectomies, A.R. 487-552; cervical disk

14

narrowing, degenerative changes, and cervical disk disease, A.R. 592, 726; cervical spondylosis at

15

C5-C6 and facet arthropathy resulting in mild to moderate neural foraminal stenosis, A.R. 726;

16

and severe degenerative disk disease in the lower thoracic spine, A.R. 728. The records show that

17

Scott regularly complained of chronic pain in her feet, legs, back, neck, and shoulder, as well as

18

difficulty walking and standing, for which she was prescribed prescription pain medication

19

(Norco). A.R. 422 (prescribed Norco for pain), 438-439 (increased pain with walking and

20

standing), 441 (listing Norco for pain), 453 (“Foot and leg problems worsened with living

21

conditions”), 487 (reason for visit: chronic bunion pain); 552 (complaints of foot pain with weight

22

bearing activities), 807-816 (complaints of chronic pain), 1011-1015 (complaints of chronic pain).

23

Scott testified at the hearing about chronic pain in her feet, A.R. 45, 53, and described pain while

24

standing and walking and shoulder pain in her October 2012 request for reconsideration of her

25

benefits application. A.R. 438-445. Further, Dr. Pancho and Dr. Ligot, the state agency medical

26

consultants, determined that Scott has the severe impairment of “dysfunction—major joints,” A.R.

27

69, and each concluded that Scott is limited with pushing and pulling in her lower extremities due

28

to a history of “chronic foot pain due to bunion deformities s/p bunionectomy on the left.” A.R.
13

1

69, 71, 95-96, 98-99.

2

Despite this evidence, the ALJ did not discuss Scott’s physical impairments at any length

3

in her opinion. She did not discuss the opinions of Drs. Pancho and Ligot at all. When assessing

4

Scott’s RFC, the ALJ was required to consider all of her medically determinable impairments,

5

both severe and non-severe. 20 C.F.R. §§ 416.920(e), 416.945; Carmickle, 533 F.3d at 1164; see

6

also SSR 96-8p, 1996 WL 374184, at *5 (“In assessing RFC, the adjudicator must consider

7

limitations and restrictions imposed by all of an individual’s impairments [because] limitations

8

due to such a ‘not severe’ impairment may prevent an individual from performing past relevant

9

work or may narrow the range of other work that the individual may still be able to do.”); Howard
ex rel. Wolff, 341 F.3d at 1012 (“(“the ALJ must consider the ‘combined effect’ of all the

11

United States District Court
Northern District of California

10

claimant’s impairments”). The Commissioner argues that the ALJ’s decision not to find any

12

severe physical impairments was reasonable and supported by substantial evidence, Opp’n 7, but

13

as noted above, the court is precluded from reviewing the ALJ’s decision based on “post hoc

14

rationalizations that attempt to intuit what the adjudicator may have been thinking.” Bray, 554

15

F.3d at 1225-26 (citation omitted). The court concludes that the ALJ erred by failing to discuss

16

evidence of Scott’s physical impairments.

17

B.

18

The ALJ discussed the medical evidence and stated that she gave substantial weight to the

19

opinion of examining physician Dr. Prosise. A.R. 28. She stated that she gave “some weight” to

20

the opinion of examining physician Dr. Wiebe, but later in the opinion stated that she gave Dr.

21

Wiebe’s opinion “little weight”; little weight to the opinion of MFTI Jones and Dr. Franklin; little

22

weight to the opinions of Dr. Funkenstein and Dr. Mallare, the state agency psychological

23

consultants; and “some weight” to the opinion of MHT Bagnell and Dr. Yavneh. A.R. 25, 29-30.

24

As discussed above, the ALJ did not discuss the opinions of Dr. Pancho and Dr. Ligot, the

25

Weighing of the Medical Evidence

state agency medical consultants, nor did she assign any weight to their opinions.

26

Scott argues that the ALJ erred in giving less weight to the opinions of Dr. Wiebe, MFTI

27

Jones and Dr. Franklin, Dr. Funkenstein, Dr. Mallare, MHT Bagnell and Dr. Yavneh in favor of

28

Dr. Prosise’s opinion, and erred in failing to address the opinions of Dr. Pancho and Dr. Ligot.
14

1

1. Legal Standard
Courts employ a hierarchy of deference to medical opinions based on the relation of the

2
doctor to the patient. Namely, courts distinguish between three types of physicians: those who
3
4
5
6
7
8

treat the claimant (“treating physicians”) and two categories of “nontreating physicians,” those
who examine but do not treat the claimant (“examining physicians”) and those who neither
examine nor treat the claimant (“non-examining physicians”). See Lester v. Chater, 81 F.3d 821,
830 (9th Cir. 1995). A treating physician’s opinion is entitled to more weight than an examining
physician’s opinion, and an examining physician’s opinion is entitled to more weight than a nonexamining physician’s opinion. Id.

9
The Social Security Act tasks the ALJ with determining credibility of medical testimony
10
and resolving conflicting evidence and ambiguities. Reddick, 157 F.3d at 722. A treating

United States District Court
Northern District of California

11

physician’s opinion, while entitled to more weight, is not necessarily conclusive. Magallanes v.

12
Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (citation omitted). To reject the opinion of an
13

uncontradicted treating physician, an ALJ must provide “clear and convincing reasons.” Lester,

14
81 F.3d at 830; see, e.g., Roberts v. Shalala, 66 F.3d 179, 184 (9th Cir. 1995) (affirming rejection
15

of examining psychologist’s functional assessment which conflicted with his own written report

16
and test results); see also 20 C.F.R. § 416.927(d)(2); SSR 96-2p, 1996 WL 374188 (July 2, 1996).
17
18
19
20
21

If another doctor contradicts a treating physician, the ALJ must provide “specific and legitimate
reasons” supported by substantial evidence to discount the treating physician’s opinion. Lester, 81
F.3d at 830. The ALJ meets this burden “by setting out a detailed and thorough summary of the
facts and conflicting clinical evidence, stating his interpretation thereof, and making findings.”
Reddick, 157 F.3d at 725 (citation omitted). “[B]road and vague” reasons do not suffice.

22
McAllister v. Sullivan, 888 F.2d 599, 602 (9th Cir. 1989). This same standard applies to the
23
24

rejection of an examining physician’s opinion as well. Lester, 81 F.3d at 830-31. A nonexamining physician’s opinion alone cannot constitute substantial evidence to reject the opinion of

25
an examining or treating physician, Pitzer v. Sullivan, 908 F.2d 502, 506 n.4 (9th Cir. 1990);
26

Gallant v. Heckler, 753 F.2d 1450, 1456 (9th Cir. 1984), though a non-examining physician’s

27
opinion may be persuasive when supported by other factors. See Tonapetyan v. Halter, 242 F.3d
28
15

1

1144, 1149 (9th Cir. 2001) (noting that opinion by “non-examining medical expert . . . may

2

constitute substantial evidence when it is consistent with other independent evidence in the

3

record”); Magallanes, 881 F.2d at 751-55 (upholding rejection of treating physician’s opinion

4

given contradictory laboratory test results, reports from examining physicians, and testimony from

5

claimant). An ALJ “may reject the opinion of a non-examining physician by reference to specific

6

evidence in the medical record.” Sousa v. Callahan, 143 F.3d 1240, 1244 (9th Cir. 1998) (citation

7

omitted). An opinion that is more consistent with the record as a whole generally carries more

8

persuasiveness. See 20 C.F.R. § 416.927(c)(4).

9
10

United States District Court
Northern District of California

11

2.

Analysis
a. Dr. Wiebe

Dr. Wiebe examined Scott on November 20, 2012 and administered numerous tests.

12

Based on test results, Dr. Wiebe concluded that Scott is not malingering and “is experiencing a

13

severe mental disorder.” A.R. 909. Dr. Wiebe opined that Scott is markedly impaired in her

14

ability to maintain attention and concentration; accept instructions and respond appropriately to

15

criticism from supervisors; and respond appropriately to changes in a routine work setting and

16

deal with normal work stressors. She opined that Scott is extremely impaired in her ability to

17

complete a normal workday and workweek without interruptions from psychologically based

18

symptoms. She also opined that Scott is moderately impaired in three areas of abilities and

19

aptitudes to do unskilled work, including her ability to get along and work with others. A.R. 916.

20

The ALJ’s discussion of Dr. Wiebe’s opinion is internally inconsistent. First, the ALJ

21

accorded “some weight” to the opinion, which Dr. Wiebe provided “when the claimant’s alcohol

22

dependence was in early remission.” A.R. 25. The ALJ describes Dr. Wiebe’s opinion that Scott

23

is “moderately impaired in terms of attention/concentration/persistence, as she was easily

24

distracted, required frequent redirection and repetition of instructions, and evinced lapses in

25

attention as well as blocking when emotional material was evoked.” A.R. 25. However,

26

elsewhere in the decision, the ALJ accorded “little weight” to Dr. Wiebe’s opinion in favor of Dr.

27

Prosise’s opinion, who concluded that Scott was only mildly impaired in psychological

28

adaptability and was otherwise unimpaired. A.R. 29, 840. Given the contradictions between the
16

1

opinions by Dr. Wiebe and Dr. Prosise, the ALJ was required to provide “specific and legitimate

2

reasons” supported by substantial evidence to reject Dr. Wiebe’s opinion. Lester, 81 F.3d at 830.

3

The sole reason the ALJ gave for providing little weight to Dr. Wiebe’s opinion was that it
“is inconsistent with the evidence of record, which indicates much improved functioning during

5

periods of sobriety, as discussed above.” A.R. 29. It appears that the ALJ is referring to her

6

discussion of five treatment notes from 2012 and 2013 on page nine of the opinion (A.R. 28), as

7

follows: a 2012 treatment note in which Scott “reported doing well on sertraline,” “was more

8

active and motivated and she had gotten a new job, which she was enjoying, although she had to

9

be on her feet all day” (A.R. 816); a June 2012 report “that she was doing well on Norco,

10

sertraline, and ibuprofen” (A.R. 815); a July 2012 report that she was “under a lot of stress

11

United States District Court
Northern District of California

4

because her mother, who lives in Stockton, had 3 strokes the prior month; however, she reported

12

doing okay and ‘keeping it together’” (A.R. 814); an October 2012 report that “her mother was out

13

of the hospital and stable and that she had been traveling back and forth from Stockton” (A.R.

14

813); and a February 2013 report that “she had been sober for one year, was attending AA

15

meetings on occasion, and had ‘no desire to drink,’” that “her primary stressor was economic, as

16

she was currently homeless and staying with friends,” but that she would soon be moving in with

17

her mother as her caretaker, and that she “has a sister in the area and that they get along” (A.R.

18

809). A.R. 28.

19

The court finds that the one reason given by the ALJ to discount Dr. Wiebe’s opinion --

20

namely, that it was inconsistent with evidence showing that Scott had improved functioning when

21

she was sober -- is not a specific and legitimate reason supported by substantial evidence to

22

discount that opinion. Importantly, Dr. Wiebe conducted her examination of Scott during a period

23

when Scott was sober, undercutting the ALJ’s stated rationale for assigning the opinion less

24

weight. See A.R. 904 (noting that Scott reported being clean since July 2012). Further, all of the

25

records the ALJ cites in support of her conclusion that Scott had “much improved functioning”

26

while sober are from a limited period of time and from one provider, West Berkeley Family

27

Practice, Scott’s treating provider for primary medical care. Only one of the five treatment notes

28

reflects treatment by the practice’s “psychosocial services” division, and reflects a brief, 2017

minute session with a social worker. See A.R. 809. The remainder are from Scott’s treating

2

family nurse practitioner, Yui Nishiike, FNP; they do not reflect treatment by a mental health

3

specialist. While Scott may have occasionally reported to her family nurse practitioner that she

4

was “doing well,” the Ninth Circuit has cautioned that “[r]eports of ‘improvement’ in the context

5

of mental health issues must be interpreted with an understanding of the patient’s overall well-

6

being and the nature of her symptoms.” Garrison v. Colvin, 759 F.3d 995, 1017 (9th Cir. 2014).

7

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

8

and while limiting environmental stressors does not always mean that a claimant can function

9

effectively in a workplace.” Id. The Ninth Circuit has cautioned that it is “error for an ALJ to

10

pick out a few isolated instances of improvement over a period of months or years and to treat

11

United States District Court
Northern District of California

1

them as a basis for concluding a claimant is capable of working.” Id. Notably, the ALJ did not

12

mention one treatment note by FNP Nishiike from the same time period (which was during Scott’s

13

sobriety) that reflects Scott’s complaints of increased anxiety, nightmares, increased heart rate,

14

flashbacks, and “vague memory of assault [1.5 years ago] triggered by crowds and dark alleys.”

15

A.R. 811 (12/27/12 note).

16

Additionally, the record contains evidence contradicting the ALJ’s conclusion that Scott

17

had “much improved functioning” while sober. Specifically, in 2015, over two years into Scott’s

18

most recent period of sobriety, Scott’s treating therapist MFTI Jones opined that Scott

19

demonstrated symptoms including impairment in impulse control, mood disturbance, and

20

emotional lability, and had marked and moderate impairments in several functional areas. See

21

A.R. 1042-1046.

22
23
24
25

The court concludes that the ALJ failed to provide specific and legitimate reasons
supported by substantial evidence to discount Dr. Wiebe’s opinion.
b.

MFTI Jones & Dr. Franklin

MFTI Jones, under Dr. Franklin’s supervision, opined that Scott’s impairments would

26

cause her to miss work more than four days per month, and assessed marked and moderate

27

impairments in Scott’s functional abilities. See A.R 1042-1046. Because the opinion contradicted

28

Dr. Prosise’s opinion, the ALJ was required to provide “specific and legitimate reasons” supported
18

1

by substantial evidence to reject the Jones/Franklin opinion. Lester, 81 F.3d at 830.2

2

The ALJ stated two reasons for according the opinion little weight: 1, that “their opinion is

3

not supported by the evidence of record relating to the periods when the claimant has been sober”

4

and 2, that “their opinion is . . . not supported by the underlying mental health treatment notes

5

from Patricia Jones, indicating that the claimant’s difficulties are due in large part to financial

6

problems and difficulty getting a job” and that the notes indicate that Scott had made “positive

7

progress in the therapy sessions.” A.R. 29.
As discussed above, the statement that Scott had improved functioning while sober is not a

8
9

legally sufficient reason to discount the Jones/Franklin opinion. Similar to Dr. Wiebe’s opinion,
MFTI Jones and Dr. Franklin treated Scott and wrote their opinion while Scott had been sober. In

11

United States District Court
Northern District of California

10

the case of the Jones/Franklin report, Scott had been sober for over two years at the time of the

12

report.
Next, the ALJ wrote that Jones’s treatment notes indicated that Scott’s difficulties were

13
14

“due in large part to financial problems and difficulty getting a job.” The record contains 13

15

“progress notes” documenting Jones’s sessions with Scott. A.R. 1018-1041. The ALJ’s statement

16

about the source of Scott’s difficulties mischaracterizes those notes, since each progress note

17

contains a lengthy list of 9 to 14 “issues discussed in this therapy session,” such as negative

18

intrusive thoughts, feeling anxious, frequent crying, and feeling overwhelmed. “Financial

19

problems” and “difficulty finding a job” are just two of the issues Scott discussed with Jones. See

20

id. The progress notes do not contain any notation or indication by Jones that financial problems

21

and difficulty finding a job were largely responsible for Scott’s difficulties.
Finally, the ALJ wrote that Jones’s treatment notes indicated that Scott had made “positive

22
23

progress” in her sessions, including “crying less frequently, more willing to discuss important

24

issues in therapy, able to identify distorted thinking, positive self-statements, fewer negative

25
26
27
28

2

The Commissioner argues that as an intern, MFTI Jones is not an acceptable medical source, and
that as there is no indication that Dr. Franklin “participated in Plaintiff’s care in any way,” the ALJ
was required only to give germane reasons for rejecting Jones’s opinion. Opp’n 11 (citing Bayliss
v. Bowen, 427 F.3d 1211, 1218 (9th Cir. 2005)). This ignores the fact that the ALJ drew no
distinction between MFTI Jones and Dr. Franklin and repeatedly referred to the Jones/Franklin
opinion as “their opinion.” See A.R. 29.
19

1

intrusive thoughts and less obsessing.” A.R. 29-30. While this is an accurate representation of the

2

notes, which do include such observations, it is not inconsistent for Scott to have demonstrated

3

progress in therapy with Jones while still experiencing impairments in several areas of her

4

functioning, as Jones opined.

5
6
7

The court concludes that the ALJ failed to provide specific and legitimate reasons
supported by substantial evidence to discount the Jones/Franklin opinion.
c.

Dr. Funkenstein & Dr. Mallare

8

State agency psychological consultants Drs. Funkenstein and Mallare opined in August

9

2012 and May 2013, respectively, that Scott has moderate impairments in the numerous areas,
including understanding and remembering detailed instructions, attention and concentration, and

11

United States District Court
Northern District of California

10

interacting appropriately with the general public. Both opined that Scott is capable of performing

12

non-public, simple repetitive tasks when clean and sober. The ALJ accorded these opinions little

13

weight, writing that Scott’s “functional limitations are mild to moderate when sober,” and that

14

“[a]s discussed above, the evidence of record does not support more than mild functional

15

limitations when the claimant is sober.” A.R. 30.

16

As discussed above in connection with the opinions of Dr. Wiebe and MFTI Jones and Dr.

17

Franklin, this is not a specific and legitimate reason supported by substantial evidence to discount

18

the opinions, namely because all of the records the ALJ cites in support of her statement that Scott

19

had “much improved functioning” while sober are from a limited period of time and from only one

20

provider, and only one of the five records is from a mental health specialist. Accordingly, the

21

court finds that the ALJ erred with respect to the opinions of Drs. Funkenstein and Mallare.

22
23

d.

Dr. Pancho & Dr. Ligot

State agency medical consultants Dr. Pancho and Dr. Ligot each opined that Scott has the

24

severe impairment of “dysfunction—major joints” and that Scott is limited with pushing and

25

pulling in her lower extremities due to a history of “chronic foot pain due to bunion deformities

26

s/p bunionectomy on the left.” As discussed above, the ALJ did not mention or discuss these

27

opinions at all in her decision, and did not include any physical limitations in her assessment of

28

Scott’s ability to perform basic work activities. See A.R. 25. Ignoring portions of a physician’s
20

1

opinion is considered an implicit rejection of those opinions and failure to offer reasons for doing

2

so is legal error. Smolen, 80 F.3d at 1286. An ALJ may only “reject the opinion of a non-

3

examining physician by reference to specific evidence in the medical record.” Sousa, 143 F.3d at

4

1244. Given this requirement, the ALJ erred when she ignored the opinions of Drs. Pancho and

5

Ligot, and it cannot be said that “substantial evidence” supports the ALJ’s conclusion that in the

6

absence of alcohol abuse, Scott’s limitations would not cause more than a minimal impact on her

7

ability to perform basic work activities, including physical functions such as “walking, standing,

8

sitting, lifting, pushing, pulling, reaching, carrying, or handling.” See A.R. 25.3

9

C.

Scott’s Remaining Arguments

Scott also argues that the ALJ erred in determining that her substance use is material and

10

United States District Court
Northern District of California

11

erred in assessing Scott’s credibility. The court does not reach these arguments in light of its

12

conclusion that the ALJ erred in determining and assessing Scott’s mental and physical

13

impairments and erred in weighing the medical opinions. These errors impacted the ALJ’s

14

ultimate conclusion that if Scott “stopped the substance use, the remaining limitations would not

15

cause more than a minimal impact on [her] ability to perform basic work activities; therefore,

16

[Scott] would not have a severe impairment or combination of impairments.” A.R. 25. Under

17

these circumstances, it makes sense on remand for the ALJ to reevaluate the materiality and

18

credibility determinations upon reevaluation of the medical evidence and Scott’s mental and

19

physical impairments.

20

//

21

//

22

//

23
24
25
26
27
28

In a footnote, Scott also challenges the ALJ’s failure to address and weigh the opinions of MHT
Bagnell and Dr. Yavneh when discussing her impairments. Mot. 14 n.4. The ALJ wrote that she
gave the opinion “some weight,” noting Bagnell’s statement that Scott has difficulty interacting
with others and that “her concentration and task completion has changed as a result of her mental
condition” but that Bagnell admittedly had not administered testing to determine her level of
attention. A.R. 25, 567. The court finds no error with respect to that opinion, as Bagnell did not
offer other definitive opinions about Scott’s capacity for work.
21
3

CONCLUSION
For the foregoing reasons, the court grants in part Scott’s motion, denies the

Commissioner’s cross-motion, and remands this case for further proceedings.

3

UNIT
ED

7

NO

8

RT

onna
Judge D

ER

M. Ryu

H

9
10
11

United States District Court
Northern District of California

Donna M. Ryu
United States Magistrate Judge

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N

D IS T IC T
R

R NIA

DERED
SO OR
______________________________________
IT IS

FO

Dated: November 13, 2018
6

S

IT IS SO ORDERED.
5

RT
U
O

4

S DISTRICT
TE
C
TA

LI

2

VII.

A

1

OF

C