Gaona v. Berryhill

Filing 23

ORDER by Judge Kandis A. Westmore granting 21 Plaintiff's Motion for Summary Judgment; denying 22 Defendant's Cross-Motion for Summary Judgment. (kawlc2, COURT STAFF) (Filed on 3/23/2018)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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Case No. 17-cv-03364-KAW
SALVADOR RIVAS GAONA,
Plaintiff,

ORDER GRANTING PLAINTIFF'S
MOTION FOR SUMMARY
JUDGMENT; DENYING
DEFENDANT'S CROSS-MOTION FOR
SUMMARY JUDGMENT

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v.
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NANCY A. BERRYHILL,

United States District Court
Northern District of California

Defendant.

Re: Dkt. Nos. 21, 22

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Plaintiff Salvador Rivas Gaona seeks judicial review, pursuant to 42 U.S.C. § 405(g), of

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the Commissioner's final decision, and the remand of this case for benefits or further proceedings.

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Pending before the Court is Plaintiff's motion for summary judgment and Defendant's cross-

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motion for summary judgment. Having considered the papers filed by the parties, and for the

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reasons set forth below, the Court GRANTS Plaintiff's motion for summary judgment, and

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DENIES Defendant's cross-motion for summary judgment.

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I.

BACKGROUND

On January 7, 2010, Plaintiff applied for Title II and Title XVI benefits, alleging a

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disability that began on December 1, 2008. (Administrative Record ("AR") 140.) The Social

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Security Administration ("SSA") denied Plaintiff's application initially and on reconsideration.

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(AR 70, 71, 73, 74.) Plaintiff requested a hearing before an Administrative Law Judge ("ALJ").

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106-107.) Following a hearing, the ALJ rejected Plaintiff's application on September 22, 2011.

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(AR 23-33.) A request for review of the ALJ's decision was filed with the Appeals Council on

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October 14, 2011. (AR 16.) The Appeals Council denied Plaintiff's request for review on April

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11, 2013. (AR 3-5.)

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On July 11, 2013, Plaintiff filed an action for judicial review pursuant to 42 U.S.C. §

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405(g). (AR 507.) On April 21, 2014, the district court remanded Plaintiff's case for further

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proceedings, finding that the ALJ had failed to resolve ambiguities in the record regarding

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Plaintiff's ability to read and write in English. (AR 511-25.)

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On July 15, 2014, the Appeals Council effectuated the district court's order by remanding

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the case to the ALJ. (AR 531.) The Appeals Council also noted that Plaintiff had filed subsequent

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claims for Title II and Title XVI disability benefits on November 14, 2013, and ordered that the

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ALJ consolidate the claim files and issue a new decision on the consolidated claims.
The assigned ALJ held a hearing on November 12, 2014, at which Plaintiff and Vocational

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Expert ("VE") Lynda Berkley testified. (AR 423.) At the hearing, the ALJ examined VE Berkley,

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giving her a hypothetical of an individual who could lift and carry twenty pounds occasionally and

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Northern District of California

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ten pounds frequently; sit, stand, and walk six hours each in an eight-hour day; climb ladders,

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ropes, and scaffolds occasionally; crawl occasionally; climb ramps and stairs frequently; balance,

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stoop, kneel, and crouch frequently; and handle and finger bilaterally frequently. (AR 454.) The

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hypothetical also included a sixth grade education in Mexico, and limited ability to speak, write,

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and read English. Based on this hypothetical, VE Berkley testified that such an individual could

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not perform Plaintiff's past work, but could work as a housekeeping cleaner, a garment sorter, and

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a cafeteria attendant. (AR 454-55.) The ALJ then presented a second hypothetical with increased

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limitations as to an individual's ability to lift, stand, walk, balance, climb, balance, stoop, kneel,

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crouch, and crawl, but with the same limitations as to handling and fingering. (AR 457.) VE

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Berkley testified that such an individual could work as an escort vehicle driver or a final assembler

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of optical goods. (AR 458.)

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Plaintiff's representative also questioned VE Berkley, asking if an individual limited to

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four hours of fine manipulation would be able to perform the optical assembly job. (AR 460.) VE

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Berkley responded that such an individual could not, as fine manipulation would be required on a

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frequent basis, i.e. up to two-thirds of the day.

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The ALJ issued an unfavorable decision on February 20, 2015. (AR 404-16.) A request

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for review of the ALJ's decision was filed with the Appeals Council. The Appeals Council denied

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Plaintiff's request for review on April 13, 2017. (AR 388-91.) On June 11, 2017, Plaintiff
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commenced this action for judicial review pursuant to 42 U.S.C. § 405(g). (Compl., Dkt. No. 1.)

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On November 27, 2017, Plaintiff filed a motion for summary judgment. (Plf.'s Mot., Dkt.

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No. 21.) On December 26, 2017, Defendant filed an opposition and cross-motion for summary

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judgment. (Def.'s Opp'n, Dkt. No. 22.) Plaintiff did not file a reply brief.

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II.

LEGAL STANDARD

A court may reverse the Commissioner's denial of disability benefits only when the

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Commissioner's findings are 1) based on legal error or 2) are not supported by substantial

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evidence in the record as a whole. 42 U.S.C. § 405(g); Tackett v. Apfel, 180 F.3d 1094, 1097

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(9th Cir. 1999). Substantial evidence is "more than a mere scintilla but less than a
preponderance"; it is "such relevant evidence as a reasonable mind might accept as adequate to

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support a conclusion." Id. at 1098; Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996). In

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determining whether the Commissioner's findings are supported by substantial evidence, the

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Court must consider the evidence as a whole, weighing both the evidence that supports and the

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evidence that detracts from the Commissioner's conclusion. Id. "Where evidence is susceptible

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to more than one rational interpretation, the ALJ's decision should be upheld." Ryan v. Comm'r

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of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008).
Under SSA regulations, disability claims are evaluated according to a five-step sequential

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evaluation. Reddick, 157 F.3d at 721. At step one, the Commissioner determines whether a

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claimant is currently engaged in substantial gainful activity. Id. If so, the claimant is not disabled.

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20 C.F.R. § 404.1520(b). At step two, the Commissioner determines whether the claimant has a

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"medically severe impairment or combination of impairments," as defined in 20 C.F.R. §

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404.1520(c). Reddick, 157 F.3d 715 at 721. If the answer is no, the claimant is not disabled. Id.

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If the answer is yes, the Commissioner proceeds to step three, and determines whether the

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impairment meets or equals a listed impairment under 20 C.F.R. § 404, Subpart P, Appendix 1. 20

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C.F.R. § 404.1520(d). If this requirement is met, the claimant is disabled. Reddick, 157 F.3d 715

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at 721.

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If a claimant does not have a condition which meets or equals a listed impairment, the
fourth step in the sequential evaluation process is to determine the claimant's residual functional
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capacity ("RFC") or what work, if any, the claimant is capable of performing on a sustained basis,

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despite the claimant’s impairment or impairments. 20 C.F.R. § 404.1520(e). If the claimant can

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perform such work, he is not disabled. 20 C.F.R. § 404.1520(f). RFC is the application of a legal

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standard to the medical facts concerning the claimant's physical capacity. 20 C.F.R. §

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404.1545(a). If the claimant meets the burden of establishing an inability to perform prior work,

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the Commissioner must show, at step five, that the claimant can perform other substantial gainful

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work that exists in the national economy. Reddick, 157 F.3d 715 at 721. The claimant bears the

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burden of proof in steps one through four. Bustamante, 262 F.3d at 953-954. The burden shifts to

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the Commissioner in step five. Id. at 954.

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III.

THE ALJ'S DECISION

United States District Court
Northern District of California

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On February 20, 2015, the ALJ issued an unfavorable decision. (AR 404-16.) At step one,

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the ALJ determined that Plaintiff had not engaged in substantial gainful activity since December 1,

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2008. (AR 406.)
At step two, the ALJ identified the following severe impairments: degenerative disc

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disease of the lumbar spine, arthritis of the left knee, coronary artery disease, diabetes mellitus,

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status post fracture of the right fourth metacarpal, and numbness of the left hand secondary to

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ulnar nerve damage. (AR 407.)
At step three, the ALJ found that Plaintiff did not have an impairment or combination of

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impairments that met or medically equaled a listed impairment. (AR 407.) With respect to

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Plaintiff's hand injuries, the ALJ found that Plaintiff had "a history of a fracture to the fourth

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metacarpal of the right hand, but there is no persuasive evidence of a loss of ability to perform fine

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and gross movements effectively." (AR 407.) The ALJ concluded that "the criteria of section

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1.02 (major dysfunction of a joint) of the Listing of Impairments is not met or equaled." (AR

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407.)

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At step four, the ALJ determined that Plaintiff had the residual functional capacity ("RFC")

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to perform light work, and that Plaintiff could lift and/or carry up to twenty pounds occasionally,

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lift and/or carry up to ten pounds frequently, sit for six hours in an eight-hour day, and stand

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and/or walk for six hours in an eight-hour day. (AR 408.) The ALJ also found that Plaintiff
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required the use of a cane for long distances or walking on uneven terrain. Further, Plaintiff could

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occasionally crawl and climb ropes, ladders, and scaffolds, could frequently climb ramps and

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stairs, balance, stoop, kneel and crouch. Plaintiff could also "frequently handle and finger

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bilaterally." (AR 408.) Finally, Plaintiff was limited to jobs requiring limited reading and writing

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in English.

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Specific to Plaintiff's hands, the ALJ considered a January 2011 state agency consultant

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determination that found that Plaintiff could frequently bilaterally handle and finger. (AR 410.)

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The ALJ acknowledged that the medical evidence had since been updated, and that January 2014

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and April 2014 state agency consultation determinations found the same manipulative limitations.1
The ALJ found that these January 2014 and April 2014 determinations were "supported by the

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evidence of record," and adopted their findings of functional capacity. (AR 410.)
Additionally, the ALJ found that there was "a remote history of a fracture to the fourth

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metacarpal of the right dominant hand and 1982 laceration to the left hand." (AR 411.) The ALJ

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considered abnormal clinical findings by Andrew K. Burt, M.D., but noted that there was no

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evidence of further injuries to the hands or medical attention since Dr. Burt's report. The ALJ also

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considered a report by Plaintiff's primary care physician, Gerald E. Eliaser, M.D. (AR 410-11.)

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Dr. Eliaser found in January 2011 that Plaintiff's "ability to use the bilateral hands was limited to

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two hours of handling, four hours of fine manipulation, and four hours of reaching." (AR 411.)

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The ALJ discounted the reaching limitation on the ground that there was no medical disorder

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related to the shoulders or neck that would support such a limitation. With respect to the hands,

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however, the ALJ found that "the ability to use the hands for six hours in an eight-hour day [w]as

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consistent with an ability for frequent use of the upper extremities for handling and fingering as

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indicated by the state agency consultants." (AR 411.) Thus, the ALJ found that Dr. Eliaser's and

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Dr. Burt's reports "support[ed] the frequent use of the bilateral hands for handling and fingering,"

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and "g[ave] partial weight to Dr. Eliaser's assessment regarding use of the bilateral hands." (AR

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411.) The ALJ further stated that she "relied on Dr. Eliaser's assessment in finding the claimant

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The January 2014 and April 2014 state agency consultation determinations are not contained in
the record. (See Def.'s Opp'n at 4 n.4.)
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limited to frequent handling and fingering with the bilateral upper extremities," and that Dr.

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Eliaser's opinion was "supported by the history of trauma to the hands and the medical findings."

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(AR 413.)

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The ALJ also considered Plaintiff's testimony. Plaintiff had described the fracture of his

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right hand and numbness in his left hand, and also expressed problems with using his hands for

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gripping and holding objects. (AR 413-14.) The ALJ concluded that Plaintiff's testimony was not

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entirely credible. The ALJ explained that despite Plaintiff's complaint of chronic musculoskeletal

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pain, the medical evidence described only minimal, conservative, and symptomatic care that was

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inconsistent with his allegations. Further, the ALJ found that Plaintiff's daily activities, which
included shopping, using a hand vacuum to clean his room, and caring for his personal needs, was

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consistent with the ALJ's RFC. (AR 414.) The ALJ also specifically noted that "there ha[d] been

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no acute or aggressive medical attention for the bilateral hands, and the claimant worked after the

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injuries. Even the claimant's treating physician indicated a retained ability to use the bilateral

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hands on an occasional basis." (AR 414.)

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At step five, the ALJ found that Plaintiff was unable to perform any past relevant work, but

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that there were jobs that existed in significant numbers in the national economy that Plaintiff could

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perform. (AR 415.) Specifically, the ALJ found that Plaintiff could work as a garment sorter and

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cafeteria attendant. (AR 416.) The ALJ thus concluded that "[a] finding of 'not disabled' is

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therefore appropriate under the framework of the above-cited rule." (AR 416.)

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IV.

DISCUSSION

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Plaintiff challenges the ALJ's decision on the ground that the ALJ effectively rejected Dr.

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Eliaser's opinion regarding Plaintiff's ability to use his hands. (Plf.'s Mot. at 6.) Specifically, Dr.

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Eliaser opined that Plaintiff was limited to handling for two hours and fine manipulation for four

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hours. (AR 335.) The ALJ, however, concluded that Plaintiff could frequently handle and finger

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bilaterally, i.e., up two-thirds of a workday (or 5.33 hours per day). (AR 408.) Plaintiff argues

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that the ALJ therefore rejected Dr. Eliaser's opinion, despite the ALJ stating that she relied on Dr.

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Eliaser's opinion to find that Plaintiff could frequently handle and finger bilaterally. (Plf.'s Mot. at

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8; see also AR 411.)
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In evaluating medical evidence from different physicians, the Ninth Circuit distinguishes

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among the opinions of three types of physicians. Lester v. Chater, 81 F.3d 821, 830 (9th Cir.

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1995). The three types are classified as: (1) those who treat the claimant (treating physicians); (2)

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those who examine but do not treat the claimant (examining physicians); and (3) those who neither

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examine nor treat the claimant (non-examining physicians). Id. A treating physician's opinion is

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entitled to controlling weight if it is well-supported and consistent with other substantial evidence

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in the record. 20 C.F.R. § 404.1527(d)(2). The opinions of treating medical sources may be

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rejected only for clear and convincing reasons if not contradicted by another doctor, and, if

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contradicted, only for specific and legitimate reasons supported by substantial evidence. Chater,
81 F.3d at 830. Likewise, "the opinion of an examining doctor, even if contradicted by another

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doctor, can only be rejected for specific and legitimate reasons that are supported by substantial

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evidence in the record. Id. at 830-31. Where the ALJ fails to provide adequate reasons for

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rejecting the opinion of a treating or examining physician, that opinion is accepted as true. Id. at

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834.
The Court agrees with Plaintiff that the ALJ effectively rejected Dr. Eliaser's opinion.

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Again, Dr. Eliaser found that Plaintiff could only handle for two hours a day, and perform fine

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manipulation for four hours a day. The ALJ, however, concluded that Plaintiff could handle and

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finger bilaterally frequently, or up to two-thirds of a workday. The ALJ appeared to come to this

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conclusion by adding together Plaintiff's ability to handle for two hours a day with Plaintiff's

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ability to finger bilaterally for four hours a day, to determine that Plaintiff could use his hands for

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six hours in an eight-hour day. (See AR 411.) The fact that Plaintiff can generally use his hands

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for a combined six hours a day, however, is not the same as finding that Plaintiff can handle and

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finger bilaterally frequently. Handling and fingering bilaterally are two different actions, and to

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simply combine the two together to conclude that Plaintiff could do either or both frequently is

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contrary to Dr. Eliaser's opinion.2

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Even if one was to view the ALJ's RFC limitation as stating that Plaintiff could do a combined
handling and fingering bilaterally for up to two-thirds of a day, this would still not accurately
reflect Dr. Eliaser's opinion. Such a limitation would be satisfied with, for example, an occupation
that required handling for four hours a day and fingering bilaterally for one hour a day. Per Dr.
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Notably, Defendant does not attempt to justify the ALJ's decision to combine Plaintiff's

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ability to handle for two hours a day with Plaintiff's ability to finger bilaterally for four hours a

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day. In fact, Defendant acknowledges that Dr. Eliaser determined that Plaintiff could only

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occasionally handle and finger bilaterally. (See Def.'s Opp'n at 4.) Instead, Defendant argues that

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the ALJ could find that Plaintiff could frequently handle and finger based on the state agency

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consultant determinations, as well as Plaintiff's activities of daily living. (Def.'s Opp'n at 4-5.)

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Defendant further contends that "Plaintiff's activities of daily living alone constituted substantial

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evidence to discount Dr. Eliaser's assessment of occasional handling and fingering." (Id. at 4.)
The problem with Defendant's argument, however, is that the ALJ did not cite to the state

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agency consultant determinations or Plaintiff's activities of daily living as specific and legitimate

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Northern District of California

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reasons for rejecting Dr. Eliaser's opinion. Indeed, the ALJ gave no reason for rejecting Dr.

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Eliaser's opinion on Plaintiff's ability to handle and bilaterally finger because she did not reject Dr.

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Eliaser's opinion, but purportedly relied on his assessment to find that Plaintiff could frequently

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handle and bilaterally finger. (AR 413.) In other words, the ALJ did not articulate any reason for

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rejecting Dr. Eliaser's opinion because she stated that she did not reject the opinion, before finding

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a RFC that was contrary to his opinion. Defendant cannot now use post hoc rationales to justify

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the ALJ's conclusion. See Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1225 (9th Cir.

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2009) ("Long-standing principles of administrative law require us to review the ALJ's decision

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based on the reasoning and factual findings offered by the ALJ -- not post hoc rationalizations that

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attempts to intuit what the adjudicator may have been thinking"). Thus, the Court finds that the

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ALJ failed to provide adequate reasons for rejecting Dr. Eliaser's medical opinion.

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The ALJ's failure to provide adequate reason for rejecting Dr. Eliaser's medical opinion

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requires that they be accepted as true. See Lester, 81 F.3d at 834 (citing Hammock v. Bowen, 879

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F.2d 498, 502 (9th Cir. 1989).) The Court finds, however, that remand for benefits is not

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appropriate in this case. Further administrative proceedings are required to determine if a RFC

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that limits Plaintiff to occasional handling and bilateral fingering would allow Plaintiff to be

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Eliaser's opinion, however, Plaintiff would not be able to perform this occupation, as Plaintiff is
limited to two hours of handling and four hours of fingering bilaterally.
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employed in positions other than a final assembler of optical goods, as the VE already testified

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that an individual limited to four hours of fine manipulation would not be able to perform the

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optical assembly job. (See AR 460.)

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V.

CONCLUSION

For the reasons set forth above, Plaintiff's motion for summary judgment is GRANTED,

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and Defendant's motion for summary judgment is DENIED. The Court remands this case for

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further proceedings consistent with this order.

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IT IS SO ORDERED.
Dated: March 23, 2018
__________________________________
KANDIS A. WESTMORE
United States Magistrate Judge

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United States District Court
Northern District of California

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