Russell v. Colvin

Filing 27

ORDER ON MOTIONS FOR SUMMARY JUDGMENT, granting 24 Motion for Summary Judgment and denying 25 Cross-Motion for Summary Judgment. Signed by Magistrate Judge Susan van Keulen on 10/6/2017. (ofr, COURT STAFF) (Filed on 10/6/2017)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 MICHAEL ANDREW RUSSELL, 7 Plaintiff, 8 v. 9 ORDER ON MOTIONS FOR SUMMARY JUDGMENT Re: Dkt. Nos. 24, 25 NANCY A. BERRYHILL, 10 Defendant. 11 United States District Court Northern District of California Case No. 17-cv-00065-SVK Plaintiff Michael Andrew Russell (“Plaintiff”), as heir and representative of the estate of 12 13 Yvonne Susan Russell (“Claimant”), seeks review of a final decision of the Commissioner of 14 Social Security denying Claimant’s application for a period of disability and disability insurance 15 benefits under Title II of the Social Security Act. Plaintiff presents two issues for review: 16 (1) Plaintiff asserts that the Administrative Law Judge (“ALJ”) erred in assessing Claimant’s 17 residual functional capacity, and (2) Plaintiff asserts that the ALJ erroneously concluded that 18 Claimant had skills from her previous jobs that were transferable to other available jobs. ECF 24 19 (“Pl. MSJ”). Before the Court are the parties’ cross-motions for summary judgment. See id.; ECF 20 25 (“Def. MSJ”). Having considered the cross-motions for summary judgment, the relevant law, and the 21 22 record in this case,1 the Court finds that the ALJ erred in evaluating Claimant’s residual functional 23 capacity because the ALJ failed to provide clear and convincing reasons, supported by substantial 24 evidence, for not giving the medical opinion of Claimant’s treating physician controlling weight. 25 The ALJ also erred in concluding that Claimant had skills that were transferable to other jobs 26 identified by the vocational expert because the ALJ did not specifically identify the transferable 27 28 1 This matter was submitted without oral argument pursuant to Civil Local Rule 16-5. 1 skills and did not evaluate what vocational adjustment would be necessary to enable Claimant to 2 perform other jobs. These errors require that the case be remanded. Because the vocational expert 3 testified that a claimant with the physical limitations described in the medical opinion of her 4 treating physician would be unable to do the alternative jobs identified by the vocational expert, 5 the existing record establishes that Claimant is entitled to benefits. The Court therefore GRANTS 6 Plaintiff’s motion for summary judgment, DENIES the Commissioner’s motion for summary 7 judgment, and REMANDS the case for the calculation and award of benefits. 8 I. FACTUAL AND PROCEDURAL BACKGROUND Plaintiff seeks disability benefits on behalf of Claimant from the alleged onset date of 9 April 15, 2003 through Claimant’s last insured date of June 30, 2009. As of the date last insured, 11 United States District Court Northern District of California 10 Claimant was 57 years old. Administrative Record (“AR”) 28, 91. Claimant obtained a GED and 12 attended some college. AR 91. She reported past employment as a hotel maid, cashier and 13 assistant manager at a hardware store, and work at a loan company. AR 92-93. Claimant filed a claim for disability benefits on October 12, 2011. AR 253-56. Claimant 14 15 complained of various medical conditions, including fibromyalgia, depression, and rheumatoid 16 arthritis. AR 275. 17 After her claim was denied initially and on reconsideration, Claimant requested a hearing 18 before an ALJ. AR 130-31, 169-71. ALJ Ruperta Alexis held a hearing on February 21, 2013, at 19 which Claimant and a vocational expert testified and Claimant was represented by an attorney. 20 AR 35-79. On May 13, 2013, ALJ Alexis issued a decision finding that Claimant had the severe 21 impairment of fibromyalgia but was not disabled as defined in the Social Security Act at any time 22 between April 15, 2003 and June 30, 2009 (the date last insured). AR 132-148. The Appeals 23 Council subsequently vacated the May 13, 2013 decision and remanded the case for the ALJ to 24 review the period from June 30, 2009 to December 31, 2017, on the grounds that “Social Security 25 records indicate the claimant is insured through December 31, 2017.” AR 151.2 26 2 27 28 On remand, the ALJ concluded that the original May 13, 2013 ALJ decision had correctly concluded that the date last insured was June 30, 2009. AR 19-20. At the hearing on remand, Claimant’s counsel agreed that June 30, 2009 was the correct date last insured. AR 86. Plaintiff does not challenge the ALJ’s conclusion on the last insured date. 2 ALJ Timothy Magrum held a hearing on remand on April 16, 2015, at which Claimant and 1 2 a vocational expert testified and Claimant was represented by an attorney. AR 80-129. On 3 September 4, 2015, ALJ Magrum issued the decision that is the subject of this action, finding that 4 Claimant had the severe impairment of fibromyalgia but was not disabled as defined in the Social 5 Security Act. AR 16-34. On November 3, 2015, Claimant died. AR 9. Three days later, a Request for Review of 6 the ALJ’s decision was filed with the Appeals Council. AR 14-15. The Request for Review was 8 filed in the name of Claimant but lacked her signature. AR 15. Nearly two months later, on 9 December 28, 2015, Plaintiff filed a Notice Regarding Substitution of Party Upon Death of 10 Claimant form, asking to be substituted for Claimant. AR 8-13. On November 9, 2016, the 11 United States District Court Northern District of California 7 Appeals Council denied Claimant’s request for a review of the ALJ’s determination by notice 12 addressed to Plaintiff as “Substitute Party.” AR 1-6. On January 5, 2017, Plaintiff filed a timely civil action in this Court. ECF 1. All parties 13 14 have consented to the jurisdiction of a magistrate judge. ECF 14, 15. 15 II. LEGAL STANDARDS 16 A. Standard of Review 17 This Court has the authority to review the Commissioner’s decision to deny disability 18 benefits, but “a federal court’s review of Social Security determinations is quite limited.” Brown- 19 Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015); see also 42 U.S.C. § 405(g). Federal courts 20 “leave it to the ALJ to determine credibility, resolve conflicts in the testimony, and resolve 21 ambiguities in the record.” Brown-Hunter, 806 F.3d at 492 (internal quotation marks and citation 22 omitted). 23 The Commissioner’s decision will be disturbed only if it is not supported by substantial 24 evidence or if it is based on the application of improper legal standards. Id. “Substantial 25 evidence” means more than a mere scintilla but less than a preponderance; it is “such relevant 26 evidence as a reasonable mind might accept as adequate to support a conclusion.” Rounds v. 27 Comm’r of Soc. Sec. Admin., 807 F.3d 996, 1002 (9th Cir. 2015) (internal quotation marks and 28 citations omitted). The Court “must consider the evidence as a whole, weighing both the evidence 3 1 that supports and the evidence that detracts from the Commissioner’s conclusion.” Id. (citation 2 omitted). Where the evidence is susceptible to more than one rational interpretation, the Court 3 must uphold the ALJ’s findings if supported by inferences reasonably drawn from the record. Id. Even if the ALJ commits legal error, the ALJ’s decision will be upheld if the error is 4 5 harmless. Brown-Hunter, 806 F.3d at 492. But “[a] reviewing court may not make independent 6 findings based on the evidence before the ALJ to conclude that the ALJ’s error was harmless.” Id. 7 The Court is “constrained to review the reasons the ALJ asserts.” Id. (citation omitted). 8 B. Standard for Eligibility for Disability Benefits 9 Disability benefits are available under Title II of the Social Security Act when an eligible claimant is unable “to engage in any substantial gainful activity by reason of any medically 11 United States District Court Northern District of California 10 determinable physical or mental impairment which can be expected to result in death or which has 12 lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. 13 § 423(d)(1)(A). To determine whether a claimant is disabled, the ALJ is required to employ a five-step 14 15 sequential analysis, determining: (1) whether the claimant is doing substantial gainful activity; 16 (2) whether the claimant has a severe medically determinable physical or mental impairment or 17 combination of impairments that has lasted for more than 12 months; (3) whether the impairment 18 meets or equals one of the listings in the regulations; (4) whether, given the claimant’s residual 19 functional capacity (i.e., what a claimant can still do despite her limitations), the claimant can still 20 do her past relevant work; and (5) whether the claimant can make an adjustment to other work. 21 Ghanim v. Colvin, 763 F.3d 1154, 1160 and n.5 (9th Cir. 2014) (internal quotation marks and 22 citations omitted). The burden of proof is on the claimant at steps 1 through 4, but shifts to the 23 Commissioner at step 5. Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 24 2009). 25 //// 26 //// 27 //// 28 //// 4 1 III. DISCUSSION 2 A. Standing 3 This district court action was brought by Plaintiff Michael Andrew Russell. ECF 1. The 4 Complaint describes Mr. Russell as “heir and representative of the estate of” Claimant but does 5 not further describe his relationship to Claimant. Id. Nor do the parties address Mr. Russell’s 6 status in their cross-motions for summary judgment. This raises the question of whether 7 Mr. Russell has standing to bring this action seeking review of an ALJ’s decision not to award 8 disability benefits to Claimant. 9 Standing is a jurisdictional limitation that is comprised of both constitutional (Article III) requirements and prudential considerations. Gladstone Realtors v. Village of Bellwood, 441 U.S. 11 United States District Court Northern District of California 10 91, 99 (1979). The Commissioner has not challenged Mr. Russell’s standing to bring this action, 12 but the requirement of constitutional standing is not subject to waiver, and thus the Court has an 13 independent duty to consider the issue. United States v. Hays, 515 U.S. 737, 742 (1995). To have 14 constitutional standing, “[t]he plaintiff must have (1) suffered an injury in fact, (2) that is fairly 15 traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a 16 favorable judicial decision.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016). 17 42 U.S.C. § 404(d) governs payment of Social Security disability benefits to survivors or 18 heirs when a claimant is deceased, giving the highest priority to “the person, if any, who is 19 determined by the Commissioner of Social Security to be the surviving spouse of the deceased 20 individual and who either (i) was living in the same household with the deceased at the time of his 21 death or (ii) was, for the month in which the deceased individual died, entitled to a monthly 22 benefit on the basis of the same wages and self-employment income as was the deceased 23 individual.” 42 U.S.C. § 404(d)(1). Section 405(g) empowers an individual to seek judicial 24 review in federal district court of a final decision of the Commissioner “made after a hearing to 25 which he was a party.” 26 Here, the record indicates that Plaintiff was Claimant’s spouse and was living in the same 27 household at the time of Claimant’s death, thereby satisfying the requirements of 28 Section 404(d)(1). AR 9. Moreover, Plaintiff filed a notice of substitution into the administrative 5 1 proceedings during the Appeals Council review. AR 10. Although the request for Appeals 2 Council review was filed after Claimant died but before Plaintiff substituted into the proceedings, 3 “Section 405(g) does not mandate a particular substitution procedure when a claimant’s death 4 occurs after the ALJ’s hearing (and unfavorable decision) but before issuance of the Appeals 5 Council’s order on the request for review.” Weinshenker v. Berryhill, No. 1:17CV4, 2017 U.S. 6 Dist. LEXIS 141784, at *11 (M.D.N.C. Sep. 1, 2017) (emphasis in original). The Notice of 7 Appeals Council Action was addressed to Plaintiff as “Substitute Party” for Claimant. AR1. 8 Under these circumstances, and particularly in light of the Commissioner’s failure to 9 challenge the record evidence showing that Plaintiff is Claimant’s surviving spouse and was living in the same household as Claimant at the time of her death, the Court concludes that Plaintiff 11 United States District Court Northern District of California 10 possesses Article III constitutional standing by virtue of his interest under 42 U.S.C. §§ 404(d) and 12 405(g). 13 In addition to the requirements for constitutional standing, courts have traditionally 14 adopted various prudential considerations that preclude the exercise of jurisdiction over some 15 types of cases even where constitutional standing exists. For example, the plaintiff’s claim 16 generally must relate to the plaintiff’s own legal rights and interests. See Elk Grove Unified Sch. 17 Dist. v. Newdow, 542 U.S. 1, 12 (2004). The Ninth Circuit has held that prudential standing 18 arguments can be waived if not raised in the district court. Pershing Park Villas Homeowners 19 Ass’n v. United Pac. Ins. Co., 219 F.3d 895, 899 (9th Cir. 2000). Because the Commissioner has 20 not challenged Plaintiff’s standing on prudential grounds, the Court deems the issue waived. 21 Accordingly, Plaintiff has standing to bring this action. 22 B. 23 The ALJ employed the established five-step framework for evaluation of disability claims 24 25 Merits and found as follows:  Step 1: The ALJ found that Claimant did not engage in substantial gainful activity 26 from the alleged onset date of April 15, 2003 through her date last insured of 27 June 30, 2009. AR 22. 28  Step 2: The ALJ concluded that Claimant had fibromyalgia that qualified as a 6 severe impairment. Id. 1  2 Step 3: The ALJ held that through the date last insured, Claimant did not have an 3 impairment or combination of impairments that met or medically equaled the 4 severity of one of the listed impairments in 20 C.F.R. Part 405, Subpart P, 5 Appendix 1 (20 C.F.R. 404.1520(d), 404.1525, and 404.1526). Id.  6 Step 4: The ALJ determined that through the date last insured, Claimant had the 7 residual functional capacity to perform light work as defined in 20 C.F.R. 8 404.1567(b), with certain limitations, but was unable to perform any past relevant 9 work. AR 24, 28.  10 Step 5: The ALJ concluded that considering Claimant’s age, education, work United States District Court Northern District of California 11 experience, and residual functional capacity, she had acquired work skills from past 12 relevant work that were transferable to other occupations with jobs existing in 13 significant numbers in the national economy. AR 28-29. 14 Plaintiff asserts error with respect to the ALJ’s determination of Claimant’s residual 15 functional capacity (step 4) and the transferability of her skills (step 5). Plaintiff does not seek 16 review of the ALJ’s rulings at steps 1, 2, or 3. See Pl. MSJ. The ALJ’s Assessment of Claimant’s Residual Functional Capacity 17 C. 18 Plaintiff argues that the ALJ gave too little weight to the opinion of Claimant’s treating 19 physician, David True, M.D., that Claimant was disabled. Pl. MSJ at 18-22. Specifically, 20 Plaintiff contends that the ALJ should have determined that Claimant had a number of restrictions 21 identified by Dr. True in a March 25, 2013 opinion. Id. at 19. In particular, the ALJ apparently 22 did not credit Dr. True’s opinion that (1) Claimant had significant limitations in reaching, 23 handling, and fingering; and that (2) Claimant would require unscheduled 15-minute breaks three 24 or four times a day and that she would have to keep her legs elevated at all times during the work 25 day. AR 888-89. Instead, the ALJ found that Claimant could perform light work, except that 26 “claimant was capable of occasional overhead reach with her left, non-dominant upper extremity” 27 and “occasional kneeling, crouching, crawling, and climbing stairs but never ladders, ropes, or 28 scaffolds.” AR 24. 7 1 During cross-examination, the vocational expert testified that the three alternative jobs she 2 had identified for Claimant would not be available if Claimant could do no more than occasional 3 fingering or handling, or if Claimant had to have breaks during the day to keep the legs elevated to 4 hip level and above. AR 126-27. 5 In social security disability cases, the ALJ must consider all medical opinion evidence. 6 See 20 C.F.R. § 404.1527(b), (c). Generally, the opinion of a treating physician is entitled to more 7 weight than the opinion of an examining physician, and more weight is given to the opinion of an 8 examining physician than a non-examining physician. Ghanim, 763 F.3d at 1160. A treating 9 physician’s opinion is entitled to “controlling weight” if it is “well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other 11 United States District Court Northern District of California 10 substantial evidence” in the record. 20 C.F.R. § 404.1527(c)(2). 12 If the ALJ gives a treating physician’s opinion less than controlling weight, the ALJ must 13 comply with two requirements. First, the ALJ must consider other factors specified in 20 C.F.R. 14 § 404.1527(c)(2)—such as the length of the treating relationship, the frequency of examination, 15 the nature and extent of the treatment relationship, the supportability and consistency of the 16 opinion, and the specialization of the physician—in determining what weight to give that opinion. 17 Orn v. Astrue, 495 F.3d 625, 632-33 (9th Cir. 2007). The failure to consider these factors 18 constitutes reversible error. Trevizo v. Berryhill, No. 15-16277, 2017 U.S. App. LEXIS 17979, at 19 *24 (9th Cir. Sep. 14, 2017). Second, the ALJ must provide reasons for rejecting the treating 20 physician’s opinion. Id. at *22. The legal standard those reasons must satisfy depends on whether 21 the treating physician’s opinion is contradicted. Id. If the treating doctor’s opinion is contradicted 22 by another doctor’s opinion, the ALJ may only reject the treating doctor’s opinion by providing 23 specific and legitimate reasons that are supported by substantial evidence. Id. To reject the 24 uncontradicted opinion of a treating doctor, the ALJ must state clear and convincing reasons that 25 are supported by substantial evidence. Id. 26 In this case, the ALJ stated that he gave “little weight” to the opinion of Dr. True, who 27 began treating Claimant in 2012, several years after her last insured date. AR 27. The ALJ 28 considered some of the relevant factors specified in 20 C.F.R. § 404.1527(c)(2) but failed to 8 1 identify clear and convincing reasons, supported by substantial evidence, for not giving Dr. True’s 2 uncontradicted opinion controlling weight. 3 4 5 6 7 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1. ALJ’s consideration of 20 C.F.R. § 404.1527(c)(2) factors Here, having decided not to afford Dr. True’s opinion controlling weight, the ALJ was required to analyze the factors under section 404.1527(c)(2). The ALJ addressed some of these factors. He stated that Dr. True was a primary care physician who had “treated the claimant every three months since February 2012,” which was “almost three years after her date last insured.” AR 27. The ALJ also concluded that Dr. True’s opinion “conflicts with the evidence,” including Claimant’s testimony at the 2013 hearing and her function reports and testimony. AR 27. The ALJ did not expressly address other factors under section 404.1527(c)(2), such as the nature and extent of the treatment relationship, the consistency of Dr. True’s opinion, and Dr. True’s specialty. As discussed below, even though the ALJ to some extent considered certain relevant factors, he failed to identify clear and convincing reasons, supported by substantial evidence, for discounting Dr. True’s opinion. 2. ALJ’s reasons for giving Dr. True’s opinion less than controlling weight The ALJ did not identify any medical opinions that contradicted that of Dr. True. The ALJ referred to four other doctors who completed residual functional capacity assessments, but gave these opinions “little weight” because he found that their conclusions that there was insufficient evidence to form an opinion regarding the Claimant’s functional capacity on or before her date last insured were inconsistent with the evidence. AR 27. Accordingly, Dr. True’s medical opinion was not contradicted by any other medical opinion in the record. Moreover, the medical records from the adjudicative period support, rather than contradict, Dr. True’s opinions. Dr. True’s opinion that Claimant had fibromyalgia is consistent with her diagnosis in September 2006 by her treating physician at the time, Alan L. Brodsky, M.D. As the ALJ noted, Claimant reported pain in various parts of her body including her shoulder, knee, neck, upper back, arm, hands, and feet during the adjudicative period, although some of these symptoms 9 were periodically alleviated through surgery, medication, and other treatment. See AR 25-26. As 2 for the specific limitations found by Dr. True, Claimant was seen by Deborah Westergaard, M.D., 3 a pain management specialist, on June 29, 2009, the day before her last insured date. AR 620. 4 Claimant complained of neck, arm, back, and knee pain, with the area of greatest pain intensity 5 being the neck with pain radiating into the shoulders. Id. Claimant complained of tingling in both 6 arms into the fingers, as well as radiating pain in the left arm and the fingers and palm of the left 7 hand and significant weakness in her left hand. Id. Dr. Westergaard’s physical examination found 8 “significantly decreased left hand grip strength.” AR 623. Dr. Westergaard noted deficient arm 9 reflexes and “extremely sensitive multiple cervical and shoulder area trigger points.” Id. These 10 findings are not inconsistent with Dr. True’s opinion that Claimant had limitations in reaching, 11 United States District Court Northern District of California 1 handling, and/or fingering. AR 889. 12 Because Dr. True’s opinion was uncontradicted, the ALJ was required to provide clear and 13 convincing reasons, supported by substantial evidence, for discounting that opinion. See Ghanim, 14 763 F.3d at 1160. The ALJ failed to meet this high standard. 15 16 17 a) Time period of Claimant’s treatment by Dr. True One reason the ALJ cited for discounting Dr. True’s opinion is that Dr. True’s treatment 18 commenced years after Claimant’s date last insured. AR 27. Medical evaluations made after the 19 expiration of a claimant’s insured status should not be disregarded solely on the basis that they are 20 rendered retrospectively. Smith v. Bowen, 849 F.2d 1222, 1225 (9th Cir. 1988). Nevertheless, the 21 retrospective nature of the treating physician’s opinion can, in proper cases, provide a basis for 22 discounting that opinion. For example, in Magallanes v. Bowen, the Ninth Circuit held that an 23 ALJ had properly rejected the opinion of a treating physician regarding the onset date of a 24 claimant’s disability where the physician had not treated her at that time. 881 F.2d 747, 754 (9th 25 Cir. 1989). The Court noted that a treating physician who did not begin treating a claimant until 26 after the time period at issue is “scarcely different from any non-treating physician with respect to 27 that time period.” Id. Magallanes is distinguishable from this case, however, because the treating 28 physician’s opinion in Magallanes was contradicted by other evidence, including opinions from 10 1 other physicians. Because the treating physician’s opinion conflicted with other medical opinions, 2 the ALJ was required make findings that set forth “specific, legitimate reasons for doing so that 3 are based on substantial evidence in the record.” Id. at 751. By contrast, where (as in this case) 4 the retrospective opinion of the treating physician is uncontradicted, a higher standard applies: the 5 ALJ may disregard that opinion only if he provides clear and convincing reasons that are 6 supported by the record as a whole. Id. The fact that Dr. True did not begin treating Claimant 7 until after her date last insured does not, by itself, provide a legitimate basis for discounting Dr. 8 True’s uncontradicted opinion. 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 b) Plaintiff’s daily activities Another reason the ALJ cited for giving “little weight” to Dr. True’s opinion is that it “conflicts with the evidence, including the claimant’s own testimony at the prior hearing that she was able to work fulltime in a sedentary capacity in 2006” and “the claimant’s function reports and testimonies that she was able to clean her home, cook full meals, and shop in stores.” AR 27. A treating physician’s opinion may be rejected where it conflicts with a claimant’s daily activities, but this principle has no application where “a holistic review of the record does not reveal an inconsistency between the treating providers’ opinions and [the claimant’s] daily activities.” Ghanim, 763 F.3d at 1162. Moreover, a claimant is not required to be totally incapacitated to be eligible for benefits, and “many home activities are not easily transferable to what may be the more grueling environment of the workplace, where it might be impossible to periodically rest or take medication”. Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989). The ALJ concluded that Claimant “had the residual functional capacity to perform light work as defined in 20 C.F.R. 404.1567(b) … except that claimant was capable of occasional overhead reach with her left, non-dominant upper extremity” and “occasional kneeling, crouching, crawling, and climbing stairs but never ladders, ropes, or scaffolds.” AR 24. The ALJ thus rejected certain limitations that Dr. True had found, including far more extensive limitations on reaching, handling, and fingering and the Claimant’s need to keep her legs elevated and take three to four unscheduled breaks during the work day. AR 888-89. 11 1 The evidence cited by the ALJ does not support his findings as to Claimant’s residual functional capacity for reaching, handling, or fingering. The ALJ noted that Claimant’s function 3 reports stated that she performed daily activities including cooking, cleaning, doing laundry, 4 handling personal care, paying bills, reading, watching TV, using public transportation, shopping 5 at stores such as Target, and checking mail. AR 26. But the ALJ ignored statements throughout 6 Claimant’s testimony and in her function reports showing limitations affecting Claimant’s ability 7 to reach, handle, and finger. See, e.g., AR 93 (“my hands cramp, I can’t move them sometimes”); 8 AR 97 (“It’s hard to write anything because my fingers cramp up or it’s hard to even use a 9 typewriter,” and this problem with her fingers has been going on more than ten years); AR 97-98 10 (“I need help snapping bras, doing buttons”); AR 299 (“it hurts my hand to write my fingers get 11 United States District Court Northern District of California 2 cramped”); AR 303 (“don’t do much it’s hard to do crafts & paint when my fingers cramp”); AR 12 304 (noting that her condition affects activities including reaching; “Lifting sometimes its hard to 13 lift a cup”); AR 316 (“I can’t lift anything – it causes a Burning sensation in my upper neck down 14 into my arms & shoulder Blades”); AR 317 (“hard time buttoning”); AR 321 (noting that her 15 condition affects activities including reaching and using hands). Although the ALJ noted that 16 “[t]hese function reports were dated two years after the date last insured, which suggests she was 17 even more functional during the adjudicative period” (AR 26), the ALJ does not cite any evidence 18 from the adjudicative period that conflicts with Dr. True’s opinion as to Claimant’s limitations in 19 reaching, handling, or fingering. 20 The ALJ also apparently did not credit Dr. True’s opinion that Claimant would need three 21 to four 15-minute unscheduled breaks during the day and that Claimant’s legs should always be 22 elevated. AR 888-89. But the ALJ cited no evidence that conflicted with Dr. True’s opinion. The 23 fact that Claimant may have been able “to work fulltime in a sedentary capacity in 2006” and “was 24 able to clean her home, cook full meals, and shop in stores” (AR 27) does not mean that Claimant 25 would not have needed to take frequent unscheduled breaks from work due to her pain. Claimant 26 testified that she did things around the house, like washing the dishes, that “never get finished” 27 because “I get tired and I have to sit down . . . ” AR 108. In one of her function reports, Claimant 28 stated that she needed rest while doing housework. AR 301. Claimant also stated that since her 12 1 condition began, her cooking habits changed to making easy meals or ordering out rather than 2 cooking from scratch. AR 301; AR 318. Although Claimant testified that she shopped in stores, 3 she also stated that she used a scooter or leaned on a cart to do grocery shopping. AR 109. 4 Moreover, Claimant testified that she left her 2006 job because her boss wanted her to work full 5 time rather than part time. AR 111-12; see also AR 41 (boss “wanted [her] to work more hours 6 and [she] couldn’t work the hours he was giving [her], as it was.”). 7 Non-specific evidence about a claimant’s daily activities, such as the evidence cited by the 8 ALJ, does not provide a clear and convincing reason, supported by substantial evidence, for 9 discounting a treating physician’s opinion. The Ninth Circuit’s recent decision in Trevizo v. Berryhill is instructive. In that case, the ALJ discounted an opinion by a treating physician that a 11 United States District Court Northern District of California 10 claimant could perform less than the full range of sedentary work as a result of her psoriasis and 12 other conditions. The ALJ pointed to the claimant’s childcare responsibilities as evidence 13 inconsistent with the treating physician’s opinion. Because the treating physician’s opinion in that 14 case was contradicted by the opinions of other physicians, the ALJ needed to provide only 15 “specific and legitimate reasons that are supported by substantial evidence”—rather than the “clear 16 and convincing” reasons that are required where (as here) the treating physician’s opinion is 17 uncontradicted. 2017 U.S. App. LEXIS 17979, at *22. Even so, the Ninth Circuit held that the 18 ALJ’s rejection of the treating physician’s opinion was legal error because “the record provides no 19 details as to what [the claimant’s] regular childcare activities involved,” such as “the extent to 20 which and the frequency with which [the claimant] picked up the children, played with them, 21 bathed them, ran after them, or did any other tasks that might undermine her claimed limitations.” 22 Id. at *24. “Absent specific details about [the claimant’s] childcare responsibilities, those tasks 23 cannot constitute ‘substantial evidence’ inconsistent with [the treating physician’s] informed 24 opinion. Id. at *25. 25 Similarly, in this case, where the higher “clear and convincing reasons” standard applies, 26 the record of the daily activities performed by Claimant is an insufficient basis for discounting 27 Dr. True’s opinion, especially when the ALJ has ignored evidence showing that Claimant had 28 significant limitations on her ability to perform tasks such as dressing, cooking, cleaning, and 13 1 shopping. c) 2 In further support of support of his conclusion that the medical evidence “does not support 3 4 5 6 7 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 Alleged gaps in Claimant’s treatment for fibromyalgia the claimant’s allegations about the severity of her joint pain,” the ALJ stated that after Claimant was seen by Dr. Brodsky in November 2006, “the evidence showed the claimant sought no ongoing treatment for fibromyalgia until April 2009, when she reported to Julia Graves, M.D.,” who then referred Claimant to pain management. AR 26. This finding is not supported by the record. Dr. Graves’ records from March and April 2009 recorded that Claimant had been seeing Dr. Henderson for pain management. AR 564 (March 19, 2010 progress note stating that Claimant “sees pain doc”); AR 565 (April 14, 2009 progress note stating that Claimant “was seeing [sic] Dr. Henderson – pain”). The records from Claimant’s visit with Dr. Westergaard in June 2009 confirm that Claimant “was seeing Dr. Henderson” but explain that “he is now out of practice and she does not know how to get a copy of her records.” AR 621; see also AR 623 (“Patient is unable to obtain her records. Every time she contacts her pain physician’s office she gets a message that the phone has been disconnected.”). Claimant testified that she had been seeing Dr. Henderson, a pain management specialist, but during an appointment with Dr. Henderson, “the DEA came in, along with other people, security, and shut them down.” AR 99. Claimant testified that she was without pain management for only “a couple months” before she started seeing Dr. Westergaard in June 2009. Id. Thus, there is no substantial evidence to support the ALJ’s finding that Claimant did not seek treatment for pain between November 2006 and April 2009. d) Claimant’s credibility The ALJ remarked at several points in his decision that he found that Claimant’s 24 statements concerning her symptoms were not entirely credible. See, e.g., AR 26 (“the claimant’s 25 statements concerning the intensity, persistence and limiting effects of these symptoms are not 26 entirely credible for the reasons explained in this decision”); AR 27 (“Further bearing on the 27 claimant’s credibility is her medical treatment record”). The Ninth Circuit has established a two- 28 step analysis for determining the extent to which a claimant’s testimony about her symptoms must 14 1 be credited. First, the ALJ must determine whether the claimant has presented objective medical 2 evidence of an underlying impairment which could reasonably be expected to cause some degree 3 of the symptoms alleged. Trevizo, 2017 U.S. App. LEXIS 17979, at *28. Second, if the claimant 4 satisfies the first step and there is no evidence of malingering, the ALJ can reject the claimant’s 5 testimony about the severity of her symptoms only by offering specific, clear, and convincing 6 reasons for doing so.” Id (citation omitted). “This is not an easy requirement to meet: The clear 7 and convincing standard is the most demanding required in Social Security cases.” Id. (quoting 8 Garrison v. Colvin, 759 F.3d 995, 1014-15 (9th Cir. 2014)). Here, at step 1 of the credibility determination, the ALJ found that Claimant had the severe 9 impairment of fibromyalgia that “could reasonably be expected to cause some of the alleged 11 United States District Court Northern District of California 10 symptoms.” AR 26. He nevertheless found “the claimant’s statements concerning the intensity, 12 persistence, and limiting effects of these symptoms are not entirely credible.” Id. However, at 13 step one of the credibility analysis, the claimant is not required to show her impairment could 14 reasonably be expected to cause the severity of the symptom she has alleged, and she need not 15 produce objective medical evidence of the symptom or severity thereof. Trevizo, 2017 U.S. App. 16 LEXIS 17979, at *28. Moreover, at step 2 of the credibility determination, the ALJ did not make 17 any finding of malingering. Accordingly, the ALJ could reject the Claimant’s testimony about the 18 severity of her symptoms only if he identified specific, clear, and convincing reasons for doing so. 19 Id. 20 The ALJ’s finding that Claimant was able “to work fulltime in a sedentary capacity in 21 2006” (AR 27) is not supported by the record and fails to justify the ALJ’s rejection of Claimant’s 22 testimony about the severity of her symptoms. The Claimant testified that she worked “in 23 between part time and full-time” for six months in 2006 and that she left that job, at least in part, 24 because her boss wanted her to work full time rather than part time. AR 111-12; see also AR 41 25 (boss “wanted [her] to work more hours and [she] couldn’t work the hours he was giving [her], as 26 it was.”). The evidence concerning Claimant’s 2006 job does not provide a specific, clear, and 27 convincing reason for finding her testimony regarding symptoms less than credible. Id. 28 As discussed above, the ALJ noted that Claimant’s function reports stated that she 15 1 performed daily activities but ignored statements throughout the function reports showing 2 limitations in Claimant’s use of her hands and her need for breaks throughout the day. The ALJ 3 noted that the function reports completed by Claimant “were dated two years after the date last 4 insured, which suggests she was even more functional during the adjudicative period.” AR 26. 5 He also stated that Claimant “admitted this during her testimony, when she stated that used [sic] to 6 complete ‘a lot more’ tasks.” Id. Although it is true that Claimant testified at the April 2015 7 hearing that she was “doing a lot less” than she had been doing “back then,” this testimony was 8 ambiguous as to the timing. AR 109. Claimant first saw Dr. Westergaard in June 2009. AR 26, 9 620. At the April 2015 hearing, Claimant testified as follows: 10 Q: Okay. I want you to compare what your current daily activities are to what your activities were at the time you first saw Dr. Westergaard in 2009? Are you doing more now, less now, the same now? How does it compare with back then? 13 A: I’m doing a lot less. 14 Q: Well, how much more were you doing back then? 15 A: I used to go out and take – be able to take walks and part of that time is when I worked at Fast Bucks. 17 Q: No. When did you last work at Fast Bucks? 18 A: In – Q: That was 2003, wasn’t it? A: Yeah. Q: Okay. That was six years before you saw Dr. Westergaard and you saw Dr. Westergaard – A: Because I was seeing Dr. Henderson and then they – Q: Right – A: – took me. Q: Right. So, at the time you switched from Henderson to Westergaard, were you doing a whole lot more during the day? United States District Court Northern District of California 11 12 16 19 20 21 22 23 24 25 26 27 28 16 A: 1 No. 2 3 4 5 AR 110. This ambiguous testimony does not provide a specific, clear, and convincing basis for the ALJ’s conclusion that Claimant “was even more functional during the adjudicative period” than she was at the time of her disability hearing. 6 In conclusion, as discussed above, the reasons cited by ALJ are not clear and convincing 7 8 9 10 United States District Court Northern District of California 11 12 13 reasons, supported by substantial evidence, for giving “little weight” to the uncontradicted opinion of Dr. True. Accordingly, the ALJ erred in declining to find Dr. True’s opinion to be controlling. Because the vocational expert testified that a claimant with the physical limitations described in Dr. True’s medical opinion would be unable to do the alternative jobs identified by the vocational expert, Dr. True’s opinion “alone establishes that [Claimant] is entitled to benefits.” See Trevizo, 2017 U.S. App. LEXIS 17979, at *27 (citation omitted). D. 14 At step 5, the ALJ must determine whether the claimant is able to do any other work 15 16 17 18 19 20 21 22 23 considering her residual functional capacity, age, education, and work experience. 20 C.F.R § 404.1520(g)(1). The Social Security regulations explain that transferable skills exist “when the skilled or semi-skilled work activities [the claimant] did in past work can be used to meet the requirements of skilled or semi-skilled work activities of other jobs or kinds of work.” 20 C.F.R. § 404.1568(d)(1). The regulations also state that “[t]ransferability is most probable and meaningful among jobs in which – (i) The same or a lesser degree of skill is required; (ii) The same or similar tools and machines are used; and (iii) The same or similar raw materials, products, processes, or services are involved.” 20 C.F.R. § 404.1568(d)(2). Here, the ALJ concluded that Claimant had acquired “general clerical” skills from her past 24 25 26 27 28 The ALJ’s Findings on Transferable Skills relevant work as assistant manager of a hardware store that were transferable to three other occupations with jobs existing in significant numbers in the national economy: order clerk food/beverage; data entry clerk; and appointment clerk. AR 28-29. Each job is discussed below. //// 17 Order clerk food/beverage: The vocational expert identified “order clerk 1 2 food/beverage,” Dictionary of Occupational Title (“DOT”) 209.567-14, as one job that Claimant 3 could perform. AR28. As acknowledged by the ALJ, this position has a Specific Vocational 4 Preparation (“SVP”) of 2. AR29; DOT 209.567-14. An SVP of 2 corresponds to unskilled work. 5 Social Security Ruling (“SSR”) 00-4p, 2008 SSR LEXIS 8. However, because Claimant was of 6 advanced age (57 years old) as of her date last insured and, according to the ALJ, had a severe 7 impairment that limited her to no more than light work (with limitations) (AR 24), her skills had to 8 be transferable to skilled or semiskilled light work. 20 C.F.R. 404.1568 (d)(4). The 9 Commissioner concedes that this position is not at issue because it is an unskilled job. Def. MSJ 10 at 3 n.3. United States District Court Northern District of California 11 Appointment clerk: The vocational expert identified “appointment clerk,” DOT 237.367- 12 13 010, as one job that Claimant could perform. AR29. As acknowledged by the ALJ, this position 14 has an SVP of 3. AR28; DOT 209.567-14. An SVP of 3 corresponds to semiskilled work. SSR 15 00-4p. Thus, this position meets the requirement that Claimant’s skills had to be transferable to 16 skilled or semiskilled light work. 20 C.F.R. 404.1568 (d)(4). 17 Data entry clerk: The vocational expert identified “data entry clerk,” DOT 203.582-054, 18 19 as one job that Claimant could perform. AR28. As acknowledged by the ALJ, this position has an 20 SVP of 4. AR28; DOT 209.567-14. An SVP of 4 corresponds to semiskilled work. SSR 00-4p. 21 Thus, this position meets the requirement that Claimant’s skills had to be transferable to skilled or 22 semiskilled light work. 20 C.F.R. 404.1568 (d)(4). 23 Plaintiff contends that the ALJ erred in concluding that Claimant had gained skills in her 24 25 position as an assistant store manager that were transferable to jobs as an appointment clerk or 26 data entry clerk. The Commissioner argues that Plaintiff waived these arguments and that, in any 27 event, the ALJ’s transferable skills analysis was correct. 28 //// 18 1. 1 2 Waiver The Commissioner argues that Plaintiff waived any argument concerning transferability of skills by failing to question or otherwise challenge the vocational expert’s testimony on this issue 4 during the hearing before the ALJ. Def. MSJ at 3. Even if the doctrine of issue exhaustion applies 5 in the context of social security disability determinations, a claimant can preserve issues by raising 6 them before the Appeals Council. See Brewes v. Comm’r of Soc. Sec Admin., 682 F.3d 1157, 7 1162 (9th Cir. 2012) (on review of ALJ’s decision, administrative record includes evidence 8 presented for the first time to Appeals Council). Here, Claimant raised the ALJ’s failure to 9 address whether vocational adjustment was required in her brief to the Appeals Council. AR 364- 10 65. Accordingly, Claimant did not waive her argument that the ALJ’s transferable skills analysis 11 United States District Court Northern District of California 3 was erroneous. 2. 12 13 Identification of transferable skills and vocational adjustment Plaintiff challenges the ALJ’s determination at step 5 on the grounds that the ALJ’s finding 14 that Claimant had transferable “general clerical” skills was not supported by substantial evidence. 15 See Pl. MSJ at 8. According to Plaintiff, Claimant was not asked what clerical functions she 16 performed as assistant manager, and the vocational expert did not identify what specific skills 17 would transfer. Id. at 7-8. “When transferability of skills is an issue and must be decided, the ALJ 18 is required to make certain findings of fact and include them in the written decision.” Bray, 554 19 F.3d at 1223 (quoting SSR 82-41, 1982 SSR LEXIS 34, at *19). Specifically, “[w]hen a finding is 20 made that a claimant has transferable skills, the acquired work skills must be identified, and 21 specific occupations to which the acquired work skills are transferable must be cited in the ALJ's 22 decision.” Id. 23 Moreover, “[i]n order to find transferability of skills to skilled sedentary work for 24 individuals who are of advanced age (55 and over), there must be very little, if any, vocational 25 adjustment required in terms of tools, work processes, work settings, or the industry.” Id. (citing 26 20 C.F.R. pt. 404, subpt. P, app. 2 § 201.00(f)). The vocational expert testified that the two 27 relevant jobs—appointment clerk and data entry clerk—were sedentary. AR 121-22. 28 Here, the ALJ stated that Claimant had acquired “general clerical” skills from her work as 19 1 assistant manager of a hardware store. AR 28. This is not a sufficient identification of the 2 acquired work skills. Nor did the ALJ or the vocational expert address whether Claimant, who 3 was of advanced age as of the date last insured (id.), would have to undergo more than minimal 4 “vocational adjustment” to perform successfully the tasks required of the other jobs. Because the 5 ALJ’s conclusion that Claimant was not disabled was based in part on his finding that she had 6 transferable work skills, these errors in the ALJ’s evaluation of Claimant’s transferable work skills 7 warrant a remand. See Bray, 554 F.3d at 1226. 8 9 10 3. Transferability under other rubrics Plaintiff also argues that the ALJ erred in determining that Claimant’s skills from being an United States District Court Northern District of California 11 assistant manager were transferable to other positions as an appointment clerk or data entry clerk 12 because the “work field” and “Material, Products, Subject Matter, and Services (‘MPSMS’)” 13 codes for those other positions differ from those for an assistant manager. See Pl. MSJ at 13. 14 According to Plaintiff, “[u]se of SVP [specific vocational preparation], work fields, and MPSMS 15 codes has long stood as the only acceptable methodology” for transferability of skills and that 16 “[t]ransferability does not exist between an assistant manager and an appointment clerk or data 17 entry clerk when using the universally recognized methodology of work fields and MPSMS 18 codes.” Id. at 11, 15-16. 19 Plaintiff cites no legal authority to support this argument. To the contrary, the only cases 20 the Court has identified on this issue have universally rejected Plaintiff’s argument. As another 21 court has explained: 22 23 24 25 26 The only legal authority that this Court could find that referred to the MPSMS was an unpublished Ninth Circuit memorandum decision that rejected the plaintiff's argument as "non-persuasive" that "her skills are not transferable because the alternate work positions suggested by the ALJ are not found under the same work file number or Material, Products, Subject Matter, and Services number as her prior position of Shipping and Receiving Clerk in the Dictionary of Occupational Titles." See Thompson v. Barnhart, 148 F. App'x 634, 635 (9th Cir. 2005). No other Ninth Circuit or district court case relies upon, or even cites, Plaintiff's purported "only responsible methodology" theory. 27 Garcia v. Astrue, No. 1:11-cv-00774-SKO, 2012 U.S. Dist. LEXIS 132493, at *21-22 (E.D. Cal. 28 Sept. 17, 2012); see also Hartley v. Colvin, No. 2:13-cv-1863 AC, 2014 U.S. Dist. LEXIS 159309, 20 1 *17 (E.D. Cal. Nov. 12, 2014) (“plaintiff's contention that the vocational expert must rely on 2 matching work fields and MPSMS codes when analyzing transferability is unsupported by any 3 legal authority. In fact, the regulations specify that a complete similarity of degree of skill, tools 4 and machinery used, and raw materials, products, processes or services involved ‘is not necessary 5 for transferability.’”); Nunez v. Colvin, No. EDCV 13-2131 AGR, 2014 U.S. Dist. LEXIS 133183, 6 at *12 (C.D. Cal. Sep. 22, 2014), vacated on other grounds, 673 Fed. Appx. 776 (9th Cir. 2017) 7 (rejecting argument that vocational expert must rely on matching work fields and MPSMS codes 8 when analyzing transferability). 9 Plaintiff’s argument that the ALJ erroneously failed to evaluate transferability under Program Operational Manual Systems (“POMS”) is similarly misplaced. “Court decisions have 11 United States District Court Northern District of California 10 rejected the notion that use of the POMS WF and MPSMS codes is required [and] POMS itself, 12 like the Regulations, does not require a complete similarly of all factors considered in evaluating 13 the degree of vocational adjustment required.” Engel v. Colvin, No. SACV 14-01989-JEM, 2015 14 U.S. Dist. LEXIS 144467, *13-14 (C.D. Cal. Oct. 23, 2015). 15 16 The ALJ’s reliance on the vocational expert’s testimony and the DOT in evaluating transferability of skills was proper. 17 18 E. Disposition 19 Because the Court has concluded that the ALJ erred in discounting the opinion of Dr. True 20 and in analyzing Claimant’s transferable skills, the Court must decide whether to remand the case 21 to the Social Security Administration for further proceedings or for the payment of benefits. 22 Remand is appropriate where it is not clear from the record whether the ALJ would be required to 23 find a plaintiff disabled if all the evidence were properly evaluated. See Benecke v. Barnhart, 379 24 F.3d 587, 595 (9th Cir. 2004). However, “where the record has been developed fully and further 25 administrative proceedings would serve no useful purpose, the district court should remand for an 26 immediate award of benefits.” Id. at 593 (citations omitted). “More specifically, the district court 27 should credit evidence that was rejected during the administrative process and remand for an 28 immediate award of benefits if (1) the ALJ failed to provide legally sufficient reasons for rejecting 21 1 the evidence; (2) there are no outstanding issues that must be resolved before a determination of 2 disability can be made; and (3) it is clear from the record that the ALJ would be required to find 3 the claimant disabled were such evidence credited.” Id. (citations omitted). Because the Court concludes that the ALJ did not provide legally sufficient reasons for 4 discounting the opinion of Dr. True, that opinion is treated as true. See id. at 594. Dr. True’s 6 opinion, credited as true, mandates an award of benefits. Dr. True opined that Claimant had 7 limitations in her reaching, handling, and fingering abilities and would need to take breaks and 8 keep her legs elevated throughout the work day. AR 889-91. At the administrative hearing, the 9 vocational expert admitted that these limitations would not be accommodated in the alternative 10 jobs she had identified for Claimant—appointment clerk or data entry clerk. AR 126-27. Thus, 11 United States District Court Northern District of California 5 the evidence already in the record establishes that Claimant cannot perform her past relevant work 12 or other jobs in the national economy. Moreover, no additional evidence can be adduced from 13 Claimant on remand because she is now deceased. Under these circumstances, remand with a direction for payment of benefits is appropriate. 14 15 16 IV. CONCLUSION For the reasons discussed above, the Court GRANTS Plaintiff’s motion for summary 17 judgment, DENIES the Commissioner’s motion for summary judgment, and REMANDS for the 18 calculation and award of benefits. 19 20 SO ORDERED. Dated: October 6, 2017 21 22 SUSAN VAN KEULEN United States Magistrate Judge 23 24 25 26 27 28 22

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