Fernandez v. Berryhill

Filing 24

ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT'S CROSS MOTION FOR SUMMARY JUDGMENT. Re: Dkt. Nos. 20 , 22 . Signed by Judge Nathanael Cousins. (lmh, COURT STAFF) (Filed on 6/12/2018)

1
2
3
4
5

UNITED STATES DISTRICT COURT

6

NORTHERN DISTRICT OF CALIFORNIA

7
8

BAUTISTA FERNANDEZ,
Plaintiff,

9
10

United States District Court
Northern District of California

11
12

v.
NANCY A. BERRYHILL,
Defendant.

Case No. 17-cv-03552-NC
ORDER GRANTING PLAINTIFF’S
MOTION FOR SUMMARY
JUDGMENT AND DENYING
DEFENDANT’S CROSS MOTION
FOR SUMMARY JUDGMENT
Re: Dkt. Nos. 20, 22

13
14
15

Plaintiff Bautista Fernandez seeks judicial review of the commissioner of Social

16

Security Nancy Berryhill’s denial of his application for a period of disability and disability

17

insurance benefits under Title II of the Social Security Act. Fernandez alleges that the

18

Administrative Law Judge (ALJ) erroneously found him not disabled. Specifically,

19

Fernandez argues the ALJ (1) failed to properly weigh the medical evidence in assessing

20

Fernandez’s residual functional capacity (RFC); and (2) improperly found he could

21

perform past relevant work based on that RFC.

22

The Court finds the ALJ lacked substantial evidence and committed legal error in

23

determining Fernandez’s RFC and finding Fernandez not disabled based on his ability to

24

perform past relevant work. Therefore, the Court GRANTS Fernandez’s motion for

25

summary judgment and DENIES Commissioner Berryhill’s cross motion for summary

26

judgment. The Court REVERSES the ruling of the ALJ and REMANDS with instructions

27

to calculate benefits.

28
Case No.17-cv-03552-NC

1

I.

BACKGROUND

2

A. Procedural History

3

Prior to this action, Bautista Fernandez filed an application for a period of disability

4

and disability insurance benefits under Title II of the Social Security Act on December 17,

5

2013 alleging disability commencing December 7, 2012. AR 178–82. The commissioner

6

initially denied the claim. AR 93–96. Fernandez requested reconsideration and was

7

denied on August 6, 2014. AR 99–105. Fernandez requested a de novo hearing before an

8

ALJ. AR 106–07. ALJ Betty Roberts Barbeito presided over the hearing on November 4,

9

2015. AR 39–66. The ALJ found Fernandez not disabled on January 8, 2016. AR 18–34.

10

Fernandez requested that the Appeals Council review the ALJ decision. AR 170–

United States District Court
Northern District of California

11

71. The Appeals Council denied the request on May 10, 2017. AR 1–9. On that date, the

12

ALJ decision became the final decision of the Commissioner. 42 U.S.C. § 405(h).

13

Fernandez timely requested review by the Court, under 42 U.S.C. § 405(g), by filing his

14

complaint on June 20, 2017. Dkt. No. 1. Fernandez then moved for summary judgment

15

and Commissioner Berryhill filed an opposition and cross motion for summary judgment.

16

Dkt. Nos. 20, 22. Both parties consented to the jurisdiction of a magistrate judge, pursuant

17

to 28 U.S.C. § 636(c). Dkt. Nos. 8, 10.

18

B. Factual History

19

Fernandez is a 62-year-old United States citizen, born in Mexico. AR 44–45.

20

Fernandez worked as a strawberry picker for over 30 years. AR 53. In December 2012,

21

Fernandez stopped working because of knee pain and has not returned to work since. AR

22

45–46. Fernandez sought treatment over the next several years. Dkt. No. 20 at 4–9.

23

Significantly, Fernandez had surgery to repair his knee in April 2013. Dkt. No. 21 at 5.

24

Despite the procedure, Fernandez alleges ongoing debilitating knee pain. Dkt. No. 21 at

25

5–9. Aside from his knee, Fernandez alleges several other impairments, including: finger

26

and hand pain, vertigo, high cholesterol, and tendonitis. AR 26.

27
28

Case No. 17-cv-03552-NC

2

1
2

1. Medical Evidence
The medical record includes treatment notes and opinion evidence from: Dr. B.

3

Carlson, Dr. C. Heywood, Dr. M. Romo-Gritzwesky (Dr. Romo,) Dr. J. Villaruz, Dr. L.

4

Miller, and Dr. S. Suh. AR 240–77, 280–395. The record also contains opinion evidence

5

from consultative examiner Dr. Daniel Katzenberg and non-examining state medical

6

consultants, Dr. L. Kiger and Dr. B. Sheehy. AR 67–91, 278–79. Additionally, non-

7

examining physician Dr. L.A. Fuchs testified at the ALJ hearing. AR 24.

8
9

In January 2013, Fernandez saw Dr. Carlson about pain and stiffness in his left
knee. Dkt. No. 21 at 4. Dr. Carlson referred Fernandez to physical therapy and ordered an
MRI. Dkt. No. 21 at 4. In March 2013, Dr. Carlson referred Fernandez to Dr. Heywood

11

United States District Court
Northern District of California

10

who recommended surgery. Dkt. No. 21 at 4–5. Dr. Heywood performed the surgery in

12

April 2013 and shortly afterwards noted that Fernandez was doing well. Dkt. No. 21 at 5.

13

In June 2013, Fernandez returned to Dr. Heywood, still complaining of knee pain and Dr.

14

Heywood suggested that he continue physical therapy. Dkt. No. 21 at 6. Also in June

15

2013, Fernandez saw Dr. Romo complaining of back pain and Dr. Romo diagnosed

16

Fernandez with lumbago. Dkt. No. 21 at 6. In March 2014, Fernandez saw Dr.

17

Katzenberg complaining of knee pain as well as pain in random body parts at any given

18

time; Dr. Katzenberg noted several pain trigger points but noted that Fernandez had no

19

difficulty walking, hopping, or balancing on either foot. Dkt. No. 21 at 6. In April 2014,

20

Fernandez saw Dr. Villaruz complaining of multiple joint pains; Dr. Villaruz found

21

nothing abnormal but continued Fernandez’s pain medication prescription. Dkt. No. 21 at

22

6–7. In May 2014, Fernandez saw Dr. Miller complaining of leg weakness; Dr. Miller

23

found decreased motion in multiple joints and knee osteoarthritis. Dkt. No. 21 at 6–7.

24

Finally, in July 2015, Fernandez saw Dr. Suh complaining of sharp pain in his leg when

25

getting up from a sitting position; Dr. Suh found knee osteoarthritis “with varus

26

deformities” and joint complications. Dkt. No. 21 at 9.

27
28

Case No. 17-cv-03552-NC

3

2. The ALJ Hearing

1

On January 13, 2018, the ALJ conducted a hearing to review Fernandez’s

2
3

application for a period of disability and disability insurance benefits. AR 34. Fernandez

4

was present and represented by counsel at the hearing. AR 24. Fernandez, Dr. Fuchs, and

5

vocational expert (VE) J. C. Westman each testified at the hearing. AR 24. Fernandez

6

testified with the assistance of a Spanish interpreter. AR 24.

7

Fernandez testified that he could not work because of knee pain. AR 46. He said

8

that his knees “hurt a lot” and that his knees gave out when he bent his legs. AR 54. He

9

also said that he did not do any kneeling or crawling because it was difficult for him to
stand up from the ground. AR 54. Fernandez claimed that he could not lift more than four

11

United States District Court
Northern District of California

10

pounds or drive more than three miles. AR 56, 58. He said his only hobbies were staying

12

at home and watching TV. AR 59.
Fernandez also testified that he could not see a doctor “that much” because he could

13
14

not afford to. AR 55. He said that his insurance company refused to pay beyond the first

15

visit to Dr. Miller. AR 55. He said that he paid for one visit to Dr. Miller “out of [his]

16

pocket” and then saw Dr. Suh once. AR 55. He claims he only saw Dr. Suh once because

17

he didn’t give him “any prescription” and only told him to work “straight” instead of

18

“hunched over.” AR 55. Fernandez testified that he only took Tylenol for pain, at the time

19

of the hearing. AR 56. He also took cholesterol medication and aspirin, as a blood

20

thinner. AR 56.
Dr. Fuchs testified as to Fernandez’s residual functional capacity (RFC.) AR 49–

21
22

52. The doctor noted no decreased ability to work and assigned him an RFC of medium.1

23
24
25
26
27
28

Medium Work: “Claimant can lift 50 pounds occasionally and 25 pounds frequently,
stand and/or walk with normal breaks for six hours in an eight-hour day, and sit with
normal breaks for six hours in an eight-hour day; pushing and pulling is unlimited other
than what is noted for lifted [sic] and carrying. The claimant can frequently climb ramps,
stairs, ladders, ropes, or scaffolds as well as frequently balance, stoop, kneel, crouch, and
crawl. The claimant has no manipulative, visual, communicative, or environmental
limitations.” AR 28.
1

Case No. 17-cv-03552-NC

4

1

AR 50. However, the doctor explained that crouching, kneeling, and stooping should each

2

be limited to “occasional.”2 AR 51. Thereafter, the ALJ confirmed with Dr. Fuchs that

3

Fernandez could climb ladders frequently, but had no further questions regarding the

4

postural limitations. AR 52.
The VE testified as to Fernandez’s ability to perform past relevant work, given his

6

RFC. AR 60–65. The VE classified Fernandez’s past work as that of “vegetable harvest

7

worker” rather than “fruit harvest worker” because strawberries grow near the ground and

8

thus, picking them was more in line with the Dictionary of Occupational Titles’ (DOT)

9

“vegetable harvest worker” description. AR 61. The ALJ posed a hypothetical to the VE,

10

outlining a medium RFC without the postural limitations proposed by Dr. Fuchs. AR 62.

11

United States District Court
Northern District of California

5

The VE concluded that a person with the RFC as described would be able to perform work

12

relevant to a strawberry picker as generally performed in the national economy. AR 62.
Next, Fernandez’s attorney questioned the VE. AR 63–65. The attorney asked the

13
14

VE if the past relevant work would be within the RFC of a person who could only stoop

15

and kneel occasionally. AR 63. The VE concluded that a person with those restrictions

16

could not perform Fernandez’s past relevant work. AR 64. The attorney also questioned

17

the VE on the hours a harvest worker was expected to work per day. AR 65. The VE said

18

he did not know how many hours harvest workers were expected to work typically. AR

19

65. He concluded that the hours were “at least eight” and “likely up to 10.” AR 65.

20

Thereafter, the ALJ remarked that “even if [the number of hours] did get up to 10 . . . the

21

DOT is based on an eight-hour workday.” AR 65.

22

3. The ALJ Decision
To qualify for disability benefits under the Social Security Act, a claimant must first

23
24

be determined eligible under the requirements of 20 C.F.R. § 416.202. If eligible, a

25

claimant must be unable “to engage in any substantial gainful activity by reason of any

26
27
28

“Occasionally” means occurring from very little up to one-third of the time.
“Frequently” means occurring from one-third to two-thirds of the time. SSR No. 83-10.
Case No. 17-cv-03552-NC
5
2

1

medically determinable physical or mental impairment which can be expected to result in

2

death or which has lasted or can be expected to last for a continuous period of not less than

3

12 months.” 48 U.S.C. § 1382c(a)(3)(A). An ALJ uses a five-step evaluation to determine

4

if a claimant is disabled. 20 C.F.R. § 416.920(a)(1). If the ALJ cannot determine whether

5

the claimant is disabled at any step, the ALJ proceeds to the next step. Id.

6

i. Insured Status and Steps 1-3

7
8

As a preliminary matter, the ALJ determined Fernandez was eligible for disability
benefits because he met the Social Security Act’s insured status requirements. AR 26.
The ALJ could not determine whether or not Fernandez was disabled at step one,

10

two, or three. AR 26–27. At step one, the ALJ determined that Fernandez had not been

11

United States District Court
Northern District of California

9

engaged in substantial gainful activity since December 7, 2012. AR 26. At step two, the

12

ALJ determined that Fernandez had the following severe impairments: bilateral knee

13

osteoarthritis with varus deformities; complex medial meniscal tear in the left knee; status

14

post meniscectomy; multiple-joint pain; cervical spondylosis; and lumbar spondylosis with

15

mildly irritated left sciatic nerve. AR 26. At step three, the ALJ determined that

16

Fernandez did not have an impairment or combination of impairments “that [met] or

17

medically equal[ed] the severity of one of the listed impairments.” AR 27; see 20 C.F.R. §

18

404.1520(d). The ALJ then proceeded to determine the RFC and evaluate step four.

19
20

ii. RFC Determination
Before proceeding to step four, an ALJ must determine the claimant’s residual

21

functional capacity (RFC.) 20 C.F.R. § 416.945(a)(4)(iv). To determine RFC, an ALJ

22

considers all of the claimant’s severe impairments collectively. Id. § 416.945(a)(2).

23

The ALJ determined RFC based on review of (1) Fernandez’s symptom testimony;

24

(2) treatment notes and medical opinions in the record; and (3) Dr. Fuchs’s expert

25

testimony. AR 28-33.

26
27
28

First, the ALJ rejected Fernandez’s symptom testimony which indicated that he was
in constant pain, unable to sit or kneel down, and could not lift more than four pounds.
Case No. 17-cv-03552-NC

6

1

The ALJ found the subjective testimony “not entirely credible” because it was inconsistent

2

with the medical record as a whole.

3

Second, the ALJ gave little weight to treating physicians Dr. Heywood and Dr.

4

Romo-Gritzewsky’s opinions which indicated that Fernandez should not work from June

5

2013 through December 2013. AR 31. The ALJ reasoned that the opinions each went “to

6

an issue reserved for the commissioner” and therefore could not be “given special

7

significance.” AR 31. She noted, however, that they must still be considered in evaluating

8

the RFC. AR 31. Nonetheless, she assigned them little weight because neither set forth

9

“abnormal examination findings” nor “specific work-related limitations.” AR 31.
The ALJ also gave little weight to examining physician Dr. Katzenberg’s opinion

11

United States District Court
Northern District of California

10

which indicated that Fernandez was “subjectively impaired by pain at all times.” AR 32,

12

279. The ALJ reasoned that Dr. Katzenberg made no objective findings to justify the pain.

13

AR 32. Therefore, she gave the opinion little weight because it was based mostly on

14

Fernandez’s subjective complaints of pain. AR 32.

15

The ALJ also gave little weight to examining physician Dr. Suh’s opinion which

16

indicated that Fernandez should “perform no reclining.” AR 32. The ALJ reasoned that

17

there was no examination finding to support the opinion. AR 32. Therefore, he gave the

18

opinion little weight because it had no objective basis. AR 32.

19

The ALJ gave great weight to the non-examining state medical consultants’

20

opinions which indicated that Fernandez could perform medium work but only frequently

21

balance, stoop, kneel, crouch, and crawl. AR 32. The ALJ reasoned that the opinions

22

were consistent with the medical evidence as presented to them. AR 32. Therefore, she

23

gave the opinions great weight because they did not conflict with the objective medical

24

evidence. AR 32.

25

Finally, the ALJ gave great weight, in part, to non-examining physician Dr. Fuchs’s

26

opinion which indicated that Fernandez could perform medium work but could “only

27

occasionally” kneel, crouch, and stoop. AR 32. The ALJ reasoned that Dr. Fuchs had a

28

Case No. 17-cv-03552-NC

7

1

level of experience that gave him “great insight into the functional limitations imposed by

2

claimant’s knee problems.” AR 32. Therefore, she gave great weight to Dr. Fuchs’s

3

determination of “medium work” because it was fully consistent with the objective

4

medical evidence. AR 32. However, she gave Dr. Fuchs’s opinion of only occasionally

5

postural limitation little weight because “the record [did] not include findings that

6

[Fernandez could not] perform frequent postural activities.” AR 33.

7

Thus, the ALJ concluded that Fernandez had an RFC of medium without Dr.

8

Fuchs’s postural limitation of occasional crouching, kneeling, and stooping. AR 28. The

9

ALJ then proceeded to step four.
iii. Step Four

10

At step four, an ALJ determines whether the claimant can perform past relevant

United States District Court
Northern District of California

11
12

work. 20 C.F.R. 20 § 416.945(a)(4)(iv). An ALJ applies the RFC and must determine if

13

the claimant can perform past relevant work as actually performed or, alternatively, as

14

generally performed in the national economy. C.F.R. 20 § 416.920(f), 416.960(b).
The ALJ determined whether Fernandez could perform past relevant work of a

15
16

strawberry picker based on the testimony of the VE. AR 33. The ALJ accepted the VE’s

17

confirmation that a hypothetical worker with an RFC equivalent to Fernandez’s could

18

perform the work of a strawberry picker. AR 62. The ALJ disregarded the questions by

19

Fernandez’s attorney about generally expected hours for harvesters exceeding the eight

20

hours envisioned by the DOT. AR 64–65.
Thus, the ALJ concluded that Fernandez could perform past relevant work as

21
22

generally performed in the national economy and was therefore not disabled. AR 33.

23

After his request for review was denied by the social security appeals counsel,

24

Fernandez filed this complaint seeking this Court’s review of the ALJ’s decision. AR 1–9;

25

see 42 U.S.C. § 405(h).

26

II.

27
28

LEGAL STANDARD
Summary judgment is proper when there is no genuine dispute of material fact and

Case No. 17-cv-03552-NC

8

1

the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex

2

Corp. v. Catrett, 477 U.S. 317, 322 (1986).
A district court has the “power to enter, upon the pleadings and transcript of the

3
4

record, a judgment affirming, modifying, or reversing the decision of the Commissioner of

5

Social Security, with or without remanding the case for a rehearing.” 42 U.S.C. § 405(g).

6

The decision of the Commissioner should only be disturbed if it is not supported by
substantial evidence or based on legal error. Burch v. Barnhart, 400 F.3d 676, 679 (9th

8

Cir. 2005). Substantial evidence is evidence that a reasonable mind would accept as

9

adequate to support a conclusion. Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir.

10

2005). Where evidence is susceptible to more than one rational interpretation, the ALJ’s

11

United States District Court
Northern District of California

7

decision should be upheld. Andrews v. Shalala, 53 F.3d 1035, 1039–40 (9th Cir. 1995).

12

III.

13

DISCUSSION
Fernandez alleges: (1) the ALJ’s finding that Fernandez had the residual functional

14

capacity (RFC) to perform medium work without postural limitation is not supported by

15

substantial evidence; and (2) the ALJ’s finding that Fernandez could perform past relevant

16

work as generally performed is not supported by substantial evidence. Dkt. No. 20 at 4, 7.

17

The Court finds the ALJ committed legal error in determining Fernandez’s RFC, and that

18

substantial evidence does not support the ALJ’s RFC determination. The Court also finds

19

that the ALJ committed legal error in finding Fernandez could perform past relevant work,

20

and that substantial evidence does not support her finding. Finally, the Court remands with

21

instructions to calculate and award damages.

22
23
24

A. The ALJ Committed Legal Error and Lacked Substantial Evidence in
Determining Fernandez’s RFC.
Fernandez alleges the ALJ improperly determined Fernandez’s RFC because she

25

improperly weighed the opinion evidence. Dkt. No. 20 at 4. Although Fernandez does not

26

raise the issue, the Court also examines the ALJ’s weighing of Fernandez’s symptom

27

testimony because it is critical to the decision here. The Court finds that the ALJ

28

Case No. 17-cv-03552-NC

9

1

committed legal error and lacked substantial evidence in weighing both the medical

2

opinions and Fernandez’s symptom testimony.
1. The ALJ Committed Legal Error and Lacked Substantial Evidence

3

in Weighing the Medical Opinion Evidence.

4
5

Fernandez makes two arguments that the ALJ erred in weighing the medical

6

evidence. First, Fernandez alleges that the ALJ had an affirmative obligation to develop

7

the record further in resolving conflicting non-examining opinions. Dkt. No. 20 at 7.

8

Second, Fernandez alleges that the ALJ improperly weighed Dr. Fuchs’s testimony. Dkt.

9

No. 20 at 6. The Court finds that the ALJ did not have an obligation to develop the record
further. However, the Court agrees that the ALJ improperly weighed Dr. Fuchs’s

11

United States District Court
Northern District of California

10

testimony.
i. The ALJ Did Not Err in Failing to Develop the Record Further.

12
13

For his proposition that the ALJ was obligated to further develop the record,

14

Fernandez cites: Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001); and Brown v.

15

Heckler, 713 F.2d 441, 443 (9th Cir. 1983). Neither case presents binding or persuasive

16

precedent to the case at issue. Here, unlike in Tonapetyan, Fernandez was represented by

17

an attorney. And here, unlike Brown, the ALJ investigated via a hearing, not merely

18

through written interrogatories. Indeed, the ALJ provided the opportunity for Fernandez’s

19

attorney to examine experts, asked questions herself, and resolved conflicts as they arose.

20

Therefore, the Court finds the ALJ did not shirk her responsibility to thoroughly develop

21

the record.

22
23
24

ii. The ALJ Erred in Giving Little Weight to Dr. Fuchs’s
Opinion.
Fernandez next argues that the ALJ improperly weighed Dr. Fuchs’s opinion. Ninth

25

Circuit precedent distinguishes three types of physician opinions: (1) those written by

26

physicians who treat the claimant (treating physicians); (2) those written by physicians

27

who only examine the claimant (examining physicians); and (3) those written by

28

Case No. 17-cv-03552-NC

10

physicians who neither treat nor examine the claimant (non-examining physicians). Lester

2

v. Chater, 81 F.3d 821, 830 (9th Cir. 1996) (as amended). Where medical opinions

3

contradict, it is “solely the province of the ALJ to resolve the conflict.” Andrews, 53 F.3d

4

at 1041 (citing Magallanes 881 F.2d at 751); see also Chaudry v. Astrue, 688 F.3d 661,

5

671 (9th Cir. 2012). An ALJ may reject a treating, examining, or non-examining

6

physician’s opinion contradicted by another physician’s opinion only if an ALJ cites

7

“specific and legitimate” reasons supported by substantial evidence in the record for

8

rejection. Andrews, 53 F.3d at 1041; Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998);

9

Sousa v. Callahan, 143 F.3d 1240, 1244 (9th Cir. 1998). This can be done by “setting out

10

a detailed and thorough summary of the facts and conflicting clinical evidence, stating his

11

United States District Court
Northern District of California

1

interpretation thereof, and making findings.” Lester, 81 F.3d at 830-31 (quoting

12

Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)).

13

Here, the Court finds that the ALJ failed to provide specific and legitimate reasons

14

for favoring the non-examining state medical consultants’ opinion over non-examining

15

physician Dr. Fuchs’s opinion. The ALJ failed to meet the “specific and legitimate”

16

standard when she substituted her lay-medical opinion for a physician’s—asserting only

17

that the record “did not contain findings” to justify Dr. Fuchs’s opinion. AR 33; see Day v.

18

Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975) (explaining that hearing examiner

19

inappropriately based rejection of testimony on description of symptoms in medical

20

textbook outside of the record.) Furthermore, her reason fails because it is nothing more

21

than boilerplate and provides no substantive basis for the conclusion. Garrison v. Colvin,

22

759 F.3d 995, 1013–15 (9th Cir. 2014) (finding ALJ erred in pointing to the medical

23

record as a whole, rather than detailing contradictions and inconsistencies with rejected

24

testimony). Therefore, the ALJ committed legal error in weighing the medical opinion

25

evidence.

26
27
28

Furthermore, the Court finds that the ALJ’s claim is not supported by substantial
evidence because the medical record actually does contain findings that support Dr.
Case No. 17-cv-03552-NC

11

1

Fuchs’s opinion. For example: Dr. Suh and Dr. Miller both independently diagnosed

2

Fernandez with painful osteoarthritis. Also, all physicians’ treatment notes contain fairly

3

consistent symptom testimony from Fernandez as to his joint pain. AR 32; Dkt. No. 20 at

4

6–9; AR 53; see Garrison, 759 F. 3d at 1014 (explaining that the ALJ erred in failing to

5

address treatment notes and accounts of consistent patient pain testimony that conflicted

6

with RFC determination). Thus, substantial evidence in the record does not support the

7

ALJ’s claim that the record “did not contain findings indicating that Fernandez cannot

8

perform frequent postural activities.” AR 33. Therefore, the ALJ’s justification fails

9

legally—lacking specificity and legitimacy—as well as substantively—lacking substantial

10

evidence.
2. The ALJ Committed Legal Error and Lacked Substantial Evidence

United States District Court
Northern District of California

11

in Rejecting Fernandez’s Symptom Testimony.

12
13

When evaluating claimant’s testimony of subjective pain, an ALJ engages in a two-

14

step analysis.3 Garrison, 759 F.3d at 1014–15. First, the ALJ evaluates whether objective

15

medical evidence “could reasonably be expected to produce the pain” alleged. Id. (quoting

16

Lingenfelter v. Astrue, 504 F.3d 1028, 1035–36 (9th Cir. 2007)). The claimant is not

17

required to show that his impairment is expected to cause the severity of pain claimed; he

18

only needs to show that the impairment could cause some degree of pain. Smolen v.

19

Chater, 80 F.3d 1273, 1282 (9th Cir. 1996). Second, if the claimant satisfies step one and

20

there is no evidence of malingering, the ALJ can reject the claimant’s testimony about the

21

severity of his symptoms only by offering specific, clear and convincing reasons for doing

22

so. Id. at 1281. “This is not an easy requirement to meet: the clear and convincing

23

standard is the most demanding required in Social Security cases.” Garrison, 759 F.3d

24

1014–15 (quoting Moore v. Comm’r of Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir.

25

2002) (internal quotation marks omitted)).

26
27
28

3

This two-step process is contained in the RFC determination which occurs before step
four of the disability determination.
Case No. 17-cv-03552-NC
12

1

At step one, the ALJ found that the “medically determinable impairments could

2

reasonably be expected to cause” Fernandez’s alleged symptoms. AR 29. The ALJ made

3

no finding of “malingering.” AR 25–34. On both of those points, the Court agrees. Thus,

4

the ALJ was obligated to proceed to step two and provide “clear and convincing reasons”

5

for rejecting Fernandez’s testimony. Garrison, 759 F.3d at 1014-15.

6

At step two, the ALJ improperly disregarded Fernandez’s symptom testimony by

7

merely referencing the objective medical evidence instead of providing clear and

8

convincing reasons for finding Fernandez not credible. AR 28-31. “While an ALJ may

9

find testimony not credible in part or in whole, he or she may not disregard it solely
because it is not substantiated affirmatively by objective medical evidence.” Robbins v.

11

United States District Court
Northern District of California

10

SSA, 466 F.3d 880, 883 (9th Cir. 2006). Moreover, finding that the medical evidence

12

could support Fernandez’s symptoms at step one and then pointing to the medical record at

13

step two as lacking support was illogical, and clear legal error. See id. (explaining that

14

ALJ’s assertion that testimony is inconsistent with the medical record as a whole “is

15

exactly the type [of justification] we have previously recognized the regulations prohibit”).

16

Therefore, the ALJ erred in evaluating Fernandez’s RFC because she dismissed his

17

symptom testimony without properly evaluating his credibility at step two.

18

Furthermore, even if objective medical evidence alone were legally sufficient to

19

discredit subjective testimony at step two, the ALJ’s recital of the medical record lacked

20

“clear and convincing” reasons for disregarding Fernandez’s symptom testimony. The ALJ

21

recounted both the symptom testimony and medical evidence thoroughly, but failed to

22

clarify her rationale for finding the severity of the symptoms unsupported by the record.

23

Specifically, the ALJ failed to articulate why Fernandez should be able to “frequently”

24

perform postural activities despite Fernandez’s claim that he couldn’t kneel at all.

25

At best, the ALJ’s review of the medical record provided a mixed bag of evidence.

26

For instance, the ALJ recited Dr. Carlson’s notes of “no apparent distress” and “normal

27

gait,” but then, in the same paragraph, she noted that MRI results revealed a “complex tear

28

Case No. 17-cv-03552-NC

13

1

of the posterior horn of the medial meniscus.” AR 29. Also, the ALJ recited Dr.

2

Heywood’s (Fernandez’s surgeon) notes that one month after knee surgery in April 2013,

3

Fernandez was “doing quite well”; then she noted that Dr. Heyward found atrophy in left

4

quadriceps and recommended Fernandez be off-work for “two-more months” in June

5

2013. AR 29-31. Finally, the ALJ recited Dr. Katzenberg’s notes of “no difficulty

6

walking on his heels or toes, tandem walking, or hopping on either foot”; however, the

7

Court notes that these are not activities that Fernandez claimed to be disabled from doing,

8

nor are they clearly dispositive of kneeling, crouching, and stooping. AR 28, 30. Also, the

9

ALJ later noted that Dr. Katzenberg found “trigger points” and that Fernandez was
“subjectively impaired by pain at all times.” AR 32. The ALJ recited the medical record

11

United States District Court
Northern District of California

10

thoroughly, but the record itself did not clearly or convincingly undermine Fernandez’s

12

symptom testimony on its face and the ALJ provided insufficient reasons for how the

13

medical record informed her finding.

14

Finally, the Court notes that none of the typical and legally proper bases for

15

discrediting a claimant existed here. First, Fernandez complained of disabling knee pain

16

consistently. Second, he sought treatment from several physicians, none of which noted

17

any suspicions that Fernandez was “malingering.” Third, his financial situation made it

18

difficult for him to seek consistent treatment and, despite this, he sought treatment

19

numerous times.

20

Therefore, the ALJ erred in determining Fernandez’s RFC because she failed to

21

provide legally sufficient reasons supported by substantial evidence for discrediting

22

medical and symptom testimony.

23
24
25

B. The ALJ Committed Reversible Harmful Legal Error when She
Concluded that Fernandez Was Not Disabled at Step Four.
Fernandez’s second major argument is that the ALJ erred in finding Fernandez not

26

disabled at step four. First, Fernandez alleges that the ALJ failed to meet her obligation to

27

resolve a conflict between the VE testimony and the DOT definition about work hours.

28

Case No. 17-cv-03552-NC

14

1

Dkt. No. 20 at 9. Second, Fernandez alleges that the improper RFC determination resulted

2

in harmful error at the ALJ’s step four determination of non-disability. Dkt. No. 20 at 7.

3

The Court finds that no conflict existed between the VE and DOT and thus it was not legal

4

error for the ALJ to not resolve. However, Fernandez is correct that the RFC

5

determination was improper and critical in determining Fernandez was not disabled.

6

Therefore, the ALJ committed harmful legal error at step four.
1. The ALJ Did Not Err in Failing to Resolve a Conflict Between the

7

DOT and VE Because No Such Conflict Existed.

8

The first issue Fernandez raises is whether the ALJ needed to resolve a conflict

9

between the VE and the DOT definition at step four. At step four, an ALJ determines if

11

United States District Court
Northern District of California

10

the claimant can perform past relevant work. Pinto v. Massanari, 249 F.3d 840, 845 (9th

12

Cir. 2001). An ALJ relies primarily on the Dictionary of Occupational Titles (DOT) in

13

making this determination. Massachi v. Astrue, 486 F.3d 1149, 1153 (9th Cir. 2007). An

14

ALJ may also hear the testimony of a vocational expert (VE) to determine ability to

15

perform past relevant work. Id. An ALJ has an affirmative obligation to (1) determine if a

16

conflict between the VE and the DOT exists; and then (2) to resolve it. Id.
During the testimony of the VE, the ALJ met her first obligation by confirming that

17
18

the VE would advise her if there was a “need to deviate” from the DOT regarding

19

Fernandez’s past relevant work. AR 61. Then, when the VE did in fact state a conflict—

20

that work as a strawberry picker is more like the DOT definition of “vegetable harvester”

21

than “fruit harvester”— the ALJ met her second obligation by obtaining an explanation

22

and allowing the VE to proceed with a hypothetical based on “vegetable harvester.” AR

23

61.

24

Fernandez alleges that the VE had a further conflict with the DOT as to work hours.

25

However, there was no conflict because when Fernandez’s attorney suggested that actual

26

work hours for a strawberry picker were closer to 10 hours, the VE only said that the hours

27

“likely” were greater than eight, but “could not say for certain.” AR 65. Thus, if any

28

Case No. 17-cv-03552-NC

15

1

conflict existed, it was between Fernandez’s attorney and the VE, not between the VE and

2

the DOT. The ALJ is only obligated to determine if a conflict exists between the VE and

3

the DOT. Massachi, 486 F.3d at 1153. Therefore, the ALJ did not err in not inquiring

4

more about work hours because the VE did not confirm the conflict.

5
6
7

2. The ALJ Applied an Improperly Determined RFC that Was Critical
to Concluding Fernandez Could Perform Past Relevant Work
Fernandez next asserts that the improper RFC led to an improper step four outcome.

8

An ALJ uses the RFC to determine if the claimant can do past relevant work. Garrison,

9

759 F.3d at 1011. The claimant is not disabled if he can perform actual past work or

10

relevant work as performed generally in the national economy. Pinto, 249 F.3d at 845.

United States District Court
Northern District of California

11

As discussed above, the ALJ committed legal error and lacked substantial evidence

12

in determining Fernandez’s RFC: medium work with “frequent” kneeling, crouching, and

13

stooping. The ALJ relied on the VE testimony that a worker with “frequent” postural

14

limitations would still be able to perform the work of a strawberry picker and determined

15

that Fernandez was not disabled. AR 33, 62. Furthermore, when Fernandez’s attorney

16

asked the VE to use the postural limitations determined by Dr. Fuchs (“occasional”

17

postural limitations) the VE concluded that Fernandez would be excluded from the work of

18

a strawberry picker. AR 63. Thus, the conflict between a RFC with “occasional” rather

19

than “frequent” was critical to the determination of non-disability. Therefore, the ALJ

20

committed harmful legal error at step four.

21
22
23

C. The Case is Properly Remanded with Instructions to Calculate and Award
Benefits.
Having concluded that the ALJ erred in the RFC determination and step four

24

finding of no disability, the Court turns next to the proper remedy. The Court finds that

25

Ninth Circuit precedent supports remanding with instructions to calculate benefits because

26

(1) the requirements of the “credit-as-true” rule are met and (2) no “serious doubt” exists

27

as to Fernandez’s disability.

28

Case No. 17-cv-03552-NC

16

1
2

1. The Three Requirements of the Credit as True Rule Are Met.
If additional proceedings can remedy an error by the ALJ, a social security case
should be remanded. Lewin v. Schweiker, F.2d 631, 635 (9th Cir. 1981). However, courts

4

are empowered to affirm, modify, or reverse a decision by the Commissioner “with or

5

without remanding” for a rehearing. 42 U.S.C. § 405(g). In appropriate circumstances,

6

courts are “free to reverse and remand a determination by the Commissioner with

7

instructions to calculate and award benefits.” Garrison, 759 F.3d at 1014–15 (collecting

8

cases). A case is properly remanded with instructions when no issues are left to be

9

resolved before a proper disability determination can be made and it is clear that a finding

10

of disability would be required if improperly weighed testimony was credited. Varney v.

11

United States District Court
Northern District of California

3

Sec’y of Health & Human Servs., 859 F.2d 1396, 1415–16 (9th Cir. 1988).

12

Varney has been applied as the “credit-as-true” rule, having three requirements: (1)

13

the record has been fully developed so that further proceedings would be useless; (2) the

14

ALJ has failed to provide legally sufficient reasons for rejecting claimant testimony or

15

medical opinion; and (3) if the improperly discredited evidence were accepted as true, the

16

ALJ would be required to find the claimant disabled. Garrison, 759 F.3d at 1014–15; see

17

also Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1202 (9th Cir. 2008); Lingenfelter, 504

18

F.3d at 1041; Orn, 495 F.3d at 640; Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir.

19

2004); Smolen, 80 F.3d at 1292.

20

Here, on the first requirement, the Court finds that the record is sufficiently

21

developed such that additional proceedings would be useless. Fernandez’s medical history

22

is longitudinal and the ALJ had the opportunity to question both Fernandez and Dr. Fuchs

23

at the hearing. AR 29, 43–56. Allowing the ALJ to decide the issue again would create an

24

unfair “heads we win; tails, let’s play again” system of disability benefits adjudication.

25

Benecke, 379 F. 3d at 595 (remanding with instructions and explaining that further

26

proceedings can delay much needed income for claimants who are unable to work).

27
28

Second, as discussed above, the ALJ failed to provide legally sufficient reasons for
Case No. 17-cv-03552-NC

17

1
2

rejecting Fernandez’s symptom testimony and Dr. Fuchs’s medical opinion.
Third, the Court finds that if Fernandez’s testimony or Dr. Fuchs’s opinion were

3

credited as true, then the finding of disability would be compulsory. Fernandez testified

4

that he cannot kneel because of his knee pain. AR 54. Thus, credited as true, Fernandez

5

would be unable to even “occasionally” kneel, much less “frequently” kneel—as required

6

by his past relevant work. Therefore, Fernandez would be disabled per the testimony of

7

the VE. AR 63. Similarly, if Dr. Fuchs’s opinion were credited as true, then Fernandez

8

would be able to only “occasionally” perform postural activities. Therefore, again,

9

Fernandez would be disabled per the testimony of the VE. AR 63.

10

United States District Court
Northern District of California

11
12
13

Thus, all three requirements of the “credit-as-true” rule are met.
2. The Court Finds No “Serious Doubt” Exists Regarding Whether
Fernandez Was Disabled.
The “credit-as-true” rule is not mandatory in all cases; even when all requirements

14

are met, the Court has “flexibility” to remand for further proceedings. Connett v.

15

Barnhart, 340 F.3d 871, 876 (9th Cir. 2003). Specifically, when the record as a whole

16

creates “serious doubt” that a claimant is disabled, the Court may remand for further

17

proceedings despite the “credit-as-true” rule. Garrison, 759 F.3d at 1021.

18

The Court finds no “serious doubt” regarding Fernandez’s disability because the

19

ALJ’s disability determination is supported only by the non-examining, state consultants’

20

medical opinion, which conflicts with the other improperly rejected physician’s opinions

21

and the symptom testimony of Fernandez himself.

22

In addition to Dr. Fuchs and Fernandez’s improperly disregarded testimony, the

23

medical record as a whole is rife with support for a finding of disability. Dr. Heyward—a

24

treating physician whose opinion is presumptively due great weight, and the only person in

25

the medical record who took a look inside Fernandez’s knee—noted that Fernandez should

26

be off work. AR 251. Dr. Romo also noted that Fernandez should not work till the end of

27

December 2013. AR 259. Finally, Dr. Miller and Dr. Suh both diagnosed Fernandez with

28

Case No. 17-cv-03552-NC

18

1

osteoarthritis. AR 303, 310.
This case turns on one particular issue: can Fernandez “frequently” or only

3

“occasionally” kneel? Fernandez testifies that his pain prevents him from kneeling at all.

4

No treating or examining physician cast any doubt on Fernandez’s sincerity. The Court

5

recognizes that the medical record contained a mixed bag of objective findings that, when

6

taken in isolation, raises some doubt about Fernandez’s disability. However, the Court

7

finds that, when considered alongside the medical opinions and consistent symptom

8

testimony, the record does not cast “serious doubt” about Fernandez’s disability. The

9

Court sees no benefit in remanding for further proceedings and is wary of the potential

10

injustice of delaying benefits further. Accordingly, the case is properly remanded with

11

United States District Court
Northern District of California

2

instructions to calculate and award benefits.

12

IV.

13

CONCLUSION
For the reasons stated above, the Court finds the ALJ committed legal error and

14

lacked substantial evidence to find Fernandez not disabled. Thus, the Court DENIES

15

Berryhill’s cross motion for summary judgment and GRANTS Fernandez’s motion for

16

summary judgment. The Court REVERSES the decision of the ALJ and REMANDS for

17

calculation of benefits.

18

IT IS SO ORDERED.

19
20

Dated: June 12, 2018

21

_____________________________________
NATHANAEL M. COUSINS
United States Magistrate Judge

22
23
24
25
26
27
28

Case No. 17-cv-03552-NC

19