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Malone v. Colvin

United States District Court, N.D. California

December 30, 2014



JOSEPH C. SPERO, Magistrate Judge.


Plaintiff Tamara Lynn Malone ("Plaintiff, " "Malone") seeks review of the final decision of the Defendant Carolyn W. Colvin, Acting Commissioner of Social Security ("Defendant" or "Commissioner") denying Plaintiff's application for disability benefits under the Social Security Act. Plaintiff moves for summary judgment, asking the Court to reverse the Commissioner's denial of benefits and remand with instructions to award benefits, or, in the alternative, for further administrative proceedings. Dkt. No. 15 ("Motion"). Defendant moves to remand for further administrative proceedings. Dkt. No. 22 ("Def. Motion"). For the reasons stated below, the Court DENIES Plaintiff's Motion for Summary Judgment and GRANTS IN PART Defendant's Motion for Remand.


A. Procedural Background

Plaintiff applied for disability benefits on January 19, 2011, alleging that she had been disabled since June 1, 2008. Administrative Record ("AR") at 163-64. On appeal to the Appeals Council, Plaintiff requested that her alleged onset date be amended to January 1, 2010. AR at 263. Plaintiff's application was denied April 8, 2011. AR at 78-84. Plaintiff submitted a request for reconsideration, which was denied May 27, 2011. AR at 86-90. Plaintiff subsequently submitted a request for a hearing by an Administrative Law Judge; a hearing was scheduled for September 21, 2011, and continued to November 7, 2011. AR at 31-77. At the November 7 hearing, Administrative Law Judge Kristine Kwan ("ALJ") and Plaintiff's attorney representative questioned Plaintiff and a vocational expert. AR at 13, 38-77. The ALJ wrote a decision dated December 30, 2011 on behalf of the Social Security Administration, finding Plaintiff not disabled and denying Plaintiff's claim. AR at 14-30. Plaintiff requested a review of the ALJ's decision, and on August 10, 2013 the Social Security Administration's Appeals Council declined to grant the request for review. AR at 1-5. The Appeals Council's action resulted in the ALJ's decision becoming the agency's final decision.

Plaintiff filed this action on October 9, 2013 under 42 U.S.C. § 405(g), which gives the Court jurisdiction to review the final decision of the Commissioner. Plaintiff has filed a motion for summary judgment, and Defendant has filed a motion to remand for further proceedings. Dkt. Nos. 15, 22. This action was reassigned to the undersigned magistrate judge, and the parties have consented to the jurisdiction of a United States magistrate judge pursuant to 28 U.S.C. § 636(c).

B. The Administrative Hearing

Plaintiff, her attorney representative, and a vocational expert appeared before the ALJ on November 7, 2011. AR at 31-77. The ALJ confirmed that Plaintiff's attorney did not have any objections to evidence in the file and admitted exhibits into the record. Id. at 40-41. The ALJ then questioned Plaintiff about her home life, work history, and medical conditions, including physical limitations as they impacted her previous work and mental and emotional issues. Id. at 31-77. The ALJ asked Plaintiff about her most recent employment, which ended June 1, 2008, her engagement with state agencies, and her ongoing search for work. Id. at 42-46. Plaintiff testified that she was "on Disability at first" after her last job, id. at 45, and received a settlement payment of $40, 000 related to a workers' compensation case for her colitis on the basis that it was stress-induced. Id. at 44-48. The ALJ clarified that the settlement did not include continuing health insurance, and Plaintiff responded, "No. I needed the money." Id. at 48-49. Plaintiff testified that she "wouldn't have a choice at this point" but to take a job if offered to her, but that she "wouldn't be able to keep it" because she "would be absent from that job" because of her colitis. Id. at 45-46.

Plaintiff testified that at the time of the hearing she was being treated by Elizabeth Maritano, a physician's assistant, for her colitis, and had been treated by Dr. Heather Pachiatti before her health insurance ended in December 2010 as part of the settlement of her workers' compensation claim. Id. The ALJ Plaintiff testified that she took "Pepto Bismol or Imodium" for her colitis and that she had tried sulfates but had an adverse reaction. Id. at 47-48. She testified that she also was taking "Norco, " which "helps with the colitis symptoms" though it was prescribed for an unrelated ankle injury. Id.

Asked by the ALJ if there is "any other reason that keeps you from working?" Plaintiff testified that she has "a hard time with keeping at [the] task at hand, " and "that makes it difficult to work" and "[i]t makes it difficult at home." Id. at 49. She testified that she had been treated by Dr. Leyla Brusatori, a psychologist, with sessions at first once a week and later once a month, but she could no longer afford to see her. Id. at 49-50. Previously she had been treated by Dr. Valerie Fox. Id. at 51. Plaintiff testified that in addition to the medications described above, she also takes Prozac, Klonopin, Trazodone, and Flonase, with no side effects. Id. at 50-51.

The ALJ then asked Plaintiff about her typical day. Plaintiff responded, "I just recently relocated after living in a house for 20 years, and so, I'm trying to put my house together. I have several animals that I have to care of...." Id. at 52. She testified that she and her husband care for 20 cats and four dogs, in two kennels that they made from a converted sunroom in their new home, and that her son helps her with the animals as well. Id. at 52-54. She also described basic chores she does around the house, the difficulty she has with some activities like cleaning floors, and the pain she experiences when driving. Id. at 54-55.

Plaintiff then described her colitis symptoms. She said she has "flare ups... at least once a week, " which can "last up to three days, " or could start in the afternoon and be over by the evening. Id. at 55-56. She said she takes Norco, Pepto Bismol, and Imodium for the symptoms, has tried Entocort, and that she is supposed to eat "bland" food, which she does "when [she] can." Id. at 56-57. She has been recommended to see a specialist, but when the ALJ asked if she makes "any special, additional appointments with the doctor" when she has "a flare-up, Plaintiff responded that she "just take[s] care it [her]self." Id. at 58. Questioned by her attorney, Plaintiff stated that the first onset of her colitis was in 2004, and that she would have symptoms during the workday. Id. She had to use the restroom up to ten times per day with no warning, and when the symptoms presented at night, she would be tired the next day. Id. at 58-59. She testified that she left her job as a medical secretary and subsequently worked as an administrative assistant, and she "left that job, because [she] was missing too much work due to the colitis." Id. at 59. After working part-time at a veterinarian's office "a couple days a week, " she apparently took a full-time job there, but "only lasted there about three [months]." Id. She subsequently worked as a file clerk "and they let me go due to the absences." Id.

Plaintiff next described her depression. She said it can be "debilitating, " but that she also has "manic episodes, " and affirmed that she has "good days and bad days for [her] depression" when asked. Id. She said she can go about her normal routine on a good day, but on a bad day she "stay[s] in bed, " or that she has to "force [her]self to do everything." Id. She testified that she has "had this for all my life, " and that her recent move has "helped the depression." Id.

After hearing testimony from Plaintiff, the ALJ questioned the vocational expert ("VE") about the availability of jobs Plaintiff could perform, given her limitations, and the transferability of Plaintiff's skills from past work to those jobs. AR at 61-76. The vocational expert testified that Plaintiff's past work-as an accounts receivable clerk, medical secretary, administrative assistant, administrative clerk, and receptionist-were all semi-skilled or skilled sedentary positions in the Dictionary of Occupational Titles, with a specific vocational preparation ("SVP") range of 4-7, though as the Plaintiff performed them the vocational expert stated they in fact were light work. Id. at 62-63. The VE testified that the skills from these positions "would easily all transfer to the semi-skilled range of general office clerk, that kind of thing, " id. at 63, and indicated that there were many such jobs available in that category. "[B]ut outside of that range, in and around administration clerical work, " the skills would not transfer. Id. The VE provided the example of a "general clerk"-with either an SVP of 3 classified as light work, or an SVP of 4 classified as sedentary work-for which Plaintiff's skills would be transferable, and suggested that position was exemplary of numerous similar jobs. Id.

The ALJ next posed hypotheticals to the VE about the Plaintiff's ability to perform certain jobs with certain restrictions. First, the ALJ asked if "an individual with claimant's age, education, and background, " and "no exertional restrictions, " but who would be "off task... five percent of the time" could perform any of Plaintiff's past work. Id. at 64. The VE responded, "Yes, I believe so." Id. Responding to a second hypothetical, the VE testified that past work could be still be performed at the same off-task percentage with additional limitations of "standing and talking a total of four hours in an eight-hour day." Id. at 64-65. When Plaintiff's attorney posed a variation on that hypothetical in which the worker would be absent three times per month, unscheduled, " id. at 66, the VE responded, "certainly, no employer is going to tolerate this level of absences, just beyond anything that would be considered industry standard." Id.

Removing the three-day absence factor, and returning to just the time off task, Plaintiff's attorney next asked about the same hypothetical but with off-task time increased to "30 minutes per day, approximately, " the VE responded:

A:... with some of these jobs we're going to lose them.
Q: Okay.
A: However, I believe there would still be other work available. These jobs do have a certain level of responsibility and accuracy attached to them. I think five percent would be acceptable, but I think at ten percent, especially when you're talking about jobs like medical secretary, administrative assistant, receptionist, I think they would be [INAUDIBLE]

Id. at 66. The VE indicated that other, "production-oriented" work could still be performed, as opposed to the semi-skilled "clerically-oriented task[s]" that would apparently be precluded, "with that level of erosion." Id. at 67. The attorney's follow-up question and the VE's answer confirmed that "past relevant work would be out" at the ten percent off-task threshold, but that production-oriented work "would still be on the table." Id. at 68. However, if the hypothetical worker was unable to perform "tandem work, " then even considering the availability of production-oriented jobs the worker would be "unskilled" according to the VE. Id. at 68-72. The VE also responded to additional hypothetical questions that varied on that theme. The VE testified that "a person... working at an unskilled level... off task... 30 minutes a day" would "still [be] within acceptable tolerances." Id. at 73. However, if that same hypothetical worker "[w]ould require extra supervision of an additional 30 minutes of supervision a day, and would require written instructions for all tasks, " the VE testified that he did not "think it's going to fly with these entry level production jobs" after "the first 30 days." Id. at 75. And when asked if there would be any jobs available if the hypothetical worker "were off task for one hour per day, " the VE testified:

Yeah, we're right at the edge of the hour a day. I mean, you know, I'm talking in terms of 10 and 15 percent. And, you know, 10 percent of a 480 hour workday is 48 minutes. So, I mean, you push it up to an hour, and you're - you know, you're maybe around 12 percent or so. I'm not trying to, you know, really be that concise, but my suggestion is that if you're missing more than, say, an hour's worth of production during the course of a day, I think you're getting very close to the edge here.
You know, there's no documentation out that says that 15 percent is the absolute[]. But I am suggesting to you that if you have a person that's going to be off task as much of an hour a day in terms of their output, that that's the line.

Id. at 75-76.


A. Legal Standard for Determination of Disability

Disability insurance benefits are available under the Social Security Act when an eligible claimant is unable "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment... which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A); see also 42 U.S.C. § 423(a)(1). A claimant is only found disabled if his physical or mental impairments are of such severity that he is not only unable to do his previous work but also "cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." 42 U.S.C. § 423(d)(2)(A). The claimant bears the burden of proof in establishing a disability. Gomez v. Chater, 74 F.3d 967, 970 (9th Cir.), cert. denied, 519 U.S. 881 (1996).

The Commissioner has established a five-step sequential evaluation process to determine whether a claimant is disabled under the Social Security Act. 20 C.F.R. § 404.1520(a). At step one, the Commissioner considers whether the claimant is engaged in "substantial gainful activity." 20 C.F.R. § 404.1520(a)(4)(I). If he is, the Commissioner finds that the claimant is not disabled, and the evaluation stops. If the claimant is not engaged in substantial gainful activity, the Commissioner proceeds to step two and considers whether the claimant has "a severe medically determinable physical or mental impairment, " or combination of such impairments, which meets the duration requirement in 20 C.F.R. § 404.1509. An impairment is severe if it "significantly limits [the claimant's] physical or mental ability to do basic work activities." 20 C.F.R. § 404.1520(c). If the claimant does not have a severe impairment, disability benefits are denied at this step. If it is determined that one or more impairments are severe, the Commissioner will next perform step three of the analysis: comparing the medical severity of the claimant's impairments to a compiled listing of impairments that the Commissioner has found to be disabling. 20 C.F.R. § 404.1520(a)(4)(iii). If one or a combination of the claimant's impairments meet or equal a listed impairment, the claimant is found to be disabled. Otherwise, the Commissioner proceeds to step four and considers the claimant's residual functional capacity ("RFC") in light of his impairments and whether he can perform past relevant work. 20 C.F.R. § 404.1520(a)(4)(iv); 20 C.F.R. § 404.1560(b) (defining past relevant work as "work... done within the past 15 years, that was substantial gainful activity, and that lasted long enough for [the claimant] to learn to do it"). If the claimant can still perform past relevant work, he is found not to be disabled. If the claimant cannot perform past relevant work, the Commissioner proceeds to the fifth and final step of the analysis. 20 C.F.R. § 404.1520(a)(4)(v). At step five, the burden shifts to the Commissioner to show that the claimant, in light of his impairments, age, education, and work experience, can perform other jobs in the national economy. Johnson v. Chater, 108 F.3d 178, 180 (9th Cir. 1997). A claimant who is able to perform other jobs that are available in significant numbers in the national economy is not considered disabled, and will not receive disability benefits. 20 C.F.R. § 404.1520(f). Conversely, where there are no jobs available in significant numbers in the national economy that the claimant can perform, the claimant is found to be disabled. Id.

B. The ALJ's Analysis

1. Step 1: Substantial Gainful Activity

The ALJ concluded that Plaintiff "did not engage in substantial gainful activity during the period from her alleged onset date of June 1, 2008 through her date last insured of December 31, 2010" Id. at 19.

2. Step 2: Severe Impairments

The ALJ determined that "[t]hrough the date last insured, [Planitiff] had the following severe impairments: colitis and depressive disorder." Id.

3. Step 3: Medical Severity

The ALJ found that "[t]hrough the date last insured, the claimant did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments." Id.

4. Step 4: Residual Functional Capacity

The ALJ found that:

through the date last insured, the claimant had the residual functional capacity to perform a range of sedentary work as defined in 20 CFR 404.1567(a). The claimant has no limitations in her ability to sit for extended periods of time, can stand for a total of four hours in an eight hour day, and can be off task up to five percent of a typical workday due to nonexertional limitations.

Id. at 21.

In reaching this conclusion, the ALJ considered Plaintiff's testimony at the hearing, written statements from Plaintiff and Plaintiff's husband, Plaintiff's medical and treatment records, a medical records review by a medical examiner, and testimony by a vocational expert. The ALJ determined that Plaintiff's "medically determinable impairments could reasonably be expected to cause the alleged symptoms, " id. at 22, but that "the claimant's statements concerning the intensity, persistence and limiting effects of these symptoms are not credible to the extent they are inconsistent with the above residual functional capacity assessment." Id. The ALJ described factors from Plaintiff's work history (including the end of her previous job, her worker's compensation claim and settlement, and her ongoing job search), home life (including caring, with her husband, for up to 20 cats and four dogs), deviation from her prescribed diet, medication history, and her medical records in determining that Plaintiff's claims as to the intensity, persistence, and limiting effects of the alleged symptoms were not credible. See id. at 22-25.

The ALJ particularly described Plaintiff's medical history and records with regard to four doctors:

Dr. Elizabeth Shaw, M.D. AR at 24; see AR at Ex. 16F (pp.611-616). Dr. Shaw co-signed a "colitis medical source statement" with a physician's assistant, [1] dated October 25, 2011. The medical source statement is a four-page form with checkboxes for several questions and blanks for short (0-2 line) handwritten responses. See AR at Ex. 16F. The ALJ describes Dr. Shaw as Plaintiff's "treating doctor" (the form indicates Dr. Shaw treated Plaintiff starting April 7, 2011, AR at 612) and gives "significant weight... to the findings overall as it is supported by the medical evidence of record." AR at 24 (emphasis added). The ALJ described Dr. Shaw's findings as follows:

[C]laimant is not currently taking any medications for colitis, and... emotional factors do not contribute to the claimant's symptoms and functional limitations. They opined that the claimant is capable of sitting at least 6 hours; standing/walking about 4 hours; can lift and carry frequently up to 10 pounds and occasionally 20 and 50 pounds; claimant may likely be off task 5% of the work day due to her symptoms; claimant is capable of low stress jobs due to having intermittent symptoms due to stress.

Id. (citations omitted). Dr. Shaw's medical source statement in fact stated that claimant may likely be off task 10% of the work day, as discussed below. AR at 614. Additionally, the ALJ "gives no weight to the opinion that the claimant would miss three days per month as it is purely speculative and without any rationale." AR at 24 (emphasis added); see AR at 614 (response to question 12(m), checking the box for "About three days per month").

Dr. Leyla Brusatori, Ph.D. AR at 24; see AR at Ex. 15F/7 (p. 606), Ex. 17F (pp. 617-622). Dr. Brusatori's records referenced by the ALJ include a one-page "progress note entry" and a "Medical Source Statement Concerning the Nature and Severity of an Individual's Mental Impairment" id., and are part of what the ALJ calls the "very limited records" concerning Plaintiff's mental health treatment. AR at 24. The ALJ cites the progress note entry as indicating Plaintiff's mental health was good, or at least improving, as of the date of the appointment, September 29, 2011. Id. The ALJ contrasts the progress note entry with Dr. Busatori's medical source statement, dated October 26, 2011, which found "several moderately severe limitations in three of four areas of functioning, " and which diagnosed Plaintiff with a Global Assessment of Functioning ("GAF") score of 50. Id. at 617-622. The ALJ calls the contrast between the progress note entry and the medical source statement "perplexing." Id. at 24. The ALJ describes Dr. Brusatori's diagnoses (including, e.g., "major depressive disorder, recurrent") as "without any explanation or rationale for the dramatic change." Id. The ALJ gives Dr. Brusatori's medical source statement "limited weight, " id. (emphasis added), on the basis that it

is not consistent nor supported by Dr. Brusatori's the [sic] contemporaneous evidence or anywhere else in the substantial medical record. Specifically, the doctor noted that the claimant was not taking any of her psychiatric medications in October of 2011. Further, the depression and anxiety screenings were negative. Lastly, there is no explanation or support for how Dr. Brusatori's findings are relevant since 2007, especially since, as she says she began seeing the claimant just 6 months ago.... Moreover, Dr. Brusatori concedes much of claimant's problems are merely situational with financial instability.

Id. (citations omitted).

Dr. Hosein Tahami, D.O., Q.M.E. AR at 24-25; see AR at Ex. 3F (pp. 385-520). Dr. Tahami "provided several reports in August 10, 2008, October 31, 2007, March 2, 2007, and January 30, 2007 (the last three reports dated prior to the alleged onset date) in connection with [Plaintiff's] worker's compensation claim." AR at 24 (citation omitted). The ALJ discusses Dr. Tahami's records as relevant to Plaintiff's depression claim, as the worker's compensation claim was for mental health effects related to leaving her November 2006 job. The ALJ cites Dr. Tahami's review of records and his conclusions in 2007 that Plaintiff "was not temporarily totally disabled based on psychiatric illness or symptoms" by the events that led to her worker's compensation claim, and that Plaintiff "can actually benefit from returning to some type of employment'" (quoting Dr. Tahami directly). Id. (citations omitted). The ALJ also notes that in October 2007, Dr. Tahami stated that "new medical records do not change his opinion from the previous report." Id. The ALJ does not explicitly state the weight given to Dr. Tahami's conclusions-only that "[c]onsideration was... made."

Dr. Valerie Fox, Ed.D. AR at 25; see AR at Ex. 3F (pp. 486-489). The ALJ discusses Dr. Fox's psychological treatment records, dated from December 2008 to August 2010, in the context of his discussion of Dr. Tahami. AR at 25. The ALJ cites Dr. Fox's records as diagnosing Plaintiff with "major depression, recurrent (mild) with GAF scores ranging from 58 to 65.2, " as noting "significant periods of absence from therapy, " and as indicating that Plaintiff "continues on Prozac and Klonopin and... looking for part-time work with a good prognosis with treatment." AR at 25 (citations and footnote omitted). The ALJ does not assign a particular weight to Dr. Fox's records.

5. Step 5: Ability to Perform Other Jobs in the National Economy

The ALJ concluded that:

[t]hrough the date last insured, the claimant was capable of performing past relevant work as a receptionist, accounts receivables clerk, medical secretary, administrative assistan[t], and administrative clerk. This work did not require the performance of work related activities precluded by the claimant's residual functional capacity.

AR at 25. The ALJ states that she compared Plaintiff's RFC with the physical and mental demands of this work and found that Plaintiff would be able to perform it. Id. The ALJ also cites to the vocational expert's testimony as supporting the conclusion that Plaintiff "could perform the job of receptionist, accounts receivables clerk, medical secretary, administrative assistan[t], and administrative clerk as generally performed relying on the Dictionary of Occupational Titles in accordance with our regulations." Id.

6. Conclusion

The ALJ therefore concluded that Plaintiff "was not under a disability, as defined in the Social Security Act, at any time from June 1, 2008, the alleged onset date, through December 31, 2010, the date last insured." AR at 25.


A. Plaintiff's Motion for Summary Judgment

Plaintiff filed a complaint seeking review of the ALJ's decision, and moved for summary judgment on the grounds that the ALJ "did not properly assess [Plaintiff's] RFC, " and erred at step 4 and step 5. Motion at 9. Plaintiff argues that the ALJ, in reaching her conclusion as to Plaintiff's RFC, improperly rejected Plaintiff's testimony and certain medical evidence (particularly from Dr. Brusatori and Dr. Shaw). Plaintiff argues that based on those errors, ...

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