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Fortier v. Berryhill

United States District Court, N.D. California

March 30, 2018



          ELIZABETH D. LAPORTE, United States Magistrate Judge

         Plaintiff Cecilia Fortier and Defendant Acting Commissioner of Social Security both moved for summary judgment in this social security appeal. Plaintiff argues that the Administrative Law Judge (“ALJ”) erred because the ALJ improperly rejected the opinions and testimony of several doctors and Plaintiff's therapist. Because the ALJ failed to provide clear and convincing reasons for rejecting those opinions, the Court REMANDS for further proceedings.

         I. BACKGROUND

         Plaintiff Cecelia Deborah Ann Fortier was born in 1980. AR 205. She attended special education from 1986 to 1995. AR 244. She also completed two years of college. AR 244. She has some training and education for emergency medical technician (“EMT”), criminal justice, hazardous material handling and disposal, and “Rig safety training CPR Rig Pass.” AR 244. She alleges disability based on combined mental and physical impairments, including cervical spine degenerative disc disease, irritable bowel syndrome, asthma, affective disorders, attention deficit hyperactivity disorder, post-traumatic stress disorder (“PTSD”), and personality disorder.


         On September 21, 2012, Plaintiff filed for Social Security Disability Insurance Benefits. AR 205-06. On September 25, 2012, she filed for Supplemental Security Income disability benefits. AR 207-15. On May 24, 2013, the claims were initially denied. AR 20. On September 5, 2013, the claims were denied upon reconsideration. AR 20.

         On October 1, 2014, an ALJ held a hearing on Plaintiff's claims. The ALJ held the record open following the hearing to allow Plaintiff to submit additional argument. AR 20. On May 20, 2015, the ALJ issued a decision finding that Plaintiff was not disabled. AR 33. Plaintiff requested review of the ALJ's decision by the Appeals Council, and submitted argument and additional evidence. AR 15, AR 375-81. The Appeals Council declined to grant the request for review but “looked at medical records” that Plaintiff had submitted with the appeal. AR 1-2. The Appeals Council stated that the records did not affect the decision about whether Plaintiff was disabled as of May 20, 2015, because they were “information about a later time.” AR 2. Plaintiff now seeks judicial review of the decision that she is not disabled.


         A. Plaintiff's Evidence

         A social worker helped Plaintiff fill out a disability report in October 2012. AR 252. At that time, Plaintiff was homeless and was not on any of her prescribed medications, except for her asthma medication. AR 252. In that report, Plaintiff stated that she had stopped working on April 20, 2010. AR 244. She stated that she stopped working because of her conditions and because her sister, for whom she had been working, had moved out of state. AR 244. The social worker included additional information at the end of the disability report, stating that Plaintiff had been unclear about all the dates of employment and pay. AR 252.

         On the same day, Plaintiff completed a work history report.[1] AR 231-41. She listed work as a bartender from May 2010 to October 2011 and as a horse riding instruction from January 2009 to July 2012. AR 231. She also had experience as a lab assistant, a personal assistant, and a phlebotomist. AR 231. She listed that, as a bartender, she earned $680 per month and worked nine hours per day, six days per week. AR 232. She did not fill out any other details about the responsibilities of her position. AR 232. She listed that, as a horse riding instructor, she earned $650 a month and worked ten hours per day, six days per week. AR 233. She did not fill out any other details about the responsibilities of her position. AR 232.

         Plaintiff also completed an adult function report. AR 305-13. She stated that she lived with her fiancé and caregiver. AR 305. She stated that her conditions limited her ability to work because she had panic attacks that made her unable to cope with stress or conflict; social anxiety which made her unable to maintain a schedule or sleep pattern; night terrors; emotional outburst; severe depression; body pain and joint swelling; vomiting up to six times a day; diarrhea from 12-20 times a day; and was unable to bend her left knee, had muscle rigidity and spasms, ongoing PTSD symptoms, and loss of strength in her limbs. AR 305.

         Her daily activities included vomiting several times, taking cannabis, eating, napping, watching television, feeding her dogs, and letting the dogs in from the yard. AR 306. She stated that, before her illness, her daily activities had included typing, riding horses, working, having sex, sleeping, having personal relationships and friends, driving, and caring for her animals and children. AR 306. Once a week she went to domestic violence class counseling for an hour. AR 306. She did not provide care for anyone else. AR 306. She stated that her roommate helped her by driving her everywhere. AR 306. Although able to shave, dress, use the toilet, and care for her hair herself, she needed to use a chair or have someone with her when she bathed, or else she would fall. AR 306. She needed reminders to bathe, brush her teeth, eat, and take her medications. AR 307.

         She prepared her own meals about twice a week, but hardly cooked at all due to joint pain and the fact that she would get dizzy if she stood for too long. AR 307. She did laundry and sweeping once a week and dusting once a month. AR 307. She also helped with the dishes. AR 307. To do these chores, she needed moral support and encouragement from her roommate. AR 307. She did not do more house or yard work because of pain, anxiety, joint pain, and muscle rigidity. AR 308.

         Plaintiff went outside on average four times a week, to counseling and doctor's appointments. AR 308. Severe panic attacks, confusion, anxiety, and fear prevented her from going out alone. AR 308. She did not drive for emotional and physical reasons. AR 308. She could count change but otherwise did not handle finances, including paying bills, having a savings account, or a checking account because she could not focus long enough, would forget, and had anxiety about having no money. AR 308. Before the onset of her alleged disability, she used to do accounts payable and receivable, and had handled her accounts as a horse trainer when she was self-employed. AR 309.

         Before, Plaintiff's hobbies included hiking, horseback riding, biking, movies, and racquetball. AR 308. After her conditioned worsened her hobbies changed to movies, reading, and astronomy. AR 308. On a regular basis, Plaintiff visited her children, went to therapy, went to clinics and doctors, and attended domestic violence counseling. AR 309. Plaintiff needed reminders for these outings. AR 309. She had trouble getting along with family, friends, neighbors, and others because she had no tolerance for stress. AR 310. She would lock herself in the bathroom anytime anyone yelled. AR 310.

         Plaintiff stated that her joint pain, anxiety, and muscle rigidity affected her ability to do physical activities including lifting, walking, climbing stairs, squatting, sitting, kneeling, and using her hands. AR 310. They also affected her memory, concentration, understanding, speech, hearing, and abilities to complete tasks, get along with others, and follow instructions. AR 310. Plaintiff could only walk for five to ten minutes at a time before she needed a rest. She could not follow written instructions because they frustrated her. AR 310. She could not follow spoken instructions well because she would usually complete things backwards, if at all, and would walk out of a room to get something and instantly forget what she was going to get. AR 310. She was terrified of authority figures, could not handle stress at all, and could not handle changes in her routine. AR 311. She had to wear orthopedic shoes when walking longer than a quarter mile. AR 311. Plaintiff took medicine for vomiting, anxiety, diarrhea, blurry vision, muscle rigidity, nausea, restlessness, and shakiness. AR 312.

         At the hearing, the ALJ asked Plaintiff about her work as a bartender and horseback riding instructor. AR 45. Plaintiff could not confirm with certainty the dates that she had listed for her work as a bartender, but stated that they “sound[ed] right.” AR 45. She agreed that she was working as a horseback riding instructor in 2009 and 2012. AR 46. She testified that she had some trouble doing both of these jobs because she had panic attacks, a loss of strength, and stress interfered. AR 46.

         Plaintiff testified that some days she tried to get her children's homework together but often she would just be in bed and her significant other, David Rembert, would take care of everything. AR 51-52. On days that she stayed in bed all day it was because she could not get out of bed due to fear, anxiety, or pain. AR 51. At the time of the hearing, she would stay in bed on average three days a week, but earlier, she averaged about five days a week. AR 52. Except at night, she needed all the doors, including the front door, to be open. AR 52. Plaintiff would accompany Rembert to the grocery store, but often go and sit in the car when they were in line, because she did not like to be close to people. AR 51. She did not like to answer the phone. AR 53. In 2010, her condition was significantly worse, causing her to give her children to her cousin and her sons to their father. AR 53. She had passed out several times for unknown reasons. AR 54. She had carpal tunnel syndrome in her hands or wrists, for which she wore braces. AR 54-55.

         In response to the ALJ's question whether her physical or mental problems affect her the most, she answered:

I think it's the combination of both. I don't think one necessarily - -I think the one -- it's a big cycle. I think the one affects the other and back and so forth. So, like, my fear makes me want to hide. So when I'm not able to get out of bed, then that causes the fibromyalgia to get so much worse because I'm not moving. And then the pain increases and then it gets even harder to get out of bed. So that's where the days and days come in where I'm just in bed. I'm not useful for anyone. And it's very frustrating.

AR 56. Rembert confirmed Plaintiff's testimony about her staying in bed, needing the doors open, having little involvement in the housework, and having few social activities.

         B. Dr. Tania Shertock, Examining Psychologist

         The Department of Social Services (“Department”) referred Plaintiff to Dr. Tania Shertock, Ph.D. for a psychological examination. AR 551. Dr. Shertock's sources were Plaintiff and records from Touchstone Counseling Services, provided by Mary Holbrook, MFT. AT 551. On April 16, 2013, Dr. Shertock administered four tests to Plaintiff, the Wechsler Adult Intelligence Scale-IV (“WAIS-IV”), Wechsler Memory Scale-IV (“WMS-IV”), Trails A, and Trails B. AR 551. Dr. Shertock determined that Plaintiff had an IQ of 72, which placed her in the borderline range. AR 553. Plaintiff's WMS-IV scores placed her in the extremely low range. AR 553. Her Trails A and B results suggested “dysfunction in visual scanning, psychomotor speed, or focusing and shifting attention.” AR 553. Dr. Shertock discontinued the Trails B test due to Plaintiff's inability to follow the sequence of the tasks. AR 553.

         Dr. Shertock provided a functional assessment but noted that her findings were based on one time-limited mental status evaluation and that the sections of the report titled “History of Present Illness” and “Present Level of Functioning” were based on Plaintiff's self-reports. AR 554. She noted that Plaintiff presented as a “reliable historian.” AR 554. Based on Plaintiff's “clinical presentation, and her history and symptoms, ” Dr. Shertock determined that Plaintiff appeared to meet the criteria for a diagnosis of PTSD, ADHD, Major Depression and cognitive disorders from brain trauma. AR 554. Based on Plaintiff's “vocabulary, grammar and syntax, ” Dr. Shertock determined that Plaintiff appeared to be functioning in the “borderline range.” AR 554.

         Dr. Shertock opined that Plaintiff was capable of understanding, remembering, and carrying out simple instructions. AR 554. She opined that Plaintiff had moderate impairments in understanding, remembering, and carrying out complex instructions, maintaining attention and concentration for the duration of the evaluation, maintaining adequate pace while completing tasks, withstanding the stress of an eight hour day, maintaining adequate persistence while completing tasks, and enduring the stress of the interview. AR 554. She opined that Plaintiff had a marked impairment in ability to adapt to changes in routine work-related settings. AR 554. Dr. Shertock noted that Plaintiff was able to interact appropriately with her but that, based on Plaintiff's reported history, her “ability to interact with the public, supervisors, and coworkers” appeared questionable. AR 554. She diagnosed Plaintiff with histrionic personality disorder, major depressive disorder, R/O Cognitive Disorder, Attention-Deficit Hyperactivity Disorder-Inattentive Type, and Posttraumatic Stress Disorder. AR 554.

         C. Dr. Leslie Tsang, Treating Psychiatrist[2]

         On July 22, 2014, Dr. Leslie Tsang, Plaintiff's treating psychiatrist, completed a “mental capacities” evaluation so that California's Department of Health and Human Services could determine Plaintiff's eligibility for public assistance. AR 689. Dr. Tsang checked boxes indicating that Plaintiff had a medically verifiable condition that would limit or prevent her from performing certain tasks, that the condition was chronic, that the onset of the condition was 2008, that Plaintiff was actively seeking treatment, that Plaintiff was unable to work, and that Plaintiff had limitations that affected her ability to work or participate in education or training. AR 689. Dr. Tsang also opined that Plaintiff was unable to complete “daily work, training and/or educational activities” independently and without prompting. AR 688. He opined, “anxiety and panic attacks significantly limit [Plaintiff's] social interactions and effective communications, ” her ability to complete tasks was “[i]mpaired due to severity of symptoms, ” and that her ability to adapt to work or work-like situations was, “significantly limited” because her “symptoms interfere[d] with judgment, decisions, adapting to change, and her own activities of daily living.” AR 688.

         D. Mary Holbrook, Former Treating Psychotherapy Counselor, MFT

         In February 2013, Mary Holbrook submitted a summary and report of her treatment and diagnosis of Plaintiff. AR 446. Holbrook saw Plaintiff as a psychotherapy client from October 21, 2010, to November 16, 2011, for a total of 23 weekly one-hour sessions. AR 446. Plaintiff returned to Holbrook in December 2012, and saw Holbrook once a month, on December 13, 2012, January 17, 2013, and February 14, 2013. AR 446. Holbrook's report also summarized Plaintiff's self-reported history, including descriptions of how Plaintiff was raised in a cult-like religion, from which her family eventually withdrew, and how Plaintiff suffered years of abuse from her ex-husband, including being “beaten and raped, severely controlled, and stalked after separation.” AR 447. Holbrook stated that Plaintiff had improved somewhat “since being in her current relationship and being on her present medications” but that “all her symptoms remain[ed] evident.” AR 446. Holbrook stated that Plaintiff's diagnosed included PTSD, Severe ADHD, predominately Inattentive Type, Chron's Disease and asthma. AR 446.

         Holbrook opined that it would be impossible for Plaintiff to maintain any sort of work schedule because of Plaintiff's inability to focus or maintain any sort of regular schedule and inability to remember appointments. AR 448. During 2010 and 2011, Holbrook witnessed Plaintiff's inability to keep appointments as Plaintiff often was late or did not come in because she could not keep track of the days. AR 448. Holbrook also observed that Plaintiff's inability to focus during therapy sessions and that it was difficult for Plaintiff to stop talking long enough for them to have a conversation. AR 448. Holbrook noted that Plaintiff had improved in these areas since beginning Adderall, a medication prescribed for ADHD, but that the symptoms were “still quite evident.” AR 448. Holbrook also opined that, due to Plaintiff's anger at and terror of authority figures, it was highly unlikely that Plaintiff could “sustain the kind of instruction and feedback she would have to undergo during training for any job without losing control of her reactions.” AR 448. Due to those symptoms and Plaintiff's “fear of being predictable due to PTSC [sic], ” Holbrook opined that Plaintiff would be unable to meet the requirements of employment. AR 448.

         Holbrook's last appointment with Plaintiff was on August 15, 2013. AR 1166. On August 27, 2014, Holbrook completed a Medical Source Statement Concerning the Nature and Severity of an Individual's Mental Impairment. AR 1162-66. The form asked for an evaluation of the Plaintiff's abilities in 20 areas, broken into categories for memory and understanding, sustained concentration and persistence, social interaction, and adaptation. Holbrook opined that Plaintiff had limitations in every area. She opined that Plaintiff's had severely limited abilities to maintain attention and concentration for extended periods; perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances; work in coordination with or proximity to others without being unduly distracted by them; complete a normal workday and workweek without interruptions from psychologically based symptoms and perform at a consistent pace without an unreasonable number and length of rest periods; get along with co-workers or peers without unduly distracting them or exhibiting behavioral extremes, set realistic goals or to make plans independently of others. AR 1163-64. She opined that Plaintiff had moderately severely limited abilities to understand and remember detailed instructions, sustain an ordinary routine without special supervision, interact appropriately with the general public, and accept instructions and respond appropriately to criticism from supervisors. AR 1163-64. She also opined that Plaintiff had moderately limited abilities to remember locations and work-like procedures, understand and remember very short and simple instructions, carry out detailed instructions, make simple, work-related decisions, maintain socially appropriate behavior and adhere to basic standards of neatness and cleanliness, respond appropriately to changes in the workplace, and be aware of normal hazards and take adequate precautions. AR 1163-64. Finally, she opined that Plaintiff had mildly limited abilities to carry out short and simple instructions, ask simple questions or request assistance, and travel in unfamiliar places or use public transportation.[3] AR 1163-64.

         She opined that Plaintiff had a substantial loss of ability to understand, remember, and carry out simple instructions; make judgments that are commensurate with the functions of unskilled work, i.e., simple work-related decisions; respond appropriately to supervision, co-workers and usual work situations; and deal with changes in a routine setting.[4] AR 1165. She opined that the disability was durable and that the onset was prior to October 2010. AR 1165. She added a comment that Plaintiff had not improved much since she first saw her in October 2010, despite a variety of treatments and medications, and that she saw very little likelihood of Plaintiff's disability improving. AR 1166.

         E. Evelyn Polk, Treating Therapist at the time of the Hearing

         Starting January 17, 2014, Plaintiff began therapy with Evelyn Polk, MFT. AR 1276. Between then and September 26, 2014, Plaintiff saw Polk weekly or bimonthly. AR 1276. On September 15, 2014, Polk wrote a letter about her therapy with Plaintiff and completed a medical source statement. AR 1276-80. In the letter, Polk reported that Plaintiff had symptoms of anxiety, panic attacks, insomnia, and nightmares, stemming from reported history of ADD, domestic violence, and Chron's disease. AR 1276. Polk stated that Plaintiff had been “compliant and responsive to treatment planning and interventions.” AR 1276. She opined that one of the greatest challenges for Plaintiff had been finding the right balance of medications to treat her symptoms ...

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