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Lopez v. Berryhill

United States District Court, N.D. California

April 4, 2018

MISTY MARIE LOPEZ, Plaintiff,
v.
NANCY A. BERRYHILL, Defendant.

          ORDER RE: CROSS MOTIONS FOR SUMMARY JUDGMENT Re: Dkt. Nos. 14, 17

          JACQUELINE SCOTT CORLEY United States Magistrate Judge

         Plaintiff Misty Marie Lopez (“Plaintiff”) seeks social security benefits for a combination of mental and physical impairments, including: bipolar disorder; bulging discs in neck; protruding disc in lower back; depression; anxiety; arthritis in lower spine; thyroid cancer of potentially stage three; and fibromyalgia. (Administrative Record (“AR”) 95.) Pursuant to 42 U.S.C. § 405(g), Plaintiff filed this lawsuit for judicial review of the final decision by the Commissioner of Social Security (“Commissioner”) denying her benefits claim. Now before the Court are Plaintiff's and Defendant's Cross-Motions for Summary Judgment.[1] (Dkt. Nos. 14 & 17.) Because the Administrative Law Judge (“ALJ”) improperly weighed the medical opinions and erred in his credibility determination as to both Plaintiff's testimony and lay statements, the Court GRANTS Plaintiff's motion, DENIES Defendant's cross-motion, and REMANDS for the award of benefits.

         LEGAL STANDARD

         A claimant is considered “disabled” under the Social Security Act if she meets two requirements. See 42 U.S.C. § 423(d); Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). First, the claimant must demonstrate “an inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or 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). Second, the impairment or impairments must be severe enough that she is unable to do her previous work and cannot, based on her 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). To determine whether a claimant is disabled, an ALJ is required to employ a five-step sequential analysis, examining: (1) whether the claimant is “doing substantial gainful activity”; (2) whether the claimant has a “severe medically determinable physical or mental impairment” or combination of impairments that has lasted for more than 12 months; (3) whether the impairment “meets or equals” one of the listings in the regulations; (4) whether, given the claimant's “residual functional capacity, ” the claimant can still do her “past relevant work”; and (5) whether the claimant “can make an adjustment to other work.” Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012); see 20 C.F.R. §§ 404.1520(a), 416.920(a).

         PROCEDURAL HISTORY

         In August 2012, Plaintiff filed an application for Social Security Disability Insurance Benefits (“benefits”) under Title II of the Social Security Act. (Administrative Record (“AR”) 268.) Her application alleged disability with an onset of April 20, 2011 resulting from the following conditions: bipolar disorder; bulging discs in neck; protruding disc in lower back; depression; anxiety; arthritis in lower spine; thyroid cancer of potentially stage three; and fibromyalgia. (AR 95.) Plaintiff's application was denied as was her request for reconsideration and she requested a hearing before an ALJ. (AR 126, 131-32, 140.) At the first ALJ hearing, Plaintiff testified as well as vocational expert (“VE”) Timothy Farrell. (AR 50-80, Transcript of January 22, 2015 hearing.) Plaintiff then underwent additional medical and psychological examinations. (AR 703-24.) At the supplemental ALJ hearing, Plaintiff testified again as did VE Abby May. (AR 80-93, Transcript of July 30, 2015 hearing.) The ALJ issued Plaintiff an unfavorable decision on August 13, 2015. (AR 25-39.)

         ADMINISTRATIVE RECORD

         Plaintiff was born on March 15, 1979. (AR 268.) She has suffered from various physical and mental health ailments including thyroid cancer, spine disorders, and affective disorders. (AR 100.) Plaintiff obtained her high school diploma and completed a year of college (AR 314.) She resides with her spouse and her four children in Contra Costa County. (Dkt. No. 2.) Since 1998 she has worked as a hostess; Certified Nursing Assistant; Heavy Machine Operator; Computer Technician; Data Entry Clerk; and most recently as an auction block clerk from 2009 through 2011. (AR 107, 314.) Plaintiff resigned from that position-following a diagnosis of thyroid cancer-because she was concerned about the high levels of secondhand tobacco smoke in the work environment. (AR 58.) Plaintiff alleges that her physical and mental health conditions limit her functioning such that she is unable to work and often relies on family for help with activities of daily living. (AR 58-73.)

         I. Medical Evidence

         Plaintiff has seen a variety of physicians as a result of her medical conditions. A discussion of the relevant medical evidence follows.

         A. Medical and Psychiatric History

         Plaintiff has a history of low back pain. She was involved in a motor vehicle accident in 1999 while nine months pregnant that caused back and neck pain. (AR 61, 473, 649.) In March 2007, after suffering lower back pain for approximately seven years, Plaintiff underwent a spinal MRI that revealed posterior disc bulge at her L5-S1 disc and bilateral facet joint arthritis of the same. (AR 619.) In December 2008, Plaintiff underwent a second spinal MRI which showed the L5-S1 disc bulge had reached a nerve root. (AR 620.) Her cervical spine showed a loss of lordosis (curvature) and disc bulges at L5-6 and C6-7, but “no acute abnormality” was found. (AR 620, 623, 625.) In 2011, Plaintiff underwent a successful “Lap-Band” procedure to resolve morbid obesity following which she lost 70 pounds. (AR 439, 637.)

         Plaintiff also has a history of cancer. In April 2011, she was diagnosed with thyroid carcinoma for which she underwent radiation therapy, radical right neck dissection, and a total thyroidectomy. (AR 400-05.) Plaintiff underwent radiation therapy in June 2011 and July 2012. (AR 494.) Between 2011 and 2013 her doctors monitored a liver lesion which ultimately stabilized. (AR 648-54.) On account of concern for her liver, Plaintiff ceased taking psychiatric medications for her bipolar disorder. (AR 651, 659, 752.) Although the radiation and surgery seems to have taken care of the cancer, Plaintiff has reported depression; burning pain in her neck, shoulders, and back; as well as “constant” migraines and nausea. (AR 651.)

         As set forth in more detail below, Plaintiff also has a history of mental illness and in 2011, she was diagnosed with bipolar and depressive disorders. (See, e.g., AR 442, 473, 688-90, 752.)

         B. Medical Evaluations

         In connection with her application for benefits, Plaintiff underwent a variety of physical examinations. These evaluations are summarized below.

         2. Examining Physician Dr. Ali

         That same month, Plaintiff was examined by state Agency physician Dr. Ali. (AR 444-47.) Dr. Ali found Plaintiff had a limited cervical range of motion, limited motion in her right shoulder, some paravertebral muscle spasms and some crepitus in her knee. (AR 446-7). Dr. Ali limited Plaintiff to a maximum lifting/carrying capacity of 20 pounds occasionally and 10 pounds frequently, and limited her use of her right arm to reach. (AR 447.) Dr. Ali found no limitations in Plaintiff's maximum standing/walking or sitting capacity but limited her to only occasional “postural activities.” (Id.)

         4. Examining Internist Dr. Keystone

         In November 2012, Dr. Keystone examined Plaintiff at the request of the Agency. (AR 473-78.) Plaintiff cried intermittently throughout the exam and could not recall her exact age but did correctly recite her date of birth. (AR 475.) Dr. Keystone opined that Plaintiff had decreased sensation in her cervical spine at the C5-C6 and C3-C4 areas as well as in her legs and thighs. (AR 477.) Dr. Keystone further noted that Plaintiff had: (1) reduced grip strength in her right hand; (2) a positive straight leg test on her right side; (3) and a decreased range of motion in her neck. (AR 476.) Dr. Keystone found that Plaintiff could lift and carry 50 pounds occasionally and 25 pounds frequently; stand up to two hours per day with occasional “postural activities.” (AR 477.) All other medical findings were unexceptional. (AR 473-78.)

         5. Examining Neurologist Dr. Glantz

         In November 2015, Dr. Glantz, a neurologist, examined Plaintiff at the request of the Agency. (AR 703-15.) Plaintiff described a diagnosis of fibromyalgia and total body pain, including numbness in all 10 fingers and, as recorded by Dr. Glantz, recent-onset foot numbness and bilateral arm pain. (AR 711.) Dr. Glantz opined that Plaintiff was able to lift and carry 50 pounds occasionally and 25 pounds frequently as her straight leg test did not change the level of low back pain. (AR 715.) Plaintiff was also found to be able to engage in frequent postural activities, manipulative activities, and had no limitations on sitting/standing. (Id.) Dr. Glantz found no indica of fibromyalgia but diagnosed it by Plaintiff's stated history.

         C. Psychiatric Evaluations

         In connection with her application for benefits, Plaintiff underwent a variety of mental health examinations. These evaluations are summarized below.

         1. Treating Psychiatrist Dr. Ferrer

         Plaintiff was under the care of treating psychiatrist Dr. Ferrer from October 2011 until June 2013. (AR 752.) Dr. Ferrer provided an opinion in October 2012 stating Plaintiff had a poor ability in the following areas: (1) recalling detailed/complex instructions; (2) attending tasks and concentrating; (3) interacting with the public; and (4) adapting to changes in the workplace. (AR 449-50.) Dr. Ferrer found Plaintiff had fair ability in some areas: (1) following short/simple instructions; (2) carrying out instructions; (3) working without supervision; (4) interacting with coworkers; (5) interacting with supervisors; (6) remaining aware of hazards and reacting appropriately; and (7) being able to use public transportation or travel to unfamiliar places. (Id.) In addition, Dr. Ferrer authored an October 2015 letter opining that Plaintiff suffers from bipolar disorder (Type II depressed) and that she was unable to work during her time in his care because of mood instability. He recommended that she resume psychiatric care. (AR 752.)

         2. Examining Psychologist Dr. Renfro

         In July 2011, Dr. Renfro, a psychologist, examined Plaintiff at the request of the Agency. (AR 439-43.) Dr. Renfro diagnosed Plaintiff with depressive order due to a medical condition. (AR 442.) In Dr. Renfro's view, Plaintiff was mildly impaired in her “ability to do detailed and complex instructions.” (Id.) She was mildly impaired in her ability to relate to and interact with coworkers and the public, and to perform work activities consistently at the proper pace. (Id.) Plaintiff was not impaired in her ability to attend to work activities including attendance and safety. (Id.) She was able to understand and carry out simple work instructions including taking direction from supervisors, and could perform “routine, non-stressful” work activities without special supervision. (Id.)

         3. Nonexamining Agency Psychologist Dr. Shadid

         In October 2012, Dr. Shadid, a nonexamining psychological consultant for the Agency, opined that Dr. Ferrer's medical source statement seemed “more restrictive than the claimant's ADL.” (AR 101.) Dr. Shadid found Plaintiff “partially credible” based on her activities of daily living, as Plaintiff can “drive and go out alone, and shop for up to two hours.” (AR 101-02.) Dr. Shadid also noted that Dr. Ferrer's medical source statement did not contain “specific limitations to functioning.” (AR 101.) Dr. Shadid also completed the mental RFC assessment. (AR 104-06.)

         4. Nonexamining Agency Psychologist Dr. Caruso-Radin

         In October 2013, Dr. Caruso-Radin, a nonexamining psychological consultant for the Agency, reviewed Plaintiff's Agency file pursuant to her reconsideration request.[2] (AR 35, 115-16, 120-22, 131.) Dr. Caruso-Radin's opinion consisted of the following: “Sum: alleging bipolar. DLI 6/30/13. Thus current Y CE is not reasonable. Reviewing the records from the period in question, it appears the bipolar is kept stable and MSE's are good. The evidence as a whole indicates the prior decision remains reasonable and based in the MER. Prior decision is adopted.” (AR 115-6). Dr. Caruso-Radin also completed the mental RFC assessment. (AR 120-22.)

         5. Examining Psychologist Dr. McCord

         In April 2015, Dr. McCord, a neurologist, examined Plaintiff at the request of the Agency. (AR 717-24.) Plaintiff presented as crying and irritable. (AR 717.) Dr. McCord opined that Plaintiff showed no impairment in her ability to understand and carry out simple instructions and tasks. (AR 720.) Plaintiff was found to have mild impairment in her ability to attend to usual work situations including attendance and safety. (Id.) Further, Plaintiff was found moderately impaired in her concentration, pace, and persistence. (Id.) She was moderately-to-severely impaired in her ability to interact appropriately with supervisors, co-workers, peers, and the public. (Id.) Dr. McCord observed Plaintiff to be “somewhat paralyzed by depression” during the examination, although he noted that she was able to “warm up and use more energy.” (AR 719.) Dr. McCord's notes indicate that Plaintiff is able to get along with people and supervisors “as long as fatigue does not set in, ” but also that she would likely need constant reminders to recall verbally-delivered details. (AR 722.)

         D. Other Evidence

         In connection with these proceedings, several members of Plaintiff's family submitted letters in support of her disability claim. These letters are summarized in relevant part below.

         1. Husband Jason Lopez

         Jason Lopez, Plaintiff's husband, wrote a letter on Plaintiff's behalf in December 2014, prior to the first ALJ hearing. (AR 368-69.) Mr. Lopez stated that prior to her cancer diagnosis and thyroidectomy, Plaintiff was energetic and independent whereas after that treatment she tires quickly and suffers from a poor memory such that she sets daily alarms even to take medications. (AR 368.) Mr. Lopez noted that Plaintiff's neck and back pain “make it near [sic] impossible for her to sweep the floor or vacuum as these activities increase her pain....she has to ask others for help, from cleaning to carrying the laundry baskets up or downstairs.” (Id.) He also stated that Plaintiff's neck and back issues cause her to need to “shift her position every 15-20 minutes” when sitting; that walking “causes her pain as well”; and that she experiences migraines. (Id.) Mr. Lopez corroborated Plaintiff's general statements that since her second round of radiation treatment she has suffered from a number of digestive issues. (Id.; see AR 68-69, 393-94.) Mr. Lopez wrote also that Plaintiff suffers from anxiety in public and angers easily. (AR 369.)

         2. Son Jesse Lopez

         Jesse Lopez is one of Plaintiff's sons with whom she lives. (AR 62.) He also wrote a letter on Plaintiff's behalf. (AR 360-69.) Jesse stated that Plaintiff's neck and back conditions predate even the April 2011 thyroidectomy and radical neck dissection, but that these conditions became “exponentially worse” after that procedure. (AR 360.) Jesse recalled incidents where, due to muscle spasms, he had discovered his mother lying on the floor. (Id.) One such incident occurred after Plaintiff tried to “pick up some laundry and got stuck because her back hurt so bad.” (Id.) Unable to stand, Plaintiff called out for Jesse for help to “get off the floor and into bed.” (Id.) On another occasion, Jesse came home from work and found Plaintiff sprawled out on the kitchen floor as she had a back “spasm” when attempting to put away groceries and there was nobody to help Plaintiff until he arrived. (Id.) Jesse indicated that Plaintiff “can't even carry a basket of laundry to her room if it's a full load. Some days even just a few errands will make her come home and pass out for the rest of the day.” (AR 364.) In addition, Jesse described Plaintiff's recurrent bouts vomiting that have followed in the “three years since her last round [of radiation treatment]” such that he sees Plaintiff's “mad dash[es]” to the bathroom where she vomits upon eating a meal. (AR 363.)

         Jesse also described Plaintiff's mental health issues indicting that Plaintiff suffers from bipolar “lows” that are more severe than ever since the thyroidectomy in 2011 such that when “low” Plaintiff: “drops off the radar for about a week”; “sleeps all day for days at a time”; and “doesn't cook or clean for herself.” (AR 365.) In contrast, when amidst a bipolar “high, ” Plaintiff once stayed up “for a week straight” and Jesse has seen her in the kitchen cooking for eleven hours at a time and otherwise “running about doing housework.” (AR 366.) At such times Plaintiff is irritable and quick to argue and in general suffers from a reduced short-term memory, forgetting conversations held the same day. (Id.)

         3. Daughter Brittney Lopez

         Brittney Lopez is one of Plaintiff's daughters with whom she lives. (AR 62.) She also wrote a letter on Plaintiff's behalf. (AR 372-73.) Brittney stated that Plaintiff suffers from severe pain such that she “can't walk around for long” because it causes “an extreme amount of pain.” (AR 372.) In addition, Brittney noted that Plaintiff suffers from bouts of vomiting and “constant” migraines. (Id.) Because of her back pain, Plaintiff has difficulty “stand[ing] and clean[ing] around the house.” (Id.) Brittney “has seen [Plaintiff] in so much pain she cries.” (Id.) More generally, Plaintiff suffers from “really big mood swings.” (AR 373.)

         4. Letter by Plaintiff

         On October 19, 2015, Plaintiff submitted a letter as proof of her disability. (AR 393-94.) Plaintiff stated that since her second round of radiation treatment in 2012, she continues to experience recurrent bouts of nausea and vomiting as well as digestive problems. (AR 393.) Plaintiff also stated that the numbness and pain in her right arm and shoulder are often debilitating and cause her to drops things held in her right hand, as well as impairing her ability to sleep. (Id.) Plaintiff states that she struggles to complete everyday household tasks-such as carrying laundry, vacuuming, sweeping, and mopping-without assistance. (AR 394.) She further stated that postoperative pain medications she took caused migraines or other complications, and that she continues to feel that the use of prescription pain medications is inappropriate in light of the children present in her household. (Id.) And since her 2011 thyroidectomy, Plaintiff provided that she cannot tolerate noise, concentrate even during conversation, or shop for groceries without “falling apart.” She also reports suffering from severe panic attacks and limited short-term memory such that she constantly forgets things. (Id.)

         II. ALJ Hearings

         A. January ...


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