United States District Court, N.D. California
ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT RE: DKT.
NOS. 27, 28
M. Ryu United States Magistrate Judge
April Owens moves for summary judgment to reverse the
Commissioner of the Social Security Administration's (the
“Commissioner's”) final administrative
decision, which found Owens not disabled and therefore denied
her application for benefits under Title XVI of the Social
Security Act, 42 U.S.C. § 401 et seq. [Docket No. 27.]
The Commissioner cross-moves to affirm. [Docket No. 28.] For
the reasons stated below, the court grants Owens's motion
in part and denies it in part and remands this matter for
further proceedings consistent with this opinion.
filed an application for Supplemental Security Income
(“SSI”) benefits on December 30, 2013, which was
initially denied on May 19, 2014 and again on reconsideration
on August 4, 2014. Administrative Record (“A.R.”)
182-190, 101-106, 111-116. On August 21, 2014, Owens filed a
request for a hearing before an Administrative Law Judge
(“ALJ”). A.R. 118-120. Owens appeared and
testified at a June 14, 2016 hearing. A.R. 34-74.
the hearing, ALJ E. Alis issued a decision finding Owens not
disabled. A.R. 15-28. The ALJ determined that Owens has the
following severe impairments: migraines; vertigo; affective
disorder; mood disorder, not otherwise specified (NOS);
cognitive disorder, NOS with borderline intellectual
functioning; adjustment disorder and/or post-traumatic stress
disorder (PTSD). A.R. 20. The ALJ concluded that Owens's
asthma is non-severe. A.R. 20. The ALJ found that Owens
retains the following residual functional capacity
[T]he claimant has the residual functional capacity to
perform a full range of work at all exertional levels but
with the following nonexertional limitations: The claimant
must not work around moving mechanical parts and unprotected
heights; can perform simple, routine, repetitive tasks, but
not at a production rate; can make simple work-related
decisions; can occasionally interact with supervisors; can
occasionally interact with coworkers, but not in a
tandem/team/group setting; cannot have any interaction with
the public; and must work in a stable work environment,
meaning few changes, if any, in the day to day work setting
and in the tools and/or work processes used to accomplish
on the opinion of a vocational expert (“VE”) who
testified that an individual with such an RFC could perform
other jobs existing in the economy, including cleaner and
harvest worker, the ALJ concluded that Owens is not disabled.
Appeals Council denied Owens's request for review on
January 4, 2018. A.R. 1-6. The ALJ's decision therefore
became the Commissioner's final decision. Taylor v.
Comm'r of Soc. Sec. Admin., 659 F.3d 1228, 1231 (9th
Cir. 2011). Owens then filed suit in this court pursuant to
42 U.S.C. § 405(g).
FIVE-STEP SEQUENTIAL EVALUATION PROCESS
qualify for disability benefits, a claimant must demonstrate
a medically determinable physical or mental impairment that
prevents her from engaging in substantial gainful
activity and that is expected to result in death or
to last for a continuous period of at least twelve months.
Reddick v. Chater, 157 F.3d 715, 721 (9th Cir. 1998)
(citing 42 U.S.C. § 423(d)(1)(A)). The impairment must
render the claimant incapable of performing the work she
previously performed and incapable of performing any other
substantial gainful employment that exists in the national
economy. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th
Cir. 1999) (citing 42 U.S.C. § 423(d)(2)(A)).
decide if a claimant is entitled to benefits, an ALJ conducts
a five-step inquiry. 20 C.F.R. §§ 404.1520,
416.920. The steps are as follows:
1. At the first step, the ALJ considers the claimant's
work activity, if any. If the claimant is doing substantial
gainful activity, the ALJ will find that the claimant is not
2. At the second step, the ALJ considers the medical severity
of the claimant's impairment(s). If the claimant does not
have a severe medically determinable physical or mental
impairment that meets the duration requirement in [20 C.F.R.]
§ 416.909, or a combination of impairments that is
severe and meets the duration requirement, the ALJ will find
that the claimant is not disabled.
3. At the third step, the ALJ also considers the medical
severity of the claimant's impairment(s). If the claimant
has an impairment(s) that meets or equals one of the listings
in 20 C.F.R., Pt. 404, Subpt. P, App. 1 [the
“Listings”] and meets the duration requirement,
the ALJ will find that the claimant is disabled.
4. At the fourth step, the ALJ considers an assessment of the
claimant's residual functional capacity
(“RFC”) and the claimant's past relevant
work. If the claimant can still do his or her past relevant
work, the ALJ will find that the claimant is not disabled.
5. At the fifth and last step, the ALJ considers the
assessment of the claimant's RFC and age, education, and
work experience to see if the claimant can make an adjustment
to other work. If the claimant can make an adjustment to
other work, the ALJ will find that the claimant is not
disabled. If the claimant cannot make an adjustment to other
work, the ALJ will find that the claimant is disabled.
20 C.F.R. § 416.920(a)(4); 20 C.F.R. §§
404.1520; Tackett, 180 F.3d at 1098-99.
was 37 years old at the time of the June 2016 hearing. A.R.
36. She testified that she had just completed one week of a
two-week training period to drive a van and deliver packages
for Amazon. A.R. 40-41. She explained that she had applied
for a full-time position and was hoping to work four ten-hour
shifts per week. A.R. 42-43. Owens likes working and
“staying busy, ” but testified that it has
“to be something that interest[s] [her], ”
because she “get[s] bored quick or irritated
fast” and “drift[s] off.” However, she
testified that she likes people and applied for the job
because she wants to “interact with other
people.” A.R. 48. Owens stated that she previously
“sheltered [herself]” for many years, staying in
her house and not dealing with people. Her interactions with
others through her position with Amazon have gone well so
far; people have been friendly and she enjoys the work. A.R.
to the position with Amazon, Owens worked for a company
called Tanko Lighting as a field auditor, auditing or
surveying street lights. The company sent her to finish
training in different states, but she was terminated before
completing 90 days in that position based on her performance.
A.R. 44-45. In that position, she was expected to survey 175
to 200 poles per day, but she was unable to survey more than
75 poles per day. A.R. 56-57. Owens estimates that she called
in sick due to migraines about 12 times during the less than
90 days she held that position. A.R. 57-58.
testified that she tried to work for Uber as a driver but was
told that her temper and performance “wasn't
great” and that she was not friendly enough with
people. A.R. 60. She found using the Uber application and GPS
difficult, and was easily irritated by people and traffic.
A.R. 60, 61.
has a driver's license. She testified that she drives
herself to church and to her mother's house, and
occasionally drives herself to doctor's appointments. The
drives to her mother's house and the doctor's
appointments take less than ten minutes. Her girlfriend
occasionally drives her to her doctor's appointments. In
the last five years, the furthest distance she has driven
herself was to visit her aunt in Tracy, which is 45 minutes
away. She last drove to Tracy four to five months ago. A.R.
testified that she lives alone but her girlfriend started
staying with her about eight months ago. Before that, her
cousin stayed with her for about one year. A.R. 47. Owens has
a dog that she feeds and takes care of, but her girlfriend
takes the dog for walks. A.R. 47-48. Owens described a
typical day before she started training at Amazon: she gets
up, cleans her house “from top to bottom, ” feeds
her dog, and might do yard work. She usually did not go
anywhere other than the barbershop. Her girlfriend does the
grocery shopping because she cannot remember what to buy.
Before her girlfriend lived with her, her mother did her
grocery shopping for her. She is able to buy her own
groceries if she does not need to buy a lot of groceries.
testified that she eats “day-by-day” because she
doed not like “stuff” in her refrigerator; she
will not drink milk that has been open for longer than a day
or eat bread that someone else has touched. A.R. 50. Owens
testified that she washes her hands “all the
time” and does not like touching things because she has
a “phobia with bacteria, ” so she wears surgical
gloves when she works delivering packages. A.R. 53-54.
asked why she believes she is unable to work, Owens responded
as follows: “I don't think that I'm disabled,
it's just that I can't seem to stay focused enough to
even keep a job.” A.R. 50. She then explained that
“I've been through a lot growing up and I
didn't think it would take that much of a toll on my
life, ” but that “it's like everything that I
wanted to do, or had plans on doing, something always tear[s]
it apart, so it never actually falls through.” A.R. 50.
She originally thought that she “just didn't have
the right information, ” and so went back to school,
“but that's not the issue . . . It's something
as far as me staying focused on what I need to do. I
can't seem to get passed [sic] that.” A.R. 50-51.
Owens then described the migraines that she experiences four
to five days per week and which last for several hours,
stating, “I can't even focus or pay attention when
they come on.” A.R. 51.
also described the treatment she is undergoing for
depression. She used to see a psychiatrist but stopped when
her insurance ran out. A.R. 51. She now takes medication for
her depression, which she testified helps. A.R. 51-52. The
treatment and medicine help her calm down and cope with her
anxiety and bacteria phobia. A.R. 54. She does not drink but
has a medical marijuana card. She uses marijuana about every
other week because the migraines take away her appetite. A.R.
explained that on the day prior to the hearing, she called in
sick to Amazon. She had to visit the emergency room because
her “chest was heavy and [she] was having pains in
[her] joints.” A.R. 37-38. According to Owens, she had
an “asthma treatment procedure” at the hospital
because she could not breathe. A.R. 59. She takes medicine
for her asthma, which flares up at night and makes it
difficult to sleep. She can breathe fine during the day as
long as she is not running. A.R. 62-63. Owens testified that
her inability to sleep at night impacts her during the day,
because she has no energy. She finds it difficult to
distinguish between being tired during the day from lack of
sleep or depression, but testified that her lack of energy
may be due to a combination of causes. A.R. 64.
Relevant Medical Evidence
State Agency Medical Consultants
agency medical consultant Paul Klein, Psy.D., reviewed the
records on May 9, 2014. Dr. Klein wrote that there was
insufficient evidence to substantiate Owens's allegations
of anxiety and psychotic symptoms. A.R. 81. Another
consultant, H. Bilik, Psy.D., observed that there were many
inconsistencies regarding Owens's psychological
evaluations, noting that she failed to mention the murder of
her girlfriend to one examiner, Dr. Catlin, while it was a
prominent complaint to another examiner, Dr. Howard. Dr.
Bilik did not provide an opinion regarding Owens's
functional capacity. A.R. 81-82.
Barrons, Psy.D., reviewed Owens's records on July 28,
2014. A.R. 94-95. She noted that there were
“significant inconsistencies” in Owens's
records and a lack of treatment history. A.R. 95.
Jonathan Howard, Psy.D.
Howard, Psy.D., evaluated Owens on March 17, 2014. A.R.
376-379. Dr. Howard's evaluation included taking
Owens's psychosocial, medical, and psychiatric history,
behavioral observations, a clinical interview, and a mental
status examination. He also administered various tests.
See A.R. 376.
Howard observed that Owens appeared to be an adequate
reporter. She also appeared alert, coherent, and oriented to
person, place, time, and purpose of the examination. A.R.
376, 377. Owens reported that she witnessed her girlfriend
being killed in 1999, and stated she has flashbacks and
avoids large groups. She also discussed problems with memory
and concentration. A.R. 376.
Howard administered a mental status examination. Owens had
average language comprehension and no difficulty repeating
three words given verbally during the mental status exam, but
could recall only two of the three words approximately five
minutes later. Her speech was fluid with normal rate and
volume. Eye contact appeared adequate, and her attention and
concentration appeared within normal limits. Owens appeared
depressed, and she reported depressed and anxious mood with
sleep disturbance, tearfulness, decreased appetite, decreased
energy, irritability, and difficulty with memory and
concentration. While denying any suicide attempts, she
reported having suicidal thoughts two weeks prior to the
evaluation. Owens reported auditory hallucinations of hearing
her deceased girlfriend talking since her death in 1999, but
denied any other hallucinations or delusions. Her affect
appeared consistent with the observed mood and her thought
process appeared logical and coherent, with no overt signs of
psychosis. Her insight appeared fair and judgment was good.
test results indicated impaired executive functioning ability
and planning, organization, and sequencing skills. Her
overall cognitive abilities were moderately impaired in the
borderline range. Her verbal comprehension, perceptual
reasoning, working memory, and processing speed appeared
moderately impaired. Dr. Howard assessed a full scale IQ of
70. A.R. 377. Owens's immediate memory and ability to
learn and recall auditory information appeared ...