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Owens v. Berryhill

United States District Court, N.D. California

September 3, 2019

APRIL OWENS, Plaintiff,
v.
NANCY A. BERRYHILL, Defendant.

          ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT RE: DKT. NOS. 27, 28

          Donna M. Ryu United States Magistrate Judge

         Plaintiff 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.

         I. PROCEDURAL HISTORY

         Owens 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.

         After 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 (“RFC”):

[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 tasks.

A.R. 23.

         Relying 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. A.R. 27-28.

         The 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).

         II.THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS

         To qualify for disability benefits, a claimant must demonstrate a medically determinable physical or mental impairment that prevents her from engaging in substantial gainful activity[1] 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)).

         To 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 disabled.
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.

         III. FACTUAL BACKGROUND

         A. Owens's Testimony

         Owens 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. 48-49.

         Prior 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.

         Owens 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.

         Owens 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. 45-47.

         Owens 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. A.R. 49.

         Owens 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.

         When 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.

         Owens 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. 54-56.

         Owens 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.

         B. Relevant Medical Evidence

         1. State Agency Medical Consultants

         State 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.

         Heather 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.

         2. Examining Physicians

         a. Jonathan Howard, Psy.D.

         Jonathan 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.

         Dr. 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.

         Dr. 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. A.R. 377.

         Owens's 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 ...


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