United States District Court, N.D. California
ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT RE: DKT.
NOS. 18, 19
M. Ryu United States Magistrate Judge.
Rosali Bryant moves for summary judgment to reverse the
Commissioner of the Social Security Administration's (the
“Commissioner's”) final administrative
decision, which found Bryant not disabled and therefore
denied her application for benefits under Title XVI of the
Social Security Act, 42 U.S.C. § 401 et seq. The
Commissioner cross-moves to affirm. For the reasons stated
below, the court grants Bryant's motion in part and
remands this case for further proceedings.
filed an application for Supplemental Security Income
(“SSI”) benefits on July 31, 2014, which was
initially denied on October 9, 2014 and again on
reconsideration on March 2, 2015. Administrative Record
(“A.R.”) 171-179, 98-102, 106-111. On April 7,
2015, Bryant filed a request for a hearing before an
Administrative Law Judge (ALJ). A.R. 112. The ALJ held a
hearing on August 15, 2016, at which Bryant was represented
by an attorney. A.R. 33-72. Following the hearing, the ALJ
sent Bryant to two consultative examinations. See
A.R. 15, 65-67.
March 6, 2017, ALJ K. Kwon issued a decision finding Bryant
not disabled. A.R. 12-27. The ALJ determined that Bryant has
the following severe impairments: cerebellar ataxia with gait
disturbance, depressive disorder, and anxiety disorder. A.R.
17. The ALJ found that Bryant 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
can perform occasional postural, and no climbing ladders,
ropes and scaffolds, can perform no work at heights or moving
heavy hazardous machinery as safety precautions, is limited
to simple and routine work with very little changes in the
work setting equivalent to unskilled tasks with a maximum
specific vocational preparation (SVP) of 2, with no
interaction with the public.
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 laundry worker II; bakery
worker, conveyor; and basket filler, the ALJ concluded that
Bryant is not disabled. A.R. 26.
Appeals Council denied Bryant's request for review on
February 23, 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). Bryant 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:
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
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.
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.
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.
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.
C.F.R. § 416.920(a)(4); 20 C.F.R. §§ 404.1520;
Tackett, 180 F.3d at 1098-99.
was 26 years old on the date of the hearing. A.R. 41. She
lives with her mother and brother. A.R. 41.
testified that she completed her associate's degree in
seven years. A.R. 41-42. She received accommodations in
college, including having a note-taker, a scribe for
test-taking, additional time for tests, and the option of
taking tests in “quiet rooms.” A.R. 43-44. She
testified that she needed a scribe for test-taking because
she does not write fast enough during tests with time limits.
first job was a part-time position at Napa Valley Vacuum and
Sewing starting in 2015. She was responsible for taking out
the trash and recycling, cleaning bathrooms, shredding,
filing, vacuuming, and dusting around the store. A.R. 45. She
enjoyed the job but left because she needed to work more than
five hours per week, which was all the store offered her.
A.R. 45, 48. According to Bryant, if the store had scheduled
her for 20 or 30 hours per week, she would have continued
working there. A.R. 45.
current position, she works in the accessories section at
Marshall's where she organizes and cleans the displays.
A.R. 45-46. She works between 16 and 25 hours per week and
enjoys her work. A.R. 46-47. Bryant testified that if
Marshall's increased her hours to 35 hours per week, she
“probably could” work that schedule, although she
stated, “I don't know how much I could handle
because I've never been tested to the limit . . .”
A.R. 47. Bryant's job coach spends about two to three
hours with her per day at Marshall's. While she is
working, she talks with her job coach frequently. A.R. 54-55.
The job coach supervises and assists her and watches to make
sure she does not fall. A.R. 55. She feels like
“[she's] doing all the things that [Marshall's]
want[s] [her] to do” and testified that she
“feel[s] good” at the end of her shifts. A.R. 54,
65. Bryant testified that she was interested in the position
at Marshall's and that she received assistance in
applying from vocational rehabilitation. A.R. 59-60.
questioned her about whether she has problems with falling.
Bryant testified that it does not “happen a lot,
” and that “it just happens every now and then
when I don't eat or drink enough.” A.R. 55. She
testified that she had last fainted while working outside
when it was hot and humid. A.R. 56.
is not taking any medications and does not see any doctors
regularly, including any mental health practitioners. A.R.
51-52, 56. When asked if she feels like “there's
any mental health issues that keep [her] from working,
” she responded as follows:
Q. Okay. It's the history of the ataxia, the Cerebella
A. It's probably all the same. I wouldn't know. I
don't really like talking to a whole lot of people. . . .
I'm not very social. I don't like a lot of people per
testified that on a typical day, she wakes up between 7:00 am
and 9:00 am and stays in her room watching Netflix. She does
not like to interact with her mother and brother because she
does not get along with them. A.R. 58. She tries to limit the
amount of time she spends outside of her room cleaning,
cooking, and doing the dishes because she usually ends up
arguing with her mother. A.R. 58-59. She is able to dress,
feed, and bathe herself. She also prepares her own meals and
does her own laundry. A.R. 59. She has a boyfriend she spends
time with. A.R. 51. Bryant does not have a driver's
license and walks or takes the bus to get around. A.R. 48,
50. She is able to get to work by herself. A.R. 59.
Relevant Medical Evidence
State Agency Medical Consultants
September 30, 2014, state agency medical consultant G.
Spellman, M.D. reviewed the records and opined that Bryant is
able to do sedentary work with no balancing or climbing
ladders, ropes, or scaffolds, and can occasionally climb,
stoop, kneel, crouch, and crawl. A.R. 80-82. A. Dipsia, M.D.,
concurred in the opinion on February 23, 2015. A.R. 90-94.
John Kiefer, Psy.D.
Kiefer, Psy.D., performed a psychological evaluation of
Bryant on May 21, 2013. A.R. 315-319. Dr. Kiefer observed
that Bryant “gave the initial impression of being under
the influence of some recreational substances, ” as she
had difficulty walking and bumped into a chair. A.R. 315.
However, upon questioning, Dr. Kiefer determined that
Bryant's “medical problems . . . would account for
the observations.” A.R. 315. Bryant reported a history
of cerebral ataxia. A.R. 316. Upon examination, Bryant's
thought processes were logical and goal oriented. Her
“[s]peech was normal rate and relevant content, ”
and her thought content was appropriate. Her affect was
pleasant and congruent with her stated mood. Her intellectual
functioning appeared to be within average range. A.R. 317.
Bryant's concentration was within normal limits, but she
was unable to demonstrate some abstract thinking. Her
judgment and insight were good. A.R. 318. Dr. Kiefer
diagnosed her with cerebral ataxia and history of fractured
femur and assessed a GAF score of 70. A.R. 318.
Kiefer opined that Bryant's ability to “understand,
remember and carry out very short and simple
instructions” and “understand and remember
detailed and complex instructions” is good. He also
found that Bryant has a “good” ability to
maintain attention and concentration, accept instruction from
a supervisor and respond appropriate, interact with
coworkers, sustain an ordinary routine without special
supervision, complete a normal workday/workweek without
interruptions at a consistent pace, and deal with various
changes in the work setting. A.R. 319.
Robert Tang, M.D.
Tang, M.D., performed a comprehensive internal medicine
evaluation of Bryant on June 11, 2013. A.R. 321-324. Dr. Tang
noted that Bryant's gait was normal, and that she was
able to tandem walk although she was wobbly. She was able to
complete toe and heel walk with a hyperactive response of
waving her arms. A.R. 322. She had full range of motion in
her spine, lumbar region and all joints. Fine finger
dexterity was intact to alternating finger touch and handling
small objects. A.R. 323. Dr. Tang diagnosed slow slurred
speech, history of cerebellar ataxia, with past history of
decreased fine motor movement. He also noted that “fall
cautions should be instituted.” A.R. 324.
Tang opined that Bryant had no limitations other than working
at heights and around heavy machinery, and occasional
limitations for climbing and balancing. A.R. 324.
Les P. Kalman, M.D.
Kalman, M.D., Psy.D., performed a consultative psychological
examination of Bryant on September 15, 2016. A.R. 458-465.
Dr. Kalman found Bryant to be a fair historian and observed
her “exhibiting some shuffling, poor coordination
difficulties and shaking sometimes.” Bryant stated that
she was emotionally “okay.” A.R. 458.
Bryant's speech was slow and slightly slurred. She was
alert and oriented. She could not add, subtract, or multiply
and became confused. According to Dr. Kalman, her
intelligence was below average. A.R. 459. Her insight was
fair and judgment was good. Her thought process was logical
and goal directed. A.R. 460.
Kalman diagnosed Bryant with a mild intellectual disability.
A.R. 461. He opined that Bryant “is able to do
everything but is limited by cognitive aspects.” Based
on his evaluation, he concluded that Bryant can understand,
remember, and perform simple oral and written instructions.
She is able to maintain regular attendance in the workplace
and perform work activities on a consistent basis without
special or additional supervision. A.R. 460. Bryant is also
able to complete a normal workday or workweek without
interruption, accept instructions from supervisors, interact
with coworkers and the public, and deal with the usual
stresses encountered in competitive work. A.R. 461.
Kalman assessed Bryant with marked restrictions in the
abilities to understand, remember, and carry out complex
instructions and make judgments on complex work-related
decisions. A.R. 462.
Edie Glantz, M.D.
Glantz, M.D., performed a consultative neurological
examination of Bryant on September 20, 2016. A.R. 468-478.
Bryant reported that when she was in elementary school, she
was “clumsy, ” and that she has gotten slightly
more clumsy since then. She reported that she currently
stumbles when walking about once per month, but “has
not fallen in many years.” A.R. 474.
Glantz observed that Bryant was able to get out of her chair
without using her arms but was “generally
clumsy.” She could get on and off the exam table
independently and could pick up a paperclip off the table
with either hand “but with some clumsiness and
effort.” A.R. 475. Bryant's coordination was
“clumsy and disorganized for rapid alternating
movements in all four extremities, ” and was also
mildly slow. Bryant had positive Romberg, mildly ataxic gait,
and mildly impaired tandem. She was able to walk around the
room without a walking assistive device, was able to stand on
her toes briefly, and had dysmetria for finger-to-nose
testing bilaterally and heel-knee-shin testing bilaterally.
fund of knowledge was normal and her concentration was
intact. She recalled three out of three objects after delay
and distraction. A.R. 477.
Glantz diagnosed cerebellar degeneration, possible type 6
with positive autosomal dominant family history. A.R. 478.
She noted that Bryant's condition was progressive and
hereditary with no treatment or cure.
Glantz opined that Bryant can stand and walk for up to six
hours and could benefit from a walking assistive device on
uneven terrain. According to Dr. Glantz, Bryant can lift and
carry 25 pounds frequently and 50 pounds occasionally,
although her incoordination may impact her ability at times.
She should never be on ladders, scaffolds, or ropes in light
of her incoordination. She can do occasional reaching,
handling, fingering, and feeling, and is limited by her
dysmetria from her ataxia of the upper extremities.
Additionally, Bryant should never work around unprotected
heights or heavy machinery. A.R. 478.
mother, Sara Bryant, completed a third party adult function
report on August 27, 2014. A.R. 201-209. According to Ms.
Bryant, Bryant's “degenerative disability . . .
affects her socialization-it's difficult for her to work
under someone else's control.” A.R. 201. She states
that “the disability affects [Bryant's] social
skills-interactions, speech, etc. She is easily overwhelmed
when misunderstood. Has lack of control-loudness, reactions,
progress very negative. As [Bryant's] disability worsens,
she becomes more isolated-prefers being alone.” A.R.
206. Ms. Bryant states that Bryant has difficulty with
lifting, walking, stair climbing, understanding, squatting,
sitting, seeing, following instructions, bending, kneeling,
memory, using hands, standing, talking, completing tasks,
getting along with others, reaching, hearing, and
concentration. A.R. 206. According to Ms. Bryant, Bryant can
follow written ...