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Bryant v. Berryhill

United States District Court, N.D. California

September 3, 2019

ROSALI DENISE BRYANT, Plaintiff,
v.
NANCY A. BERRYHILL, Defendant.

          ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT RE: DKT. NOS. 18, 19

          Donna M. Ryu United States Magistrate Judge.

         Plaintiff 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.

         I. PROCEDURAL HISTORY

         Bryant 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.

         On 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.

A.R. 19.

         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 laundry worker II; bakery worker, conveyor; and basket filler, the ALJ concluded that Bryant is not disabled. A.R. 26.

         The 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).

         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. Bryant's Testimony

         Bryant was 26 years old on the date of the hearing. A.R. 41. She lives with her mother and brother. A.R. 41.

         Bryant 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. A.R. 62.

         Bryant's 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.

         In her 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.

         The ALJ 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.

         Bryant 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:

A. No.
Q. Okay. It's the history of the ataxia, the Cerebella Ataxia?
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 say [sic].

         A.R. 58.

         Bryant 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.

         B. Relevant Medical Evidence

         1. State Agency Medical Consultants

         On 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.

         2. Examining Physicians

         a. John Kiefer, Psy.D.

         John 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.

         Dr. 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.

         b. Robert Tang, M.D.

         Robert 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.

         Dr. 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.

         c. Les P. Kalman, M.D.

         Les P. 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.

         Dr. 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.

         Dr. 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.

         d. Edie Glantz, M.D.

         Edie 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.

         Dr. 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. A.R. 476.

         Bryant's fund of knowledge was normal and her concentration was intact. She recalled three out of three objects after delay and distraction. A.R. 477.

         Dr. 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.

         Dr. 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.

         3. Other Sources

         a. Sara Bryant

         Bryant's 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 ...


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