Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Washington v. Berryhill

United States District Court, N.D. California, San Jose Division

September 5, 2019

ALLEN R. WASHINGTON, Plaintiff,
v.
NANCY BERRYHILL, Defendant.

          RE CROSS-MOTIONS FOR SUMMARY JUDGMENT RE: DKT. NOS. 25, 30

          VIRGINIA K. DEMARCHI UNITED STATES MAGISTRATE JUDGE

         Plaintiff Allen R. Washington appeals a final decision by defendant Commissioner of Social Security (“Commissioner”) denying his application for disability insurance benefits (“DIB”) under Title II of the Social Security Act (“the Act”) and for supplemental security income (“SSI”) under Title XVI of the Act, 42 U.S.C. §§ 1381, et seq. The parties have filed cross-motions for summary judgment. Dkt. Nos. 25, 30. Pursuant to the Court's order (Dkt. No. 18), each side also submitted statements of the administrative record. Dkt. Nos. 25-1, 30-1, 31-1. The matter was submitted without oral argument. Upon consideration of the moving and responding papers, the relevant evidence of record, and for the reasons set forth below, Mr. Washington's motion for summary judgment is granted in part and denied in part, the Commissioner's cross-motion for summary judgment is granted in part and denied in part, and this matter is remanded for further proceedings consistent with this order.[1]

         I. STANDARD FOR DETERMINING DISABILITY

         A. The Five-Step Analysis

         A claimant is considered disabled under the Act if he meets two requirements.[2] First, a 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 twelve months.” 42 U.S.C. § 423(d)(1)(A). Second, the impairment must be so severe that a claimant is unable to do previous work, and cannot “engage in any other kind of substantial gainful work which exists in the national economy, ” considering the claimant's age, education, and work experience. Id. § 423(d)(2)(A).

         In determining whether a claimant has a disability within the meaning of the Act, an Administrative Law Judge (“ALJ”) follows a five-step sequential analysis:

         At step one, the ALJ determines whether the claimant is engaged in “substantial gainful activity.” 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If so, the claimant is not disabled. If not, the analysis proceeds to step two.

         At step two, the ALJ assesses the medical severity of the claimant's impairments. Id. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). An impairment is “severe” if it “significantly limits [a claimant's] physical or mental ability to do basic work activities.” Id. §§ 404.1520(c), 416.920(c). If the claimant has a severe medically determinable physical or mental impairment, or a combination of impairments, that is expected to last at least 12 continuous months, he is disabled. Id. §§ 404.1509, 404.1520(a)(4)(ii), 416.920(a)(4)(ii), (d). Otherwise, the evaluation proceeds to step three.

         At step three, the ALJ determines whether the claimant's impairments or combination of impairments meets or medically equals the requirements of the Commissioner's Listing of Impairments. Id. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If so, a conclusive presumption of disability applies. If not, the analysis proceeds to step four.

         At step four, the ALJ determines whether the claimant has the residual functional capacity (“RFC”) to perform his past work despite his limitations. Id. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the claimant can still perform past work, then he is not disabled. If the claimant cannot perform his past work, then the evaluation proceeds to step five.

         At the fifth and final step, the ALJ must determine whether the claimant can make an adjustment to other work, considering the claimant's RFC, age, education, and work experience. Id. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). If so, the claimant is not disabled.

         The claimant bears the burden of proof at steps one through four. The Commissioner has the burden at step five. Bustamante v. Massanari, 262 F.3d 949, 953-54 (9th Cir. 2001).

         B. Supplemental Regulations for Determining Mental Disability

         Where there is evidence of a mental impairment that allegedly prevents a claimant from working, the Social Security Administration (“SSA”) has supplemented the five-step sequential evaluation process with additional regulations to assist the ALJ in determining the severity of the mental impairment, establishing a “special technique at each level in the administrative review process.” 20 C.F.R. §§ 416.920a(a), 1520a(a) (2016). First, the ALJ evaluates the claimant's “symptoms, signs, and laboratory findings” to determine whether the claimant has a “medically determinable mental impairment.” Id. §§ 416.920a(b)(1), 1520a(b)(1) (2016). For each of the categories contained in the adult mental disorder listing, these specific symptoms, signs, and laboratory findings are described in “paragraph A.” 20 C.F.R. pt. 404, Subpt. P., App. 1, § 12.00 (2016).

         If the claimant has a “medically determinable mental impairment, ” the ALJ assesses the degree of the claimant's functional limitation in the four “broad functional areas” identified in paragraph B and paragraph C of the adult mental disorders listings. See 20 C.F.R. §§ 416.920a(c)(3), 1520a(c)(3) (2016); Social Security Ruling (“SSR”) 96-8p, 1996 WL 374184, at *4 (July 2, 1996).[3] At the time of the ALJ's decision, those four functional areas were: “Activities of daily living; social functioning; concentration, persistence, or pace; and episodes of decompensation.” 20 C.F.R. §§ 416.920a(c)(3), 1520a(c)(3) (2016). Limitations are rated on a “five-point scale: None, mild, moderate, marked, and extreme.” Id. §§ 416.920a(c)(4), 1520a(c)(4) (2016). When discussing the fourth functional area (episodes of decompensation), the limitation is rated on a “four-point scale: None, one or two, three, four or more.” Id. §§ 416.920a(c)(4), 1520a(c)(4) (2016). Based on these limitations, the ALJ determines whether the claimant has a severe mental impairment and whether it meets or equals a listed impairment. See Id. §§ 416.920(d)(1)-(2), 1520a(d)(1)-(3) (2016). This evaluation process is to be used at the second and third steps of the sequential evaluation discussed above. SSR 96-8p, 1996 WL 374184, at *4 (“The adjudicator must remember that the limitations identified in the ‘paragraph B' and ‘paragraph C' criteria are not an RFC assessment but are used to rate the severity of mental impairment(s) at steps 2 and 3 of the sequential evaluation process.”).

         If the ALJ determines that the claimant has a severe mental impairment that neither meets nor equals any listing, the ALJ must assess the claimant's residual functional capacity. 20 C.F.R. §§ 416.920(d)(3), 1520a(d)(3) (2016). This is a “mental RFC assessment [that is] used at steps 4 and 5 of the sequential process [and] requires a more detailed assessment by itemizing various functions contained in the broad categories found in paragraphs B and C of the adult mental disorders listings in 12.00 of the Listing of Impairments . . . .” SSR 96-8p, 1996 WL 374184, at *4.

         II. BACKGROUND

         Mr. Washington was born in 1957 and was 59 years old at the time the ALJ rendered the decision under consideration here. AR 188. As a child, he suffered abuse from family members. AR 700-01. He identifies as transgender. See, e.g., AR 701, 807, 840 (“Veteran does not go by any other name than Allen. Veteran tells me that he does not care whether he is referred to in male or female pronouns at this time.”).

         Mr. Washington has a high school education and previously worked as a loan application clerk, consumer finance manager, stock clerk, sales person, and accounts payable clerk. AR 61- 64, 209, 259-64. He served in the U.S. Army from 1975 to 1978 and consequently receives healthcare and housing assistance through the Veterans Affairs (“VA”) healthcare system. AR 472. Mr. Washington also receives general assistance and food stamps. Id.

         On September 18, 2014, Mr. Washington applied for SSI and DIB based on his history of pulmonary embolism and depression, alleging onset of disability on November 15, 2013. AR 188-95.

         A. Summary of Relevant Medical Evidence

          The record includes medical evidence from Mr. Washington's treating physicians, nonexamining physicians, social workers, clinical psychologists, and other medical care providers, as well as two function reports that Mr. Washington completed. The medical evidence spans the period of time from February 5, 2013 to January 25, 2016.

         1. Kaiser Permanente hospitalization

         In late November and early December 2013, Mr. Washington experienced progressive dyspnea (shortness of breath) on exertion over a two- to four-day period, which worsened when he was required to climb ladders at the warehouse where he worked. AR 746. He was hospitalized at the nearest emergency room at Kaiser Permanente from December 1 to December 3, 2013 for treatment of bilateral pulmonary embolism. Id.; AR 336-82, 409-10. He was released on enoxaparin and coumarin (warfarin) therapy. AR 746.

         2. VA anticoagulation clinic treatment

         Mr. Washington received treatment from the VA's anticoagulation clinic beginning on December 9, 2013. AR 739-43; see also AR 460-64. Between December 6, 2013 and May 14, 2014, Mr. Washington's INR levels[4] were tested 13 times. AR 709. His results were within the target range of 2.0 to 3.0 the majority of the time, except for: the week following his hospitalization; on January 2, 2014, when his INR level was above the target range for an unknown reason; on January 13, 2014, when his INR level was below the target range due to lower dosage and a missed dose; and on May 14, 2014, when he accidentally took a higher dose than instructed. Id.; AR 729, 731.

         3. Treating physician Sally Masters, M.D.

         Dr. Masters was Mr. Washington's primary care physician at the VA who began treating him in January 27, 2012. AR 33, 751.

         a. December 6, 2013 visit

         Mr. Washington saw Dr. Masters for a follow-up appointment after he was released from the hospital. AR 746-47. She noted that his breathing was improving but had not yet returned to normal. AR 746. Dr. Masters also noted that Kaiser had found no clear etiology for the pulmonary embolism. Id.

         b. February 7, 2014 visit

         Dr. Masters met with Mr. Washington on February 7, 2014. AR 718-21. She noted that he had no prior history of depression. AR 718. He told Dr. Masters that his mood had been down and that he experienced low energy, anhedonia, and decreased motivation. Id. She described him in her notes as a “pleasant [patient] who appears mildly depressed.” AR 719; see also AR 720 (noting “[m]ild depression”). She prescribed him citalopram (Celexa). AR 720. Mr. Washington declined a mental health and behavioral health referral. Id. Mr. Washington told Dr. Masters that he had thought about taking his life prior to joining the military in 1975, although he denied any current suicidal thoughts. AR 718, 721.

         With respect to his pulmonary embolism condition, Dr. Masters noted that Mr. Washington continued to take warfarin, and that although he denied chest pain or shortness of breath, he had not been very active and therefore did not know whether he became short of breath with activity. AR 718. Dr. Masters recommended an additional three months of anticoagulation treatment for a total of six months and noted that he could cease treatment at the end of May 2014. AR 720. Mr. Washington stated that he did not yet feel that he was able to return to work full-time. AR 718. Dr. Masters advised Mr. Washington that he could return to work when he felt he was physically able to perform his tasks. AR 720. Mr. Washington also informed Dr. Masters that he had been obtaining female hormones “online” and using them for the past three years to address his gender dysmorphia and sought to continue hormone therapy through the VA, but Dr. Masters informed him that hormone therapy was an absolute contraindication given his history of pulmonary embolism. AR 500-01, 720.

         c. September 11, 2014 visit

         Mr. Washington saw Dr. Masters on September 11, 2014. AR 640-42. He complained of “‘extreme exhaustion' and mild substernal chest pain/pressure which is intermittent.” AR 640. He described his current symptoms as much less severe than when he was hospitalized in December 2013. Id. Mr. Washington stated that he had been relatively sedentary at home due to shortness of breath on exertion. Id. Dr. Masters noted that his oxygen saturation was 99-100% with ambulation in the clinic. AR 641, 642. She ordered, among other things, a chest x-ray and a lung scan. AR 642. She attributed the pulmonary embolism to Mr. Washington's use of estrogen. AR 640.

         Dr. Masters also noted that Mr. Washington complained of low grade headaches on a daily basis for the past two months, but the headaches went away nearly immediately after taking aspirin. AR 642. Dr. Masters suspected the headaches were the result of stress. Id.

         With respect to Mr. Washington's mental health, Dr. Masters noted he had mild depression. AR 640. He had started taking citalopram but complained that it made him sleepy and did not improve his mood, so he stopped taking it. Id.

         d. September 11, 2014 chest x-ray

         Mr. Washington underwent a chest x-ray on September 11, 2014. AR 447-48. The x-ray revealed no abnormalities except “[s]lightly low lung volume” and a “subcentimeter nodular opacity [that] may represent a vessel en-face or atelectasis.” AR 448. A second x-ray was recommended “with better inspiratory effort to exclude nodular lesion.” Id.

         Dr. Masters called Mr. Washington on September 12, 2014 to inform him that he needed to repeat the chest x-ray and that he had mild anemia. AR 481. She noted that “[o]therwise labs looked good” and that the chest x-ray was “[otherwise] unrema[r]kable.” Id.

         e. September 16, 2014 lung scan and chest x-ray

         Mr. Washington underwent a follow-up chest x-ray on September 16, 2014. AR 446-47. This x-ray revealed only a “minor abnormality, ” describing the nodular opacity previously noted in the September 11, 2014 x-ray as “less conspicuous and likely represents pulmonary vasculature.” Id.

         Mr. Washington also underwent a lung ventilation-perfusion (“VQ”) scan on September 16, 2014. AR 445-46. The scan results were “near normal, ” with a “very mild reduction in perfusion in the lower lobes when compared with the upper lobes [that] may represent sequelae from prior pulmonary embolism.” AR 445. The scan results also noted that “[t]he ventilation images are entirely normal.” Id.

         Dr. Masters called Mr. Washington on September 16, 2014 to inform him that the VQ scan was negative and that the chest x-ray did not show any pulmonary nodularity. AR 479. She noted that the lab results showed mild anemia, which she suspected contributed to his fatigue, “but all other tests so far are normal.” Id.

         f. December 2, 2014 mental medical source statement

         On December 2, 2014, Dr. Masters completed a mental medical source statement in support of Mr. Washington's claims for SSI/DIB based on his mental health. AR 751-54. She stated that she had been treating Mr. Washington since January 27, 2012, and that she saw him yearly and as necessary. AR 751.

         Dr. Masters identified the following psychological conditions or symptoms as affecting Mr. Washington: depression, loss of interest in activities (anhedonia), memory deficits, decreased energy, problems interacting with the public, difficulty with concentration, feelings of guilt, and lack of attention to details. Id. She diagnosed Mr. Washington with depression. Id. She indicated that she had been treating Mr. Washington's mental condition with sertraline (Zoloft), and that he had responded to the treatment. Id.

         Dr. Masters opined that Mr. Washington was mildly limited in his understanding and memory, including his ability to understand and remember both short, simple instructions and detailed instructions. AR 752. She also opined that he experienced both mild and moderate limitations in his ability to sustain concentration and persistence-specifically, he was moderately limited in his ability to sustain an ordinary routine without special supervision, his ability to work in coordination with or proximity to others without being unduly distracted by them, and his ability to make simple work-related decisions. Id. Dr. Masters indicated that Mr. Washington's social interaction abilities were mixed, from no limitations in his ability to get along with coworkers and to maintain socially appropriate behavior and to adhere to basic standards of cleanliness, to mild limitation in his ability to accept instructions and respond appropriately to supervisors' criticism, moderate limitations in his ability to ask simple questions or request assistance, and marked limitations in his ability to interact appropriately with the general public. AR 753. She also stated that she was unaware of any episodes of decompensation. Id. Overall, she found Mr. Washington to be moderately limited in his activities of daily living, his social functioning, and his concentration, persistence and pace. Id. Dr. Masters did not provide any reasons for her conclusions. AR 752-53.

         Dr. Masters opined that the limitations she indicated lasted 12 continuous months or could be expected to last 12 continuous months at the assessed severity. Id. at 754. She also stated that Mr. Washington's impairments were likely to produce “good days” and “bad days, ” and that she estimated that he would be absent from work about four days per month as the result of his impairments. Id.

         g. December 2, 2014 (physical) medical source statement

         On December 2, 2014, Dr. Masters completed a medical source statement in support of Mr. Washington's claims for SSI/DIB based on his physical health. AR 755-58. She stated that she had been treating Mr. Washington since January 27, 2012, and that she saw him yearly and as necessary. AR 755.

         Dr. Masters diagnosed Mr. Washington with pulmonary embolism, noting symptoms of shortness of breath, fatigue, and coughing. Id. As support for her diagnosis, she cited the fact that Mr. Washington had been admitted to Kaiser in December 2013 for a pulmonary embolism with a “mismatched VQ scan.” Id. She stated that the anticoagulant medication that Mr. Washington had been using to treat his condition could cause serious bleeding problems, but described his prognosis as “good.” AR 755-56. Dr. Masters also opined that Mr. Washington's impairment did not last or would not be expected to last least 12 months, stating that he “should be recovered from the pulmonary embolism that caused initial shortness of breath, based on treatment given.” AR 756. She identified the following psychological conditions or symptoms as affecting Mr. Washington's physical condition: depression, loss of interest in activities, memory deficits, decreased energy, problems interacting with the public, and difficulty with concentration. Id.

         Dr. Masters estimated that Mr. Washington's impairment was severe enough to interfere with his attention and concentration occasionally, meaning 6%-33% of the time. Id. She estimated that he could walk half a city block without rest or severe pain, and that he could stand for 30 minutes before needing to rest. Id. She further estimated that he could sit for eight hours, stand for less than one hour, and walk for one hour total in a workday. Id. Dr. Masters opined that Mr. Washington would not need to take unscheduled breaks during a work day, but that he would need to rest for 15-minute periods due to fatigue. AR 757. She stated that, in a competitive work situation, he could lift and carry less than 10 pounds frequently, 10 pounds occasionally, 20 pounds rarely, and never 50 pounds. Id. Dr. Masters also opined that Mr. Washington should avoid all exposure to extreme cold, high humidity, cigarette smoke, perfumes, soldering fluxes, fumes, odors, gases, and chemicals; avoid even moderate exposure to extreme heat, solvents and cleaners, and dust; and avoid concentrated exposure to wetness. Id.

         Dr. Masters stated that Mr. Washington's impairments were likely to produce “good days” and “bad days, ” and she estimated that he would be absent from work about four days per month as the result of his impairments. Id.

         h. April 21, 2015 visit

         Mr. Washington saw Dr. Masters for a follow-up appointment on April 21, 2015. AR 853-55. He complained of fatigue and reported being too fatigued to work, so he just lay around the house for most of the day. AR 853. He also reported experiencing shortness of breath following the pulmonary embolism diagnosis in 2013. Id. Dr. Masters noted that Mr. Washington had finished seven months of treatment. Id. She also noted that his blood oxygenation levels were 98-100% before and with ambulation. AR 854. She referred him for pulmonary function tests and noted that he had been mildly anemic. AR 855.

         With respect to his mental health, Dr. Masters noted that Mr. Washington suffered from mild depression, and that he had tried Celexa and Zoloft with no improvement in mood, so she prescribed him fluoxetine (Prozac) instead. AR 853, 855.

         i. November 13, 2015 visit

         Mr. Washington saw Dr. Masters again on November 13, 2015. AR 807-08. He complained of persistent dyspnea on exertion, which he had been experiencing since his treatment for pulmonary embolism from December 2013 to July 2014. AR 807. He also reported some pain on the left side of his chest, which he thought was related to heartburn and which he did not experience when suffering dyspnea on exertion. Id. He agreed to undergo pulmonary testing and a cardiac perfusion scan. Id.

         j. December 2, 2015 pulmonary function test

         On November 23, 2015, Mr. Washington underwent a pulmonary function test. AR 867. The test results stated: “The expiratory limb of the flow volume loop is essentially normal. The inspiratory limb cannot be interpreted due to poor patient effort. There is no evidence of an obstructive ventilatory defect.” AR 868. The test also noted that Mr. Washington's baseline oxygen saturation was 95%, and that he was able to ambulate 700 feet without desaturation. Id.

         4. Nonexamining physician G. Ikawa, M.D.

         On November 25, 2014, state agency reviewing physician G. Ikawa, M.D. reviewed Mr. Washington's medical evidence of record and performed a mental residual functional capacity assessment based on Mr. Washington's depression. AR 67-79. Dr. Ikawa concluded that Mr. Washington was able to perform and sustain simple repetitive tasks. AR 71. Dr. Ikawa opined that Mr. Washington exhibited mild restrictions of activities of daily living, mild difficulties in maintaining social functioning, and moderate difficulties in maintaining concentration, persistence, or pace. AR 72.

         With respect to Mr. Washington's understanding and memory limitations, Dr. Ikawa stated that his ability to understand and remember very short and simple instructions was not significantly limited, but his ability to understand and remember detailed instructions was moderately limited. AR 76.

         With respect to sustained concentration and persistence limitations, Dr. Ikawa determined that Mr. Washington was moderately limited in his ability to carry out detailed instructions, but that he was not significantly limited in his ability to sustain an ordinary routine without special supervision, his ability to work in coordination with or in proximity to others without being distracted by them, or his ability to make simple work-related decisions. AR 76. Dr. Ikawa opined that Mr. Washington was able to carry out simple instructions, to maintain his concentration and attention, to perform within a regular schedule and maintain regular attendance, and to complete a normal workday or work week. Id.

         Dr. Ikawa stated that Mr. Washington had social interaction limitations but found no significant limitations in any specific respect. AR 76-77. Dr. Ikawa noted that Mr. Washington was able to relate appropriately with his supervisors, co-workers, and the general public. AR 77.

         Similarly, Dr. Ikawa stated that Mr. Washington had adaptation limitations but found no significant limitations in any specific respect. Id. Dr. Ikawa noted that Mr. Washington was able to respond and adapt to changes in a work setting. Id.

         Dr. Paul Klein, PsyD reviewed and affirmed Dr. Ikawa's findings on April ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.