United States District Court, N.D. California, San Jose Division
ALLEN R. WASHINGTON, Plaintiff,
NANCY BERRYHILL, Defendant.
RE CROSS-MOTIONS FOR SUMMARY JUDGMENT RE: DKT. NOS.
VIRGINIA K. DEMARCHI UNITED STATES MAGISTRATE JUDGE
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
STANDARD FOR DETERMINING DISABILITY
The Five-Step Analysis
claimant is considered disabled under the Act if he meets two
requirements. 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).
determining whether a claimant has a disability within the
meaning of the Act, an Administrative Law Judge
(“ALJ”) follows a five-step sequential analysis:
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
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.
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, 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.
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.
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).
Supplemental Regulations for Determining Mental
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).
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). 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.”).
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.
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
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.
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.
Summary of Relevant Medical Evidence
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.
Kaiser Permanente hospitalization
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.
VA anticoagulation clinic treatment
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 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.
Treating physician Sally Masters, M.D.
Masters was Mr. Washington's primary care physician at
the VA who began treating him in January 27, 2012. AR 33,
December 6, 2013 visit
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.
February 7, 2014 visit
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.
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
September 11, 2014 visit
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.
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.
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.
September 11, 2014 chest x-ray
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.
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.
September 16, 2014 lung scan and chest x-ray
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
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.
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.
December 2, 2014 mental medical source statement
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.
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
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
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
December 2, 2014 (physical) medical source statement
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.
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
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.
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
April 21, 2015 visit
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.
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.
November 13, 2015 visit
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.
December 2, 2015 pulmonary function test
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.
Nonexamining physician G. Ikawa, M.D.
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.
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.
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.
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.
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
Paul Klein, PsyD reviewed and affirmed Dr. Ikawa's
findings on April ...