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Jones v. Berryhill

United States District Court, N.D. California

September 24, 2019

SHARON JONES, Plaintiff,
v.
NANCY A. BERRYHILL, Defendant.

          ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT RE: DKT. NOS. 19, 20

          William H. Orrick, United States District Judge.

         The parties have filed cross-motions for summary judgment in this Social Security appeal. Based upon my review of the parties’ papers and the administrative record, I GRANT plaintiff’s motion, DENY defendant’s motion, and the matter is remanded for further proceedings.

         BACKGROUND

         I. PROCEDURAL HISTORY

         On February 6, 2014, plaintiff Sharon Jones applied for Supplemental Security Income (“SSI”) under Title XVI of the Social Security Act, alleging a disability onset date of June 15, 2010. Administrative Record (“AR”) 262. Her application was denied initially and again on reconsideration. AR 185–89, 194–98. She requested a hearing and appeared with counsel before Administrative Law Judge (“ALJ”) Evangelina P. Hernandez on June 28, 2016. AR 98–131. On September 12, 2016, the ALJ denied her claim for benefits. AR 10–27. On November 4, 2016, Jones appealed. AR 258. The ALJ’s September 2016 denial became the Commissioner’s final decision when the Appeals Counsel declined review on January 24, 2018. AR 1–4. On March 27, 2018, Jones filed this action for judicial review pursuant to 42 U.S.C. § 405(g). Dkt. No. 1. Jones filed a motion for summary judgment on November 21, 2018, and the Commissioner filed a cross-motion for summary judgment on December 19, 2018. Dkt. Nos. 19, 20.

         On June 17, 2019, Jones filed a request for judicial notice of a Notice of Award dated May 28, 2019, from the Social Security Administration.[1] Dkt. No. 24. After the adverse decision from ALJ Hernandez, Jones filed a subsequent application for SSI benefits. That subsequent application ended up with a decision that Jones was entitled to SSI benefits as of November 2016 “based on being disabled.” Id. Therefore, the only time period covered by this appeal is whether plaintiff was disabled and entitled to benefits between June 15, 2010 and October 2016.

         II. JONES’S IMPAIRMENTS

         A. Physical Impairments

         On October 4, 2011, Dr. Sokley Khoi, a psychologist who was not performing a physical examination or an eye test, noted that Jones “walked slowly” and had “difficulty with visual tasks.” AR 405. On October 24, 2011, at the request of the Social Security Administration, Jones was examined by Dr. Farah M. Rana. AR 409. Dr. Rana reported that although Jones was uncooperative during her vision testing, which was not completed, she was able to walk around the examination room without problem and could fill out part of the information sheet. AR 410. Dr. Rana noted that on her previous test Jones’s vision was 20/70 on the right and 20/100 on the left. AR 411. While Jones reported tenderness in her upper chest, there was no lower back tenderness noted and she had the full range of motion for all of her joints. AR 410. Dr. Rana concluded that Jones did not have any sitting, standing, walking, weight carrying, or postural limitations. AR 411.

         In April 2014, Jones was examined Dr. Manuel Hernandez. AR 592. In his notes, Dr. Hernandez reported that Jones’s right eye vision was 20/30 and that she could not see out of the center part of her left eye. AR 593. He noted that in 2011 while Jones complained of blurry vision, she did not report being unable to see out of the center part of her eye. AR 593. Dr. Hernandez reported that Jones was able to fill out the intake form without problem and was able to walk around the room. AR 593. She was also able to get on and off the exam table without issue. AR 594. Based on his observations, Dr. Hernandez found that Jones had no exertional, sitting, or standing limitations. AR 596.

         In a May 2014 Disability Determination Explanation, state physician I. Newton MD reviewed Jones’s medical records and found Jones’s symptoms to be “nonsevere” without explaining why. AR 158. After Jones requested reconsideration of her initial denial of benefits, Dr. Joan Bradus, MD conducted a second review of Jones’s medical records in October 2014. AR 173, 176–77. Bradus determined that Jones’s near acuity was limited in her left eye, her far acuity was limited in both eyes, her field of vision was limited, and she was blind in her left eye. AR 176–77. She opined that Jones was still able to do jobs that did not require fine discrimination at a distance or constant use of eyes for close work. AR 176–77. She also noted that Jones should “[a]void even moderate exposure” to hazards such as machinery and heights. AR 177.

         Dr. Matthew Fentress, Jones’s treating physician, examined Jones on four occasions: December 14, 2015; December 21, 2015; February 23, 2016; and March 24, 2016. AR 790, 787, 769, 814. On her first visit, Jones reported pain and numbness in her feet, blindness in her left eye, blurriness in her right eye, and low back pain. AR 790. Dr. Fentress assessed Jones as having “[l]ow back pain without sciatica, unspecified back pain laterality, ” and suspected “peripheral polyneuropathy.” AR 792. He recommended that Jones increase her daily gabapentin dosage from one tablet in the morning, afternoon, and evening, to one in the morning and afternoon and two in the evening. AR 792.

         On December 21, Dr. Fentress noted that Jones’s foot pain improved after he increased her dosage of gabapentin and that there had been no recent change in her vision. AR 787. At this visit, Dr. Fentress diagnosed her with peripheral polyneuropathy and chronic vision loss in her left eye. AR 789. He also referred her to Optometry. AR 789.

         Dr. Fentress examined Jones’s vision during the February 23, 2016 visit. He noted that Jones experienced blurriness in her right eye one to two times per week, “especially when she goes outside, ” and that she had permanent vision loss in her left eye, but that she was able to read a digital clock from across the room. AR 769. On her last visit to Dr. Fentress, Jones complained about nausea and poor appetite, and she “[reported] ongoing pain, throbbing, pins and needles feeling in glove and stocking distribution.” AR 814. Jones had noted that gabapentin was helping but she had run out of them. Id. Fentress re-prescribed her with gabapentin at this visit. AR 817.

         Dr. Fentress completed a Physical Medical Source Statement on June 23, 2016. AR 821-824. He listed Jones’s physical diagnoses as peripheral neuropathy, permanent visual loss left eye, low back pain, and major depressive disorder. AR 821. He estimated that Jones could walk only two city blocks without rest or severe pain, could not sit for more than two hours at a time, could not stand for more than two hours at a time, and could sit and stand/walk for at least six hours during an eight-hour work day. AR 822. Dr. Fentress stated that Jones’s pain or numbness would cause her to take two to three unscheduled breaks during a workday, she would need to rest 20 minutes before returning to work, and she would likely be absent more than four days per month. AR 822, 824. Fentress noted that Jones’s psychological limitations (discussed below) are more significant and limiting than her physical limitations. AR 824.

         Dr. Andrea De Souza, O.D. examined Jones on May 20, 2016, and completed a Vision Impairment Medical Source Statement the same day. AR 801. She listed Jones’s diagnoses as “macular scar of left eye and decrease vision of right eye of unknown etiology” and listed Jones’s visual acuity after best correction as 20/60 in her right eye and 20/HM in her left. AR 801. Dr. De Souza opined that Jones was not capable of avoiding ordinary hazards in the workplace, such as boxes on the floor, and that she had difficulty walking up or down stairs. AR 802. She stated that Jones would “rarely” be able to lift less than ten pounds. AR 802. While Dr. De Souza did not think Jones would need to take unscheduled breaks during an eight-hour work day, she did estimate that Jones would spend more than 25% of the work day “off task” because of her symptoms. AR 803.

         When Jones applied for SSI in 2014, she alleged a disability onset date of June 15, 2010. AR 262. Her reported physical impairments at the time were back pain and central eye blindness. AR 607. Jones’s medical records do not state the cause of these impairments, though at her hearing she speculated that her back pain may have begun after falling down a hill when she worked as a construction worker. AR 116. In her Function Report, Jones claimed that she could not “stand for a long period of time” and that she could not see out of her left eye. AR 327. She stated that her pain affected her ability to sleep, cook for herself, and walk. AR 328–29, 332. After her initial application was denied, Jones appealed the decision and claimed that her vision had worsened and that her back pain had spread down to her ankle, affecting her ability to move, walk, and see. AR 351–52, 355.

         At her hearing in front of the ALJ on June 28, 2016, Jones testified that she cannot see out of her left eye and that her vision in her right eye sometimes “gets to the point where it gets so blurry” that she cannot see out of it. AR 104–05. The last time she experienced this blurriness had been the night before the hearing, when she could not see anything “for minutes.” AR 105. Jones also testified that she had ongoing pain in her back, in her buttocks, and in her feet, but that if she took medication for the pain, she was able to walk around. AR 105, 111–12, 113–14. Jones guessed that she would be able to carry a bag of groceries, weighing five or ten pounds, from the car to her apartment with one of her hands, but not the other because she was afraid of the veins in her other wrist popping out. AR 118. She speculated that she would be able to make multiple trips between the car and her apartment if her feet were not hurting her, but could not lift more than ten pounds because her back might go out. AR 118–19. Jones testified that the pain in her feet made her fall “quite a few times” in the last month and that she uses a cane for balance. AR 124.

         B. Mental Impairments

         In 2011, Jones was examined by Dr. Sokley Khoi at the request of the Social Services Administration. AR 404–08. Dr. Khoi’s notes from this evaluation indicate that Jones was cooperative; oriented to person, time, and situation; and “had no obvious speech articulation or language comprehension difficulties.” AR 405. Her mood was depressed and at times during the examination she appeared tearful. AR 405. Dr. Khoi noted that Jones tested as either “extremely low” or “borderline” on the WAIS-IV and WMS-IV tests he conducted, and tested as a low level of ability on the Bender-Gestalt test.[2] AR 405–06. After completing a series of tests, Dr. Khoi concluded that Jones appeared to be “experiencing significant symptoms of depression.” AR 406. He noted that she would likely have marked impairments in the following work-related abilities: ability to understand and remember detailed instructions, ability to carry out detailed instructions, ability to maintain adequate pace and persistence to perform complex/detailed tasks, ability to adapt to changes in job routine, ability to withstand the stress of a routine work day, and ability to interact appropriately with co-workers, supervisors, and the public on a regular basis. AR 407. He also noted that she would have moderate difficulties with her ability to carry out short and simple instructions and her ability to maintain adequate pace and persistence to perform simple tasks. AR 407. In addition, he reported that Jones would have mild to moderate difficulties with her ability to understand and remember short and simple instructions. AR 407. He concluded that although she had alcohol dependency issues, she would continue to have these impairments even without substance abuse. AR 407.

         On August 22, 2012, Jones was examined by a psychiatrist at the Sausal Creek Outpatient Stabilization Clinic. AR 413–26. Jones came to the clinic because her father had passed away a few days prior and she had begun hearing voices daily. AR 414. She also reported that after her husband died in 2005, “everything fell apart” and she became homeless. AR 414. At this assessment, the nurse noted that Jones had never been prescribed psychiatric medications before. AR 415. The psychiatrist documented her history of suicide attempts; once by drinking bleach and the other by drinking ammonia. AR 422. The psychiatrist assigned Jones a Global Assessment of Functioning (“GAF”) score of 40 and prescribed her medication.[3] AR 423.

         On the same day, Sausal Creek referred Jones to the Alameda County Medical Center to assess her for “suicidality” and to make prescription recommendations. AR 742. Milton Lorig, M.D. examined her and noted her depressed mood, poor appetite, and thoughts of suicide. AR 742. Dr. Lorig found that Sausal Creek’s recommended psychiatric medication regimen did not “adequately address” her symptoms and prescribed other medication. AR 742. He diagnosed her with “Major Depressive Disorder, Single Episode, Unspecified” and noted her admission GAF as 45. AR 743.

         In December 2012, Jones was examined by LCSW Rudolph C. Smith at the Save a Life Wellness Center. He noted that Jones had marked limitations in the following areas: ability to remember work-like procedures, ability to maintain attention for extended periods, ability to maintain regular attendance and be punctual within customary tolerances, ability to sustain ordinary routine without special supervision, ability to work in coordination with others without being unduly distracted by them, ability to make work-related decisions, ability to complete a normal workday and work-week without interruptions from psychologically based symptoms and to perform consistent pace without an unreasonable number and length of rest periods, ability to accept instructions and respond appropriately to criticism from supervisors, ability to get along with co-workers and peers without unduly distracting them or exhibiting behavioral extremes, and ability to respond appropriately to changes in a routine work setting. AR 638. Smith opined that Jones’s mental health impairments would prevent her from working and that she should also be referred for a physical examination because of her lumbar problems. AR 639.

         Jones was examined by Dr. Aliyeh Kohbod on three occasions in 2014, after she was referred by an advocacy specialist at the Mental Health Association of Alameda County to determine her eligibility for disability benefits. AR 598. Dr. Kohbod noted that while records from Jones’s hospital stays did not reference her mental health issues, she had been assessed in 2012 at an outpatient facility after hearing voices, where she was given the diagnosis of “Psychotic Disorder NOS” (Not Otherwise Stated) and “Mood Disorder NOS.” AR 599. She pointed out that these notes were “not made by psychiatric professionals, ” and that later notes “indicate the presence of auditory and visual hallucinations.” AR 605. Dr. Kohbod concluded that Jones’s symptoms met the criteria of Schizophrenia, paranoid type and that this psychosis would likely prevent her from engaging in meaningful employment unless her current symptoms could be “controlled through psychotropic medication and extensive rehabilitative therapy.” AR 606.

         In June 2014, an SSA psychological and medical consultant, Heather Barrons, Psy. D, reviewed Jones’s medical records. AR 151–65. Dr. Barrons stated that as of June 2014, Jones had “no [psychiatric] hospitalizations and minimal [psychiatric therapy], ” though Dr. Barrons also noted that there were two complete psychiatric evaluations in Jones’s file, one from 2011 and one from 2014. AR 159. She opined that Jones’s symptoms moderately restricted her activities of daily living, her ability to maintain social functioning, and her ability to maintain concentration, persistence, and pace. AR 159. She found Dr. Kohbod’s assessment of Jones to be not supported by the “overall [evidence] in file” and assigned great weight to Dr. Hernandez’s assessment of her physical abilities. AR 160. She determined that Jones was not disabled and was capable of maintaining concentration, pace, and persistence for simple routines throughout a normal workday and week. AR 162, 165.

         After Jones requested reconsideration of her initial denial, Dr. Lucila, MD reviewed her medical records in October 2014. AR 167–82. Dr. Lucila affirmed Dr. Barrons’s initial findings (AR 174) and found that Jones would be able to “understand and perform simple one-two step instructions, ” “maintain adequate attention, concentration, persistence, and pace to perform routine tasks, ” and “interact appropriately with supervisors, co-workers, and the public on a limited basis.” AR 179.

         On December 1, 2015, James M. Relchmuth, M.D. and another health care provider examined Jones and prescribed her with Risperdal to treat her psychosis. AR 755–67. He listed her relevant past psychiatric history as two hospitalizations (at least one of which was in 2012) and two suicide attempts, both followed by hospitalizations. AR 757. Her recorded symptoms included hearing voices, low appetite, and sleep problems. AR 759. The other mental health care provider speculated that Jones was suffering from psychosis. AR 759. Dr. Relchmuth assigned Jones a GAF score of 45. AR 758. The other health care provider assigned her a risk assessment score of 86 for “serious self-neglect.” AR 761.

         At the end of 2015, Jones began receiving treatment for her physical and mental impairments at Lifelong Trust Health Center. AR 769–830. She received treatment from Dr. Matthew Fentress and Shana Green, a Nurse Practitioner. Green examined Jones on four occasions in 2016, after Dr. Fentress referred her for a psychiatric assessment (AR 781): January 4, February 5, February 23, and March 22. AR 781, 777, 772, 810. At the initial visit, Jones reported to Green that she had been hearing voices, experiencing thoughts of suicide, having trouble sleeping, and experiencing a loss of appetite. AR 781–82. Green’s notes document Jones’s history of trauma, including sexual abuse as a child (AR 782), physical abuse from her mother (AR 782), and a suicide attempt (AR 783). In their conversations, Green noted that Jones forgot her thoughts mid-sentence and that her recent and remote memory was inconsistent. AR 784. Green advised that Jones maintain taking Risperidone and start attending therapy. AR 785.

         The second time Green assessed Jones, she noted that Jones had “multiple no shows/cancellations, ” that Jones attributed to having difficulties with transportation, forgetfulness, and her fear of leaving the house. AR 777–78. Jones stated that her fear of leaving the house came from what might happen if she suddenly lost sight. AR 778. She characterized driving a car as “always difficult, ” and that she drove with her friend John sometimes, but panics when she does. AR 778. She also found it difficult to take the bus because of her difficulty being in crowds due to her eyesight. AR 778. Jones reported that the Risperidone stopped her from hearing voices and that she was able to sleep without leaving the television on to drown out the voices. AR 778. However, Jones still reported thoughts of suicide, low mood, and low appetite. AR 778.

         At her third appointment, Jones reported her situation was “a little better, ” her appetite was still poor, she was still experiencing suicidal thoughts, and had low energy and motivation. AR 773. Green noted that Jones’s concentration and focus had improved, that her judgment had improved, and that her recent and remote memory was average. AR 773–74. At this appointment, Dr. Fentress prescribed Jones with Cymbalta, after Green recommended it. AR 770, 780.

         During the fourth appointment, though she was taking Risperidone and Cymbalta, Jones continued to report feeling depressed, experiencing “high anxiety, ” having difficulty leaving her home, and having suicidal thoughts. AR 811. When Jones visited Dr. Fentress on March 24, he observed that she was “very anxious, ” “easily excitable, ” “tearful and despondent about her life, ” and became fixated on the idea that she might have cancer. AR 814. He diagnosed her with “episode of recurrent major depressive disorder” and prescribed her with an albuterol inhaler.[4]AR 816–17.

         In his June 23, 2016 Physical Medical Source Statement, Dr. Fentress identified “major depressive disorder” as Jones’s mental diagnosis. AR 821–24. He stated that emotional factors contributed to the severity of Jones’s symptoms and functional limitations. AR 821. At the end of the assessment, he wrote, “The patient’s psychological limitations are more significant than her physical limitations. Her functional impairments in attention and concentration related history of trauma and depression will make it very difficult or impossible for her to maintain regular employment.” AR 824. Because of her “mental status, disorganized state, and inability to regularly follow through with appointments and other instructions, ” Dr. Fentress estimated that she was incapable of even low stress work and was likely to spend 20% of the workday off-task. AR 824.

         In her application for SSI, Jones reported mental impairments of depression and anxiety with schizophrenia. AR 607. She claimed that because of her anxiety, she got “scared and nervous” around people. AR 327. She reported that she watched television all day long because she was “scared to go outside.” AR 328. When her initial application was denied, Jones appealed the decision, arguing that her mental health conditions had not improved since her initial application and she still suffered from schizophrenia and anxiety. AR 350. She also claimed that she heard voices if she did not take medication and kept the television on so that she did not hear them. AR 351.

         At the ALJ hearing, Jones testified that she does not think she would be able to return to work because she does not know whether her “feet might go out or [her] eye sight might go, ” which gives her anxiety. AR 104. The unpredictable blurriness of her right eye makes her “scared and nervous.” AR 104–05. She testified that she is scared to go out by herself, that during the day she watches television, and makes Hungry-Man meals for herself in the microwave. AR 104–05, 108. She reported that she often experiences low appetite and if she tries to eat during these periods, “[i]t’s like [the food] gets struck in [her] throat.” AR 108. Jones testified that on the day of her hearing, it had been four days since she last ate, when her niece came to visit her. AR 108– 09. Though her niece had come to visit her, Jones stated that “people rarely come over.” AR 110.

         Since starting to take medication in 2015, Jones stopped hearing voices and was able to sleep in silence, but still could not sleep through the night. AR 111, 758. She reported that she sometimes forgets to take her medication, but remembers if her feet and back start hurting. AR 111–12. Jones also testified that she has trouble remembering her appointments and does not go anywhere by herself. AR 112. She discussed feeling depressed, having good days and bad days, and that her anxiety was better now that she was taking medication. AR 117, 121.

         III. JONES’S ACTIVITIES OF DAILY LIVING

         Jones has testified to a limited set of daily life activities. She has stated that she spends the majority of her time alone in her apartment, watching television. AR 108, 328. She does not go out alone because she is scared to go outside. AR 330. The only places she reports going on a regular basis are the store, where she goes shopping once a month, and her doctors appointments. AR 330–31. The only “housework” she reports doing is “[making]” the couch she sleeps on, which she estimates takes ten minutes. AR 329. She uses a microwave to prepare her meals because she “can’t stand long” enough to cook other food. AR 329. However, most days Jones has little interest in eating, needs reminders to eat, or does not eat at all. See AR 108, 329. While Jones has testified to receiving visits from her niece and visiting her daughter in Sacramento, she has stated that she spends most of her time alone.

         IV. THE ALJ’S DECISION

         On September 12, 2016, the ALJ rendered a decision finding that Jones has not been under a disability as of her application date, January 22, 2014. AR 13. The ALJ decided that Jones had a number of severe impairments: alcohol abuse, anxiety disorder, major depressive disorder, loss of vision, peripheral neuropathy, and schizophrenia, but after considering three separate medical listings, held that Jones’s impairments did not satisfy their criteria. AR 15–17.

         At step one, the ALJ determined that Jones has not engaged in substantial gainful employment since her application date. AR 15. At step two, the ALJ determined that Jones has the following severe impairments: alcohol abuse, anxiety disorder, major depressive disorder, loss of vision, peripheral neuropathy, and schizophrenia, paranoid type. AR 15. The ALJ also determined that Jones has non-severe impairments as well, such as back pain and ankle pain, but because there was evidence in the record Jones had a “normal back with a normal range of motion” and “normal extremities, ” these impairments did not more than minimally affect her ability to perform basic work activities. AR 15–16. The ALJ noted that, nevertheless, she would account “for all impairments in the residual functional capacity, as necessary, taking into account the totality of the record.” AR 16.

         At step three, the ALJ found that Jones did not suffer from an impairment or combination of impairments that met or equaled one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. AR 16. The ALJ specifically considered listings 11.14 (peripheral neuropathy), 2.02 (loss of central visual acuity), 12.04 (depressive, bipolar and related disorders), and 12.06 (anxiety and obsessive-compulsive disorders). AR 16–17; 20 C.F.R. Part 404, Subpart P, Appendix 1.

         The ALJ found 11.14 was not met because she found Jones did not demonstrate “significant and persistent disorganization of motor function in two extremities resulting in sustained disturbance of gross and dexterous movements, or gait and station.” AR 16. The ALJ rejected 2.02 because “the claimant’s corrected vision in the better eye is 20/50.”[5] AR 16.

         When determining whether Jones’s impairments medically equaled listings 12.04 and 12.06, the ALJ considered whether the “paragraph B” criteria were satisfied. AR 17. To satisfy these criteria, the mental impairments must result in at least two of the following: marked restriction of activities of daily living; marked difficulties in maintaining social functioning; marked difficulties in maintaining concentration, persistence, or pace; or repeated episodes of decompensation. AR 17. The ALJ found that Jones had mild restriction of activities of daily living because she was able to prepare her own meals, watch television, be by herself most of the time, “make her couch, which she sleeps in, ” and drive. AR 17. Because the ALJ found that Jones was able to go shopping for food, use public transportation, live in an apartment with a friend, spend time with her niece, and visited her daughter in Sacramento, the ALJ assessed that Jones had only moderate difficulties in maintaining social functioning. AR 17. The ALJ concluded that Jones had only moderate difficulties in concentration, persistence, or pace because she was able to use public transportation to travel, pay bills, count change, and watch television. AR 17. Finally, the ALJ noted that Jones has not experienced any episodes of decompensation. AR 17.

         Prior to step four, the ALJ determined that Jones had the RFC to “perform medium work as defined in 20 C.F.R. 419.967(c) with the following limitations: never climb ladders, ropes, or scaffolds; kneeling and crawling would be occasional; has to avoid concentrated use of hazardous machinery and concentrated exposure to unprotected heights; limited to occupations that do not require complex written or verbal communication; work is limited to simple as defined in DOT as SVP levels 1 and 2, routine and repetitive; can work in a low stress job defined as having only occasional decision making and ...


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