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Vandercourt v. Saul

United States District Court, N.D. California

November 7, 2019

ANDREW SAUL, Commissioner of Social Security, [1] Defendant.



         Before the Court is plaintiff O. Denise Vandercourt's (“Vandercourt”)[2] motion for summary judgment, filed November 15, 2018, by which Vandercourt seeks review of a decision issued January 12, 2017, by an administrative law judge (“ALJ”), denying her claim for Social Security disability insurance benefits. Also before the Court is the cross-motion for summary judgment, filed January 8, 2019, by defendant, the Commissioner of Social Security (“Commissioner”). Pursuant to Civil Local Rule 16-5, the motions have been submitted on the papers without oral argument. Having read and considered the parties' respective written submissions, the Court rules as follows.


         On August 18, 2014, Vandercourt filed an application for Social Security disability insurance benefits, alleging a period of disability beginning May 26, 2012, [3] based on bilateral carpal tunnel syndrome, bilateral shoulder tendonitis, anxiety, and depression. On March 11, 2015, the SSA denied Vandercourt's application and, on July 14, 2015, denied her request for reconsideration. Subsequently, Vandercourt requested a hearing before an ALJ. On January 9, 2017, the ALJ conducted a hearing, at which Vandercourt, as well as a vocational expert (“VE”), testified. During the hearing, Vandercourt requested a “closed period” of disability ending in “February 2015.” (See CAR 38.)

         At the hearing, Vandercourt, through her attorney, explained that, during the requested period of disability, she had “return[ed] to work on a part-time basis in October of 2013, ” started “working full-time as of March of 2014, ” and “stopped again in October of 2014 because of surgery [for] carpal tunnel syndrome.” (See id. 37.) In answering questions about the alleged onset of her disability in May 2012, the circumstances that kept her from working until October 2013, and her subsequent efforts to return to work, Vandercourt described her symptoms, including problems with panic attacks, paranoia, focus, pain, and gripping items with her hands. In addition, prior to the hearing, Vandercourt had described her symptoms in a number of reports, including a “Function Report, ” dated November 7, 2014, in which she stated her mental and physical conditions affected her ability to remember, concentrate, lift, carry, reach, and use her hands. (See id. 232.)

         Following Vandercourt's testimony, the ALJ posed a series of employment hypotheticals to the VE, inquiring about Vandercourt's ability to perform “light” work, [4] with specified restrictions. (See id. 56-60.) In response, the VE testified Vandercourt could no longer perform her past relevant work, [5] given a hypothetical limitation to “simple/routine tasks” or “simple/repetitive work” (see id. 56), but could perform certain “unskilled” jobs (see id.)[6] in the “light” and “sedentary” categories (see id. 56-60).[7] The VE also testified, in response to follow-up questions from Vandercourt's attorney, as to the impact of various additional limitations. (See id. 60-63.)

         On January 12, 2017, the ALJ issued her decision, finding, based on the five-step sequential evaluation process set forth in the Code of Federal Regulations, [8] Vandercourt was not disabled. At step one, the ALJ determined Vandercourt had engaged in substantial gainful activity for part of the claimed period.[9] At step two, the ALJ found Vandercourt had three “severe impairments, ” namely, “bilateral carpal tunnel syndrome, bilateral shoulder impingement[, ] and anxiety.” (See id.) At step three, the ALJ determined Vandercourt did not have an impairment or combination of impairments that met or equaled a listed impairment.

         Before continuing to step four, the ALJ determined Vandercourt's “residual functional capacity” (“RFC”)[10] and, in that regard, found Vandercourt could perform, subject to certain limitations, “light work . . . as defined in 20 CFR [§] 404.1567(b).” (See id. 20, 22 (explaining RFC finding “relates to the time period in which the claimant had the most limitations”).) At step four, the ALJ, relying on testimony provided by the VE, found Vandercourt was “unable to perform past relevant work.” (See id. 27.) Lastly, at step five, the ALJ, again relying on the VE's testimony, found that, in light of Vandercourt's “age, education, work experience, and [RFC], ” Vandercourt could perform “the requirements of representative occupations such as blending tank tender helper . . . and laminating machine off bearer.” (See id. 28.) Based thereon, the ALJ denied Vandercourt's application at the fifth step.

         Thereafter, Vandercourt requested the Appeals Council (“AC”) review the ALJ's decision, and, on March 16, 2018, the AC denied review, explaining it had considered the reasons Vandercourt disagreed with such decision and that said reasons “d[id] not provide a basis for changing” it. (See id. 1.)

         On May 20, 2018, Vandercourt filed the instant petition for review.


         “An ALJ's disability determination should be upheld unless it contains legal error or is not supported by substantial evidence.” Garrison, 759 F.3d at 1009. “Substantial evidence means more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). “The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and . . . resolving ambiguities.” Id.

         The court “review[s] only the reasons provided by the ALJ in the disability determination and may not affirm the ALJ on a ground upon which [the ALJ] did not rely.” See Garrison, 759 F.3d at 1010. The court must consider “the administrative record as a whole, weighing both the evidence that supports and that which detracts from the ALJ's conclusion, ” see Andrews, 53 F.3d at 1039, and “must uphold the ALJ's decision where the evidence is susceptible to more than one rational interpretation, ” see id. at 1039-40.

         “Even when the ALJ commits legal error, ” the court must “uphold the decision where that error is harmless.” See Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015) (internal quotation, citation, and alteration omitted). “An error is harmless only if it is inconsequential to the ultimate nondisability determination” or, where the error is based on a lack of specificity, if “the [ALJ's] path may reasonably be discerned.” See id. at 494 (internal quotation and citation omitted).


         In her motion for summary judgment, Vandercourt contends the ALJ erred in assessing both the medical evidence and her testimony and, consequently, contends the ALJ's step-five finding that she could perform other work is not supported. The Court discusses below the medical evidence and testimony in turn.

         A. Medical Evidence

         Reviewing courts “‘distinguish among the opinions of three types of physicians: (1) those who treat the claimant (treating physicians); (2) those who examine but do not treat the claimant (examining physicians); and (3) those who neither examine nor treat the claimant (nonexamining physicians).'” See Garrison, 759 F.3d at 1012 (quoting Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995)). In general, “the opinion of a treating physician is . . . entitled to greater weight than that of an examining physician, ” see id., and “the opinion of an examining physician is entitled to greater weight than that of a non-examining physician, ” see id.

         Vandercourt contends “the ALJ expressly accepted” the medical opinions of Karen Hauer, M.D. (“Dr. Hauer”), her treating physician, and Jenny Forman, Ph.D. (“Dr. Forman”), a clinical psychologist who served as a consultative examiner, “but improperly failed to include critical aspects of these medical opinions in the RFC finding.” (See Mot. at 11:15-16.) The Commissioner contends the ALJ “did not entirely adopt any single medical opinion” (see Cross-Mot. at 3:4-5), and that Vandercourt has not established “reversible error” in the ALJ's evaluation of such opinion evidence (see id. at 2:19).

         At the outset, the Court notes the parties disagree as to the applicable standard for reviewing an ALJ's decision to reject a medical opinion. Vandercourt contends the ALJ must provide “clear and convincing reasons” to reject the opinion of a treating or examining doctor (see Mot. at 11:16-17), whereas the Commissioner contends the ALJ only has to provide “specific and legitimate reasons” for such rejection (see Cross-Mot. at 3:28). As set forth below, the appropriate standard is dependent upon the other medical opinions in the record.

         Where a treating or examining doctor's opinion is “not contradicted by another doctor, it may be rejected only for ‘clear and convincing' reasons.” See Lester, 81 F.3d at 830 (citation omitted).[11] “If a treating or examining doctor's opinion is contradicted by another doctor's opinion, an ALJ may only reject it by providing specific and legitimate reasons that are supported by substantial evidence.” See Garrison, 759 F.3d at 1012 (internal quotation and citation omitted). “The opinion of a nonexamining physician cannot by itself constitute substantial evidence that justifies the rejection of the opinion of either an examining physician or a treating physician.” Lester, 81 F.3d at 831 (emphasis omitted).

         The Court will begin by discussing Dr. Hauer's opinion.

         1. Dr. Hauer's Opinion

         Vandercourt contends the ALJ failed to include, in the RFC finding, limitations Dr. Hauer identified as to her ability to lift and to use her hands, and provided “no reasons” for rejecting said limitations. (See Mot. at 10:4.) The Commissioner responds that the ALJ “explain[ed] why” her RFC finding “best accounted for” the medical opinions of both Dr. Hauer and another physician, L. Pancho, M.D. (“Dr. Pancho”) (see Cross-Mot. at 3:12-13), a nonexamining agency consultant who reviewed Vandercourt's medical records.[12]

         In a medical source statement dated October 20, 2014, Dr. Hauer diagnosed Vandercourt with “bilateral shoulder impingement” and “bilateral CTS [carpal tunnel syndrome]” (see CAR 298) and, inter alia, identified a number of limitations in connection with said conditions. In that regard, Dr. Hauer opined Vandercourt could, “in a competitive work situation, ” lift and carry 10 pounds “occasionally” and less than 10 pounds “frequently, ” but could “never” lift and carry 20 pounds. (See id. 300 (defining “occasionally” and “frequently, ” respectively, as “6% to 33%” and “34% to 66%” of an 8hour workday).) Dr. Hauer also found Vandercourt had “significant” limitations as to handling, fingering, and reaching. In particular, Dr. Hauer opined, Vandercourt could use her hands to “grasp, turn[, ] [or] twist objects” 20-30% of an 8-hour workday, her fingers for “fine manipulations” 20% of such time, and her arms for “reaching, ” which includes overhead reaching, 20% of such time. (See id. at 301.)

         On June 23, 2015, Dr. Pancho opined, inter alia, Vandercourt could lift and carry 20 pounds “occasionally” and 10 pounds “frequently.” (See id. 94.) With respect to “manipulative limitations, ” Dr. Pancho opined Vandercourt could reach overhead with her left upper extremity “frequent[ly]” and with her right upper extremity “occ[asionally]” (see id. 95), could engage in “frequent but not constant handling bilaterally” (see id.), and did not have any limitations as to “fingering” and “feeling” (see id.). Notably, each of Dr. Pancho's assessments was less restrictive than Dr. Hauer's.

         The ALJ, having summarized the full opinions of the above-referenced physicians, gave Dr. Hauer's opinion “great weight because it is consistent with the treatment record” (see id. 26), and, by contrast, gave Dr. Pancho's opinion “some weight, ” explaining “[t]he postural restrictions[13] are appropriate[, ] but manipulatives are less restrictive than warranted given the objective evidence throughout the claimant's treatment record.” (See id.)

         Nevertheless, in her RFC determination, the ALJ made a number of findings that conflict or appear to conflict with Dr. Hauer's opinion. In particular, the ALJ, consistent with Dr. Pancho's opinion, found Vandercourt could “lift and carry 20 pounds occasionally and 10 pounds frequently” (see id. 22), and could “frequently reach overhead with her left arm” and “occasionally reach overhead with her right arm” (see id.). The limitations as to lifting and carrying clearly conflict with Dr. Hauer's opinion that Vandercourt could never lift or carry 20 pounds and could lift and carry 10 pounds only occasionally. In addition, the limitations as to reaching with the left arm conflict with Dr. Hauer's opinion that, as to both arms, Vandercourt could reach only 20% of the time, which is in the middle of the occasional range, and ...

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