Phillip M. v. Commissioner of Social Security

          ORDER RE: CROSS-MOTIONS FOR SUMMARY JUDGMENT RE: DKT. NOS. 23, 27

          THOMAS S. HIXSON, UNITED STATES MAGISTRATE JUDGE

         I. INTRODUCTION

         Plaintiff Phillip M. brings this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of a final decision of Nancy Berryhill, then-Acting Commissioner of Social Security, denying Plaintiff's claim for disability benefits.^[2] Pending before the Court are the parties' cross-motions for summary judgment. ECF Nos. 23 (Pl.'s Mot.), 27 (Def.'s Mot.). Pursuant to Civil Local Rule 16-5, the motions have been submitted on the papers without oral argument. Having reviewed the parties' positions, the Administrative Record (“AR”), and relevant legal authority, the Court hereby DENIES Plaintiff's motion and GRANTS Defendant's cross-motion for the following reasons.

         II. BACKGROUND

         A. Age, Education and Work Experience

         Plaintiff is 44 years old. AR 63. During school he had a learning disability and was placed in special education. AR 244, 374. Plaintiff completed 11 years of school but did not receive a high school diploma or GED. AR 244, 363. He has worked in construction, painting, furniture delivery, and security. Id. (both).

         B. Medical Evidence

         The medical evidence of record consists of Exhibits 1F through 10F, including emergency department records from Highland Hospital; treatment records from Alameda Behavioral Health Care Services dated May 8, 2014 to November 14, 2014; treatment records from Lifelong Medical Care dated January 13, 2014 to February 18, 2015; a psychological evaluation from Dr. Lesleigh Franklin, PhD. conducted July 22, 2015 and dated August 28, 2015; a psychological consultative examination performed by Dr. Paul Martin, PhD. dated January 20, 2016; a physical internist exam conducted by Dr. Robert Tang dated January 25, 2016; treatment records from Lifelong Trust Clinic from January 21, 2016 to February 24, 2016; treatment records from Highland Hospital covering November 11, 2015 to July 17, 2017; Lifelong treatment notes from February 4, 2016 to August 1, 2017; and a questionnaire submitted by Dr. Jeffrey Seal from Lifelong Medical Care dated August 17, 2017. AR 266-438.

         Plaintiff attended Lifelong Trust Clinic for primary care on September 5, 2013. AR 346. He was treated for asthma, chronic right knee pain, and depression. AR 336, 343. Nurse Practitioner Douglas Frey prescribed 30 mg of Remeron and 20 mg of buspirone per day starting on April 9, 2014. AR 335. Records from Lifelong Trust Clinic also indicate that in March, possibly of 2016, he was admitted to Summit Hospital with a closed skull fracture. AR 474.

         In August and September of 2014, Plaintiff made visits to the emergency department at Highland Hospital to address a variety physical issues, including injuries suffered from being assaulted with a knife by his roommate, resulting in multiple lacerations to his face, right shoulder and left wrist, and injuries suffered during a fight with the police. AR 266-93. He reported to the emergency department on August 23, 2014 with multiple lacerations to his face, right shoulder and left wrist that he reported were a result of his roommate attacking him with a knife. AR 291.

         Plaintiff was assisted by Behavioral Health Care Services (“BHCS”) between May and October of 2014. AR 304-29. Staff at BHCS acquired housing for him at the Lakehurst Hotel on May 21, 2014. AR 306. Lakehurst's manager complained to BHCS staff about Plaintiff's “poor lack of boundaries, ” including showing the landlord a naked picture of his girlfriend on his cell phone less than a month after acquiring housing. AR 308. On August 5, 2014, BHCS notes show they assisted Plaintiff with his move into permanent housing with a program called FACT. AR 316. The notes show he repeatedly broke the rules of his housing program, got in physical altercations with his roommate and was removed from his placement by September 22, 2014. AR 321, 323, 325.

         1. Dr. Franklin

         On July 22, 2015 Plaintiff saw Dr. Lesleigh Franklin, PhD. for a psychiatric evaluation. AR 362-68. During his interview, Plaintiff told Dr. Franklin the he used to deliver furniture but stopped due to physical injuries and that his depression makes it difficult to be around people. AR 363. Plaintiff also reported he has a history of drinking too much alcohol and still drinks, although not as much as in the past. Id. He reported falling off a balcony in 2010 and being beaten by the police in 2013. Id. He also reported severe depression since the death of his wife in 1998 and stated that it gets in the way of daily functioning. Id. He told Dr. Franklin that at around the age of thirteen he saw aliens in his room and that they may have inserted a chip into his chest. Id. Plaintiff advised he still hears voices and that they encourage him to hurt himself or others. Id.

         In her Mental Status Exam, Dr. Franklin noted that Plaintiff walked with a cane, that he worked at a slow rate and was unable to sustain attention well enough to remember short strings of information. AR 364. Dr. Franklin noted he “displayed a childlike quality” and was tearful at times. Id. Plaintiff scored a full scale IQ of 48, a score below the .1 percentile of scores for peers in his age group. AR 365, 367-68. He received a score of 20 on the vocabulary subtest, which tests language development, word knowledge, and general verbal intelligence, a result in the extremely low range as compared to his peers. AR 365. He received a T score of 29 on the Block Design subtest, which tests non-verbal problem-solving skills, spatial visualization and the ability to analyze a whole and component parts, a result in the extremely low range as compared to his peers. Id. Plaintiff received a score of 20 on the Matrix Reasoning subtest, which tests one's ability to process visual information and abstract reasoning without requiring verbalization, a result in the extremely low range as compared to his peers. Id.

         Dr. Franklin also performed the Repeatable Battery for Assessment of Neuropsychological Status, which evaluates an individual's current neuropsychological status. Id. Plaintiff received a score of 44 on the Language Index, 60 on the Visuospatial/Constructional Index, 40 on the Immediate Memory Index, 46 on the Attention Index, and an overall score of 43. AR 365-66. All of these scores were in the extremely low range as compared to his peers. Id.

         Dr. Franklin noted that Plaintiff reported symptoms including depressed mood, loss of interest, sleep disturbance, psychomotor disturbance, fatigue, feelings of worthlessness/guilt, poor concentration, and suicidal ideation. AR 366. She also noted his experience of a traumatic event involving fear of death or serious injury, re-experience of the event, avoidance of associated stimuli and a sense of a foreshortened future, hypervigilance, and exaggerated startle response. Id. She noted that during the interview it was clear that he was experiencing a high level of stress and that he became tearful upon remembering his psychotic experiences. Id.

         Dr. Franklin diagnosed Plaintiff with schizoaffective disorder, depressive type, PTSD, and borderline intellectual functioning. AR 367. She concluded that Plaintiff suffered a marked impairment to his ability to: understand, remember and carry out instructions; maintain attention and concentration for two hour segments; perform at a consistent pace without an unreasonable number of breaks; respond appropriately to changes in a routine work setting and deal with work stress; and complete a normal workday/workweek without interruption from psychological symptoms. AR 368. She also concluded that Plaintiff suffered a moderate impairment to his ability to: understand, remember and carry out very short and simple instructions, and get along/work with others. Id. He suffeedr mild impairment in his ability to interact appropriately with the general public; accept instructions and respond appropriately to criticism from supervisors; and maintain regular attendance and be punctual with customary, usually strict tolerances. Id.

         2. Dr. Martin

         Plaintiff attended a psychological evaluation with Dr. Paul Martin, Ph.D. on January 20, 2016, who conducted a mental status exam, Wechsler Adult Intelligence Scale (“WAIS-IV”), and Wechsler Memory Scale (“WMS-IV”). AR 372-80. Dr. Martin did not review any records but noted that Plaintiff reported a history of head injury, problems with memory, concentration, headaches and dizziness, and low energy, poor motivation, social withdrawal, sleep disturbance, anhedonia, crying spells, anger, irritability, and visual hallucinations involving spaceships. AR 372-73. Plaintiff's mental status exam showed a weak and dreamy mood, poor attention demonstrated by only being able to name four digits forward and three in reverse, fair fund of knowledge demonstrated by naming three out of the last five presidents, poor memory demonstrated by inability to recall any of three words after a brief delay, the ability to calculate how much money was in seven quarters, the ability to identify a similarity between an orange and banana, and the ability to understand a proverb. AR 375.

         Plaintiff's WAIS-IV testing revealed a full scale IQ of 59, processing speed subtest score of 56, working memory of 63, and perceptual reasoning of 67, which were all in the extremely low range. He received a score of 70 on the verbal comprehension index, which was in the borderline range. AR 376-77. His WMS-IV results revealed scores in the extremely low range in all subtests, including visual, auditory, immediate and delayed memory, which Dr. Martin noted indicated a severe impairment with new learning and memory. AR 377-78.

         Dr. Martin diagnosed Plaintiff with depression, with a need to rule out cognitive disorder, pain disorder that involves both physical and psychological factors, and cannabis abuse. AR 378. He concluded that Plaintiff suffered a moderate impairment in his ability to: perform detailed and complex tasks; maintain regular attendance; perform work activities on a consistent basis; work without special supervision; complete a normal workday or workweek without interruptions from psychological symptoms; accept instructions from supervisors; interact with coworkers and the public; and deal with usual stressors related to competitive work. AR 379. He is mildly limited in his ability to perform simple and repetitive tasks. AR 378.

         3. Dr. Tang

         On January 25, 2016, Plaintiff attended a physical evaluation with Robert Tang, M.D. that had been ordered by the agency. AR 383-86. Plaintiff advised he had not worked for five years due to a right knee fracture that required six pins/screws, he had chronic pain and ambulates using a cane, and he completed personal needs slowly while using a cane. AR 383. Plaintiff was unable to perform the tandem walk or toe-heel stand due to right knee pain and Dr. Tang noted that his cane was medically necessary. AR 384. Plaintiff's knee had a slow range of motion and could only flex 110 degrees, as compared with 150 degrees in his left knee. Id. Dr. Tang noted that his right knee had a surgical scar and was no more than 50% weightbearing. AR 385.

         Dr. Tang concluded that if Plaintiff were granted the “maximum allowable breaks, ” he would be able to/would be limited to: stand and walk up to six hours; sit without limitations; lift and carry up to 20 pounds occasionally and ten pounds frequently; occasionally balance, stoop, kneel, crouch, and crawl; and without limitations reach, handle, finger and feel. Id. He concluded Plaintiff would have limitations working around heavy machinery but no limitations working around dust, fumes, gases, loud noise, or chemicals. AR 385.

         4. Dr. Seal

         Plaintiff was seen at the Lifelong Trust clinic at least nine times between February 4, 2016 and August 1, 2017. AR 447-93. He saw Jeffrey Seal, M.D. at the Lifelong Trust Clinic on February 4, 2016. AR 400-03. Dr. Seal performed a psychological evaluation, diagnosing PTSD and depression. AR 402. He prescribed 100 mg sertraline daily with a brief built-in week at 50 mg. Id. Dr. Seal noted that Plaintiff presented with depressed mood with sad tearful affect, mild psychomotor agitation, frequent staring at the floor, and slowed speech. Id. He noted that while Plaintiff used substances, his use appeared to be secondary to homelessness, lack of resources, and self-medication of symptoms as they worsen. Id. Plaintiff appeared to have a low functional status that was potentially related to a developmental delay. Id. Dr. Seal noted that his physical and mental conditions have contributed to his inability to find gainful employment. Id.

         Plaintiff saw Dr. Seal again on May 26, 2016, at which time he presented with depressed mood, appeared sleepy, and complained about struggles with memory. AR 482-84. Dr. Seal noted that an IQ test in 2010 showed an IQ of 79, in the low average, and a verbal IQ of 70, and concluded based on this and his observations and record review that Plaintiff had low cognitive function and would need “more support than our clinic can provide.” AR 483-84.

         On August 17, 2017, Dr. Seal filled out and signed a questionnaire regarding Plaintiff's mental health and how it would impact his ability to work. AR 495-99. He noted significant deficits in complex attention, executive function, learning and memory, language and perceptual motor or social cognition. AR 496. He also noted symptoms of sleep disturbance, decreased energy, difficulty concentrating, easy or frequent distractibility, easy fatigue, detachment from social relationships, depressed mood, appetite disturbance, thoughts of death or suicide, irritability, distrust or suspiciousness of others, difficulty organizing tasks, difficulties learning and using academic skills, avoidance of external reminders of a traumatic event, increase in arousal and reactivity, instability of interpersonal relationships, exposure to actual or threatened death or violence, and involuntarily re-experience of a traumatic event. Id.

         Dr. Seal concluded that Plaintiff suffered from a marked impairment to his overall ability to understand remember and apply information. AR 497. In subcategories related to understanding, memory and application, he found a marked impairment in Plaintiff's ability to describe work activity to someone else, ask and answer questions including explanations, identify and solve problems, sequence multi-step activities, and use reason and judgment to make work related decisions. Id. Dr. Seal found a moderate impairment in Plaintiff's ability to understand and learn instructions, follow one or two step instructions to carry out a task, and recognize mistakes. Id. He concluded that Plaintiff suffered from a moderate impairment to his overall ability to interact with others, finding moderate impairments in all related subcategories except for asking for help when needed, for which he found a marked impairment. Id. He also concluded that Plaintiff suffered from a marked impairment in his overall ability to concentrate, persist or maintain pace, and marked impairment in every subcategory of concentration, except his ability to initiate and perform a known task and working close to others without creating distractions- where he found a moderate impairment. Id. Dr. Seal concluded that Plaintiff suffered from a moderate impairment in his overall ability to adapt or manage himself and a marked impairment in his ability to adapt to changes and manage psychologically based symptoms. AR 498. Dr. Seal reported that on average he expected that Plaintiff's combined impairments would cause him to be absent from work four days or more in an average month and be off task over 30% of the average eight-hour workday. Id. He opined that Plaintiff's condition could improve if his social circumstances greatly improved, but it would likely get worse in times of acute stress. AR 499. In his statement, Dr. Seal noted that Plaintiff's symptoms of depression and PTSD had been resistant to treatment and that multiple psychological evaluations have shown he likely suffers from a cognitive disorder that severely limits his ability to regularly engage in medical care and maintain a personal routine. Id.

         III. SOCIAL SECURITY ADMINISTRATION PROCEEDINGS

         On June 27, 2015, Plaintiff filed a claim for Disability Insurance Benefits, alleging disability beginning October 16, 2010. AR 159-64. On November 13, 2015, the agency denied Plaintiff's claim, finding he did not qualify for benefits. AR 79-82. Plaintiff subsequently filed a request for reconsideration, which was denied on February 23, 2016. AR 86-91. On March 29, 2016, Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). AR 92-93. Although ALJ E. Alis conducted a hearing on August 29, 2017, Plaintiff did not appear and his counsel, Alla Barkan, stated he did not know where he was because he is “chronically homeless and missing a phone.” AR 47-49. The ALJ proceeded with the hearing and heard testimony from Vocational Expert (“VE”) Robert Cottle. AR 53-60.

         A. Vocational Expert's Testimony

         The ALJ asked the VE, based on his review of Plaintiff's file, whether Plaintiff had performed any past relevant work. AR 53. The VE testified that there was no past work that he could see. AR 54. The ALJ then asked the VE to assume a hypothetical individual with the same age and education as Plaintiff, with no past work, who is able to lift and carry twenty pounds occasionally and ten pounds frequently, and is able to walk, stand or sit for six hours out of an eight-hour workday. AR 54-55. He further added that this individual would be able to push or pull only occasionally with the right lower extremity and would need a cane for ambulation. AR 55. Additionally, this individual would be limited to occasional climbing of ramps, stairs, ladders, ropes and scaffolds, and would not be able to work around moving mechanical parts or at unprotected heights. Id. He added mental limitations including simple, routine tasks and making simple decisions, but with the ability to frequently interact with coworkers, supervisors and the general public “but only on a superficial level such as greeting customers or directing a customer to the nearest restroom.” Id. He asked if there were any jobs that this hypothetical individual would be able to perform. Id.

         The VE testified that this hypothetical individual would be able to work as a Marker II under the Dictionary of Occupational Titles (“DOT”)^[3] 920.687-126 with a Specific Vocational Preparation (“SVP”)^[4] of 2, requiring light strength with 251, 670 jobs nationwide; a hand packer DOT 559.687-074 with an SVP of 2, requiring light strength having 518, 950 nationwide jobs; and bottle packager DOT 920.685-026 with an SVP of 2, requiring light strength and with 386, 500 jobs nationally. AR 55. The VE verified that his testimony was based on the DOT. AR 55-56.

         The ALJ then asked if the DOT addressed the level of interaction he had described in his hypothetical. AR 56. The VE testified that the DOT does not address this, but his testimony was based on his experience. Id. The ALJ then asked the VE why he believed an individual with the limitations he described in his hypothetical would be mentally capable of doing the job. Id. The VE testified that a Marker II involved “simply stamping a label or attaching a sticker” and a hand packer is “simply inserting plastic bottle caps or caps that are defective and replacing them with non-defective parts and pressing it into a box.” Id. He testified that bottle packaging is a similarly consistent job. Id. The VE added that the DOT does not address the need to use a cane to ambulate, “[b]ut these jobs would be performed at a workstation instead [of] the need to be ambulating.” AR 57.

         The ALJ then added further limitations to the hypothetical, including limiting interactions with supervisors and co-workers to only occasionally, no working as a group or as part of a team, and only superficial interactions with the general public. Id. When asked if that individual would be able to perform the same work, the VE testified that marker II would still be performed without tandem work but that he would erode the number of nationwide available jobs by 40 percent. Id. He eliminated bottle packer because that job requires teams and testified that the nationally available jobs would be reduced by 30 percent. AR 57-58. The VE stated that his testimony was based upon his experience as a vocational rehabilitation counselor and having worked in those occupations and “placing people.” AR 58.

         When asked if there was a third occupation that this hypothetical individual would be able to perform, the VE answered that this individual would be able to perform the work of a Garment Sorter, DOT 222.687-014 with an SVP of 2, requiring light strength with 251, 670 jobs nationwide, that he would erode by 40 percent due to the inability of the hypothetical individual to work in tandem with others. Id. The ALJ then added the additional limitation that the individual would require “a few reminders from supervisors throughout the day to stay on task or how to complete work, ” would need these reminders four times per day, and asked if this limitation would erode the occupational base any further. Id. The VE testified that this would not affect the job pool. Id. When Plaintiff's attorney asked how long these reminders would take, the VE testified that his answer was based on very brief reminders or instructions. AR 59.

         When the ALJ asked how long an individual could be off task and remain employable, the VE testified that an individual would be unemployable if they were off task more than 15 percent of the day. Id. When asked how many absences would be acceptable, the VE testified that an individual could be absent no more than one day per month. Id. The ALJ then asked if these answers were based on the DOT. AR 60. The VE answered they were based on his professional experience, not the DOT. Id.

         The ALJ ended the hearing stating that he would issue a notice to Plaintiff to show good cause for failure to appear at the hearing and would issue a decision once he received that response. Id.

         B. ALJ's Decision and Plaintiff's Appeal

         On January 10, 2018, the ALJ issued an unfavorable decision finding Plaintiff was not disabled. AR 26-42. This decision became final when the Appeals Council declined to review it on January 28, 2019. AR 1-8. Having exhausted all administrative remedies, Plaintiff commenced this action for judicial review pursuant to 42 U.S.C. § 405(g). On September 4, 2019, Plaintiff filed the present Motion for Summary Judgment. On October 11, 2019, Defendant filed a Cross-Motion for Summary Judgment.

         IV. STANDARD OF REVIEW

         This Court has jurisdiction to review final decisions of the Commissioner pursuant to 42 U.S.C. § 405(g). An ALJ's decision to deny benefits must be set aside only when it is “based on legal error or not supported by substantial evidence in the record.” Trevizo v. Berryhill, 871 F.3d 664, 674 (9th Cir. 2017) (citation and quotation marks omitted). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019) (citation and quotation marks omitted). It requires “more than a mere scintilla” but “less than a preponderance” of the evidence. Id.; Trevizo, 871 F.3d at 674.

         The court “must consider the entire record as a whole, weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion, and may not affirm simply by isolating a specific quantum of supporting evidence.” Trevizo, 871 F.3d at 675 (citation and quotation marks omitted). However, “[w]here evidence is susceptible to more than one rational interpretation, the ALJ's decision should be upheld.” Id. (citation and quotation marks omitted). “The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities.” Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014) (citation and quotation marks omitted).

         Additionally, the harmless error rule applies where substantial evidence otherwise supports the ALJ's decision. Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012). “[A]n error is harmless so long as there remains substantial evidence supporting the ALJ's decision and the error does not negate the validity of the ALJ's ultimate conclusion.” Id. (citation and quotation marks omitted). A court may not reverse an ALJ's decision because of a harmless error. Id. at 1111 (citation omitted). “[T]he burden of showing that an error is harmful normally falls upon the party attacking the agency's determination.” Id. (citation and quotation marks omitted).

         V. DISCUSSION

         A. Framework for Determining Whether a ...