United States District Court, N.D. California
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 ...