United States District Court, N.D. California, San Jose Division
ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY
JUDGMENT AND GRANTING DEFENDANT'S CROSS-MOTION FOR
SUMMARY JUDGMENT RE: DKT. NOS. 17, 18
H. KOHU NITED STATES DISTRICT JUDGE
Lopriore (“Plaintiff”) appeals the final decision
of the Commissioner of Social Security (“the
Commissioner”) denying Plaintiff's application for
disability insurance benefits under Title II of the Social
Security Act and for supplemental security income under Title
XVI of the Social Security Act. Before the Court are
Plaintiff's motion for summary judgment, ECF No. 17, and
the Commissioner's cross-motion for summary judgment, ECF
No. 18. Having considered the parties' briefs, the
relevant law, and the record in this case, the Court hereby
DENIES Plaintiff's motion for summary judgment and GRANTS
the Commissioner's cross-motion for summary judgment.
Plaintiff's Age, Education and Vocational Background, and
was born on March 25, 1975. Administrative Record
(“AR”) 47. Plaintiff reported that he only
completed tenth grade and never graduated high school. AR
517. Plaintiff last maintained significant employment while
working as a waste treatment operator for the United States
Department of Agriculture, where he was provided
accommodations due to his difficulties with reading. AR
88-90, 102. Plaintiff's work history also includes
janitorial work and a variety of odd jobs. AR 88-90.
Plaintiff alleges he is disabled due to a left scaphoid wrist
fracture, osteoarthritis, joint pain, lumbar degenerative
disc disease, chronic lumbar pain, depression, anxiety,
bipolar disorder, and post-traumatic stress disorder (PTSD).
See ECF No. 18 at 2. Additional facts are discussed as
necessary in the analysis.
filed applications for disability insurance benefits and
supplemental security income on July 22, 2014. AR 110, 126.
In both applications, Plaintiff alleged that he became
disabled on January 12, 2014. AR 111, 127. On October 28,
2014, the Social Security Administration denied
Plaintiff's applications for disability insurance
benefits and supplemental security income. AR 176-80, 181-86.
On January 6, 2015, the Social Security Administration denied
both of Plaintiff's applications upon reconsideration. AR
timely requested a hearing on February 5, 2015. AR 197. An
initial hearing date of November 3, 2016 before an
Administrative Law Judge (“ALJ”) was continued to
March 30, 2017 to allow for additional time to supplement the
medical record and to secure the testimony of a medical
expert. AR 23. Plaintiff testified at the March 30, 2017
hearing and was represented by an attorney. AR 85-93. An
impartial medical expert and an impartial vocational expert
also testified. AR 93-97, 98-108. The ALJ left the record
open after the March 30, 2017 hearing so that Plaintiff could
obtain additional medical records. AR 108-09.
23, 2017, the ALJ issued a partially favorable written
decision that found that Plaintiff was disabled within the
meaning of the Social Security Act from January 12, 2014
through April 30, 2016. AR 23, 27-33. The ALJ, however, found
that medical improvement occurred as of May 1, 2016 such that
Plaintiff had the residual functional capacity to perform a
light range of work that exists in significant numbers within
the national economy, and therefore, denied benefits for the
period beginning May 1, 2016 and onward. AR 23-24, 33-37.
After Plaintiff filed a timely request for review of the
ALJ's decision on July 27, 2017, AR 302-03, the Appeals
Council denied review on September 14, 2018, and the
ALJ's decision became the final decision of the
Commissioner, AR 1-4. The Appeals Council stated “[i]f
you disagree with our action, you may ask for court review of
the Administrative Law Judge's decision by filing a civil
action.” AR 2.
November 16, 2018, Plaintiff filed a complaint in this Court
seeking review of the Commissioner's decision. ECF No. 1.
On April 15, 2019, the Commissioner filed an answer. ECF No.
12. On June 12, 2019, Plaintiff filed a motion for summary
judgment. ECF No. 17 (“Plaintiff's Mot.”). On
July 10, 2019, the Commissioner filed a cross-motion for
summary judgment and opposition to Plaintiff's motion for
summary judgment. ECF No. 18 (“Commissioner's
Mot.”). Plaintiff filed a reply on July 23, 2019. ECF
No. 19 (“Reply”).
Standard of Review
Court has the authority to review the Commissioner's
decision to deny benefits. 42 U.S.C. § 405(g). The
Commissioner's decision will be disturbed only if it is
not supported by substantial evidence or if it is based upon
the application of improper legal standards. Trevizo v.
Berryhill, 871 F.3d 664, 674 (9th Cir. 2017); Morgan
v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 599
(9th Cir. 1999). In this context, the term “substantial
evidence” means “more than a mere scintilla but
less than a preponderance, i.e., such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion.” Robbins v. Soc. Sec. Admin., 466
F.3d 880, 882 (9th Cir. 2006). Where the evidence is
susceptible to more than one rational interpretation, the
Court must defer to the decision of the Commissioner.
Morgan, 169 F.3d at 599. “However, a reviewing
court must consider the entire record as a whole and may not
affirm simply by isolating a specific quantum of supporting
evidence.” Orn v. Astrue, 495 F.3d 625, 630
(9th Cir. 2007) (quoting Robbins, 466 F.3d at 882).
Standard for Determining Disability
individual is considered disabled for the purposes of Title
II and Title XVI of the Social Security Act if he is unable
“to engage in any substantial gainful activity by
reason of any medically determinable physical or mental
impairment which can be expected to result in death or which
has lasted or can be expected to last for a continuous period
of not less than twelve months.” 42 U.S.C. §§
423(d)(1)(A), 1382c(a)(3)(A). The physical or mental
impairment must be “of such severity that he is not
only unable to do his previous work but cannot, considering
his age, education, and work experience, engage in any other
kind of substantial gainful work which exists in the national
economy.” Id. §§ 423(d)(2)(A),
are to apply a five-step sequential review process in
determining whether a claimant qualifies as disabled.”
Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d
1219, 1222 (9th Cir. 2009). At step one, the ALJ determines
whether the claimant is performing “substantial gainful
activity.” 20 C.F.R. §§ 404.1520(a)(4)(i),
416.920(a)(4)(i). If so, the claimant is not disabled. If
not, the analysis proceeds to step two. At step two, the ALJ
determines whether the claimant suffers from a severe
impairment or combination of impairments that meets the
durational requirement. 20 C.F.R. §§
404.1520(a)(4)(ii), 416.920(a)(4)(ii). If not, the claimant
is not disabled. If so, the analysis proceeds to step three.
At step three, the ALJ determines whether the claimant's
impairment or combination of impairments meets or equals an
impairment contained in 20 C.F.R. Part 404, Subpart P,
Appendix 1 (“Listings”). 20 C.F.R. §§
404.1520(a)(4)(iii), 416.920(a)(4)(iii). If so, the claimant
is disabled. If not, the analysis proceeds to step four. At
step four, the ALJ determines whether the claimant has the
residual functional capacity (“RFC”) to perform
his or her past relevant work. 20 C.F.R. §§
404.1520(a)(4)(iv), 416.920(a)(4)(iv). If so, the claimant is
not disabled. If not, the analysis proceeds to step five. At
step five, the ALJ determines whether the claimant can
perform other jobs in the national economy. 20 C.F.R.
§§ 404.1520(a)(4)(v), 416.920(a)(4)(v). If so, the
claimant is not disabled. If not, the claimant is disabled.
burden of proof is on the claimant at steps one through four,
but shifts to the Commissioner at step five.”
Bray, 554 F.3d at 1222. “The Commissioner can
meet this burden through the testimony of a vocational expert
or by reference to the Medical Vocational Guidelines at 20
C.F.R. pt. 404, subpt. P, app. 2.” Thomas v.
Barnhart, 278 F.3d 947, 955 (9th Cir. 2002).
asserts that the ALJ committed four errors. First, Plaintiff
argues that the ALJ erred in determining that Plaintiff's
statements concerning the intensity, persistence, and
limiting effects of his symptoms were not consistent with the
medical evidence. Plaintiff's Mot. at 4-7. Second,
Plaintiff contends that the ALJ erred in failing to give
proper weight to the medical evidence. Id. at 7-15.
Third, Plaintiff asserts that the ALJ erred in concluding
that Plaintiff did not meet Listings 12.04 or 12.06 at Step
Three of the sequential evaluation process. Id. at
15-16. Fourth, Plaintiff argues that substantial evidence
does not support the ALJ's assessment of Plaintiff's
residual functional capacity. Id. at 16-18. The
Court first summarizes the relevant evidence and the
ALJ's opinion before determining whether the ALJ erred.
Because Plaintiff's third and fourth arguments are
dependent on Plaintiff's first and second arguments, the
Court addresses each of Plaintiff's arguments in the
Court first discusses the evidence concerning Plaintiff's
alleged psychological impairments. Then, the Court briefly
discusses Plaintiff's alleged physical impairments.
Non-Examining Physician Lesleigh Franklin, Ph.D. and Dionne
a period of homelessness, Plaintiff became housed, obtained
health insurance, and entered treatment at Highland General
Hospital and the Bay Area Family Institute in 2014. AR 461,
516. On July 23, 2014, Plaintiff met with Dionne Childs,
M.S., who assessed Plaintiff's psychological
capabilities. AR 516. At the July 23, 2014 meeting, Plaintiff
told Ms. Childs that Plaintiff was not taking any psychiatric
medication. AR 518. Dr. Lesleigh Franklin, Ph.D., was Ms.
Childs's supervisor. Although Dr. Franklin was not
present at the July 23, 2014 meeting and Ms. Childs's
opinion was based exclusively on the July 23, 2014 meeting,
the opinion of Ms. Childs was issued jointly with Dr.
other things, the joint opinion noted that Plaintiff
“was oriented to person, place, year, month, season,
and day of the week, but not to the date.” AR 518.
Plaintiff, however, “endorsed manic symptoms: elevated
mood, decreased need for sleep, pressured speech, racing
thoughts, distractibility, increased goal oriented activity
and behavior with a high risk of consequences.” AR 521.
Plaintiff also endorsed “symptoms related to
Posttraumatic Stress Disorder.” AR 521. The joint
opinion diagnosed Plaintiff with bipolar disorder; PTSD;
obsessive-compulsive disorder; and academic, relational, and
occupational problems. AR 522. The joint opinion qualified
the diagnosis by explaining that “the results of the
evaluation are limited in scope by the records available, the
time of the evaluation, and the client's self
report.” AR 521. The joint opinion noted that
“Plaintiff's cognitive and neuropsychological
impairments . . . might be roadblocks to his being able to
maintain a position in a job.” AR 522.
Patricia Jones, MFT
September 2014 to November 2015, Plaintiff participated in
therapy with the East Bay Family Institute, where he was seen
by Patricia Jones, a marriage and family therapist intern. AR
557-60. Ms. Jones's “progress notes” from
this period include a paragraph on subjective observations,
objective observations, Ms. Jones's assessment, and plan
for future therapy. AR 557-60. Ms. Jones observed that
Plaintiff felt “victimized” and
“resentful” on multiple occasions. AR 557-58. In
the “objective” observation sections, Ms. Jones
noted that Plaintiff “was dressed and groomed
appropriately, ” that Plaintiff “showed signs of
aggravation and depression, ” and that Plaintiff
“still falls short when it comes to holding in his
angry outburst but he is aware of it and is attempting to
find ways of coping with the negativity going on in his
head.” AR 558-59. On other occasions, however, Ms.
Jones's notes appear to report “subjective”
observations as “objective” ones, including that
Plaintiff “reported getting better at recognizing [his]
anger triggers” and that Plaintiff “reported that
his wife and children are starting to feel uncomfortable
around him at times.” AR 558-59.
November 3, 2015, Ms. Jones completed a check-box mental
impairment questionnaire that categorized Plaintiff as having
numerous marked or extreme impairments for work-related
activities. AR 554-56. Ms. Jones noted that Plaintiff
exhibits “antisocial behavior” and is
“[e]xtremely angry and frustrated with the world and
everything in it.” AR 556. Ms. Jones also noted
“symptoms of major [d]epressive [d]isorder and
PTSD.” AR 556.
Kaiser Medical Records
2015, Plaintiff transferred his care to Kaiser, where he saw
a primary care physician, a psychotherapist, and a
psychiatrist. See, e.g., AR 461, 561-64, 573-74,
initial meeting with his Kaiser primary care physician,
Plaintiff requested psychotherapy. AR 564. On February 4,
2015, Plaintiff met with Lance Friis, M.F.T., a marriage and
family therapist, and “complain[ed] of anxiety
including excessive worry, restlessness, muscle tension,
hypervigilance, somatic complaints.” AR 577. Friis
noted that Plaintiff “listed depression as an issue,
but then spoke primarily about anxiety.” AR 578. Friis
also noted that Plaintiff “[r]uminates on things,
can't stay still, [is] easily agitated, [has] sleep
disturbance, ” has a [l]ong trauma history, ” and
possesses “[s]ymptoms of PTSD.” AR 578.
Nonetheless, Plaintiff's behavior appeared normal, his
thought process was logical, he was fully oriented, had
intact recent and remote memory, and possessed good insight
and judgment. AR 579. Friis suggested a treatment plan
involving individual psychotherapy and group therapy, and
referred Plaintiff for medication management. AR 580.
Kaiser's records indicate that Plaintiff took part in
group and individual therapy sessions. See AR 608,
625, 631. During this time, Plaintiff was also prescribed
medication to treat his insomnia and back pain. AR 617, 647.
Treating Psychologist Dr. John Frederick Hiatt, M.D.
29, 2015, Plaintiff met with psychologist Dr. John Frederick
Hiatt, M.D. AR 655. Dr. Hiatt observed that Plaintiff
appeared well-groomed and had a pleasant and cooperative
demeanor. AR 657. Plaintiff's insight and judgment were
marked as “good, ” and Dr. Hiatt noted that
Plaintiff's attention and concentration were
“within normal limits.” AR 657. At the same time,
Dr. Hiatt also noted that Plaintiff was fidgety, dysphoric,
and anxious. AR 657. Dr. Hiatt made an assessment that
Plaintiff had “dyscontrol issues” and was
“[c]urrently experiencing increased anxiety [and]
volatility” such that “[a] mood stabilizer
seem[ed] the most appropriate route.” AR 658. Dr. Hiatt
also diagnosed Plaintiff with PTSD, and prescribed Plaintiff
with lamotrigine and lorazepam to treat Plaintiff's
anxiety issues. AR 658, 663. According to treatment notes,
the medication helped stabilize Plaintiff's mental
symptoms for a period of time. AR 899-901.
March 31, 2016, following the suicide of his brother-in-law
and a physical altercation with a neighbor, Plaintiff had
another appointment with Dr. Hiatt. AR 899. Plaintiff was
tearful, fidgety, and depressed, but had “fair”
impulse control and possessed normal attention and
concentration. AR 900. Plaintiff complained of depression and
insomnia and that since Plaintiff's last visit, his
“symptoms of mood disorder and insomnia [had]
significantly worsened.” AR 899-900. Plaintiff noted
that one or two months prior to the March 31, 2016
appointment, Plaintiff had run out of medication for a few
days and developed serious difficulty sleeping. AR 899.
Plaintiff refilled his medication, “but did not recover
his former stability.” AR 899. Dr. Hiatt noted that
Plaintiff “denies medication side effects with poor
medication compliance.” AR 900. Dr. Hiatt diagnosed
Plaintiff with a “major return of PTSD” and
“depression with associated anxiety and irritability,
” and prescribed “restart[ing] [medication] at
higher levels” before “consider[ing] [additional
new medication] after a week.” AR 901.
Sabrina Estell, MFT
and 2017, Plaintiff also received psychotherapy treatment
from Sabrina Estell, a marriage and family therapist intern.
AR 727-31, 1019-20. On October 28, 2016, Ms. Estell,
utilizing a check-box form, found that Plaintiff had
“marked” limitations in the following seven
areas: (1) remembering work-like procedures, (2) working in
coordination with or proximity to others without being unduly
distracted, (3) performing at a consistent pace without an
unreasonable number and length of rest periods, (4) accepting
instructions and responding appropriately to criticism from
supervisors, (5) dealing with normal work stress, (6)
interacting appropriately with the general public, and (7)
maintaining socially appropriate behavior. AR 729-30. As part
of the check-box form, Ms. Estell also noted that Plaintiff
“experiences PTSD symptoms which include but are not
limited to: difficulty [in] focusing, concentrating, managing
anger and mood swings, persistent anxiety, flashbacks,
intense psychological distress, heightened arousal, fatigue,
as well as frequent pain.” AR 731.
March 15, 2017, Ms. Estell again assessed Plaintiff's
level of impairment for work-related activities. Ms. Estell,
again utilizing a check-box form, found that Plaintiff
exhibited “marked” impairments in 12 areas
related to work-related mental abilities. AR 1019. The mental
impairment check-box questionnaire included two sections
asking the reviewer to describe the patient's
impairments. Ms. Estell ...