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Lopriore v. Commissioner of Social Security

United States District Court, N.D. California, San Jose Division

December 5, 2019

VINCENT MICHAEL LOPRIORE, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT'S CROSS-MOTION FOR SUMMARY JUDGMENT RE: DKT. NOS. 17, 18

          LUCY H. KOHU NITED STATES DISTRICT JUDGE

         Vincent 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.

         I.BACKGROUND

         A. Plaintiff's Age, Education and Vocational Background, and Claimed Disability

         Plaintiff 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.

         B. Procedural History

         Plaintiff 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 189.

         Plaintiff 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.

         On May 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.

         On 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”).

         II.LEGAL STANDARD

         A. Standard of Review

         This 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).

         B. Standard for Determining Disability

         An 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), 1382c(a)(3)(B).

         “ALJs 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.

         “The 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).

         III. DISCUSSION

         Plaintiff 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 order presented.

         A. Relevant Evidence

         The Court first discusses the evidence concerning Plaintiff's alleged psychological impairments. Then, the Court briefly discusses Plaintiff's alleged physical impairments.

         1. Psychological Impairments

         a. Non-Examining Physician Lesleigh Franklin, Ph.D. and Dionne Childs, M.S.

         Following 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. Franklin.

         Among 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.

         b. Patricia Jones, MFT

         From 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.

         On 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.

         c. Kaiser Medical Records

         In 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, 577-78, 605.

         At an 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.

         d. Treating Psychologist Dr. John Frederick Hiatt, M.D.

         On May 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.

         On 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.

         e. Sabrina Estell, MFT

         In 2016 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.

         On 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 ...


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