United States District Court, N.D. California
ORDER RE: CROSS-MOTIONS FOR SUMMARY JUDGMENT RE: DKT.
NOS. 19, 25
S. HIXSON, UNITED STATES MAGISTRATE JUDGE
Ramona R. brings this action pursuant to 42 U.S.C. §
405(g), seeking judicial review of a final decision of
Defendant Commissioner of Social Security that denied
Plaintiff's claim for disability benefits. Pending before
the Court are the parties' cross-motions for summary
judgment. ECF Nos. 19 (Pl.'s Mot.), 25 (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.
Age, Education and Work Experience
is 55 years old. AR 73. She attended the 12th grade but did
not graduate from high school. AR 43. She stopped working in
2013. AR 406. Her date of last insured was March 31, 2016. AR
Consultative Psychiatric Evaluation by Dr. Larson
February 21, 2015, J. Larson, Psy. D., completed a
comprehensive psychiatric evaluation of Plaintiff. AR 405-10.
Plaintiff reported medical issues including a recent
concussion, broken nose, memory issues, sinus problems, and
chronic pain. AR 406. She reported symptoms of depression and
grief, including sadness, tearfulness, feeling overwhelmed,
having lethargy, and social anxiety. Id. She
reported that she stayed in her home throughout most of the
day as she was embarrassed that someone might see her if she
went out. AR 407. Dr. Larson observed that Plaintiff's
overall stated mood was depressed. Id. Plaintiff
denied ever being hospitalized for psychiatric reasons or
ever obtaining outpatient psychiatric services. AR 406.
Larson noted that Plaintiff could identify the president and
vice president but could not name or even guess any states
bordering California. AR 408. Dr. Larson noted that
Plaintiff's concentration was moderately to severely
impaired. Id. When asked to count by threes,
Plaintiff laughed uncomfortably, tried but failed to do so,
tried to correct, and then became distressed before Dr.
Larson discontinued the exercise. Id. Dr. Larson
noted that Plaintiff “[d]id not necessarily give up
easily, but did become frustrated and overwhelmed” and
had “no real recognition or response to failure once
she was quite overwhelmed.” Id.
Larson concluded that that Plaintiff's remote memory was
moderately impaired, and that her fund of knowledge was
moderately impaired. Id. Dr. Larson opined that
Plaintiff's delayed recall was severely impaired as she
could not recall any of three objects after a short delay.
Id. Dr. Larson opined that Plaintiff's immediate
recall was moderately impaired. Id. Dr. Larson
diagnosed Plaintiff with major depressive disorder with
recurrent, severe depression. AR 409. Dr. Larson provided a
“Functional Assessment/Medical Source Statement”
on Plaintiff. Dr. Larson assessed that Plaintiff followed
instructions, but that her ability to follow through with
certain instructions for more complex tasks required some
redirection or assistance. Id.. Dr. Larson
concluded that Plaintiff's ability to perform simple and
repetitive tasks was moderately impaired, and that her
ability to perform detailed and complex tasks was moderately
to markedly impaired; that Plaintiff's ability to accept
instructions from supervisors was unimpaired, but that her
ability to interact with coworkers and the public was
markedly impaired; that, based on difficulties in the
evaluation, she appeared to struggle even with short
interactions; that her ability to perform work activities on
a consistent basis without special or additional instruction
was markedly impaired; that her ability to maintain regular
attendance in the workplace was markedly impaired; that her
ability to complete a normal workday or workweek without
interruptions from a psychiatric condition was moderately
impaired; and that her “ability to deal with the usual
stressors encountered in the workplace [was] markedly
impaired as evidenced by her relatively rapid deterioration
and decompensation during the course of this
evaluation.” AR 409-10. Dr. Larson opined, however,
that it was “unclear somewhat about [Plaintiff's]
ability to function overall. Again, additional information
would assist with this.” AR 409-10.
Critical Care Consultation by Dr. Rothenberg
April 15, 2015, Peter Rothenberg, M.D., completed a Critical
Care Consultation on Plaintiff at Petaluma Valley Hospital,
after Plaintiff awakened that morning vomiting blood and was
admitted for an upper gastrointestinal bleed. AR 469-71.
Plaintiff reported to Dr. Rothenberg that she drank four to
five beers daily, but that her last drink was two weeks prior
to the consultation. AR 469. Dr. Rothenberg noted Plaintiff
had a past medical history of hepatitis C from IV drug use,
but did not see any previous admissions for alcohol excess.
Id. Plaintiff denied use of any regular medications.
Id. A laboratory report from that date noted that
Plaintiff suffered from advanced liver fibrosis. AR 440.
Plaintiff was administered Protonix, a proton pump inhibitor
(antacid), and a single dose of octreotide. AR 471.
21, 2015, Plaintiff was again evaluated at Petaluma Valley
Hospital after feeling very weak and arriving to the
emergency room. AR 530. The evaluation noted that Plaintiff
was hospitalized on April 15, 2015 due to upper
gastrointestinal bleeding secondary to acute alcoholic
gastritis. AR 530. It noted that after the April 15, 2015
admission, Plaintiff was advised to pursue alcohol cessation,
but that Plaintiff admitted she had resumed drinking four to
five beers daily. Id. Dr. Rothenberg assessed that
Plaintiff had an upper gastrointestinal bleed, anemia due to
blood loss, and thrombocytopenia (low platelet
count). AR 591-96.
Verification of Physical/Mental Incapacity by Dr.
August 28, 2015, N. Licht, M.D., completed a Verification of
Physical/Mental Incapacity concerning Plaintiff. AR 601.
Licht stated that Plaintiff was unemployable as of May 16,
2015. Id. For an impairment, Licht stated that,
“alcoholism has led to cirrhosis (liver failure) with
resulting disability.” Id. On August 11, 2017,
Dr. Licht prepared a letter stating his opinion that,
“[d]ue to liver failure with cirrhosis, ascites, and
encephalopathy, I do not believe [Plaintiff] is
employable.” AR 900.
SOCIAL SECURITY ADMINISTRATION PROCEEDINGS
October 8, 2014, Plaintiff protectively filed a claim for
Disability Insurance Benefits (“DIB”), and on
December 1, 2017 protectively filed a Title XVI application
for supplemental security income (“SSI”). AR 12,
195, 200. In both applications, Plaintiff alleged disability
beginning on July 4, 2014. AR 12, 243. On June 10, 2015, the
agency denied Plaintiff's claims, finding Plaintiff did
not qualify for disability benefits. AR 12, 195. Plaintiff
subsequently filed a request for reconsideration, which was
denied on November 2, 2015. AR 12, 109, 110-15. On November
22, 2015, Plaintiff requested a hearing before an
Administrative Law Judge (“ALJ”). AR 116-17. ALJ
Serena S. Hong conducted a hearing on September 14, 2017. AR
12. Plaintiff testified in person at the hearing and was
represented by D. McCaskell, a non-attorney representative.
The ALJ also heard testimony from Vocational Expert V. Rei.
testified at her administrative hearing that she had problems
walking and with her legs. AR 55. She testified that the most
she could walk at once was “maybe to my mailbox and
back, ” “like 60 steps.” AR 55-56. She
testified that she could be up standing and walking for
“about maybe 20 minutes” before having to lie
down. AR 57. She testified that she would experience leg
swelling, cramps, and spasms. AR 59. And she described her
pain level as 10 when experiencing leg spasms. Id.
ALJ's Decision and Plaintiff's Appeal
February 22, 2018, the ALJ issued a partially favorable
decision finding: Plaintiff was not disabled for DIB through
June 30, 2016, the date Plaintiff was last insured, AR 22;
but Plaintiff was disabled as of February 13, 2017-but not
before that date-for purposes of SSI, AR 22-23. This decision
became final when the Appeals Council declined to review it.
AR 1-4.Having exhausted all administrative
remedies, Plaintiff commenced this action for judicial review
pursuant to 42 U.S.C. § 405(g). On August 30, 2019,
Plaintiff filed the present Motion for Summary Judgment. On
October 22, 2019, the Commissioner filed a Cross-Motion for
STANDARD OF REVIEW
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 ...