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McTernan v. Saul

United States District Court, N.D. California

January 9, 2020

ANDREW SAUL, Defendant.



         The parties have filed cross-motions for summary judgment in this Social Security appeal. The Administrative Law Judge (“ALJ”) made several errors in discounting the opinions of a number of medical professionals. Based upon my review of the parties' papers and the administrative record, I GRANT plaintiff Patricia McTernan's motion, DENY defendant's motion, and REMAND this case for further proceedings consistent with this Order.



         Patricia McTernan filed an application for Social Security Disability Insurance Benefits under Title II of the Social Security Act (“SSA”) on May 27, 2015. Administrative Record (“AR”) 176. She alleges an initial onset of disability as of February 1, 2015, due to torn tendons in her left ankle, back pain, fibromyalgia, depression, attention deficit disorder (“ADD”), dyslexia, and obsessive-compulsive disorder (“OCD”). AR 199. McTernan's initial claim was denied on September 9, 2015, but she requested reconsideration on November 13, 2015. AR 114, 118. Her claim was denied again on January 8, 2016. AR 119. McTernan requested a hearing with an ALJ. AR 124. On September 1, 2017, McTernan and her counsel appeared before an ALJ in San Jose, California. AR 39.

         On January 10, 2018, the ALJ issued an unfavorable decision, concluding that McTernan was not under a disability within the meaning of the SSA. AR 13-30. McTernan requested review of the hearing decision, which the Appeals Council denied on September 21, 2018. AR 1. On November 20, 2018, McTernan filed this action for judicial review of the ALJ decision pursuant to 42 U.S.C. § 405(g). Complaint [Dkt. No. 1].


         McTernan worked in food service catering for most of her adult life, usually in roles that required physical labor. AR 218. She believed the industry was a good fit, in part because of her limitations stemming from ADD and late-diagnosed dyslexia. Id. When McTernan realized the work was “causing [her] body to break down, ” she tried to transition to a more sedentary position. Id. However, she was unable to find a more sedentary position that would allow her to support herself financially. Id. She stopped all work as of February 1, 2015. Id.

         McTernan completed at least four years of college before 1976, took special education courses to address her learning disability from 1999 to 2000, and completed a certificate in graphic art in 2005. Id., AR 200.

         A. Treating Medical Provider Records

         1. Physical Impairments

         McTernan has sought medical treatment for back pain since the 1980s. AR 296, 306, 327, 365, 370. In March 1990, she suffered a “lifting injury” while working as a bartender. AR 296. The injury caused her to seek care from several physicians who noted she has “recur[r]ent musculoligamentous thoracic back sprain, ” “degenerative changes” in the thoracic spine, and “small T6-7 - T7-8 and T8-9 disk protrusions.” AR 297. McTernan continued to work multiple jobs as a bartender and server, causing “sustained cumulative trauma” that manifested in back pain through1990s and early 2000s. AR 300. Other work incidents from 1999 to 2005 caused additional injuries and resulted in McTernan settling a claim with the State of California Workers' Compensation Appeals Board for $18, 000.00 in August 2007. AR 281-84.

         In November 2009, McTernan fell off her bike and injured her right shoulder. AR 799. After possibly reinjuring the shoulder at work, she established care at Monterey Peninsula Orthopedic & Sports Medicine Institute in October 2010. Id. Dr. Michael Klassen diagnosed her with a right shoulder rotator cuff tear and right shoulder biceps tendon tear and performed arthroscopic surgery to repair the injuries on January 16, 2012. AR 426-27. McTernan had a modified work status following the surgery and collected disability benefits from February 26, 2012 to March 11, 2012. AR 498, 494. McTernan subsequently completed physical therapy sessions at Monterey Peninsula Physical Therapy. AR 405-30. The treatment resulted in overall decreased pain, but the physical therapist noted that McTernan was using her right arm more than recommended and needed to frequently be reminded that her shoulder was still healing. AR 405. McTernan continued to receive physical therapy and chiropractic care for shoulder, back, and ankle pain. AR 462-69.

         In May 2013, McTernan sought care at Doctors on Duty for pain in her left hand. AR 457. Dr. Timothy Wilken diagnosed her with a ganglion of the joint possibly related to “occupation-related repetitive wrist motions.” AR 438. Dr. Wilken gave McTernan a referral to a hand surgeon, but her pain subsided with a regimen of icing her hand for 15 minutes every hour and taking Motrin for pain and swelling. AR 432-40.

         McTernan visited Dr. Lisa Dwelle at Pacific Family Medical Group for general primary care from December 2013 to June 2014. AR 814-33. In her initial assessment, Dr. Dwelle noted that McTernan was “healthy-appearing.” AR 822. McTernan reported she had chronic pain in her right shoulder and back that made it difficult to work and she sometimes relied on codeine “when pain is really bad.” AR 821. Dr. Dwelle observed normal motor strength and movement but noted that McTernan had joint pain potentially related to fibromyalgia or “arthritic pains from physical job, ” and mid-thoracic back pain. AR 822-23. Dr. Dwelle ordered x-rays of her spine and hips. AR 822. McTernan's hips appeared normal while images of her spine showed signs of degenerative changes, neural foraminal narrowing, loss of cervical lordosis and osteopenia. AR 828-831. In two subsequent visits, Dr. Dwelle noted that McTernan continued to experience bouts of pain, but that nonsteroidal anti-inflammatory drugs and rest had eased her back pain. AR 816, 818.

         In October 2014, McTernan transitioned her primary care to Dr. Adrian Strand and Nurse Practitioner RoseMarie Sandoval at Seaside Community Health Center. AR 849. During her initial evaluation, McTernan reported that she was suffering from widespread pain, anxiety, insomnia, ADHD, and depression. Id. Dr. Strand diagnosed gastroesophageal reflux disease, chronic pain, depression, persistent insomnia and generalized anxiety disorder, and prescribed Hydrocodone-Acetaminophen, Naprosyn, and Gabapentin for her pain. AR 851. In January 2015, McTernan developed foot and ankle pain and swelling, which she reported made her incapable of bearing weight or executing job duties. AR 840, 844. On January 27, 2015, Dr. Strand referred McTernan to a podiatrist, encouraged her to “consider disability to allow time” to heal, and stated that she “[n]eeds to find a job that does not require standing or walking.” AR 840.

         In May 2015, McTernan saw podiatrist Dr. Alan Smith who used x-rays to diagnose degenerative changes in her left ankle and prescribed an Arizona brace. AR 892, 895. Her ankle pain persisted, and additional imaging diagnosed tendinitis, “reactive marrow edema . . . presumably related to altered weightbearing and stress response” and degenerative arthrosis. AR 1020, 1017.

         In 2016, McTernan completed a course of physical therapy referred by Dr. Strand and “made excellent progress towards improving activity tolerance and pain levels” but was limited by fatigue. AR 937, 1061. On March 8, 2016, NP Sandoval noted that McTernan “wants to work . . . is asking for a note to work with restrictions, she can not [sic] lift greater then [sic] 10 lbs or stand greater then [sic] 2 hours.” AR 1066. The treatment records for the same appointment note that NP Sandoval gave her that “[n]ote given so patient can work limited only with restrictions.” AR 1069. Although physical therapy alleviated her ankle pain, it aggravated McTernan's back pain, resulting in acute sciatica. AR 1056-58. On June 23, 2016, Dr. Strand noted that McTernan “start[ed] crying upon my entering the room, ” and she administered Ketorolac Tromethamine to relieve McTernan's pain. Id. On July 7, 2016, McTernan was again in tears “near sobbing, ” and Dr. Strand observed that she was in obvious pain “sitting oddly on edge of table [with] leg straight in front of her.” AR 1053-55. Dr. Strand referred McTernan to Dr. Mark Howard at Monterey Spine & Joint who diagnosed degenerative spondylolisthesis and recommended additional rehabilitation, physical therapy, and potentially more steroid injections to manage pain. AR 999. Continued physical therapy alleviated some of her pain by late 2016 and her physicians were able to reduce her levels of pain medication. AR 1031, 1044. Yet, on September 19, 2016, Dr. Strand noted that, after completing a course of physical therapy, McTernan was “[f]eeling much better overall but since stopping [her] back is starting to freeze up again intermittently.” AR 1049. And on April 4, 2017, McTernan stated that she could sometimes “go several days without taking any [pain] meds, but then will have a ‘bad day' and take up to 4 tabs of Norco and 2 tabs [of] Clonazepam in 1 day.” AR 1028.

         In January 2016, McTernan began seeing rheumatologist Dr. Marc Lieberman “every [one] to [three] months” based on a referral from Dr. Strand. AR 931, 1118. On August 1, 2017, Dr. Lieberman provided a medical source statement diagnosing McTernan with chronic osteoarthritis, low back pain, and other unspecified pain. AR 1118. He stated that her pain is constant and spread through her whole body and made clinical findings that she had stiffness in her back, right shoulder, right hand, and knee. Id. Dr. Lieberman opined that McTernan could only walk three blocks without rest or severe pain, sit for one hour at a time, stand for 45 minutes at a time, stand or walk for less than two hours per workday, and occasionally lift and carry 10 pounds. AR 1119-20. He further noted that McTernan would need unscheduled hour-long rest breaks and that her legs would need to be elevated for 50 percent of the day. Id. Dr. Lieberman checked boxes indicating that McTernan's depression and anxiety affected her physical condition and that she was “incapable of even ‘low stress' work.” AR 1119, 1121. Finally, he affirmed that McTernan's “impairments as demonstrated by signs, clinical findings, and laboratory or test results [are] reasonably consistent” with the symptoms and functional limitations included in his statement. AR 1121 (emphasis in original).

         2. Mental Impairments

         McTernan also has an extensive history of depression and insomnia dating back to at least the 1990s.[1] AR 205-07, 211, 213, 296, 329. As part of McTernan's primary care, Dr. Dwelle noted in January 2014 that she had a depressive disorder and generalized anxiety disorder. AR 814-19. Dr. Dwelle prescribed McTernan Paroxetine (a selective serotonin reuptake inhibitor or “SSRI”) to treat her disorders. AR 816-23. After McTernan transitioned care in October 2014, Dr. Strand and NP Sandoval continued treatment for McTernan's depression and anxiety. AR 841-852, 1034-82.

         In October 2015, NP Sandoval referred McTernan to a neurologist, Dr. Peter A. Michas-Martin, to assess her anterograde amnesia. AR 1082. Although Dr. Michas-Martin classified the exam results as “normal, ” he assessed McTernan's “cognitive decline, ” depression and insomnia and opined about their causes. AR 914. He noted that the decline could be related to early dementia, but that McTernan's depression or her pain and insomnia medications could be a secondary cause and recommended trying to decrease their usage. Id.

         Over the course of care through April 2017, Dr. Strand and NP Sandoval generally recorded that McTernan had appropriate affect and was alert and oriented, but they continued to adjust the medication regimen for her depression and anxiety when McTernan was not improving or complained of intolerable side effects. AR 897, 1028, 1044-49, 1058, 1062-64. On April 12, 2016, Dr. Strand noted that McTernan's anxiety seemed “worse with higher dose SSRI” and lowered the dosage. AR 1064. On June 23, 2016, and September 19, 2016, McTernan “crie[d] upon [Dr. Strand] walking into [the] exam room.” AR 1057, 1050. Dr. Strand observed that her “depression [was] not improving adquetly [sic] on [her] current SSRI dose” and increased dosage once again. AR 1058. On December 13, 2016, McTernan reported she felt “well” with her prescribed SSRI and anxiety medication and that a drug prescribed for her chronic pain had “improved” her depression and anxiety symptoms. AR 1044-46. However, she also noted that she was “more stressed out lately.” AR 1045. On February 13, 2017, NP Sandoval noted that McTernan was “in acute distress, ” AR 1036, and scored a 15 on the “PHQ9 Depression Screening” which constituted an “abnormal” result. AR 1037.

         In the summer of 2017, McTernan began seeing psychologist Jennifer Garbarino, Ph.D.[2]AR 51, 56. On August 9, 2017, Dr. Garbarino submitted a mental medical source statement indicating that McTernan had several limitations in completing work-related activities due to her mental impairments. AR 1123-24. Dr. Garbarino indicated that McTernan had slight limitations in carrying out short simple instructions; moderate limitations in understanding and remembering simple instructions and the ability to make work-related judgments; and marked limitations understanding, remembering, and carrying out detailed instructions. AR 1123. She further indicated that McTernan had moderate or marked limitations in interacting appropriately with the public, supervisors and coworkers, and marked limitations in responding to typical work pressures and changes to routine. AR 1124. Dr. Garbarino attributed these limitations to McTernan's “personality and pain related factors” and stated that they also affected McTernan's fatigue, strength, and ability to only walk short distances. Id. Dr. Garbarino concluded that McTernan would be “off task” during at least 25 percent of the workday and would be absent from work at least four days per month. AR 1123.

         B. Examining Opinions

         On August 25, 2015, Dr. Robert Wagner completed a comprehensive internal medicine evaluation of McTernan and diagnosed her with thoracolumbar back pain, left ankle pain, and fibromyalgia. AR 908. In reference to her back pain, McTernan reported that it “moves around” and bending and lifting can exacerbate the pain. AR 905. Dr. Wagner noted that McTernan “was able to get up from a chair in the waiting room and walk at a normal speed back to exam room without assistance” and take her shoes off and put them back on, “demonstrating good dexterity and flexibility.” AR 906. McTernan wore a brace on her left ankle, but he noted that her ankles appeared otherwise normal. AR 908. Dr. Wagner recorded generally normal observations but noted “minimal trace crepitus” in her right knee and “minimal trigger point tenderness” in her lumbar back. Id. McTernan complained of fatigue, sleep disturbance, and occasional concentration problems (that were not notable the day of the assessment) and reported that she was taking Zolpidem, “depression medication, ” and hydrocodone. Id. Following the examination and a review of some of her records, Dr. Wagner concluded McTernan could “stand and walk up to six hours, needed a lace-up ankle brace, could lift and carry 50 pounds occasionally and 25 pounds frequently, and could frequently climb, stoop and crouch.” AR 909.[3]

         At the request of the Department of Social Services, Robert Bilbrey, Ph.D., conducted a consultative psychological evaluation of McTernan in July 27, 2015. AR 901. Dr. Bilbrey observed that McTernan was “cooperative and a good historian but appeared somewhat dysphoric.” Id. McTernan reported that she suffered from back and ankle pain, dyslexia, ADD, OCD, depression, fibromyalgia. Id. She told Dr. Bilbrey that she had experienced memory problems, compulsions, and several depressive symptoms (including dysphoria, social isolation, insomnia and hyperphagia) that came about since the onset of her physical difficulties. Id. McTernan stated that she had just started taking Citalopram in the previous two weeks and that she had participated in psychotherapy “for a brief period of time but could not say why she had not obtained mental health services more recently.” Id. She claimed she was able to do some chores, run most errands, and get along with family and friends, but had little interaction with neighbors and strangers. Id. Dr. Bilbrey noted that McTernan seemed to be oriented, have adequate attention and concentration, and have intact basic judgment and knowledge. Id. He found that her mood was slightly dysphoric and her test results demonstrated some memory impairment. Id. McTernan's IQ of 102 was in the average to high average range, her memory index score on the Wechsler Memory-IV test was in the average range, and she performed adequately on the Trails test. AR 903. Dr. Bilbrey assessed McTernan to have a Global Assessment of Functioning score of 65 and noted that her “overall cognitive functioning lies in the average range.” AR 904. He diagnosed her with Depression NOS and OCD and opined that her depression “appears related to a physical condition but not to an event that happened in the past year.” AR 903-04. He also noted that “she feels anxiety much of the time, especially in social situations.” AR 904. Dr. Bilbrey stated that McTernan would have “some difficulty” interacting adequately with others, concentrating or persisting at work-related tasks, responding to changes in routine and conforming to a schedule. Id. But he also noted that she could follow one- and two-part instructions and handle simple and complex tasks. Id. Dr. Bilbrey opined that McTernan's conditions were “treatable” and she “should resume mental health treatment and her symptoms would be expected to improve within a year.” Id.

         On August 26, 2015, Dr. M. D. Morgan, a State agency consultant, reviewed McTernan's records. AR 85-86, 88-89. Dr. Morgan determined, relying heavily on the assessment from Dr. Bilbrey, that McTernan had medically determinable impairments including affective disorder and anxiety disorder and that both were “severe.” AR 85. Dr. Morgan indicated that she had “moderate” difficulties in maintaining social functioning and maintaining concentration, persistence, or pace. Id. Dr. Morgan then assessed McTernan's mental residual functional capacity (“MRFC”), finding that she was “moderately limited” in several areas: (1) the ability to maintain attention and concentration for extended periods; (2) the ability to perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerance; (3) the ability to work in coordination with or in proximity to other without being distracted by them; (4) the ability to complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods; (5) the ability to accept instructions and respond appropriately to criticism from supervisors; and (6) the ability to respond appropriately to changes in the work setting. AR 88-89. As such, Morgan concluded that McTernan was “limited to SRT, ” simple and repetitive tasks.[4] AR 91.

         C. ...

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