United States District Court, N.D. California
ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT RE: DKT.
NOS. 14, 21
WILLIAM H. ORRICK UNITED STATES DISTRICT JUDGE.
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.
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.
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].
EDUCATION, WORK, AND MEDICAL HISTORY
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.
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.
Treating Medical Provider Records
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.
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
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.
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
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.
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.
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.
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).
also has an extensive history of depression and insomnia
dating back to at least the 1990s. 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,
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.
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.
summer of 2017, McTernan began seeing psychologist Jennifer
Garbarino, Ph.D.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.
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.
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.
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. AR 91.