Grzegorek v. Berryhill ( 2020 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ALDONA GRZEGOREK, Case No. 18-cv-04789-JD 8 Plaintiff, ORDER RE SUMMARY JUDGMENT v. 9 Re: Dkt. Nos. 13, 20 10 ANDREW SAUL,1 Defendant. 11 12 13 Plaintiff Aldona Grzegorek challenges a decision by a Social Security Administration 14 (“SSA”) administrative law judge (“ALJ”) denying her claims for disability benefits under Title 15 XVI of the Social Security Act. The parties filed cross-motions for summary judgment. Dkt. Nos. 16 13, 20. The case is remanded to the SSA for further proceedings consistent with this order. 17 BACKGROUND 18 The parties’ familiarity with the record is assumed. In short form, Grzegorek applied for 19 disability benefits for narcolepsy, depression and anxiety. Dkt. No. 12 (Administrative Record or 20 “AR”) 158, 179. In a decision denying a benefits award, the ALJ found that Grzegorek suffers 21 from a number of physical and mental conditions, including circadian rhythm disorder, 22 hypersomnolence, depression, anxiety, attention deficit/hyperactive disorder (ADHD) and obesity. 23 AR 17. But the ALJ concluded that these conditions did not significantly limit her ability to 24 perform basic work-related activities. Id. Consequently, Grzegorek was deemed not disabled 25 under the Social Security Act. AR 26. 26 27 1 DISCUSSION 2 An ALJ’s decision to deny benefits “will only be disturbed if it is not supported by 3 substantial evidence or it is based on legal error” that is not harmless. Burch v. Barnhart, 400 4 F.3d 676, 679 (9th Cir. 2005) (internal quotation and citation omitted). Such error is present here 5 because the ALJ erred in dismissing Grzegorek’s conditions at the second step of the five-step 6 sequential analysis to determine whether a claimant is “disabled” and eligible for benefits. See 20 7 C.F.R. § 416.920; see also Buck v. Berryhill, 869 F.3d 1040, 1048 (9th Cir. 2017). At the second 8 step, the ALJ evaluates whether the claimant’s physical or mental impairments, or a combination 9 of those impairments, significantly limit basic work activities. 20 C.F.R. § 416.920(a)(4)(ii), (c). 10 “If the claimant does not have a severe impairment or combination of impairments, the disability 11 claim is denied.” Bowen v. Yuckert, 482 U.S. 137, 141 (1987). 12 The inquiry at step two is “‘a de minimis screening device used to dispose of groundless 13 claims.’” Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005) (quoting Smolen v. Chater, 80 14 F.3d 1273, 1290 (9th Cir. 1996)). At this stage, “an ALJ may find that a claimant lacks a 15 medically severe impairment or combination of impairments only when his conclusion is clearly 16 established by medical evidence.” Id. (internal quotation omitted). Consequently, to deny 17 benefits at this step, the ALJ must have “substantial evidence to find that the medical evidence 18 clearly established that [the claimant] did not have a medically severe impairment or combination 19 of impairments.” Id. 20 The ALJ determined that Grzegorek was not severely impaired after reviewing her medical 21 records, testimony and evaluations from 10 treating, and consulting, physicians and psychiatrists. 22 AR 18-19. Grzegorek says the ALJ committed error by: (1) slighting the objective medical 23 records of her conditions; (2) giving too little weight to the medical opinions of her treating 24 physicians; and (3) disregarding portions of her testimony. 25 The parties focus on the narcolepsy condition and attendant depression. After reviewing 26 the ALJ’s decision and the administrative record, the Court finds that the ALJ did not provide 27 sufficient specific reasons supported by substantial evidence for marginalizing the findings of 1 narcolepsy and depression by Grzegorek’s treating physicians, and did not properly credit her 2 substantial treatment history or hearing testimony. 3 The weight given to physician opinions depends on whether they are treating, examining 4 or nonexamining practitioners. Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014). For 5 common sense reasons, greatest weight is accorded to the opinion of a treating physician, with 6 lesser weight afforded down the line to examining and then nonexamining physicians. Id. An 7 ALJ may discount or disregard a treating physician’s opinions only after providing specific and 8 legitimate reasons supported by substantial evidence in the record. See Bray v. Comm’r of Soc. 9 Sec. Admin., 554 F.3d 1219, 1228 (9th Cir. 2009); Thomas v. Barnhart, 278 F.3d 947, 957 (9th 10 Cir. 2002). 11 The ALJ did not satisfy these requirements. For example, he gave “little weight” to the 12 opinion of treating physician Dr. Sydney Choslovsky, a sleep specialist. AR 23. Dr. Choslovsky 13 found that Grzegorek had physical limitations with sitting and standing for long periods of time, 14 and experienced “recurrent daytime sleep attacks” that inhibited routine workplace tasks. AR 523- 15 26. The ALJ discounted these opinions as inconsistent with Grzegorek’s hearing testimony and 16 the medical evidence as a whole. AR 23-24. 17 But the ALJ did not provide adequately specific reasons for that conclusion, and certainly 18 not ones well grounded in the record. To start, the ALJ was not entirely fair to Grzegorek’s 19 testimony. The ALJ said that Grzegorek “testified that she has no physical limitations,” AR 19, 20 but that goes too far. It is true that Grzegorek said, “I don’t have any physical limitations as far as 21 motion.” AR 43. But she also said that the “problem lies in that I am too exhausted, fatigued, 22 lack energy and mental alertness, and cannot stay awake to work even a part-time position.” AR 23 239. A claimant need not be “utterly incapacitated to be eligible for benefits, and many home 24 activities are not easily transferable to what may be the more grueling environment of the 25 workplace, where it might be impossible to periodically rest or take medication.” Fair v. Bowen, 26 885 F.2d 597, 603 (9th Cir. 1989). Her testimony was not necessarily inconsistent with Dr. 27 Choslovsky’s recommendation that she sit and stand less than 2 hours a day. See Trevizo v. 1 In addition, the ALJ overstated the efficacy of Grzegorek’s treatment protocols. 2 Grzegorek’s sleeping disorder was well documented. AR 19. Two sleep studies conducted in 3 May 2016 and July 2009 confirmed Grzegorek’s diagnoses of narcolepsy and hypersomnolence. 4 AR 440-47, 487-88. Her treating physicians reported that as a result of her sleep disorders, 5 Grzegorek naps throughout the day and would be expected to miss work between 2 and 5 days a 6 month. AR 376-90; 489-90; 523-26. Her consulting physician noted that Grzegorek 7 “momentarily dozed off” while waiting for the exam, although she “was easily arousable.” AR 8 317. 9 Even with treatment, this condition was not well controlled. The ALJ cited a July 2015 10 evaluation in which Dr. Choslovsky noted that Grzegorek “resumed” the Xyrem medication to 11 control her narcolepsy symptoms and “she now only naps once a day in the afternoon but sleeps 12 from midnight until 11 AM.” AR 382. But in September 2015, Dr. Choslovsky noted that 13 Grzegorek “has not been able to tolerate that much XYREM,” the previous improvement “is not 14 reproducible,” and that “Xyrem has reduced number of daytime naps but nocturnal sleep is 15 worse.” AR 379, 397. Dr. Choslovsky also found in September 2015 that Adderall helped 16 Grzegorek “maintain[] wakefulness between noon and midnight.” AR 358. His November 2016 17 evaluation reported that while Adderall “enables fewer naps and better functioning,” Grzegorek 18 “still needs 1 to 4 daytime naps.” AR 473. 19 So too for Dr. Khanh Tran, another of Grzegorek’s treating physicians. Dr. Tran noted that 20 Grzegorek was “described as being stable overall” and that her “prognosis is good.” AR 20. But 21 he subsequently noted that Grzegorek had “extreme morning weakness” and that the Xyrem 22 medication was “not working.” AR 420. Similarly, on June 5, 2017, Dr. Tran reported 23 Grzegorek’s prognosis as “good,” but simultaneously marked that her impairments were “likely to 24 produce ‘good days’ and ‘bad days’” and would cause her to be absent from work “[a]bout two 25 days per month.” AR 489-90. See Garrison, 759 F.3d at 1017 (“Cycles of improvement and 26 debilitating symptoms are a common occurrence, and in such circumstances it is error for an ALJ 27 to pick out a few isolated instances of improvement over a period of months or years and to treat 1 Another problem is that the ALJ did not adequately explain the significant weight he gave 2 to Dr. Nayyar Massod, a consulting physician who did one evaluation of Grzegorek in July 2015. 3 AR 25. Dr. Massod found that Grzegorek did not have any physical limitations -- including 4 sitting, standing, walking, lifting or hand movements -- even as he acknowledged that her 5 narcolepsy and sleep disorders had “progressively worsened over the past 10 years.” AR 318-19. 6 The ALJ appears to have found Dr. Massod’s opinion persuasive mainly in light of the ALJ’s 7 belief that Grzegorek had testified that she had no physical limitations. AR 25. This is 8 problematic because her testimony was not nearly so definitive as the ALJ suggests, and does not 9 constitute “‘specific, legitimate reasons’ that are supported by ‘substantial evidence’” required to 10 reject the treating physicians’ opinions. Orn v. Astrue, 495 F.3d 625, 634 (9th Cir. 2007) (quoting 11 Thomas, 278 F.3d at 957). 12 As a final observation, the ALJ improperly rejected Dr. Choslovsky’s conclusion that 13 Grzegorek was unable to perform her past work or other work. The ALJ took the position that this 14 conclusion was “an opinion on an issue reserved to the Commissioner,” and “is not supported by 15 objective evidence, is inconsistent with the record as a whole, and demonstrates a lack of 16 understanding of social security disability programs and evidentiary requirements.” AR 23-24. 17 But physicians “may render opinions on the ultimate issue of disability -- the claimant’s ability to 18 perform work.” Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998). In addition, an ALJ should 19 not reject a medical opinion “with boilerplate language that fails to offer a substantive basis for his 20 conclusion.” Garrison, 759 F.3d at 1013. 21 The ALJ was also incorrect in giving “little weight” to the opinions of Grzegorek’s treating 22 psychiatrists, Dr. William Sastry and Dr. Don Mordecai, and examining psychologist, Dr. Ilene 23 Morrison. AR 22, 24-25. All three found that Grzegorek was not significantly cognitively 24 impaired but that her depression and mental impairments severely limited her ability to work 25 without interruption. AR 328-29, 402-05, 518-22. The ALJ did not provide specific and well- 26 substantiated reasons for marginalizing the opinions of these treating psychiatrists. A different 27 opinion by a nonexamining state consultant does not “by itself constitute substantial evidence that 1 || justifies the rejection” of the treating and examining physicians’ opinions. Lester v. Chater, 81 2 || F.3d 821, 831 (9th Cir. 1995), as amended (Apr. 9, 1996). 3 CONCLUSION 4 Consequently, the ALJ’s decision to deny benefits cannot stand. The case is remanded to 5 || the SSA for further consideration of Grzegorek’s application in a manner consistent with this 6 || order. 7 IT IS SO ORDERED. 8 Dated: February 10, 2020 9 10 JAMES JPONATO 11 United Ytates District Judge a 12 15 16 it 4 18 19 20 21 22 23 24 25 26 27 28