Alston, Jr. v. Berryhill ( 2020 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 BARNETT ALSTON, JR., Case No. 18-cv-06202-KAW 8 Plaintiff, ORDER GRANTING PLAINTIFF'S 9 v. MOTION FOR SUMMARY JUDGMENT; DENYING 10 NANCY A. BERRYHILL, DEFENDANT'S CROSS-MOTION FOR SUMMARY JUDGMENT 11 Defendant. Re: Dkt. Nos. 18, 19 12 13 Plaintiff Barnett Alston, Jr. seeks judicial review, pursuant to 42 U.S.C. § 405(g), of the 14 Commissioner’s final decision, and the remand of this case for payment of benefits, or, in the 15 alternative, for further proceedings. 16 Pending before the Court is Plaintiff’s motion for summary judgment and Defendant’s 17 cross-motion for summary judgment. Having considered the papers filed by the parties, and for 18 the reasons set forth below, the Court GRANTS Plaintiff’s motion for summary judgment, and 19 DENIES Defendant’s cross-motion for summary judgment. 20 I. BACKGROUND 21 Plaintiff applied for Title XVI benefits on March 9, 2015. (Administrative Record (“AR”) 22 15, 174-77.) Plaintiff asserted disability beginning January 1, 2010. (AR 174.) The Social 23 Security Administration (“SSA”) denied Plaintiff’s application initially and on reconsideration. 24 (AR 53, 66.) On August 3, 2015, Plaintiff requested a hearing before an Administrative Law 25 Judge (“ALJ”). (AR 86.) The ALJ held a hearing on January 10, 2017. (AR 26.) 26 Following the hearing, the ALJ denied Plaintiff’s application on June 9, 2017. (AR 15- 27 22.) A request for review of the ALJ’s decision was filed with the Appeals Council on August 2, 1 On October 10, 2018, Plaintiff commenced this action for judicial review pursuant to 42 2 U.S.C. § 405(g). On March 15, 2019, Plaintiff filed his motion for summary judgment. (Pl.’s 3 Mot., Dkt. No. 18.) On April 12, 2019, Defendant filed an opposition and cross-motion for 4 summary judgment. (Def.’s Opp’n, Dkt. No. 19.) On June 4, 2019, Plaintiff filed his reply. (Pl.’s 5 Reply, Dkt. No. 25.) 6 II. LEGAL STANDARD 7 A court may reverse the Commissioner’s denial of disability benefits only when the 8 Commissioner's findings are 1) based on legal error or 2) are not supported by substantial 9 evidence in the record as a whole. 42 U.S.C. § 405(g); Tackett v. Apfel, 180 F.3d 1094, 1097 10 (9th Cir. 1999). Substantial evidence is “more than a mere scintilla but less than a 11 preponderance”; it is “such relevant evidence as a reasonable mind might accept as adequate to 12 support a conclusion.” Id. at 1098; Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996). In 13 determining whether the Commissioner's findings are supported by substantial evidence, the 14 Court must consider the evidence as a whole, weighing both the evidence that supports and the 15 evidence that detracts from the Commissioner's conclusion. Id. “Where evidence is susceptible 16 to more than one rational interpretation, the ALJ's decision should be upheld.” Ryan v. Comm'r 17 of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008). 18 Under Social Security Administration (“SSA”) regulations, disability claims are evaluated 19 according to a five-step sequential evaluation. Reddick v. Chater, 157 F.3d 715, 721 (9th Cir. 20 1998). At step one, the Commissioner determines whether a claimant is currently engaged in 21 substantial gainful activity. Id. If so, the claimant is not disabled. 20 C.F.R. § 404.1520(b). At 22 step two, the Commissioner determines whether the claimant has a “medically severe impairment 23 or combination of impairments,” as defined in 20 C.F.R. § 404.1520(c). Reddick, 157 F.3d 715 at 24 721. If the answer is no, the claimant is not disabled. Id. If the answer is yes, the Commissioner 25 proceeds to step three, and determines whether the impairment meets or equals a listed impairment 26 under 20 C.F.R. § 404, Subpart P, Appendix 1. 20 C.F.R. § 404.1520(d). If this requirement is 27 met, the claimant is disabled. Reddick, 157 F.3d 715 at 721. 1 fourth step in the sequential evaluation process is to determine the claimant's residual functional 2 capacity (“RFC”) or what work, if any, the claimant is capable of performing on a sustained basis, 3 despite the claimant’s impairment or impairments. 20 C.F.R. § 404.1520(e). If the claimant can 4 perform such work, he is not disabled. 20 C.F.R. § 404.1520(f). RFC is the application of a legal 5 standard to the medical facts concerning the claimant's physical capacity. 20 C.F.R. § 404.1545(a). 6 If the claimant meets the burden of establishing an inability to perform prior work, the 7 Commissioner must show, at step five, that the claimant can perform other substantial gainful 8 work that exists in the national economy. Reddick, 157 F.3d 715 at 721. The claimant bears the 9 burden of proof in steps one through four. Bustamante v. Massanari, 262 F.3d 949, 953-954 (9th 10 Cir. 2001). The burden shifts to the Commissioner in step five. Id. at 954. 11 III. DISCUSSION 12 Plaintiff challenges the ALJ’s decision on three grounds: (1) the ALJ improperly rejected 13 medical opinions, including those by Plaintiff’s treating physicians, (2) the ALJ improperly 14 rejected Plaintiff’s testimony, and (3) the ALJ erred at step five by providing an incomplete 15 hypothetical. (Pl.’s Mot. at 8, 12, 14.) 16 A. Improper Rejection of Medical Opinions 17 The court “distinguish[es] among the opinions of three types of physicians: (1) those who 18 treat the claimant (treating physicians); (2) those who examine but do not treat the claimant 19 (examining physicians); and (3) those who neither examine nor treat the claimant (nonexamining 20 physicians).” Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). “As a general rule, more weight 21 should be given to the opinion of a treating source than to the opinion of doctors who do not treat 22 the claimant.” Id. (citing Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1987). “At least where 23 the treating doctor’s opinion is not contradicted by another doctor, it may be rejected only for 24 ‘clear and convincing reasons.’” Id. (quoting Baxter v. Sullivan, 923 F.2d 1391, 1396 (9th Cir. 25 1991)). If a treating physician’s medical opinion is contradicted by another doctor, the ALJ must 26 identify specific legitimate reasons supported by substantial evidence to give more weight to the 27 non-treating doctor’s opinion. Id. 1 i. Dr. Shrestha and Dr. Chandrachood 2 Smriti Shrestha, M.D., is Plaintiff’s treating physician. Unlike the ALJ’s RFC, which 3 found that Plaintiff was capable of performing medium work, Dr. Shrestha opined that Plaintiff 4 had chronic pain, chronic tenderness, limitation of motion, crepitus, and instability in his right 5 knee. (AR 275.) Dr. Shrestha also opined that Plaintiff’s symptoms would frequently interfere 6 with his attention and concentration to perform even simple work tasks. (AR 276.) Dr. Shrestha 7 found that due to his right knee and lower back pain, Plaintiff could only walk half a block without 8 rest or severe pain, sit for 25 minutes at a time, and stand for twenty minutes at a time. (AR 276.) 9 Dr. Shrestha opined that Plaintiff could sit for four hours and stand for two hours in total, and 10 would need to walk for about twenty minutes per eight hour workday, shift positions due to pain, 11 and take unscheduled breaks every thirty to sixty minutes for fifteen to twenty minutes. (AR 277.) 12 Plaintiff could frequently carry less than ten pounds, occasionally carry ten pounds, and never 13 carry twenty pounds or more. (AR 277.) Plaintiff could rarely twist, occasionally stoop and climb 14 ladders or stairs, and never crouch or squat. (AR 277-78.) Finally, Dr. Shrestha found that 15 Plaintiff would likely be absent from work more than four days a week. (AR 278.) 16 Swapnaja Chandrachood, M.D., is also Plaintiff’s treating physician. Dr. Chandrachood 17 opined that Plaintiff could walk less than one block without rest or severe pain, could sit and stand 18 for twenty minutes at a time, and could sit, stand, and walk for a total of one hour per eight-hour 19 workday. (AR 637.) Dr. Chandrachood further opined that Plaintiff could occasionally carry less 20 than ten pounds, rarely carry ten ponds, and never carry twenty pounds or more. (AR 638.) 21 Plaintiff could never twist, stoop, crouch or squat, climb ladders, or climb stairs. (AR 639.) 22 Finally, Dr. Chandrachood found that Plaintiff would likely be absent from work for four days a 23 month. (AR 639.) 24 The ALJ gave “less weight” to Dr. Shrestha’s and Dr. Chandrachood’s opinions. (AR 21.) 25 The ALJ found that Dr. Shrestha and Dr. Chandrachood “effectively concluded the claimant is 26 unable to perform reliable work activity,” but that “the preponderance of the longitudinal medical 27 evidence of record does not support their overwhelming restricted functional assessments.” The 1 findings of record are generally benign at best, with the treatment limited to a generally 2 conservative nature at best.” (AR 21.) 3 The Court finds that these are not specific legitimate reasons supported by substantial 4 evidence because the ALJ failed to explain any of the medical evidence. In Embrey v. Bowen, the 5 Ninth Circuit found that “[t]o say that medical opinions are not supported by sufficient objective 6 findings or are contrary to the preponderant conclusions mandated by the objective findings does 7 not achieve the level of specificity our prior cases have required, even when the objective factors 8 are listed seriatim.” 849 F.2d 418, 421 (9th Cir. 1988). Instead, “[t]he ALJ must do more than 9 offer his conclusions. He must set forth his own interpretations and explain why they, rather than 10 the doctors' are correct.” Id. at 421-22. 11 Here, the ALJ described the doctors’ opinions and described several test results, but did 12 not provide interpretations of the medical evidence or explain why those interpretations were 13 correct. (See AR 19-20.) This is insufficient per Embrey. Similarly, with respect to the ALJ’s 14 finding regarding the “generally conservative” treatment, the ALJ provided no explanation why 15 the treatment was conservative, or what the treatment entailed. See Revels v. Berryhill, 874 F.3d 16 648, 667 (9th Cir. 2017) (finding the ALJ erred when he “provided no explanation why he deemed 17 this treatment ‘conservative’”). 18 In response, Defendant goes into great detail about various findings and results by Dr. 19 Shrestha and Dr. Chandrachood, which Defendant argues would conflict with Dr. Shrestha’s and 20 Dr. Chandrachood’s opinions. (Def.’s Opp’n at 4-5.) The ALJ, however, never referred to any of 21 these findings and results in his opinion, and Defendant notably never cites to the ALJ’s opinion in 22 discussing these allegedly conflicting findings and results. Defendant cannot use post hoc 23 rationales to justify the ALJ’s conclusion. See Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 24 1219, 1225 (9th Cir. 2009) (“Long-standing principles of administrative law require us to review 25 the ALJ’s decision based on the reasoning and factual findings offered by the ALJ -- not post hoc 26 rationalizations that attempt to intuit what the adjudicator may have been thinking”). 27 Accordingly, the Court finds that the ALJ erred in giving Dr. Shrestha’s and Dr. 1 ii. Mr. Cacciaroni 2 Darrell Cacciaroni, M.S., is Plaintiff’s treating therapist. (AR 641.) Mr. Cacciaroni 3 diagnosed Plaintiff with major depression, anxiety, and post-traumatic stress disorder (“PTSD”), 4 and opined that Plaintiff’s mental health would inhibit his ability to seek employment or sustain 5 any job that required manual labor or extensive concentration. (AR 642.) Plaintiff would also 6 have problems interacting with anyone he did not have a close relationship with. (AR 642.) 7 Mr. Cacciaroni is a licensed marriage and family therapist, which is not an acceptable 8 medical source.1 See Quezada v. Berryhill, No. EDCV 16-1013-KS, 2017 U.S. Dist. LEXIS 9 81477, at *13 (C.D. Cal. May 25, 2017). The ALJ may only disregard Mr. Cacciaroni’s testimony 10 if he “gives reasons germane to [him] for doing so.” Turner v. Comm’r of Soc. Sec., 613 F.3d 11 1217, 1223-24 (9th Cir. 2010). 12 As with Dr. Shrestha and Dr. Chandrachood, the ALJ gave “less weight” to Mr. 13 Cacciaroni’s opinion because it was not supported by “the preponderance of the longitudinal 14 medical evidence of record,” without any additional explanation. (AR 21.) The ALJ’s opinion 15 was limited to describing Mr. Cacciaroni’s finding, and he did not describe any other mental 16 findings other than the state agency doctors’ conclusions that the alleged mental impairments were 17 nonsevere. (See AR 21-22.) The ALJ failed to explain why Mr. Cacciaroni’s opinions were not 18 consistent with the longitudinal medical evidence, as the ALJ did not provide an explanation or 19 interpretation of the longitudinal medical evidence. See Embrey, 849 F.2d at 421-22. Further, to 20 the extent Defendant points to other parts of the record that did not support Mr. Cacciaroni’s 21 opinion, again, the ALJ did not rely on those reasons and Defendant cannot use post hoc rationales 22 to justify the ALJ’s conclusion. See Bray, 554 F.3d at 1225. 23 Accordingly, the Court finds that the ALJ erred in giving Mr. Cacciaroni’s opinion less 24 weight because he failed to identify any germane reason for doing so. 25 iii. Jeff Kauffman 26 On December 7, 2016, Plaintiff had a physical capacities examination with occupational 27 1 therapist (“OT”) Jeff Kaufman. (AR 646.) OT Kaufman observed that Plaintiff’s decreased 2 lumbar and right knee limited him from performing functional movements such as stooping, 3 squatting, and crouching. (AR 647.) OT Kaufman found Plaintiff demonstrated normal 4 functional strength in bilateral upper extremities and his lower left extremity, but that Plaintiff 5 would benefit from a sedentary occupation that did not require heavy lifting, carrying, pushing, 6 pulling, or prolonged standing. (AR 647.) 7 The ALJ did not address OT Kaufman’s opinion, and neither does Defendant. While an 8 occupational therapist is not an “acceptable medical source,” they are “other sources” whose 9 testimony may be discounted only if the ALJ gives germane reasons for doing so. Molina v. 10 Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012); see also Hatfield v. Berryhill, 768 Fed. Appx. 629, 11 631 (9th Cir. 2019). As the ALJ gave no explanation for rejecting OT Kaufman’s opinion, the 12 Court finds that the ALJ erred. 13 B. Improper Rejection of Plaintiff’s Testimony 14 The Court also finds that the ALJ erred in evaluating Plaintiff’s allegations of the severity 15 of his symptoms. In the absence of affirmative evidence of malingering, the ALJ may reject a 16 claimant’s testimony by offering clear and convincing reasons for doing so. Tommasetti v. Astrue, 17 533 F.3d 1035, 1039 (9th Cir. 2008). In weighing a claimant’s credibility, an ALJ may consider 18 “the claimant’s daily activities.” Id. (internal quotation omitted). “Daily activities can form the 19 basis of an adverse credibility finding where the claimant’s activities (1) contradict her other 20 testimony or (2) meet the threshold for transferable work skills.” Sabin v. Astrue, 337 Fed. Appx. 21 617, 620 (9th Cir. 2009) (citing Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007). 22 Here, the ALJ’s only explanation for rejecting Plaintiff’s testimony was that his statements 23 were “not entirely consistent with the medical evidence and other evidence in the record for the 24 reasons explained in this decision.” (AR 19.) As discussed above, the ALJ failed to explain the 25 medical evidence. Further, the ALJ failed to specifically identify which of Plaintiff’s statements 26 he found not credible and why. The Ninth Circuit has found error where an ALJ concluded that a 27 claimant's functional limitations were less serious than alleged “based on unspecified claimant 1 Cir. 2015). There, the ALJ “simply stated her non-credibility conclusion and then summarized the 2 medical evidence supporting her RFC determination. This is not the sort of explanation or the 3 kind of ‘specific reasons’ [the court] must have in order to review the ALJ's decision 4 meaningfully, so that [the court] may ensure that the claimant's testimony was not arbitrarily 5 discredited.” Id. at 494. 6 Here, the ALJ did not identify which of Plaintiff’s statements specifically was inconsistent 7 with which medical findings or opinions. The only specific statement he addressed was Plaintiff’s 8 allegation that he did not like being around people, to which he gave “some credit.” (AR 21.) 9 Otherwise, the ALJ made the credibility finding before summarizing the various medical opinions. 10 Defendant points to various parts of the record that show Plaintiff had a normal gait and 11 muscle strength, and that physical therapy helped his pain and mobility. (Def.’s Opp’n at 8.) The 12 ALJ, however, did not state that these were the reasons for discrediting Plaintiff’s testimony; in 13 fact, the ALJ did not refer to these findings at all. Again, Defendant cannot use post hoc rationales 14 to justify the ALJ’s conclusion. See Bray, 554 F.3d at 1225. Moreover, the ALJ still did not point 15 to which specific statements by Plaintiff were inconsistent. This failure to identify specific 16 testimony and explain the inconsistencies constitutes error that prevents the Court from 17 “discern[ing] the agency’s path because the ALJ made only a general credibility finding without 18 providing any reviewable reasons why [he] found [Plaintiff’s] testimony to be not credible. . . . 19 [P]roviding a summary of medical evidence in support of a residual functional capacity finding is 20 not the same as providing clear and convincing reasons for finding the claimant’s symptoms 21 testimony is not credible.” Brown-Hunter, 806 F.3d at 494. 22 Accordingly, the Court finds that the ALJ erred and that remand is necessary to allow the 23 ALJ to determine the extent to which Plaintiff’s pain and accompanying symptoms affect his 24 disability claim. See Brown-Hunter, 806 F.3d at 495-96 (remanding for further proceedings to 25 allow the ALJ to make a proper disability determination in the first instance where the ALJ failed 26 to specify which termination was found not credible and why). 27 C. Error at Step Five 1 vocational expert were incomplete, as he did not include limitations assessed by Plaintiff's treating 2 || doctors, treating counselor, and examining OT. (PI.’s Mot. at 14.) As discussed above, the ALJ 3 erred in giving less or no weight to these opinions, and thus his hypotheticals were incomplete. 4 || Accordingly, the ALJ erred at his step five determination. 5 IV. CONCLUSION 6 For the reasons set forth above, the Court GRANTS Plaintiff's motion for summary 7 || judgment and DENIES Defendant’s cross-motion for summary judgment. 8 Because it is not clear from the record that the ALJ would be required to find Plaintiff 9 disabled if all the evidence was properly evaluated, remand is appropriate. On remand, the ALJ 10 || must properly evaluate the medical evidence based on applicable law and consistent with this 11 opinion. 12 IT IS SO ORDERED. 5 13 Dated: March 13, 2020 ' B15 United States Magistrate Judge 16 18 19 20 21 22 23 24 25 26 27 28