Collins v. Kijakazi

• Court: District Court, N.D. California
• Decided: September 13, 2022
• Docket: 1:20-cv-03776
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 EUREKA DIVISION 7 8 ALISON M. C.,1 Case No. 20-cv-03776-RMI

9 Plaintiff, ORDER RE: CROSS MOTIONS FOR 10 v. SUMMARY JUDGMENT

11 KILOLO KIJAKAZI, Re: Dkt. Nos. 36, 39 12 Defendant.

13 14 Plaintiff seeks judicial review of an administrative law judge (“ALJ”) decision denying her 15 application for disability insurance benefits under Title II of the Social Security Act. See Admin. 16 Rec. at 163-74.2 Plaintiff’s request for review of the ALJ’s unfavorable decision was denied by the 17 Appeals Council (see id. at 194-99), thus, the ALJ’s decision is the “final decision” of the 18 Commissioner of Social Security which this court may review. See 42 U.S.C. §§ 405(g), 19 1383(c)(3). Both Parties have consented to the jurisdiction of a magistrate judge (dkts. 6 & 7), and 20 both parties have moved for summary judgment (dkts. 36 & 39). For the reasons stated below, 21 Plaintiff’s motion for summary judgment is granted, and Defendant’s motion is denied. 22 LEGAL STANDARDS 23 The Commissioner’s findings “as to any fact, if supported by substantial evidence, shall be 24 conclusive.” 42 U.S.C. § 405(g). A district court has a limited scope of review and can only set 25

26 1 Pursuant to the recommendation of the Committee on Court Administration and Case Management of the 27 Judicial Conference of the United States, Plaintiff’s name is partially redacted. 1 aside a denial of benefits if it is not supported by substantial evidence or if it is based on legal 2 error. Flaten v. Sec’y of Health & Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995). The phrase 3 “substantial evidence” appears throughout administrative law and directs courts in their review of 4 factual findings at the agency level. See Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019). 5 Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as 6 adequate to support a conclusion.” Id. (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 7 (1938)); see also Sandgathe v. Chater, 108 F.3d 978, 979 (9th Cir. 1997). “In determining whether 8 the Commissioner’s findings are supported by substantial evidence,” a district court must review 9 the administrative record as a whole, considering “both the evidence that supports and the 10 evidence that detracts from the Commissioner’s conclusion.” Reddick v. Chater, 157 F.3d 715, 11 720 (9th Cir. 1998). The Commissioner’s conclusion is upheld where evidence is susceptible to 12 more than one rational interpretation. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 13 PROCEDURAL HISTORY 14 In March and August of 2016, Plaintiff filed applications for Title II and XVI benefits 15 alleging an onset date of August 1, 2012, as to both applications. AR at 163. The partially 16 favorable Title XVI application (see id. at 1-30) is not at issue in this case. See Defs.’ Opp. (dkt. 17 39) at 2. In 2018, the claimant untimely passed away, and from that point forward her mother 18 became the substituted party (however, for the sake of uniformity and clarity, the court will 19 continue to refer to claimant as “Plaintiff”). See AR at 163. Following further administrative 20 proceedings, on January 14, 2019, an ALJ denied Plaintiff’s Title II application in a written 21 decision. See id. at 163-74. In April of 2020, the Appeals Council denied Plaintiff’s request for 22 review. Id. at 194-99. Two months later, in June of 2020, Plaintiff sought review in this court (see 23 Compl. (dkt. 1) at 1-2) and the instant case was initiated. 24 SUMMARY OF THE RELEVANT EVIDENCE 25 The ALJ in this case determined that Plaintiff’s “medically determinable mental 26 impairments of depression, anxiety, and antisocial personality disorder, considered singly and in 27 combination, did not cause more than minimal limitation in the claimant’s ability to perform basic 1 recitation of the evidence of record pertaining to the limitations attending Plaintiff’s mental 2 impairments. 3 The record in this case contains several mental health and psychological evaluations. See 4 id. at 728-735, 4005-13, 4016-21. The first of these evaluations took place in November of 2007 5 (several years before Plaintiff’s alleged onset date in 2012), and was performed by Julie A. 6 Wolfert, Psy.D., a clinical neuropsychologist. Id. at 4005. In the course of this evaluation, Plaintiff 7 was diagnosed with a reading disorder, depressive disorder, a substance abuse disorder, and 8 antisocial personality disorder with dependent features. Id. at 4013. As to the limitations 9 associated with these impairments, Dr. Wolfert rendered the following findings: that Plaintiff’s 10 intellectual functioning was estimated to occupy the low average range, with an estimated Full 11 Scale IQ score being situated in the range between 82 and 91; that, due to immature coping skills, 12 Plaintiff was vulnerable to stress, particularly when dealing with people; that her immature coping 13 defenses contributed to her many difficulties in that her impaired coping abilities caused the 14 underdevelopment of her social skills and a low sense of self esteem which, in turn, resulted in 15 various abnormal behavioral manifestations; that “[t]his [] further perpetuate[d] her tendency to 16 misperceive the intentions of others [resulting in] [h]er tendency to be suspicious of others, to 17 misperceive situations and to be hypersensitive to criticisms, judgments and demands [which] 18 [led] to her manipulative behaviors, dishonesty, poor judgment and antisocial acts”; that her 19 vulnerability, when combined with her impaired coping and social skills, caused her to perpetually 20 feel that she was being treated unfairly, which made her defensive and likely to blame others 21 around her; that her leaning towards making loose connections caused her to experience difficulty 22 concentrating while experiencing paranoid thoughts; that she manifested a history of depressive 23 symptoms and addictive behaviors; and, due to these limitations, Dr. Wolfert opined that Plaintiff 24 would be unable to independently and adequately care for her child. See id. at 4009-10. Dr. 25 Wolfert also noted that “[w]hen individuals such as [Plaintiff] are anxious, they are likely to act 26 out in impulsive ways.” Id. at 4011. Plaintiff was also assessed as one who objectified, 27 oversimplified, and ignored complexity, about which Dr. Wolfert opined that “[w]hile these 1 [were] likely to lead to poor judgment, irresponsible behaviors and impaired coping as is often 2 seen in people with antisocial personality disorder.” Id. At bottom, Dr. Wolfert summed up 3 Plaintiff’s emotional situation as such: “[c]onceptually, this is a woman who feels sick and 4 physically vulnerable, perceives that she is unfairly treated and blames the world and others 5 around her for her difficulties [and] [h]er hypersensitivity to criticism leads to difficulty with 6 concentration, loose thinking patterns and suspicious, paranoid thoughts.” Id. 7 In March of 2008, Plaintiff was seen by Allen D. Bott, M.D., for a neurological and 8 psychopharmacological consultation. Id. at 4016-21. Dr. Bott noted the history of Plaintiff’s 9 depression beginning in elementary school, from which point she had suffered from recurrent 10 depressive episodes. Id. at 4016. Dr. Bott also noted that – in 2008 – Plaintiff’s depressive 11 symptoms could manifest as frequently as three times per week (lasting from a few hours to a full 12 day). Id. He also noted that her symptoms typically included weight loss and insomnia and, at 13 times, hyper-insomnia. Id. In the end, Dr. Bott noted the following assessment: “[Plaintiff] has a 14 history of major depressive disorder of the recurrent type, currently chronically depressed[,] 15 [h]owever, her disorder might be better characterized as cyclical depression / highly recurrent 16 depression, a non-DSM-IV diagnosis that has most of the features of bipolar disorder with the 17 exception that typically there are not spontaneous hypomanic episodes.” Id. at 4018. Dr. Bott then 18 added that “[t]he early age of onset of her first depressive episode, the extreme rapidity with which 19 depressive episodes begin and end, as well as their brevity, the comorbid substance and alcohol 20 abuse, and the history of postpartum depression all suggest that she may ultimately fall into the 21 bipolar spectrum, although a bipolar disorder cannot now be diagnosed.” Id. 22 In February of 2014, Plaintiff was seen by Terralyn N. Renfro, Psy. D., for another 23 evaluation following a referral for that purpose by the state disability determination agency. Id. at 24 718-35. In the course of that evaluation, Dr. Renfro also evaluated Plaintiff with major depressive 25 disorder (recurrent type), while noting her daily routine as a cycle between depression-caused 26 insomnia (which kept Plaintiff from being able to sleep at nights) and the consequential fatigue 27 and apathy she experienced during the days which relegated her to her bed for the better part of the 1 impairment in her ability to: maintain persistence and pace; to associate with day-to-day work 2 activity, including attendance and safety; and, to perform work activities on a consistent basis. Id. 3 at 734. Dr. Renfro also found that Plaintiff’s depression caused her to experience “mild to 4 moderate” impairments in her ability to follow detailed and complex instructions, and in her 5 ability to perform work activities without special or additional supervision – as well as finding that 6 Plaintiff “may require assistance with managing her own money.” Id. 7 THE FIVE STEP SEQUENTIAL ANALYSIS FOR DETERMINING DISABILITY 8 A person filing a claim for social security disability benefits (“the claimant”) must show 9 that she has the “inability to do any substantial gainful activity by reason of any medically 10 determinable physical or mental impairment” which has lasted or is expected to last for twelve or 11 more months. See 20 C.F.R. §§ 416.920(a)(4)(ii), 416.909. The ALJ must consider all evidence in 12 the claimant’s case record to determine disability (see id. § 416.920(a)(3)), and must use a five- 13 step sequential evaluation process to determine whether the claimant is disabled (id. § 416.920; 14 see also id. at § 404.1520). While the claimant bears the burden of proof at steps one through four 15 (see Ford v. Saul, 950 F.3d 1141, 1148 (9th Cir. 2020)), “the ALJ has a special duty to fully and 16 fairly develop the record and to assure that the claimant’s interests are considered.” Brown v. 17 Heckler, 713 F.2d 441, 443 (9th Cir. 1983). Here, the ALJ appropriately set forth the applicable 18 law regarding the required five-step sequential evaluation process. AR at 164-166. 19 At step one, the ALJ must determine if the claimant is presently engaged in “substantial 20 gainful activity,” 20 C.F.R. § 404.1520(a)(4)(i), which is defined as work done for pay or profit 21 and involving significant mental or physical activities. See Ford, 950 F.3d at 1148. Here, the ALJ 22 determined Plaintiff had not performed substantial gainful activity during the period between her 23 alleged onset date, August 1, 2012, and the date last insured, December 31, 2014. AR at 166. At 24 step two, the ALJ decides whether the claimant’s impairment or combination of impairments is 25 “severe” (see 20 C.F.R. § 404.1520(a)(4)(ii)), “meaning that it significantly limits the claimant’s 26 ‘physical or mental ability to do basic work activities.’” Ford, 950 F.3d at 1148 (quoting 20 27 C.F.R. § 404.1522(a)). If no severe impairment is found, the claimant will not be found to be 1 impairments: type-1 diabetes mellitus; bilateral tenosynovitis; and, bilateral trigger finger. AR at 2 166. 3 At step three, the ALJ is tasked with evaluating whether the claimant has an impairment or 4 combination of impairments that meet or equal an impairment in the “Listing of Impairments.” See 5 20 C.F.R. § 404.1520(a)(4)(iii); 20 C.F.R. Pt. 404 Subpt. P, App. 1. The listings describe 6 impairments that are considered to be sufficiently severe to prevent any individual so afflicted 7 from performing any gainful activity. Id. at § 404.1525(a). Each impairment is described in terms 8 of “the objective medical and other findings needed to satisfy the criteria of that listing.” Id. at § 9 404.1525(c)(3). In order for a claimant to show that his or her impairment matches a listing, it 10 must meet all of the specified medical criteria; and, an impairment that manifests only some of 11 those criteria, no matter how severely, does not “meet” that listing. See Sullivan v. Zebley, 493 12 U.S. 521, 530 (1990). If an impairment either meets the listed criteria, or if one or more 13 impairments are determined to be medically equivalent to the severity of that set of criteria, that 14 person is conclusively presumed to be disabled without a consideration of age, education, or work 15 experience. See 20 C.F.R. § 404.1520(d). Here, the ALJ determined Plaintiff did not have an 16 impairment or combination of impairments that meets or equals the criteria or the severity of any 17 of the listings. See AR at 168. 18 If a claimant does not meet or equal a listing, the ALJ must formulate the claimant’s 19 residual functional capacity (“RFC”), which is defined as the most that a person can still do 20 despite the limitations associated with their impairments. See 20 C.F.R. § 404.1545(a)(1). Here, 21 the ALJ determined that Plaintiff retained the ability to perform the full range of work at the 22 medium exertional level – with the sole exception that she would have been limited to only 23 occasional handling and fingering. See AR at 168-72. Following the formulation of the RFC, the 24 ALJ must determine – at step four – whether the claimant is able to perform her past relevant 25 work, which is defined as “work that [the claimant has] done within the past 15 years, that was 26 substantial gainful activity, and that lasted long enough for [the claimant] to learn to do it.” See 20 27 C.F.R. § 404.1560(b)(1). If the ALJ determines, based on the RFC, that the claimant can perform 1 step five, the burden shifts to the agency to prove that the claimant can perform a significant 2 number of other jobs that are available in the national economy. See Ford, 950 F.3d at 1149. To 3 meet this burden, the ALJ may rely on the Medical-Vocational Guidelines (commonly referred to 4 as “the grids”), 20 C.F.R. Pt. 404 Subpt. P, App. 2; or, alternatively, the ALJ may rely on the 5 testimony of a vocational expert (“VE”). Ford, 950 F.3d at 1149 (citation omitted). A VE may 6 offer expert opinion testimony in response to hypothetical questions about whether a person with 7 the physical and mental limitations imposed by the claimant’s medical impairment(s) can meet the 8 demands of the claimant’s previous work, either as the claimant actually performed it or as 9 generally performed in the national economy, or the demands of other jobs that may be available 10 in the national economy. See 20 C.F.R. § 404.1560(b)(2). An ALJ may also use other resources 11 for this purpose, such as the Dictionary of Occupational Titles (“DOT”). Id. 12 Here, the ALJ determined – based on the VE’s testimony – that Plaintiff would not have 13 been able to perform her past relevant work as a medical assistant. See AR at 172. Lastly, at step 14 five, the ALJ determined – once again, based on the VE’s testimony – that Plaintiff would have 15 been able to perform the functions of a furniture rental clerk or a salon attendant, both of which 16 jobs existed in substantial numbers in the national economy. See AR. at 172-73. Accordingly, the 17 ALJ determined that Plaintiff had not been disabled at any time from August 1, 2012, the alleged 18 onset date, through December 31, 2014, the date last insured. Id. at 173. 19 DISCUSSION 20 As stated above, in November of 2007, Dr. Wolfert diagnosed Plaintiff with depressive 21 disorder, antisocial personality disorder, and a reading disorder (id. at 4013); additionally, in 22 February of 2014, Dr. Renfro diagnosed Plaintiff with major depressive disorder (id. at 733) – 23 both of which were confirmed to a great degree by Dr. Bott’s opinion (see id. at 4016-20). The 24 ALJ’s non-severity finding as to Plaintiff’s mental disorders at step two was premised on two 25 principal explanations. See id. at 166-67. The ALJ found that the conditions, considered singly and 26 in combination, did not cause more than a minimal limitation in her ability to perform basic 27 mental work activities. Id. at 166. In reaching this erroneous conclusion, the ALJ rejected the 2007 1 2012.” Id. at 171. The ALJ also rejected Dr. Renfro’s 2014 opinion because it was “not consistent 2 with the record as a whole, including the remote date last insured [December 31, 2014].” See id. 3 The ALJ failed to discuss Dr. Bott’s opinion (see id. at 166-73). 4 First, it does not require any significant discussion to note that Dr. Renfro’s opinion was 5 rendered before Plaintiff’s last insured date, and so it was not – as the ALJ put it – a “remote” 6 date. Second, as to the limitations caused by Plaintiff’s mental disorders, the ALJ incorrectly 7 found that the limitations opined by Drs. Wolfert and Renfro were not consistent with the record 8 as a whole – while failing to mention Dr. Bott’s opinion. These opinions were, on the one hand, 9 consistent and harmonious with one another, and they were, on the other hand, not in any way 10 inconsistent with the record as a whole. The ALJ’s statement to the opposite effect improperly 11 relied upon certain irrelevant notations in the record (e.g., that Plaintiff appeared not to be in any 12 distress on one occasion, or that she appeared to have a normal affect on another occasion, or that 13 she “was noted to be cooperative and pleasant” on another occasion. See id. at 167. However, the 14 ALJ erred in relying on these inconsequential notations entered by intake staff in the course of 15 unrelated treatment for physical impairments in order to improperly reject the considered, and 16 consistent, opinions of three examining mental health professionals. See Smolen v. Chater, 80 F.3d 17 1273, 1285 (9th Cir. 1996) (finding that the ALJ should have given greater weight to a physician 18 with the expertise most relevant to the patient’s allegedly disabling condition). In short, aside from 19 the flaws attending the ALJ’s expressed reasons for rejecting the opinions of Drs. Wolfert and 20 Renfro (as well as rejecting Dr. Bott’s opinion by implication), the ALJ’s findings in this regard 21 are also unsupported by substantial evidence. Instead, the court finds that the only quantum of 22 substantial evidence in the record pertaining to Plaintiff’s mental impairments is to be found in 23 these opinions. 24 Having found that the ALJ improperly rejected these opinions, they shall now be credited 25 as true, and the ALJ shall be bound to apply the findings and limitations opined by Drs. Wolfert, 26 Bott, and Renfro on remand. See e.g., Moisa v. Barnhart, 367 F.3d 882, 887 (9th Cir. 2004) (“The 27 Commissioner, having lost this appeal, should not have another opportunity to show that Moisa is 1 proceedings to establish his credibility.”). There is amply authority for the proposition that the 2 credit-as-true doctrine is applicable even when a federal court’s remand order allows for further 3 administrative proceedings rather than the immediate calculation and payment of benefits.3 4 As for the scope of remand, Plaintiff’s request for a remand for an immediate calculation 5 of benefits is half-hearted. See Pl.’s Mot. (dkt. 36) at 20 (where, in conclusory fashion, Plaintiff 6 devotes a single sentence to the suggestion that an immediate award of benefits is appropriate 7 because the record is fully developed). Because the opinions expressed by Drs. Wolfert, Bott, and 8 Renfro (either individually or combination) are not such that they would classify Plaintiff as 9 conclusively disabled due to the mental disorders involved, the court finds that the matter could 10 indeed benefit from further record development. 11 To backtrack for a moment – the court will note that by its own terms, the evaluation at 12 step two is a de minimis test intended to weed out the most minor of impairments. See Bowen v. 13 Yuckert, 482 U.S. 137, 153-154; Edlund v. Massanari, 253 F.3d 1152, 1158 (9th Cir. 2005) 14 (stating that the step two inquiry is a de minimis screening device to dispose of groundless claims) 15 16 3 See also Baltazar v. Berryhill, No. CV 16-8132-E, 2017 U.S. Dist. LEXIS 83515, at *20-21 (C.D. Cal. May 31, 2017) (“Accordingly, on remand the Administration shall credit as true Dr. Rubinstein’s opinion 17 regarding Plaintiff’s lifting capacity and shall conduct further proceedings to determine whether Plaintiff is entitled to benefits prior to January 19, 2014.”); Stimson v. Colvin, 194 F. Supp. 3d 986, 1004 (N.D. Cal. 18 2016) (“The Court therefore remands for further proceedings. In keeping with the purposes underlying the credit-as-true rule, the Commissioner is instructed on remand to accept Dr. Hoque’s diagnosis for the 19 period from September 23, 2011 until Stimson’s July 2012 surgery and to devote further administrative proceedings to determining Stimson’s ability to work after his surgery.”); S.W. v. Colvin, No. CV 15-3189- 20 PLA, 2016 U.S. Dist. LEXIS 72834, at *8 (C.D. Cal. June 2, 2016) (“[I]n its previous remand order, which instructed the ALJ on remand to credit as true William’s statements concerning plaintiff's limitations . . .”); 21 Page v. Colvin, 2016 U.S. Dist. LEXIS 161286, 2016 U.S. Dist. LEXIS 161286, 2016 WL 6835075, at *6 (N.D. Cal. Nov. 20, 2016) (“[T]he Treichler rule should not be interpreted to require that an ALJ be given a 22 second chance to do what the ALJ should have done correctly in the first place.”); Derr v. Colvin, No. CV- 12-00415-TUC-BPV, 2014 U.S. Dist. LEXIS 143961, at *39-40 (D. Ariz. Oct. 8, 2014) (“Accordingly, the 23 Court will reverse the Commissioner’s final decision with a remand for further proceedings consistent with this opinion. The ALJ shall, on remand, credit Dr. Mittleman’s opinion as true, and credit Plaintiff’s 24 statements as true. On remand the ALJ shall make a determination regarding onset date and reviewable findings regarding substance use.”); Adame v. Colvin, No. EDCV 12-1079 AGR, 2013 U.S. Dist. LEXIS 25 87694, at *17 (C.D. Cal. June 21, 2013) (“[T]he decision of the Commissioner is reversed and this matter remanded for further proceedings consistent with this opinion. Dr. Sophon’s lift/carry restriction must be 26 credited as true on remand.”); see also McNeill v. Colvin, 2013 U.S. Dist. LEXIS 24752, 2013 WL 645719, at *8 (C.D. Cal. 2013) (crediting treating physicians’ opinions as true and remanding for further 27 administrative proceedings rather than giving the Administration a third opportunity to provide legally sufficient reasons for rejecting a treating physicians’ opinions); Smith v. Astrue, 2011 U.S. Dist. LEXIS 1 (quoting Smolen, 80 F.3d at 1290); Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005) (step-two 2 is a “de minimis threshold”). An impairment is non-severe at step two only if the evidence 3 establishes a slight abnormality that has only a minimal effect on an individual’s ability to work. 4 Smolen, 80 F.3d at 1290. Having credited the opinions of Drs. Wolfert, Bott, and Renfro, 5 Plaintiff’s mental impairments must be considered to be “severe” for step two’s purposes. As for 6 the upshot of the ALJ’s step two error, it cannot be argued that the error was harmless because 7 Plaintiff’s mental impairments were not considered at step three, nor were their limitations 8 encapsulated in the RFC. See Berg v. Saul, 831 F. App’x 849, 850 (9th Cir. 2020); Urban v. Saul, 9 808 F. App’x 453, 455 (9th Cir. 2020). 10 The reason that further administrative proceedings are necessary is because the ALJ would 11 be required on remand to do substantially more than simply calculating and awarding benefits. 12 Instead, the ALJ will be required to reengage the sequential evaluation process – properly – from 13 step three onwards due to the early juncture (step two) of the error, and given also that the 14 improperly rejected evidence is not – in and of itself – conclusively disabling. On remand, the ALJ 15 will need to determine, in the first instance, whether the combination of Plaintiff’s impairments 16 (mental and physical) meet or equal the severity of any listed impairment. If that inquiry results in 17 a conclusion that they do not – the ALJ would then need to re-formulate the RFC such as to 18 include the limitations opined by Drs. Wolfert, Bott, and Renfro. In doing so, the ALJ may need to 19 conduct further factfinding by contacting one or more of these three doctors in order to garner 20 additional details about their opined limitations – including but not limited to temporal details 21 relevant to the disability period in question. Thereafter, the ALJ may need the assistance of VE 22 testimony to determine if Plaintiff could perform the functions of any jobs available in the national 23 economy under the rubric of the newly formulated RFC. These are all determinations that must be 24 made at the agency level in the first instance, some of which will most likely require further 25 factual development of the record. 26 // 27 // 1 CONCLUSION 2 Accordingly, Plaintiff's Motion for Summary Judgment (dkt. 36) is GRANTED, 3 Defendant’s Cross-Motion (dkt. 39) is DENIED, and the case is remanded for further proceedings 4 || consistent with the findings and conclusions set forth herein. 5 IT IS SO ORDERED. 6 || Dated: September 13, 2022 7 8 RQ@BERT M. ILLMAN 9 United States Magistrate Judge 10 11 12

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