Marcks v. Kijakazi

• Court: District Court, N.D. California
• Decided: September 6, 2024
• Docket: 4:23-cv-02987
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 JERAMY M. M., 7 Case No. 23-cv-02987-DMR Plaintiff, 8 v. ORDER ON CROSS MOTIONS FOR 9 SUMMARY JUDGMENT KILOLO KIJAKAZI, et al., 10 Re: Dkt. Nos. 10, 14 Defendants. 11

12 Plaintiff Jeramy M. M. moves for summary judgment to reverse the Commissioner of the 13 Social Security Administration’s (the “Commissioner’s”) final administrative decision, which 14 found Plaintiff not disabled and therefore denied his application for benefits under Titles II and 15 XVI of the Social Security Act, 42 U.S.C. § 401 et seq. The Commissioner cross-moves to affirm. 16 For the reasons stated below, the court grants Plaintiff’s motion and denies the Commissioner’s 17 motion. 18 I. PROCEDURAL HISTORY 19 Plaintiff filed an application for Social Security Disability Insurance (“SSDI”) and 20 Supplemental Security Income (“SSI”) benefits on January 23, 2020, alleging disability beginning 21 January 1, 1990. Administrative Record (“AR”) 298-308. The application was initially denied on 22 October 19, 2020 and again on reconsideration on February 10, 2021. An Administrative Law 23 Judge (“ALJ”) held a telephonic hearing on February 24, 2022. At the hearing, the claimant, 24 through his representative, amended the alleged onset date to August 21, 2006. AR 52-53. The 25 ALJ issued an unfavorable decision on April 20, 2022. AR 77-94. The ALJ determined that 26 Plaintiff has the following severe impairments: left shoulder osteoarthritis status post 27 reconstruction, asthma, cognitive disorder, major depressive disorder (“MDD”), generalized 1 The ALJ found that Plaintiff retains the following residual functional capacity (“RFC”):

2 [He can] perform light work as defined in 20 CFR [§] 404.1567(b) and 416.967(b) except the individual can only occasionally push/pull 3 with the left upper extremity. The individual cannot climb ladders, ropes, or scaffolds and can only occasionally crawl. The individual is 4 limited to occasional overhead reaching with the left upper extremity and frequent other reaching with the left upper extremity. The 5 individual is limited to frequent handling and fingering with the left upper extremity. The individual must avoid concentrated exposure to 6 pulmonary irritants such as dust, fumes, and gases. The individual must avoid even moderate exposure to hazards such as unprotected 7 heights and moving machinery. The individual is limited to performing simple routine tasks with only occasional interaction with 8 coworkers, supervisors and the public. 9 AR 20. 10 Relying on the opinion of a vocational expert (“V.E.”) who testified that an individual with 11 such an RFC could perform jobs existing in the economy, including mail sorter, linen folder, and 12 night cleaner, the ALJ concluded that Plaintiff is not disabled. 13 After the Appeals Council denied review, Plaintiff sought review in this court pursuant to 14 42 U.S.C. § 405(g). [Docket No. 1.] 15 II. ISSUE FOR REVIEW 16 Did the ALJ err in weighing the medical evidence? 17 III. STANDARD OF REVIEW 18 Pursuant to 42 U.S.C. § 405(g), the district court has the authority to review a decision by 19 the Commissioner denying a claimant disability benefits. “This court may set aside the 20 Commissioner’s denial of disability insurance benefits when the ALJ’s findings are based on legal 21 error or are not supported by substantial evidence in the record as a whole.” Tackett v. Apfel, 180 22 F.3d 1094, 1097 (9th Cir. 1999) (citations omitted). Substantial evidence is evidence within the 23 record that could lead a reasonable mind to accept a conclusion regarding disability status. See 24 Richardson v. Perales, 402 U.S. 389, 401 (1971). It is more than a mere scintilla, but less than a 25 preponderance. See Saelee v. Chater, 94 F.3d 520, 522 (9th Cir. 1996) (internal citation omitted). 26 When performing this analysis, the court must “consider the entire record as a whole and may not 27 affirm simply by isolating a specific quantum of supporting evidence.” Robbins v. Soc. Sec. 1 If the evidence reasonably could support two conclusions, the court “may not substitute its 2 judgment for that of the Commissioner” and must affirm the decision. Jamerson v. Chater, 112 3 F.3d 1064, 1066 (9th Cir. 1997) (citation omitted). “Finally, the court will not reverse an ALJ’s 4 decision for harmless error, which exists when it is clear from the record that the ALJ’s error was 5 inconsequential to the ultimate nondisability determination.” Tommasetti v. Astrue, 533 F.3d 6 1035, 1038 (9th Cir. 2008) (citations and internal quotation marks omitted). 7 IV. DISCUSSION 8 A. Legal Standard 9 Plaintiff filed an application for disability benefits after March 27, 2017. Therefore, the 10 court analyzes the claim under the Social Security Administration’s (“SSA”) regulations and 11 Social Security Rulings regarding the evaluation of medical opinion evidence that became 12 applicable as of that date. This includes SSR 96-2p, “Titles II and XVI: Giving Controlling 13 Weight to Treating Source Medical Opinions.” See Rescission of Soc. Sec. Rulings 96-2p, 96-5p, 14 & 06-3p, SSR 96-2P (S.S.A. Mar. 27, 2017). Under the new regulations, the SSA will no longer 15 give “any specific evidentiary weight, including controlling weight,” to medical opinions or prior 16 administrative medical findings, including those from treating physicians. 20 C.F.R. § 17 404.1520c(a); 20 C.F.R. § 416.920c(a). Instead, the SSA must evaluate the “persuasiveness” of 18 all medical opinions based on several factors, including supportability, consistency, the source’s 19 relationship with the claimant, length of the treatment relationship, frequency of examinations, 20 purpose of the treatment relationship, whether the source has examined the claimant, any 21 specialization, and other factors, such as “evidence showing a medical source has familiarity with 22 the other evidence in the claim or an understanding of [the SSA’s] disability program’s policies 23 and evidentiary requirements.” 20 C.F.R. 20 C.F.R. § 404.1520c(a), (c), 20 C.F.R. § 416.920c(a), 24 (c). The two most important factors in determining the persuasiveness of medical opinions are 25 consistency and supportability. Woods v. Kijakazi, 32 F.4th 785, 791 (9th Cir. 2022) (citing 20 26 C.F.R. § 404.1520c(a)); see also 20 C.F.R. § 416.920c(a). 27 “Although the regulations eliminate the ‘physician hierarchy,’ deference to specific 1 [they] considered the medical opinions’ and ‘how persuasive [they] find all of the medical 2 opinions.” V.W. v. Comm’r of Soc. Sec., No. 18-CV-07297-JCS, 2020 WL 1505716, at *14 (N.D. 3 Cal. Mar. 30, 2020). “[A]n ALJ cannot reject an examining or treating doctor’s opinion as 4 unsupported or inconsistent without providing an explanation supported by substantial evidence.” 5 Woods, 32 F.4th at 792. “The agency must ‘articulate . . . how persuasive’ it finds ‘all of the 6 medical opinions’ from each doctor or other source, and ‘explain how [it] considered the 7 supportability and consistency factors’ in reaching these findings. Id. (quoting 20 C.F.R. §§ 8 404.1520c(b), 404.1520c(b)) (internal citations omitted); see also 20 C.F.R. § 416.920c(b)). 9 “Supportability means the extent to which a medical source supports the medical opinion by 10 explaining the ‘relevant . . . objective medical evidence.’” Woods, 32 F.4th at 791-92; see also 20 11 C.F.R. § 404.1520c(c)(1) (“The more relevant the objective medical evidence and supporting 12 explanations presented by a medical source are to support his or her medical opinion(s) . . . , the 13 more persuasive the medical opinions . . . will be”). “Consistency means the extent to which a 14 medical opinion is ‘consistent . . . with the evidence from other medical sources and nonmedical 15 sources in the claim.’” Woods, 32 F.4th at 792; see also 20 C.F.R. §§ 404.1520c(c)(2) (“The more 16 consistent a medical opinion(s) . . . is with the evidence from other medical sources and 17 nonmedical sources in the claim, the more persuasive the medical opinion(s) . . . will be”). 18 When rejecting a medical opinion as unsupported or inconsistent, the ALJ is required to 19 “provid[e] an explanation supported by substantial evidence.” Woods, 32 F.4th at 792. 20 B. Analysis 21 Plaintiff contends the ALJ erred in finding the opinions of Tania Shertock, Ph.D., only 22 partially persuasive. 23 On January 30, 2022, Plaintiff was referred for a psychological evaluation by the 24 Department of Social Services to assist in the determination of his disability claim. AR 2803. 25 Shertock was his examiner. She noted that Plaintiff was the sole source of information for the 26 examination, but he appeared to be a reliable historian. Id. She observed that Plaintiff’s attitude 27 and behavior were pleasant and cooperative; that he had normal affect, speech, and perception; 1 distracted. AR 2804-2805. He was able to repeat 5 digits forward and 3 digits backwards, as well 2 as count backwards from 20 (taking 18 seconds), and maintained persistence in all activities. AR 3 2805. However, he was unable to recite the alphabet or complete serial 3s. Id. Shertock stated 4 that Plaintiff’s overall intellectual ability appeared to be within the mild range of intellectual 5 disability and that his memory functioning was borderline. AR 2806. 6 Shertock opined that Plaintiff was capable of understanding, remembering, and carrying 7 out simple instructions. AR 2806. She also opined he had moderate limitations in the following 8 areas: Understand, remember, and carry out complex instructions; Maintain attention and 9 concentration for the duration of the evaluation; Maintain adequate pace while completing tasks; 10 Withstand the stress of an eight-hour day; Maintain adequate persistence while completing tasks; 11 Ability to endure the stress of the interview; and Ability to adapt to changes in routine work- 12 related settings. Id. She opined he had a marked limitation in the ability to complete a normal 13 workday or workweek without interruptions from his psychiatric condition. Id. In a check box 14 form, Shertock also noted that Plaintiff had extreme limitations in his ability to understand, 15 remember, and carry out complex instructions; to make judgments on complex work-related 16 decisions; to interact appropriately with coworkers; and to respond appropriately to usual work 17 situations and changes in the work setting. AR 2812-2813. In handwritten notes, Shertock 18 explained that Plaintiff has difficulty concentrating because of his mental conditions and that he 19 has had extreme interpersonal problems related to his anger and depression. Id. Shertock also 20 observed that Plaintiff experiences periods of decompensation with exacerbation and increase of 21 symptoms, manifested in difficulties in performing activities of daily living, maintaining social 22 relationships, and inability to maintain persistence, concentration and pace. AR 2804. 23 The ALJ found Shertock’s opinions only partially persuasive based on inconsistency. The 24 ALJ held that “[m]arked and extreme limitations are inconsistent with treatment records which 25 show mostly normal mental status examinations. The opinions are inconsistent with under the 26 table work activity in landscaping, plumbing and electrical.” AR 23. 27 To reject an examining doctor’s opinion as inconsistent, the ALJ must provide an 1 normal” mental status, the ALJ appeared to rely solely on Plaintiff’s 2020-2021 treatment records 2 from UCSF Health, McKinleyville Community Health Center, and North American Mental Health 3 Services. AR 21-22. 4 To evaluate the ALJ’s findings on appeal, the court begins by reviewing those cited 5 records to determine if they constitute “substantial evidence” that Plaintiff’s mental status is 6 “mostly normal.” With respect to USCF Health (19F), the records consist of progress notes made 7 in the context of Plaintiff’s shoulder surgery (which were not made by his mental health provider). 8 In the Physical Exam section of progress notes dated 10/14/2020, 1/7/2021, 3/17/2021, 4/15/2021, 9 4/29/2021, 6/4/2021, Plaintiff’s mental status was listed as “alert” and his behavior was listed as 10 “normal.” AR 2377; 2381; 2384; 2387; 2391; 2395. However, elsewhere in the USCF treatment 11 record dated 4/5/2021 and 4/19/2021, Plaintiff’s more detailed History and Physicals section 12 observed that Plaintiff had decreased concentration and sleep disturbance and was hyperactive. 13 AR 2366-2367; 2369. 14 As to the McKinleyville Community Health Center (22F) records, progress notes from 15 11/19/2020 indicate that Plaintiff was appropriately dressed, had good hygiene, and did not appear 16 to be distressed. AR 2488. Plaintiff was alert and oriented, with normal mood, affect and speech. 17 Id. Progress notes from 2/23/2021 indicate that Plaintiff had begun taking Latuda and was feeling 18 less depressed. AR 2489. However, on 3/10/2021 Plaintiff attempted to commit suicide by 19 overdosing on 18 tablets of Latuda, his other prescription medication, and alcohol. AR 2635. 20 Regarding North American Mental Health Services (NAMHS) (23F), Plaintiff began his 21 care on 6/11/2020. AR 2223. Progress notes from 8/7/2020 to 11/13/2020 indicate that Plaintiff 22 had stable mood, sleep and appetite. AR 2509. He was doing well after being prescribed 23 Gabapentin and attending therapy, although he had ongoing weight loss due to lack of appetite and 24 only ate 1-2 times daily. Id. On 1/4/2021, however, Plaintiff reported that his mood had 25 decreased and that he had a recent relapse in alcohol, and he requested an increased dosage for his 26 medication. Id. On 2/12/2021, Plaintiff reported having suicidal thoughts and depressive 27 symptoms such as sadness, worthlessness, and hopelessness; he was prescribed Latuda in addition 1 attempt and hospitalization. AR 2517-2518. He reported that with Latuda he was waking up in a 2 better mood but stated that he was “irritated and depressed” and was having “a lot of ups and 3 downs.” AR 2518. Plaintiff was prescribed Lamictal and an increased dosage of Latuda. AR 4 2520. On 5/17/2021, Plaintiff continued to have depressive symptoms and mood swings, and 5 reported another relapse in alcohol. AR 2521-2522, 2524. The doctor increased Plaintiff’s Latuda 6 and Lamictal dosage. AR 2524. 7 The ALJ acknowledged that Plaintiff had a suicide attempt “in the context of a relapse with 8 alcohol and marijuana,” but stated: “Otherwise, mental status examinations have been pretty 9 normal.” AR 22. The ALJ cited the fact that Plaintiff was able to express understanding of his 10 treatment. The ALJ also found that the medical records do not indicate any concerns about 11 Plaintiff’s ability to understand and participate in treatment discussion and plan, or identify any 12 barriers to learning or accommodations that had to be made to ensure understanding. Id. The ALJ 13 found that this “supports some mental limitations but they are not totally disabling.” Id. 14 The ALJ erred in concluding that Plaintiff’s mental status examinations were “pretty 15 normal.” The ALJ’s brief references to certain progress notes are not substantial evidence of 16 Plaintiff’s ability to complete a normal workday or workweek; to make complex work-related 17 decisions; or to interact appropriately with coworkers. Notably, during the 2020 to 2021 timeframe 18 examined by the ALJ, Plaintiff attempted to commit suicide. AR 2635. The ALJ isolates the March 19 2021 suicide attempt and effectively treats it as an outlier, but ignores that this was at least the third 20 documented suicide attempt since Plaintiff’s alleged 2006 onset date. Moreover, progress notes 21 from NAMHS make clear that Plaintiff was still experiencing depressive symptoms and mood 22 swings months after his March 2021 suicide attempt, and his doctor was continuously adjusting his 23 medication. AR 2524. The record also indicates that Plaintiff is unable to follow his treatment plan 24 himself. After his March 2021 suicide attempt, Plaintiff’s wife started managing his medication. 25 AR 61. Plaintiff also missed several NAMHS appointments because he was not able to remember 26 them. AR 67. The ALJ glosses over these parts of the 2020-2021 record without explanation. AR 27 21-22. In sum, the treatment records described by the ALJ are not substantial evidence of Plaintiff’s 1 The ALJ also erred by failing to consider any of Plaintiff’s medical or other records from 2 before 2019. The ALJ focused solely on records after 2019 because “the claimant previously 3 received supplemental security income and child’s insurance benefits until they were ceased on 4 March 26, 2019.” AR 15. Neither the ALJ nor the Commissioner provide any law to support such 5 a limitation on which records to consider. Rather, the Commissioner’s brief appears to concede that 6 the relevant period for this case is after August 21, 2006, the alleged onset date of Plaintiff’s 7 disability. [Docket No. 14 (Defs. Brief) at 3.] The court has reviewed Plaintiff’s records since 2006 8 and finds that they are not inconsistent with Shertock’s opinions. 9 In 2007, by the time he was 23, Plaintiff already had a long history of psychiatric 10 hospitalizations, criminal arrests, self-harm, and violent outbursts. AR 675-676. In a psychological 11 evaluation by Michael M. Ramirez, Psy.D. in 2007, Ramirez found that Plaintiff experienced 12 episodes of emotional decompensation accompanied by a loss of adaptive functioning more than 13 three times a year, each lasting for at least two weeks, upsetting the coordination of duties in a 14 normal work-like setting. AR 687. Ramirez opined that Plaintiff had marked impairment in all 15 areas of his ability to do work-related activities, including the ability to sustain focused attention 16 and concentration sufficiently long to permit the timely and appropriate completion of tasks. AR 17 687; 691-692. A comprehensive psychiatric evaluation in 2011 by Richard Palmer, Ph.D. found 18 that, although Plaintiff was able to adequately perform one or two step simple repetitive tasks, he 19 had poor ability to accept instructions from supervisors and interact with coworkers and the public, 20 had poor ability to maintain regular attendance, had poor ability to complete a normal workday or 21 workweek without interruptions from a psychiatric condition, and had poor ability to handle normal 22 work related stress from a competitive work environment. AR 701. Palmer opined that Plaintiff’s 23 condition appeared to be chronic. Id. Another psychological evaluation in 2013 by Ramirez found 24 that Plaintiff had borderline intellectual functioning with inability to perform tasks with adequate 25 judgment, “limiting his capacity for interacting fully with his environment, as well as for 26 maintaining the personal and social responsibilities to satisfy the interpersonal side of adaptive 27 behavior.” AR 716. In 2014, Plaintiff was homeless and experiencing suicidal ideation. AR 1280. 1 became hostile, banged his head on the wall, and had to be escorted out of the building by police. 2 Id. In 2017, Plaintiff had at least two suicide attempts: once by lighting a fire in his apartment’s 3 bathroom (7/12/2017), and once by slicing his neck with a razor blade (12/16/2017). AR 723; 1178. 4 After the fire incident, Plaintiff was admitted at HCMH, where he again began banging his head 5 against the door when agitated. AR 1182. On 12/19/2017, Plaintiff was again admitted to HCMH 6 for causing a disturbance and threatening to beat his roommate with a baseball bat. AR 1190. 7 The ALJ does not address these records and instead focuses on a narrow time period in 2020 8 and 2021. The Ninth Circuit has recognized that “[c]ycles of improvement and debilitating 9 symptoms are a common occurrence,” and cautioned that it is “error for an ALJ to pick out a few 10 isolated instances of improvement over a period of months or years and to treat them as a basis for 11 concluding a claimant is capable of working.” Garrison v. Colvin, 759 F.3d 995, 1017 (9th Cir. 12 2014); see also Holohan v. Massanari, 246 F.3d 1195, 1205 (9th Cir. 2001) (“That a person who 13 suffers from severe panic attacks, anxiety, and depression makes some improvement does not mean 14 that the person’s impairments no longer seriously affect her ability to function in a workplace.”). 15 The ALJ found that Shertock’s opinions were inconsistent with a few treatment records from a few 16 months in late 2020 and early 2021. But viewing the evidence as a whole from the alleged onset 17 date, this brief period of relative stability appears to be part of a cycle of improvement and 18 debilitating symptoms. Moreover, the 2020 and 2021 treatment records still include notes consistent 19 with Shertock’s opinions, such as UCSF records indicating decreased concentration and 20 hyperactivity, AR 2366-2367, NAMHS records indicating ongoing depressive symptoms and mood 21 swings, AR 2521-2522, and the March 2021 suicide attempt, AR 2518. In sum, the ALJ failed to 22 “provid[e] an explanation supported by substantial evidence” for the finding that Plaintiff’s mental 23 status is mostly normal and for discounting Shertock’s opinion as inconsistent with the medical 24 record. See Woods, 32 F.4th at 792. 25 The ALJ also cites to NAMHS records in which Plaintiff reported that his current occupation 26 was “underneath the table” landscaping, plumbing, and electricity. AR 22; 2510. The NAMHS 27 notes do not elaborate on what Plaintiff meant by this. It is unclear how often or to what extent 1 unexpressed assumption that Plaintiff was able to perform a significant amount of “under the table” 2 work, even though the record contains examples that caution against such an assumption. For 3 example, in Plaintiff’s UCSF Health records, he reported that his occupation was working at a clean 4 and sober house. AR 2376. Plaintiff clarified at the administrative hearing that he only worked this 5 job a few hours a month for less than $50 a month. AR 56-57. If his “under the table” work was at 6 a similar level as his work at the clean and sober house (i.e., only a few hours a month), then it 7 would not be inconsistent with a marked impairment in ability to complete a normal workday or 8 workweek. In another example, Plaintiff was employed once through a high school work experience 9 program at a local hardware and lumber supply for eight months but was fired for “defiant and 10 oppositional attitudes and behaviors.” AR 675. After high school he was employed through a work 11 training program but was fired due to “inappropriate behavior.” AR 697. These records are all 12 consistent with Shertock’s findings of extreme limitations in responding appropriately to usual work 13 situations and interacting appropriately with coworkers. 14 The Commissioner’s brief makes an additional argument that Shertock’s opinion is only 15 partially persuasive because it was not sufficiently supported. Defs. Brief 2. The ALJ does not 16 make any reference to supportability. AR 22-23. Therefore, the court does not consider the 17 supportability of Shertock’s opinion. See Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 18 2003) (“We are constrained to review the reasons the ALJ asserts.”); Bray v. Comm’r Soc. Sec. 19 Admin., 554 F.3d 1219, 1225-26 (9th Cir. 2009) (The court must “review the ALJ’s decision based 20 on the reasoning and factual findings offered by the ALJ – not post hoc rationalizations.”). 21 Accordingly, the ALJ erred in finding Shertock’s opinion only partially persuasive. 22 V. CONCLUSION 23 For the foregoing reasons, Plaintiff’s motion for summary judgment is granted. This 24 matter is remanded for further proceedings consistent with this opinion. 25 IT IS SO ORDERED. 26 Dated: September 6, 2024 ______________________________________ 27 Donna M. Ryu