Terri Goldston v. O'Malley

— 1 — — 2 — — 3 — 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA — 6 — 7 T.G., Case No. 24-cv-04717-JST 8 Plaintiff, ORDER GRANTING PLAINTIFF’S 9 v. MOTION FOR REVERSAL AND REMAND 10 COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, Re: ECF No. 13 — 11 — Defendants. — 12 — — 13 — Plaintiff seeks judicial review of the Social Security Administration Commissioner’s — 14 — denial of her application for disability benefits pursuant to 42 U.S.C. § 405 (g). Before the Court — 15 — are Plaintiff’s motion for reversal and remand and the Commissioner’s opposition. ECF Nos. 13, — 16 — 21. The matter is deemed fully briefed and submitted without oral argument pursuant to Civil — 17 — Local Rule 16-5. The Court will grant Plaintiff’s motion. — 18 — I. BACKGROUND — 19 — Plaintiff has a history of physical ailments including osteoarthritis, sciatica, back pain, — 20 — knee pain, hip pain, ulcers, abdominal pain, and anemia. Administrative Record (“AR”)1 726, — 21 — 691, 705, 708, 710, 716, 720, 726, 750, 758, 763, 767, 813, 832, 849, 1020, 1022, 1032, 1041, — 22 — 1055, 1059, 1062, 1067, 1073, 1076, 1078, 1081, 1083, 1091, 1313, 1361. She has experienced — 23 — severe trauma, including physical and sexual abuse, homelessness, and suicide attempts. AR 581, — 24 — 1040, 1198, 1114, 1294, 1319, 1348, 1424, 2022. She also has a “long history of psychiatric — 25 — hospitalizations dating back to 1986.” AR 1430. — 26 — Plaintiff filed an application for Title II benefits on March 29, 2017, and an application for — 27 — 1 Title XVI benefits on June 28, 2017. AR 219, 228. Her initial applications and requests for 2 reconsideration were denied. AR 121-22, 136. The ALJ held a hearing on March 1, 2018 and 3 issued an unfavorable decision on April 24, 2019. AR 32. The Appeals Council denied Plaintiff’s 4 request for review, but after Plaintiff filed a complaint for judicial review in the federal District 5 Court, the Appeals Council vacated the unfavorable decision and remanded the case to the ALJ for 6 further proceedings. AR 1737, 1745, 1749. The ALJ held a new hearing and a supplemental 7 hearing on September 21, 2023, and January 30, 2024, respectively. AR 1614, 1649. The ALJ 8 issued another unfavorable decision on April 4, 2023. AR 1582. Specifically, the ALJ held that 9 “the claimant is under a disability, but . . . a substance use disorder is a contributing factor material 10 to the determination of disability. Accordingly, the claimant has not been disabled under the 11 Social Security Act at any time from the alleged onset date through the date of this decision.” AR 12 1587. 13 Plaintiff timely filed this action for judicial review. ECF No. 1. 14 II. JURISDICTION 15 This Court has jurisdiction to review final decisions of the Commissioner pursuant to 42 16 U.S.C. § 405 (g). 17 III. LEGAL STANDARD 18 “The Court may set aside a denial of benefits only if not supported by substantial evidence 19 in the record or if it is based on legal error.” Merrill ex rel. Merrill v. Apfel, 224 F.3d 1083 , 1084– 20 85 (9th Cir. 2000); see 42 U.S.C. § 405 (g) (“The findings of the Commissioner of Social Security 21 as to any fact, if supported by substantial evidence, shall be conclusive.”). “Substantial evidence 22 is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” 23 Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005) (citing Richardson v. Perales, 402 U.S. 389 , 24 401 (1971)). It is “more than a scintilla but less than a preponderance.” Thomas v. Barnhart, 278 25 F.3d 947, 954 (9th Cir. 2002) (quotation marks and citation omitted). The Court “review[s] the 26 administrative record in its entire[ty] to decide whether substantial evidence to support the ALJ’s 27 decision exists, weighing evidence that supports and evidence that detracts from the ALJ’s 1 “Where evidence exists to support more than one rational interpretation, the Court must 2 defer to the decision of the ALJ.” Id. at 1258. The ALJ is responsible for determinations of 3 credibility, resolution of conflicts in medical testimony, and resolution of all other ambiguities. 4 Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). Additionally, courts “cannot affirm the 5 decision of an agency on a ground that the agency did not invoke in making its decision.” Pinto v. 6 Massanari, 249 F.3d 840, 847 (9th Cir. 2001). “Even when the ALJ commits legal error, [courts] 7 uphold the decision where that error is harmless, meaning that it is inconsequential to the ultimate 8 nondisability determination, or that, despite the legal error, the agency's path may reasonably be 9 discerned, even if the agency explains its decision with less than ideal clarity.” Brown-Hunter v. 10 Colvin, 806 F.3d 487, 492 (9th Cir. 2015) (quotation marks and citation omitted). 11 IV. DISCUSSION 12 Plaintiff argues the ALJ erred in his: (1) evaluation of Plaintiff’s subjective complaints; (2) 13 weighing of the medical opinion evidence; (3) finding that Plaintiff’s impairments were non14 severe; (4) finding that Plaintiff’s mental disorders would improve absent substance use; (5) 15 medical equivalence findings; and (6) assessment of Plaintiff’s residual functional capacity (RFC). 16 A. Evaluation of Plaintiff’s Subjective Testimony 17 To determine whether a claimant’s testimony regarding subjective pain or symptoms is 18 credible, an ALJ first determines whether the claimant has presented objective medical evidence 19 of an underlying impairment that “could reasonably be expected to produce the pain or other 20 symptoms alleged[.]” See Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc) 21 (quoting 42 U.S.C. § 423 (d)(5)(A) (1988)). “If the claimant satisfies the first step of this analysis, 22 and there is no evidence of malingering, ‘the ALJ can reject the claimant’s testimony about the 23 severity of her symptoms only by offering specific, clear and convincing reasons for doing 24 so.’” Garrison v. Colvin, 759 F.3d 995 , 1014–15 (9th Cir. 2014) (quoting Smolen, 80 F.3d at 25 1281). “[T]he ALJ must specifically identify the testimony she or he finds not to be credible and 26 must explain what evidence undermines the testimony.” Holohan v. Massanari, 246 F.3d 1195 , 27 1208 (9th Cir. 2001) (citation omitted). Where an ALJ’s credibility determination is supported by 1 Soc. Sec. Admin., 169 F.3d 595 , 600 (9th Cir. 1999) (internal citation and quotation marks 2 omitted). 3 The ALJ found “that the claimant’s medically determinable impairments could reasonably 4 be expected to produce the alleged symptoms; however, the claimant’s statements concerning the 5 intensity, persistence, and limiting effects of these symptoms are not entirely consistent with the 6 medical evidence and other evidence in the record. . . .” AR 1594. These general statements are 7 insufficient to discount the plaintiff’s subjective testimony. “[G]eneral findings are an insufficient 8 basis to support an adverse credibility determination.” Holohan v. Massanari, 246 F.3d 1195 , 9 1208 (9th Cir. 2001); see also Lambert v. Saul, 980 F.3d 1266 (9th Cir. 2020) (“Although the ALJ 10 did provide a relatively detailed overview of Lambert’s medical history, providing a summary of 11 medical evidence . . . is not the same as providing clear and convincing reasons for finding the 12 claimant’s symptom testimony not credible.”) (citation modified). Rather, the ALJ “must 13 specifically identify the testimony she or he finds not to be credible and must explain what 14 evidence undermines the testimony.” Id. The ALJ’s credibility finding must be properly 15 supported by the record and sufficiently specific to assure a reviewing court that the ALJ did not 16 arbitrarily reject Plaintiff’s subjective testimony regarding pain or other symptoms. Bunnell, 947 17 F.2d at 345–46. The ALJ’s credibility finding in this case was not sufficiently supported. 18 Furthermore, the ALJ repeatedly discredits Plaintiff’s and medical providers’ opinions 19 because of Plaintiff’s purported ability to maintain full-time employment. AR 1594–99. But this 20 impermissibly ignores Plaintiff’s testimony that she, in fact, was not performing her work 21 successfully, had received “write ups” for poor job performance, had to lie down sometimes as 22 much as four times in a workday, had to occasionally go home because she was unable to get up 23 after lying down, and had to have additional help staffed during her shifts to complete the tasks 24 she was unable to complete. AR 1630–31. The actual testimony in the record does not provide a 25 clear and convincing reason to discredit Plaintiff’s testimony. Lingenfelter v. Astrue, 504 F.3d 26 1028, 1036 (9th Cir. 2007) (finding the claimant’s performance of work that contradicted his 27 symptoms an insufficient reason to reject his testimony). 1 examinations. AR 1586 (“[G]iven the repeated failure to attend a consultative examination, the 2 claimant’s statements about the intensity and persistence of her symptoms are not reliable.”). The 3 ALJ wrote that “[c]ounsel repeatedly refused to allow the claimant to attend consultative 4 examinations . . . in contravention to counsel’s ethical obligations.” AR 1586. But in at least one 5 case, the doctor was sick and cancelled Plaintiff’s appointment. AR 2062. Moreover, Plaintiff 6 filed an objection to the ALJ’s ordering of consultative examinations, arguing that: (1) the order 7 failed to comply with the relevant federal regulations, which permit a consultative examination 8 through a state agency only after the ALJ has “made every reasonable effort to obtain evidence 9 from [the claimant’s] own medical sources,” 20 C.F.R. § 416.912 (b)(2); (2) the scheduled 10 consultative examinations were excessively burdensome to Plaintiff in light of the preexisting 11 conditions making COVI-19 exposure extremely dangerous to her; and (3) the scheduled 12 consultative examinations were unnecessary in light of the abundant evidence already in the file. 13 AR 2029–33. The Commissioner argues that “those excuses are not the types of ‘good reasons’ 14 contemplated by the regulations for missing a consultative examination,” ECF No. 21 at 18, but 15 the ALJ did not consider whether they were good reasons under the regulations. “A reviewing 16 court may only consider the reasons provided by the ALJ in the disability determination and ‘may 17 not affirm the ALJ on a ground upon which he [or she] did not rely.’” Luther v. Berryhill, 891 18 F.3d 872, 875 (9th Cir. 2018) (quoting Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014)). 19 Because the ALJ did not consider Plaintiff’s reasons for not attending the consultative 20 examinations, he did not provide clear and convincing reasons to reject Plaintiff’s testimony, and 21 thus committed legal error. Moreover, this error was harmful, because the Plaintiff’s testimony 22 would have supported a finding of disability if credited. 23 B. Medical Opinion Evidence 24 For claims filed before March 27, 2017—like Plaintiff’s—the ALJ must give a treating 25 provider’s medical opinion “controlling weight” when the opinion “is well-supported by medically 26 acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other 27 substantial evidence in [the claimant’s] case record.” 20 C.F.R. § 404.1527 (c)(2). Plaintiff notes 1 post-2017 rules, and any analysis under the pre-2017 rules is absent.” ECF No. 13 at 19; see AR 2 1582–1613. The Commissioner does not respond to this argument. The ALJ’s application of the 3 post-2017 rules constitutes error. Moreover, the ALJ’s evaluations of several of the providers’ 4 opinions were also in error, as described below. 5 1. Dr. Crichlow 6 The ALJ gave treating provider Dr. Crichlow’s opinion little weight, stating that his 7 “conclusions are not sufficiently supported, as he has not identified findings that support such 8 extreme limitations. The limitations are inconsistent with the physical examinations from the past 9 14 years that show no strength deficits affecting the extremities.” AR 1599. Plaintiff does not 10 argue that the ALJ misrepresented the cited physical examinations. “If a treating or examining 11 doctor’s opinion is contradicted by another’s opinion, an ALJ may only reject it by providing 12 specific and legitimate reasons that are supported by substantial evidence.” Bayliss v. Barnhart, — 13 — 427 F.3d 1211, 1216 (9th Cir. 2005). Here, the ALJ cited to physical examinations contradicting 14 Dr. Crichlow’s opinion and thus demonstrated that Dr. Crichlow’s opinion was “inconsistent with 15 the other substantial evidence” in the record. 16 2. Nurse Practitioner Wale Adeniji 17 NP Adeniji is a treating provider and a specialist in psychiatry. AR 2592. In addition to 18 the deference given to treating providers, explained above, the ALJ must “give more weight to the 19 medical opinion of a specialist about medical issues related to his or her area of specialty than to 20 the medical opinion of a source who is not a specialist.” 20 C.F.R. § 404.1527 (c)(5). The ALJ 21 gave “little weight” to NP Adeniji’s opinions that Plaintiff has extreme mental limitations, would 22 miss four or more days of work per month due to her impairments and/or treatment, and would 23 remain off task more than 30 percent of the time. AR 1596. The ALJ gave the sole reason that 24 “[t]he conclusions [we]re at odds with the record, which shows that claimant [had] already been 25 working at the substantial gainful activity for several months when the assessment was generated.” — 26 — Id. This is insufficient, because, as explained supra, the record showed that even though Plaintiff 27 was employed, she was not performing adequately in that employment. Moreover, the ALJ 1 opinion. Popa v. Berryhill, 872 F.3d 901, 906 (9th Cir. 2017) (finding ALJ erred when “no 2 medical evidence in the record contradict[ed] [doctor's] opinion”); Montijo v. Sec’y of Health and 3 Hum. Servs., 729 F.2d 599, 602 (9th Cir. 1984) (reversing and remanding because “[t]he 4 administrative law judge made no finding that the doctors lacked credibility or qualifications”); 5 Attmore v. Colvin, 827 F.3d 872, 877 (9th Cir. 2016) (“The ALJ [i]s not permitted to ‘cherry pick’ 6 from . . . mixed results to support a denial of benefits.” (quoting Scott v. Astrue, 647 F.3d 734 , 740 7 (7th Cir. 2011))). This is error. 8 3. Dr. Kirsch 9 For the same reasons, the ALJ erred in assigning “little weight” to the opinion of Dr. 10 Kirsch, who diagnosed Plaintiff with bipolar disorder, PTSD, and substance use disorder. AR 11 1595. Dr. Kirsch also opined that Plaintiff was markedly limited in the ability to: maintain 12 attention and concentration, respond appropriately to changes in a routine work setting and deal 13 with normal work stressors, perform at a consistent pace without an unreasonable number and 14 length of rest periods, get along and work with others, interact appropriately with the general 15 public, accept instruction and respond appropriately to criticism from supervisors, complete a 16 normal workday and workweek without interruption from psychological symptoms, and maintain 17 regular attendance and punctuality. Id. Dr. Kirsch further concluded that if Plaintiff obtained 18 sobriety, her mental health symptoms would more than likely continue indefinitely. Id. 19 The ALJ gave little weight to these opinions, stating that they were “generated by a 20 contract doctor to the representative’s organization who routinely provides opinions that are 21 outliers in terms of severity of mental impairments,” and moreover that “the opinion is 22 inconsistent with the record, which illustrates improved clinical findings and the ability [to] 23 sustain full-time work as a supervisor once the claimant became sober of drugs and alcohol.” Id. 24 But again, the ALJ overlooked Plaintiff’s uneven performance in that job. When properly taken 25 into account, there is no inconsistency between the record and Dr. Kirsch’s opinions that Plaintiff 26 would struggle to perform adequately at work. This constitutes another instance of error. 27 4. Non-Examining State Agency Consultants 1 Ipakchi, and Zukowsky, for the sole reason that their opinions were “consistent with the record.” 2 AR 1596, 1598. This nonspecific statement is an insufficient reason to credit non-examining 3 consultants over the treating and examining providers whose opinions the ALJ considered—all of 4 whom found multiple marked or extreme impairments. Bayliss v. Barnhart, 427 F.3d 1211 , 1216 5 (9th Cir. 2005) (“If a treating or examining doctor’s opinion is contradicted by another’s opinion, 6 an ALJ may only reject it by providing specific and legitimate reasons that are supported by 7 substantial evidence.”). This, again, constitutes error. 8 C. Medical Severity Findings 9 “At step two, the ALJ decides whether the claimant's impairment or combination of 10 impairments is ‘severe,’ § 404.1520(a)(4)(ii), meaning that it significantly limits the claimant’s 11 ‘physical or mental ability to do basic work activities,’ § 404.1522(a).” Ford v. Saul, 950 F.3d 12 1141, 1148 (9th Cir. 2020). An ALJ should find an impairment “not severe” only if the medical 13 evidence clearly establishes that the impairment has no more than a minimal effect on the 14 individual’s ability to work. Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005). 15 The ALJ found that Plaintiff has several severe impairments, including polysubstance 16 abuse, depressive disorder versus bipolar disorder, PTSD, anxiety disorder, obesity, anemia, 17 ulcers, and gastroesophageal reflux disease. AR 1589. Plaintiff challenges the ALJ’s 18 determination that her rheumatoid arthritis was not severe, and the Court agrees with Plaintiff. 19 There is evidence in the record that Plaintiff rated her RA a “10/10 in terms of pain.” AR 4982. A 20 rheumatology specialist, Dr. Michael Thomashow, observed swelling and pain in Plaintiff’s hands, 21 elbows, and back. Id. The ALJ’s conclusion that there were no “functional limitations in 22 connection with” her RA, AR 1590, confuses Step 2’s de minimis standard with later steps, which 23 require the ALJ to assess the effects of the impairments on Plaintiff’s ability to work. The ALJ’s 24 failure to find Plaintiff’s RA was severe was in error. 25 D. Materiality of Substance Use 26 “If an ALJ determines that a claimant is disabled based on all their medically determinable 27 impairments, one of which is drug addiction and alcoholism (DAA), the ALJ must determine 1 To do so, the ALJ conducts a second five-step sequential analysis to determine whether the 2 claimant would still be disabled if they stopped using drugs or alcohol. SSR 13-2p(a).” A.M. v. 3 O'Malley, No. 23-CV-04889-NC, 2025 WL 304461 , at *2 (N.D. Cal. Jan. 27, 2025). “DAA is 4 material ‘if the claimant's other impairment(s) would improve to the point that the claimant would 5 not be disabled in the absence of DAA.’ SSR 13-2p ¶ 5(f)(iii). DAA is not material ‘if the 6 claimant's other impairment(s) would not improve to the point that the claimant would not be 7 disabled in the absence of DAA.’ SSR 13-2p ¶ 5(f)(iii). The ALJ must deny the claim if DAA is 8 material. SSR 13-2p ¶ 5(f)(iii).” Id. 9 To find that DAA is material when a claimant has co-occurring mental disorders, the ALJ 10 “must have evidence in the case record that establishes that a claimant with a co-occurring mental 11 disorder(s) would not be disabled in the absence of DAA.” SSR 13-2p ¶ 7(b). The ALJ cannot 12 rely only “on medical expertise and the nature of a claimant’s mental disorder,” or seek “medical 13 opinions that project the nature, severity, and functional effects if the claimant were to stop using 14 drugs or alcohol.” SSR 13-2p ¶ 7(b) & n.19. 15 The ALJ’s determination that DAA was material ignores key evidence from Plaintiff’s 16 treating providers. NP Adeniji stated in June 2022 that Plaintiff’s “mental health [symptoms] have 17 not improved with her sobriety. Her mental health [symptoms] are longstanding and persistent.” 18 AR 2594. Dr. Kirsch further concluded that if Plaintiff obtained sobriety, her mental health 19 symptoms would more than likely continue indefinitely. AR 1595. Here, again, the ALJ erred by 20 impermissibly crediting non-treating consultants like Dr. Hopper over Plaintiff’s treating 21 providers. 22 E. Medical Equivalence 23 The ALJ also erred by summarily concluding that the “paragraph C” criteria were not 24 satisfied. The ALJ stated only that “the record does not reflect a medically documented history of 25 the existence of a mental disorder over a period of at least 2 years,” AR 1593, without providing 26 any specific reasons for this Court to evaluate. Contrary to the ALJ’s conclusion, the testimony of 27 Plaintiff’s treating providers shows evidence of a long-term, debilitating mental disorder. See, 1 F. RFC 2 Before proceeding to step four, an ALJ must determine the claimant’s residual functional 3 capacity (RFC). 20 C.F.R. §§ 404.1520 (e), 416.920(e). The RFC denotes what an individual can 4 do in a work setting, despite mental or physical limitations caused by impairments or related 5 symptoms. Id. at §§ 404.1545, 416.945. In assessing an individual’s RFC, the ALJ must consider 6 all the claimant’s medically determinable impairments, including non-severe impairments. Id. 7 Because the ALJ assigned little weight to the opinions of the treating providers—all of 8 whom assessed multiple marked impairments—and discounted the testimony of the Plaintiff that 9 her work performance has been unsatisfactory, the ALJ also failed to make an RFC finding based 10 on substantial evidence. 11 G. Remand 12 Where “additional proceedings can remedy defects in the original administrative 13 proceeding, a social security case should be remanded.” Garrison, 759 F.3d at 1019 (quoting 14 Lewin v. Schweiker, 654 F.2d 631, 635 (9th Cir. 1981)). A court may remand to the ALJ with 15 instructions to calculate and award benefits where: “(1) the ALJ has failed to provide legally 16 sufficient reasons for rejecting such evidence, (2) there are no outstanding issues that must be 17 resolved before a determination of disability can be made, and (3) it is clear from the record that 18 the ALJ would be required to find the claimant disabled were such evidence credited.” Harman v. 19 Apfel, 211 F.3d 1172, 1178 (9th Cir. 2000) (quoting Smolen v. Chater, 80 F.3d 1273, 1292 (9th 20 Cir. 1996)). “An automatic award of benefits in a disability benefits case is a rare and 21 prophylactic exception to the well-established ordinary remand rule.” Leon v. Berryhill, 880 F.3d 22 1041, 1044 (9th Cir. 2017). 23 This case meets the requirements for remand for an award of benefits. The record is fully 24 developed and, for the reasons stated above, the ALJ committed multiple errors in finding that 25 Plaintiff is not disabled. The ALJ failed to provide legally sufficient reasons to discredit the 26 opinions of several treating providers who opinions, if credited, would require a disability finding. 27 Furthermore, the “exceptional facts” of this case “counsel strongly in favor of remanding 1 2017) (quoting Terry v. Sullivan, 903 F.2d 1273, 1280 (9th Cir. 1990)). Plaintiff first applied for 2 || benefits more than eight years ago and the ALJ already has wrongfully denied her claim twice 3 now. “[FJurther delays at this point would be unduly burdensome.” Jd. (quoting Terry, 903 F.2d at 4 1280); see also Smolen v. Chater, 80 F.3d 1273, 1292 (9th Cir. 1996) (remanding for 5 determination of benefits where the claimant had “already waited over seven years for her 6 || disability determination”). The Court thus remands with instructions to the ALJ for the 7 calculation and award of benefits. 8 CONCLUSION 9 For the foregoing reasons, Plaintiff's motion for reversal and remand is granted. The 10 || Court hereby remands this case for an immediate calculation and payment of benefits. 11 IT IS SO ORDERED. 12 Dated: September 11, 2025 . . JON S. TIGA 14 nited States District Judge 2 16 — 18 — — 19 — — 20 — — 21 — — 22 — — 23 — — 24 — — 25 — — 26 — — 27 — — 28 —