Howard v. Berryhill

— 1 — — 2 — — 3 — 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA — 6 — 7 WYNETTE HOWARD, Case No. 3:18-cv-02570-JD 8 Plaintiff, ORDER RE SUMMARY JUDGMENT v. — 9 — Re: Dkt. Nos. 14, 17 — 10 — ANDREW SAUL,1 Defendant. — 11 — — 12 — 13 Plaintiff Howard challenges the decision of a Social Security Administration (“SSA”) 14 administrative law judge (“ALJ”) denying her claims for Social Security disability insurance 15 (“SSDI”) under Title II, and supplemental security income (“SSI”) under Title XVI, of the Social 16 Security Act. The parties filed cross-motions for summary judgment. Dkt. Nos. 14, 17. Howard 17 also filed a reply brief in opposition to defendant’s cross-motion and in support of her motion for 18 summary judgment. Dkt. No. 20. Howard’s motion is granted in part, and denied in part. 19 Defendant Saul’s motion is also granted in part, and denied in part. The case is remanded to the 20 ALJ for the calculation and award of benefits. 21 BACKGROUND 22 On February 11, 1999, Howard suffered a ruptured brain aneurysm, subarachnoid 23 hemorrhage (stroke), and heart attack. Administrative Record (“AR”) 25, 903-06. In a decision 24 dated November 6, 2013, an ALJ (“November 2013 ALJ”) granted Howard SSDI and SSI benefits 25 for a closed period from December 10, 2010, through July 21, 2013, because of the disabling 26 complications of her stroke -- slowed reasoning, inability to maintain concentration, and — 27 — 1 blackouts. AR 24-25. He concluded Howard was no longer under a disability as of July 22, 2013, 2 when she returned to work in accounts payable for the Oakland police. AR 27, 124, 377. 3 Howard was fired from that position in March 2014 and has not worked since. AR 39. 4 She filed the application for SSDI benefits at issue here on January 15, 2015 and claimed a period 5 of disability beginning on December 10, 2010 -- the same date as her original application. She 6 filed her SSI application on March 8, 2015, also claiming a period of disability beginning on 7 December 10, 2010. In the decision under direct review here, and dated September 18, 2017, a 8 different ALJ (“September 2017 ALJ”) declined to reopen the previous determination granting 9 benefits from December 10, 2010, to July 21, 2013; found that Howard had engaged in substantial 10 gainful activity from July 2013 through March 2014; and concluded that her severe aneurysm11 related impairments did not make her disabled under the Social Security Act. AR 36-37, 39, 47. 12 DISCUSSION 13 I. JURISDICTION 14 In both her SSDI and SSI applications, Howard claims that she has been disabled since 15 December 10, 2010. The Court lacks jurisdiction to review the entirety of Howard’s claims. 16 The Court cannot review the November 2013 ALJ’s determination that Howard was 17 disabled between December 10, 2010, and July 21, 2013. The September 2017 ALJ denied 18 Howard’s request to reopen that decision. AR 36, 39. The Supreme Court held in Califano v. 19 Sanders, 430 U.S. 99, 109 (1977), that “denial of a petition to reopen . . . does not afford subject20 matter jurisdiction” in the absence of a constitutional challenge, which is not presented here. The 21 September 2017 ALJ pointedly noted that his decision did “not disturb the prior finding of a 22 closed period of disability from December 10, 2010, through July 21, 2013.” AR 37. 23 But the Court may review the November 2013 ALJ’s determination that Howard was not 24 disabled between July 22, 2013, and November 6, 2013, because the September 2017 ALJ 25 reopened de facto that determination. Our circuit has recognized “an exception to the general rule 26 that courts may not review the Commissioner’s decision not to reopen, where the Commissioner 27 considers ‘on the merits’ the issue of the claimant’s disability during the already adjudicated 1 period is subject to judicial review.” Lester v. Chater, 81 F.3d 821 , 827 n.3 (9th Cir. 1995) 2 (citations omitted). The September 2017 ALJ decided “after careful consideration of all the 3 evidence” that Howard had “not been under a disability within the meaning of the Social Security 4 Act from July 22, 2013.” AR 37. This is sufficient consideration “on the merits” to constitute a 5 de facto reopening and subject the prior decision to judicial review. Lewis v. Apfel, 236 F.3d 503 , 6 510 (9th Cir. 2001) (citation omitted). 7 There is no dispute the Court may review the September 2017 determination denying 8 Howard disabled status after November 6, 2013. 42 U.S.C. § 405 (g). 9 II. LEGAL STANDARDS 10 Judicial review will disturb an ALJ’s decision to deny benefits only “if it is not supported 11 by substantial evidence or it is based on legal error” that is not harmless. Burch v. Barnhart, 400 12 F.3d 676, 679 (9th Cir. 2005) (internal quotation and citation omitted). An error is harmless 13 “when it was clear from the record that an ALJ’s error was inconsequential to the ultimate 14 nondisability determination.” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006) 15 (internal quotation and citation omitted). 16 If the error is not harmless, the Court may “revers[e] the decision of the Commissioner . . . 17 without remanding the cause for a rehearing,” 42 U.S.C. § 405 (g), under what has come to be 18 known as the “credit-as-true” rule, Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090 , 1100 19 (9th Cir. 2014). The Court may “remand to an ALJ with instructions to calculate and award 20 benefits” when: “(1) the record has been fully developed and further administrative proceedings 21 would serve no useful purpose; (2) the ALJ has failed to provide legally sufficient reasons for 22 rejecting evidence, whether claimant testimony or medical opinion; and (3) if the improperly 23 discredited evidence were credited as true, the ALJ would be required to find the claimant disabled 24 on remand.” Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014). 25 III. THE DENIALS OF HOWARD’S SSDI CLAIM BETWEEN JULY 22, 2013, AND MARCH 24, 2014, WERE BASED ON LEGAL ERROR. — 26 — 27 Howard is entitled to SSDI benefits for the period between July 22, 2013 and March 24, 1 work on July 22, 2013.” AR 27, 39. This was legal error because the Social Security Act 2 guarantees an SSDI beneficiary a 9-month “period of trial work [that] shall be deemed not to have 3 been rendered . . . in determining whether his disability has ceased during such period.” 42 U.S.C. 4 § 422(c)(2), (4). SSA regulations promise claimants that “we will not consider those services as 5 showing that your disability has ended until you performed services in at least 9 months.” 20 6 C.F.R. § 404.1592 ; see also Lingenfelter v. Astrue, 504 F.3d 1028, 1039 (9th Cir. 2007) 7 (“Specifically, when a recipient works for less than nine months, the Administration does not 8 consider the trial work period as evidence that the individual is no longer disabled.”). 9 Howard began a trial work period with the Oakland police on July 22, 2013. She was fired 10 8 months later. AR 39, 47, 355, 571. She has not engaged in substantial gainful activity since that 11 time. AR 39, 372. The SSA is prohibited from considering the services she performed from July 12 22, 2013, to March 24, 2014, as evidence she was no longer disabled under SSDI, but this is 13 precisely what happened. The November 2013 ALJ erred when it determined Howard’s disability 14 period concluded because “the claimant returned to work on July 22, 2013.” AR 27. 15 The September 2017 ALJ erred when it concluded that the 8-month period Howard worked 16 did not constitute a trial work period. First, despite the formal denial of the request to reopen the 17 November 2013 decision, the September 2017 ALJ de facto reopened it under our circuit’s Lester 18 and Lewis line of cases. Second, the September 2017 ALJ incorrectly cited 20 C.F.R. 19 § 416.974(c) in its analysis. That regulation’s 6-month limit on unsuccessful work attempts is 20 only applicable to Howard’s SSI claim, not her SSDI claim. The ALJ’s application of an incorrect 21 standard is legal error. Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1014-15 (9th Cir. 2003). 22 IV. HOWARD’S SSI CLAIM WAS PROPERLY DENIED BETWEEN JULY 22, 2013, AND MARCH 24, 2014. — 23 — 24 Howard was not entitled to SSI benefits while she worked from July 22, 2013, through 25 March 24, 2014. Under the regulations applicable to Title XVI of the Social Security Act, an 26 unsuccessful work attempt cannot exceed 6 months. 20 C.F.R. § 416.974 (c)(4). Howard worked 27 at least 8 months at wage rates above substantial gainful activity before she was laid off. AR 39, V. THE SEPTEMBER 2017 CREDIBILITY DETERMINATION WAS BASED ON 1 LEGAL ERROR. 2 The September 2017 ALJ erred in discounting Howard’s credibility. Because he found 3 “objective medical evidence of an underlying impairment which could reasonably be expected to 4 produce the pain or other symptoms alleged,” but was presented with “no evidence of 5 malingering,” he could “reject the claimant’s testimony about the severity of her symptoms only 6 by offering specific, clear and convincing reasons for doing so.” Lingenfelter, 504 F.3d at 1036 . 7 Howard’s testimony that she suffers significant cognitive impairments was consistent with 8 her other statements and the medical evidence. See Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 9 1998) (rejecting ALJ credibility determination because what claimant “described to her doctors, 10 on disability forms, and at her hearing were fully consistent with” disability). Howard testified 11 that her slow mental processing led to her firing by the Oakland police. AR 126-28. She 12 discussed how her aneurysm had made it more difficult for her to retrieve information, so she 13 would effectively forget things. AR 128. At the disability hearing, for example, she forgot her 14 last employment date by a whole year and had to be corrected by counsel. AR 129. Howard also 15 testified that she experiences blackouts once or twice per month, during which she cannot 16 remember what she was doing or forgets why she has left her home. AR 136-37. 17 The “ALJ must identify what testimony is not credible and what evidence undermines the 18 claimant’s complaints,” and “general findings are insufficient.” Lester, 81 F.3d at 834 . Here, the 19 ALJ concluded, “after careful consideration of the evidence, I find that the claimant’s medically 20 determinable impairments could reasonably be expected to cause the alleged symptoms; however, 21 the claimant’s statements concerning the intensity, persistence and limiting effects of these 22 symptoms are not entirely consistent with the medical evidence and other evidence in the record 23 for the reasons explained in this decision.” AR 44. This conclusory and rather generic comment 24 by no means satisfies the ALJ’s burden of stating “specific, clear and convincing reasons” for an 25 adverse credibility determination. Vasquez v. Astrue, 572 F.3d 586, 591-92 (9th Cir. 2009). 26 The September 2017 ALJ also discounted Howard’s account of her symptoms, finding 27 “they are simply not supported by ongoing treatment records.” AR 45. He misapplied our 1 follow a prescribed treatment . . . as evidence that the claimant is not credible in describing his or 2 her symptoms.” Orn v. Astrue, 495 F.3d 625, 637 (9th Cir. 2007). 3 Medical records demonstrate that Howard’s doctors do not believe there is a treatment or 4 cure for her current impairments. She continues to suffer from cognitive deficiencies like slower 5 processing and poor memory, and her medical records consistently describe the “subarachnoid 6 hemorrhage” as an “active” or “chronic” problem. See, e.g., AR 61, 507, 542. Her doctors, 7 however, uniformly seek only to mitigate future consequences. One of Howard’s treating 8 physicians, Dr. Miriam Dunham, noted it was “reassuring that [Howard] seems to be stable and 9 chronic from prev[ious] SAH [subarachnoid hemorrhage],” but also asked Howard “to let us know 10 if Symptoms [sic] changing or worsening.” AR 844. Another, Dr. Lindsey Pierce, gave Howard 11 the same basic advice -- to monitor symptoms, but only seek treatment if they worsen. AR 766. 12 Consulting physician Dr. Emily Cohen relayed Howard’s report that she had been “monitored by 13 neurologist [sic] for a little while after the stroke, but since her symptoms did not progress, she no 14 longer needed to be followed by a specialist.” AR 1028. 15 According to the record, Howard’s symptoms have not progressed, so her doctors’ lack of 16 treatment for current impairments suggests they do not believe any treatment would solve her 17 chronic cognitive deficiencies. Consequently, “in the case of impairments where the stimulus to 18 seek relief is less pronounced, and where medical treatment is very unlikely to be successful,” it 19 “makes little sense” for an ALJ to find a lack of treatment probative of credibility. Orn, 495 F.3d 20 at 638 . Howard’s failure to seek treatment or to follow a prescribed treatment is not a legally 21 sufficient reason to doubt her testimony. 22 The September 2017 ALJ’s discount of Howard’s testimony was legal error. These were 23 the only two grounds that he relied on in his adverse credibility determination. The Court may 24 “review only the reasons provided by the ALJ in the disability determination and may not affirm 25 the ALJ on a ground upon which he did not rely.” Id. at 630 (citation omitted). 26 VI. THE CASE IS REMANDED TO THE ALJ FOR AN AWARD OF BENEFITS. 27 The requirements of the credit-as-true rule are met, and the case is remanded to the ALJ for 1 First, “the record has been fully developed and further administrative proceedings would 2 serve no useful purpose.” Garrison, 759 F.3d at 1020 . The administrative record consists of 3 documents over nearly 2 decades. AR 890-908. It contains 5 medical consultation exams, which 4 address both Howard’s alleged physical and mental ailments. Moreover, nearly identical factual 5 scenarios -- age of plaintiff, time between application for benefits and judicial decision, burden of 6 delay, and likelihood of success -- have been found to constitute “exceptional facts” justifying the 7 exercise of “discretion to order payment of benefits.” Terry v. Sullivan, 903 F.2d 1273, 1280 (9th 8 Cir. 1990); see also Trevizo v. Berryhill, 871 F.3d 664, 683 (9th Cir. 2017) (same). Further, “all 9 essential factual issues have been resolved.” Treichler, 775 F.3d at 1101 . The parties merely 10 dispute how the Social Security Act and its regulations apply. 11 Second, “the ALJ has failed to provide legally sufficient reasons for rejecting evidence” of 12 Howard’s testimony, as discussed in the previous section. Garrison, 759 F.3d at 1020 . 13 Third, “if the improperly discredited evidence were credited as true, the ALJ would be 14 required to find the claimant disabled on remand.” Id. When properly credited claimant 15 testimony, along with medical evidence, described certain impairments, “and a VE [vocational 16 expert] explicitly testified that a person with the impairments described . . . could not work,” the 17 credit-as-true rule is in effect. Id. at 1022 . 18 In the hearing before the September 2017 ALJ, the VE testified that 2 impairments would 19 make a person unemployable. When Howard’s testimony is credited as true, she is 2-for-2. 20 To start, the VE explained that those who regularly must be reminded “how to perform the 21 job” will “run into difficulties, as far as, employability under the domain of regional and national 22 work.” AR 147, 149. Howard explained to the ALJ that she had been fired from her job with the 23 Oakland police because she had not been able to learn how to do her job fast enough. AR 126. 24 Her testimony was consistent with statements she made to her treating physician, Dr. Dunham, 25 whom Howard told she had been fired because of brain dysfunction -- specifically slow processing 26 and bad memory. AR 571. At the hearing, Howard testified to what appeared to be multiple 27 extended conversations with co-workers and supervisors in which someone had to explain to 1 him “question employability.” AR 149. Her testimony is also consistent with memory problems 2 documented by the consulting examiners, Dr. Aparna Dixit, AR 879; Dr. Lesleigh Franklin, AR 3 885; and Dr. Laura Catlin, AR 1037; and Howard’s own self-reporting, AR 128, 848. 4 In addition, the VE opined that “any level of two [missed days] a month or more [is] not 5 || employable.” AR 152. Howard testified that her “mind will go black and [she] will forget what 6 [she] was doing .. . once or twice a month.” AR 136-37. These blackouts seriously put into 7 question whether Howard would be capable of missing less than 2 days a month of work. 8 “Because the vocational expert testified that [Howard’s] limitations would eliminate any 9 || potential employment, further proceedings are unnecessary.” Lingenfelter, 504 F.3d at 1041 . The 10 case is remanded to the ALJ for an award of benefits. See Moisa v. Barnhart, 367 F.3d 882 , 887 11 (9th Cir. 2004) (collecting cases that remanded for “award of benefits where testimony by 12 || claimant and VE, properly credited, established disability”’). 13 CONCLUSION 14 Plaintiff Howard’s motion for summary judgment, Dkt. No. 14, is granted in part, and 3 15 || denied in part. Defendant Saul’s cross-motion, Dkt. No. 17, is granted in part, and denied in part. a 16 Howard is entitled to SSDI benefits from July 22, 2013, to the present. She is also entitled 3 17 SSI benefits from March 8, 2015, to the present. See Wellington v. Berryhill, 878 F.3d 867 , 872 18 (9th Cir. 2017) (Claimant “cannot receive [SSI] benefits for any period before her application 19 || date.” (citations omitted)). The Court does not have jurisdiction to review the previous ALJ’s 20 award of benefits for the closed period between December 10, 2010, and July 21, 2013. 21 The case is remanded to the ALJ for the calculation and award of benefits. 22 IT IS SO ORDERED. 23 Dated: November 25, 2019 — 24 — — 25 — JAME NATO 26 United tates District Judge — 27 — — 28 —