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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

TOM BENNETT,

Plaintiff,

v.

NANCY A. BERRYHILL,

Defendant.

Case No. 4:17-cv-00259-KAW 

ORDER DENYING PLAINTIFF'S 

MOTION FOR SUMMARY JUDGMENT 

AND GRANTING DEFENDANT'S 

CROSS-MOTION FOR SUMMARY 

JUDGMENT

Re: Dkt. Nos. 14, 18

Plaintiff Tom Bennett seeks judicial review, pursuant to 42 U.S.C. § 405(g), of the 

Commissioner’s final decision, and the remand of this case for further proceedings. 

Pending before the Court is Plaintiff’s motion for summary judgment and Defendant’s 

cross-motion for summary judgment. Having considered the papers filed by the parties, and for 

the reasons set forth below, the Court DENIES Plaintiff’s motion for summary judgment, and 

GRANTS Defendant’s cross-motion for summary judgment. 

I. BACKGROUND

On August 31, 2012, Plaintiff Tom Bennett filed an application for Title XVI 

Supplemental Security Income (“SSI”) Benefits, alleging a disability onset date of June 1, 2012. 

Administrative Record (“AR”) 16, 57, 162. Plaintiff’s claim was initially denied on Deember 18, 

2012, and Plaintiff’s Request for Reconsideration was denied on November 8, 2013. AR 16, 79-

83, 88-92. A hearing was held before Administrative Law Judge Nancy Lisewski on March 9, 

2015. AR 16-23. In his pre-hearing brief, Plaintiff wished to amend his alleged disability onset 

date to December 31, 2008. AR 16, 300. SSI benefits, however, are not payable prior to the month 

following the month in which the application was filed, so the ALJ considered whether Plaintiff 

was under a disability within the meaning of the Social Security Act from the date the application 
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was filed. AR 16 (citing 20 C.F.R. § 416.335).

Plaintiff is forty-six years old and lives with his sister and one minor son. AR 33, 58. 

Plaintiff has not been engaged in substantial gainful activity since August 31, 2012. AR 18. 

Plaintiff alleges disability due to post-traumatic stress disorder, anxiety and panic attacks, an 

esophagus problem, and lower back pain. AR 19, 213. At the hearing, Plaintiff testified that he 

stopped working in 2003 due to drug addiction issues, but that he has been sober since October 31, 

2005. See AR 42-43. 

Between 2010 and 2015, Plaintiff was treated at Kaiser for various physical conditions. 

During these physical examinations, Plaintiff was noted to be psychiatrically “normal” and alert 

and oriented as to person, place, and time. AR 331, 342, 353, 361, 363, 369, 372, 375, 377, 388, 

390, 392, 399, 403, 407, 411, 415, 489, 504, 530, 558, 583, 589, 614, 629.

Plaintiff attended weekly therapy sessions with Ellen S. Ayers, L.C.S.W. beginning on 

November 6, 2010. AR 485. In December 2012, January 2013, and March 2015, respectively, 

Ms. Ayers authored three letters concerning Plaintiff mental functioning. AR 483, 485, 651-52. 

Ms. Ayers provided that Plaintiff was diagnosed with post-traumatic stress disorder and had 

frequent flashbacks, panic attacks, sleep disturbance, detached feelings, intense distress, and 

extreme hypervigilance. See ids. She also said that Plaintiff had “lower functioning in the 

workplace and relationships,” struggled with concentration, and had difficulty in social 

interaction resulting in isolation. See ids. At the hearing, Ms. Ayers testified that Plaintiff’s 

ability to concentrate and persist at work-like things was “significantly impaired,” and that his 

pain and anxiety caused him to be housebound and hyper-vigilant. AR 48-50. 

Between January 2012 and November 2012, Plaintiff received mental health services at 

Pathways to Wellness after Ms. Ayers referred him for a medical evaluation after he was 

diagnosed with esophagitis (an allergic irritation/inflammation of the esophagus). AR 457-70, 

652. Plaintiff subjectively reported having anxiety because he thought he was “going to die” 

every time he eats, but admittedly was not taking any anti-anxiety medication and was found to 

be psychiatrically stable without medication. AR 460-62, 464. On mental status examinations, 

Xing-Xing Luo, M.D. described Plaintiff as mildly anxious; alert and oriented as to person, 
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place, and time; cooperative and calm; having normal speech, euthymic mood, and appropriate 

affect; not having hallucinations; and displaying linear thought processes, intact memory, and 

fair attention, concentration, judgment and insight. AR 458-62, 467. Dr. Luo diagnosed Plaintiff 

with an adjustment disorder with mixed emotion, which was described as “mild,” prescribed 

Hydroxyzine (an antihistamine used as a sedative to treat anxiety and tension) and assigned 

Plaintiff a Global Assessment of Functioning (“GAF”) of 55 on his initial visit. AR 468. After 

the initial visit, Plaintiff was consistently assigned a GAF of 70, which is indicative of mild 

symptoms. AR 458, 460, 462, 468. Dr. Luo noted that Plaintiff declined to take the 

Hydroxyzine, which was prescribed to treat his anxiety. AR 468.

In December 2012, State agency psychologist Andres Kerns, Ph.D., reviewed Plaintiff’s 

records in connection with his SSI disability application. AR 58-66. Dr. Kerns assessed 

Plaintiff with mild limitations in daily activities, social functioning, and concentration, 

persistence or pace, and opined that Plaintiff did not have a severe mental impairment. AR 64. 

In so finding, Dr. Kerns noted that Plaintiff was psychiatrically stable without medication, had 

good mental status examinations, and that Dr. Luo, who psychiatrically examined Plaintiff, 

assessed mild limitations. Id. Dr. Kerns further noted that Plaintiff had “parenting 

responsibilities,” engaged in driving, shopping and managing his own finances, socialized and 

had no problems getting along with others. Id.

In November 2013, Patrice Solomon, Ph.D, a State agency psychologist, reviewed 

Plaintiff’s updated records after Plaintiff requested reconsideration of his SSI application. AR 

67-74. Dr. Solomon concurred with Dr. Kerns’s opinion of non-severity. AR 72. In addition to 

concurring with the records review and interpretation that Dr. Kerns provided, Dr. Solomon’s 

report noted that Plaintiff had ceased treatment at Pathways to Wellness on November 26, 2012. 

Id. She noted that the March 8, 2013 mental status examination performed at Kaiser had been 

within normal limits, showed that Plaintiff was alert and oriented as to person, place, and time,

and that he had normal speech, appropriate affect, and linear thought process. Id. Dr. Solomon 

further noted that Plaintiff had been sober since 2005 and was caring for his five-year-old son.

Id. She also noted that there was some evidence of anxiety related to swallowing difficulties,
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but that Plaintiff did not require anti-anxiety medication. AR 72, 74. Dr. Solomon further 

reasoned that Ms. Ayers’s opinion was based on Plaintiff’s prior history of drug and alcohol 

abuse, but that Plaintiff had “substantially recovered from this period of life.” AR 72. Dr. 

Solomon assessed Plaintiff with mild limitations in daily activities, social functioning, and 

concentration, persistence or pace, and determined that Plaintiff’s mental impairment was nonsevere. AR 74.

In a Function Report, dated November 18, 2012, Plaintiff reported that he was unable to 

focus, could not sleep, was in constant pain, was anxious, had nightmares, and was always in 

the hospital. AR 240-41. Plaintiff also stated that his daily activities included taking care of his 

young son and a family pet, preparing meals, and doing laundry and dishes. AR 241-42. He also 

shopped for food and clothes and managed his own finances. AR 243. At the hearing, Plaintiff 

testified that continued to care for his nine-year-old son, and was able to attend teacher 

conferences and back-to-school days. AR 33, 35-37, 43. 

In an April 28, 2015 decision, the ALJ found that Plaintiff was not disabled. AR 16-23. 

On June 24, 2015, Plaintiff requested that the Appeals Council review the ALJ’s decision. AR 

7-12. The ALJ’s decision became the final decision of the Commissioner when the Appeals 

Council denied review on December 6, 2016. AR 1-6. Plaintiff now seeks judicial review of 

the Commissioner’s decision pursuant to 42 U.S.C. § 405(g).

On June 9, 2017, Plaintiff filed his motion for summary judgment. (Pl.’s Mot., Dkt. No. 

14.). On August 7, 2017, Defendant filed its opposition and cross-motion for summary 

judgment. (Def.’s Opp’n, Dkt. No. 18.) Plaintiff did not file a reply, so the motions are fully 

briefed.

II. LEGAL STANDARD

A court may reverse the Commissioner’s denial of disability benefits only when the 

Commissioner's findings are 1) based on legal error or 2) are not supported by substantial 

evidence in the record as a whole. 42 U.S.C. § 405(g); Tackett v. Apfel, 180 F.3d 1094, 1097 

(9th Cir. 1999). Substantial evidence is “more than a mere scintilla but less than a 

preponderance”; it is “such relevant evidence as a reasonable mind might accept as adequate to 
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support a conclusion.” Id. at 1098; Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996). In 

determining whether the Commissioner's findings are supported by substantial evidence, the 

Court must consider the evidence as a whole, weighing both the evidence that supports and the 

evidence that detracts from the Commissioner's conclusion. Id. “Where evidence is susceptible 

to more than one rational interpretation, the ALJ's decision should be upheld.” Ryan v. Comm'r 

of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008).

Under Social Security Administration (“SSA”) regulations, disability claims are evaluated 

according to a five-step sequential evaluation. Reddick v. Chater, 157 F.3d 715, 721 (9th Cir. 

1998). At step one, the Commissioner determines whether a claimant is currently engaged in 

substantial gainful activity. Id. If so, the claimant is not disabled. 20 C.F.R. § 404.1520(b). At 

step two, the Commissioner determines whether the claimant has a “medically severe impairment 

or combination of impairments,” as defined in 20 C.F.R. § 404.1520(c). Reddick, 157 F.3d 715 at 

721. If the answer is no, the claimant is not disabled. Id. If the answer is yes, the Commissioner 

proceeds to step three, and determines whether the impairment meets or equals a listed impairment 

under 20 C.F.R. § 404, Subpart P, Appendix 1. 20 C.F.R. § 404.1520(d). If this requirement is 

met, the claimant is disabled. Reddick, 157 F.3d 715 at 721. 

If a claimant does not have a condition which meets or equals a listed impairment, the 

fourth step in the sequential evaluation process is to determine the claimant's residual functional 

capacity (“RFC”) or what work, if any, the claimant is capable of performing on a sustained basis, 

despite the claimant’s impairment or impairments. 20 C.F.R. § 404.1520(e). If the claimant can 

perform such work, he is not disabled. 20 C.F.R. § 404.1520(f). RFC is the application of a legal 

standard to the medical facts concerning the claimant's physical capacity. 20 C.F.R. § 404.1545(a). 

If the claimant meets the burden of establishing an inability to perform prior work, the 

Commissioner must show, at step five, that the claimant can perform other substantial gainful 

work that exists in the national economy. Reddick, 157 F.3d 715 at 721. The claimant bears the 

burden of proof in steps one through four. Bustamante v. Massanari, 262 F.3d 949, 953-954 (9th 

Cir. 2001). The burden shifts to the Commissioner in step five. Id. at 954. 
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III. THE ALJ’S DECISION

The ALJ found at step one that Plaintiff had not engaged in substantial gainful activity 

since August 31, 2012, the date of application. AR 18. At step two, the ALJ found that Plaintiff 

had the following determinable impairments: back pain related to lumbar degenerative disc 

disease, esophagitis, and anxiety. AR 18. The ALJ found, however, that Plaintiff does not have an 

impairment or combination of impairments that significantly limited his ability to perform basic 

work-related activities for 12 consecutive months, nor would he expect to, such that he does not 

have a severe impairment at step two. Id. Thus, Plaintiff is not disabled under the Social Security 

Act. AR 22.

IV. DISCUSSION

Plaintiff argues that the case should be remanded for further proceedings on the grounds 

that the ALJ erred at step two in finding that Plaintiff’s anxiety disorder was not severe. (Pl.’s 

Mot. at 5.) Specifically, Plaintiff argues that the ALJ erred in discounting the opinion of Ellen 

Ayers, L.C.S.W., who provided Plaintiff with weekly mental health treatment from November 6, 

2010 to the date of the hearing (Pl.’s Mot. at 3; AR 42, 48.) The Court notes that Plaintiff does not 

dispute the ALJ’s finding that his physical impairments were not severe nor does he challenge the 

ALJ’s analysis and weighing of the other medical evidence, including the medical opinions of the 

State agency doctors, who found that Plaintiff did not have a severe mental impairment. (See Pl.’s 

Mot. at 5; Def.’s Opp’n at 5.) Thus, the Court will only address whether the ALJ properly 

discounted Ms. Ayers’s opinion.

The opinions of treating medical sources may be rejected only for clear and convincing 

reasons if not contradicted by another doctor. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). 

Where the record contains conflicting medical evidence, the ALJ must make a credibility 

determination and resolve the conflict. Chaudhry v. Astrue, 688 F.3d 661, 671 (9th Cir. 2012) 

(quoting Benton v. Barnhart, 331 F.3d 1030, 1040 (9th Cir. 2003)). “The ALJ need not accept the 

opinion of any physician, including a treating physician, if that opinion is brief, conclusory, and 

inadequately supported by clinical findings.” Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 

1228 (9th Cir. 2009) (citations omitted).
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As an initial matter, Ms. Ayers, as a clinical social worker, is not qualified to diagnose

Plaintiff with PTSD, and her opinion is treated differently than treating medical sources. See 20 

C.F.R. § 416.913(a)(3). Under the Code of Federal Regulations, the opinions of therapists and 

counselors are considered “other sources.” 20 C.F.R. § 404.1513(d)(2), (3). Section 404.1513(d) 

provides that the SSA may “use evidence from other sources to show the severity of your 

impairment(s) and how it affects your ability to work.” Although these opinions are entitled to 

some weight regarding the severity, they cannot establish the existence of a medically 

determinable impairment. Huizar v. Comm'r of Soc. Sec., 428 F. App'x 678, 681 (9th Cir. 2011). 

The Ninth Circuit held that an ALJ may disregard the opinion of other sources if he gives 

“germane” reasons for doing so. Wake v. Commissioner of Social Sec., 461 Fed. Appx. 608, 610 

(9th Cir. 2011).

A. Whether the ALJ provided a germane reason for discounting Ms. Ayers’s 

opinion.

Plaintiff argues that the ALJ failed to give a germane reason to reject Ms. Ayers’s opinion. 

(Pl.’s Mot. at 5-6.) The Code of Federal Regulation does not require that the social worker’s 

opinion be substantiated by medical evidence. 20 C.F.R. § 416.913. While the C.F.R. prohibits a 

social worker’s opinion to establish the existence of impairment, it allows them to provide relevant 

information regarding the severity of the impairment. See id. Even so, an ALJ can discredit a 

social worker’s opinions if it is inconsistent with medical evidence. Bayliss v. Barnhart, 427 F.3d 

1211, 1218 (9th Cir. 2005). 

In opposition, Defendant contends that the germane reason the ALJ gave to discredit Ms. 

Ayers’s opinion was that it contradicted the opinion of Dr. Solomon, whose opinion was assigned 

the greatest weight. (Def.’s Opp’n at 5.) Dr. Solomon’s opinion relied heavily on the assessment 

and treatment notes from Pathways. AR 20, 72. The ALJ explained that she was assigning limited 

weight to Ms. Ayers’s opinion, because Ms. Ayers disagreed with the assessment at Pathways, but 

“submitted no clinical or treatment notes to corroborate her assessment,” and her diagnosis of 

PTSD “is not supported in the records from Pathways or Kaiser, although both indicate diagnoses 

of a more generalized anxiety disorder.” AR 20. Indeed, Ms. Ayers, without elaboration, opined 
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that the GAF scores assigned by Dr. Luo at Pathways “inaccurately reflect higher functioning than 

was present during this or any period during the 4 years I have treated him.” AR 652. Thus, if the 

only issue was the lack of corroborating evidence, the ALJ’s discounting would not have been a 

germane reason to discredit Ms. Ayers’s opinion. Instead, the ALJ noted that Ms. Ayers’s opinion 

that Plaintiff’s anxiety was severe, disagreed with the assessments performed at Pathways, where 

Plaintiff was assigned GAF scores from 55 (moderate) to 70 (mild). AR 20, 458. These scores, 

which were assigned while Plaintiff was attending weekly sessions with Ms. Ayers, indicate that 

Plaintiff was psychiatrically stable without medication during the time period that Ms. Ayers 

opined that he was severely disabled by his conditions. See AR 74, 458. In short, Ms. Ayers’s 

opinion was contradicted by the other medical opinions and evidence, and there were no treatment 

notes or any other evidence from any sources that corroborated the severe limitations that only she 

noted. See AR 20. The ALJ also noted that Ms. Ayers diagnosed Plaintiff with PTSD, while the 

medical professionals permitted to make such a diagnosis found that Plaintiff had a more 

generalized anxiety disorder, the impact of which was non-severe. AR 20. 

Moreover, even if Ms. Ayers was a treating physician, the ALJ’s finding that Ms. Ayers’s 

opinion was inconsistent with the overall treatment records was based on a reasonable 

interpretation of the record. See Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 

2008)(“‘Where evidence is susceptible to more than one rational interpretation,’ the ALJ's 

decision should be upheld.”); 20 C.F.R. § 416.927(d)(2) (The determination of whether an 

impairment or combination of impairments is severe at step two is reserved for the Commissioner, 

and one that is made after weighing the administrative record as a whole.)

Lastly, the ALJ found that Ms. Ayers’s “comments about [Plaintiff’s] functionality for the 

two years prior to the date she first saw him are pure speculation.” AR 20. Plaintiff argues that 

this should not be grounds for discounting Ms. Ayers’s opinion in light of four years of ongoing 

treatment. (Pl.’s Mot. at 6.) This argument is unavailing, particularly given that the medical 

records from the same time period indicate that Plaintiff did not require significant mental health 

treatment. (See Def.’s Mot. at 6 (citing AR 63-64, 72, 74). Dr. Solomon opined that the evidence 

from Ms. Ayers was likely more related to Plaintiff’s past history of drug use, and that he had 
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substantially recovered from that history. AR 74.

Accordingly, the ALJ provided germane reasons to assign limited weight to Ms. Ayers’s 

opinion, because it was not supported by any treatment notes or other substantial medical evidence 

in the record, and was contradicted by the medical opinion of Dr. Solomon, which was given the 

greatest weight, and the medical record as whole.

B. Whether the Agency was obligated to obtain Ms. Ayers’s clinical notes prior to 

discounting her opinion.

Plaintiff argues that the ALJ had an obligation to request Ms. Ayers’s clinical notes or 

records, and the failure to do so is not an adequate reason to reject her opinion. (Pl.’s Mot. at 6.) 

Plaintiff bears the burden of establishing disability by informing the agency about or submitting 

all known evidence pertaining to whether he is disabled. 20 C.F.R. § 416.912(a)(1); Meanel v. 

Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999), as amended on June 22, 1999 (A claimant “must 

present ‘complete and detailed objective medical reports of her condition from licensed medical 

professionals.’”). The agency need only develop a claimant’s complete medical history by making 

every reasonable effort to obtain a claimant’s medical records from his medical sources once they 

are identified by sending out an initial request, and one follow-up request. 20 C.F.R. § 

416.912(b)(1). 

In opposition, the Government argues that the agency fulfilled its regulatory obligation by 

twice requesting information from Ms. Ayers, specifically the “Objective Clinical Findings” 

category of information, which includes office notes and psychological tests. (Def.’s Opp’n at 8;

AR 480-81.) In response to these requests, Ms. Ayers only provided the December 2012, January 

2013, and March 2015 letters. AR 482-85, 651-52. The Government further contends that Plaintiff 

merely speculates that relevant clinical notes exist, and that he did not avail himself of multiple 

opportunities to provide the notes to the Appeals Council or in connection with the instant motion 

for summary judgment. (Def.’s Opp’n at 8.) This point is well taken, as there is no indication that 

such treatment notes exist.

Moreover, an ALJ’s duty to further develop the record “is triggered only when there is 

ambiguous evidence or when the record is inadequate to allow for proper evaluation of the 
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evidence.” Mayes v. Massanari, 276 F.3d 453, 459–60 (9th Cir. 2001) (citing Tonapetyan v. 

Halter, 242 F.3d 1144, 1150 (9th Cir. 2001)). The mere fact that Plaintiff disagrees with how the 

ALJ ultimately weighed Ms. Ayers’s opinion, in light of the other medical evidence, does not 

render the record inadequate or the evidence ambiguous. Thus, the Court finds that the ALJ was 

under no duty to further develop the record, as substantial evidence supported the decision that 

Plaintiff’s impairments were not severe at step two. Mayes, 276 F.3d at 460.

Accordingly, the ALJ’s failure to send additional notices to Ms. Ayers in an attempt to 

obtain her treatment notes or other medical evidence prior to discounting her opinion does not 

warrant remand for further proceedings.

V. CONCLUSION

For the reasons set forth above, Plaintiff’s motion for summary judgment is DENIED, 

Defendant’s cross-motion for summary judgment is GRANTED.

IT IS SO ORDERED.

Dated: March 22, 2018

__________________________________

KANDIS A. WESTMORE

United States Magistrate Judge