Alisa Ann Acuna v. Commissioner of Social Security

• Court: District Court, C.D. California
• Decided: April 15, 2020
• Docket: 2:19-cv-01066
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 ALISA ANN A.,1 ) Case No. CV 19-1066-JPR 11 ) Plaintiff, ) 12 ) MEMORANDUM DECISION AND ORDER v. ) REVERSING COMMISSIONER 13 ) ANDREW SAUL, Commissioner ) 14 of Social Security, ) ) 15 Defendant. ) ) 16 ) 17 18 I. PROCEEDINGS 19 Plaintiff seeks review of the Commissioner’s final decision 20 denying her application for Social Security supplemental security 21 income benefits (“SSI”). The parties consented to the 22 jurisdiction of the undersigned under 28 U.S.C. § 636(c). The 23 matter is before the Court on the parties’ Joint Submission, 24 filed December 4, 2019, which the Court has taken under 25 26 1 Plaintiff’s name is partially redacted in line with 27 Federal Rule of Civil Procedure 5.2(c)(2)(B) and the recommendation of the Committee on Court Administration and Case 28 Management of the Judicial Conference of the United States. 1 1 submission without oral argument. For the reasons stated below, 2 the Commissioner’s decision is reversed and this matter is 3 remanded for further proceedings. 4 II. BACKGROUND 5 Plaintiff was born in 1972. (Administrative Record (“AR”) 6 221.) She completed high school in juvenile hall. (AR 243, 7 363.) She never worked regularly. (AR 257-60.) On September 8 30, 2015, she applied for SSI, alleging that she had been unable 9 to work since January 1, 1986, because of bipolar disorder, 10 depression, and schizophrenia.2 (AR 115, 242.) After 11 Plaintiff’s application and reconsideration of it were denied (AR 12 145-46, 154-55), she requested a hearing before an Administrative 13 Law Judge (AR 161-63). A hearing was held on August 25, 2017, at 14 which Plaintiff, represented by counsel, testified, as did a 15 vocational expert. (AR 32-89.) In a written decision issued 16 December 8, 2017, the ALJ determined that she was not disabled. 17 (AR 12-25.) On December 11, 2018, the Appeals Council denied her 18 request for review. (AR 1-3.) This action followed. 19 III. STANDARD OF REVIEW 20 Under 42 U.S.C. § 405(g), a district court may review the 21 Commissioner’s decision to deny benefits. The ALJ’s findings and 22 decision should be upheld if they are free of legal error and 23 supported by substantial evidence based on the record as a whole. 24 2 Plaintiff applied for Social Security benefits in 2012 25 (see AR 93); her claim was denied by an Administrative Law Judge 26 on February 27, 2014. (AR 90-103.) The ALJ here found that Plaintiff had rebutted the presumption of continuing 27 nondisability, see Chavez v. Bowen, 844 F.2d 691, 693 (9th Cir. 1988), because the regulations “for evaluating mental disorders” 28 had changed since the prior decision. (AR 18.) 2 1 See Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra v. 2 Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial evidence 3 means such evidence as a reasonable person might accept as 4 adequate to support a conclusion. Richardson, 402 U.S. at 401; 5 Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). It 6 is “more than a mere scintilla but less than a preponderance.” 7 Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec. 8 Admin., 466 F.3d 880, 882 (9th Cir. 2006)). “[W]hatever the 9 meaning of ‘substantial’ in other contexts, the threshold for 10 such evidentiary sufficiency is not high.” Biestek v. Berryhill, 11 139 S. Ct. 1148, 1154 (2019). To determine whether substantial 12 evidence supports a finding, the reviewing court “must review the 13 administrative record as a whole, weighing both the evidence that 14 supports and the evidence that detracts from the Commissioner’s 15 conclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 16 1998). “If the evidence can reasonably support either affirming 17 or reversing,” the reviewing court “may not substitute its 18 judgment” for the Commissioner’s. Id. at 720-21. 19 IV. THE EVALUATION OF DISABILITY 20 People are “disabled” for purposes of receiving Social 21 Security benefits if they are unable to engage in any substantial 22 gainful activity owing to a physical or mental impairment that is 23 expected to result in death or has lasted, or is expected to 24 last, for a continuous period of at least 12 months. 42 U.S.C. 25 § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 26 1992). 27 A. The Five-Step Evaluation Process 28 An ALJ follows a five-step sequential evaluation process to 3 1 assess whether someone is disabled. 20 C.F.R. § 416.920(a)(4); 2 Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995) (as 3 amended Apr. 9, 1996). In the first step, the Commissioner must 4 determine whether the claimant is currently engaged in 5 substantial gainful activity; if so, the claimant is not disabled 6 and the claim must be denied. § 416.920(a)(4)(i). 7 If the claimant is not engaged in substantial gainful 8 activity, the second step requires the Commissioner to determine 9 whether the claimant has a “severe” impairment or combination of 10 impairments significantly limiting her ability to do basic work 11 activities; if not, a finding of not disabled is made and the 12 claim must be denied. § 416.920(a)(4)(ii) & (c). 13 If the claimant has a “severe” impairment or combination of 14 impairments, the third step requires the Commissioner to 15 determine whether the impairment or combination of impairments 16 meets or equals an impairment in the Listing of Impairments 17 (“Listing”) set forth at 20 C.F.R., part 404, subpart P, appendix 18 1; if so, disability is conclusively presumed and benefits are 19 awarded. § 416.920(a)(4)(iii) & (d). 20 If the claimant’s impairment or combination of impairments 21 does not meet or equal one in the Listing, the fourth step 22 requires the Commissioner to determine whether the claimant has 23 sufficient residual functional capacity (“RFC”)3 to perform her 24 25 3 RFC is what a claimant can do despite existing exertional 26 and nonexertional limitations. § 416.945(a)(1); see Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). The 27 Commissioner assesses the claimant’s RFC between steps three and four. Laborin v. Berryhill, 867 F.3d 1151, 1153 (9th Cir. 2017) 28 (continued...) 4 1 past work; if so, she is not disabled and the claim must be 2 denied. § 416.920(a)(4)(iv). The claimant has the burden of 3 proving she is unable to perform past relevant work. Drouin, 966 4 F.2d at 1257. If the claimant meets that burden, a prima facie 5 case of disability is established. Id. 6 If that happens or if the claimant has no past relevant 7 work, the Commissioner bears the burden of establishing that the 8 claimant is not disabled because she can perform other 9 substantial gainful work available in the national economy, the 10 fifth and final step of the sequential analysis. 11 §§ 416.920(a)(4)(v), 416.960(b). 12 B. The ALJ’s Application of the Five-Step Process 13 At step one, the ALJ found that Plaintiff had not engaged in 14 substantial gainful activity since September 30, 2015, the 15 application date. (AR 18.) At step two, he determined that she 16 had the severe impairments of “bipolar affective disorder; 17 personality disorder; [and] mood disorder.” (Id.) 18 At step three, he concluded that Plaintiff’s impairments did 19 not meet or equal any of the impairments in the Listing. (AR 19- 20 20.) At step four, he found that Plaintiff had the RFC to 21 perform 22 a full range of work at all exertional levels but with 23 the following nonexertional limitations. She: is able to 24 perform work consisting of simple, 1-2 step tasks at 25 reasoning level 1; can have no public contact; and can 26 27 3 (...continued) 28 (citing § 416.920(a)(4)). 5 1 have occasional contact with supervisors and coworkers. 2 (AR 20.) Because Plaintiff had no past relevant work, the ALJ 3 continued to step five. (AR 23.) 4 At that step, considering Plaintiff’s age, education, work 5 experience, RFC, and the VE’s testimony, he found that Plaintiff 6 could perform several jobs existing in significant numbers in the 7 national economy. (AR 23-24.) Accordingly, he found her not 8 disabled. (Id.) 9 V. DISCUSSION4 10 Plaintiff contends that the ALJ erred in assessing her RFC 11 and in evaluating her subjective symptom statements. (J. Stip. 12 at 3-6, 8-12, 16-17.) For the reasons discussed below, reversal 13 is necessary. 14 A. The ALJ Erred in Assessing Plaintiff’s RFC 15 Plaintiff argues that the ALJ improperly relied on the 16 opinions of consulting psychiatrist Stephen Simonian and state- 17 agency psychological consultant Ralph Mertens, “cherry-pick[ing]” 18 from their opinions without explanation to reach a conclusion 19 that had “no basis in the record.” (Id. at 3-4.) She also 20 contends that the ALJ failed to include her limitations in 21 22 4 In Lucia v. SEC, 138 S. Ct. 2044, 2055 (2018), the Supreme Court held that ALJs of the Securities and Exchange Commission 23 are “Officers of the United States” and thus subject to the Appointments Clause. To the extent Lucia applies to Social 24 Security ALJs, Plaintiff has forfeited the issue by failing to raise it during her administrative proceedings. (See AR 32-52, 25 319-19); Meanel v. Apfel, 172 F.3d 1111, 1115 (9th Cir. 1999) (as 26 amended) (plaintiff forfeits issues not raised before ALJ or Appeals Council); see also Kabani & Co. v. SEC, 733 F. App’x 918, 27 919 (9th Cir. 2018) (rejecting Lucia challenge because plaintiff did not raise it during administrative proceedings), cert. 28 denied, 139 S. Ct. 2013 (2019). 6 1 maintaining concentration, persistence, and pace in his 2 hypothetical to the VE. (Id. at 4.) 3 As explained below, the ALJ failed to explain why, despite 4 giving “great weight” to Dr. Simonian’s opinion, he did not 5 incorporate the doctor’s finding of marked limitation in social 6 interaction with coworkers and supervisors into Plaintiff’s RFC 7 but credited that same finding as to the public by barring her 8 from any contact with them. Nor did the ALJ reconcile the 9 inconsistencies between Dr. Simonian’s opinion and that of Dr. 10 Jacob Tendler,5 both of which he gave “great weight.” 11 1. Relevant background 12 a. Plaintiff’s treating doctors 13 Plaintiff was treated on and off from September 12, 2011, 14 through May 21, 2014, at a mental-health clinic. (AR 320-54.) 15 Her initial assessment describes her chief complaints as 16 “insomnia, anxiety, . . . irritab[ility], cutting from age 12, 17 burning self with cigarettes, moody, angry, sad, frustrated, 18 needy, hates to be alone, no purpose — does not know what she is 19 here for, borderline . . . self-[destructive], but now wants to 20 try and take medication.” (AR 320.) She reported having 21 antisocial personality disorder and said she did not like to take 22 medication. (Id.) As for psychiatric history, she claimed that 23 on Halloween 2010, she cut herself with a knife because she was 24 angry. (Id.) She also reported a suicide attempt in 1992, in 25 26 5 Dr. Tendler appears to specialize in psychiatry because his electronic signature includes a specialty code of 37. (See 27 AR 134); Soc. Sec. Admin., Program Operations Manual System (POMS) DI 24501.004, (May 5, 2015), https://secure.ssa.gov/ 28 apps10/poms.nsf/lnx/0424501004. 7 1 which she took over-the-counter sleeping pills, was hospitalized 2 for three days, and jumped out a second-floor window to escape. 3 (Id.) As for psychosocial history, Plaintiff reported that her 4 mother’s boyfriend molested her at age nine, and she was raped at 5 age 14 and kidnapped. (AR 322.) She was in and out of juvenile 6 hall from age 14 to 18 and was in custody several times as an 7 adult. (Id.) She was on probation at the time of the 2011 8 assessment. (Id.) 9 Evaluators found impaired intellectual functioning and 10 judgment and a below-average fund of knowledge. (AR 323.) Her 11 insight was severely impaired and her mood was irritable. (Id.) 12 Her memory was unimpaired and her concentration intact. (Id.) 13 As for behavioral disturbances, she was described as aggressive, 14 uncooperative, demanding, demeaning, belligerent, violent, 15 destructive, self-destructive, manipulative, and antisocial, and 16 she had poor impulse control and “excessive/inappropriate display 17 of anger.” (Id.) The examiner added the notation, “antisocial 18 and dangerous.” (Id.) Her principal diagnosis was antisocial 19 and borderline personality disorders, with a secondary diagnosis 20 of mood disorder not specified and malingering. (AR 324.) The 21 examiner found her primary problems to be educational and 22 occupational and gave her a Global Assessment of Functioning 23 score of 60.6 (Id.) He noted that she “likely wants SSI.” (AR 24 25 6 GAF scores assess a person’s overall psychological 26 functioning on a scale of 1 to 100. See Diagnostic and Statistical Manual of Mental Disorders 32 (revised 4th ed. 2000). 27 A GAF score between 51 to 60 describes “moderate symptoms” or any moderate difficulty in social, occupational, or school 28 (continued...) 8 1 323.) 2 The few treatment notes in the record begin on October 31, 3 2012, and are largely illegible but appear to say that Plaintiff 4 had stopped coming to appointments. (See AR 354.) She reported 5 past use of crack cocaine but said she had been sober for three 6 years as of October 2012. (Id.) The notes indicate that she 7 needed medication and therapy, could not sleep, and was hearing 8 voices. (Id.) She missed her November appointment, and her next 9 visit was January 2, 2013. (AR 351-52.) She had been prescribed 10 Lithium7 and Abilify,8 but poor medication compliance was noted. 11 12 6 (...continued) functioning. Garrison v. Colvin, 759 F.3d 995, 1023 n.4 (9th 13 Cir. 2014). The Commissioner has declined to endorse GAF scores, 14 Revised Medical Criteria for Evaluating Mental Disorders and Traumatic Brain Injury, 65 Fed. Reg. 50764-65 (Aug. 21, 2000) 15 (codified at 20 C.F.R. pt. 404) (GAF score “does not have a direct correlation to the severity requirements in our mental 16 disorders listings”), and the most recent edition of the DSM “dropped” the GAF scale, citing its lack of conceptual clarity 17 and questionable psychological measurements in practice, DSM-V at 18 16 (5th ed. 2013). Because GAF scores continue to be included in claimant medical records, however, the Social Security 19 Administration has clarified that they are “medical opinion evidence under 20 C.F.R. § . . . 416.927(a)(2) if they come from 20 an acceptable medical source.” Wellington v. Berryhill, 878 F.3d 867, 871 n.1 (9th Cir. 2017) (citation omitted). 21 22 7 “Lithium is used as a mood stabilizer, and is indicated for the treatment of manic episodes and maintenance of bipolar 23 disorder.” See Lithium carbonate, U.S. Nat’l Libr. of Med., https://pubchem.ncbi.nlm.nih.gov/compound/Lithium-carbonate (last 24 visited Apr. 13, 2020). 25 8 Abilify is the brand name for aripiprazole and “is 26 indicated for manic and mixed episodes associated with bipolar I disorder, irritability associated with autism spectrum disorder, 27 . . . and as an adjunctive treatment of major depressive disorder.” See Aripiprazole, U.S. Nat’l Libr. of Med., 28 (continued...) 9 1 (AR 351.) On January 30, 2013, Plaintiff complained of seeing 2 flashes and hearing dead people talking to her, as well as mood 3 swings and depression. (AR 350.) Because she said Abilify made 4 her hyperactive and restless, it was discontinued and she was 5 prescribed Risperidone.9 (Id.) She missed appointments on 6 November 14, 2012, March 20, June 26, and September 11, 2013, and 7 February 5, 2014. (See AR 325, 344-51.) 8 In progress notes from September 2013 to May 2014, she 9 reported goals of taking her medications, staying sober, and 10 using her coping skills. (AR 325-32.) She felt disbelieved by 11 her psychiatrist about medication compliance. (AR 329.) As to 12 cutting herself, she was “very aware of the intention to treat 13 herself with care and that not-cutting will express that 14 intention.” (Id.) During this period, she made “some progress” 15 in employing coping skills and appeared to be “sharing more and 16 allowing deeper discussion of barriers and coping.” (AR 329-32.) 17 b. Examiners and reviewers 18 Dr. Simonian performed a complete psychiatric evaluation of 19 Plaintiff on March 3, 2016. (AR 355-60.) She had not seen a 20 psychiatrist for five months and was not taking medication 21 because of “insurance problems.” (AR 356.) She denied a history 22 23 8 (...continued) https://pubchem.ncbi.nlm.nih.gov/compound/60795#section= 24 Drug-Indication (last visited Apr. 13, 2020). 25 9 “Risperidone is indicated for the treatment of 26 schizophrenia, acute manic or mixed episodes associated with Bipolar I Disorder, and irritability associated with autistic 27 disorder.” See Risperidone, U.S. Nat’l Libr. of Med., https://pubchem.ncbi.nlm.nih.gov/compound/5073#section= 28 Drug-and-Medication-Information (last visited Apr. 13, 2020). 10 1 of drug or alcohol abuse but had been psychiatrically 2 hospitalized several times. (Id.) Dr. Simonian found Plaintiff 3 “alert and oriented,” with normal but rather fast speech. (AR 4 357.) Her mood was labile, described as normal but at times 5 irritable. (Id.) Her arms showed evidence of cutting. (Id.) 6 Dr. Simonian diagnosed her with bipolar affective disorder 7 in partial remission, personality disorder not otherwise 8 specified with borderline personality features, and moderate 9 psychological stressors. (AR 358.) He gave her a GAF score of 10 50.10 (Id.) He assessed her ability to understand simple one- 11 or two-step job instructions as “not limited.” (AR 359.) He 12 found her “moderately limited” in her ability to follow detailed 13 and complex instructions, maintain concentration and attention 14 for a period of time, adapt to the stresses common to a normal 15 work environment, maintain regular attendance in the workplace 16 and perform work activities on a consistent basis, and perform 17 work activities without special or additional supervision. (Id.) 18 He determined that her ability to “relate and interact with 19 supervisors, co-workers, and the public is markedly limited.” 20 (Id.) 21 Dr. Mertens reviewed the record on May 12, 2016. (AR 119- 22 27.) He assessed her statements as “partially consistent” with 23 the file evidence and concluded that “[w]hile the evidence 24 25 10 A GAF score of 41 to 50 indicates “[s]erious symptoms 26 (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, 27 or school functioning (e.g., no friends, unable to keep a job).” Diagnostic and Statistical Manual of Mental Disorders 32 (revised 28 4th ed. 2000). 11 1 supports some functional limitations, it does not support 2 complete inability to work.” (AR 122.) 3 Dr. Mertens weighed Dr. Simonian’s opinion and found that it 4 was “grossly consistent” but “overestimate[d] marked limitation 5 dealing [with] others.” (Id.) He explained that she “clearly 6 demonstrates distress, but interacts reasonably well during 7 documented contacts”; he recommended limited social contact but 8 found no “marked disab[ility]” in that area. (Id.) 9 He noted moderate limitation in most areas, including her 10 ability to understand and remember detailed instructions, carry 11 out detailed instructions, maintain attention and concentration 12 for extended periods, work in coordination with or in proximity 13 to others without being distracted by them, interact 14 appropriately with the general public, accept instructions and 15 respond appropriately to criticism from supervisors, and get 16 along with coworkers or peers without distracting them or 17 exhibiting behavioral extremes. (AR 123-24.) Dr. Mertens noted 18 that an undated function report reflected that she was “personal 19 care independent,” prepared simple meals, and completed household 20 chores. (AR 124; see AR 248-56.) She “walk[ed], use[d] public 21 transportation, shop[ped], and manage[d] her own finances 22 unassisted.” (AR 124.) She did not like to spend time with 23 others and required reminders for personal hygiene, medication 24 management, and appointments. (Id.) She reported problems with 25 memory, task completion, concentration, understanding, following 26 instructions, and getting along with others. (Id.) She could 27 follow spoken or written instructions, but her stress management 28 was poor and she coped by cutting herself. (Id.) According to 12 1 Dr. Mertens: 2 [A] preponderance of the evidence contained in [the] 3 file suggests that [Plaintiff] is capable to meet the 4 basic mental and emotional demands of competitive, 5 renumerative, unskilled work, including the abilities to 6 do the following on a sustained basis in a work setting 7 with low social contact: 8 A. Understand, remember, carry out at least 9 simple instructions. 10 B. Make simple work related decisions and abide 11 by a schedule. 12 C. Respond appropriately to supervisors, 13 coworkers, and social interactions in a work 14 setting with reduced social contact. 15 D. Deal with at least minor changes in work 16 routines. 17 (AR 125.) 18 Dr. Tendler reviewed Plaintiff’s file on July 25, 2016, and 19 found medically determinable mental impairments of bipolar and 20 personality disorder but “less than significant limitations.” 21 (AR 134; see AR 133-41.) He found Dr. Simonian’s opinion “more 22 limiting than warranted based on objective evidence in exam and 23 reported functioning” and gave it “other than great weight.” (AR 24 134.) He concluded that Plaintiff’s impairments could reasonably 25 be expected to produce some of the symptoms alleged, but her 26 statements concerning the intensity, persistence, and limiting 27 effects of those symptoms were only “partially consistent.” 28 (Id.) 13 1 He opined that she should not be expected to memorize or 2 understand detailed instructions but could “understand, remember, 3 and carry out a two-step command involving simple instructions.” 4 (AR 137.) He explained that she could concentrate and maintain 5 persistence on simple tasks and would be able to have “extended 6 periods of concentration and attention greater than 2-4 hour 7 segments.” (AR 138.) She could “maintain attendance and 8 complete a normal workweek and maintain pace with occasional 9 absences.” (Id.) As to social interaction, he found that she 10 was “[s]ocially available for superficial interactions,” could 11 “tolerate the minimum social demands of simple-task settings,” 12 and was “[a]ble to relate to coworkers [and] supervisors but 13 would have difficulty relating to the public on a regular basis.” 14 (Id.) Finally, as to adaptation limitations, he explained that 15 she could “maintain an acceptable level of attendance” and 16 “adequately adapt to changes of routine, and to simple 17 situations, not calling for rapid or extensive changes in work 18 tasks or procedures.” (AR 139.) 19 2. Applicable law 20 Three types of physicians may offer opinions in Social 21 Security cases: those who directly treated the plaintiff, those 22 who examined but did not treat the plaintiff, and those who did 23 neither. Lester, 81 F.3d at 830. A treating physician’s opinion 24 is generally entitled to more weight than an examining 25 physician’s, and an examining physician’s opinion is generally 26 27 28 14 1 entitled to more weight than a nonexamining physician’s.11 Id. 2 When a treating or examining physician’s opinion is not 3 contradicted by other evidence in the record, it may be rejected 4 only for a “clear and convincing” reason. See Carmickle v. 5 Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008) 6 (quoting Lester, 81 F.3d at 830-31). When a treating or 7 examining physician’s opinion is contradicted, the ALJ must 8 provide only a “specific and legitimate reason” for discounting 9 it. Id. The weight given an examining physician’s opinion, 10 moreover, depends on whether it is consistent with the record and 11 accompanied by adequate explanation, among other things. 12 § 416.927(c)(3)-(6). Furthermore, “[t]he ALJ need not accept the 13 opinion of any physician . . . if that opinion is brief, 14 conclusory, and inadequately supported by clinical findings.” 15 Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002); accord 16 Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th 17 Cir. 2004). 18 The Court must consider the ALJ’s decision in the context of 19 “the entire record as a whole,” and if the “‘evidence is 20 21 11 For claims filed on or after March 27, 2017, the rules in 22 § 416.920c (not § 416.927) apply. See § 416.920c (evaluating opinion evidence for claims filed on or after Mar. 27, 2017). 23 The new regulations provide that the Social Security Administration “will not defer or give any specific evidentiary 24 weight, including controlling weight, to any medical opinion(s) or prior administrative medical finding(s), including those from 25 your medical sources.” § 416.920c(a). Thus, the new regulations 26 eliminate the term “treating source” as well as what is customarily known as the treating-source or treating-physician 27 rule. See § 416.920c. Plaintiff’s claim was filed before March 27, 2017, and the Court therefore analyzes it under the treating- 28 source rule in § 416.927. 15 1 susceptible to more than one rational interpretation,’ the ALJ’s 2 decision should be upheld.” Ryan v. Comm’r of Soc. Sec., 528 3 F.3d 1194, 1198 (9th Cir. 2008) (citation omitted). 4 3. Analysis 5 The ALJ gave “great weight” to the opinions of Drs. Simonian 6 and Tendler and “moderate weight” to Dr. Mertens’s. (AR 21-23.) 7 An ALJ is tasked with “resolv[ing] conflicts in the testimony” 8 and “ambiguities in the record.” Treichler v. Comm’r of Soc. 9 Sec. Admin., 775 F.3d 1090, 1098 (9th Cir. 2014). Nevertheless, 10 the ALJ here gave no explanation for apparently crediting only 11 part of Dr. Simonian’s opinion and did not reconcile the 12 differences between the two opinions to which he gave “great 13 weight.” See Nguyen v. Chater, 100 F.3d 1462, 1464 (9th Cir. 14 1996) (ALJ erred when he did not explicitly reject examining 15 psychologist’s opinion or set forth specific, legitimate reasons 16 for crediting nonexamining psychologist’s opinion over his). 17 a. The ALJ erred in assessing Dr. Simonian’s 18 opinion 19 The ALJ attributed “great weight” to the opinions of Drs. 20 Simonian and Tendler, finding them “supported with explanation” 21 and “both internally consistent and consistent with the record as 22 a whole.” (AR 22, 23.) As to Plaintiff’s ability to relate to 23 and interact with supervisors, coworkers, and the public, Dr. 24 Simonian opined that she was “markedly limited” (AR 359), and Dr. 25 Tendler believed that she was “[s]ocially available for 26 superficial interactions,” could “tolerate the minimum social 27 demands of simple-task settings,” and was “[a]ble to relate to 28 coworkers [and] supervisors but would have difficulty relating to 16 1 the public on a regular basis” (AR 138). 2 Dr. Tendler, who reviewed the record on reconsideration, 3 found Dr. Simonian’s psychiatric report “more limiting than 4 warranted based on objective evidence in exam and reported 5 functioning or [activities of daily living].” (AR 134.) Thus, 6 Dr. Tendler gave Dr. Simonian’s report “other than great weight” 7 and concluded that “[w]hile the evidence supports some functional 8 limitations, it does not support complete inability to work.” 9 (AR 134, 136.) 10 The ALJ appears to have adopted Dr. Tendler’s opinion over 11 Dr. Simonian’s on this issue because he limited Plaintiff to no 12 interaction with the public but occasional contact with coworkers 13 and supervisors. (AR 20.) But he did not expressly resolve this 14 obvious conflict, nor did he provide a “specific and legitimate 15 reason” for implicitly discounting Dr. Simonian’s finding of 16 “marked limitation” as to Plaintiff’s interaction with coworkers 17 and supervisors. See Carmickle, 533 F.3d at 1164 (ALJ must give 18 “specific and legitimate reason” for discounting contradicted 19 examining physician’s opinion). This was error: 20 [When] an ALJ does not explicitly reject a medical 21 opinion or set forth specific, legitimate reasons for 22 crediting one medical opinion over another, he errs. In 23 other words, an ALJ errs when he rejects a medical 24 opinion . . . while doing nothing more than ignoring it. 25 Garrison v. Colvin, 759 F.3d 995, 1012-13 (9th Cir. 2014) 26 (citation omitted). 27 The ALJ’s failure to resolve the conflict was not harmless. 28 The RFC did not take into account Dr. Simonian’s finding that 17 1 Plaintiff was essentially unable to interact with coworkers and 2 supervisors. See Denby v. Colvin, No. 1:15-CV-00191-SB, 2016 WL 3 917313, at *4, *13 (D. Ore. Mar. 8, 2016) (noting that crediting 4 doctor’s opinion of “marked limitations” in interacting with 5 supervisors, public, and coworkers and in responding 6 appropriately to usual work situations would make claimant unable 7 to work). The ALJ provided no explanation for ignoring Dr. 8 Simonian’s “marked limitation” finding as to coworkers and 9 supervisors even though he gave the opinion “great weight.” See 10 Davis v. Colvin, No. 3:14-cv-00271-PK., 2015 WL 2218386, at *8, 11 *10 (D. Ore. May 9, 2015) (remanding because ALJ failed to 12 provide “detailed explanation” of implicit rejection of 13 limitations in doctors’ opinions despite giving them substantial 14 weight); see also Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 15 1988) (remanding when ALJ failed to provide “detailed, reasoned 16 and legitimate rationales” for disregarding physician’s finding). 17 Indeed, the vocational expert testified that if Plaintiff could 18 not interact with “supervisors, coworkers or the public,” she 19 couldn’t work at all. (AR 52.) Accordingly, the ALJ’s error was 20 not harmless and reversal is necessary. 21 b. The VE hypothetical was likely proper 22 Citing almost exclusively law from the Seventh Circuit, 23 Plaintiff contends that the ALJ failed to ask the vocational 24 expert about her difficulties in maintaining concentration, 25 persistence, and pace. (J. Stip. at 4-5.) Because the ALJ’s 26 hypothetical included the functional limitations in his RFC 27 finding and specified “1-2 step tasks” at “reasoning level 1,” it 28 properly accounted for Plaintiff’s limitations in that area. (AR 18 1 20; see AR 48-51); see Thomas, 278 F.3d at 956 (when hypothetical 2 includes all of claimant’s credible functional limitations, ALJ 3 is generally entitled to rely on VE’s response). 4 At step five, the Commissioner has the burden of showing the 5 existence of work in the national economy that a plaintiff can 6 perform, taking into account her age, education, and vocational 7 background. See Pinto v. Massanari, 249 F.3d 840, 844 (9th Cir. 8 2001). To meet this burden, the ALJ must “identify specific jobs 9 existing in substantial numbers in the national economy that 10 claimant can perform despite her identified limitations.” 11 Johnson v. Shalala, 60 F.3d 1428, 1432 (9th Cir. 1995). The ALJ 12 first assesses the claimant’s RFC, then considers potential 13 occupations the claimant may be able to perform, usually relying 14 on the Dictionary of Occupational Titles or a VE’s testimony. 15 See Gutierrez v. Colvin, 844 F.3d 804, 806-07 (9th Cir. 2016) 16 (ALJ may rely on VE to provide testimony about jobs applicant can 17 perform despite her limitations, using DOT to guide analysis). 18 An “ALJ’s assessment of a claimant adequately captures 19 restrictions related to concentration, persistence, or pace where 20 the assessment is consistent with restrictions identified in the 21 medical testimony.” Stubbs-Danielson v. Astrue, 539 F.3d 1169, 22 1174 (9th Cir. 2008) (citations omitted). Here, the ALJ posed to 23 the VE a hypothetical individual of Plaintiff’s age and education 24 who was limited to one- or two-step tasks at reasoning level one, 25 with no public contact but occasional contact with supervisors 26 and coworkers. (AR 48-51.) This hypothetical was consistent 27 with her RFC, which included “perform[ing] work consisting of 28 simple 1-2 step tasks at reasoning level 1; can have no public 19 1 contact; and can have occasional contact with supervisors and 2 coworkers.” (AR 20.) 3 Drs. Tendler and Mertens found Plaintiff “not significantly 4 limited” in the ability to carry out short and simple 5 instructions; perform activities within a schedule, maintain 6 regular attendance, and be punctual within customary tolerance; 7 sustain an ordinary routine without special supervision; and make 8 simple work-related decisions. (See AR 123, 137-38.) Both 9 doctors found her “moderately limited” in her ability to carry 10 out detailed instructions, maintain attention and concentration 11 for extended periods, work in coordination with or in proximity 12 to others without being distracted by them, complete a normal 13 workday and workweek without interruptions from psychologically 14 based symptoms, and perform at a consistent pace without an 15 unreasonable number or length of rest periods. (Id.) Dr. 16 Simonian also found her “moderately limited” in her ability to do 17 detailed and complex instructions, maintain concentration and 18 attention for a period of time, adapt to the stresses common to a 19 normal work environment, maintain regular attendance in the 20 workplace and perform work activities on a consistent basis, and 21 perform work activities without special or additional 22 supervision. (AR 359.) He found her ability to remember, 23 understand, and carry out simple one- or two-step instructions 24 “not limited.” (Id.) 25 The ALJ properly translated these limitations, including 26 concerning concentration, persistence, and pace, into a concrete 27 restriction to “simple 1-2 step tasks at reasoning level 1.” (AR 28 20); see also Stubbs-Danielson, 539 F.3d at 1173–74 (ALJ’s 20 1 limitation to “simple, routine, repetitive” work sufficiently 2 accommodated medical-opinion evidence that claimant had 3 “moderate” limitation in pace and “other mental limitations 4 regarding attention, concentration, and adaption”); Phillips v. 5 Colvin, 61 F. Supp. 3d 925, 940 (N.D. Cal. 2014) (ALJ properly 6 assessed medical evidence in determining that despite moderate 7 difficulties in concentration, persistence, or pace, claimant 8 could perform “simple routine 1-2 step unskilled tasks”). 9 Again citing only Seventh Circuit law, Plaintiff also 10 complains that the ALJ “failed to provide any analysis” of 11 “allowable time off-task in a competitive job.” (J. Stip. at 5.) 12 The ALJ asked the VE whether someone who would be absent from 13 work an average of more than two days a month because of a 14 psychiatric condition or “off task at least 15% of the workday” 15 would be precluded from work, and the VE responded that those 16 were “beyond acceptable thresholds.” (AR 51.) But the ALJ did 17 not include any such finding in the RFC. (See AR 20.) Nor were 18 such findings supported by the medical evidence. Drs. Simonian, 19 Tendler, and Mertens found Plaintiff “moderately limited” in her 20 ability to “maintain regular attendance in the workplace” or 21 complete a normal “workday and workweek without interruptions 22 from psychologically based symptoms.” (AR 123, 137-38, 359.) To 23 the extent it is unclear whether those findings translate to more 24 than two absences a month or being off task 15 percent or more of 25 the time, on remand the ALJ can reconsider the issue. See Ajani 26 v. Comm’r of Soc. Sec., No. 18-cv-02226-SI, 2019 WL 2106232, at 27 *15 (N.D. Cal. May 14, 2019) (finding that claimant would be 28 barred from any job when he would miss three days monthly in 21 1 winter because of asthma and arthritis and two days monthly rest 2 of year). 3 B. Remand for Further Proceedings Is Appropriate 4 When, as here, an ALJ errs, the Court generally has 5 discretion to remand for further proceedings. See Harman v. 6 Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000). Under the 7 “credit-as-true” rule, a court may direct an immediate award of 8 benefits. See id. at 1179 (“[T]he decision of whether to remand 9 for further proceedings turns upon the likely utility of such 10 proceedings.”); see also Garrison, 759 F.3d at 1019-20. When the 11 ALJ’s findings are so “insufficient” that the Court cannot 12 determine whether the rejected testimony should be credited as 13 true, however, the Court has “some flexibility” in applying the 14 credit-as-true rule. Connett v. Barnhart, 340 F.3d 871, 876 (9th 15 Cir. 2003); see also Garrison, 759 F.3d at 1020 (noting that 16 Connett cautioned that credit-as-true rule may not be dispositive 17 in all cases). This flexibility should be exercised “when the 18 record as a whole creates serious doubt as to whether the 19 claimant is, in fact, disabled within the meaning of the Social 20 Security Act.” Garrison, 759 F.3d at 1021. 21 Here, under Connett, remand for further proceedings is 22 appropriate. As discussed, the ALJ failed to fully explain his 23 decision, and further administrative proceedings will allow him 24 to do so. Moreover, as discussed, other doctors found Plaintiff 25 not as limited as Dr. Simonian did. On remand, the ALJ should 26 resolve the conflict in the record concerning Plaintiff’s ability 27 to interact with coworkers and supervisors. Because reversal is 28 warranted on this ground, the Court does not decide whether 22 Plaintiff's subjective symptom statements were consistent with the record. That should be reassessed on remand once the 3 |} conflict in the doctors’ opinions is resolved. CONCLUSION 5 Consistent with the foregoing and under sentence four of 42 6]}U.S.Cc. § 405(g),/* IT IS ORDERED that judgment be entered 7 || REVERSING the Commissioner’s decision, GRANTING Plaintiff's 8 || request for remand, and REMANDING this action for further 9 || proceedings consistent with this Memorandum Decision. 10 11 || DATED: April 15, 2020 fo Arenhtatt- JE ROSENBLUTH 12 U.S. Magistrate Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 | -— 26 12 That sentence provides: “The [district] court shall have power to enter, upon the pleadings and transcript of the record, 27 || a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the 28 || cause for a rehearing.” 23