1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 DEMETTA BASS, 7 Case No. 18-cv-07053-DMR Plaintiff, 8 v. ORDER ON CROSS MOTIONS FOR 9 SUMMARY JUDGMENT NANCY A. BERRYHILL, 10 Re: Dkt. Nos. 16, 23 Defendant. 11
12 Plaintiff Demetta Bass moves for summary judgment to reverse the Commissioner of the 13 Social Security Administration’s (the “Commissioner’s”) final administrative decision, which found 14 Bass not disabled and therefore denied her application for benefits under Title XVI of the Social 15 Security Act, 42 U.S.C. § 1381 et seq. The Commissioner cross-moves to affirm. For the reasons 16 stated below, the court grants in part Bass’s motion, denies the Commissioner’s cross-motion, and 17 remands this case for further proceedings. 18 I. PROCEDURAL HISTORY 19 Bass filed an application for Supplemental Security Income (“SSI”) benefits on November 20 25, 2014, which was initially denied on August 25, 2015 and again on reconsideration on January 21 27, 2016. Administrative Record (“A.R.”) 411-28, 429-44, 445-48, 452-56, 514-22. On March 3, 22 2016, Bass filed a request for a hearing before an Administrative Law Judge (“ALJ”). A.R. 457-58. 23 ALJ Arthur Zeidman held a hearing on June 20, 2017. A.R. 375-410. 24 The ALJ issued a decision finding Bass not disabled. A.R. 56-75. The ALJ determined that 25 Bass has the following severe impairments: obesity, asthma, affective disorder, anxiety disorder, 26 and substance abuse disorder. A.R. 61. He found that Bass retains the residual functional capacity 27 (“RFC”) to perform medium work as defined in 20 C.F.R. § 416.967(c), except with the following [S]he can lift and carry 50 pounds occasionally and 25 pounds frequently; 1 she can sit for 6 hours, stand for 6 hours, and walk for 6 hours; she can push 2 or pull as much as she can lift and carry; she can frequently climb ramps, stairs, ladders, ropes, or scaffolds; and she can frequently respond 3 appropriately to supervisors, coworkers, and the public. 4 A.R. 63-64. 5 Relying on the opinion of a vocational expert (“VE”) who testified that an individual with 6 such an RFC could perform other jobs existing in the economy, including assembler, hand packager, 7 and machine feeder, the ALJ concluded that Ms. Bass is not disabled. 8 The Appeals Council denied Bass’s request for review on September 24, 2018. A.R. 1-7. 9 The ALJ’s decision therefore became the Commissioner’s final decision. Taylor v. Comm’r of Soc. 10 Sec. Admin., 659 F.3d 1228, 1231 (9th Cir. 2011). Bass then filed suit in this court pursuant to 42 11 U.S.C. § 405(g). 12 II. STANDARD OF REVIEW 13 Pursuant to 42 U.S.C. § 405(g), this court has the authority to review a decision by the 14 Commissioner denying a claimant disability benefits. “This court may set aside the Commissioner’s 15 denial of disability insurance benefits when the ALJ’s findings are based on legal error or are not 16 supported by substantial evidence in the record as a whole.” Tackett v. Apfel, 180 F.3d 1094, 1097 17 (9th Cir. 1999) (citations omitted). Substantial evidence is evidence within the record that could 18 lead a reasonable mind to accept a conclusion regarding disability status. See Richardson v. Perales, 19 402 U.S. 389, 401 (1971). It is more than a mere scintilla, but less than a preponderance. See Saelee 20 v. Chater, 94 F.3d 520, 522 (9th Cir.1996) (internal citation omitted). When performing this 21 analysis, the court must “consider the entire record as a whole and may not affirm simply by isolating 22 a specific quantum of supporting evidence.” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th 23 Cir. 2006) (citation and quotation marks omitted). 24 If the evidence reasonably could support two conclusions, the court “may not substitute its 25 judgment for that of the Commissioner” and must affirm the decision. Jamerson v. Chater, 112 26 F.3d 1064, 1066 (9th Cir. 1997) (citation omitted). “Finally, the court will not reverse an ALJ’s 27 decision for harmless error, which exists when it is clear from the record that the ALJ’s error was 1 1038 (9th Cir. 2008) (citations and internal quotation marks omitted). 2 The court has reviewed the entire record in this case. For the purposes of brevity, this order 3 cites only those facts that are relevant to the court’s decision. 4 III. ISSUES PRESENTED 5 Bass argues that the ALJ erred in (1) failing to find that some of her impairments are severe; 6 (2) weighing the medical opinions; (3) discounting the lay testimony of Cassandra Attaway, Bass’s 7 godsister; (4) determining Bass’s credibility; (5) assessing her RFC; and (6) eliciting VE testimony. 8 These arguments are addressed in turn. 9 A. Step Two Analysis 10 1. Legal Standard 11 At step two of the five-step sequential evaluation for disability claims, the ALJ must 12 determine whether the claimant has one or more severe impairments that significantly limit a 13 claimant’s ability to perform basic work activities. 20 C.F.R. §§ 404.1520(a)(4)(ii) and (c); 14 416.920(a)(4)(ii) and (c). “Basic work activities are abilities and aptitudes necessary to do most 15 jobs, including, for example, walking, standing, sitting, lifting, pushing, pulling, reaching, carrying 16 or handling.” Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996) (quotation omitted). The Ninth 17 Circuit has held that “the step-two inquiry is a de minimis screening device to dispose of groundless 18 claims.” Id. (citation omitted). “An impairment or combination of impairments can be found ‘not 19 severe’ only if the evidence establishes a slight abnormality that has no more than a minimal effect 20 on an individual[’]s ability to work.” Id. (quotations omitted). A severe impairment “must be 21 established by objective medical evidence from an acceptable medical source,” 20 C.F.R. § 416.921, 22 and the ALJ must “consider the claimant’s subjective symptoms, such as pain or fatigue, in 23 determining severity.” Smolen, 80 F.3d at 1290 (citations omitted). In addition, when assessing a 24 claimant’s RFC, an ALJ must consider all of the claimant’s medically determinable impairments, 25 both severe and non-severe. 20 C.F.R. §§ 416.920(e), 416.945; see Carmickle v. Comm’r, Soc. Sec. 26 Admin., 533 F.3d 1155, 1164 (9th Cir. 2008); see also SSR 96-8p, 1996 WL 374184, at *5 (“In 27 assessing RFC, the adjudicator must consider limitations and restrictions imposed by all of an 1 an individual from performing past relevant work or may narrow the range of other work that the 2 individual may still be able to do.”). 3 2. Analysis 4 On step two, the ALJ found that Bass has the following severe impairments: obesity; asthma; 5 affective disorder; anxiety disorder; and substance abuse disorder. A.R. 61. Bass argues that the 6 ALJ erred in neglecting to find that her PTSD, diabetes, back pain, obstructive sleep apnea (“OSA”), 7 and migraines are severe impairments. The ALJ gave reasons for finding that Bass’s diabetes and 8 back pain are not severe; however, he did not address the other impairments listed by Bass as part 9 of his step two analysis. The Commissioner argues that any error with respect to the step two 10 analysis is harmless, since the ALJ considered all of Bass’s impairments, severe and not severe, in 11 assessing her RFC. 12 Where the ALJ finds at least one severe impairment at step two, and properly considers all 13 medically determinable impairments at step four, failing to find that any specific impairment is 14 severe is harmless error. Buck v. Berryhill, 869 F.3d 1040, 1049 (9th Cir. 2017); see also Brown v. 15 Berryhill, No. 16-cv-04022-EMC, 2017 WL 4417516, at *7 (N.D. Cal. Oct. 4, 2017) (finding that 16 an ALJ’s failure to find an impairment was “severe” at step two was harmless because the ALJ 17 incorporated all related restrictions into the RFC assessment). However, if an ALJ does not consider 18 all medically determinable impairments when assessing a claimant’s RFC, then an error at step two 19 is not harmless. See Mercado v. Berryhill, No. 16-cv-04200-BLF, 2017 WL 4029222, at *6 (N.D. 20 Cal. Sept. 13, 2017). 21 Here, it is clear that the ALJ did not incorporate limitations based on the impairments 22 identified by Bass. The ALJ discussed only obesity and asthma in assessing Bass’s physical RFC; 23 he did not assign limitations based on her back pain or diabetes. See A.R. 66. While the ALJ 24 discussed OSA in the context of assessing Bass’s credibility, he did not address whether it was a 25 severe impairment nor did he assess any RFC related to OSA. See A.R. 66. The ALJ did not discuss 26 PTSD or migraines in the opinion at all, other than to acknowledge Bass’s testimony that she 27 experiences both. A.R. 64. Given that the ALJ did not assess any limitations in Bass’s RFC based 1 analysis for error. See Mercado, 2017 WL 4029222, at *6. 2 Each of the identified impairments finds support in the record. Bass first reported 3 experiencing back pain in August 2014. A.R. 855. She stated that it was moderately severe, occurs 4 intermittingly, and is aggravated by standing and walking. A.R. 855. On examination, her 5 healthcare provider found tenderness of the lumbar spine and observed that Bass experienced mild 6 pain with motion. A.R. 857. In October 2014, Bass reported that her lower back pain was getting 7 worse, and that it would reach about 7-8/10 in intensity. A.R. 631. On March 13, 2015, she received 8 an initial X-ray of her lumbar spine that showed no visible abnormality, but an MRI taken five 9 months later showed a minor disc spur complex with moderate facet hypertrophy at L5-S1, causing 10 mild central and right foraminal stenosis. A.R. 790. Bass continued to report back pain to various 11 providers throughout the relevant treatment period. A.R. 17, 23, 29, 33, 99, 700, 1052, 1102. She 12 received a referral for physical therapy in July 2017, and the provider at that time noted that she 13 exhibited decreased strength and range of motion. A.R. 81. 14 In finding that Bass’s back pain is not a severe impairment, the ALJ noted that the 2015 MRI 15 did not reveal significant findings other than at L5-S1 and did not show disc herniation or neural 16 impingement. A.R. 62. He also stated that it was significant that Bass did not receive any treatment 17 other than pain medications. A.R. 62. The ALJ’s assessment of Bass’s back pain is not well 18 supported. The 2015 MRI showed abnormalities in some parts of Bass’s spine and the ALJ did not 19 cite any medical findings to support that Bass’s MRI results are inconsistent with her reports of pain. 20 Further, although it is true that Bass used pain medication, she was also referred to physical therapy, 21 potentially indicating a higher need for treatment than reflected by the ALJ. A.R. 81. Notably, the 22 ALJ gave great weight to the opinion of consultative examiner Farah Rana, M.D., who explicitly 23 assessed physical limitations based in part on Bass’s reports of back pain. See A.R. 779. Given that 24 there are objective medical findings of abnormalities in Bass’s spine, findings of back pain by a 25 physician credited by the ALJ, and no evidence that contradicts Bass’s pain reports, the ALJ erred 26 in finding that Bass’s back pain is not a severe impairment. The error is not harmless because the 27 ALJ did not consider back pain in assessing Bass’s RFC, despite crediting a medical opinion that 1 The ALJ also erred in finding that Bass’s diabetes is not a severe impairment. He cited one 2 record where Bass denied numbness or burning in her feet, yet the record also contains reports of 3 tingling, numbness, and swelling in her extremities at other times. See A.R. 33, 796, 819, 918, 1028, 4 1043. Further, although the ALJ characterized Bass’s diabetes as “adequately controlled” with 5 medication, she reported neuropathy symptoms even while taking gabapentin. A.R. 33. Given that 6 the ALJ’s assessment is contradicted by the medical evidence, the court finds that the ALJ erred in 7 failing to consider Bass’s diabetes a severe impairment. The error is not harmless because he did 8 not consider Bass’s diabetic symptoms in formulating the RFC, including her reports that she has 9 difficulty standing, walking, writing, and performing other activities due to pain and numbness in 10 her limbs. 11 The ALJ also did not directly address Bass’s PTSD, OSA, and migraines in his opinion. 12 However, the court finds that those omissions constitute harmless error. With respect to PTSD, the 13 ALJ addressed Bass’s mental conditions as a whole and assessed some restrictions based on her 14 reported symptoms. Bass does not identify any mental symptoms that the ALJ failed to address 15 because of his step two analysis; rather, it seems that the ALJ considered all of Bass’s alleged mental 16 symptoms regardless of the specific diagnosis attached to them. Therefore, the court finds that any 17 error the ALJ committed with respect to PTSD on step two is harmless. Next, the record contains 18 little to no evidence that Bass’s OSA affects her work-related abilities. Bass herself did not discuss 19 adverse effects from OSA either in her function report or at the hearing. In addition, although Bass’s 20 motion cites “daytime fatigue” as an effect of OSA, Bass did not identify any specific limitations in 21 the RFC that the ALJ should have assessed based on that symptom. See Mot. at 22. Accordingly, 22 the court finds that any error the ALJ committed in failing to consider OSA a severe impairment is 23 harmless. Finally, the record contains numerous reports that Bass experiences migraines. See, e.g., 24 A.R. 626, 720, 798, 816, 819. However, there is no medical evidence about the extent to which 25 Bass is prevented from working because of them. For example, no opinion addresses the amount 26 of time she would be off-task in a given day due to headaches, nor does Bass argue that the ALJ 27 should have assessed such a limitation. In addition, the most recent record relating to migraines 1 A.R. 1004. Therefore, even if the ALJ erred in omitting migraines as a severe impairment, that error 2 is harmless. 3 For the reasons stated above, the court finds that the ALJ erred in failing to find that Bass’s 4 diabetes and back pain are severe impairments. Those errors are not harmless because the ALJ did 5 not consider them as required in assessing Bass’s RFC. Any error the ALJ committed with respect 6 to the other impairments is harmless, as Bass did not identify corresponding errors in the ALJ’s 7 RFC. On remand, the ALJ shall revisit the step two analysis and make findings consistent with this 8 order. 9 B. Medical Opinions 10 1. Legal Standard 11 Courts employ a hierarchy of deference to medical opinions based on the relation of the 12 doctor to the patient. Namely, courts distinguish between three types of physicians: those who treat 13 the claimant (“treating physicians”) and two categories of “nontreating physicians,” those who 14 examine but do not treat the claimant (“examining physicians”) and those who neither examine nor 15 treat the claimant (“non-examining physicians”). See Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 16 1995). A treating physician’s opinion is entitled to more weight than an examining physician’s 17 opinion, and an examining physician’s opinion is entitled to more weight than a non-examining 18 physician’s opinion. Id. 19 The Social Security Act tasks the ALJ with determining credibility of medical testimony and 20 resolving conflicting evidence and ambiguities. Reddick, 157 F.3d at 722. A treating physician’s 21 opinion, while entitled to more weight, is not necessarily conclusive. Magallanes v. Bowen, 881 22 F.2d 747, 751 (9th Cir. 1989) (citation omitted). To reject the opinion of an uncontradicted treating 23 physician, an ALJ must provide “clear and convincing reasons.” Lester, 81 F.3d at 830; see, e.g., 24 Roberts v. Shalala, 66 F.3d 179, 184 (9th Cir. 1995) (affirming rejection of examining 25 psychologist’s functional assessment which conflicted with his own written report and test results); 26 see also 20 C.F.R. § 416.927(d)(2); SSR 96-2p, 1996 WL 374188 (July 2, 1996). If another doctor 27 contradicts a treating physician, the ALJ must provide “specific and legitimate reasons” supported 1 ALJ meets this burden “by setting out a detailed and thorough summary of the facts and conflicting 2 clinical evidence, stating his interpretation thereof, and making findings.” Reddick, 157 F.3d at 725 3 (citation omitted). “[B]road and vague” reasons do not suffice. McAllister v. Sullivan, 888 F.2d 4 599, 602 (9th Cir. 1989). This same standard applies to the rejection of an examining physician’s 5 opinion as well. Lester, 81 F.3d at 830-31. A non-examining physician’s opinion alone cannot 6 constitute substantial evidence to reject the opinion of an examining or treating physician, Pitzer v. 7 Sullivan, 908 F.2d 502, 506 n.4 (9th Cir. 1990); Gallant v. Heckler, 753 F.2d 1450, 1456 (9th Cir. 8 1984), though a non-examining physician’s opinion may be persuasive when supported by other 9 factors. See Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001) (noting that opinion by 10 “non-examining medical expert . . . may constitute substantial evidence when it is consistent with 11 other independent evidence in the record”); Magallanes, 881 F.2d at 751-55 (upholding rejection of 12 treating physician’s opinion given contradictory laboratory test results, reports from examining 13 physicians, and testimony from claimant). An ALJ “may reject the opinion of a non-examining 14 physician by reference to specific evidence in the medical record.” Sousa, 143 F.3d at 1244. An 15 opinion that is more consistent with the record as a whole generally carries more persuasiveness. 16 See 20 C.F.R. § 416.927(c)(4). 17 2. Opinions on Physical Limitations 18 Bass argues that the ALJ erred in discounting the opinions of her treating medical providers 19 with respect to her physical impairments, including asthma, OSA, migraine headaches, diabetes, 20 and back pain. Mot. at 15. However, Bass cites to treatment notes, not medical opinions. None of 21 the treating sources that Bass identifies opined on her work-related functional limitations. See 20 22 C.F.R. § 404.1527(a)(1). While these records are part of the medical evidence, they are not medical 23 opinions that the ALJ was required to individually discuss and weigh. 24 3. Opinions on Mental Limitations 25 i. Meilin Mehri, Psy.D. 26 In July 2014, Bass’s primary care provider referred her to Meilin Mehri, Psy.D., at the 27 Tiburcio Vasquez Health Center. The medical evidence contains Dr. Mehri’s notes from two 1 suicide ideation and had a suicide plan in the past. A.R. 657. Dr. Mehri assessed Bass for suicide 2 risk and assisted in developing a safety plan. A.R. 656. Dr. Mehri evaluated Bass’s mental status 3 and found that it was largely within normal limits, but that she had a depressed mood, slow speech, 4 and negative thought content. A.R. 654. She assessed diagnoses of major depressive disorder 5 (recurrent, severe) and alcohol abuse. A.R. 654. 6 Bass argues that the ALJ erred in failing to discuss or give weight to Dr. Mehri’s two medical 7 notes. As the Commissioner points out, the records identified by Bass are treatment records, not a 8 medical source statement. See 20 C.F.R. § 404.1527(a)(1). The mental status examination Dr. 9 Mehri performed contains no opinion as to Bass’s mental limitations; it simply records Dr. Mehri’s 10 observations of Bass’s appearance and behavior. Bass does not explain, nor is it obvious, how 11 giving weight to these observations would have impacted the ALJ’s RFC assessment. See Harris 12 v. Berryhill, 738 F. App’x 529, 530 (9th Cir. 2018) (finding that an ALJ is “not required to discuss 13 evidence that was neither significant nor probative of [a claimant’s] functional limitations”). 14 Further, it is clear that the ALJ did consider Dr. Mehri’s notes as part of the entire medical record, 15 as he cited them in a discussion of Bass’s history of mental treatment. See A.R. 66. 16 The court finds that the ALJ was not required to specifically discuss or give weight to Dr. 17 Mehri’s medical notes. 18 ii. Gilda Versales, M.D. 19 On June 30, 2015, Bass began treatment at Pathways to Wellness and met with Gilda 20 Versales, M.D. A.R. 769. Dr. Versales took her medical history and recorded her current symptom 21 reports. A.R. 769-72. She also assessed Bass’s functional limitations and noted that Bass was 22 moderately limited in her ability to maintain concentration, persistence, or pace, and mildly limited 23 in her activities of daily living and maintaining social functioning and relationships. A.R. 773. In 24 an updated treatment plan dated October 20, 2016, Dr. Versales wrote that Bass experiences 25 moderate difficulty in maintaining stable housing and attending community programs. A.R. 1164- 26 66. Dr. Versales noted that Bass’s current symptoms include irritability, insomnia, anxiety, mood 27 swings, and depressive moods. A.R. 1167. Dr. Versales also completed a checklist referral form 1 great weight to the functional limitations assessed by Dr. Versales in 2015 but did not discuss the 2 2016 record. 3 Bass’s argument as to these records is not clear. She does not appear to object to the ALJ 4 giving great weight to the 2015 record. Instead, she seems to contend that the ALJ neglected to 5 consider the 2016 updated report, which she claims shows more serious limitations than the 2015 6 record standing alone. See Mot. at 14. However, contrary to Bass’s assertion, the 2016 report does 7 not appear to contain an assessment of her functional limitations. For example, the report reflects 8 that Bass experiences difficulty in maintaining stable housing but does not explain whether and to 9 what extent that issue is due to her mental functioning rather than to other factors. A.R. 1164. In 10 addition, Bass does not explain how consideration of the 2016 report would have changed the ALJ’s 11 RFC assessment. Under these circumstances, the court cannot say the ALJ erred in failing to 12 specifically discuss the 2016 record. 13 iii. Ted Aames, Ph.D., and Kari Jennings-Parriott, LCSW 14 Kari Jennings-Parriott, LCSW, provided mental health treatment to Bass starting in 15 September 2016. Jennings-Parriott completed a mental health impairment questionnaire for Bass 16 on March 26, 2017. A.R. 1175-81. The medical source statement was co-signed by Ted Aames, a 17 clinical psychologist. A.R. 1175-81. The statement reports that Bass was diagnosed with PTSD, 18 panic disorder, and trichotillomania. A.R. 1175. It notes that Bass is “engaged in treatment and 19 motivated to reduce [her symptoms]” but “still struggles daily to merge [symptoms] associated 20 [with] her multiple diagnoses.” A.R. 1175. It indicates that Bass has marked and extreme 21 limitations in various areas of mental functioning, including her ability to interact with others; 22 maintain concentration, persistence or pace; and adapt or manage herself. A.R. 1177-78. For 23 example, it contains the opinion that Bass is extremely limited in her ability to cooperate with others; 24 handle conflict; ignore or avoid distractions; sustain an ordinary routine and regular attendance at 25 work; work a full day without needing more than the allotted number or length of rest periods; adapt 26 to changes; and manage psychologically-based symptoms. A.R. 1177-78. It goes on to opine that 27 Bass would likely be absent from work four or more days per month as a result of her impairments 1 The ALJ assigned little weight to the source statement written by Jennings-Parriott and Dr. 2 Aames. He gave three reasons to discount this record, including that (1) Dr. Aames’ treatment 3 relationship with Bass was not clear; (2) the source statement was “not entirely consistent with the 4 behavioral health records’ depiction” of Bass’s mental functioning; and (3) the severity of Bass’s 5 various limitations is belied by Jennings-Parriot’s own treatment notes. A.R. 67. 6 With respect to the first reason, the Commissioner argues that there is no evidence in the 7 record that Dr. Aames personally treated Bass and therefore his opinion cannot be considered a 8 treating physician opinion. Bass asserts that Dr. Aames oversaw Bass’s treatment, and his position 9 as a supervisor in Bass’s treatment team qualifies his opinion as a treating physician statement. The 10 difference is material because if Dr. Aames is considered a treating physician, the ALJ was required 11 to give specific and legitimate reasons supported by substantial evidence to reject it. Lester, 81 F.3d 12 at 830. If Dr. Aames is not a treating physician, then the ALJ would only be required to give 13 germane reasons to reject the opinion of Jennings-Parriott. Kelly, 471 F. App’x at 676 (quoting 14 Turner, 613 F.3d at 1223-24). 15 Under the regulations, a “treating source” is an “acceptable medical source who provides 16 you, or has provided you, with medical treatment or evaluation and who has, or has had, an ongoing 17 treatment relationship with you.” 20 C.F.R. § 416.927(a)(2). In Benton ex rel. Benton v. Barnhart, 18 331 F.3d 1030 (9th Cir. 2003), cited by Bass, the Ninth Circuit held that a supervising physician 19 may be considered a treating source if the claimant sees the source with a “frequency consistent 20 with accepted medical practice for the type of treatment . . . required for your medical conditions.” 21 Benton, 331 F.3d at 1036 (quoting 20 C.F.R. § 416.927(a)(2)). Thus, in Benton, the court found 22 that a supervising psychiatrist could be considered a treating source even though he had only seen 23 the claimant once, since the evidence established that he had “continued to oversee her care.” Id. at 24 1037. The Benton court noted that the regulations do not prohibit a supervising physician from 25 completing an RFC assessment on behalf of his team, even if the physician has little direct 26 experience with the claimant. Id. at 1039. The court remanded the issue to the ALJ to consider 27 whether the psychiatrist saw the claimant “with a frequency consistent with accepted medical 1 Benton is distinguishable from the present case. There, the evidence established that the 2 supervising psychiatrist had seen the claimant personally, managed her medications, and “consulted 3 regularly with her treating therapists.” Benton, 331 F.3d at 1033. In this case, by contrast, nothing 4 in the record even mentions Dr. Aames, aside from his signature line on the Lifelong source 5 statement. There is no evidence that Dr. Aames ever personally met Bass, much less treated her, or 6 that he consulted with Jennings-Parriott about Bass. Therefore, there is no basis in the record for 7 Bass’s unsubstantiated statement that Dr. Aames was the “Lifelong psychologist overseeing 8 [Bass’s] treatment.” See Mot. at 12. Accordingly, the ALJ was not required to consider Dr. Aames 9 as a treating source. However, since the statement relays the opinions of LCSW Jennings-Parriott, 10 who is an “other source” under 20 C.F.R. § 404.1527(f), the ALJ was required to provide germane 11 reasons to discount the assessment. See Kelly, 471 F. App’x at 676. The court will therefore apply 12 the “germane reason” test to the ALJ’s remaining reasons. 13 The ALJ’s second reason to discount this medical source statement was that it was “not 14 entirely consistent with the behavioral health records’ depiction of [Bass’s] stable mental states, lack 15 of significant interactive issues, and objectively unremarkable cognitive findings.” A.R. 67. First, 16 although the medical evidence reflects some normal mental status examinations, there are also 17 records from multiple providers that indicate more serious symptoms. See, e.g., A.R. 187 (opining 18 that Bass’s reported symptoms may indicate PTSD); 205 (reflecting Bass’s history of insomnia, 19 nightmares, flashbacks, intrusive thoughts, irritability, hypervigilance, and hyperarousal); 648 20 (recording a PhQ9 score of 18, indicating moderately severe depression), 651 (observing Bass’s 21 depressed mood and slow speech), 657 (noting Bass’s history of self-harm and passive suicide 22 ideation); 678 (stating that Bass’s depressive symptoms are chronic and poorly controlled), 772 23 (observing Bass’s depressed mood and tearful affect). The ALJ did not explain why the records 24 showing negative mental states were less persuasive, and the existence of some normal mental status 25 exams is not enough on its own to discount Jennings-Parriott’s opinion. See Garrison v. Colvin, 26 759 F.3d 995, 1017 (9th Cir. 2014) (recognizing the “[c]ycles of improvement and debilitating 27 symptoms are a common occurrence” and cautioning that it is error for an ALJ to rely on a “few 1 respect to Bass’s “interactive issues,” the ALJ did not discuss or mention the numerous reports of 2 altercations between Bass and other people. See, e.g., A.R. 99, 111, 125, 181, 183, 186, 203, 1114. 3 For example, in a confrontation with her sister, Bass punched a wall and hurt her hand. A.R. 125. 4 Bass reports that these altercations often involve her alter ego, Dominique, who is aggressive toward 5 others in order to protect her. A.R. 20, 183, 187, 1099, 1102. When her symptoms are exacerbated, 6 Bass pulls her hair and eyelashes out. A.R. 1105, 1023. The ALJ did not explain why these records 7 are not probative of Bass’s interactive issues. Finally, it is unclear what the ALJ meant by 8 “objectively unremarkable cognitive findings,” because he did not cite any specific records to 9 illustrate such findings. It is not clear, for example, whether the “cognitive findings” to which the 10 ALJ refers are the same as the mental status examinations upon which he previously relied, and 11 which the court already addressed above. In sum, the ALJ’s characterization of the medical 12 evidence is not supported in the record and does not constitute a germane reason to discount this 13 medical source statement. 14 Finally, the ALJ stated that the severity of the limitations contained in the medical source 15 statement are not consistent with Jennings-Parriott’s own progress notes, which contain “only 16 somewhat abnormal mental status examination findings and lack of apparent difficulties with 17 [Bass’s] mood stability, behavior around clinicians, and cognition.” A.R. 67. The progress notes 18 themselves do not support the ALJ’s characterization of them. For example, during Jennings- 19 Parriott’s initial visit with Bass on September 29, 2016, she noted that Bass had a depressed/anxious 20 mood, a labile affect, a circumstantial and tangential thought process, minimal insight, and 21 moderately impaired judgment. A.R. 1122. Mental screening tools indicated that Bass had severe 22 depression and anxiety. A.R. 1122. On October 31, 2016, Jennings-Parriott wrote that Bass 23 exhibited “minimal progress,” and noted her pressured speech, slumped posture, and intermittent 24 eye contact. A.R. 1114. In her progress notes dated January 23, 2017, Jennings-Parriott noted that 25 Bass’s appearance was disheveled, her posture was slumped, and her eye contact was intermittent. 26 A.R. 1096. She wrote that Bass exhibited only partial insight, and that she had a severely impaired 27 ability to make reasonable decisions. A.R. 1096. On April 5, 2017, Bass reported that her 1 1093. Jennings-Parriott observed that Bass had a slumped posture, avoidant eye contact, a depressed 2 mood, a flat affect, and partial insight. A.R. 1093. On April 19, 2017, Bass reported that she had 3 “sporadic blackout periods where she can not [sic] remember hours of her day,” which Jennings- 4 Parriott attributed to trauma. A.R. 1090. Separate from the blackout periods, Bass stated that her 5 alter ego Dominique sometimes comes out and “tak[es] care of me,” and that she has no control 6 over her actions during those times. A.R. 1090. Jennings-Parriott observed that Bass appeared 7 tense and seemed to be experiencing depersonalizations and depressive preoccupations/ruminations. 8 A.R. 1090. She administered the PhQ9, and Bass’s responses indicated moderately severe 9 depression. A.R. 1091. The PCL-C showed that Bass was symptomatic for PTSD. A.R. 1091. 10 Contrary to the ALJ’s finding that the mental status exams described in Jennings-Parriott’s progress 11 notes do not support the limitations set forth in the medical source statement, the progress notes 12 repeatedly reflect issues with Bass’s cognition, thought process, insight, and judgment. A.R. 27, 13 103, 111, 118, 125, 1100, 1102, 1105, 1090, 1093, 1096, 1112, 1114. The mental status exams also 14 record mood instability, with Bass consistently presenting as depressed, anxious, or both. A.R. 15 1090, 1093, 1096, 1114. Therefore, the ALJ’s characterization of Jennings-Parriott’s progress notes 16 does not accurately summarize her observations of Bass’s mental state. 17 In sum, the ALJ’s characterization of the medical evidence and of Jennings-Parriott’s 18 treatment notes are not supported in the record. Under these circumstances, the court finds that the 19 ALJ did not offer germane reasons to discount the opinion of Jennings-Parriott. 20 iv. Van Nguyen, Pharm. D. 21 Bass began seeing Van Nguyen, M.D. at Pathways to Wellness in May 2017. A.R. 187-88. 22 Dr. Nguyen managed Bass’s medication regime. On September 21, 2017, Dr. Nguyen performed a 23 medical provider’s assessment. A.R. 205-09. He reviewed Bass’s psychiatric history and reports 24 of current symptoms. A.R. 205. Bass told Dr. Nguyen that she had been taking her medication as 25 prescribed and that it reduced her nightmares and difficulty sleeping. A.R. 205. However, she 26 reported that many of her symptoms continued, including “severe anhedonia,” difficult 27 concentration, recurrent flashbacks, intrusive thoughts, social avoidance, irritability, hypervigilance, 1 significant for major depressive disorder and insomnia. A.R. 208. He also provided an assessment 2 of Bass’s functional limitations, writing that Bass has marked restriction in activities of daily living 3 and maintaining concentration, persistence or pace, and extreme difficulties in maintaining social 4 functioning and relationships. A.R. 208. Dr. Nguyen’s assessment indicated that Bass should not 5 be transitioned to a lower level of care at that time because she exhibited difficulties in activities of 6 daily living and social relationships. A.R. 209. 7 Bass argues that the ALJ committed reversible error by failing to assign weight to Dr. 8 Nguyen’s September 2017 assessment. However, Dr. Nguyen’s 2017 assessment was not before 9 the ALJ at the time of his decision; rather, Bass submitted these records to the Appeals Counsel as 10 part of her request for review. A.R. 1-7. As both Bass and the Commissioner acknowledge, this 11 court can consider evidence that was submitted for the first time to the Appeals Council. See Brewes 12 v. Comm’r of Soc. Sec. Admin., 682 F.3d 1157, 1163 (9th Cir. 2012) (“[W]hen the Appeals Council 13 considers new evidence in deciding whether to review a decision of the ALJ, that evidence becomes 14 part of the administrative record, which the district court must consider when reviewing the 15 Commissioner’s final decision for substantial evidence.”). An ALJ’s failure to address records that 16 were not before him is not automatic cause for remand; rather, the court must consider the medical 17 record as a whole, including the new evidence, in determining whether the ALJ erred in denying 18 benefits. See id. Therefore, the court rejects Bass’s argument that the ALJ erred by not addressing 19 the new records in the first instance. However, Dr. Nguyen treated Bass for several months and 20 provided a functional assessment with diagnostic impressions and findings that explain the 21 limitations he assessed. In reviewing the medical record as a whole, the court finds that Dr. 22 Nguyen’s assessment may be material to the ALJ’s ultimate determination regarding disability. For 23 example, the ALJ cited Bass’s positive response to medication as a reason to discredit Bass’s 24 testimony. A.R. 66. However, Dr. Nguyen’s records reflect that medication relieved some of Bass’s 25 symptoms, including insomnia and nightmares, while other symptoms such as irritability and social 26 difficulties continued. A.R. 205. Since Dr. Nguyen managed Bass’s psychiatric medication regime, 27 his opinion as to the effectiveness of medication on Bass’s conditions is highly probative. 1 manner consistent with the regulations and this order. 2 v. Philip Sack, M.D. 3 On July 29, 2015, consultative examiner Philip Sack, M.D. performed a psychiatric 4 evaluation. A.R. 780-81. He observed that Bass was poorly groomed, but alert, oriented, and 5 cooperative. A.R. 780. Her mood appeared to be depressed and anxious, and she had a sad, anxious, 6 conflicted, and flat affect. A.R. 780-81. Dr. Sack wrote that Bass’s thought content seemed concrete 7 but goal directed. A.R. 780. He opined that her insight and judgment were “fair to poor.” A.R. 8 780-81. He diagnosed her with PTSD, generalized anxiety disorder, major depressive disorder, and 9 polysubstance dependence. A.R. 781. Dr. Sack’s functional assessment stated that Bass’s work- 10 related capacity was largely intact, including her ability to relate to others, understand and follow 11 simple instructions, maintain appropriate levels of concentration, persistence, and pace, and manage 12 changes in a routine workplace situation. A.R. 781. However, he noted that her ability to maintain 13 adequate persistence to perform complex tasks seems mildly to moderately impaired, as does her 14 ability to tolerate the usual stress and pressures associated with day to day work activity. A.R. 781. 15 Bass argues that the ALJ erred in assigning great weight to Dr. Sack’s opinion. The ALJ 16 did not separately discuss Dr. Sack’s opinion but rather addressed it along with the other opinions 17 to which the ALJ gave great weight, including the findings of the state agency psychiatric 18 consultants. A.R. 67. The ALJ stated that these opinions were consistent with “the claimant’s stable 19 mental states and improved condition as achieved through her therapy sessions and use of 20 medication.” A.R. 67. He also found that the medical records “show no significant behavioral 21 problems, aside from the claimant’s self-reported anger issues, and no objective indications of 22 significant cognitive deficits.” A.R. 67. 23 As discussed above with respect to Jennings-Parriott’s source statement, the ALJ’s finding 24 that Bass has “stable mental states” improperly discounts records showing more severe symptoms 25 without explaining why those records are not probative of Bass’s overall functioning. The ALJ’s 26 statement that the medical evidence shows “no significant behavioral problems” is also unsupported 27 by the record, as the ALJ failed to address records to that specifically describe Bass’s interpersonal 1 evidence in the record that medication has not addressed all of Bass’s mental impairments, including 2 Dr. Nguyen’s 2017 statement. Because the ALJ’s reasons for crediting Dr. Sack’s opinion are the 3 same reasons he gave for discounting other evidence in the record, and the court already found that 4 these reasons are not supported by the record, the court concludes that the ALJ erred in assigning 5 great weight to Dr. Sack’s opinion. 6 On remand, the ALJ shall reconsider all of the medical opinions in the record in a manner 7 consistent with this opinion. 8 C. RFC 9 Bass argues that the ALJ erred in assessing both her mental and physical RFC. In evaluating 10 the ALJ’s step two analysis, the court found harmless error in the ALJ’s failure to consider OSA 11 and migraines to be severe impairments; accordingly, Bass’s argument that he failed to assess RFC 12 relating to those impairments is moot. Regarding asthma, substantial evidence supports the ALJ’s 13 conclusion that this condition does not warrant a more restrictive RFC. Although the record contains 14 evidence that Bass suffers from that condition, she also reported that she takes medication for it and 15 there is no indication that the medication is ineffective in controlling her symptoms. See A.R. 922, 16 929. 17 However, the court concluded above that the ALJ erred in finding that back pain and diabetes 18 are not severe impairments. The error was not harmless because the ALJ failed to discuss those 19 impairments when he assessed Bass’s physical RFC. The court also found that the ALJ erred in 20 discounting Jennings-Parriott’s source statement about Bass’s mental impairments. That error was 21 not harmless because crediting the statement could have resulted in more restrictive mental RFC. 22 On remand, the ALJ shall revisit his RFC assessment in light of the court’s rulings on the 23 step two analysis and medical opinions. 24 D. Remaining Arguments 25 Bass also argues that the ALJ erred in discounting the lay testimony of Attaway, Bass’s 26 godsister; determining Bass’s credibility; and eliciting VE testimony. As discussed above, the ALJ 27 erred in the step two analysis and in weighing the medical opinions. These errors were not harmless 1 he assigns different weight to the medical opinions, he may find that the testimony of Bass and/or 2 || Attaway is more consistent with the medical evidence. Similarly, if the ALJ assesses a different 3 || RFC, he might pose different hypothetical questions to the VE, rendering Bass’s arguments on that 4 || point moot. 5 On remand, the ALJ should revisit these issues and make findings consistent with this 6 || order and the regulations. 7 || IV. CONCLUSION 8 For the foregoing reasons, the court grants in part Bass’s motion for summary judgment, 9 || denies the Commissioner’s cross-motion, and remands this case for further proceedings. 10 11 12
IT ISSO ORDERED.
v 14 || Dated: March 31, 2020 yy ri — ©
15 Donna M. Ryu A 16 United States Magistrate Judge
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