1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 EUREKA DIVISION 7 8 SALIHA B., Case No. 19-cv-08253-RMI
9 Plaintiff, ORDER ON CROSS MOTIONS FOR 10 v. SUMMARY JUDGMENT
11 ANDREW SAUL SOCIAL SECURITY Re: Dkt. Nos. 23, 26 ADMINISTRATION, 12 Defendant. 13 14 Plaintiff seeks judicial review of an administrative law judge (“ALJ”) decision denying her 15 application for supplemental security income under Title XVI of the Social Security Act. See AR 16 at 27, 131.1 Plaintiff’s request for review of the ALJ’s unfavorable decision was denied by the 17 Appeals Council (see id. at 1), thus, the ALJ’s decision is the “final decision” of the 18 Commissioner of Social Security which this court may review. See 42 U.S.C. §§ 405(g), 19 1383(c)(3). Both Parties have consented to the jurisdiction of a magistrate judge (dkts. 9 & 13), 20 and both parties have moved for summary judgment (dkts. 23 & 26). For the reasons stated below, 21 Plaintiff’s motion for summary judgment is granted, and Defendant’s motion is denied. 22 LEGAL STANDARDS 23 The Commissioner’s findings “as to any fact, if supported by substantial evidence, shall be 24 conclusive.” 42 U.S.C. § 405(g). A district court has a limited scope of review and can only set 25 aside a denial of benefits if it is not supported by substantial evidence or if it is based on legal 26 error. Flaten v. Sec’y of Health & Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995). The phrase 27 1 “substantial evidence” appears throughout administrative law and directs courts in their review of 2 factual findings at the agency level. See Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019). 3 Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as 4 adequate to support a conclusion.” Id. at 1154 (quoting Consol. Edison Co. v. NLRB, 305 U.S. 5 197, 229 (1938)); see also Sandgathe v. Chater, 108 F.3d 978, 979 (9th Cir. 1997). “In 6 determining whether the Commissioner’s findings are supported by substantial evidence,” a 7 district court must review the administrative record as a whole, considering “both the evidence 8 that supports and the evidence that detracts from the Commissioner’s conclusion.” Reddick v. 9 Chater, 157 F.3d 715, 720 (9th Cir. 1998). The Commissioner’s conclusion is upheld where 10 evidence is susceptible to more than one rational interpretation. Burch v. Barnhart, 400 F.3d 676, 11 679 (9th Cir. 2005). 12 PROCEDURAL HISTORY 13 On October 28, 2015, Plaintiff filed an application for supplemental security income, 14 alleging an onset date of July 31, 2002. See AR at 27. As set forth in detail below, the ALJ found 15 Plaintiff not disabled and denied the application on November 23, 2018. Id. at 27-36. The Appeals 16 Council denied Plaintiff’s request for review on November 25, 2019. See id. at 1-4. The following 17 month, on December 19, 2019, Plaintiff sought review in this court. See Compl. (dkt. 1). 18 SUMMARY OF THE RELEVANT EVIDENCE 19 Plaintiff, now 57 years old, was born in Afghanistan in 1964; and, as a very young person, 20 her life became marked by chaos and tragedy when her country found itself engulfed in a 10-year 21 war following an invasion by the Soviet Union. See Pl.’s Mot. (dkt. 23) at 7; see also AR at 431. 22 The horrors of this war resulted in the deaths of about 15,000 Soviet soldiers and more than 1 23 million Afghan civilians. See Bloch, Hannah, “A Look At Afghanistan's 40 Years Of Crisis — 24 From The Soviet War To Taliban Recapture,” NPR, Aug. 31, 2021.2 However, the human toll 25 experienced by the Afghan population was not limited to the million or so lives that were lost; 26 even putting aside that staggering death toll, the Afghan-Soviet war “resulted in one of the biggest 27 1 humanitarian crises of modern history, with over five million refugees fleeing to Pakistan and Iran 2 and another two million displaced internally.” See Bhutta, Zulfiqar Ahmed, et al., “Children of 3 War: the real casualties of the Afghan conflict,” British Medical Journal (Clinical research ed.), 4 Vol. 324, pp. 349-52, (February 9, 2002).3 Midway through the course of this war, Plaintiff 5 became one of those displaced persons; and, after escaping her homeland, she eventually entered 6 the United States as a refugee in 1988. See AR at 431. Like many victims of war, Plaintiff became 7 afflicted with various conditions including posttraumatic stress disorder (“PTSD”), major 8 depressive disorder, and anxiety disorder. See AR at 10, 14, 435. As a result of the combined 9 effects of these and other impairments, Plaintiff submits that she has had a limited work history 10 that has resulted in no earnings in the last 15 years – in fact, the most recent earnings that Plaintiff 11 garnered were in 2002, and even those earnings were below the threshold that would qualify the 12 work as “substantial gainful activity.” See Pl.’s Mot. (dkt. 23) at 7; see also AR at 29 (the ALJ 13 found that “[t]he claimant last worked in 2002, when she had earnings of $4,341.00, which was 14 below the substantial gainful activity level. [] She has not had any earnings in the past 15 years.”). 15 Medical Records and Opinion Evidence from Treating Sources 16 A significant portion of the diagnostic and opinion evidence from Plaintiff’s treating 17 sources come from Bhupinder Bhandari, M.D., who has served as Plaintiff’s primary care 18 physician for the better part of the last 20 years. Id. at 10.4 In mid-2015, Plaintiff was observed as 19 suffering from impaired glucose tolerance (culminating in a diagnosis of borderline diabetes 20 mellitus) as well as being diagnosed with menorrhagia (excessive menstruation) that would last as 21 long as 10 days per episode coupled with dizziness and fatigue. Id. at 409, 418. As to the 22 menorrhagia, Kalaokalani Chandler, M.D., confirmed Plaintiff’s history of “[d]ysfunctional 23 uterine bleeding,” while opining that the cause was a “probable submucosal fibroid and 24 endometrial polyp.” Id. at 406. Consequently, Plaintiff was admitted to the hospital for a 25 26 3 Available on the website of the National Library of Medicine at: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1122273/ (last checked 09/10/2021)
27 4 Dr. Bhandari’s accolades include the facts that he is a Diplomate of the American Board of Internal 1 hysteroscopy in September of 2015. Id. at 406. The hysteroscopy revealed that Plaintiff’s 2 excessive menstruation (which caused her to suffer dizziness and fatigue) was due to an enlarged 3 uterus “with at least 2 small myomatous nodules . . . [and] 3 endometrial polyps,” which Dr. 4 Chandler proposed to address with a polypectomy and a myomectomy in order to remove the 5 abnormal growths. Id. at 410-11, 413-14. 6 In mid-2016, Plaintiff underwent an array of x-ray diagnostic imaging in order to 7 investigate the causes of persistent pain in her lower back and in both knees. Id. at 466-69. In the 8 course of an osteoporosis screening, Andrew Kwai, M.D., found that “[t]he average bone mineral 9 density [in Plaintiff’s lumbar spine] from L1 through L4 . . . is 2.5 standard deviations below the 10 expected mean value for a young adult female [member of the] population.” Id. at 468. Similarly, 11 Dr. Kwai found that the same condition in Plaintiff’s left hip was nearly 1 standard deviation 12 below the mean expected value of a woman her age. Id. Dr. Kwai concluded that Plaintiff’s 13 diminished bone mass was consistent with osteopenia. Id. Further, based on Plaintiff’s diminished 14 and degraded bone density of the lumbar spine, Dr. Kwai concluded that Plaintiff’s “10-year risk 15 of major osteoporotic facture is 11%.” Id.5 Dr. Kwai also observed spina bifida (a type of neural 16 tube defect) in Plaintiff’s lumbar spine at L6. Id. at 482. 17 Due to persistent left knee pain lasting for months on end, and given that fact that x-ray 18 imaging had not shown any “significant marginal osteophytosis” (see id. at 530), Dr. Bhandari 19 referred Plaintiff to Gina Midmore, M.D., for MRI imaging in October of 2017 and again in 20 January of 2018. Id. at 513-14. Dr. Midmore observed various incidents of structural damage in 21 Plaintiff’s left knee, and catalogued them as such: “[t]here is marginal osteophyte formation at the 22 patellofemoral articulation and small marginal osteophyte formation at the mid medial femoral 23 condyle and lateral tibial plateu . . . [as well as] a large knee joint effusion and a moderate Baker’s 24 cyst extending superiorly . . . [and] several popliteal lymph nodes, more than typically identified.” 25 26 5 Osteoperosis treatment becomes necessary when the ten-year risk of fracture exceeds the 3% threshold. See generally Unnanuntana, Aasis, et al., “The Assessment of Fracture Risk,” Journal of Bone and Joint 27 Surgery, Vol. 92, Issue 3, pp. 743-53 (March 2010). Available on the website of the National Library of Medicine at: 1 Id. In short, Dr. Midmore diagnosed three left knee defects: (1) large knee joint effusion and 2 moderate Baker’s cyst; (2) full-thickness cartilage loss from the patellar medial facet with 3 otherwise generalized thinning and fissuring of the patellofemoral cartilage; and, (3) mild 4 prominence of the popliteal lymph nodes. Id. at 514. 5 The practical consequences of the findings entered by Dr. Kwai (regarding Plaintiff’s 6 lumbar spine and left hip) and by Dr. Midmore (regarding Plaintiff’s left knee) were corroborated 7 and independently identified when Norman Cheung, M.D., referred Plaintiff for physical therapy 8 at the Tri-City Physical Therapy Clinic. See id. at 577-80. In the course of this evaluation, Vanessa 9 C. Arroyo, P.T., observed that “there has been swelling in the knee with a lot of pain,” coupled 10 with the fact that Plaintiff cannot walk for more than 20 minutes or sit on the floor with her knees 11 bent because the pain is aggravated by standing, walking, negotiating stairs, and while 12 transitioning from a seated position to standing. Id. at 578. A measurement of Plaintiff’s mid- 13 patellar knee girth revealed that her left knee was a 1/2 inch larger than her right knee. Id. 14 Therapist Arroyo then observed that Plaintiff “demonstrates decreased strength in the [quadriceps] 15 and [hamstring] leading to [a] lack of full extension and flexion at [the] knee and hence, 16 [Plaintiff’s] problems during walking . . . [and that Plaintiff also] demonstrates overall weakness 17 in [her left] hip and knee musculature along with crepitus6 in her [left] knee which may be 18 contributing to her pain in sit to stand [movements] from [the] floor.” Id. at 579. In short, 19 Therapist Arroyo observed that Plaintiff has decreased strength coupled with pain and swelling in 20 her left knee, as well as decreased strength and tightness in her left hip. Id. at 580. Several months 21 later, after continued physical therapy, and despite marginal improvement due to therapeutic 22 exercise, cryotherapy, and electrical stimulation, Plaintiff’s problem list associated with her left 23 knee and hip was unchanged. See id. at 600, 604, 608, 610, 612, 614. Indeed, in April of 2018, 24 Plaintiff’s physical therapist observed that Plaintiff presents with edema (swelling caused by 25 excess fluids trapped in tissues) in her left leg “which causes pain and stiffness with standing and 26 walking.” Id. at 610. Additionally, in May of 2018, Plaintiff’s physical therapists noted elbow 27 1 pain, decreased range of motion, as well as muscle tension and swelling on both forearms which 2 “are contributing to pain with gripping and lifting tasks due to deficits in strength and swelling in 3 forearms.” Id. at 618. The resulting diagnosis for the pain and decreases in range of motion was 4 arthritis. Id. at 622. 5 During this same period of time, Dr. Bhandari opined that Plaintiff’s disability is rooted, 6 inter alia, in her anemia, her esophageal reflux disease, her arthralgia (joint pain), and her 7 depression. Id. at 477. Due to the combined effects of these and other conditions, in August of 8 2016, Br. Bhandari addressed correspondence to the Social Security Administration in which he 9 opined that “[Plaintiff] is currently unable to work. Please extend her [m]edical benefits.” Id. at 10 485, 492. Nearly two years later, in February of 2018, Dr. Bhandari wrote a similar letter through 11 which he expressed that Plaintiff “has many chronic medical conditions including arthritis of the 12 knee, hypertension, migraines, and depression.” Id. at 572. 13 More than four months before the issuance of the ALJ’s opinion, Plaintiff submitted two 14 documents which contained Dr. Bhandari’s opinions regarding the limitations experienced by 15 Plaintiff’s mental and physical faculties due to the combination of her various impairments. See id. 16 at 644-48, 651-53. At the outset, Dr. Bhandari noted that the bases for his opinions as: 17 observations made during his 20-year treating relationship with Plaintiff (in the course of which 18 Dr. Bhandari would see Plaintiff for treatment approximately every two months); a review of the 19 entirety of Plaintiff’s medical history; and, a review of his own progress and office notes. See id. at 20 644, 651. 21 Regarding Plaintiff’s mental impairments, Dr. Bhandari diagnosed her with depression and 22 anxiety and noted that these impairments can be expected to last more than 12 months. Id. at 644. 23 He also noted that Plaintiff’s mental health impairments exacerbate her pain and the other 24 symptoms associated with her physical impairments. Id. He then listed the signs and symptoms of 25 Plaintiff’s depression and anxiety as including: decline in complex attention, executive function, 26 learning, memory, language, perceptual-motor faculties, and social cognition; diminished interest 27 in almost all activities; sleep disturbances; decreased energy; thought and concentration 1 persistent worry about the panic attacks themselves or the consequences thereof; detachment from 2 social relationships; difficulty organizing tasks; depressed mood; appetite disturbance resulting in 3 weight change; feelings of guilt or worthlessness; irritability; distress or suspicion of others; 4 difficulty sustaining attention; and, mood and behavioral disturbances. Id. at 645. As to Plaintiff’s 5 residual abilities, Dr. Bhandari defined “moderate limitation” such that would preclude Plaintiff’s 6 performance by 20% in a given 8-hour workday. Id. at 646. In this vein, he opined that Plaintiff 7 would be precluded from properly functioning for 20% of each workday in all of the four broad 8 categories of mental functioning – to wit: understanding, remembering, and applying information; 9 interacting with others; concentrating, persisting, or maintaining pace; and, adapting or managing 10 herself. Id. at 646-47. Further, Dr. Bhandari explained that Plaintiff’s depression and anxiety result 11 in persistent apathy which causes a low-energy state that serves as the foundation for these opined 12 limitations. Id. at 647. He also explained that Plaintiff’s depression and anxiety symptoms cause 13 her to experience difficulty attending appointments, taking medications with the requisite 14 regularity, and even the consistency with which she engages treatment – which, of course, 15 explains why Dr. Bhandari concluded that Plaintiff’s mental health symptoms operate to worsen 16 the effects of her physical impairments and illnesses. Id. at 648. At bottom, he concluded that 17 Plaintiff’s depression and anxiety disorders will result in her missing more than 4 days of work per 18 month, as well as resulting in Plaintiff being off-task for more than 30% of the time in the course 19 of any given work day. Id. at 647-48. 20 In the domain of physical impairments, Dr. Bhandari noted that Plaintiff’s arthritis, 21 anemia, and esophageal reflux disease have persisted for 15 years, and combine to result in a host 22 of work-related limitations. Id. at 651-52. He opined that even on an occasional basis (less than 23 1/3 of an 8-hour workday), Plaintiff’s ability to lift objects is limited to those weighing less than 24 10 pounds. Id. at 651. Dr. Bhandari added that in the course of any work day, Plaintiff would be 25 limited to alternating between sitting, standing, or walking to relieve discomfort every 30 minutes; 26 that she would not be able to either stand or sit for more than 30 minutes before needing to change 27 positions; that she could not be expected to walk for more than a 20 minute period; that Plaintiff 1 would need to be permitted to lie down and recline at unpredictable intervals during any given 2 work shift. Id. at 651-52. He specifically opined that Plaintiff’s need to recline could occur as 3 frequently as twice per hour. Id. at 652. While opining that Plaintiff could occasionally climb 4 stairs, Dr. Bhandari noted that she could never engage in maneuvers that require twisting, 5 stooping, crouching, or climbing ladders. Id. He also noted that due to her arthritic conditions, 6 Plaintiff is limited in her abilities in the domains of reaching, handling, fingering, feeling, pushing, 7 and pulling. Id. Lastly, Dr. Bhandari opined that Plaintiff’s arthritis, anemia, and esophageal reflux 8 disease would combine to cause her to be absent from work on more than three occasions per 9 month; and that the interference, caused by the necessity of her consumption of pain medication, 10 with her ability to be present and concentrate on work activities would be severe (meaning that it 11 would preclude proper functioning between 15% and 33% of the time). Id. at 653. Thereafter, in 12 August of 2019, several months after the issuance of the ALJ’s adverse decision, Plaintiff 13 submitted an updated document to the Appeals Council through which Dr. Bhandari expressed 14 these same conclusions, but attended with a few greater details regarding, for example, Plaintiff’s 15 arthritic issues with her left knee, hip, and lumbar spine. See generally id. at 10-12. 16 Another piece of evidence that Plaintiff submitted to the Appeals Council contained the 17 findings and conclusions of Veiss Zendieh, LMFT. See id. at 14-18. Therapist Zendieh, who began 18 treating Plaintiff in late 2018, noted a “long history of depression and PTSD.” Id. at 14. Following 19 a number of weekly sessions, Therapist Zendieh diagnosed Plaintiff with major depressive 20 disorder and PTSD, and assessed a Global Assessment of Functioning (“GAF”) score of 41-50, 21 attended with a notation that Plaintiff’s “symptoms of depression are severe.” Id. Manifesting a 22 great deal of overlap with Dr. Bhandari’s opinions, Therapist Zendieh opined that the effects of 23 Plaintiff’s major depressive disorder include: significant deficits in complex attention, executive 24 function, learning and memory, language, perceptual-motor function, and social cognition; 25 diminished interest in almost all activities; sleep disturbance; decreased energy; difficulty 26 concentrating or thinking; frequent distractibility; persistent fatigue; involuntary and time- 27 consuming preoccupation with intrusive and unwanted thoughts; detachment from social 1 learning and applying academic skills; depressed mood; feelings of guilt and worthlessness; 2 irritability; feelings of inadequacy; difficulty sustaining attention; involuntarily re-experiencing 3 traumatic events; mood and behavioral disturbances; as well as, persistent alteration in eating or 4 eating related behavior resulting in changes in food consumption that significantly impairs 5 physical or psychological health. Id. at 15. Unlike Dr. Bhandari, however, with regard to the 6 consequence of these symptoms, Therapist Zendieh opined that Plaintiff’s limitations in the four 7 broad categories of mental functioning were all extreme (meaning that Plaintiff has no appreciable 8 ability to function in the domains of understanding and applying information, interacting with 9 others, concentrating and maintaining pace, or adapting and managing herself). Id. at 16-17. 10 Therapist Zendieh also noted that Plaintiff has suffered from depression and PTSD for 11 many years, rooted in the fact that “she is a war victim as well.” Id. at 17. It was also noted that 12 while Plaintiff “shows very slow progress in therapy [], she needs therapy to manage her 13 symptoms and not get hospitalized.” Id. Plaintiff’s therapist also noted that Plaintiff “has limited 14 ability to complete any tasks, [and] she is isolated and unable to form social relations.” Id. 15 Consequently, Therapist Zendieh concurred with Dr. Bandhari’s assessment that Plaintiff’s 16 symptoms and their limitations would see to it that she would miss 4 or more days of work per 17 month, and that she should be expected to be off-task (when she is not absent) for more than 30% 18 of any given work day. Id. It is also noteworthy that Therapist Zendieh found that whenever 19 Plaintiff hears news related to war in Afghanistan, her symptoms worsen. Id. at 18. Plaintiff’s 20 therapist also noted that Plaintiff’s depressive disorder and PTSD are attended with: (1) medical 21 treatment, mental health therapy, psychosocial supports, or a highly structured setting that are 22 ongoing and that diminish the symptoms and signs of the mental disorder; and yet, (2) Plaintiff 23 shows only marginal adjustment, that is, she has a minimal capacity to adapt to changes in her 24 environment or to demands that are not already part of her daily life. Id. Lastly, Therapist Zendieh 25 explained that Plaintiff’s “constant depression, her lack of memory and concentration, her inability 26 to relate to others, keep schedules, [or] complete tasks prevent her from working.” Id. 27 // 1 Medical Records and Opinion Evidence from Non-Treating Examining Consultants 2 In January of 2016, Plaintiff was referred by the state Department of Social Services to 3 Paul Martin, Ph.D., for a consultative psychological examination. Id. at 430-36. Dr. Martin’s 4 report presents a series of internal inconsistencies and contradictions in that his observations seem 5 unrelated to his conclusions regarding Plaintiff’s work-related abilities. Initially, he noted that 6 Plaintiff has developed depression and anxiety, but – rather than ascribing its cause to Plaintiff’s 7 status as a war victim, and without any explanation, Dr. Martin’s report simply ascribed the cause 8 of the depression and anxiety as being “[d]ue to her medical status.” Id. at 431. He did note that 9 Plaintiff’s depressive disorder causes her to experience low energy, poor motivation, social 10 withdrawal, anhedonia, chronic fatigue, crying spells, feelings of guilt, frustration, and even 11 passible suicidal ideations (with no means, plan, or intent). Id. However, despite this, Dr. Martin 12 chose not to explore Plaintiff’s depression or trauma related disorders by, for example, delving 13 into the wartime events that caused her trauma-related disorders, or administering diagnostic 14 instruments geared towards quantifying depressive and anxiety-related disorders (such as the 15 Beck’s Depression or Anxiety Inventories). See id. at 430-31. Instead, and despite noting that 16 Plaintiff “reported as a child having a history of traumatic experiences, related to war-torn 17 Afghanistan,” Dr. Martin’s evaluation and report were almost exclusively focused on Plaintiff’s 18 cognitive, rather than emotional, capacity to function. Id. (listing the only diagnostic instruments 19 employed as being limited to an IQ test and memory test). 20 An administration of the Wechsler Adult Intelligence Scale – Fourth Edition (WAIS-IV) – 21 yielded a Full Scale IQ score of 72, meaning that Plaintiff operates in the borderline range of 22 intellectual function. Id. at 433-34. Another strong indicator of the incompleteness of Dr. Martin’s 23 report was his notation that Plaintiff’s IQ score signifies “difficulty of cognitive functioning . . . 24 [and that] [e]motional factors appear to interfere with cognitive functioning.” Id. at 434. However, 25 without administering any diagnostic instruments geared towards identifying and quantifying 26 those “emotional factors,” Dr. Martin’s report gives rise to far more questions than it answers. In 27 any event, Dr. Martin also found that Plaintiff’s memory operates “in the extremely low to 1 terse fashion, Dr. Martin’s report casually noted the presence of certain undescribed and 2 unidentified neurocognitive impairments based on Plaintiff’s poor performance on both parts of 3 the Trail Making Test; in this regard, Dr. Martin noted that “[t]hese results indicate that the 4 claimant shows significant difficulty with sustained attention and or mental tracking . . . [which] 5 indicate a likelihood of possible neurocognitive impairment.” Id. at 434-35. In the end he 6 diagnosed Plaintiff with Major Depressive Disorder, Pain Disorder, and Anxiety Disorder, while 7 noting that her “[p]sychiatric symptoms might diminish with comprehensive mental health 8 treatment.” Id. at 435. At bottom, however, and without any explanation whatsoever, Dr. Martin 9 concluded that Plaintiff’s conditions only cause mild to moderate limitations in some areas of 10 work-related functioning, and no significant limitations on other areas of work-related functioning. 11 Id. at 435-36. 12 In November of 2016, Plaintiff was referred for an internal medicine evaluation by the 13 state disability agency to Nayyar Masood, M.D., who performed only a physical examination. See 14 id. at 487-89. He did, however, note Plaintiff’s history of depression, anxiety, Type 2 diabetes, 15 hypothyroidism, lower back pain, arthritic pains (which he attributed to her depression but without 16 any explanation for that conclusion), and from low blood pressure with dizziness due to her 17 history of anemia and menorrhagia. Id. at 489. Not unlike Dr. Martin’s report, Dr. Masood’s report 18 contains some gaps (in that his functional capacity assessment does not account for any of her 19 mental health symptoms) as well as some inconsistencies (in that his functional capacity 20 assessment seems untethered from his examination findings). During his physical examination, 21 Dr. Masood noted that while Plaintiff “can slowly put all four extremities through a full range of 22 motion,” she “does complain of aches and pains in all four extremities especially in the shoulders, 23 knees, and lower back.” Id. at 488. He then observed that “[w]hen she stands and attempts to touch 24 the floor with the tops of her fingers, she stops with her fingers 14” of (sic) the floor complaining 25 of low back pain [and] [e]xtension about the lumbar spine is limited to secondary dizziness.” Id. 26 He also found that “[s]he could barely make 50% of a full squat holding on to the table.” Id. at 27 489. Nevertheless, without any explanation, Dr. Masood concluded his report as such: “I think in 1 day with usual breaks, mostly on level ground, walking at her own pace, based on her endurance. 2 She could probably sit up to six hours a day with usual breaks [and] [u]sing both hands, she could 3 lift, push or pull up to 25 pounds frequently and 50 pounds occasionally.” Id. at 489. 4 Lay Witness Testimony from Plaintiff and her Daughter 5 With assistance from her daughter, Plaintiff completed a Function Report in December of 6 2015. Id. at 269-77. The gist of this report is that the combination of the above-described 7 impairments result in her inability to even successfully do light housework, or leave the house 8 with any sense of regularity, or socialize, or enjoy a full night of sleep, or get dressed or bathe 9 without it taking a long time due to persistent pain and dizziness. Id. at 269-70, 272-76. On the 10 same date, Plaintiff’s daughter also completed a Third Party Function Report, through which she 11 provided her own insights into her mother’s overall condition. Id. at 280-87. Plaintiff’s daughter 12 noted that her mother’s depression, anxiety, and fatigue combine to interfere with her ability to 13 communicate, leave the house, handle ordinary stress, sleep, think, digest food, maintain a healthy 14 appetite, remember things, handle more than one task at a time, concentrate and pay attention, 15 comprehend, follow instructions, and handle any changes to her routine. See id. at 280, 281, 283, 16 284-85, 286. Approximately a year later, in September of 2016, Plaintiff and her daughter 17 submitted a second set of Function Reports that largely repeated more or less the same account 18 that they had provided the previous year. See id. at 311-18, 321-28. 19 Vocational Expert (“VE”) Testimony 20 The ALJ conducted a hearing on this claim in September of 2018. See id. at 43-99. 21 Therein, the VE was asked if a hypothetical person with Plaintiff’s education and background 22 would be employable if that person were to miss roughly two days of work in any given month 23 due to psychological impairments. Id. at 86-87. The VE answered in the negative, noting that if 24 “somebody were consistently to miss that much work, they would not be able to maintain 25 employment.” Id. at 87. When asked whether a hypothetical person with Plaintiff’s education and 26 background would be employable if they were consistently off-task 20% of the time due to 27 psychological symptoms, the VE once again answered in the negative and noted: “[w]ell, if 1 THE FIVE STEP SEQUENTIAL ANALYSIS FOR DETERMINING DISABILITY 2 A person filing a claim for social security disability benefits (“the claimant”) must show 3 that she has the “inability to do any substantial gainful activity by reason of any medically 4 determinable physical or mental impairment” which has lasted or is expected to last for twelve or 5 more months. See 20 C.F.R. §§ 416.920(a)(4)(ii), 416.909. The ALJ must consider all evidence in 6 the claimant’s case record to determine disability (see id. § 416.920(a)(3)), and must use a five- 7 step sequential evaluation process to determine whether the claimant is disabled (id. § 416.920). 8 “[T]he ALJ has a special duty to fully and fairly develop the record and to assure that the 9 claimant’s interests are considered.” Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983). 10 Here, the ALJ set forth the applicable law under the required five-step sequential 11 evaluation process. AR at 28-29. At Step One, the claimant bears the burden of showing she has 12 not been engaged in “substantial gainful activity” since the alleged date on which the claimant 13 became disabled. See 20 C.F.R. § 416.920(b). If the claimant has worked and the work is found to 14 be substantial gainful activity, the claimant will be found not disabled. See id. The ALJ found that 15 Plaintiff has not worked since 2002, and that even then, her earnings were still below the threshold 16 that would characterize the work as substantial gainful activity – accordingly, Plaintiff has not 17 engaged in substantial gainful activity since the alleged onset date. AR at 29. 18 At Step Two, the claimant bears the burden of showing that she has a medically severe 19 impairment or combination of impairments. See 20 C.F.R. § 416.920(a)(4)(ii), (c). “An 20 impairment is not severe if it is merely ‘a slight abnormality (or combination of slight 21 abnormalities) that has no more than a minimal effect on the ability to do basic work activities.’” 22 Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005) (quoting S.S.R. No. 96–3(p) (1996)). At Step 23 Two, the ALJ found that Plaintiff suffered from the following severe impairments: diabetes; 24 generalized myalgias and arthralgias; cartilage loss from patellar medial facet on the left knee and 25 moderate Baker’s cyst; Major Depressive Disorder; and Anxiety Disorder. Id. at 29. As to 26 Plaintiff’s anemia, the ALJ concluded (without explanation) that it does not cause any significant 27 functional limitations or more than minimally affect Plaintiff’s ability to perform basic work 1 and Menorrhagia at Step Two at all. 2 At Step Three, the ALJ compares the claimant’s impairments to the impairments listed in 3 appendix 1 to subpart P of part 404. See 20 C.F.R. § 416.920(a)(4)(iii), (d). The claimant bears the 4 burden of showing her impairments meet or equal an impairment in the listing. Id. If the claimant 5 is successful, a disability is presumed and benefits are awarded. Id. If the claimant is unsuccessful, 6 the ALJ assesses the claimant’s residual functional capacity (“RFC”) and proceeds to Step Four. 7 See id. § 416.920(a)(4)(iv), (e). Here, the ALJ found that Plaintiff did not have an impairment or 8 combination of impairments that met or medically equaled the severity of any of the listed 9 impairments. AR at 30-31. Next, the ALJ determined that Plaintiff retained the RFC to perform the 10 full range of work at the medium exertional level – specifically, that she can sit for 6 hours in an 11 8-hour workday with usual breaks; that she can stand and / or walk for 6 hours in an 8-hour 12 workday with usual breaks; that she can lift and / or carry 25 pounds frequently and 50 pounds 13 occasionally; that she has no limits in fine finger and hand movements; but, that she cannot work 14 around heights or machinery. Id. at 31-35. In this regard, the ALJ added that “[m]entally, the 15 claimant can perform simple routine tasks in a low stress environment (no fast-paced production 16 quotas, no piecemeal work, few decisions, and few changes in workplace or tasks).” Id. at 31-32. 17 At Step Four, the ALJ determined that Plaintiff is unable to perform her past relevant work 18 due to the fact that she has no past relevant work. Id. at 35. Lastly, at Step Five, the ALJ 19 concluded, based on the RFC, Plaintiff’s age, education, and the VE’s testimony, that there are 20 jobs that exist in significant numbers which Plaintiff could perform – namely, the ALJ found that 21 Plaintiff could work as a kitchen worker, a house cleaner, or a bagger. Id. at 35-36. Thus, the ALJ 22 concluded that Plaintiff had not been under a disability, as defined in the Social Security Act. Id. 23 at 36. 24 DISCUSSION 25 Based on the record as described above, Plaintiff submits that due to the ALJ’s improper 26 weighing of the evidence, this case satisfies the conditions of the credit-as-true doctrine because 27 the ALJ failed to provide legally sufficient reasons for rejecting this evidence; because, when 1 because there are no outstanding issues that need to be resolved before a disability determination 2 may be rendered; and, because a review of the record as a whole does not give rise to any serious 3 doubt that Plaintiff is, in fact, disabled. See Pl.’s Mot. (dkt. 23) at 28-30. Defendant disagrees in 4 all respects and submits that the ALJ committed no reversible error whatsoever. See Def.’s Mot. 5 (dkt. 26) at 3-11. 6 The ALJ committed no shortage of errors in the handling of this case. Initially, the court 7 must note that the ALJ erroneously concluded that Plaintiff’s anemia is non-severe because it 8 supposedly causes no significant functional limitations and that it only minimally effects 9 Plaintiff’s ability to work. AR at 29. However, elsewhere in the opinion, the ALJ plainly notes that 10 “Anemia affects her ability to work because she is dizzy and cannot concentrate.” See id. at 32. As 11 mentioned, Step two is “a de minimus screening device [used] to dispose of groundless claims.” 12 Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). Therefore, “applying our normal standard 13 of review to the requirements of step two, [the Court] must determine whether the ALJ had 14 substantial evidence to find that the medical evidence clearly established that [Plaintiff] did not 15 have a medically severe [anemia] impairment.” Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 16 2005). Aside from the internal contradiction in the ALJ’s report (claiming at one point that 17 Plaintiff’s Anemia does not affect her ability to work, see AR at 29, and then suggesting elsewhere 18 that it does, see id. at 32), the record contains a great deal of medical evidence regarding the 19 effects of Plaintiff’s anemia, while containing no support at all for the ALJ’s conclusion that the 20 condition is non-severe. See id. at 485, 492, 641-53 (Dr. Bhandari found that Plaintiff’s Arthritis, 21 Anemia, and Esophageal Reflux Disease, having persisted for 15 years, combine to result in a host 22 of work-related postural limitations); see also id. at 489 (Dr. Masood concluded that Plaintiff’s 23 persistently low blood pressure and her chronic dizziness are due to her history of anemia and 24 Menorrhagia). Accordingly, the ALJ erred in labeling Plaintiff’s anemia as non-severe, and failing 25 to take it into account at Step Two and beyond. The same is true for Plaintiff’s esophageal reflux 26 disease and her menorrhagia. These conditions were not considered elsewhere in the sequential 27 evaluation process; they are, therefore, not harmless errors. 1 in light of the evidentiary record in this case (as summarized above) reveals that the ALJ’s non- 2 disability finding was erroneous because it was based on an improper weighing of the evidence 3 where the ALJ erroneously rejected the findings and opinions of Dr. Bhandari (a treating 4 physician with a 20-year treatment relationship with Plaintiff) while adopting the internally 5 inconsistent and incomplete opinion rendered by Dr. Martin, as well as the opinion of Dr. Masood 6 (which was limited to Plaintiff’s physical abilities). See AR at 34-35. In rejecting Dr. Bhandari’s 7 work-preclusive opinions related to the symptoms and effects of Plaintiff’s major depressive 8 disorder and anxiety disorder, the ALJ offered nearly nothing by way of explanation. See id. at 33- 9 34. Other than some brief discussion of hemoglobin levels and knee cartilage, the ALJ stated only 10 (in conclusory fashion) that “a careful review of [Dr. Bhandari’s] treatment records in the file [] 11 does not show that these limitations are supported . . . [because] [t]hese records consist of routine 12 treatment notes that mostly document subjective complaints such as knee pain, low back pain, and 13 lightheadedness / dizziness . . . with little in the way of objective physical examination findings . . 14 . [therefore] I do not find that the evidence supports limiting the claimant to less than medium 15 level work activity.” Id. at 33-34 (emphasis supplied). 16 This approach is misguided, however, because no amount of “objective physical 17 examination findings” would reveal the limiting effects of emotional disorders such as depression 18 and anxiety. Indeed, this error in reasoning occurs so frequently that it has led to a wealth of 19 authority repeatedly explaining the flaw in SSA’s penchant for dismissing the opinions of treating 20 physicians regarding the effects of mental illnesses because those opinions relied in some part on 21 self-reports. In short, it is now axiomatic that mental health evaluations “will always depend in 22 part on the patient’s self-report” because “‘unlike a broken arm, a mind cannot be x-rayed.’” Buck 23 v. Berryhill, 869 F.3d 1040, 1049 (9th Cir. 2017) (quoting Poulin v. Bowen, 817 F.2d 865, 873 24 (D.C. Cir. 1987)). Accordingly, “the rule allowing an ALJ to reject opinions based on self-reports 25 [about physical impairments] does not apply in the same manner to opinions regarding mental 26 illness.” Buck, 869 F.3d at 1049. Moreover, an ALJ may not reject a medical source opinion 27 because it is based on the claimant’s self-reports when the medical source analyzes those self- 1 any event, having rejected Dr. Bhandari’s opinions, the ALJ based the RFC entirely on a synthesis 2 of the opinions rendered by the consulting examiners, Drs. Masood and Martin. See AR at 33, 34. 3 Medical opinions are “distinguished by three types of physicians: (1) those who treat the 4 claimant (treating physicians); (2) those who examine but do not treat the claimant (examining 5 physicians); and (3) those who neither examine nor treat the claimant (nonexamining physicians).” 6 Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). The medical opinion of a claimant’s treating 7 provider is given “controlling weight” so long as it “is well-supported by medically acceptable 8 clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial 9 evidence in [the claimant’s] case record.” 20 C.F.R. § 404.1527(c)(2); see also Revels v. Berryhill, 10 874 F.3d 648, 654 (9th Cir. 2017). In cases where a treating doctor’s opinion is not controlling, the 11 opinion is weighted according to factors such as the nature and extent of the treatment 12 relationship, as well as the consistency of the opinion with the record. 20 C.F.R. § 404.1527(c)(2)- 13 (6); Revels, 874 F.3d at 654. 14 “To reject [the] uncontradicted opinion of a treating or examining doctor, an ALJ must 15 state clear and convincing reasons that are supported by substantial evidence.” Ryan v. Comm’r of 16 Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) (alteration in original) (quoting Bayliss v. Barnhart, 17 427 F.3d 1211, 1216 (9th Cir. 2005)). “If a treating or examining doctor’s opinion is contradicted 18 by another doctor’s opinion, an ALJ may only reject it by providing specific and legitimate 19 reasons that are supported by substantial evidence.” Id. (quoting Bayliss, 427 F.3d at 1216); see 20 also Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (“[The] reasons for rejecting a treating 21 doctor’s credible opinion on disability are comparable to those required for rejecting a treating 22 doctor’s medical opinion.”). “The ALJ can meet this burden by setting out a detailed and thorough 23 summary of the facts and conflicting clinical evidence, stating his [or her] interpretation thereof, 24 and making findings.” Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (quoting Cotton v. 25 Bowen, 799 F.2d 1403, 1408 (9th Cir. 1986)). Further, “[t]he opinion of a nonexamining physician 26 cannot by itself constitute substantial evidence that justifies the rejection of the opinion of either 27 an examining physician or a treating physician.” Lester, 81 F.3d at 831; see also Revels, 874 F.3d 1 169 F.3d 595, 602 (9th Cir. 1999); see also Erickson v. Shalala, 9 F.3d 813, 818 n.7 (9th Cir. 2 1993). In situations where a Plaintiff’s condition progressively deteriorates, the most recent 3 medical report is the most probative. See Young v. Heckler, 803 F.2d 963, 968 (9th Cir. 1986). 4 It will not be necessary to determine whether or not the later-rendered findings and 5 opinions of Dr. Bhandari were “contradicted” by the earlier-rendered opinion of the consultant 6 psychologist (Dr. Martin) or the consultant internist (Dr. Masood) because the ALJ’s explanations 7 for rejecting Dr. Bhandari’s opinions did not even rise to the standard of specific and legitimate 8 reasons supported by substantial evidence. This is so because, in light of the record as a whole (as 9 described in detail above), it cannot be reasonably suggested that the outlier and conclusory 10 opinion of Dr. Martin (attended as it was by internal contradictions), by itself, constitutes 11 “substantial evidence.” Or, put another way, it is simply not possible to reasonably contend that 12 “the nature and extent of the treatment relationship, as well as the consistency of [Dr. Bhandari’s] 13 opinion with the [overall] record” (see Revels, 874 F.3d at 654), allowed for the ALJ to reject that 14 opinion in favor of Dr. Martin’s earlier-rendered and internally inconsistent opinion that seems to 15 have been based on an incorrect focus on Plaintiff’s cognitive, rather than emotional, impairments. 16 Aside from the improper rejection of Dr. Bhandari’s opinions, there is an independent error in 17 giving controlling weight to the opinions of Drs. Masood and Martin as it relates to Plaintiff’s 18 major depressive disorder, her anxiety disorder, and her PTSD. The opinions of these consultant 19 examiners are outliers in this record and they do not constitute “substantial evidence” because it 20 cannot be reasonably suggested that those opinions are “such relevant evidence as a reasonable 21 mind might accept as adequate to support a conclusion” to the effect that Plaintiff’s depression, 22 anxiety, and PTSD are attended with so few limitations. See Biestek, 139 S. Ct. at 1154. Therefore, 23 since the ALJ improperly rejected Dr. Bhandari’s opinions without providing any explanation that 24 can be described as specific or legitimate – let alone being based on substantial evidence in the 25 record – Dr. Bhandari’s opinions will now be credited as true. 26 As to Plaintiff’s own statements from the two Function Reports described above, as well as 27 her hearing testimony, the ALJ rejected all of those statements by repeating a now-infamous 1 U.S. Dist. LEXIS 63029, at *19 (E.D. Wis. Apr. 8, 2020). In this regard, the ALJ merely stated, “I 2 find that the claimant’s medically determinable impairments could reasonably be expected to 3 cause some of the alleged symptoms; however, the claimant’s statements concerning the intensity, 4 persistence, and limiting effects of these symptoms are not entirely consistent with the medical 5 evidence and other evidence in the record for reasons explained in this decision.” See AR at 33. 6 This statement – or a substantially similar version of it – has repeatedly been criticized by 7 reviewing courts as “meaningless boilerplate.” See e.g., Hardman v. Barnhart, 362 F.3d 676, 679 8 (10th Cir. 2004); Parker v. Astrue, 597 F.3d 920, 921 (7th Cir. 2010); Bjornson v. Astrue, 671 9 F.3d 640, 645 (7th Cir. 2012) (holding that this boilerplate fails to inform us in a meaningful, 10 reviewable way of the specific evidence the ALJ considered in determining that claimant’s 11 complaints were not credible); Minger v. Berryhill, 307 F. Supp. 3d 865 (N.D. Ill. 2018); Whyte v. 12 Saul, No. 18-CV-1274, 2019 U.S. Dist. LEXIS 185830, 2019 WL 5541412, *5 (E.D. Wis. Oct. 13 25, 2019); Justin H. v. Berryhill, No. 2:18CV383, 2019 U.S. Dist. LEXIS 96582, 2019 WL 14 2417423, *13 (N.D. Ind. June 7, 2019). Furthermore, while objective medical evidence can 15 establish the presence of certain underlying impairments, an ALJ “may not discredit a claimant’s 16 [symptom] testimony . . . solely because the [alleged] degree of [those symptoms] . . . [are] not 17 supported by objective medical evidence.” Bunnell v. Sullivan, 947 F.2d 341, 345, 347 (9th Cir. 18 1991). 19 Instead, where an ALJ discredits a claimant’s testimony, “clear and convincing” reasons 20 must be provided. Valentine v. Comm’r, 574 F.3d 685, 693 (9th Cir. 2009). In this regard, the 21 ALJ’s reasoning must be “sufficiently specific” for “a reviewing court to conclude the adjudicator 22 rejected the claimant’s testimony on permissible grounds.” Bunnell, 947 F.2d at 345. Because the 23 ALJ’s single-sentence boilerplate explanation here failed to meet that standard, the court finds that 24 the rejection of Plaintiff’s statements and testimony were error; accordingly, the entirety of 25 Plaintiff’s statements (from her Function Reports) and her hearing testimony will now be credited 26 as true. 27 Similarly, the ALJ improperly also rejected the accounts provided by Plaintiff’s daughter 1 entirety of Plaintiff’s daughter’s account by merely stating that “[t]o the extent that [her] 2 statements suggest that the claimant is unable to perform work under the residual functional 3 capacity determined herein, they are given little weight as inconsistent with the overall evidence of 4 record.” Id. at 35-36. In order to reject the testimonial statements of a lay-witness, an ALJ must 5 “give[] reasons germane to each witness for doing so.” Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 6 2001). The reasons advanced for rejecting lay-witness testimony must also be “specific.” Stout v. 7 Comm’r, SSA, 454 F.3d 1050, 1054 (9th Cir. 2006). Germane reasons for discrediting such 8 testimony could include inconsistency with specifically-identified medical evidence, or the fact 9 that the testimony “generally repeat[s]” the properly discredited testimony of a claimant. Bayliss v. 10 Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005). However, it is important to note that the mere lack 11 of support from medical records is not a germane reason to discount lay-witness testimony. 12 Diedrich v. Berryhill, 874 F.3d 634, 640 (9th Cir. 2017). Here, in violation of the holding in Stout, 13 the ALJ merely stated that this witness’s statements were inconsistent with the overall evidence of 14 record, which fails to clarify which statements might be inconsistent with which evidence. Despite 15 the failure of the ALJ’s explanation to satisfy the legal standards described herein, the ALJ’s 16 conclusion was independently incorrect in that Plaintiff’s daughter’s account was wholly 17 consistent with the overwhelming weight of the evidence of record including Dr. Bhandari’s 18 findings and opinions, Plaintiff’s own statements, Therapist Zendieh’s findings and opinions, and 19 even with large portions of Dr. Martin’s report (except his functional capacity assessment). 20 Accordingly, because the ALJ improperly rejected the testimony of Plaintiff’s daughter, that 21 testimony will now be credited as true as a matter of law. 22 Nature of Remand 23 The decision whether to remand for further proceedings or for payment of benefits 24 generally turns on the likely utility of further proceedings. Carmickle v. Comm’r, SSA, 533 F.3d 25 1155, 1169 (9th Cir. 2008). A district court may “direct an award of benefits where the record has 26 been fully developed and where further administrative proceedings would serve no useful 27 purpose.” Smolen, 80 F.3d at 1292. The Court of Appeals for the Ninth Circuit has established a 1 benefits directed.” Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir. 2000). Remand for an 2 immediate award of benefits is appropriate when: (1) the ALJ has failed to provide legally 3 sufficient reasons for rejecting such evidence; (2) there are no outstanding issues that must be 4 resolved before a determination of disability can be made; and, (3) it is clear from the record that 5 the ALJ would be required to find the claimant disabled were such evidence credited. Id. The 6 second and third prongs of the test often merge into a single question; that is, whether the ALJ 7 would have to award benefits if the case were remanded for further proceedings. Id. at 1178 n.2; 8 see also Garrison v. Colvin, 759 F.3d 995, 1021-23 (9th Cir. 2014) (when all three conditions of 9 the credit-as-true rule are satisfied, and a careful review of the record discloses no reason to 10 seriously doubt that a claimant is, in fact, disabled, a remand for a calculation and award of 11 benefits is required). 12 Initially, the court will note that the Appeals Council’s rejection of Therapist Zendieh’s 13 findings and report was improper. In this regard, the Appeals Council premised its rejection of 14 Therapist Zendieh’s findings on the incorrect notion that “[t]his additional evidence does not relate 15 to the period at issue” because the ALJ “decided [the] case through November 23, 2018 [and] 16 [t]his additional evidence does not relate to the period at issue . . . [and] does not affect the 17 decision about whether you were disabled beginning on or before November 23, 2018.” See AR at 18 2. This holding is erroneous for several reasons. First, November 23, 2018 was the date on which 19 the ALJ issued an opinion, so that date frames the end, not the beginning, of the relevant period of 20 time under consideration by the Appeals Council. See id. at 36. Plaintiff’s application date was 21 October 28, 2015, and her alleged onset date (as noted in the ALJ decision) was July 31, 2002. See 22 id. at 27. Second, while it is true that Plaintiff’s course of treatment with Therapist Zendieh began 23 in December of 2018, a month after the issuance of the ALJ’s opinion, the findings and 24 conclusions expressed in Therapist Zendieh’s report were clearly retrospective and therefore 25 relevant to the disability time-frame which commenced with Plaintiff’s alleged onset date. See id. 26 at 14-18. Thus, despite Defendant’s incorrect contention that Therapist Zendieh’s opinions were 27 “stated in the present [tense]” (see Def.’s Mot. (dkt. 26) at 10), Therapist Zendieh’s opinion 1 PTST” are rooted in her experiences as a war victim, and that her war-related trauma causes the 2 severity of her symptoms to increase each time she experiences memory triggers such as when she 3 hears current news regarding events in Afghanistan. See AR at 14, 17, 18. Because Therapist 4 Zendieh’s findings and opinions are focused on Plaintiff’s mental health issues that have existed 5 since long before her alleged onset date, the Appeals Council erred in concluding otherwise. 6 Therapist Zendieh’s opinions, therefore, should have been considered, and “[w]here the Appeals 7 Council was required to consider additional evidence, but failed to do so, remand to the ALJ is 8 appropriate so that the ALJ can reconsider its decision in light of the additional evidence.” Taylor 9 v. Comm’r of SSA, 659 F.3d 1228, 1233 (9th Cir. 2011). Therefore, because this is evidence that 10 would also have to be considered by the ALJ on remand, the court can now include its 11 consideration in the determination of whether the record as it now stands (after application of the 12 credit-as-true doctrine to Plaintiff’s statements, the lay witness testimony, and Dr. Bhandari’s 13 finding and opinions) would require the ALJ to find Plaintiff disabled on remand and whether or 14 not the record manifests any serious doubts that Plaintiff is in fact disabled. Because the court has 15 already credited Dr. Bhandari’s findings and opinion as true, it seems virtually impossible that 16 Therapist Zendieh’s overwhelmingly consistent opinion would be legitimately rejected on remand. 17 In light of the above-discussed and improperly discredited lay-witness accounts and 18 medical opinion evidence, two things are clear: first, it is clear that Plaintiff has in fact been 19 disabled since her alleged onset date, and second, it is clear that further administrative proceedings 20 would be useless because the ALJ would be required to find Plaintiff disabled on remand. 21 Plaintiff’s major depressive disorder would compel a disability finding at Step Three because it 22 meets or at least equals (considering her depression in combination with her anxiety disorder, 23 PTSD, borderline intellectual function, and memory function in the extremely low range) the 24 criteria for Listing 12.04(A)(1) (depressive disorder). See 20 C.F.R. Pt. 404, Subpt. P, app. 1, 25 §12.04. To satisfy the criteria of Listing 12.04, it is necessary to satisfy the pertinent criteria listed 26 in subparts (A)(1) and (B), or (A)(1) and (C). See id. Subpart (A)(1) requires medical 27 documentation of a depressive disorder, characterized by five or more of the following: depressed 1 sleep disturbance; observable psychomotor agitation or retardation; decreased energy; feelings of 2 guilt or worthlessness; difficulty concentrating or thinking; or thoughts of death or suicide. 3 §12.04(A)(1). As discussed above, Dr. Bhandari found that Plaintiff satisfied virtually every factor 4 in Subpart (A)(1) – let alone satisfying 5 out of 9. In fact, even Dr. Martin’s report indicated that 5 Plaintiff’s depressive disorder causes her to experience low energy, poor motivation, social 6 withdrawal, anhedonia, chronic fatigue, crying spells, feelings of guilt, frustration, and even 7 passible suicidal ideations (with no means, plan, or intent). See AR at 431. Therapist Zendieh 8 found that Plaintiff’s depression satisfies all four factors in Subpart (B) by concluding that 9 Plaintiff’s condition is attended with extreme limitations in all four of the Subpart (B) categories – 10 let alone marked limitations in two of the four. See id. at 16-17. Furthermore, even though meeting 11 or equaling Listing 12.04 only requires satisfaction of the pertinent criteria listed in subparts 12 (A)(1) and (B), or (A)(1) and (C), Therapist Zendieh also found that Plaintiff’s condition satisfies 13 the requirements of Subpart (C). See id. at 18. Accordingly, on remand the ALJ would clearly be 14 required to find that Listing 12.04’s requirements are, at least, met by Plaintiff’s major depressive 15 disorder, let alone being required to find an equivalence in listing-level severity if the combined 16 effects of Plaintiff’s limitations are to be fairly considered. 17 The second reason that the record conclusively establishes that Plaintiff has been disabled 18 since her alleged onset date is that the combination of her mental and physical impairments would 19 surely compel a disability finding during the formulation of the RFC – that is, the combined 20 effects of debilitating depression, anxiety disorder, PTSD, borderline intellectual functioning, 21 extreme low range memory function, the unexplored indications of a neurocognitive disorder as 22 mentioned by Dr. Martin (see AR at 434-35), diabetes, anemia (causing fatigue and dizziness), 23 bone and cartilage degradation in her spine and knee, and, arthritic pain in her shoulders, elbows, 24 spine, and knees. Additionally, given the fact that the improperly rejected evidence established 25 that the combined effects of Plaintiff’s symptoms would see to it that she would miss more than 26 four days of work per month, and that for the days she would not be absent she should be expected 27 to be off-task more than 30% of the time, the only reasonable conclusion is that she has no 1 Zendieh’s finding that Plaintiff’s symptoms combine to cause extreme limitations (i.e., a complete 2 “inability to function”) in all of the four broad categories of work related functional categories. See 3 id. at 16-17. 4 Turning to the third and final reason that further proceedings would be futile – when the 5 improperly rejected evidence is given effect, the ALJ would also be required to find Plaintiff 6 disabled at Step Five based on the VE’s testimony. The VE testified that someone with Plaintiff’s 7 education and background would not be employable if they were to consistently miss as little as 8 two workdays per month, or if they were off-task as little as 20% of the time. See id. at 87, 94. 9 Clearly, the same would apply to someone who (as opined by Dr. Bhandari) would be absent more 10 than three days per month (id. at 653), while being off-task more than 33% of any given workday 11 (id. at 12). Therefore, on remand, Plaintiff would also undoubtedly be found disabled based on the 12 VE’s testimony at Step Five. 13 At this juncture, the court will note that in cases where each of the credit-as-true factors is 14 met, it is generally only in “rare instances” where a review of the record as a whole gives rise to a 15 “serious doubt as to whether the claimant is actually disabled.” Revels, 874 F.3d at 668 n.8 (citing 16 Garrison, 759 F.3d at 1021). This is not one of those “rare instances,” as the record leaves no 17 room to doubt that Plaintiff has in fact been disabled, at least since her alleged onset date, if not 18 much earlier.7 Needlessly remanding a disability claim for further unnecessary proceedings would 19 only delay much needed income for claimants such as Plaintiff who are unable to work and who 20 are entitled to benefits; doing so would in turn subject them to “tremendous financial difficulties 21 while awaiting the outcome of their appeals and proceedings on remand.” Varney v. Sec’y of 22 Health & Human Servs., 859 F.2d 1396, 1398 (9th Cir. 1988). The court is satisfied that the ALJ’s 23 unsupported conclusions were thoroughly negated by the overwhelming weight of the record 24 evidence which conclusively and convincingly establishes Plaintiff’s longstanding disability such 25 26 7 Defendant incorrectly contends that when Plaintiff stopped working in 2002, it was because her family’s business closed, not because she became unable to work, as evidenced by the fact that she claimed to have 27 been “taking care of her husband and raising her children.” See Def.’s Mot. (dkt. 26) at 7. However, this is an incorrect characterization of Plaintiff’s testimony; in reality, when asked whether she was able to seek 1 that no further inquiry is necessary. 2 CONCLUSION 3 Accordingly, for the reasons stated above, Plaintiffs Motion for Summary Judgment (dkt. 4 23) is GRANTED, and Defendant’s Cross-Motion (dkt. 26) is DENIED. The ALJ’s finding of 5 || non-disability is REVERSED, and the case is REMANDED for the immediate calculation and 6 || payment of appropriate benefits consistent with the findings and holdings expressed herein. 7 IT IS SO ORDERED. 8 Dated: September 13, 2021 9 10 RQ@BERT M. ILLMAN I United States Magistrate Judge a 12
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