Belew v. Kijakazi

• Court: District Court, E.D. Washington
• Decided: January 9, 2023
• Docket: 1:20-cv-03174
• Status: Unknown

Opinion

EASTERUN. SD.I SDTIRSITCRTI COTF CWOAUSRHTI NGTON 1 Jan 09, 2023 2 SEAN F. MCAVOY, CLERK 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF WASHINGTON

7 MARGARET B.,1 No. 1:20-CV-03174-ACE

8 Plaintiff, ORDER GRANTING PLAINTIFF’S 9 MOTION FOR SUMMARY 10 v. JUDGMENT AND REMANDING FOR ADDITIONAL PROCEEDINGS 11 KILOLO KIJAKAZI, 12 ACTING COMMISSIONER OF SOCIAL SECURITY, ECF Nos. 20, 23 13

14 Defendant.

15 BEFORE THE COURT are cross-motions for summary judgment. ECF 16 No. 20, 23. Attorney D. James Tree represents Margaret B. (Plaintiff); Special 17 Assistant United States Attorney L. Jamala Edwards represents the Commissioner 18 of Social Security (Defendant). The parties have consented to proceed before a 19 magistrate judge. ECF No. 8. After reviewing the administrative record and the 20 briefs filed by the parties, the Court GRANTS Plaintiff’s Motion for Summary 21 Judgment; DENIES Defendant’s Motion for Summary Judgment; and 22 REMANDS the matter to the Commissioner for additional proceedings pursuant to 23 42 U.S.C. § 405(g). 24 /// 25

27 1To protect the privacy of plaintiffs in social security cases, the undersigned 28 identifies them by only their first names and the initial of their last names. 1 JURISDICTION 2 Plaintiff protectively filed an application for Disability Insurance Benefits 3 and an application for Supplemental Security Income on December 30, 2014, 4 alleging disability since June 1, 2014 due to anxiety, bipolar disorder, post- 5 traumatic stress disorder (PTSD), and depression. Tr. 15, 88, 108, 252-66. The 6 applications were denied initially and upon reconsideration. Tr. 138-46. 7 Administrative Law Judge (ALJ) Chris Stuber held a hearing on April 9, 2020.2 8 Tr. 15, 62-85. ALJ Stuber issued an unfavorable decision on April 23, 2020. Tr. 9 12-32. Plaintiff requested review by the Appeals Council and the Appeals Council 10 denied the request for review on August 24, 2020. Tr. 1-6. The ALJ’s April 2020 11 decision became the final decision of the Commissioner, which is appealable to the 12 district court pursuant to 42 U.S.C. § 405(g). Plaintiff filed this action for judicial 13 review on October 22, 2020. ECF No. 1. 14

15 2 Plaintiff failed to appear for a hearing before an ALJ on November 23, 16 2016, and on April 4, 2017 an ALJ found there was no good cause for Plaintiff’s 17 failure to appear and dismissed her request for hearing. Tr. 129-34. Plaintiff 18 requested review of the decision by the Appeal’s Council, and on January 31, 2018 19 the Appeals Council granted Plaintiff’s request for review, vacated the ALJ’s order 20 of dismissal, and remanded the case for further proceedings. Tr. 135-37. The 21 Appeals Council ordered the ALJ to consider additional information to decide if 22 Plaintiff had a good reason for not appearing at the hearing; and if so, she was to 23 be given another opportunity for a hearing. Tr. 136-137. The Appeals Council 24 noted Plaintiff was homeless at the time of hearing, the post office had returned the 25 Notice to Show Cause letters to sender, and that Plaintiff alleged mental health 26 issues and had called to alert the hearing office she would not attend. Tr. 136. In 27 2020, ALJ Stuber found Plaintiff had good cause to miss the 2016 hearing and held 28 a new hearing. Tr. 15. 1 STANDARD OF REVIEW 2 The ALJ is tasked with “determining credibility, resolving conflicts in 3 medical testimony, and resolving ambiguities.” Andrews v. Shalala, 53 F.3d 1035, 4 1039 (9th Cir. 1995). The ALJ’s determinations of law are reviewed de novo, with 5 deference to a reasonable interpretation of the applicable statutes. McNatt v. Apfel, 6 201 F.3d 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed 7 only if it is not supported by substantial evidence or if it is based on legal error. 8 Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is 9 defined as being more than a mere scintilla, but less than a preponderance. Id. at 10 1098. Put another way, substantial evidence “is such relevant evidence as a 11 reasonable mind might accept as adequate to support a conclusion.” Richardson v. 12 Perales, 402 U.S. 389, 401 (1971), (quoting Consolidated Edison Co. v. NLRB, 13 305 U.S. 197, 229 (1938)). If the evidence is susceptible to more than one rational 14 interpretation, the Court may not substitute its judgment for that of the ALJ. 15 Tackett, 180 F.3d at 1098; Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 16 599 (9th Cir. 1999). If substantial evidence supports the administrative findings, or 17 if conflicting evidence supports a finding of either disability or non-disability, the 18 ALJ’s determination is conclusive. Sprague v. Bowen, 812 F.2d 1226, 1230 (9th 19 Cir. 1987). Nevertheless, a decision supported by substantial evidence will be set 20 aside if the proper legal standards were not applied in weighing the evidence and 21 making the decision. Brawner v. Sec’y of Health and Hum. Services, 839 F.2d 22 432, 433 (9th Cir. 1988). 23 SEQUENTIAL EVALUATION PROCESS 24 The Commissioner has established a five-step sequential evaluation process 25 for determining whether a person is disabled. 20 C.F.R. §§ 404.1520(a), 26 416.920(a); Bowen v. Yuckert, 482 U.S. 137, 140-142 (1987). In steps one through 27 four, the claimant bears the burden of establishing a prima facie case of disability 28 benefits. Tackett, 180 F.3d at 1098-1099. This burden is met once a claimant 1 establishes that a physical or mental impairment prevents the claimant from 2 engaging in past relevant work. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). If a 3 claimant cannot perform past relevant work, the ALJ proceeds to step five, and the 4 burden shifts to the Commissioner to show (1) that Plaintiff can perform other 5 substantial gainful activity and (2) that a significant number of jobs exist in the 6 national economy which Plaintiff can perform. Kail v. Heckler, 722 F.2d 1496, 7 1497-1498 (9th Cir. 1984); Beltran v. Astrue, 700 F.3d 386, 389 (9th Cir. 2012). If 8 a claimant cannot make an adjustment to other work, the claimant will be found 9 disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). 10 ADMINISTRATIVE FINDINGS 11 On April 23, 2020 the ALJ issued a decision finding Plaintiff was not 12 disabled as defined in the Social Security Act. Tr. 12-32. 13 At step one, the ALJ found Plaintiff had not engaged in substantial gainful 14 activity since June 1, 2014, the alleged onset date. Tr. 17. 15 At step two, the ALJ determined Plaintiff had the following medically 16 determinable impairments: polysubstance abuse, asthma, posttraumatic stress 17 disorder (PTSD), obesity, major depressive disorder, degenerative disc disease, and 18 a personality disorder. Tr. 18. The ALJ then found that Plaintiff did not have an 19 impairment or combination of impairments that significantly limited (or were 20 expected to significantly limit) her ability to perform basic work-related activities, 21 and that Plaintiff’s impairments were therefore nonsevere. Tr. 18, 24.

22 The ALJ thus concluded Plaintiff was not under a disability within the 23 meaning of the Social Security Act at any time from her alleged onset date, June 1, 24 2014 through the date of the decision. Tr. 25. 25 ISSUES 26 The question presented is whether substantial evidence supports the ALJ’s 27 decision denying benefits and, if so, whether that decision is based on proper legal 28 1 standards. Plaintiff raises the following issues for review: whether the ALJ 2 conducted a proper step-two analysis. ECF No. 20 at 2. 3 DISCUSSION A. Step Two 4 5 Plaintiff contends the ALJ erred at step two by finding no severe 6 impairments, improperly evaluating the medical opinion evidence and Plaintiff’s 7 subjective complaints, failing to consider Plaintiff’s bipolar disorder, and denying 8 Plaintiff’s claim at step two of the sequential analysis. ECF No. 20 at 7-19. 9 At step two of the sequential evaluation process, the ALJ must determine 10 whether the claimant has any medically determinable severe impairments. 20 11 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). An impairment may be found to 12 be not severe when “medical evidence establishes only a slight abnormality or a 13 combination of slight abnormalities which would have no more than a minimal 14 effect on an individual’s ability to work . . . .” Social Security Ruling (SSR) 85-28 15 at *3. Similarly, an impairment is not severe if it does not significantly limit a 16 claimant’s physical or mental ability to do basic work activities; which include 17 walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling; 18 seeing, hearing, and speaking; understanding, carrying out and remembering 19 simple instructions; use of judgment, responding appropriately to supervision, 20 coworkers and usual work situations; and dealing with changes in a routine work 21 setting. 20 C.F.R. §§ 404.1522, 416.922; SSR 85-28.3 22 The step-two analysis is “a de minimis screening device [used] to dispose of 23 groundless claims.” Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005) (quoting 24 25

26 3 The Supreme Court upheld the validity of the Commissioner’s severity 27 regulation, as clarified in SSR 85-28, in Bowen v. Yuckert, 482 U.S. 137, 153-54 28 (1987). Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996)). The ALJ many only find a 1 2 claimant lack a medically severe impairment or combination of impairments if the 3 ALJ’s conclusion is “clearly established by medical evidence.” Webb, at 687 4 (quoting SSR 85-28). 5 When a claimant alleges a severe mental impairment, the ALJ must also 6 follow a two-step “special technique.” 20 C.F.R. §§ 404.1520a, 416.920a. First, 7 the ALJ must evaluate the claimant’s “pertinent symptoms, signs, and laboratory 8 findings to determine whether [he or she has] a medically determinable 9 impairment.” 20 C.F.R. §§ 404.1520a(b)(1), 416.920a(b)(1). Second, the ALJ 10 must assess and rate the “degree of functional limitation resulting from [the 11 claimant’s] impairments” in four broad areas of functioning: understand, 12 remember, or apply information; interact with others; concentrate, persist, or 13 maintain pace; and adapt or manage oneself. 20 C.F.R. §§ 404.1520a(b)(2)-(c)(4), 14 416.920a(b)(2)-(c)(4). Functional limitation is measured as “none, mild, moderate, 15 marked, and extreme.” 20 C.F.R. §§ 404.1520a(c)(4), 416.920a(c)(4). If 16 limitation is found to be “none” or “mild,” the impairment is generally considered 17 to not be severe. 20 C.F.R. §§ 404.1520a(d)(1), 416.920a(d)(1). If the impairment 18 is severe, the ALJ proceeds to step three to determine whether the impairment 19 meets or is equivalent in severity to a listed mental disorder. 20 C.F.R. §§ 20 404.1520a(d)(2)-(3), 416.920a(d)(2)-(3). 21 Here, the ALJ found Plaintiff had medically determinable mental health 22 23 impairments, but denied Plaintiff’s claim for disability at step two, concluding that 24 her medically determinable impairments did not significantly limit her ability to 25 perform basic work related activities for 12 consecutive months; and caused 26 Plaintiff no limits in understanding, remembering or applying information, 27 interacting with others, adapting or managing herself, and only mild limits in 28 concentrating, persisting and maintaining pace. Tr. 18, 24. The ALJ found, therefore, her history of polysubstance abuse, PTSD, major depressive disorder, 1 2 and personality disorder were not severe impairments. 3 Plaintiff contends the ALJ harmfully erred in denying Plaintiff’s claim at 4 step two, because despite diagnosis and treatment for numerous mental health 5 impairments, along with examining psychologists’ opinions that she had disabling 6 limitations from mental health impairments throughout the period at issue, the ALJ 7 found Plaintiff lacked any medically severe impairments since her alleged onset 8 date in 2014 through the hearing in 2020. ECF No. 20 at 7-19. Defendant 9 contends the ALJ reasonably found that Plaintiff’s medically determinable 10 impairments nonsevere based on objective medical evidence and Plaintiff’s 11 demonstrated abilities at the time of the hearing. ECF No. 20 at 4-11. 12 The Court finds the ALJ erred by denying her claim at step two. First, the 13 ALJ’s analysis of the four broad areas of functioning focused on her functioning as 14 of her 2019 return to full time work. Tr. 24. This is insufficient. Plaintiff’s 15 alleged onset date is in 2014, and records show a long history of mental health 16 treatment, including diagnosis and treatment for bipolar disorder, persistent 17 suicidal ideation with inpatient psychiatric hospitalization and treatment in 2018, 18 and a long history of substance abuse with periods of treatment, sobriety, and 19 relapse throughout the period at issue. See, e.g., 423, 451-52, 645, 648-649, 774- 20 75, 792, 802, 886, 896, 944. 958, 1074-76, 1093-94, 1095-99. Records throughout 21 the period at issue show persistent abnormal findings upon mental status exam, 22 23 including depressed, anxious, or labile mood, and impaired judgement and insight, 24 and providers have noted “personality issues,” anger, irritability, and difficulty 25 interacting with others, along with paranoia and auditory hallucinations; she has 26 also had repeat periods of homelessness coinciding with increased mental health 27 symptoms and/or periods of relapse into substance use. See, e.g., Tr. 410-11, 451- 28 52, 774-45, 802, 875, 884-85, 892, 921-22, 924, 927, 934, 944-45, 949, 951-52, 961, 978, 1087, 1089-90, 1178, 1182. The ALJ’s finding that Plaintiff’s medically 1 2 determinable impairments did not significantly limit Plaintiff’s mental ability to do 3 basic work activities for 12 consecutive months, and that Plaintiff therefore did not 4 have a medically severe impairment or combination of impairments during the 5 entire period at issue is not supported by substantial evidence. 6 1. Medical Opinions 7 Plaintiff contends the ALJ erred when weighing the medical opinions at step 8 two.4 ECF No. 20 at 15-19. 9 There are three types of physicians: “(1) those who treat the claimant 10 (treating physicians); (2) those who examine but do not treat the claimant 11 (examining physicians); and (3) those who neither examine nor treat the claimant 12 [but who review the claimant’s file] (nonexamining [or reviewing] physicians).” 13 Holohan v. Massanari, 246 F.3d 1195, 1201-02 (9th Cir. 2001) (citations omitted). 14 Generally, a treating physician’s opinion carries more weight than an examining 15 physician’s opinion, and an examining physician’s opinion carries more weight 16 than a reviewing physician. Id. at 1202. “In addition, the regulations give more 17 weight to opinions that are explained than to those that are not . . . and to the 18 opinions of specialists concerning matters relating to their specialty over that of 19 nonspecialists.” Id. (citations omitted). If a treating or examining physician’s 20 opinion is uncontradicted, the ALJ may reject it only by offering “clear and 21 22

4 For claims filed on or after March 27, 2017, new regulations apply that 23 change the framework for how an ALJ must evaluate medical opinion evidence. 24 Revisions to Rules Regarding the Evaluation of Medical Evidence, 2017 WL 25 26 168819, 82 Fed. Reg. 5844-01 (Jan. 18, 2017); 20 C.F.R. §§ 404.1520c, 416.920c. 27 For claims filed before March 27, 2017, such as this one, the rules in 20 C.F.R. §§ 28 404.1527, 416.927 apply. convincing reasons that are supported by substantial evidence.” Bayliss v. 1 2 Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005); Lester v. Chater, 81 F.3d 821, 830 3 (9th Cir. 1995). “If a treating or examining doctor’s opinion is contradicted by 4 another doctor’s opinion, an ALJ may only reject it by providing specific and 5 legitimate reasons that are supported by substantial evidence.” Id. 6 Here, in discussing the medical opinion evidence, the ALJ noted “the record 7 contains multiple psychological evaluations and reviews performed for 8 establishing and/or maintaining State benefits through . . . DSHS.” Tr. 23 (citing 9 Tr. 386-93, 450-54, 1255-84, 1520-21). The ALJ did not discuss the findings or 10 opinions of the individual psychologists. Id. Instead, the ALJ gave the opinions as 11 a group “no weight,” finding the opinions were “inconsistent with the minimal 12 observations of psychiatric symptoms” and Plaintiff’s activities, including work 13 activity. Tr. 23. Because the opinions of the examining psychologists were 14 contradicted by the 2015 opinions of state agency reviewing doctors, the ALJ was 15 required to provide specific and legitimate reasons supported by substantial 16 evidence to reject them. 17 Dr. Yun and Examining Psychologists 18 In 2016 and 2018, Jenna Yun, Ph.D. completed psychological/psychiatric 19 evaluations of Plaintiff on behalf of Washington State DSHS and provided 20 opinions on Plaintiff’s level of functioning. Tr. 1255-68, 1269-84. In 2016, Dr. 21 Yun diagnosed Plaintiff with borderline personality disorder; PTSD; major 22 23 depressive disorder, moderate and recurrent; amphetamine use disorder, in reported 24 early remission; and cocaine use disorder, in reported sustained remission. Tr. 25 1271. She opined Plaintiff had severe limits in her ability to in her ability to 26 understand, remember, and persist in tasks by following very short and simple 27 instructions and detailed instructions, to learn new tasks, communicate and 28 perform effectively in a work setting, maintain appropriate behavior in a work setting, complete a normal workday and work week without interruptions from 1 2 psychologically based symptoms, and to set realistic goals and plan independently; 3 she had marked limits in her ability to perform activities within a schedule, 4 maintain regular attendance, and be punctual within customary tolerances without 5 special supervision, adapt to changes in a routine work setting, and make simple 6 work-related decisions; and moderate limits in her ability to perform routine tasks 7 without special supervision, be aware of normal hazards and take appropriate 8 precautions, and to ask simple questions or request assistance. Tr. 1272. Dr. Yun 9 opined the overall severity of Plaintiff’s impairments was severe and not primarily 10 the result of alcohol or substance use substance within the past 60 days, and that 11 the impairments would persist following 60 days of sobriety. Tr. 1272. She 12 opined Plaintiff would be so limited for 12 months with available treatment. Id. 13 In 2018, Dr. Yun evaluated Plaintiff again. Tr. 1255-68. Dr. Yun diagnosed 14 Plaintiff with borderline personality disorder; PTSD; major depressive disorder, 15 severe with psychotic features, recurrent; amphetamine use disorder, in reported 16 sustained remission; and cocaine use disorder, in reported sustained remission. Tr. 17 1257. She opined Plaintiff had marked limitation in her ability to understand, 18 remember, and persist in tasks by following detailed instructions, adapt to changes 19 in a routine work setting, maintain appropriate behavior in a work setting, and 20 complete a normal workday and work week without interruptions from 21 psychologically based symptoms; and moderate limits in her ability to perform 22 23 activities within a schedule, maintain regular attendance, and be punctual within 24 customary tolerances without special supervision, learn new tasks, perform routine 25 tasks without special supervision, make simple work related decisions, 26 communicate and perform effectively in a work setting, set realistic goals and plan 27 independently. Tr. 1257-58. Dr. Yun opined the overall severity of Plaintiff’s 28 impairments was marked and not primarily the result of a substance use disorder, and that the effects would persist following 60 days of sobriety. Tr. 1258. She 1 2 opined Plaintiff would be so limited for 12 months with available treatment. Id. 3 The ALJ did not address Dr. Yun’s two opinions, rejecting them generally 4 with the opinions of all psychologists who evaluated Plaintiff on behalf of 5 Washington State DSHS between 2014 and 2018. Tr. 23. Providing a blanket 6 rejection of the opinions is contrary to the regulations which require that each 7 medical source opinion be evaluated. 20 C.F.R. §§ 404.1527(b)-(c), 416.927(b)- 8 (c). The ALJ also discounted the opinions of the examining psychologists because 9 the evaluations were performed for the purpose of establishing or maintaining state 10 benefits. Tr. 23. However, the purpose for which medical reports are obtained 11 does not provide a legitimate basis for rejecting them. Lester, 81 F.3d at 832 12 (citation omitted). The ALJ erred by failing to evaluate each medical source 13 opinion and discounting the opinions as a whole because they were provided for 14 state benefits. 15 Next, the ALJ gave the evaluations no weight because the opinions were 16 inconsistent with minimal observations of psychiatric symptoms at a variety of 17 medical appointments in the record. Tr. 23. An ALJ may discredit physicians’ 18 opinions that are unsupported by the record as a whole. Batson v. Comm’r of Soc. 19 Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004). However, an ALJ must also 20 consider all of the relevant evidence in the record and may not point to only those 21 portions of the records that bolster his findings. See, e.g., Holohan, 246 F.3d at 22 23 1207-08 (holding that an ALJ cannot selectively rely on some entries in plaintiff’s 24 records while ignoring others). Here, the string of cites the ALJ uses to support his 25 conclusion that Dr. Yun and other examining provider’s opinion are inconsistent 26 with “minimal observations of psychiatric symptoms” includes numerous office 27 visits for unrelated physical issues including gynecological issues, contraception, 28 snoring, a rash, multiple visits for sinusitis, a sore ankle, and more than one visit for a foot infection. See Tr. 523, 529, 534, 590, 594, 602, 818, 829, 832, 997. 1 2 Additionally, while citing some generally normal mental status findings from 3 physical exams, the ALJ fails to note abnormal findings or other relevant evidence 4 at the same appointment; the ALJ, for example, cites to normal mental status 5 findings in October 2014, but fails to discuss issues with anger and irritability, 6 recent prescription for Depakote, suicidal ideation and note by the provider that her 7 mental health treatment is provided by a different mental health specialist. Tr. 399. 8 While the ALJ cites to a page from a therapy appointment in 2014 showing she 9 “presented as happy/excited” because she had just been released from jail, her 10 therapist also noted at that time that her mental health symptoms persisted and that 11 her treatment plan included reduction of symptoms of depression and panic 12 disorder. Tr. 404-05. The ALJ cited to normal portions of another mental status 13 exam in October 2014, Tr. 405, but abnormal findings at the same visit included 14 impaired judgement and insight, and Plaintiff reported she was recently homeless 15 with increasing symptoms including anger and irritability. Tr 407, 410. Many of 16 the records the ALJ cites to also reference Plaintiff’s bipolar disorder, specifically 17 noting she is treated by a mental health specialist/clinic for mental health, but the 18 ALJ does not discuss this impairment in the decision. See, e.g., Tr. 590, 601, 818 19 (noting treatment for bipolar disorder managed by different provider and treated 20 with medication). 21 The ALJ fails to discuss relevant evidence including provider observations 22 23 of abnormal findings on mental status exam throughout the period at issue, 24 including frequent abnormal mood findings and persistent impairment in 25 judgement and insight. See e.g., Tr. 410, 875, 884-885, 951-52, 961, 1089-90, 26 1095, 1160, 1182, 1260, 1274, 1296, 1308, 1315, 1326. Upon mental exam in 27 2016, Dr. Yun also observed anxious depressed mood with tearful and depressed 28 affect, and while Plaintiff’s thought process appeared normal and she was oriented, Dr. Yun observed her memory, fund of knowledge, and concentration were 1 2 impaired, as was her judgement and insight. Tr. 1273-74. In 2018, Dr. Yun again 3 noted Plaintiff demonstrated impaired judgement and lack of insight into her 4 conditions. The ALJ is not permitted to “cherry pick” from mixed evidence to 5 support a denial of benefits. Garrison v. Colvin, 759 F.3d 995, 1017 n.23 (9th Cir. 6 2014). The ALJ’s conclusion the evaluating psychologists’ opinions, including Dr. 7 Yun’s 2016 and 2018 opinions, were inconsistent with minimal observations of 8 psychiatric symptoms in the record is not supported by substantial evidence. 9 The ALJ also determined the evaluating psychologists’ opinions were 10 inconsistent with Plaintiff’s activities, including her ability to work in lieu of 11 incarceration and her recent work activity as describe at the hearing. An ALJ may 12 discount a medical source opinion to the extent it conflicts with the claimant’s 13 daily activities. Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 601-02 (9th 14 Cir. 1999). Here, however, there is no evidence Plaintiff worked more than 15 sporadically or part time at any time during the period at issue until 2019, and the 16 ALJ noted minimal earnings in 2014, 2015, and 2018 that did not rise to the level 17 of SGA. Tr. 17-18. While she testified she was working full time at the 2020 18 hearing, this was many years after her alleged onset date in 2014, and she reported 19 full time work only began in 2019. The ALJ’s conclusion that Plaintiff’s work 20 activity was inconsistent with the examining psychologists’ opinions is not 21 supported by substantial evidence. 22 23 Given the ALJ’s failure to consider relevant evidence in the record and 24 adequately address the opinions of the examining psychologists, the ALJ’s step 25 two analysis is not supported by substantial evidence. The errors in evaluating the 26 medical evidence including opinion evidence were not harmless because had the 27 evaluations of Dr. Yun or the other examining psychologists been credited, the 28 ALJ would have found Plaintiff’s mental health impairments severe, necessitating 1 2 completion of the sequential analysis beyond step two. 3 Upon remand, the ALJ shall reevaluate the medical evidence, including all 4 medical evidence, with the assistance of psychological medical expert testimony to 5 determine Plaintiff’s impairments and level of functioning. 6 2. Symptom Testimony 7 Plaintiff contends the ALJ erred by improperly assessing Plaintiff’s 8 subjective complaints. ECF No. 20 at 11. It is the province of the ALJ to make 9 determinations regarding a claimant’s subjective statements. Andrews, 53 F.3d at 10 1039. However, the ALJ’s findings must be supported by specific, cogent reasons. 11 Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). Once the claimant 12 produces medical evidence of an underlying medical impairment, the ALJ may not 13 discredit testimony as to the severity of an impairment merely because it is 14 unsupported by medical evidence. Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 15 1998). Absent affirmative evidence of malingering, the ALJ’s reasons for rejecting 16 the claimant’s testimony must be “specific, clear and convincing.” Smolen, 80 17 F.3d at 1281; Lester, 81 F.3d at 834. “General findings are insufficient: rather the 18 ALJ must identify what testimony is not credible and what evidence undermines 19 the claimant’s complaints.” Lester at 834; Dodrill v. Shalala, 12 F.3d 915, 918 (9th 20 Cir. 1993). Here, the ALJ found that Plaintiff’s medically determinable 21 impairments could reasonably be expected to produce some of the alleged 22 23 symptoms; however, Plaintiff’s statements concerning the intensity, persistence 24 and limiting effects of her symptoms were not entirely consistent. Tr. 19. 25 Having determined a remand is necessary to reassess the medical evidence 26 and perform the step two analysis anew, any reevaluation entails a reassessment of 27 Plaintiff’s subjective symptom claims. Thus, the Court need not reach this issue 28 and on remand the ALJ must also carefully reevaluate Plaintiff’s symptom claims 1 in the context of the entire record. See Hiler v. Astrue, 687 F.3d 1208, 1212 (9th Cir. 2012) (“Because we remand the case to the ALJ for the reasons stated, we 3|| decline to reach [plaintiff's] alternative ground for remand.”). 4 CONCLUSION 5 The ALJ’s decision is not supported by substantial evidence and not free of 6|| harmful error. Upon remand the ALJ shall reassess Plaintiffs medically 7|| determinable impairments and level of functioning during the entire period at 8|| issue. The ALJ shall reevaluate the medical evidence of record with the assistance Tl of psychological medical expert testimony, including the medical opinion evidence 10}! and plaintiff's subjective complaints, taking into consideration any other evidence or testimony relevant to Plaintiff's disability claim. Accordingly, IT IS ORDERED: 4 1. Plaintiff's Motion for Summary Judgment, ECF No. 20, is 15 GRANTED. 16 2. Defendant’s Motion for Summary Judgment, ECF No. 23, is 7 DENIED. 18 3. The matter is REMANDED to the Commissioner for additional 19 proceedings consistent with this Order. 20 4. An application for attorney fees may be filed by separate motion. > The District Court Executive is directed to file this Order and provide a copy to counsel for Plaintiff and Defendant. Judgment shall be entered for Plaintiff and the file shall be CLOSED. DATED January 9, 2023. 25 7 Sbdeom 26 ae dp Agee C. EKSTROM □ UNITED STATES MAGISTRATE JUDGE 28