1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA 3 4 GLENN D. BRADBURY, Case No. 3:19-CV-01667-WHO
5 Plaintiff, ORDER ON CROSS MOTIONS FOR 6 v. SUMMARY JUDGMENT
7 ANDREW SAUL, Re: Dkt. Nos. 19 and 20 Defendant. 8
9 The parties have filed cross-motions for summary judgment in this Social Security appeal. 10 After reviewing the parties’ papers and the administrative record, I GRANT plaintiff Glenn D. 11 Bradbury’s motion, DENY the Commissioner of Social Security’s motion, and remand this case 12 for further proceedings. 13 BACKGROUND 14 I. PROCEDURAL HISTORY 15 Bradbury filed a claim for Title II disability insurance benefits on October 26, 2015. 16 Administrative Record (“AR”) 86. The Social Security Administration denied his claim on 17 February 18, 2016. AR 105. He filed a request for reconsideration, which the Social Security 18 Administration denied on June 9, 2016. AR 112. He then requested a hearing that was held on 19 November 27, 2017, before Administrative Law Judge (“ALJ”) Michael A. Cabotaje. AR 117, 20 32. Bradbury and Malcolm Brodzinsky, a vocational expert (“VE”), testified. AR 32. On June 7, 21 2018, the ALJ issued a decision finding that Bradbury was not disabled. AR 25. The Appeals 22 Council denied Bradbury’s request for review of the ALJ’s decision, AR 1–3, and Bradbury 23 timely appealed the ALJ’s decision. 24 II. WORK AND MEDICAL HISTORY 25 Bradbury claims that he is disabled as a result of (i) neck and back pain and (ii) depression. 26 AR 68, 87. He alleges that he became disabled, as defined under the Act, as of November 26, 27 2014, although he had neck pain that started in mid-2013. AR 68, 88; see also AR 37. He most 1 was asked to “dig holes to plant flowers/plants, clean laundromat/machines (washers and dryers), 2 spray/pull weeds around complex, prune plants/trees, fix cooler pumps, [and] use blower around 3 complex.” AR 225. He also “lifted ladder[s] to get on roof/change lights, carried leaf blower[s], 4 carried weed sprayer, lifted bags of soil/plants, [miscellaneous] things and carried them around 5 [the apartment] complex and mobile home park … .” Id. 6 On November 26, 2014, when Bradbury was working as a manager, he was stomping on 7 garbage in a dumpster. AR 42. He fell out of the dumpster, hit the left side of his body, and was 8 taken to the emergency room. AR 659. He was fired from his manager job on the same day as his 9 fall and filed a California Workers’ Compensation Form dated December 5, 2014. AR 618, 717. 10 He has not worked since November 26, 2014. AR 203. 11 A. Medical Provider Records 12 1. Physical Impairments 13 a. Jeffrey S. Yablon, M.D. 14 Jeffrey S. Yablon, M.D. conducted an “initial neurosurgical consultation” of Bradbury on 15 September 3, 2013, at the University of California-San Francisco facility in Napa, California. AR 16 761–765. Six months before visiting Yablon, Bradbury “developed the insidious onset of shoulder 17 pain followed by left arm numbness and tingling radiating into his left thumb” that “was followed 18 shortly thereafter by neck pain.” AR 761. Yablon reviewed a “cervical MRI scan” showing that 19 Bradley had a “moderately large central left-sided disc osteophyte complex pushing the thecal sac 20 back posteriorly and severely compressing the left C6 root.” Id. Yablon opined that Bradbury had 21 “left C6 radiculopathy secondary to be aforementioned pathology.” AR 764. Yablon discussed 22 with Bradbury the treatment options of “conservative therapy versus surgery.” Instead of 23 choosing surgery, Bradbury indicated that he “would like to try physical therapy and cervical 24 epidural steroids.” Id. 25 b. Michael T. Young, D.O. 26 Michael T. Young, D.O., started treating Bradbury on November 12, 2013. AR 1310. 27 Young met with Bradbury monthly through 2017. Id. Young’s treatment of Bradbury included 1 Young also referred Bradbury to physical therapy and prescribed medications, including Percocet, 2 from November 4, 2014, to May 12, 2017. AR 655 (November 4, 2014), 659 (December 3, 2014), 3 666 (February 3, 2015), 671 (March 3, 2015), 675 (April 14, 2015), 679 (May 12, 2015), AR 683 4 (June 10, 2015), 687 (July 8, 2015), 692 (August 7, 2015), 697 (September 4, 2015), 701 5 (September 29, 2015), 705 (October 2, 2015), 709 (October 30, 2015), 1209 (December 31, 2015), 6 1214 (December 31, 2015), 1219 (January 29, 2016), 1225 (February 26, 2016), 1235 (March 25, 7 2016), 1240 (April 21, 2016), 1245 (May 20, 2016), 1250 (June 16, 2016), 1255 (July 15, 2016), 8 1262 (August 16, 2016), 1274 (September 14, 2016), 1279 (October 13, 2016), 1284 (November 9 11, 2016), 1289 (January 13, 2017), 1301 (March 14, 2017), 1306 (May 12, 2017); see also AR 10 1310 (Medical Source Statement where Young described his overall treatment of Bradbury). 11 Young’s treatment notes document how physical activity affected Bradbury’s neck pain. 12 In notes dated November 12, 2013, Young wrote that Bradbury “has noticed that his neck pain 13 gradually developed with numbing and tingling sensation radiating down to his left arm” and 14 “[a]ny type of activity aggravates his pain.” AR 648. In notes from a visit on December 3, 2014, 15 Young wrote under the “History of Present Illness” section, “[a]ny type of activity aggravates 16 [Bradbury’s] pain.” AR 659. Under the “Chief Complaint” section of the treatment notes dated 17 May 12, 2015, Young wrote, “neck pain.” AR 678. The “History of Present Illness” section of 18 the notes states that Bradbury’s “neck pain has been increasing, pain increases with pushing, 19 pulling, and lifting … . Neck pain is at base of the neck and radiates into his back … .” Id. 20 Reports of Bradbury’s neck pain increasing with pushing, pulling, and lifting are found in all of 21 Young’s treatment notes from June 2015 through May 2017. AR 682 (June 10, 2015), 686 (July 22 8, 2015), 691 (August 7, 2015), 696 (September 4, 2015), 700 (September 29, 2015), 704 (October 23 2, 2015), 708 (October 30, 2015), 1208 (December 31, 2015), 1213 (December 31, 2015), 1218 24 (January 29, 2016), 1224 (February 26, 2016), 1234 (March 25, 2016), 1239 (April 21, 2016), 25 1244 (May 20, 2016), 1249 (June 16, 2016), 1254 (July 15, 2016), 1261 (August 16, 2016), 1273 26 (September 14, 2016), 1278 (October 13, 2016), 1283 (November 11, 2016), 1288 (January 13, 27 2017), 1300 (March 14, 2017), 1305 (May 12, 2017). 1 and back pain. AR 1218 (January 26, 2016 treatment notes recording, under the “Chief 2 Complaint” section, that “currently [Bradbury] suffered from chronic pain to neck and lower back. 3 … he doesn’t get any relief unless he lies down”); AR 1239 (notes dated April 21, 2016, stating, 4 “[u]sually [Bradbury] lies down, his numbness in his left arm would go away however he notices 5 that numbness has to be persistent”). 6 Young completed a “Medical Source Statement - Physical Questionnaire” dated 7 September 7, 2017 (“Medical Source Statement”). AR 1310–12. He diagnosed Bradbury with 8 cervical spine stenosis. AR 1310. He also gave his opinion on Bradbury’s “ability to perform and 9 sustain various activities.” Id. (emphasis in original). He said that Bradbury can “occasionally … 10 lift and carry in a competitive work situation” 10–20 pounds.1 Id. If Bradbury was “placed in a 11 full-time competitive work situation (8 hrs per day, 5 days per week, or an equivalent 12 schedule),” Young opined that he could “sit at one time, e.g., before needing to get up, or lie 13 down, etc.” for 20 minutes at a time for up to two hours in an eight-hour workday. AR 1311 14 (emphasis in original). When asked how long Bradbury could “stand at one time, e.g., before 15 needing to sit down, lie down, walk around, etc.,” Young repeated the opinion above--20 minutes 16 at a time for up to two hours in a workday. Id. (emphasis in original). However, when asked 17 whether Bradbury’s “condition require[s] him to lie down/recline during the day,” Young stated 18 “no.” Id. Immediately after that response, Young gave his opinion on Bradbury’s “Cervical- 19 spine/neck” condition. Id. Young opined that Bradbury could “rarely” “[l]ook down (sustained 20 flexion of neck)[,] [t]urn head right or left[,] [l]ook up[, or h]old head in [a] static position.”2 Id. 21 When asked whether Bradbury’s “cervical spine/neck pain require[s] him to rest his head/neck 22 during the day (i.e., either lying down, resting head against [a] pillow, etc),” Young replied, “yes,” 23 “every 2 h[ou]rs.” Id. 24 c. Mark H. Luoto, M.D. 25 Mark H. Luoto, M.D., saw Bradbury in connection with his workers’ compensation 26 1 “Occasionally” is defined as “6% to 33% of an 8–hour working day.” AR 1310. 27 1 benefits. AR 893. Bradbury met with Luoto on five separate occasions in 2015. For each visit, 2 Luoto filled out a document titled “Job Care Clinic Report” (“Report”). AR 574–75 (April 20, 3 2015), 715–16 (March 9, 2015), AR 717–18 (January 23, 2015), 890–92 (July 20, 2015), 910–12 4 (June 8, 2015). A separate document titled “Work Status” was also completed during each visit.3 5 AR 565 (July 20, 2015), 568 (June 8, 2015), 573 (April 20, 2015), 578 (March 9, 2015), 583 6 (January 23, 2015). 7 The Reports document Bradbury’s complaints regarding his neck, back, arm, and leg pain. 8 The Report from the January 23, 2015, visit states that Bradbury “has longstanding neck and left 9 arm pain.” AR 717. Bradbury “does have some chronic back pain, but now has back pain with 10 bilateral leg pain, primarily left leg pain to his calf.” Id. The pain “is all exacerbated by a fall out 11 of a dumpster.” Id. The Report from the March 9, 2015, visit states that Bradbury “is developing 12 more back and left leg pain.” AR 715. The Report from the June 8, 2015, visit states Bradbury 13 “has back pain that is still there with upper leg pain . . . .” AR 910. The Report from the July 20, 14 2015, visit states Bradbury “has ongoing neck pain” and “back pain with intermittent bilateral leg 15 pain generally above the knees.” AR 890. 16 At the conclusion of each Report, Luoto opined on Bradbury’s ability to lift, bend, and 17 stoop. Under the “work status” section of the Report from the January 23, 2015 visit, Luoto 18 wrote, “No lifting greater than 10–15 pounds, no overhead lifting. No repetitive bending or 19 stooping.” AR 718. In his Report from the March 9, 2015 visit, Luoto stated, “No lifting greater 20 than 10–15 pounds, no lifting overhead, no repetitive stooping.” AR 716. The Report from 21 Bradbury’s April 20, 2015, visit included “No lifting greater than 10–15 pounds, no significant 22 bending or stooping.” AR 575. The Report from the June 8, 2015, visit declared “no lifting 23 greater than 15 pounds, no excessive bending or stooping.” AR 891; see also AR 911 (Report 24 from July 20, 2015, stating “[n]o lifting greater than 15 pounds. No excessive bending or 25 stooping.”). 26
27 3 The “Work Status” documents were completed during or immediately following Bradbury’s 1 The Work Status forms also have checkboxes indicating a person’s ability to perform 2 various physical activities, such as, “lift/carry,” “bend,” “squat,” “kneel,” “climb,” and 3 “push/pull.” AR 565, 568 (same), 578 (same), 583 (same). Each physical activity can be 4 performed in the degrees of “not at all,” “occasionally,” or “frequently.” Id. For the Work Status 5 forms from January 23, 2015 – April 20, 2015, Luoto did not use those checkboxes, but instead 6 simply wrote “[n]o lifting [greater than] 10–15 [pounds].” AR 573 (April 2015), 578 (March 9, 7 2015), 583 (January 23, 2015). Luoto also did not use the checkboxes on the Work Status forms 8 from June 8, 2015, and July 20, 2015, instead writing “[n]o lifting [greater than] 15 [pounds].” 9 AR 565 (July 2015), 568 (June 2015). While the Work Status forms did not ask specifically about 10 neck function or neck pain, in every Work Status form, under the “Diagnosis” section, “neck” & 11 “back pain” were listed. AR 565 (July 20, 2015), 568 (June 8, 2015), 573 (April 20, 2015), 578 12 (March 9, 2015), 583 (January 23, 2015). 13 2. Mental Impairments 14 Bradbury claims to suffer from depression. AR 68, 87. In 2005, Bradbury was diagnosed 15 with a major depressive disorder and “posttraumatic stress symptoms” following the death of his 16 girlfriend. AR 828 (Brian Thomas, M.D. visit notes dated August 11, 2005). The record shows 17 that to treat Bradbury’s depression and PTSD, he was prescribed Lexapro or Citalopram starting in 18 January 2010 and through at least December 2015. AR 290 (records showing Bradbury switching 19 from Citalopram to Lexapro starting March 30, 2015), AR 335 (records showing Bradbury taking 20 Citalopram starting October 4, 2013), AR 374 (records showing Bradbury being prescribed 21 Lexapro from January 27, 2010 – November 12, 2012), AR 393 (records showing Bradbury being 22 prescribed Citalopram from January 8, 2013 – May 21, 2013), AR 1001 (records showing 23 Bradbury still being prescribed Lexapro, seeking a higher dosage on December 15, 2015). After 24 the dumpster accident and getting fired from his job in November 2014, Bradbury started seeing 25 Kevin Gutfield, LCSW, for psychotherapy. AR 948–50. In July 2016, Bradbury’s treating 26 physician (Young) also recommended that Bradbury receive “cognitive behavioral therapy” for a 27 “multidisciplinary approach to his chronic pain.” AR 1258. 1 December 15, 2015. AR 938, 999. Gutfield diagnosed Bradbury with a “[d]isorder, prolonged 2 posttraumatic stress” and “[d]epressive disorder, major, recur[rent], mild.” 295 (March 30, 2015), 3 297 (March 27, 2015), 302 (March 16, 2015), 309 (February 12, 2015), AR 319 (December 29, 4 2014). 5 Gutfield’s visit notes document the severity of Bradbury’s depressive symptoms. In 6 Gutfield’s notes dated February 12, 2015, Bradbury “admit[ted] to having a [history] of 7 depression.” AR 307. Bradbury told Gutfield he took Lexapro for his depression, and it helped 8 him “significantly” like “[l]ife was fresh every day.” Id. In notes dated March 16, 2015, under 9 the “Current Assessment” section, Bradbury reported that he “is depressed secondary to not 10 working/financial problems and other life stressors.” AR 299. In the same notes, Gutfield wrote 11 that Bradbury scored a 17 on a PHQ9 (Patient Health Questionnaire) test, which “indicates major 12 depressive disorder.” Id. In Gutfield’s notes dated March 30, 2015, under the “Current 13 Assessment” section, Bradbury “relates [an] increase in [symptoms] of depression.” AR 294. 14 Under the “Response to Interventions/Progress Towards Goals and Objectives” section, it states 15 that Bradbury “has increased [symptoms] of depression secondary to losing his job and not 16 hav[ing] a stable place to live.” AR 296. In his notes dated July 24, 2015, Gutfield wrote that 17 Bradbury “feels somewhat depressed but that is situational by self[-]report.” AR 993. 18 Gutfield completed a “Short–Form Evaluation for Mental Disorders” dated December 1, 19 2015 (“Mental Evaluation”). AR 938–42. In the Mental Evaluation, Gutfield diagnosed Bradbury 20 with Major Depressive Disorder. AR 938. Gutfield opined that Bradbury has a “depressed … 21 mood” with “flat … affect.” AR 939. Under the “Progress in Treatment and Prognosis” section, 22 Gutfield wrote, “[Bradbury] does well in [treatment] but has chronic pain [and] depression … .” 23 AR 940. Gutfield said that Bradbury has a “fair” ability to “[c]omplete a normal workday and 24 workweek without interruptions from psychologically based symptoms.”4 AR 941. Gutfield also 25 stated that Bradbury has a “[g]ood” ability to “[m]aintain concentration, attention, and pace” and 26 4 “Fair” means the “evidence supports the conclusion that the individual’s capacity to perform the 27 activity is impaired, but the degree/extent of the impairment needs to be further described.” AR 1 “[p]erform activities within a schedule and maintain regular attendance.”5 Id. 2 B. State Agency Consultants 3 1. A. Amarnath and M. Acinas, M.D. 4 A. Amarnath reviewed Bradbury’s case file and issued a physical Residual Functional 5 Capacity assessment (“RFC”) at the initial level dated December 16, 2015. AR 78–80. Amarnath 6 opined that Bradbury could “occasionally … lift and/or carry (including upward pulling)” 20 7 pounds, and “frequently … lift and/or carry (including upward pulling)” 10 pounds.6 AR 78. 8 During an eight–hour workday, Bradbury could “stand and/or walk” and “sit (with normal 9 breaks)” for “about 6 hours.”7 AR 78–79. Amarnath stated that Bradbury could frequently climb 10 ramps or stairs, and occasionally climb ladders, ropes, or scaffolds; he could occasionally stoop, 11 kneel, and crouch. AR 79. Finally, Bradbury should “[a]void concentrated exposure” to 12 “[h]azards (machinery, heights, etc.).” AR 80. 13 M. Acinas, M.D. reviewed Bradbury’s case file and issued a physical RFC at the 14 reconsideration level dated June 8, 2016. AR 96–98. Acinas opined that Bradbury could 15 occasionally lift and/or carry 20 pounds, frequently lift and/or carry ten pounds, and during an 16 eight–hour workday, he could stand and/or walk and sit (with normal breaks) for “about 6 hours.” 17 AR 96–97. Acinas stated that Bradbury could frequently climb ramps or stairs, and occasionally 18 climb ladders, ropes, or scaffolds, and could occasionally stoop, kneel, and crouch. Id. Bradbury 19 should “[a]void concentrated exposure” to “[h]azards (machinery, heights, etc.).” AR 98. 20 2. Phillip M. Cushman, Ph.D. 21 Phillip M. Cushman, Ph.D. is a clinical psychologist who examined Bradbury at the 22
23 5 “Good” is defined as “[t]he effects of the mental disorder do no significantly limit the individual from consistently and usefully performing the activity.” AR 941. 24
6 “Occasionally” means “cumulatively more than 1/3 up to 2/3 of an 8 hour day.” AR 78. 25 “Frequently” means “cumulatively more than 1/3 up to 2/3 of an 8 hour day.” AR 78.
26 7 When determining an RFC, the Social Security Administration requires that in “order to perform a full range of sedentary work, an individual must be able to remain in a seated position for 27 approximately 6 hours of an 8-hour workday, with a morning break, a lunch period, and an 1 request of the State agency and submitted a “Psychological Evaluation” dated January 7, 2016. 2 AR 1010–14. Cushman diagnosed Bradbury with: “Opioid Dependence, under physician’s care;” 3 “Opioid–Induced Mood Disorder;” “Pain Disorder Associated with both Psychological Factors 4 and a General Medication Condition, chronic;” and “Adjustment Disorder with Mixed Anxiety 5 and Depressed Mood.” AR 1014. 6 Cushman opined that Bradbury’s pain will affect his ability to work, concluding that 7 Bradbury will have “difficulties at this time with regular attendance and consistent participation, 8 with complaints of pain and malaise.” Id. Due to “complaints of pain and malaise,” Bradbury 9 will also “have a difficult time working a normal workday or work week . . . .” Bradbury “does 10 appear capable of getting along with supervisors, coworkers, and the general public when he is 11 experiencing less pain.” Id. When Bradbury is “experiencing less pain,” Cushman opined that he 12 has the “ability to deal with the usual stressors encountered in a competitive work environment.” 13 Id. 14 3. Lisa Fitzpatrick, Psy.D. and L. Colsky, M.D. 15 Lisa Fitzpatrick, Psy.D. reviewed Bradbury’s case file and issued an Adult Medically 16 Determinable Impairments (“MDI”) report dated February 17, 2016, and a mental RFC dated 17 February 17, 2016. AR 76–77, 80–81. Under the “Impairments” section of the MDI, Fitzpatrick 18 listed “Affective Disorders” and indicated that they are “Severe.” AR 76. For the mental RFC, 19 Fitzpatrick opined that Bradbury has a “moderately limited” ability to “carry out detailed 20 instructions” and “maintain attention and concentration for extended periods.” AR 80–81. He 21 also has a “moderately limited” “ability to understand and remember detailed instructions.” AR 22 80. Fitzpatrick stated that Bradbury is “[u]nable to consistently remember/understand moderately 23 to highly complex/detailed instructions.” Id. He is “able to tolerate simple changes in routine, 24 avoid hazards, travel independently, and make/carry out simple plans.” AR 81. 25 L. Colsky, M.D. reviewed Bradbury’s case file and issued an MDI dated June 7, 2016, and 26 a mental RFC dated June 7, 2016. AR 94–95, 98–100. Under the “Impairments” section of the 27 MDI, Colsky listed “Affective Disorders” and indicated they were “Severe.” AR 94. For the 1 instructions” and “maintain attention and concentration for extended periods.” AR 99. Colsky 2 stated that Bradbury’s “ability to understand and remember very short and simple instructions” 3 was “[n]ot significantly limited.” AR 98. Bradbury is “[u]nable to consistently 4 remember/understand moderately to highly complex/detailed instructions,” but is “[a]ble to 5 tolerate simple changes in routine, avoid hazards, travel independently, and make/carry out simple 6 plans.” AR 98–99. 7 C. The ALJ Hearing 8 Bradbury’s hearing before the ALJ was held on November 27, 2017. AR 32. During the 9 hearing, Bradbury described his neck and arm pain. Bradbury testified that the pain “starts in my 10 neck and it runs down my arm and it’s just my whole arm goes numb all the way to my 11 fingertips.” AR 43. When asked about holding his head up or changing its position, Bradbury 12 stated, “I’m just trying to get comfortable and I just don’t have a way to do it.” AR 65. When 13 asked if he could turn his head, Bradbury testified that he can turn “[m]ore to the left than the 14 right, but … it puts a sharp pain in my shoulder, in my shoulder blade when I turn my head.” Id. 15 Bradbury stated that laying on his stomach, “makes my head go back … and it puts [my neck] in a 16 bind and it makes everything go numb.” AR 66. 17 When asked how he deals with the pain, Bradbury testified that if he was at home, he 18 would “take a couple pain pills, go lie down and try to get to the position where I could get most 19 comfortable.” AR 43. To manage the pain, Bradbury stated that “[s]tanding up is a little better 20 than sitting down, but I just can’t do either one it seems like.” Id. 21 During the hearing, Bradbury explained that he saw Luoto in 2015 “to continue workers’ 22 comp[ensation] … .” AR 52. When asked whether Luoto assessed Bradbury’s “back and all of 23 your conditions,” Bradbury stated that he saw Luoto on a “month–to–month” basis and “he just 24 wanted to see if I was improving.” AR 53. He then testified that “it got to a point where I seen 25 [sic] [Luoto] long enough to where he didn’t think it was getting better … .” Id. After listening to 26 Bradbury explain his visits with Luoto, the ALJ stated, “[s]o here is my issue. There are 27 limitations assessed by [Luoto] and there are limitations assessed by Young. One is more severe 1 Brodzinsky, the VE, testified at the hearing following Bradbury. AR 27. The ALJ asked 2 the VE two hypothetical questions about an individual of Bradbury’s age, education, and work 3 experience, with the limitation that “[t]his person can lift and carry no more than 15 pounds as 4 opposed to 20.” AR 58. In this hypothetical, the ALJ stated that this individual could “frequently 5 climb ramps and stairs, occasionally climb ladders, ropes and scaffolds, occasionally stoop, kneel, 6 crouch and crawl.” Id. First, the ALJ asked the VE if this hypothetical individual could perform 7 Bradbury’s past jobs and the answer was “[n]o.” AR 59. The VE also provided three available 8 jobs for this hypothetical individual. AR 59–60. For his second question, the ALJ added the 9 limitation that the hypothetical individual could “stand and walk for two hours and sit for two 10 hours.” AR 60. When asked if the hypothetical individual could perform in any jobs in the 11 national economy, the VE replied “[n]o.” Id. 12 Bradbury’s attorney cross-examined the VE. He asked two questions using the same 13 hypothetical individual as the ALJ, but with an additional limitation for each question. First, the 14 VE was asked if the hypothetical individual was “off task 15% of the day,” would the available 15 jobs discussed by the VE be affected. AR 61. The VE replied, “[t]hat would eliminate all of the 16 jobs I talked about.” Id. Second, the VE was asked how the available jobs would be affected if, in 17 addition to the off-task limitation, the hypothetical individual needed “unscheduled breaks of 15 18 minutes” every two hours. The VE replied such a limitation “would preclude all work.” Id. 19 III. ALJ’S DETERMINATION 20 The ALJ followed the “five-step sequential evaluation process.” AR 16. At Step One, the 21 ALJ found that Bradbury “has not engaged in substantial gainful activity since November 26, 22 2014.” AR 17. At Step Two, the ALJ found that Bradbury “has the following severe 23 impairments: cervical and lumbar degenerative disc disease.” Id. He determined that Bradbury’s 24 mental impairment of depression did not cause more than minimal limitations and, therefore, was 25 non-severe. Id. In doing so, the ALJ considered the four broad areas of mental functioning and 26 concluded that in each — based on the opinions of the Cushman and Gutfield, Bradbury’s 27 therapist — Bradbury’s depression caused only mild limitations in any functional areas. AR 17- 1 18.8 At Step Three, the ALJ found that Bradbury’s stenosis was not an impairment that meets or 2 medically equals the severity of one of the listed impairments (“List of Impairments”) in 20 3 C.F.R., Part 404, Subpart P, Appendix 1. AR 18-19. 4 In determining Bradbury’s Residual Functional Capacity (RFC), the ALJ found the 5 residual functional capacity to perform light work as defined in 20 C.F.R. § 404.1567(b) with the 6 following limitations: “he can lift and carry no more than 15 pounds; frequently climb ramps and 7 stairs; occasionally climb ladders, ropes, and scaffolds; and occasionally stoop, kneel, crouch, and 8 crawl. He cannot work with exposure to unprotected heights or heavy moving machinery.” AR 19. 9 Concerning Bradbury’s testimony regarding how his pain (neck, arm, and back) and how 10 numbness limited his mobility and ability to sit, the ALJ concluded that Bradbury’s statements 11 concerning the “intensity, persistence and limiting effects of these symptoms are not entirely 12 consistent” with the medical and other evidence in the record. AR 20. The ALJ noted that 13 Bradbury’s 2013 MRI supported his claim of limited ability “to use his upper left extremity,” but 14 the evidence of record (including that Bradbury continued to work after the MRI until his injury in 15 2014) did “not support the claimant’s alleged inability to sit or stand/walk for prolonged periods” 16 or his claims of intense pain. AR 20. The ALJ supported his decision by pointing out that 17 Bradbury received only minimal and conservative treatment (Percocet, occasional injections, and 18 physical therapy) and that his chronic pain therapy (cognitive behavioral therapy and medication) 19 sought to treat only “mild” symptoms and those improved with medications. AR 20–21. 20 Reviewing the opinion evidence, the ALJ gave “partial weight” to “the multiple opinions 21 from the treating physician, Mark Luoto, M.D.” AR 21. The ALJ noted Luoto’s opinions (all 22 from 2015) that Bradbury “could lift 10 to 15 pounds, with no overhead lifting, and no repetitive 23 bending or stooping.” The ALJ accepted only “the 15–pound lifting [as] consistent with the 24 record as a whole and with the multiple opinions in the record from other sources, indicating the 25
26 8 The “paragraph B” criteria considers whether a claimant has: “1. Marked restriction in activities of daily living; or 2. Marked difficulties in maintaining social functioning; or 3. Marked 27 difficulties in maintaining concentration, persistence or pace; or 4. Repeated episodes of 1 claimant is able to work with some restrictions.” Id. 2 The ALJ assigned “great weight” to Amarnath and Acinas, the State agency medical 3 consultants, who completed the physical RFCs at the initial and reconsideration levels. The ALJ 4 found that their opinions were “consistent with the record as a whole” except that the consultants’ 5 20-pound lifting determination was too high, and instead Bradbury’s “lifting limitation of 15 6 pounds is supported by the treating source opinion … .” AR 22. 7 The ALJ gave only “partial [w]eight” to “treating physician” Young’s 2017 opinion “to the 8 extent that it is consistent with Luoto’s multiple opinions.” AR 23. The ALJ noted that Young 9 opined that Bradbury can “sit for 20 minutes at a time for about two hours total in an eight–hour 10 workday; and can stand/walk for 20 minutes at a time for about two hours; with no requirement to 11 lie down or recline during the day.” AR 22. But the ALJ discounted Young’s opinion that 12 Bradbury’s “neck motion [is] limited to ‘rarely,’ with the need to rest the head/neck every two 13 hours,” because that assessment (requiring rest of the head/neck) was “internally inconsistent” 14 with his prior opinion that Bradbury could stand/walk for up to two hours a day without needing to 15 lie down. Id. 16 The ALJ also concluded that Young’s limitation of Bradbury to only “rare” neck 17 movement was not supported by the record because Luoto in 2015 “did not include any limitations 18 in terms of neck movement in his assessment of the claimant’s cervical impairment.” Id. Young’s 19 neck limitation was further discounted because Bradbury did not “allege any problems moving his 20 head or neck” and he did not “exhibit any problems in this regard while testifying at the hearing.” 21 AR 22–23. 22 Of the sources who opined on Bradbury’s physical limitations, the ALJ found most 23 compelling the opinions of “Luoto, which consistently showed only a 15–pound lifting limitation 24 and a preclusion from excessive stooping and bending, and the opinions of the State agency 25 physicians … .” AR 23. Since the ALJ had “two sets of persuasive opinions” (Luoto’s and 26 Young’s), he again “considered the extent of treatment,” which was conservative and which led to 27 some improvement, to conclude that Bradbury was not as limited at Young contended. AR 23. 1 treating psychotherapist), noting that in a 2015 evaluation Gutfield opined that Bradbury’s 2 functioning was unlimited or good, except for the ability to complete a normal workday, which 3 was “fair.” AR 21. The ALJ found that limitation was attributed to pain, not depression. Id. The 4 ALJ also gave partial weight to the 2016 opinions of Cushman (examining psychologist), finding 5 that the limitations indicated by Cushman were mild and consistent with a finding that mental 6 limitations are non-severe, and that “any limitations that are more than mild can be attributed to 7 pain and malaise, and possible opioid dependence.” AR 22. The ALJ gave little weight to the 8 opinions of Fitzpatrick and Colsky (the state agency medical consultants for Bradbury’s mental 9 impairments) that Bradbury had moderate limitations affecting concentration, persistence, and 10 pace as “inconsistent with the record as a whole, which reflects that the claimant has only mild 11 limitations that are generally associated with pain versus a mental disorder.” Id. While the ALJ 12 acknowledged Young’s opinion on Bradbury’s mental impairments that Bradbury experienced 13 “pain of such severity that it frequently interferes with [h]is attention, concentration, persistence, 14 and pace,” he only gave it “partial weight” due to the “internal inconsisten[cies]” previously 15 discussed. Id. 16 At Step Four, the ALJ concluded that Bradbury is unable to perform his “past relevant 17 work as a personal attendant and apartment manager” because “the personal attendant job is a 18 semi-skilled, light job and the apartment manager job is a skilled, medium job.” Id. At Step Five, 19 the ALJ found that based on Bradbury’s “[RFC], age, education, and work experience,” he could 20 handle a number of “unskilled light work” jobs that exist in significant numbers in the national 21 economy, specifically that he could “perform the requirements of representative unskilled, 22 sedentary occupations such as document preparer, food[,] and beverage order clerk, and office 23 addresser. ” AR 24. 24 LEGAL STANDARD 25 I. DISABILITY DETERMINATION 26 A claimant is “disabled” as defined by the Social Security Act if he is (i) “unable to engage 27 in any substantial gainful activity by reason of any medically determinable physical or mental 1 for a continuous period of not less than twelve months” and (ii) the impairment is “of such 2 severity that he is not only unable to do his previous work but cannot, considering his age, 3 education, and work experience, engage in any other kind of substantial gainful work which exists 4 in the national economy.” 42 U.S.C. § 1382c(a)(3)(A)–(B); Hill v. Astrue, 698 F.3d 1153, 1159 5 (9th Cir. 2012). To determine whether a claimant is disabled, an ALJ engages in a five-step 6 sequential analysis as required under 20 C.F.R. § 404.1520(a)(4)(i)–(v). 7 In the first two steps of the evaluation, the claimant must establish that he or she (i) is not 8 performing substantial gainful activity and (ii) is under a “severe” impairment. 20 C.F.R. § 9 416.920(a)(4)(i)-(ii). An impairment must have lasted or be expected to last 12 months in order to 10 be considered severe. 20 C.F.R. § 416.909. In the third step, the claimant must establish that his 11 or her impairment meets or medically equals a listed impairment described in the administrative 12 regulations. 20 C.F.R. § 416.920(a)(4)(iii). If the claimant’s impairment does not meet or equal 13 one of the listed impairments, before proceeding to the fourth step, the ALJ is to make a residual 14 functional capacity determination based on all the evidence in the record; this determination is 15 used to evaluate the claimant’s work capacity for steps four and five. 20 C.F.R. § 416.920(e). In 16 step four, the claimant must establish that his or her impairment prevents the claimant from 17 performing relevant work he or she did in the past. 20 C.F.R. § 416.920(a)(4)(iv). The claimant 18 bears the burden to prove steps one through four, as “at all times, the burden is on the claimant to 19 establish [his] entitlement to disability insurance benefits.” Tidwell v. Apfel, 161 F.3d 599, 601 20 (9th Cir. 1998), as amended (Jan. 26, 1999). Once the claimant has established this prima facie 21 case, the burden shifts to the Commissioner to show at the fifth step that the claimant is able to do 22 other work, and that there are a significant number of jobs in the national economy that the 23 claimant can do. 20 C.F.R. § 416.920(a)(4)(v),(g); 416.960(c). 24 II. STANDARD OF REVIEW 25 Under 42 U.S.C. § 405(g), the court reviews the ALJ’s decision to determine whether the 26 ALJ’s findings are supported by substantial evidence and free of legal error. Smolen v. Chater, 80 27 F.3d 1273, 1279 (9th Cir. 1996); DeLorme v. Sullivan, 924 F.2d 841, 846 (9th Cir. 1991) (ALJ’s 1 standards). Substantial evidence means “‘more than a mere scintilla,’ but less than a 2 preponderance.” Saelee v. Chater, 94 F.3d 520, 521–522 (9th Cir. 1996), as amended (Aug. 12, 3 1996) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971). Substantial evidence is “such 4 relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” 5 Richardson, 402 U.S. at 401 (internal quotation marks and citation omitted). 6 The court must review the record as a whole and consider adverse as well as supporting 7 evidence. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006). Where evidence is 8 susceptible to more than one rational interpretation, the ALJ’s decision must be upheld. Morgan 9 v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999). “However, a reviewing court 10 must consider the entire record as a whole and may not affirm simply by isolating a ‘specific 11 quantum of supporting evidence.’” Robbins, 466 F.3d at 882 (quoting Hammock v. Bowen, 879 12 F.2d 498, 501 (9th Cir. 1989)); see also Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007). 13 DISCUSSION 14 Bradbury claims that the ALJ erred by (i) improperly discounting Young’s assessment and 15 giving greater weight to Luoto’s more limited opinion and the opinions of the non-examining 16 consultants and (ii) failing to include all of Bradbury’s non-exertional limitations in the RFC. The 17 Commissioner opposes Bradbury’s summary judgment motion and moves to affirm the ALJ’s 18 decision as supported by substantial evidence. 19 I. YOUNG’S OPINION AS BRADBURY’S TREATING PHYSICIAN 20 The ALJ specifically rejected Young’s 2017 opinion that Bradbury could only sit or 21 stand/walk at one time for twenty minutes for a total of two hours in an eight-hour day and that his 22 “cervical spine/neck pain require[s] him to rest his head/neck during the day (i.e., either lying 23 down, resting head against [a] pillow, etc) … every 2 h[ou]rs.” AR 1311. The ALJ gave three 24 reasons for discounting Young’s limitations concerning Bradbury’s severe neck pain. First, the 25 ALJ discounted Young’s opinion in his 2017 Medical Source Statement as internally inconsistent, 26 because first Young indicated that Bradbury would “not need to lie down at all during the 27 workday,” (when discussing Bradbury’s ability to sit/stand/walk) but later in the same opinion 1 “need to rest the head/neck every two hours,” to relieve his neck pain. AR 22 (italics added). 2 Second, the ALJ concluded that Young’s opinion on Bradbury’s neck limitations was not 3 consistent with Luoto’s 2015 Reports, which did not mention any neck pain or limitations with 4 respect to Bradbury’s “cervical impairment.” Id. Third, the ALJ concluded that the claimant 5 himself had not alleged any problems moving his head or neck and did not “exhibit any problems 6 in this regard while testifying at the hearing.” AR 23. 7 Bradbury argues that the ALJ erred because: (i) Young’s opinion was not internally 8 inconsistent when considered in full and in context; (ii) Luoto’s Reports could not be used to 9 discount Young because Luoto was not asked to consider (and his forms did not consider) 10 Bradbury’s neck or cervical impairments and the scope of Luoto’s assessment was to determine 11 entitlement to workers’ compensation benefits and not for Social Security disability benefits 12 (under different standards); and (iii) Bradbury did repeatedly explain and complain about his neck 13 pain during the hearing. Pl. Mot. 7–10. 14 The Ninth Circuit distinguishes between three types of physicians that provide information 15 about a claimant: “(1) those who treat the claimant (treating physicians); (2) those who examine 16 but do not treat the claimant (examining physicians); and (3) those who neither examine nor treat 17 the claimant (non[-]examining physicians).” Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995), 18 as amended (Apr. 9, 1996). Generally, the opinion of a treating physician is entitled to greater 19 weight than the opinion of a non-treating physician. Id.; 20 C.F.R. § 404.1527(d)(2). However, a 20 treating physician’s opinion “is not binding on an ALJ with respect to the existence of an 21 impairment or the ultimate determination of disability.” Tonapetyan v. Halter, 242 F.3d 1144, 22 1148 (9th Cir. 2001) (citation omitted). To properly reject the opinion of a treating or examining 23 doctor when it is uncontradicted by another doctor, the ALJ must state “clear and convincing 24 reasons” for doing so. Lester, 81 F.3d at 830. If the treating or examining physician’s opinion is 25 contradicted by another physician, however, an ALJ may reject the treating or examining 26 physician’s opinion if she states “specific and legitimate reasons” that are supported by substantial 27 evidence. Id. at 830–31. 1 supported” or because it is inconsistent with other substantial evidence in the record, the SSA 2 considers specified factors in determining the weight it will be given. Those factors include the 3 “[l]ength of the treatment relationship and the frequency of examination” by the treating physician 4 and the “nature and extent of the treatment relationship” between the patient and the treating 5 physician. Orn, 495 F.3d at 631. 6 The ALJ found, and the plaintiff does not contest, that Luoto was a treating physician. AR 7 22. If Young’s opinion was not contradicted by Luoto, the ALJ needed “clear and convincing 8 reasons” to discount Young’s opinion. If Young’s opinion was contradicted by Luoto, then the 9 ALJ only needed “specific and legitimate reasons” that are supported by substantial evidence to 10 discount Young’s opinion. 11 A. Luoto’s Opinion Does Not Contradict Young’s 12 Bradbury argues that Luoto’s “limited assessment did not contradict Dr. Young” because 13 Luoto’s assessment was for workers’ compensation benefits and considered only whether a 14 specific set of conditions prevented Bradbury from performing his job in 2015. Pl. Mot. 6–7. 15 Luoto needed only to find that Bradbury could not perform the lifting, bending, and stooping 16 required by his former job. He did not need to consider or address all aspects of Bradbury’s 17 condition or the resulting limitations. To determine disability under the SSA, on the other hand, 18 an ALJ must consider different levels of work and the range of all of a claimant’s limitations 19 before determining an RFC. 20 For this argument, Bradbury relies on Desrosiers v. Secretary of Health and Human 21 Services, 846 F.2d 573 (9th Cir. 1988). In Desrosiers, the claimant filed for Social Security 22 disability benefits and submitted workers’ compensation reports from physicians that determined 23 the claimant was “incapable of ‘heavy’ work.” Desrosiers, 846 F.2d at 576. The claimant also 24 submitted a report from a treating physician that concluded the claimant was limited to sedentary 25 work based on the Social Security guidelines. Id. The ALJ found that the workers’ compensation 26 reports contradicted the treating physician’s sedentary work opinion. Id. Rejecting that purported 27 contradiction, the Desrosiers court noted that the workers’ compensation reports were specifically 1 they [the physicians] had to go” for that purpose. Id. By finding that the claimant’s workers’ 2 compensation reports and the treating physician opinion contradicted each other, the ALJ did not 3 “adequately consider this distinction” between the workers’ compensation and Social Security 4 disability limitations. Id. at 576. 5 Bradbury argues that because Luoto and Young were assessing different capabilities and 6 Luoto did not need to address all of Bradbury’s impairments, it cannot be considered 7 “contradictory” to Young’s more detailed analysis that specifically addressed Bradbury’s neck 8 pain and imposed limitations on Bradbury’s neck movement. Luoto did not specifically address or 9 set a limit on Bradbury’s neck movements (while recognizing Bradbury’s complaints of neck pain 10 consistently through 2015). See id. at 576 (the reports from the workers’ compensation assessors 11 “did not contradict Desrosiers’ claim of disability.”). The Commissioner responds that Desrosiers 12 is inapposite because here, unlike in Desrosiers, the ALJ did not apply worker’s compensation 13 criteria, but instead considered Luoto’s limitation of Bradbury to lifting no more than 15 pounds 14 which, under the SSA, translates to a modified range of light work. Def. Mot. 6. 15 The Commissioner misses the point. Bradbury is not contesting the 15-pound lifting 16 limitation Luoto imposed. He is pointing out that Luoto did not need to consider and did not 17 consider further limitations (like restrictions on neck movement) for purposes of assessing 18 Bradbury for worker’s compensation benefits. Although Luoto did note Bradbury’s complaints of 19 neck pain and the Commissioner in his brief points out that — back in 2015 — Luoto found that 20 Bradbury’s neck range of motion was only limited by 10 or 20 percent and pain occurred only at 21 “full endpoints” of range of motion (Def. Mot. at 6), that evidence was not relied on by the ALJ 22 and cannot be relied on here to create a new “contradiction.” 23 The ALJ erred because the opinions of Luoto and Young, when considered in full and in 24 context, are not contradictory. 25 B. Young’s Opinion was not Internally Inconsistent and is Supported by the Record 26 The ALJ also discounted Young’s opinion that Bradbury has significant restrictions on 27 neck movement because Young’s limitations were allegedly internally inconsistent. The alleged 1 inconsistency is that Young opined that Bradbury did not need to “lie down/recline during the 2 day,” when discussing Bradbury’s ability to sit/stand for limited periods during an eight-hour 3 workday, but immediately thereafter, when discussing Bradbury’s cervical impairment, indicated 4 that Bradbury would have to rest his neck “during the day (i.e., either lying down, resting head 5 against [a] pillow, etc),” every two hours. AR 1311. Bradbury acknowledges that the Medical 6 Source Statement was “poorly worded” but argues the ALJ’s characterization of Young’s 7 responses as inconsistent is not supported. Pl. Mot. 9. Bradbury points out that where Young 8 mentioned the need to “rest” his head/neck every two hours — which could include lying down 9 but also other forms of resting the neck — Young was specifically addressing Bradbury’s 10 established cervical impairment. Where Young said “no” to the need to “lie down,” he was 11 addressing Bradbury’s limitation only related to sitting, standing, or walking. As such, Bradbury 12 contends that Young was not internally inconsistent in his opinion. I agree. Given the full context 13 of the form, there is no contradictory inconsistency that would justify disregarding the specific 14 limitation that Bradbury’s longtime treating physician imposed with respect to his cervical 15 impairment.9 16 Moreover, Young’s neck movement limitation was — contrary to the ALJ’s determination 17 — supported by the record. 10 In 2013, Dr. Yablon opined about Bradbury’s neck limitations, 18 concluding that he has a “moderately large central left-sided disc osteophyte complex pushing the 19
20 9 To the extent the ALJ found Young’s responses unclear, the ALJ had a “duty to fully and fairly develop the record and to assure that the claimant's interests are considered, … . This duty is 21 triggered when the record reflects ambiguous evidence … .” Shafer v. Barnhart, 120 F. App'x 688, 692–93 (9th Cir. 2005) (internal quotation marks and citations omitted). 22
10 The State agency medical consultants completed Bradbury’s initial and physical RFCs in 23 December 2015 and June 2016, respectively. Young’s opinion was given in September 2017 and the disability hearing was held in November 2017. Bradbury argues that the ALJ also erred by 24 giving “great weight” to the State agency medical consultants when “they did not have access to the final 16 months of Young’s records nor to Young’s Medical Source Statement. Pl. Mot. 6. 25 The Commissioner responds that the State agency medical consultants had no obligation to review Bradbury’s entire record and that “regulations ‘impose no limit on how much time may pass 26 between a report and the ALJ’s decision in reliance on it.’” Def. Mot. 4; Def. Mot. 4, n. 2 (internal citation omitted). That is not the point. The agency consultant opinions cannot be used 27 to discount Bradbury’s long-term treating physician’s opinion unless the ALJ identified clear and 1 thecal sac back posteriorly and severely compressing the left C6 root.” AR 761–764. In addition, 2 while Luoto’s report forms did not ask about neck limitations, in each of his Work Status 3 documents he listed “neck” and “back pain” under the “Diagnosis” section. AR 565 (July 20, 4 2015), 568 (June 8, 2015), 573 (April 20, 2015), 578 (March 9, 2015), 583 (January 23, 2015). 5 Young’s neck movement limitation was also supported by Bradbury’s testimony. See AR 65–66 6 (when asked about holding his head up or changing his head’s position by the ALJ, Bradbury 7 stated, “I’m just trying to get comfortable and I just don’t have a way to do it.” Bradbury stated 8 that laying on his stomach, “makes my head go back … and it puts [my neck] in a bind and it 9 makes everything go numb.”). 10 C. Bradbury did Complain About his Neck Pain, Specifically During the Hearing 11 Finally, there is no dispute that, contrary to the ALJ’s statement, Bradbury did repeatedly 12 and consistently complain of his neck pain; in fact, he discussed it repeatedly during the ALJ 13 hearing. The Commissioner, in a footnote, argues that this error was harmless because the ALJ 14 had sufficient reasons to discount Young. Def. Mot. at 7 n. 5. As discussed above, those reasons 15 were erroneous. 16 Young’s uncontradicted opinion on Bradbury’s limitations could not be discounted for the 17 reasons identified by the ALJ, nor could the ALJ rely on the State agency consultants in light of 18 the uncontradicted limitations imposed by Young. Remand is necessary so that the ALJ can give 19 Young controlling weight or identify clear and convincing reasons for not doing so. 20 II. FAILING TO INCLUDE NON-EXERTIONAL IMPAIRMENTS IN THE RFC 21 Bradbury argues that the ALJ also erred by (i) providing inconsistent analyses and findings 22 concerning the source of Bradbury’s mental health symptoms (e.g., were they the result of mental 23 impairments or pain/pain medications) and (ii) not addressing the effects of Bradbury’s mental 24 impairments and his chronic pain on sustained work activity. Pl. Mot. 11.11 25 As noted above, the ALJ found that Bradbury’s mental health impairments were not severe 26 11 Bradbury also suggests, in passing, that the ALJ erred at Step Two in not finding any of 27 Bradbury’s mental health issues severe. Pl. Mot. 11. However, Bradbury never fully raised this 1 and that any limitations that flowed from his mental health impairments were either mild or if 2 “more than mild” attributed to “pain and malaise, and possibly opioid dependence.” AR 18, 22. 3 Gutfield, Bradbury’s treating therapist from December 2014 – December 2015, opined that 4 Bradbury’s mental functioning was “unlimited” or “good” in all areas except for his ability to 5 complete a normal workday without interruptions, which was characterized as “fair”, but 6 Gutfield’s opinion was given only “partial weight” by the ALJ. AR 21. Examining consultant 7 Cushman determined in January 2016 that Bradbury was capable of doing complex tasks but 8 could not follow complex verbal instructions and “would have difficulty with regular attendance 9 and completing a normal workweek due to pain and malaise,” yet Cushman’s opinion was given 10 only “partial weight” by the ALJ. AR 21–22. Fitzpatrick and Colsky, the State agency 11 consultants, completed reports about Bradbury in February and June 2016, respectively, and 12 concluded that Bradbury had “moderate limitations affecting concentration, persistence, and pace 13 … .” AR 22. Both were given “little weight” by the ALJ. Id. 14 While the ALJ acknowledged that Bradbury’s “pain” could be the source of his “more than 15 mild” limitations, the ALJ never engaged with Cushman’s diagnoses of pain disorder or Young’s 16 opinions that Bradbury suffered from “chronic pain,” nor did the ALJ analyze the impact of the 17 “more than mild” limitations that pain (or a pain disorder) imposed on Bradbury in terms of 18 Bradbury’s RFC. See, e.g., AR 1014 (Cushman stating that Bradbury would have difficulties with 19 “regular attendance and consistent participation,” resulting in difficulty working a normal 20 workweek); AR 1312 (Young stating that Bradbury would miss “[m]ore than four days [of work] 21 per month” and “Bradbury’s pain would “[f]requently … interfere with attention and 22 concentration, persistence and pace needed to perform even simple work tasks.”) (emphasis in 23 original). In addition to the error in discounting Young’s opinions (as discussed above) that 24 impacted the ALJ’s determinations as to potential limitations from mental health conditions, the 25 ALJ’s failure to engage with and identify the source (physical pain or pain exacerbated by mental 26 health conditions) of the acknowledged “more than mild” limitations was error and should be 27 1 || addressed on remand.” 2 CONCLUSION 3 For the reasons above, I GRANT Bradbury’s motion for summary judgment, DENY the 4 || defendant’s motion for summary judgment, and REMAND the case for further proceedings 5 consistent with this Order. 6 IT ISSO ORDERED. 7 Dated: August 18, 2020 Q2 9 ® illiam H. Orrick 10 United States District Judge 11 12
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Z 18 19 20 21 22 23 24 25 26 27 Because of the errors identified herein, and the determination to remand for further proceedings, 2g || Ido not need to reach plaintiff’s arguments about errors with respect to the questions the ALJ posed to the VE.