1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 EUREKA DIVISION 7 8 MARCELL LAMONT BRANCH, Case No. 19-cv-02996-RMI
9 Plaintiff, ORDER ON CROSS MOTIONS FOR 10 v. SUMMARY JUDGMENT
11 NANCY A. BERRYHILL, Re: Dkt. Nos. 14, 18 12 Defendant.
13 14 Plaintiff, Marcell Lamont Branch, seeks judicial review of an administrative law judge 15 (“ALJ”) decision denying his application for supplemental security income under Title XVI of the 16 Social Security Act. Plaintiff’s request for review of the ALJ’s unfavorable decision was denied 17 by the Appeals Council, thus, the ALJ’s decision is the “final decision” of the Commissioner of 18 Social Security which this court may review. See 42 U.S.C. §§ 405(g), 1383(c)(3). Both parties 19 have consented to the jurisdiction of a magistrate judge (dkts. 9 & 10), and both parties have 20 moved for summary judgment (dkts. 14 & 18). For the reasons stated below, the court will grant 21 Plaintiff’s motion for summary judgment, and will deny Defendant’s motion for summary 22 judgment. 23 LEGAL STANDARDS 24 The Commissioner’s findings “as to any fact, if supported by substantial evidence, shall be 25 conclusive.” 42 U.S.C. § 405(g). A district court has a limited scope of review and can only set 26 aside a denial of benefits if it is not supported by substantial evidence or if it is based on legal 27 error. Flaten v. Sec’y of Health & Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995). The phrase 1 factual findings at the agency level. See Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019). 2 Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as 3 adequate to support a conclusion.” Id. at 1154 (quoting Consol. Edison Co. v. NLRB, 305 U.S. 4 197, 229 (1938)); see also Sandgathe v. Chater, 108 F.3d 978, 979 (9th Cir. 1997). “In 5 determining whether the Commissioner’s findings are supported by substantial evidence,” a 6 district court must review the administrative record as a whole, considering “both the evidence 7 that supports and the evidence that detracts from the Commissioner’s conclusion.” Reddick v. 8 Chater, 157 F.3d 715, 720 (9th Cir. 1998). The Commissioner’s conclusion is upheld where 9 evidence is susceptible to more than one rational interpretation. Burch v. Barnhart, 400 F.3d 676, 10 679 (9th Cir. 2005). 11 PROCEDURAL HISTORY 12 In September of 2015, Plaintiff filed an application for supplemental security income, 13 alleging an onset date of July 1, 2001. See Administrative Record “AR” at 27.1 As set forth in 14 detail below, the ALJ rendered a partially favorable decision and found Plaintiff to be disabled, 15 due to his age, after November 1, 2017, however, as to the period between the alleged onset date 16 and November of 2017, the ALJ denied the application on March 30, 2018. Id. at 34-36. The 17 Appeals Council denied Plaintiff’s request for review on March 28, 2019. See id. at 1-4. 18 SUMMARY OF THE RELEVANT EVIDENCE 19 With the exception of a few brief stints of incarceration or psychiatric hospitalization, the 20 majority of Plaintiff’s adult life has been spent in homelessness. See id. at 316, 325, 581, 589, 21 1072-73. Various treating and examining physicians have diagnosed Plaintiff with severe 22 depression, posttraumatic stress disorder (“PTSD”), bipolar disorder, intellectual functioning in 23 the extremely low range, major depressive disorder, intellectual disability, a personality disorder, a 24 herniated disc in his lumbar spine, two dislocated shoulders stemming from being beaten with a 25 baseball bat, hypertension, arthritis, a gunshot wound, gout, and bursitis. See id. at 581, 584, 591, 26 593, 594, 682, 1076. 27 1 Plaintiff’s Background 2 As a young child, Plaintiff suffered from a learning disability and was placed in special 3 education classes for the entirety of his course of education which ended with high school. Id. at 4 588, 1077. From an early age – at least dating back to his teenage years – Plaintiff has steadily 5 experienced auditory hallucinations wherein he would hear voices in his head telling him to kill, 6 rob, or hurt people. Id. at 590. During those years, he found that using cocaine tended to mute the 7 voices and abate the auditory hallucinations. Id. at 1077. Thereafter, in addition to contending with 8 the symptoms of his various mental impairments, he also struggled with the newfound addiction to 9 cocaine. Id. at 588, 589, 1073, 1077. In 2013, he eventually succeeded in his campaign to 10 overcome his addiction after two psychiatric hospitalizations and two intensive drug treatment 11 programs. Id. at 589, 1073. While he has maintained sobriety since 2013, his auditory 12 hallucinations have continued in that Plaintiff hears voices in his head that use profanity while 13 persistently telling him to “get out of the way.” Id. at 1074. During various periods of either 14 incarceration or hospitalization, or when he has otherwise had access to medication for his bipolar 15 disorder (such as Depakote, Abilify, and Trazadone), it has been easier for Plaintiff to tune out or 16 ignore the auditory hallucinations. Id. at 582, 590, 594. However, during other periods of his life – 17 such as during times when he is experiencing homelessness and does not have access to 18 medication – Plaintiff continues to hear voices in his head that tell him to kill or hurt people; 19 fortunately, he has always been able to ignore the impulse to act in conformity with the horrifying 20 directives at the heart of his auditory hallucinations. Id. at 594. 21 After high school, Plaintiff participated in a youth program through which he was able to 22 find work in the landscaping field for a short period of time. Id. In his early 20s, he was involved 23 in a serious automobile accident during which he suffered spinal injuries – due to those injuries, as 24 well as his mental health symptoms, Plaintiff received disability assistance throughout his 20s 25 while he lived his mother. Id. at 588. In his late 20s, his mental health took a turn for the worse 26 when he experienced the trauma of being the one to discover his mother’s body upon her untimely 27 death due to cancer, as a result of which Plaintiff underwent a number of psychiatric 1 the passing of his mother, and the deepening of his psychiatric symptoms, Plaintiff was unable to 2 support himself and became homeless. Id. at 1072. Some years later, in 2000, he managed to 3 secure employment with a waste management company; however, his employment was quickly 4 terminated due to erratic driving of the company truck. Id. at 588. Thereafter, following more 5 years spent in homelessness, Plaintiff spent nearly two years in prison between 2008 and 2010 for 6 a theft offense. Id. at 589. Following his release in 2010, he quickly decompensated and the rapid 7 worsening of his symptoms caused him to undergo yet another psychiatric hospitalization. Id. 8 Medical Evidence 9 The record reflects a series of medical opinions rendered by Dr. Jeffrey Seal, Plaintiff’s 10 treating psychotherapist, who was assisted by Kari Jennings-Parriott, a social worker (id. at 682- 11 86, 1090-1165), by Laura Jean Catlin, a licensed psychologist who examined and evaluated 12 Plaintiff on two occasions (id. at 587-96, 1071-89), by Dr. Huen, an internal medicine physician 13 who examined Plaintiff in early 2016 (id. at 581-85), as well as the opinions of four non- 14 examining consultants retained by the state disability evaluation agency (id. at 118-32, 134-52). 15 Non-Examining Consultants 16 In early 2016, upon initial consideration of Plaintiff’s disability application, while the 17 examiner and adjudicator of the application opined that consultative examinations were necessary 18 because “[t]he evidence was a whole, both medical and non-medical, [was] not sufficient to 19 support a decision on the claim,” Plaintiff was nevertheless found not disabled and it was opined 20 by Drs. Bilik and Samplay that Plaintiff could perform light work with a few modest exertional 21 limitations and no communicative or environmental limitations. See id. at 123-24, 128, 130, 132. 22 At the reconsideration level of review in May of 2016, Plaintiff was again found not to be disabled 23 while the examiner and adjudicator of his application once again noted that a consultative 24 examination was necessary because the evidence was insufficient to support a decision on the 25 application. See id. at 134, 140, 151-52. This time, however, after opining a similar functional 26 capacity consisting of light work with a similar set of modest limitations, Drs. Econome and 27 Pancho opined that Plaintiff also experienced “moderate limitations” in various areas of 1 interact with others, and in his ability to adapt and respond appropriately to changes in the work 2 setting. Id. at 140, 142-43, 146-49. 3 Plaintiff’s Treating Physician 4 Plaintiff underwent a lengthy course of mental health treatment by a variety of clinicians at 5 the Lifelong Trust Health Center in Oakland, California, all of whom worked under the 6 supervision and direction of Jeffrey Seal, M.D., Plaintiff’s psychiatrist who also served as the 7 health center’s medical director. See id. at 682-86, see also id. at 1090-1165. Between October of 8 2016, and late November of 2017, Plaintiff received mental health treatment and psychotherapy 9 sessions on a regular basis from his clinicians at Lifelong Trust, totaling no less than 24 sessions. 10 See id. at 1090-1165. On November 27, 2017, Dr. Seal and Social Worker Kari Jennings-Parriott, 11 jointly subscribed to a medical source statement wherein Dr. Seal rendered a series of opinions 12 regarding Plaintiff’s mental health condition and its associated limitations. Id. at 682-86. In 13 arriving at these conclusions, Dr. Seal reviewed Plaintiff’s entire medical file, including the 14 progress notes from each of the above-described psychotherapy sessions, as well as reviewing the 15 psychological evaluations performed by Dr. Catlin. Id. at 682. Dr. Seal began by noting that 16 Plaintiff’s response to treatment has been poor as the symptoms related to his PTSD and major 17 depressive disorder continue to interfere with his ability to trust others enough to open up about 18 his experiences and feelings, as well as the fact that he continues to experience difficulties with 19 memory and organization. Id. Adding that Plaintiff’s depression and PTSD magnify his physical 20 pain and reduce his coping skills, Dr. Seal opined that Plaintiff’s mental health impairments 21 actually operate to exacerbate the symptoms associated with his physical impairments. Id. Dr. Seal 22 then proceeded to enumerate the staggering list of symptoms associated with Plaintiff’s mental 23 impairments as including the following: significant deficits in complex attention, executive 24 function, learning, memory, language, perceptual-motor function, and social cognition; significant 25 difficulties in learning and using academic skills; disorganized thinking; grossly disorganized 26 behavior manifesting as catatonia; diminished interest in almost all activities; sleep disturbance; 27 depressed mood; disturbances in mood and behavior; feelings of guilt and worthlessness; feelings 1 concentrating, thinking, or organizing tasks; frequent distractibility; difficulty in sustaining 2 attention; restlessness; irritability; involvement in activities that have high probabilities of 3 unrecognized painful consequences; involuntary and time-consuming preoccupation with intrusive 4 and unwanted thoughts; increases in emotional arousal and reactivity; behavioral outbursts that are 5 recurrent, impulsive, and aggressive; exposure to actual or threatened death, serious injury, or 6 violence; avoidance of external reminders of the event in which his trauma is rooted; involuntary 7 re-experiencing of a traumatic event; and, distrust or suspicion of others. Id. at 683-84. 8 Then, given the fact that Plaintiff’s substance abuse history had gone into remission quite a 9 few years earlier, Dr. Seal noted that Plaintiff did not have a substance use disorder. Id. at 685. In 10 opining as to the resulting limitations associated with Plaintiff’s symptoms, Dr. Seal defined a 11 “moderate limitation” as one that would preclude his performance in a given area of function by 12 20% in an 8-hour workday, and a “marked limitation” as one that would be expected to preclude 13 functioning in that area by more than 20% of an 8-hour workday. Id. at 684. Accordingly, Dr. Seal 14 found that Plaintiff suffered marked limitations in the following domains of functioning: in his 15 ability to understand, remember, and apply information (i.e., the ability to learn, recall, use 16 information independently, effectively, appropriately, and on a sustained basis); in his ability to 17 interact with others (i.e., to relate to and work with supervisors, coworkers, and the public 18 independently, appropriately, effectively, and on a sustained basis); in his ability to concentrate, 19 persist, and maintain pace (i.e., to focus attention on activities and stay on-task at a sustained rate 20 independently, appropriately, effectively, and on a sustained basis); and, in his ability to adapt or 21 manage himself (i.e., to regulate emotions, control behavior, and maintain wellbeing 22 independently, appropriately, effectively, and on a sustained basis). Id. at 684-85. Furthermore, 23 Dr. Seal opined that, due to his symptoms and his need for treatment, Plaintiff should be expected 24 to be absent from work “4 days or more” in any given month, while being off-task “more than 25 30%” of any given workday. Id. at 685. In fact, Dr. Seal noted that the complexity and interaction 26 of Plaintiff’s symptoms make it difficult for him to follow through with appointments, to regularly 27 take his medications, and, thus, to properly engage in treatment. Id. at 686. Further, while 1 that despite the expectation of such fluctuation, his symptoms will remain “severe and persistent.” 2 Id. Lastly, even though the depressive and trauma-related disorders have lasted for more than two 3 years, and despite the fact that medical treatment and psychotherapy diminish the signs and 4 symptoms his disorders, Dr. Seal noted that Plaintiff nevertheless shows marginal adjustment, that 5 is, he still suffers a minimal capacity to adapt to changes in his environment. Id. 6 Internal Medicine Consultative Examination 7 In early February of 2016, Plaint underwent a physical examination by Dr. Huen, a board 8 certified specialist in internal medicine. Id. at 581-85. Dr. Huen began by reciting Plaintiff’s 9 medical history as including a gunshot wound in one leg, a herniated disc in his lower back, the 10 dislocation of both shoulders, arm and elbow surgery in 2015, arthritis, bursitis, and gout. Id. at 11 581. Dr. Huen then enumerated the symptoms as including left-arm numbness since being beaten 12 with a bat in 2012 or 2013, persistent leg and back pain since the herniation injury to his lumbar 13 spine resulting from the automobile accident, and difficulty sleeping due to pain from his arm, 14 back, and legs. Id. at 583. As to the physical examination, Dr. Huen noted that Plaintiff’s ability to 15 bend and rotate at the cervical and lumbar spine were attended with substantial limitations in 16 various directions with movement being limited from 5 degrees to 20 degrees in certain directions. 17 Id. at 584. The upshot of these limitations in flexion and rotation led Dr. Huen to conclude that it 18 was difficult for Plaintiff to stand upright due to “curvature in his back,” and that Plaintiff 19 ambulates slowly due to pain while limping bilaterally. Id. In short, Dr. Huen’s impression was 20 that due to his spinal abnormalities, Plaintiff experiences significant lower back pain, and that 21 while the swelling in his ankles is consistent with gout, it is also possible that the “[g]unshot 22 wound to the left leg, [the] gout, and [the] bursitis are all part of the same package.” Id. Due to 23 these physical conditions, Dr. Huen opined that Plaintiff can never climb, balance, stoop, kneel, 24 crouch, or crawl; that he must avoid hazards that might require him to move quickly as that would 25 not be possible; and that lifting and carrying “are pretty much ruled out currently because of back 26 pain.” Id. Thus, Dr. Huen found that Plaintiff’s work capacity “at this point is less than sedentary 27 given his inability to sit very long due to lumbar spine pain . . . [and that] his inability to sit would 1 further assessment and treatment because “his poor posture certainly leads him to be unsafe when 2 he is ambulating. He probably needs a cane.” Id. at 585. 3 Psychological Consultative Examinations 4 In February of 2016, and again in March of 2017, Plaintiff underwent two separate 5 consultative psychological examinations by Laura Jean Catlin, Psy.D., at the Eastmont Self- 6 Sufficiency Center. See id. at 587-95, 1071-89. At the conclusion of the first evaluation, in 7 addition to finding that Plaintiff suffered extreme limitations in most functional categories, that he 8 manifested symptoms of severe depression, and that his test results placed him in the borderline 9 range with regards to neurocognitive deficits, Dr. Catlin also diagnosed Plaintiff with intellectual 10 disability, bipolar disorder, and PTSD. Id. at 593-94, 596, 1075-76. In the course of that 11 evaluation, Dr. Catlin conducted a clinical interview, performed a mental status exam, and 12 administered the following six diagnostic instruments: the Wechsler Abbreviated Scale of 13 Intelligence (“WASI”); the Repeatable Battery for the Assessment of Neuropsychological Status 14 (“RBANS”); the Beck Depression Inventory (“BDI”); the Burns PTSD Inventory; the Burns 15 Mania Scale; and, parts A and B of the trail-making tests. Id. at 587. Through the mental status 16 examination, Dr. Catlin immediately observed, likely as a result of many years of homelessness, 17 combined with his persistent physical pain and the manic and depressive swings caused by his 18 bipolar disorder, that Plaintiff “has great difficulty performing all activities of daily living,” and 19 while he was adequately groomed and appropriately dressed, he was missing a number of teeth. Id. 20 at 588, 590. She also observed Plaintiff to have a flat affect combined with a depressed and 21 anxious mood. Id. at 590. She found that since his teenage years Plaintiff has been plagued by 22 auditory hallucinations which tell him to hurt or kill people, particularly when he is in a depressive 23 episode. Id. When Dr. Catlin inquired about suicidal ideations, Plaintiff reported that he would 24 like to end his life if he gets the chance which, unsurprisingly, caused Dr. Catlin to conclude that 25 Plaintiff’s “thought content evidenced some perseveration on negative thinking.” Id. Finding his 26 judgment and insight to be limited, his immediate and delayed memory to be impaired, and his 27 concentration to be poor, Dr. Catlin also noted “that he has great difficulty falling and staying 1 Dr. Catlin then proceeded to discuss Plaintiff’s cognitive functioning by first addressing 2 his performance on the WASI, which is essentially an abbreviated IQ test consisting of four 3 subtests that measure a person’s ability with regards to vocabulary, similarities, block design, and 4 matrix reasoning. Id. at 590-91. Plaintiff’s verbal scores in the subtests assessing vocabulary and 5 similarities were in the extremely low range, and convert to an overall IQ score of 60, placing him 6 in the bottom 0.4% of the population; likewise, his scores on the block design and matrix 7 reasoning subtests were in the borderline to extremely low range, converting to an overall IQ score 8 of 67, placing him in the bottom 1% of the population. Id. at 591. Combined, his performance on 9 the WASI converted to an overall IQ score of 50, which indicated that Plaintiff operates in the 10 extremely low range of intellectual functioning, or, as Dr. Catlin put it, “[t]his placed him in the 11 0%.” Id. Plaintiff’s scores on the RBANS (which measures immediate and delayed memory, 12 attention, language, and visuospatial skills) were also in the extremely low range, with the 13 following subtest scores: his attention and delayed memory were in the extremely low range; his 14 language and visuospatial abilities were in the severely impaired range; and, his immediate 15 memory was in the borderline range. Id. at 591-93. Regarding the two parts of the trail-making 16 tests, because Plaintiff was unable to understand the instructions for Trail A, the second part of the 17 test was not even administered. Id. at 593. 18 As to depression and reaction to trauma, Plaintiff’s performance on the Burns PTSD 19 Inventory, the BDI, and the Burns Mania Scale indicated “symptoms of severe depression,” as 20 well as a “profile [that] indicates he is experiencing many symptoms of PTSD [because] [f]inding 21 his mother deceased in their home left him feeling intensely afraid, helpless, and horrified [and] 22 [h]e has persistent memories of the event and become[s] very upset when thinking about the 23 event.” Id. Dr. Caitlin described Plaintiff’s “painful memories of the death of his mother” as 24 “unremitting.” Id. at 594. Further, the Burns PTSD Inventory also indicated that Plaintiff’s 25 reaction to this trauma has caused him to avoid people or places that remind him of his mother or 26 her death, to feel isolated and alienated from others, and that the trauma has contributed to his 27 difficulties with angry outbursts, concentration, and lack of sleep. Id. at 593. The Burns Mania test 1 thoughts, and prone to distractibility and impulsive activities. Id. 2 Evidencing his “serious cognitive impairments” and his extremely low scores on the 3 intelligence tests, Dr. Catlin noted that Plaintiff was unable to even attempt either of the trail- 4 making tests due to his inability to understand the instructions. Id. at 594. She further explained 5 that his cognitive impairments affect his ability to remember, plan, and execute his activities of 6 daily living, and that his emotional vulnerability compounds the effects of his cognitive 7 impairments, which means that “[h]e tends to decompensate easily and has an increase in 8 depressive or manic symptoms when there is a change in environment or when emotional stress is 9 increased.” Id. at 594-95. In this regard, Dr. Catlin added that Plaintiff’s numerous limitations 10 have seen to it that he has never been able to live independently, that he has only managed to 11 undertake very limited employment, that he has been unsuccessful in school, and that he has 12 struggled to manage his mental health symptoms – nevertheless, she opined that “[t]here is no 13 evidence that the claimant’s substance abuse in the past is the cause of his mental health 14 disorders.” Id. at 595. By way of a functional assessment, she found that Plaintiff was severely 15 impaired in nearly every category of work-related functioning. Id. at 595-96. In addition to finding 16 that Plaintiff has experienced multiple episodes of decompensation per year, with each one lasting 17 at least two weeks, Dr. Catlin opined that Plaintiff’s limitations were in the extreme range with 18 respect to the activities of daily living, social functioning, and concentration, persistence, and 19 pace. Id. at 596. Noting that Plaintiff is not malingering, and that his conditions are chronic and 20 should be expected to last at least a year or longer, Dr. Catlin added that because of the above- 21 described symptoms and their limiting effects, Plaintiff should be expected to be absent from work 22 for more than 4 days per month, and that he “is unable to engage in any meaningful employment 23 and would not be able to obtain or retain a job.” Id. at 596; see also id. at 1080. 24 In the course of her second examination and evaluation in March of 2017, Dr. Catlin 25 administered the unabbreviated Wechsler Adult Intelligence Scale – Fourth Edition (“WAIS-IV”), 26 as well as another clinical interview, mental status examination, and a re-administering of the BDI 27 and RBANS. Id. at 1071, 1074, 1083-89. Following the mental status exam, Dr. Catlin noted that 1 to get out of the way; additionally, he continued to experience a loss of appetite and sleeplessness. 2 Id. at 1073-74. Plaintiff’s performance on the RBANS indicated again that he operated in the 3 borderline range, but that his visual and spatial abilities were severely impaired. Id. at 1075-76. 4 The BDI once again revealed symptoms of severe depression. Id. Upon administering the WAIS- 5 IV, Dr. Catlin measured Plaintiff’s full scale IQ score at 67, meaning that his overall thinking and 6 reasoning abilities were in the extremely low range, or, at the bottom 1% of all individuals his age. 7 Id. at 1077, 1084-86. The combination of his low IQ score and his many deficits in adaptive 8 functioning in the conceptual, social, and practical domains led Dr. Catlin to conclude that 9 Plaintiff suffers from an intellectual disability. Id. at 1077-78. Plaintiff’s cognitive limitations 10 cause him to have difficulties with reasoning, problem solving, planning, abstract thinking, 11 judgment, academic learning, learning from experience, as well as understanding and following 12 directions. Id. at 1078. His adaptive deficits limit his ability to function in areas such as 13 communication, social participation, and independent living. Id. Indeed, as Dr. Catlin previously 14 opined, these limitations have prevented Plaintiff from ever being able to live independently, or to 15 successfully undertake employment, or to successfully participate in schooling without the need 16 for special education services, or to manage his need for treatment or the effects of his symptoms. 17 Id. at 595. In the conceptual domain, Plaintiff experiences difficulties with activities that require 18 reading, writing, arithmetic, time management, and money management. Id. at 1078. In the social 19 domain, Plaintiff’s abilities show a lack of maturity in that he experiences difficulty regulating his 20 emotions and his behavior while demonstrating a limited understanding of risk in social situations. 21 Id. In the practical domain he requires assistance with daily living tasks such as shopping, food 22 preparation, transportation, and money management. Id. The upshot of all this, in Dr. Catlin’s 23 opinion, is that Plaintiff’s cognitive and adaptive deficits combine to produce a high risk of him 24 being manipulated by others; further, his anxiety, depression, and paranoia make it very difficult 25 for him to interact with others to any extent. Id. In the end, Dr. Catlin set forth twenty-four 26 categories of work-related functional domains, and other than the ability to maintain basic 27 standards of cleanliness (in which she found Plaintiff’s to be mildly impaired), she found Plaintiff 1 1079-80. 2 Hearing Testimony 3 In January of 2018, the matter came on for a hearing before the ALJ. See id. at 42-71. In 4 pertinent part, the vocational expert (“VE”) testified that if a person were to be consistently off- 5 task for 10% of the time, there would be no jobs available for that person. Id. at 68-69. Further, the 6 VE testified that if a person were to be consistently absent from work for as little a one day per 7 month, month after month, such an individual would not be able to sustain employment. Id. at 69- 8 70. Lastly, the VE added that if a person were to leave work early, or arrive late, by an hour on a 9 regular basis – even only once a month – such a person would not be able to maintain 10 employment. Id. at 70. 11 THE FIVE STEP SEQUENTIAL ANALYSIS FOR DETERMINING DISABILITY 12 A person filing a claim for social security disability benefits (“the claimant”) must show 13 that he has the “inability to do any substantial gainful activity by reason of any medically 14 determinable physical or mental impairment” which has lasted or is expected to last for twelve or 15 more months. See 20 C.F.R. §§ 416.920(a)(4)(ii), 416.909. The ALJ must consider all evidence in 16 the claimant’s case record to determine disability (see id. § 416.920(a)(3)), and must use a five- 17 step sequential evaluation process to determine whether the claimant is disabled (see id. § 18 416.920). “[T]he ALJ has a special duty to fully and fairly develop the record and to assure that 19 the claimant’s interests are considered.” Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983). 20 Here, the ALJ set forth the applicable law under the required five-step sequential 21 evaluation process. AR at 28-30. At Step One, the claimant bears the burden of showing he has not 22 been engaged in “substantial gainful activity” since the alleged date on which the claimant became 23 disabled. See 20 C.F.R. § 416.920(b). If the claimant has worked and the work is found to be 24 substantial gainful activity, the claimant will be found not disabled. See id. The ALJ found that 25 Plaintiff had not engaged in substantial gainful activity since the alleged onset date. AR at 30. At 26 Step Two, the claimant bears the burden of showing that he has a medically severe impairment or 27 combination of impairments. See 20 C.F.R. § 416.920(a)(4)(ii), (c). “An impairment is not severe 1 a minimal effect on the ability to do basic work activities.’” Webb v. Barnhart, 433 F.3d 683, 686 2 (9th Cir. 2005) (quoting S.S.R. No. 96–3(p) (1996)). The ALJ found that Plaintiff suffered from 3 the following severe impairments: degenerative disc disease of the lumbar spine, diabetes, and 4 gout. AR at 30. As to Plaintiff’s bilateral shoulder dislocation, the gunshot wound in his left leg, 5 and the bevy of mental impairments, the ALJ found them all to be non-severe. Id. at 30-31. 6 At Step Three, the ALJ compares the claimant’s impairments to the impairments listed in 7 appendix 1 to subpart P of part 404. See 20 C.F.R. § 416.920(a)(4)(iii), (d). The claimant bears the 8 burden of showing his impairments meet or equal an impairment in the listing. Id. If the claimant 9 is successful, a disability is presumed and benefits are awarded. Id. If the claimant is unsuccessful, 10 the ALJ assesses the claimant’s residual functional capacity (“RFC”) and proceeds to Step Four. 11 See id. § 416.920(a)(4)(iv), (e). Here, the ALJ found that Plaintiff did not have an impairment or 12 combination of impairments that met or medically equaled the severity of any of the listed 13 impairments. AR at 31-32. Next, the ALJ determined that Plaintiff retained the RFC to perform 14 work at the light exertional level but involving a series of modest postural limitations including 15 finding, in pertinent part, that Plaintiff can lift and carry 20 pounds occasionally, that he can lift 10 16 pounds frequently, that he can sit, stand, or walk for up to 6 hours each day; that he can push or 17 pull as much as he can lift and carry; and, that he can occasionally climb ramps, stairs, ladders, 18 ropes, or scaffolds, as well as being able to occasionally balance, stoop, kneel, crouch, and crawl. 19 Id. at 32-34. 20 At Step Four, the ALJ determined that Plaintiff is unable to perform his past relevant work 21 because he has no past relevant work. Id. at 34. Lastly, at Step Five, the ALJ concluded, based on 22 the RFC, Plaintiff’s age, education, and the VE’s testimony, that there are jobs that exist in 23 significant numbers which Plaintiff could have performed – namely, the ALJ found that Plaintiff 24 could have performed the functions of a fast food worker, a housekeeping cleaner, or a food 25 service worker. Id. at 34-35. The ALJ then concluded that Plaintiff had not been under a disability, 26 as defined in the Social Security Act, during the period ranging from the alleged onset date of July 27 1, 2001, through November 1, 2017, the date on which Plaintiff’s age category changed such as to 1 202.04.2 Id. at 34-36. Thus, while the ALJ found Plaintiff to be disabled for the period of time 2 following November 1, 2017, Plaintiff was found not to be disabled for the 16 years and 4 months 3 between his alleged onset date of July 1, 2001, and November 1, 2017. Id. at 35. 4 DISCUSSION 5 Plaintiff seeks review of the ALJ’s partially favorable decision, presenting three assertions 6 of error and contending that the case is due to be remanded for the following reasons: (1) the ALJ 7 erred in evaluating the medical evidence by rejecting the opinions of Plaintiff’s treating and 8 examining providers in favor of the opinions of non-examining sources; (2) the ALJ erred in 9 rejecting Plaintiff’s pain and symptom testimony without providing clear and convincing reasons; 10 and, (3) the ALJ’s above-described errors resulted in the formulation of an erroneous RFC that 11 was not based on substantial evidence. See Pl.’s Mot. (dkt. 14) at 8-17. Additionally, Plaintiff 12 contends that the court should reverse the Commissioner’s determination and remand the case for 13 an immediate award of benefits because the record leaves no room for any serious doubt that 14 Plaintiff was, in fact, disabled between the alleged onset date of July 1, 2001, and the date in 15 November of 2017 when he became a person “of advanced age” under the Grids. Id. at 17-18. In 16 response, Defendant’s arguments in this court venture to somewhat expand the ALJ’s reasoning 17 through a series of post hoc rationalizations that are no more persuasive than the explanations 18 given by the ALJ for the weight given to the various sources of medical opinion evidence and for 19 the formulation of the RFC as it pertains to Plaintiff’s mental impairments. See Def.’s Mot. (dkt. 20 18) at 15-18. However, because “[l]ong-standing principles of administrative law require [this 21 court] to review the ALJ’s decision based on the reasoning and factual findings offered by the ALJ 22 – not post hoc rationalizations that attempt to intuit what the adjudicator may have been thinking,” 23 the court will focus on the ALJ’s explanations for his findings rather than the more expansive set 24 of explanations offered by Defendant in this court. Bray v. Comm’r of SSA, 554 F.3d 1219, 1225 25 (9th Cir. 2009) (citing SEC v. Chenery Corp., 332 U.S. 194, 196 (1947) (“[I]n dealing with a 26 27 2 Once Plaintiff turned 55 in November of 2017, he became a person “of advanced age” (see 20 C.F.R. Part 404, Subpt. P, App. 2 § 201.00(f)), and, under the SSA’s Medical-Vocational Guidelines (also known as 1 determination or judgment which an administrative agency alone is authorized to make, [courts] 2 must judge the propriety of such action solely by the grounds invoked by the agency. If those 3 grounds are inadequate or improper, the court is powerless to affirm the administrative action by 4 substituting what it considers to be a more adequate or proper basis.”); see also Snell v. Apfel, 177 5 F.3d 128, 134 (2d Cir. 1999) (The requirement that administrative tribunals must explain their 6 decisions “exists, in part, to let claimants understand the disposition of their cases.”). 7 The ALJ’s weighing of the various opinions in this case is puzzling. Regarding Plaintiff’s 8 physical impairments, the only opinion from an examining or treating source was that of Dr. 9 Huen, which the ALJ rejected with hardly any explanation at all. See AR at 33-34. Specifically, the 10 ALJ decided to give Dr. Huen’s opinions “little weight” based on a two-sentence explanation: (1) 11 the ALJ maintained that some or all of Dr. Huen’s opinions were “inconsistent with overall 12 medical evidence of record that included relatively normal physical findings except for some 13 occasional tenderness and edema and mild-moderate diagnostic findings,” and (2) the ALJ found it 14 noteworthy that the state agency’s non-examining consultants opined that Plaintiff was capable of 15 performing work at the light exertional level. Id. In fact, on the same page of the ALJ’s decision, 16 his description of the evidentiary record seriously undermines his evaluation of Dr. Huen’s 17 opinions. See id. at 33. Specifically, the ALJ noted that the record indicated that Plaintiff had a 18 long history of pain in his lumbar spine and gout affecting his ankles and feet, and that “[d]espite 19 normal physical examinations, the record indicates that the claimant’s back condition along with 20 his gout continued to cause problems” through 2015 and into 2016, with evidence of pain in the 21 joints and muscles in his lower back, degeneration of the lumbosacral intervertebral disc in his 22 lumbar spine, gout, swelling in one ankle, soft tissue deficiency and the accumulation of fluid in 23 the right foot, as well as arthritis. Id. However, in the middle of this recitation, the ALJ curiously 24 noted that while using oxycodone helped Plaintiff to remain functional, Plaintiff was no longer 25 prescribed any narcotic pain medications, including oxycodone, beginning in 2016, due to his past 26 history of substance abuse leading up to 2013. Id. Thus, while failing to set forth or describe the 27 relevant findings and limitations opinions, the ALJ’s justification for rejecting the entirety of Dr. 1 an examining physician’s opinion was given little weight because it was supposedly inconsistent 2 with a record that was then described as being substantially consistent, and then, adding that 3 although it was no longer available, oxycodone used to make Plaintiff feel better. Id. The second 4 basis provided by the ALJ for rejecting Dr. Huen’s opinion was the fact that the ALJ had already 5 decided to afford controlling weight to the opinions of non-examining state agency consultants 6 who had opined that Plaintiff was “limited to light exertion with occasional postural limitations 7 along with only non-severe mental impairments.” Id. 8 In a similar fashion, the ALJ gave “little weight” to the opinions of Dr. Catlin as well as 9 the opinions of Plaintiff’s treating psychiatrist, Dr. Seal (who the ALJ failed to mention while 10 instead naming Ms. Jennings-Parriott, the social worker who was a co-signatory to Dr. Seal’s 11 report). Id. at 34. In a similarly self-defeating fashion, the ALJ noted that because they do not 12 identify limitations, GAF scores are “of limited use,” however, the ALJ then relied on the mild to 13 moderate GAF score found in a 2013 assessment performed by the Santa Rita Jail as confirmation 14 that the opinions of Drs. Caitlin and Seal “are contrary to the evidence of record.” Id. In fact, while 15 Defendant’s statement is imbedded in a series of post hoc justifications for the ALJ’s error, in this 16 court, “[t]he Commissioner notes that [t]he American Psychiatric Association abandoned the GAF 17 scale in the DSM-V because of, among other things, its conceptual lack of clarity (i.e., including 18 symptoms, suicide risk and disabilities in its descriptors) and questionable psychometrics in 19 routine practice.” See Def.’s Mot. (dkt. 18) at 18. Thus, it should also not go without mention that 20 while the ALJ was busy myopically focusing on Plaintiff’s GAF score from jail records, he 21 neglected to even mention Plaintiff’s astoundingly low IQ score. See AR at 27-36. By failing to 22 even mention Plaintiff’s RBANS and WAIS-IV IQ scores, and by relying instead on a 2013 GAF 23 score to discredit the opinions of examining physicians, “the evidence cited by the ALJ in support 24 of his assertion significantly mischaracterizes the record, [because] the ALJ ignored evidence 25 pointing to a contrary conclusion.” Ramirez v. Berryhill, 739 F. App’x 428, 431 (9th Cir. 2018) 26 (citing Diedrich v. Berryhill, 874 F.3d 634, 643 (9th Cir. 2017) (holding that an ALJ errs by 27 ignoring competent evidence that contradicts the ALJ’s findings); Rose v. Shalala, 34 F.3d 13, 18 1 opinion); see also Balsamo v. Chater, 142 F.3d 75, 81 (2d Cir. 1998); Rohan v. Chater, 98 F.3d 2 966, 970 (7th Cir. 1996). 3 Other than when test results were rejected by implication because the ALJ failed to even 4 mention or discuss the evidence, the ALJ’s only explanation for rejecting the opinions of Drs. 5 Catlin and Seal was identical to the explanation for rejecting Dr. Huen’s opinions, that is, because 6 of the assertion that they were inconsistent with the record, when they were not, and because they 7 were “contrary” to the opinions of the non-examining state agency consultants. AR at 34. 8 Additionally, the ALJ also premised rejecting the opinions of the only two mental health 9 professionals to have actually examined Plaintiff on the faulty foundation that, at times during his 10 medical history, Plaintiff has appeared to persons untrained in the mental health professions as 11 having a relatively normal mental status. Id. Thus, by relying on notations of “normal” mental 12 status descriptions on intake forms meant to admit Plaintiff for physical treatment in order to reject 13 the detailed and well-founded opinions of his treating psychiatrist and an examining psychologist, 14 the ALJ failed to accord due respect to specialists about medical issues related to their areas of 15 specialization. See 20 C.F.R. § 404.1527(c)(5) (“We generally give more weight to the medical 16 opinion of a specialist about medical issues related to his or her area of specialty than to the 17 medical opinion of a source who is not a specialist.”); Revels v. Berryhill, 874 F.3d 648, 654 (9th 18 Cir. 2017); see also Benecke v. Barnhart, 379 F.3d 587, 594 n.4 (9th Cir. 2004) (A doctor’s 19 specialized knowledge is especially relevant with respect to conditions that are “poorly 20 understood” within the rest of the medical community.). In any event, the only other statement in 21 the ALJ’s decision that ventured to explain the rejection of the opinions of Drs. Seal and Catlin 22 was when the ALJ mused that “[i]f the claimant had such marked and extreme mental 23 impairments, they would have been readily apparent to treating physicians and reported in the 24 mental status records, and they were not.” AR at 31. However, this is no explanation at all because 25 it is quite well established that in the context of adjudicating an application for social security 26 benefits, an ALJ’s “[s]heer disbelief is no substitute for substantial evidence.” Benecke, 379 F.3d 27 at 594. 1 noted that medical opinions are “distinguished by three types of physicians: (1) those who treat the 2 claimant (treating physicians); (2) those who examine but do not treat the claimant (examining 3 physicians); and (3) those who neither examine nor treat the claimant (nonexamining physicians).” 4 Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). The medical opinion of a claimant’s treating 5 provider is given “controlling weight” so long as it “is well-supported by medically acceptable 6 clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial 7 evidence in [the claimant’s] case record.” 20 C.F.R. § 404.1527(c)(2); see also Revels, 874 F.3d at 8 654. In cases where a treating doctor’s opinion is not controlling, the opinion is weighted 9 according to factors such as the nature and extent of the treatment relationship, as well as the 10 consistency of the opinion with the record. 20 C.F.R. § 404.1527(c)(2)-(6); Revels, 874 F.3d at 11 654. 12 “To reject [the] uncontradicted opinion of a treating or examining doctor, an ALJ must 13 state clear and convincing reasons that are supported by substantial evidence.” Ryan v. Comm’r of 14 Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) (alteration in original) (quoting Bayliss v. Barnhart, 15 427 F.3d 1211, 1216 (9th Cir. 2005)). “If a treating or examining doctor’s opinion is contradicted 16 by another doctor’s opinion, an ALJ may only reject it by providing specific and legitimate 17 reasons that are supported by substantial evidence.” Id. (quoting Bayliss, 427 F.3d at 1216); see 18 also Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (“[The] reasons for rejecting a treating 19 doctor’s credible opinion on disability are comparable to those required for rejecting a treating 20 doctor’s medical opinion.”). “The ALJ can meet this burden by setting out a detailed and thorough 21 summary of the facts and conflicting clinical evidence, stating his [or her] interpretation thereof, 22 and making findings.” Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (quoting Cotton v. 23 Bowen, 799 F.2d 1403, 1408 (9th Cir. 1986)). Further, “[t]he opinion of a nonexamining physician 24 cannot by itself constitute substantial evidence that justifies the rejection of the opinion of either 25 an examining physician or a treating physician.” Lester, 81 F.3d at 831; see also Revels, 874 F.3d 26 at 654-55; Widmark v. Barnhart, 454 F.3d 1063, 1066-67 n.2 (9th Cir. 2006); Morgan v. Comm’r, 27 169 F.3d 595, 602 (9th Cir. 1999); see also Erickson v. Shalala, 9 F.3d 813, 818 n.7 (9th Cir. 1 medical report is the most probative. See Young v. Heckler, 803 F.2d 963, 968 (9th Cir. 1986). 2 It will not be necessary to determine whether or not the later-rendered findings and 3 opinions of Plaintiff’s treating and examining physicians were “contradicted” by the earlier- 4 rendered opinions of the non-examining state agency consultants (Drs. Bilik, Samplay, Econome, 5 and Pancho) because the ALJ’s explanations for rejecting this evidence did not even rise to the 6 standard of specific and legitimate reasons supported by substantial evidence for the reasons 7 discussed above. It was error for the ALJ to give controlling weight to the opinions of the non- 8 examining consultants (see AR at 31-33), and to exclusively base the Step Three analysis and the 9 RFC findings on those opinions because they are contradicted by the overwhelming weight of the 10 medical evidence as discussed above. Further, as mentioned above, those opinions “cannot by 11 [themselves] constitute substantial evidence that justifies the rejection of the opinion of either an 12 examining physician or a treating physician.” Lester, 81 F.3d at 831. Beyond that, the ALJ’s 13 decision to reject the opinions of Drs. Catlin and Seal rested on the faulty reasoning described 14 above as well as a near-complete misapprehension of the record. Accordingly, the court now finds 15 that the opinions of Dr. Huen, Dr. Seal, and Dr. Catlin are due to be credited-as-true as a matter of 16 law. 17 Nature of Remand 18 The decision whether to remand for further proceedings or for payment of benefits 19 generally turns on the likely utility of further proceedings. Carmickle v. Comm’r, SSA, 533 F.3d 20 1155, 1169 (9th Cir. 2008). A district court may “direct an award of benefits where the record has 21 been fully developed and where further administrative proceedings would serve no useful 22 purpose.” Smolen, 80 F.3d at 1292. 23 The Court of Appeals for the Ninth Circuit has established a three-part test “for 24 determining when evidence should be credited and an immediate award of benefits directed.” 25 Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir. 2000). Remand for an immediate award of 26 benefits is appropriate when: (1) the ALJ has failed to provide legally sufficient reasons for 27 rejecting such evidence; (2) there are no outstanding issues that must be resolved before a 1 required to find the claimant disabled were such evidence credited. Id. The second and third 2 prongs of the test often merge into a single question; that is, whether the ALJ would have to award 3 benefits if the case were remanded for further proceedings. Id. at 1178 n.2; see also Garrison v. 4 Colvin, 759 F.3d 995, 1021-23 (9th Cir. 2014) (when all three conditions of the credit-as-true rule 5 are satisfied, and a careful review of the record discloses no reason to seriously doubt that a 6 claimant is, in fact, disabled, a remand for a calculation and award of benefits is required). 7 Here, in light of the above-discussed and improperly discredited medical opinion evidence 8 two things are clear: first, it is clear that Plaintiff has in fact been disabled since his alleged onset 9 date, and second, it is clear that further administrative proceedings would be useless because the 10 ALJ would be required to find Plaintiff disabled on remand. First, even putting aside the entire 11 universe of Plaintiff’s many physical impairments and their consequential limitations, Plaintiff’s 12 bipolar disorder, depression, PTSD, and intellectual disability would undoubtedly compel a 13 disability finding at Step Three because they each clearly meet the criteria for the the four relevant 14 listings, to wit, Listing 12.04(A)(1) (depressive disorder), Listing 12.04(A)(2) (bipolar disorder), 15 Listing 12.15 (trauma-related disorders), and Listing 12.05 (intellectual disorder)). See 20 C.F.R. 16 Pt. 404, Subpt. P, app. 1, §§ 12.04, 12.05, 12.15. Because the ALJ erroneously found that all of 17 Plaintiff’s mental impairments and most of his physical impairments were non-severe at Step 18 Two, the ALJ only considered Listing 1.04 (disorders of the spine) at Step Three. See AR at 30-32. 19 In any case, the first reason that further administrative proceedings would be useless is that 20 based on the improperly discredited evidence, Plaintiff’s condition clearly meets the criteria of 21 Listing 12.04(A)(1) pertaining to depressive disorders. See 20 C.F.R. Pt. 404, Subpt. P, App. 1, 22 §12.04. To satisfy the criteria of Listing 12.04 – it is necessary to satisfy the pertinent criteria 23 listed in subparts (A)(1) and (B), or (A)(1) and (C). See id. Subpart (A) requires medical 24 documentation of a depressive disorder, characterized by five or more of the following: depressed 25 mood; diminished interest in almost all activities; appetite disturbance with change in weight; 26 sleep disturbance; observable psychomotor agitation or retardation; decreased energy; feelings of 27 guilt or worthlessness; difficulty concentrating or thinking; or thoughts of death or suicide. § 1 category with the exception of psychomotor agitation or retardation. See AR at 588, 590, 593-95, 2 683, 1072, 1074, 1076-79). Turning to Subpart (B) of Listing 12.04, that provision requires: 3 extreme limitation of one, or marked limitation of two, of the following areas of mental 4 functioning: understanding, remembering, or applying information; interacting with others; 5 concentrating, persisting, or maintaining pace; adapting or managing oneself. § 12.04(B). Drs. 6 Seal and Catlin found marked limitations in all four of these categories. See AR at 595-96, 684-85, 7 1079-80. Thus, Plaintiff’s depression has clearly been disabling under Listing 12.04(A)(1) and (B) 8 since his alleged onset date. 9 The second reason that further administrative proceedings would be useless is that 10 Plaintiff’s bipolar disorder also clearly meets the criteria of Listing 12.04(A)(2). To satisfy the 11 criteria for bipolar disorder in Listing 12.04 – it is necessary to satisfy the pertinent criteria listed 12 in subparts (A)(2) and (B), or (A)(2) and (C). See 20 C.F.R. Pt. 404, Subpt. P, App. 1, §12.04. The 13 first part of listing level bipolar disorder is characterized by three or more of the following: 14 pressured speech, flight of ideas, inflated self-esteem, decreased need for sleep, distractibility, 15 involvement in activities that a high probability of painful consequences that are not recognized, 16 or increased goal-directed activity or psychomotor agitation. Id. at §12.04(A)(2). Once again, Drs. 17 Seal and Catlin both found that Plaintiff met the same three criteria: a decreased need for sleep, 18 distractibility, and involvement in activities that have a high probability of unrecognized painful 19 consequences. See AR at 588, 590, 593-95, 683, 1073-74, 1076-79. Subpart (B) has the same 20 requirements and criteria discussed above; and, as was the case above, Drs. Seal and Catlin found 21 marked limitations in all four categories. See id. at 595-96, 684-85, 1079-80. Accordingly, 22 Plaintiff’s bipolar disorder has also been clearly disabling under Listing 12.04(A)(2) and (B) since 23 his alleged onset date. 24 The third reason that further administrative proceedings would serve no purpose is that 25 Plaintiff’s PTSD also clearly meets the criteria of Listing 12.15. As was the case above, in order to 26 satisfy the criteria for listing-level PTSD under §12.15 – it is necessary to satisfy the pertinent 27 criteria listed in subparts (A) and (B), or (A) and (C). See 20 C.F.R. Pt. 404, Subpt. P, App. 1, 1 to actual or threatened death, serious injury, or violence; subsequent involuntary re-experiencing 2 of the traumatic event (e.g., intrusive memories, flashbacks, or dreams); avoidance of external 3 reminders of the event; disturbances in mood and behavior; and, increases in arousal and reactivity 4 (e.g., exaggerated startle response or sleep disturbance). Id. Once again, Drs. Seal and Catlin both 5 found that Plaintiff met all of these criteria as a result of the trauma he experienced due to the 6 untimely death of his mother. See AR at 588-90, 593-95, 683-84, 1072, 1074, 1076-79. Subpart 7 (B) has the same requirements and criteria discussed above; and, again, Drs. Seal and Catlin found 8 marked limitations in all four categories. See id. at 595-96, 684-85, 1079-80. Accordingly, 9 Plaintiff’s PTSD has also been clearly disabling under Listing 12.15(A) and (B) since his alleged 10 onset date. 11 The fourth reason that further administrative proceedings would be a waste of time is that 12 Plaintiff’s intellectual disorder also clearly meets the criteria set forth in Listing 12.05(B). In order 13 to satisfy the criteria for listing-level intellectual disorder under §12.05 – it is necessary to satisfy 14 the pertinent criteria listed in either subpart (A) or (B). See 20 C.F.R. Pt. 404, Subpt. P, App. 1, 15 §12.05. The criteria set forth in Subpart (B) require a full scale IQ score of 70 or below; significant 16 deficits in adaptive functioning currently manifested by extreme limitation of one, or marked 17 limitation of two of the following areas of mental functioning: understanding, remembering, or 18 applying information; interacting with others; concentrating, persisting, or maintaining pace; and 19 adapting or managing oneself – additionally, the evidence about the current level of intellectual 20 and adaptive functioning should demonstrate or support the conclusion that the disorder began 21 prior to the age of 22. See id. at §12.05(B)(1)-(3). In this regard, in March of 2017, Dr. Catlin’s 22 administering of the WAIS-IV resulted in a full scale IQ score of 67 (see AR at 1085-89); and, as 23 mentioned above, Drs. Seal and Catlin found marked limitations in all four of the areas of mental 24 functioning. See id. at 595-96, 684-85, 1079-80. As to evidence of the onset of the disorder prior 25 to the age of 22, Dr. Catlin explained that because of the symptoms of his intellectual disorder, 26 Plaintiff has never been able to live independently, has only managed to undertake very limited 27 employment, has been unsuccessful in school throughout his formative years, always needing 1 588-89, 590-93, 594-96, 1072, 1077-80. Thus, Plaintiff’s intellectual disorder has also been 2 clearly disabling under Listing 12.05(B) since his alleged onset date. 3 As for the fifth reason that the record conclusively establishes that Plaintiff has been 4 disabled since his alleged onset date, even if one were able to overlook the fact that his mental 5 impairments clearly meet the above-described listings, the combination of his physical and mental 6 impairments would also compel a disability finding during the formulation of the RFC. Given the 7 fact that the improperly rejected evidence established marked or extreme limitations in all of the 8 areas of mental functioning, combined with the physical limitations opined by Dr. Huen (“[w]ork 9 capacity right now, I would say at this point is less than sedentary given his inability to sit very 10 long due to lumbar spine pain . . . [and] [l]ifting and carrying are pretty much ruled out . . . ” see 11 AR at 584), lead to the inescapable conclusion that Plaintiff has had no residual capacity to 12 function in the workplace at all since his alleged onset date. Turning to the sixth and final reason 13 that Plaintiff must be found disabled since his alleged onset date on remand – when the improperly 14 rejected evidence is given effect, the ALJ would be required to find Plaintiff disabled at Step Five 15 based on the VE’s testimony. As mentioned above, at the hearing before the ALJ, the VE testified 16 that if someone were off-task even 10% of the time, or if one were to consistently arrive late to 17 work or leave early by as little as an hour, or consistently be absent for one or more days per 18 month – that such a person would not be employable. See id. at 68-70. In this regard, Dr. Seal 19 opined that Plaintiff’s conditions would see to it that he would be off-task for more than 30% of a 20 typical workday, as well as being absent from work more than 4 days per month. Id. at 685. 21 Likewise, Dr. Catlin opined that Plaintiff’s impairments would cause him to be absent form work 22 more than 4 days per month. Id. at 596, 1080. Thus, Plaintiff would also be found disabled since 23 his alleged onset date at Step Five based on the testimony of the VE. 24 At this juncture, the court will note that in cases where each of the credit-as-true factors is 25 met, it is generally only in “rare instances” where a review of the record as a whole gives rise to a 26 “serious doubt as to whether the claimant is actually disabled.” Revels, 874 F.3d at 668 n.8 (citing 27 Garrison, 759 F.3d at 1021). This is not one of those “rare instances,” as the record leaves no 1 however, makes a series of contrary contentions to the effect that “[t]he record in this case shows 2 that there are significant conflicts in the evidence [such as the fact that] Plaintiff admitted to being 3 able to lift up to 20 pounds and reported to doctors that he walked and occasionally rode a 4 bicycle.” See Def.’s Mot. (dkt. 18) at 23. For the reasons discussed above, the court finds this 5 argument to be wholly unpersuasive and sees no reason to occasion any further delays attending 6 the administrative process such as to needlessly work out the timeline, or veracity, of Plaintiff’s 7 alleged statement about his alleged ability to, at some point in his life, lift 20 pounds or ride a 8 bicycle. Needlessly remanding a disability claim for further proceedings would only delay much 9 needed income for claimants such as Plaintiff who are unable to work and who are entitled to 10 benefits, which would in turn subject them to “tremendous financial difficulties while awaiting the 11 outcome of their appeals and proceedings on remand.” Varney v. Sec’y of Health & Human Servs., 12 859 F.2d 1396, 1398 (9th Cir. 1988). Thus, the law in this Circuit does not permit a case like this 13 to be remanded for no reason other than to allow an ALJ a nugatory opportunity to inquire into the 14 details of a statement about lifting 20 pounds or riding a bicycle, or, worse yet, to concoct a 15 different explanation for a non-disability finding that likewise would fall short of the legal 16 standards described herein. See Benecke, 379 F.3d at 595 (“Allowing the Commissioner to decide 17 the issue again would create an unfair ‘heads we win; tails, let’s play again’ system of disability 18 benefits adjudication.”). 19 // 20 // 21 // 22 // 23 // 24 // 25 // 26 // 27 // 1 2 CONCLUSION 3 Accordingly, for the reasons stated above, Plaintiff's Motion for Summary Judgment (dkt. 4 14) is GRANTED, and Defendant’s Motion for Summary Judgment (dkt. 18) is DENIED. The 5 ALJ’s finding of non-disability between the alleged onset date of July 1, 2001, and November 1, 6 |} 2017, is REVERSED and the case REMANDED for the immediate calculation and payment of 7 benefits pertaining to this period of time. 8 IT IS SO ORDERED. 9 || Dated: July 21, 2020 10 11 R@BERT M. ILLMAN 3 12 United States Magistrate Judge
15 16
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