1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 DAVE B., ) Case No. CV 18-3177-SP ) 12 Plaintiff, ) ) 13 v. ) MEMORANDUM OPINION AND ) ORDER 14 ) ANDREW M. SAUL, Commissioner of ) 15 Social Security Administration, ) ) 16 Defendant. ) ) 17 ) 18 19 I. 20 INTRODUCTION 21 On April 16, 2018, plaintiff Dave B., proceeding pro se, filed a complaint 22 against defendant, the Commissioner of the Social Security Administration 23 (“Commissioner”), seeking a review of a denial of a period of disability and 24 disability insurance benefits (“DIB”). The parties have fully briefed the matters in 25 dispute, and the court deems the matter suitable for adjudication without oral 26 argument. 27 Plaintiff presents what the court interprets as six disputed issues for 28 1 decision: (1) whether the Administrative Law Judge (“ALJ”) properly considered 2 the medical opinions; (2) whether the ALJ properly considered plaintiff’s 3 subjective complaints; (3) whether the ALJ erred at step three; (4) whether the ALJ 4 erred at step five; (5) whether the ALJ fully developed the record; and (6) whether 5 the ALJ properly considered lay testimony. Memorandum in Support of Plaintiff’s 6 Complaint (“P. Mem.”) at 2-91; see Defendant’s Memorandum in Support of 7 Answer (“D. Mem.”) at 1-15. 8 Having carefully studied the parties’ memoranda on the issues in dispute, the 9 Administrative Record (“AR”), and the decision of the ALJ, the court concludes 10 that, as detailed herein, the ALJ properly considered most of the medical opinions, 11 properly considered plaintiff’s testimony, did not err at steps three and five, and 12 properly considered the lay opinion. But the court also concludes that the ALJ 13 failed to properly consider the State Agency physicians’ opinions concerning 14 plaintiff’s physical limitations, and failed to fully develop the record in that regard. 15 The court therefore remands this matter to the Commissioner in accordance with 16 the principles and instructions enunciated in this Memorandum Opinion and Order. 17 II. 18 FACTUAL AND PROCEDURAL BACKGROUND 19 Plaintiff was 43 years old on his alleged disability onset date and is a college 20 graduate. AR at 75, 222. Plaintiff has past relevant work as an actor and waiter. 21 Id. at 63. 22 On September 29, 2015, plaintiff filed an application for a period of 23 disability and DIB due to post-traumatic stress syndrome (“PTSD”), protruding 24 discs, muscle spasms in the back, sciatica, depression, anxiety, and insomnia. Id. 25 at 75. The application was denied initially and upon reconsideration, after which 26 27 1 All citations to the Memorandum in Support of Plaintiff’s Complaint refer to 28 the page numbers designated by the CM/ECF system. 1 plaintiff filed a request for a hearing. Id. at 113-24. 2 On April 28, 2017, plaintiff, then represented by counsel, appeared and 3 testified at a hearing before the ALJ. Id. at 41-74. The ALJ also heard testimony 4 from June Hagen, a vocational expert. Id. at 62-72. On September 14, 2017, the 5 ALJ denied plaintiff’s claim for benefits. Id. at 22-34. 6 Applying the well-known five-step sequential evaluation process, the ALJ 7 found, at step one, that plaintiff had not engaged in substantial gainful activity 8 since March 28, 2014, the alleged onset date. Id. at 24. 9 At step two, the ALJ found plaintiff suffered from the following severe 10 impairments: degenerative disc disease of the lumbar spine, osteoporosis, and 11 PTSD. Id. 12 At step three, the ALJ found plaintiff’s impairments, whether individually or 13 in combination, did not meet or medically equal one of the listed impairments set 14 forth in 20 C.F.R. part 404, Subpart P, Appendix 1 (the “Listings”). Id. at 25. 15 The ALJ then assessed plaintiff’s residual functional capacity (“RFC”),2 and 16 determined plaintiff had the RFC to perform light work3, with the limitations that 17 18 2 Residual functional capacity is what a claimant can do despite existing 19 exertional and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 1155- 20 56 n.5-7 (9th Cir. 1989). “Between steps three and four of the five-step evaluation, the ALJ must proceed to an intermediate step in which the ALJ assesses the 21 claimant’s residual functional capacity.” Massachi v. Astrue, 486 F.3d 1149, 1151 22 n.2 (9th Cir. 2007). 23 3 “Light work involves lifting no more than 20 pounds at a time with frequent 24 lifting or carrying of objects weighing up to 10 pounds.” 20 C.F.R. § 404.1567(b). “[T]he full range of light work requires standing or walking, off and on, for a total 25 of approximately 6 hours of an 8-hour workday.” Social Security Ruling (“SSR”) 26 83-10. “The Commissioner issues [SSRs] to clarify the Act’s implementing regulations and the agency’s policies. SSRs are binding on all components of the 27 SSA. SSRs do not have the force of law. However, because they represent the 28 Commissioner’s interpretation of the agency’s regulations, we give them some 1 plaintiff: could perform occasional postural movements; could not climb ladders, 2 ropes, or scaffolds; could not work around unprotected heights or moving 3 mechanical parts; must change from sitting to standing every 30 minutes for one to 4 two minutes; and was limited to simple, routine tasks with occasional public 5 contact. Id. at 26. 6 The ALJ found, at step four, that plaintiff was incapable of performing his 7 past relevant work as an actor or waiter. Id. at 31-32 8 At step five, the ALJ found that given plaintiff’s age, education, work 9 experience, and RFC, there were jobs that existed in significant numbers in the 10 national economy that plaintiff could perform, including marker, housekeeping 11 cleaner, table worker, addresser, and stuffer. Id. at 32-33. Consequently, the ALJ 12 concluded plaintiff did not suffer from a disability as defined by the Social 13 Security Act. Id. at 33-34. 14 Plaintiff filed a timely request for review of the ALJ’s decision, but the 15 Appeals Council denied the request for review. Id. at 4-6. The ALJ’s decision 16 stands as the final decision of the Commissioner. 17 III. 18 STANDARD OF REVIEW 19 This court is empowered to review decisions by the Commissioner to deny 20 benefits. 42 U.S.C. § 405(g). The findings and decision of the Social Security 21 Administration must be upheld if they are free of legal error and supported by 22 substantial evidence. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001) 23 (as amended). But if the court determines the ALJ’s findings are based on legal 24 error or are not supported by substantial evidence in the record, the court may 25 26 deference. We will not defer to SSRs if they are inconsistent with the statute or 27 regulations.” Holohan v. Massanari, 246 F.3d 1195, 1203 n.1 (9th Cir. 2001) 28 (internal citations omitted). 1 reject the findings and set aside the decision to deny benefits. Aukland v. 2 Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. Halter, 242 F.3d 3 1144, 1147 (9th Cir. 2001). 4 “Substantial evidence is more than a mere scintilla, but less than a 5 preponderance.” Aukland, 257 F.3d at 1035. Substantial evidence is such 6 “relevant evidence which a reasonable person might accept as adequate to support 7 a conclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Mayes, 276 8 F.3d at 459. To determine whether substantial evidence supports the ALJ’s 9 finding, the reviewing court must review the administrative record as a whole, 10 “weighing both the evidence that supports and the evidence that detracts from the 11 ALJ’s conclusion.” Mayes, 276 F.3d at 459. The ALJ’s decision “‘cannot be 12 affirmed simply by isolating a specific quantum of supporting evidence.’” 13 Aukland, 257 F.3d at 1035 (quoting Sousa v. Callahan, 143 F.3d 1240, 1243 (9th 14 Cir. 1998)). If the evidence can reasonably support either affirming or reversing 15 the ALJ’s decision, the reviewing court “‘may not substitute its judgment for that 16 of the ALJ.’” Id. (quoting Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 17 1992)). 18 IV. 19 DISCUSSION 20 A. This Court Will Not Consider the Extra-Record Evidence 21 In support of his complaint, plaintiff submitted new evidence that is not a 22 part of the Administrative Record and, as such, was not reviewed by the ALJ or 23 Appeals Council. Extra-record evidence is not judicially reviewable. Russell v. 24 Bowen, 856 F.2d 81, 84 (9th Cir. 1988). This court, therefore, may not consider 25 this extra-record evidence. 26 Although a court may remand a case for the consideration of new evidence 27 submitted if the claimant demonstrates the new evidence is material and there was 28 1 good cause for failing to include it in the record previously, plaintiff has not argued 2 either. See Clem v. Sullivan, 894 F.2d 328, 332 (9th Cir. 1990). Because this court 3 is remanding this case for further proceedings on other grounds, however, the ALJ 4 should consider the extra-record evidence on remand. 5 B. The ALJ Failed to Properly Consider All of the Medical Opinions 6 Plaintiff argues the ALJ failed to properly consider the medical opinions. P. 7 Mem. at 2, 4-6. Specifically, plaintiff contends the ALJ failed to provide specific 8 and legitimate reasons for discounting the opinions of several treating and 9 examining physicians. Id. Further, plaintiff argues the ALJ’s RFC determination 10 was not supported by substantial evidence because the state agency physicians’ 11 opinions did not constitute substantial evidence. Id. at 5-6. 12 In determining whether a claimant has a medically determinable impairment, 13 among the evidence the ALJ considers is medical evidence. 20 C.F.R. § 14 404.1527(b).4 In evaluating medical opinions, the regulations distinguish among 15 three types of physicians: (1) treating physicians; (2) examining physicians; and 16 (3) non-examining physicians. 20 C.F.R. § 404.1527(c), (e); Lester v. Chater, 81 17 F.3d 821, 830 (9th Cir. 1996) (as amended). “Generally, a treating physician’s 18 opinion carries more weight than an examining physician’s, and an examining 19 physician’s opinion carries more weight than a reviewing physician’s.” Holohan, 20 246 F.3d at 1202; 20 C.F.R. § 404.1527(c)(1)-(2). The opinion of the treating 21 physician is generally given the greatest weight because the treating physician is 22 employed to cure and has a greater opportunity to understand and observe a 23 claimant. Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996); Magallanes v. 24 Bowen, 881 F.2d 747, 751 (9th Cir. 1989). 25 “[T]he ALJ may only reject a treating or examining physician’s 26 27 4 All citations to the Code of Federal Regulations refer to regulations 28 applicable to claims filed before March 27, 2017. 1 uncontradicted medical opinion based on ‘clear and convincing reasons.’” 2 Carmickle v. Comm’r, 533 F.3d 1155, 1164 (9th Cir. 2008) (citing Lester, 81 F.3d 3 at 830-31). “Where such an opinion is contradicted, however, it may be rejected 4 for ‘specific and legitimate reasons that are supported by substantial evidence in 5 the record.’” Id. (quoting Lester, 81 F.3d at 830-31). The opinion of a non- 6 examining physician, standing alone, cannot constitute substantial evidence. 7 Morgan v. Comm’r, 169 F.3d 595, 602 (9th Cir. 1999); Lester, 81 F.3d at 831. 8 1. Treating Physicians 9 a. Dr. Marvin Osman 10 Dr. Marvin Osman, a psychiatrist, treated plaintiff from around January 6, 11 2015 through at least April 20, 2017. AR at 351, 861-66. The record only 12 contains Dr. Osman’s treatment notes from 2015. See AR at 350-51. During nine 13 sessions in 2015, plaintiff reported to Dr. Osman that he suffered from anxiety and 14 insomnia, as well as angered easily, as a result of an attack by a pit bull in 2013. 15 See id. at 350-51. Dr. Osman treated plaintiff with multiple psychotropic 16 medications. See id. at 350-51, 860. 17 Dr. Osman submitted three letters to the Commissioner in support of 18 plaintiff’s application for benefits. Id. at 343, 695-96, 860. In the January 12, 19 2015 letter, Dr. Osman opined the pitbull attack and subsequent surgeries impacted 20 plaintiff’s mental capacity, causing him to suffer from PTSD, depression, and 21 anxiety. Id. at 343. In the March 15, 2016 letter, Dr. Osman restated his diagnoses 22 and explained plaintiff’s panic attacks and anxiety rendered him unable to think or 23 function clearly, causing him to freeze, hyperventilate, and cry uncontrollably in 24 public. See id. at 695-96. In the March, 29, 2017 letter, Dr. Osman stated plaintiff 25 was a “social isolate” and withdrawn from life. Id. at 860. 26 Dr. Osman also submitted a Mental Impairment Questionnaire, dated May 27 27, 2016, in which he opined plaintiff, in most categories, had no useful ability and 28 1 aptitude to do unskilled work. Id. at 707-12. Dr. Osman further opined plaintiff 2 had marked limitations with his ability to perform activities of daily living, had 3 extreme limitations in maintaining social functioning, concentration, persistence of 4 pace; and would have four or episodes of decompensation within a twelve-month 5 period.5 Id. at 711. 6 b. Dr. Mohamed Ziyad Kattih 7 Dr. Mohamed Z. Kattih, a physiatrist, treated plaintiff from approximately 8 May 2015 through at least April 2017. See id. at 751-52, 834-35. Dr. Kattih 9 observed plaintiff had, among other things, tenderness, restricted side bending, an 10 antalgic gait, full motor strength, and a positive single leg raise on the left. See, 11 e.g., id. at 729, 731, 735, 844. During the March 21, 2017 examination, Dr. Kattih 12 noted plaintiff ambulated with a cane. Id. at 836. Dr. Kattih treated plaintiff with 13 epidurals on four occasions from July 2015 through March 2016, physical therapy, 14 and narcotic medication. See id. at 755-58, 866-917. In addition to the physical 15 examinations, Dr. Kattih noted plaintiff was alert, oriented, and had reasonable 16 judgment. See, e.g., id. 729, 733, 735. Plaintiff also reported that he was socially 17 active. See, e.g., id. at 842, 844, 846. 18 In a Los Angeles County Department of Social Services Physical Health 19 Assessment for General Relief form signed April 12, 2017, Dr. Kattih opined 20 plaintiff suffered from a psychiatric problem that may prevent work, had a 21 presumptive disability, and had a medical condition that prevented plaintiff from 22 one or more of the following: frequent sitting, fingering, and handling; occasional 23 standing and walking, lifting 10 pounds, bending, and reaching; or demonstrating 24 25 5 The record also contains four out of five pages of a Short-Form Evaluation 26 for Mental Disorders. AR at 691-94. Although the handwriting appears to match Dr. Osman’s handwriting, the last page, which presumably is the signature page, is 27 missing. The ALJ afforded little weight to this opinion because it was unsigned 28 and inconsistent with the mental status examinations. See id. at 31. 1 grossly normal cognitive ability. Id. at 834-35. In each instance, Dr. Kattih did not 2 specify which condition or limitation plaintiff had. See id. 3 c. Primary Care Physicians 4 Primary care physicians at Saban Community Clinic (“Saban”) treated 5 plaintiff from approximately September 2014 through at least October 2016. See 6 id. at 546, 760. Plaintiff was underweight throughout this period, with his weight 7 ranging from 113 pounds and a BMI of 17.19 to 124 pounds and a BMI of 18.3. 8 See id. at 536, 762. The Saban physicians observed, among other things, plaintiff 9 had tenderness to the touch in his lumbar spine and decreased range of motion. See 10 id. at 538, 663, 666. The Saban physicians observed a normal gait during some 11 examinations and an antalgic gait at others. See, e.g, id. at 539, 785, 812. During 12 the examinations, plaintiff was oriented and had a normal mood and affect. See, 13 e.g., id. at 376, 387, 408. 14 2. Examining Physicians 15 a. Dr. Oswald Chan 16 Dr. Oswald Chan, a Saban family medicine practitioner, examined plaintiff 17 on May 8, 2015. Id. at 536-37. Plaintiff requested eight weeks of disability due to 18 back pain he experienced after a fall in March 2015. See id. at 536. Dr. Chan 19 observed plaintiff had mild tenderness to palpation in the back, was ambulating 20 without difficulty, had a normal gait, and had a negative single leg raise test. See 21 id. at 537. Dr. Chan diagnosed plaintiff with bilateral low back pain without 22 sciatica. See id. When plaintiff demanded to be put on disability, Dr. Chan stated 23 he felt plaintiff could work, but he would refer him to a physiatrist for further 24 assessment instead. See id. 25 b. Dr. Todd D. Moldawer 26 Dr. Todd D. Moldawer, an orthopedic surgeon, examined plaintiff on 27 January 5, 2016 and August 11, 2016. Id. at 685-89, 723-24. At the first 28 1 examination, plaintiff told Dr. Moldawer that he injured his back in March 2015 2 when he panicked after seeing a pit bull and went down to the ground.6 Id. at 685. 3 As a result, plaintiff wore a back brace and sometimes used a cane or walker. Id. 4 Dr. Moldawer observed plaintiff was oriented and alert with appropriate judgment, 5 and had a normal gait, decreased range of motion in the spine, a positive straight 6 leg raise test, tenderness, and a positive Gaenslen’s test. See id. at 687-88. Based 7 on the examination, an MRI, and x-rays, Dr. Moldawer diagnosed plaintiff with a 8 herniated disc at L5-S1 with an extruded disc fragment, multiple levels of 9 degenerative disc disease, a central annular tear with left foraminal narrowing at 10 two levels, broad-based disc bulge, and osteoporosis. Id. at 688. Dr. Moldawer 11 recommended electroneurodiagnostic testing. Id. 12 At his second examination, Dr. Moldawer observed plaintiff walking 13 without a limp but using a cane. Id. at 723. Dr. Moldawer observed plaintiff had 14 decreased range of motion, weakness in the lower extremities, positive straight leg 15 raise test on the left, and some tenderness. Id. Based on the examination and a 16 review of Dr. Yaser Badr’s neurosurgical consultation, Dr. Moldawer 17 recommended a microdiscectomy at L5-S1 on the left. Id. 18 c. Dr. Yaser Badr 19 Dr. Yaser Badr, a neurosurgeon, examined plaintiff on June 29, 2016. Id. at 20 717-20. Dr. Badr observed plaintiff had a limping gait but full strength in his 21 extremities. Id. at 720. Dr. Badr also observed plaintiff had clear speech and no 22 mental deficits. Id. at 719. Based on his examination and review of the imaging, 23 Dr. Badr diagnosed plaintiff with lumbar degenerative disc disease and 24 recommended lumbar decompression and fixation. Id. at 720. 25 26 27 6 Emergency room treatment notes from March 25, 2015, indicate plaintiff 28 hurt his back in the shower. See AR at 358, 361. 1 3. State Agency Physicians 2 Four State Agency physicians reviewed plaintiff’s medical records through 3 2015. Id. at 80-83, 100-02. Based on their review, Dr. S.M. Niknia and Dr. Leslie 4 Arnold, a pediatrician, opined plaintiff had the physical RFC to lift, carry, push, 5 and pull 10 pounds frequently and 20 pounds occasionally, stand and walk six 6 hours in an eight-hour work day, and sit six hours in an eight-hour work day. Id. at 7 85-86, 105-06. 8 Dr. N. Haroun and Dr. Preston Davis, who also reviewed Dr. Osman’s 9 opinion dated January 29, 2016,7 opined plaintiff suffered from anxiety-related 10 disorders and: had mild restrictions in activities of daily living; had moderate 11 limitations in social functioning, had mild limitations in maintaining concentration, 12 persistence, or pace; and would not have repeated episodes of decompensation. Id. 13 at 83-84, 102-03. Dr. Haroun and Dr. Davis opined plaintiff had the mental RFC 14 to perform simple, repetitive tasks; maintain attention in two-hour increments; 15 accept instructions and respond appropriately to supervisors; and respond 16 appropriately to changes in work setting; but was moderately limited in his ability 17 to interact with the general public. Id. at 84, 86-87, 104, 106-08. In reaching their 18 opinion, Dr. Haroun and Dr. Davis discounted Dr. Osman’s opinion because it 19 relied heavily on subjective evidence and was not supported by the objective 20 evidence. See id. at 88, 109. 21 4. The ALJ’s Findings 22 The ALJ determined plaintiff had the physical RFC to perform light work 23 with some postural limitations and the requirement that he must be able to change 24 from sitting to standing every 30 minutes for one to two minutes. Id. at 26. The 25 ALJ restricted plaintiff from climbing ladders, ropes, or scaffolds, and working 26 27 7 The record does not include an opinion dated January 29, 2016 from Dr. 28 Osman. 1 around unprotected heights or moving mechanical parts. Id. As for the mental 2 RFC, the ALJ limited plaintiff to simple, routine tasks with occasional public 3 contact. Id. In reaching this RFC determination, the ALJ gave significant weight 4 to the opinions of the State Agency physicians and little to no weight to the 5 opinions of Dr. Osman and Dr. Kattih. Id. at 30. 6 a. Opinions Regarding Plaintiff’s Mental RFC 7 The ALJ properly considered and discounted Dr. Osman’s opinions, and 8 properly considered and credited Dr. Haroun’s and Dr. Davis’s opinions, which 9 served as substantial evidence to support the ALJ’s Mental RFC determination. 10 The ALJ provided four reasons to discount Dr. Osman’s opinions: (1) the 11 first letter opinion was written after only one visit; (2) the letters contain 12 inconsistencies with the record; (3) the opinions relied on plaintiff’s subjective 13 complaints; and (4) they were not supported by the medical record and clinical 14 findings. Id. at 29-30. Some of these reasons were specific and legitimate. 15 The ALJ’s first reason for rejecting Dr. Osman’s first letter opinion was not 16 specific and legitimate. When Dr. Osman offered his first letter opinion, he had 17 already examined plaintiff. The regulations clearly state that an ALJ must consider 18 the opinions of examining physicians. See 20 C.F.R. § 404.1527(c). The fact that 19 Dr. Osman rendered an opinion after only one examination may be a factor in 20 assigning weight but it is not specific and legitimate reason to reject it. 21 The ALJ’s second and third reasons for giving Dr. Osman’s opinions no 22 weight – they contained inconsistencies with the record and were based on 23 plaintiff’s subjective complaints – were related because both concern plaintiff’s 24 credibility. AR at 29-30. An ALJ may reject medical opinions based on a 25 claimant’s subjective complaints where his credibility has been properly 26 discounted. Schultz v. Astrue, 362 Fed. Appx. 634, 636 (9th Cir. 2010); 27 Tonapetyan, 242 F.3d at 1149; see also Smolen, 80 F.3d at 1284 (ALJ may 28 1 consider prior inconsistent statements in credibility analysis). Regarding 2 inconsistencies with the record, the ALJ cited three inconsistencies: (1) plaintiff 3 testified he saw Dr. Osman frequently but the record contains limited treatment 4 notes; (2) Dr. Osman wrote plaintiff reported having over 20 procedures for his 5 face but the record reflects only one8; and (3) plaintiff told Dr. Osman he injured 6 his back when he fell after seeing a pit bull but emergency room records reflect he 7 hurt his back in the shower. See AR at 30. The record supports the latter two 8 findings of inconsistencies. Compare id. at 50, 343, 685 and id. at 332-33, 358. 9 Regarding plaintiff’s psychiatric treatment, although the record only contains 10 treatments from 2015, Dr. Osman corroborates plaintiff’s testimony about the 11 frequency of his treatment. See id. at 53, 350-51, 861. As for Dr. Osman’s 12 reliance on plaintiff’s subjective complaints, the ALJ correctly observed Dr. 13 Osman’s treatment notes do not contain any objective findings and his opinions 14 appeared to be wholly based on plaintiff’s subjective complaints. See id. at 350- 15 51. As discussed below, the credibility of plaintiff’s testimony was properly 16 discounted, at least in part. Accordingly, substantial evidence supports the ALJ’s 17 rejection of Dr. Osman’s opinions on the basis that they were based on plaintiff’s 18 unreliable subjective complaints. 19 The ALJ’s fourth reason for rejecting Dr. Osman’s opinions was because 20 they were not supported by the objective medical record or clinical findings. Id. at 21 30; see Batson v. Comm’r, 359 F.3d 1190, 1195 (9th Cir. 2004) (holding that an 22 ALJ may discredit physicians’ opinions that are “unsupported by the record as a 23 whole . . . or by objective medical findings”); Tonapetyan, 242 F.3d at 1149 24 (rejecting physician’s opinion, in part, due to a lack of objective evidence to 25 support it). Here, as discussed above, Dr. Osman’s treatment notes contain no 26 27 8 In a treatment note dated just six days prior to the first letter opinion, Dr. 28 Osman wrote plaintiff had 12 surgeries on his face. AR at 351. 1 objective findings. See AR at 350-51. And plaintiff’s other physicians all reported 2 normal mental status examination findings, including that plaintiff was alert, 3 oriented, cooperative, and with appropriate affect. See, e.g., id. at 404, 408, 687, 4 729, 731, 785. 5 Accordingly, the ALJ provided three specific and legitimate reasons 6 supported by substantial evidence for rejecting Dr. Osman’s opinions. 7 As for Dr. Haroun’s and Dr. Davis’s opinions, the ALJ properly considered 8 them and they could serve as substantial evidence. The opinions of a non- 9 examining physician “may [] serve as substantial evidence when the opinions are 10 consistent with independent clinical findings or other evidence in the record.” 11 Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). Although Dr. Haroun and 12 Dr. Davis only reviewed plaintiff’s records from 2015, neither the 2015 nor 13 subsequent records contained any objective, clinical findings supporting greater 14 mental limitations. The 2015 treatment records only contained plaintiff’s 15 subjective complaints. Plaintiff failed to submit any psychiatric treatment notes 16 from 2016 and 2017. His non-psychiatric treatment notes from 2016 and 2017 all 17 contained normal mental status findings. See, e.g., AR at 687, 785, 812, 836. 18 Accordingly, Dr. Haroun’s and Dr. Davis’s opinions could serve as substantial 19 evidence to reject Dr. Osman’s opinions and support the ALJ’s mental RFC 20 determination. 21 b. Opinions Regarding Plaintiff’s Physical RFC 22 Similar to the mental RFC determination, plaintiff argues the ALJ failed to 23 properly considered the treating physician’s opinion regarding his physical RFC 24 and the State Agency physicians’ opinions did not serve as substantial evidence to 25 support the physical RFC determination. 26 Dr. Kattih’s opinion consisted solely of a disability finding. The ALJ 27 properly gave no weight to his opinion because a disability finding is an issue 28 1 reserved for the Commissioner. Id. at 30; see 20 C.F.R. § 404.1527(d)(1). 2 Although the form opinion completed by Dr. Kattih provided him the opportunity 3 to indicate the underlying bases for his disability finding – e.g., the inability to lift 4 10 pounds frequently – Dr. Kattih did not specify the functional limitations 5 underlying his opinion. See AR at 834-35. Thus, the ALJ properly rejected Dr. 6 Kattih’s opinion.9 7 In contrast to the psychiatric State Agency physicians, the opinions of Dr. 8 Niknia and Dr. Arnold could not serve as substantial evidence. The ALJ’s physical 9 RFC determination was based on the State Agency physicians’ opinions as well as 10 the ALJ’s own determination that the evidence reflected plaintiff required postural 11 limitations and the ability to change positions. Id. at 30. Specifically, the ALJ 12 noted the State Agency physicians were able to review plaintiff’s medical records 13 and his own statements, they were most familiar with Social Security requirements, 14 and their opinions were consistent with the record. Id. But Dr. Niknia and Dr. 15 Arnold only reviewed plaintiff’s medical records through 2015. See id. at 80-83, 16 100-02. As the ALJ acknowledged, imaging subsequent to 2015 showed 17 improvement in a herniated disc but increased severity otherwise. See id. at 28; 18 compare id. 364-68 and 690, 829. Treatment notes subsequent to 2015 also reflect 19 plaintiff developed an antalgic gait, had positive single leg raise tests on the left, 20 and used a cane and back brace. See, e.g., id. at 662-63, 719-20, 785, 844. Based 21 on the additional records not reviewed by Dr. Niknia and Dr. Arnold, two 22 physicians recommended plaintiff undergo surgery. See id. at 720, 723. As such, 23 Dr. Niknia’s and Dr. Arnold’s opinions cannot serve as substantial evidence to 24 support the ALJ’s physical RFC determination because they were not consistent 25 26 9 Dr. Kattih’s opinion that plaintiff was disabled was distinct from his objective clinical findings. Although the ALJ properly rejected Dr. Kattih’s 27 disability opinion, he was still required to consider his underlying clinical findings 28 in his RFC determination. The ALJ does not appear to have done so. 1 with the clinical findings or other evidence. 2 In sum, the ALJ properly considered Dr. Osman’s, Dr. Kattih’s, Dr. 3 Haroun’s, and Dr. Davis’s opinions.10 The ALJ provided specific and legitimate 4 reasons for rejecting Dr. Osman’s and Dr. Kattih’s opinions, and her reasons for 5 giving significant weight Dr. Haroun’s and Dr. Davis’s opinions were supported by 6 the record. But because the record did not support Dr. Niknia’s and Dr. Arnold’s 7 opinions, the ALJ improperly gave significant weight to their opinions, and 8 consequently her physical RFC determination was not supported by substantial 9 evidence. 10 C. The ALJ Properly Discounted Plaintiff’s Subjective Complaints 11 Plaintiff contends the ALJ failed to properly consider his testimony. P. 12 Mem. at 5. Specifically, plaintiff argues the ALJ’s reasons for an adverse 13 credibility finding were not clear and convincing and supported by substantial 14 evidence. Id. 15 At the April 2017 hearing, plaintiff testified he made an unsuccessful 16 attempt to work in 2014. AR at 54. He ultimately could not work as a waiter 17 because he did not have the required lifting and carrying strength and was unable 18 to handle the stress. See id. Plaintiff testified he lived alone but a friend helped 19 him “quite a bit,” including with lifting, groceries, laundry, driving, and cooking. 20 See id. Plaintiff further testified he could only stand and walk for about 15 minutes 21 at a time, used a cane, could only sit for about 30 minutes before needing to shift, 22 could lift “maybe” six or seven pounds, and needed to lie down three to four times 23 a day for about an hour each to control his back pain. See id. at 59-61. 24 Plaintiff also submitted a function report, dated November 6, 2015. Id. at 25 234-42. In the report, plaintiff stated he could feed his cat, prepare simple meals 26 27 10 Neither Dr. Badr nor Dr. Chan provided an opinion of plaintiff’s functional 28 limitations. 1 such as cereal, and vacuum with a back brace, which was prescribed in April 2015. 2 See id. at 235-36, 240. Plaintiff stated he only went out when necessary and only 3 for about an hour at a time due to his physical limitations and anxiety. See id. at 4 237. Plaintiff reported difficulties with, among other things, lifting, standing, 5 walking, sitting, and concentration. See id. at 239. Specifically, plaintiff reported 6 he could walk about 10 blocks or 30 minutes before needing to rest and could pay 7 attention for about an hour. See id. at 239, 241. 8 An ALJ must make specific credibility findings, supported by the record. 9 SSR 96-7p. To determine whether testimony concerning symptoms is credible, an 10 ALJ engages in a two-step analysis. Lingenfelter v. Astrue, 504 F.3d 1028, 1035- 11 36 (9th Cir. 2007). First, an ALJ must determine whether a claimant produced 12 objective medical evidence of an underlying impairment “‘which could reasonably 13 be expected to produce the pain or other symptoms alleged.’” Id. at 1036 (quoting 14 Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc)). Second, if there 15 is no evidence of malingering, an “ALJ can reject the claimant’s testimony about 16 the severity of her symptoms only by offering specific, clear and convincing 17 reasons for doing so.” Smolen, 80 F.3d at 1281; accord Burrell v. Colvin, 775 F.3d 18 1133, 1136 (9th Cir. 2014). An ALJ may consider several factors in weighing a 19 claimant’s credibility, including: (1) ordinary techniques of credibility evaluation 20 such as a claimant’s reputation for lying; (2) the failure to seek treatment or follow 21 a prescribed course of treatment; and (3) a claimant’s daily activities. Tommasetti 22 v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008); Bunnell, 947 F.2d at 346-47. 23 At the first step, the ALJ here found plaintiff’s medically determinable 24 impairments could reasonably be expected to cause the symptoms alleged. AR at 25 27. At the second step, because the ALJ did not find any evidence of malingering, 26 the ALJ was required to provide clear and convincing reasons for discounting 27 28 1 plaintiff’s testimony.11 The ALJ provided four reasons for discounting plaintiff’s 2 testimony: (1) his daily activities were inconsistent with the degree of limitations 3 alleged; (2) inconsistent statements; (3) his delay in seeking treatment; and (4) his 4 limitations were not supported by the medical evidence. Id. at 28. 5 The ALJ’s first reason for discounting plaintiff’s testimony was his daily 6 activities indicated more functionality than he alleged. Id.; see Valentine v. Astrue, 7 574 F.3d 685, 693 (9th Cir. 2009) (the ALJ properly discounted plaintiff’s 8 credibility because his daily activities suggested his claims about the severity of his 9 limitations were exaggerated); Thomas, 278 F.3d at 958-59 (in making a credibility 10 determination, an ALJ may consider inconsistencies between a claimant’s 11 testimony and conduct). The ALJ specifically found plaintiff could live 12 independently without full time assistance, prepare meals, perform chores, run 13 errands, and attend medical appointments. See AR at 28. None of the activities 14 enumerated by the ALJ were inconsistent with plaintiff’s testimony about his 15 functional limitations. Plaintiff stated he could only prepare simple meals such as 16 cereal, often had a friend help with chores and could only perform the chores in 17 stages, and only went out when necessary and for a short amount of time. See id. 18 at 54, 236-37. Moreover, “the mere fact a [claimant] has carried on certain daily 19 activities, such as grocery shopping, driving a car, or limited walking for exercise, 20 does not in any way detract from [his] credibility as to [his] overall disability.” 21 Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001). A claimant does not need 22 to be “utterly incapacitated.” Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989). 23 24 11 Although the ALJ did not make an express finding of malingering, the 25 decision suggests the ALJ believed plaintiff to be exaggerating his symptoms for 26 the purpose of obtaining disability benefits. See AR at 28. The ALJ noted plaintiff was only sporadically employed prior to the alleged onset of disability and 27 continuously requested disability notes from his physicians without waiting to see 28 if treatment would improve his symptoms. See id. 1 The ALJ’s second reason for the adverse credibility finding – multiple 2 inconsistent statements – was supported by substantial evidence. AR at 28; see 3 Bunnell, 947 F.2d at 346 (an ALJ “may discredit the claimant’s allegations based 4 on inconsistencies”). The ALJ correctly noted plaintiff testified he had 20 5 procedures for his face, including to treat a punctured septum, but the records only 6 indicated one procedure and no mention of a punctured septum. AR at 28; see also 7 id. at 50-51, 332-33, 339-40, 563-64. The ALJ also correctly noted plaintiff made 8 inconsistent statements regarding how he injured his back. Emergency room 9 records reflect plaintiff injured his back in the shower in March 2015. See AR at 10 358, 361. But plaintiff reported to his social worker and in the Function Report 11 that he injured his back in March 2015 when he fell or jumped after seeing a pit 12 bull due to his PTSD. See id. at 234, 727. And during the hearing, plaintiff 13 testified that he hurt his back when he slipped during the pit bull attack in 14 November 2013. See id. at 57. Finally, the ALJ found plaintiff’s testimony 15 concerning the use of a cane was inconsistent with the record. This finding was 16 not supported by substantial evidence since the record contains at least three 17 references to plaintiff using a cane. See id. at 662, 723, 836. Notwithstanding the 18 cane finding, the other inconsistencies were clear and convincing reasons to find 19 plaintiff’s testimony less credible.12 20 Third, the ALJ discounted plaintiff’s testimony because he delayed seeking 21 22 12 The record also contains other inconsistent statements not referenced by the 23 ALJ. Plaintiff fractured his right wrist in May 2015 when he closed a door on his 24 hand, yet he later stated he sustained the injury after a fall. See AR at 779, 812. Regarding his psychiatric treatment, in June 2016, plaintiff reported he was not 25 receiving therapy, but in April 2017, Dr. Osman stated he had been treating 26 plaintiff for the last three and a half years. See id. at 792, 861. As for his ability to socialize, Dr. Osman characterized plaintiff as a social isolate based on plaintiff’s 27 reports of social anxiety, but plaintiff told Dr. Kattih he was socially active. See id. 28 at 842, 844, 846, 860. 1 treatment for his physical and mental conditions. See id. at 28. Regarding his 2 back, the ALJ found that assuming plaintiff’s testimony that he injured his back in 3 November 2013 was true, he did not seek treatment for over a year. See id. As 4 discussed above, plaintiff’s testimony was inconsistent with the record, which 5 plainly documented plaintiff timely seeking treatment after sustaining the back 6 injury in March 2015. See id. at 358. Thus, the basis for the adverse credibility 7 finding was the inconsistent statement rather than a failure to seek treatment. 8 Similarly, the failure to seek immediate mental health treatment was not sufficient 9 for an adverse credibility finding. Plaintiff contends he initially did not know his 10 insurance covered psychiatric treatment, but sought it once he learned it was 11 covered. See Orn v. Astrue, 495 F.3d 625, 638 (9th Cir. 2007) (failure to seek 12 treatment may be a basis for an adverse crediblity finding unless was a good reason 13 for not doing so). Moreover, PTSD does not necessarily manifest until well after 14 the causal event. See Savoie v. Astrue, 2012 WL 3044134, at *4 (D. Or. Jul. 25, 15 2012) (citing Jones v. Chater, 65 F.3d 102, 103 (8th Cir. 1995)); accord Nguyen v. 16 Chater, 100 F.3d 1462, 1465 (9th Cir. 1996) (“[I]t is common knowledge that 17 depression is one of the most underreported illnesses in the country because those 18 afflicted often do not recognize that their condition reflects a potentially serious 19 mental illness.”). The failure to seek immediate treatment was therefore not a clear 20 and convincing reason to find plaintiff’s testimony less credible. 21 Finally, the ALJ cited lack of objective medical support as a basis for 22 finding plaintiff’s testimony less credible. See AR at 28-29. Specifically, the ALJ 23 noted although plaintiff had multi-level degenerative disc disease with annular 24 tears, disc extrusion, and foraminal narrowing; a herniated disc; mild denervation; 25 and osteopenia, plaintiff exhibited a normal gait, normal range of motion in his 26 extremities, and full motor strength in 2015. See id. The ALJ also acknowledged 27 the positive straight leg raise test, decreased range of motion, limping gait, physical 28 1 therapy, and epidural injections, but nonetheless found they were inconsistent with 2 plaintiff’s alleged limitations. See id. Contrary to the ALJ’s determination, there 3 was objective evidence to support plaintiff’s complaints. 4 In all, the ALJ cited one clear and convincing reason for her adverse 5 credibility finding – plaintiff’s inconsistent statements. The remaining reasons 6 were not supported by substantial evidence. But given the numerous inconsistent 7 statements, this reason was sufficient by itself to support the ALJ’s discounting of 8 plaintiff’s testimony. 9 D. The ALJ Did Not Err at Step Three 10 Plaintiff contends the ALJ erred at step three. P. Mem. at 3-5, 7. Plaintiff 11 argues he met or equaled any of the following: Listings 5.08, 12.04, 12.06, 12.13, 12 12.15, an unspecified neurological disorder Listing, and an unspecified 13 musculskeletal system disorder Listing. 14 At step three, Social Security regulations provide that a claimant is disabled 15 if he or she meets or medically equals a listed impairment set forth in the Listings. 16 20 C.F.R. § 404.1520(a)(4)(iii) (“If you have an impairment(s) that meets or equals 17 one of our listings . . . we will find that you are disabled.”); 20 C.F.R. 18 § 404.1520(d), (“If you have an impairment(s) which . . . is listed in Appendix 1 or 19 is equal to a listed impairment(s), we will find you disabled without considering 20 your age, education, and work experience.”). In other words, if a claimant meets or 21 equals a Listing, he or she will be found disabled at this step “without further 22 inquiry.” Tackett v. Apfel, 180 F.3d 1094, 1099 (9th Cir. 1999). In such case, 23 there is no need for the ALJ to complete steps four and five of the sequential 24 process. Lewis v. Apfel, 236 F.3d 503, 512 (9th Cir. 2001). 25 “To meet a listed impairment, a claimant must establish that he or she meets 26 each characteristic of a listed impairment relevant to his or her claim.” Tackett, 27 180 F.3d at 1099. To establish that an impairment is medically equivalent to a 28 1 listed impairment, it is the claimant’s burden to show his impairment “is at least 2 equal in severity and duration to the criteria of any listed impairment.” 20 C.F.R. § 3 404.1526(a). For an impairment or combination of impairments to equal a Listing, 4 the claimant “must present medical findings equal in severity to all the criteria for 5 the one most similar listed impairment.” Sullivan v. Zebley, 493 U.S. 521, 531, 6 110 S. Ct. 885, 107 L. Ed. 2d 967 (1990), superseded by statute on other grounds 7 as stated in Kennedy v. Colvin, 738 F.3d 1172, 1174 (9th Cir. 2013); see 20 C.F.R. 8 § 404.1526(a)-(b). A determination of medical equivalence must rest on objective 9 medical evidence. See Lewis, 236 F.3d at 514 (“A finding of equivalence must be 10 based on medical evidence only.”). “If the findings related to [the claimant’s] 11 impairment(s) are at least of equal medical significance to those of a listed 12 impairment, [the Commissioner] will find that [the claimant’s] impairment(s) is 13 medically equivalent to the analogous listing.” 20 C.F.R. 14 § 404.1526(b)(2). 15 Plaintiff fails to meet his burden at step three. With regard to neurological 16 and musculoskeletal system disorders, plaintiff fails to identify any Listing he 17 believes he met or equaled. As for the mental disorders, plaintiff simply lists 18 several Listings which tangentially pertain to him. In each of these instances, 19 plaintiff fails to identify the criteria for each Listing he is alleged to meet or equal, 20 and explain how his medical findings met or equaled the criteria. Consequently, 21 plaintiff’s claims that he met or equaled a neurological, musculoskeletal system, or 22 mental disorders Listing are conclusory and fail to meet his burden. 23 As for Listing 5.08, contrary to plaintiff’s assertions, he failed to prove the 24 ALJ erred. To meet Listing 5.08 – weight loss due to any digestive disorder – 25 plaintiff must show that “despite continuing treatment as prescribed, [he had a] 26 BMI of less than 17.5 calculated on at least two evaluations at least 60 days apart 27 within a consecutive 6-month period.” Listing 5.08. The records show plaintiff 28 1 had a BMI of 17.19 on June 23, 2016 and October 11, 2016, thereby satisfying one 2 criterion. See AR at 762, 780. But the record does not show the weight loss was 3 caused by a digestive disorder or that plaintiff was receiving treatment for his 4 weight during this period. Contrary to plaintiff’s contention, a one-time diagnosis 5 for diarrhea in October 2016 did not establish he had a digestive disorder that 6 caused the weight loss. See id. at 764. Consequently, plaintiff has failed to show 7 he met or equaled Listing 5.08. 8 Plaintiff also argues the ALJ should have retained a medical expert to testify 9 on this issue. P. Mem. at 7. An ALJ only has the duty to retain an expert when the 10 evidence was ambiguous. See Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 11 2005). The record was not ambiguous here. 12 In short, the ALJ did not err at step three. 13 E. The ALJ Did Not Err at Step Five 14 Plaintiff argues the ALJ erred at step five. P. Mem. at 5. Specifically, 15 plaintiff contends he cannot perform the jobs of house cleaner, marker, table 16 worker, addresser, or stuffer, and the vocational expert’s numbers were wrong. Id. 17 As discussed above, the ALJ’s physical RFC determination was not 18 supported by substantial evidence. Therefore, the ALJ must make a new RFC 19 determination and again proceed through steps four and five. Assuming the ALJ 20 reaches the same RFC determination after reconsidering all of the objective 21 medical evidence, however, the ALJ’s step five finding was supported by 22 substantial evidence. 23 At step five, the burden shifts to the Commissioner to show the claimant 24 retains the ability to perform other gainful activity. Lounsburry v. Barnhart, 468 25 F.3d 1111, 1114 (9th Cir. 2006). To support a finding that a claimant is not 26 disabled at step five, the Commissioner must provide evidence demonstrating that 27 other work exists in significant numbers in the national economy that the claimant 28 1 can perform, given his or her age, education, work experience, and RFC. 20 2 C.F.R. § 404.1512(f). 3 The Commissioner may meet his step five burden either by reference to the 4 Medical-Vocational Guidelines at 20 C.F.R. part 404, Subpart P, Appendix 2 or by 5 relying on the testimony of a vocational expert (“VE”) and the Dictionary of 6 Occupational Titles (“DOT”) “in evaluating whether the claimant is able to 7 perform other work in the national economy.” Terry v. Sullivan, 903 F.2d 1273, 8 1276 (9th Cir. 1990) (citations omitted); see Osenbrock v. Apfel, 240 F.3d 1157, 9 1162 (9th Cir. 2001); SSR 83-12; see also 20 C.F.R. § 404.1566(d)(1) (DOT is a 10 source of reliable job information). The DOT is the rebuttable presumptive 11 authority on job classifications. Johnson v. Shalala, 60 F.3d 1428, 1435 (9th Cir. 12 1995). 13 An ALJ may not rely on a VE’s testimony regarding the requirements of a 14 particular job without first inquiring whether the testimony conflicts with the DOT, 15 and if so, the reasons therefor. Massachi, 486 F.3d at 1152-53 (discussing SSR 00- 16 4p). In order for an ALJ to accept a VE’s testimony that contradicts the DOT, the 17 record must contain “‘persuasive evidence to support the deviation.’” Id. at 1153 18 (quoting Johnson, 60 F.3d at 1435). Evidence sufficient to permit such a deviation 19 may be either specific findings of fact regarding the claimant’s residual 20 functionality, or inferences drawn from the context of the expert’s testimony. 21 Light v. Soc. Sec. Admin., 119 F.3d 789, 793 (9th Cir. 1997) (as amended). 22 The ALJ here, at step five, relied on the testimony of the vocational expert to 23 determine whether plaintiff, given his RFC, could perform other jobs that exist 24 in significant numbers in the national economy. See AR at 62-69. In response to a 25 hypothetical limiting plaintiff to sedentary work but otherwise the same limitations 26 as in the RFC determination, the VE testified plaintiff could do the jobs of 27 addresser, stuffer, and table worker. See id. at 65. In response to hypothetical with 28 1 the ALJ’s RFC determination, the VE testified plaintiff could perform the jobs of 2 cleaner, housekeeping and marker. See id. at 68. Accordingly, the ALJ found 3 plaintiff could perform the occupations of addresser, stuffer, table worker, 4 housekeeping cleaner, and marker. See id. at 33; see also 20 C.F.R. § 404.1567(b) 5 (a person who can do light work can generally also do sedentary work). 6 Accordingly, the step five finding was supported substantial evidence, and 7 the ALJ did not err. 8 F. The ALJ Failed to Develop the Record 9 Plaintiff argues the ALJ failed to develop the record. P. Mem. at 6, 8. 10 Plaintiff contends the ALJ should have retained a consultative examiner and 11 obtained additional records. Id. 12 When the record is ambiguous, the Commissioner has a duty to develop the 13 record. See Webb, 433 F.3d at 687; see also Mayes, 276 F.3d at 459-60 (ALJ has a 14 duty to develop the record further only “when there is ambiguous evidence or 15 when the record is inadequate to allow for proper evaluation of the evidence”); 16 Smolen, 80 F.3d at 1288 (“If the ALJ thought he needed to know the basis of [a 17 doctor’s] opinion[ ] in order to evaluate [it], he had a duty to conduct an 18 appropriate inquiry, for example, by subpoenaing the physician[ ] or submitting 19 further questions to [him or her].”). This may include retaining a medical expert or 20 ordering a consultative examination. 20 C.F.R. § 404.1519a(a). The 21 Commissioner may order a consultative examination when trying to resolve an 22 inconsistency in evidence or when the evidence is insufficient to make a 23 determination. 20 C.F.R. § 404.1519a(b). 24 Here, the ALJ had a duty to retain a consultative examiner or medical expert 25 because the record was ambiguous. As discussed above, the State Agency 26 physicians only reviewed plaintiff’s medical records from 2013-2015. But as the 27 ALJ recognized, plaintiff’s back impairment appeared to increase in severity after 28 1 2015. Moreover, two physicians recommended plaintiff obtain surgery to treat his 2 back pain. Given the post-2015 records suggesting increased severity, the surgery 3 recommendations, and the lack of an opinion based on a review of the entire 4 record, the record was ambiguous as to plaintiff’s physical limitations. The ALJ 5 therefore failed to fulfill her duty to develop the record. 6 G. The ALJ Properly Considered a Lay Opinion 7 Plaintiff contends the ALJ failed to properly consider the November 2015 8 Vocational Evaluation Report. P. Mem. at 6-7; see AR at 591-99. 9 “[L]ay testimony as to a claimant’s symptoms or how an impairment affects 10 ability to work is competent evidence and therefore cannot be disregarded without 11 comment.” Stout v. Comm’r, 454 F.3d 1050, 1053 (9th Cir. 2006) (internal 12 quotation marks, ellipses, and citation omitted); see Smolen, 80 F.3d at 1288; see 13 also 20 C.F.R.§ 404.1513(d)(3) (the Commissioner will consider evidence from 14 other sources, including social welfare agency personnel). The ALJ may only 15 discount the testimony of lay witnesses if he provides specific “reasons that are 16 germane to each witness.” Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 1993); 17 see Lewis, 236 F.3d at 511 (“Lay testimony as to a claimant’s symptoms is 18 competent evidence that an ALJ must take into account, unless he or she expressly 19 determines to disregard such testimony and give reasons germane to each witness 20 for doing so.”). 21 Jose DeLaCruz of Disability and Assessment Services drafted the 22 Vocational Evaluation Report. AR at 591-99. The California Department of 23 Rehabilitation had referred plaintiff to Disability and Assessment Services for ten 24 days of vocational evaluation. Plaintiff reported pain in his lower back, shoulder, 25 and cervical region. As such, DeLaCruz opined plaintiff required breaks as needed 26 to reposition himself and should avoid heavy lifting and standing. Id. at 598. 27 DeLaCruz stated despite providing accommodations, including a lumbar supported 28 1 chair, breaks as needed, and an abbreviated schedule, plaintiff had difficultly with 2 consistent attendance and sustained stamina to complete the evaluation. Id. at 599. 3 During the evaluation, plaintiff was cooperative with the staff but annoyed with 4 peers, did not have the stamina to complete 2.5 hours of continuous work, and was 5 unable to adhere to a structured activity for more than four hours. Id. Plaintiff also 6 reported he was unable to work in a career that did not involve working in the 7 artistic industry. Id. Consequently, DeLaCruz opined plaintiff was not ready for 8 competitive employment at the time. Id. 9 The ALJ rejected most of DeLaCruz’s findings because they had no direct 10 correlation to the standards used in the social security disability setting. See AR at 11 30. The ALJ also rejected the medical findings and physical limitations on the 12 basis that DeLaCruz was not a medical professional. See id. Nevertheless, the 13 ALJ considered plaintiff’s aptitude findings, which indicated had mostly above 14 average or average cognitive skills, and the fact that he canceled several sessions. 15 See id. at 30-31. 16 The ALJ properly provided germane reasons for rejecting DeLaCruz’s 17 conclusions. While lay testimony “as to a claimant’s symptoms is competent 18 evidence which the Secretary must take into account,” “medical diagnoses are 19 beyond the competence of lay witnesses and therefore do not constitute competent 20 evidence.” Nguyen, 100 F.3d at 1467. Thus, the ALJ properly rejected DeLaCruz’s 21 findings to the extent they were opinions as to his limitations. The ALJ also 22 properly rejected DeLaCruz’s opinion that plaintiff was not ready for competitive 23 employment since the ultimate social security disability determination was within 24 the purview of the Commissioner. See 20 C.F.R. § 404.1527(d)(1). Finally, the 25 ALJ clearly considered DeLaCruz’s objective findings such as the aptitude 26 findings but properly rejected his opinion that plaintiff had a lack of stamina. AR 27 at 30-31. The ALJ noted plaintiff failed to regularly attend the vocational 28 1 evaluation, yet a lack of stamina had never caused plaintiff to have to miss a 2 medical appointment. This called into question the effort plaintiff was providing. 3 Accordingly, the ALJ’s reasons for rejecting DeLaCruz’s opinion were 4 germane 5 V. 6 REMAND IS APPROPRIATE 7 The decision whether to remand for further proceedings or reverse and 8 award benefits is within the discretion of the district court. McAllister v. Sullivan, 9 888 F.2d 599, 603 (9th Cir. 1989). It is appropriate for the court to exercise this 10 discretion to direct an immediate award of benefits where: “(1) the record has been 11 fully developed and further administrative proceedings would serve no useful 12 purpose; (2) the ALJ has failed to provide legally sufficient reasons for rejecting 13 evidence, whether claimant testimony or medical opinions; and (3) if the 14 improperly discredited evidence were credited as true, the ALJ would be required 15 to find the claimant disabled on remand.” Garrison v. Colvin, 759 F.3d 995, 1020 16 (9th Cir. 2014) (setting forth three-part credit-as-true standard for remanding with 17 instructions to calculate and award benefits). But where there are outstanding 18 issues that must be resolved before a determination can be made, or it is not clear 19 from the record that the ALJ would be required to find a plaintiff disabled if all the 20 evidence were properly evaluated, remand for further proceedings is appropriate. 21 See Benecke v. Barnhart, 379 F.3d 587, 595-96 (9th Cir. 2004); Harman v. Apfel, 22 211 F.3d 1172, 1179-80 (9th Cir. 2000). In addition, the court must “remand for 23 further proceedings when, even though all conditions of the credit-as-true rule are 24 satisfied, an evaluation of the record as a whole creates serious doubt that a 25 claimant is, in fact, disabled.” Garrison, 759 F.3d at 1021. 26 Here, there are outstanding issues to be resolved and remand is required. On 27 remand, the ALJ shall reconsider the State Agency physicians’ opined physical 28 1 || limitations, and either credit those opinions or provide specific and legitimate 2 || reasons supported by substantial evidence for rejecting them. The ALJ shall also 3 || retain a consultative examiner or medical expert, and either credit his or her 4 || opinion or provide specific and legitimate reasons supported by substantial 5 || evidence for rejecting it. The ALJ shall then reassess plaintiff's RFC, and proceed 6 || through steps four and five to determine what work, if any, plaintiff was capable of 7 || performing. 8 VI. 9 CONCLUSION 10 IT IS THEREFORE ORDERED that Judgment shall be entered 11 || REVERSING the decision of the Commissioner denying benefits, and 12 | REMANDING the matter to the Commissioner for further administrative action 13 || consistent with this decision. 14 15 || DATED: September 30, 2019 16 17 SHERI PYM United States Magistrate Judge 19 20 21 22 23 24 25 26 27 28 29