Elmuhammad v. Saul

• Court: District Court, N.D. California
• Decided: March 14, 2021
• Docket: 3:19-cv-04588
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 A.E., 7 Case No. 19-cv-04588-JCS Plaintiff, 8 ORDER GRANTING PLAINTIFF’S v. MOTION FOR SUMMARY 9 JUDGMENT, DENYING ANDREW SAUL, DEFENDANT’S MOTION FOR 10 SUMMARY JUDGMENT AND Defendant. REMANDING FOR FURTHER 11 PROCEEDINGS

12 Re: Dkt. Nos. 24, 27

13 14 I. INTRODUCTION 15 On July 18, 2014, A.E.1 applied for disability insurance benefits under Title II of the Social 16 Security Act. She applied for supplemental security income (“SSI”) under Title XVI of the Social 17 Security Act on July 25, 2014. In both applications, she alleged an onset date of September 3, 18 1994. The Title XVI claim was denied initially on December 19, 2014, and upon reconsideration 19 on April 2, 2015. Administrative Law Judge (“ALJ”) Major Williams, Jr. held two hearings, on 20 February 7, 2017 and on July 26, 2017. Plaintiff, who was represented by counsel, appeared at 21 both hearings. In addition, the ALJ heard testimony from vocational experts at both hearings and 22 heard testimony from medical expert (“ME”) Dr. Nathan Strahl at the July 26, 2017 hearing. The 23 ALJ issued an unfavorable decision on Plaintiff’s application for SSI benefits on August 30, 2017 24 but he did not address Plaintiff’s application for disability insurance benefits under Title II. On 25 February 2, 2019, the Appeals Council granted the request for review, finding that the ALJ’s 26

27 1 Because opinions by the Court are more widely available than other filings and this Order 1 decision contained an error of law. 2 On June 25, 2019, the Appeals Council issued a decision denying Plaintiff’s applications. 3 In the decision, the Appeals Council addressed both the Title II claim and the Title XVI claim. As 4 to the Title II claim, the Appeals Council found that Plaintiff was insured for periods of disability 5 between January 1, 2004 and December 31, 2004 and between April 1, 2014 through March 31, 6 2022. The Appeals Council adopted many of the ALJ’s findings but also assigned weight to 7 certain medical opinion evidence that the ALJ had not addressed, resulting in a slightly more 8 restrictive residual functional capacity determination. Nonetheless, the Appeals Council reached 9 the same ultimate conclusion as the ALJ, namely, that Plaintiff was not disabled. Plaintiff 10 subsequently commenced this action for judicial review pursuant to 42 U.S.C. §§ 405(g) and 11 1383(c)(3). 12 Presently before the Court are the parties’ cross-motions for summary judgment.2 For the 13 reasons stated below, the Court GRANTS Plaintiff’s Motion for Summary Judgment, DENIES the 14 Commissioner’s Motion for Summary Judgment, and remands for further proceedings consistent 15 with this opinion.3 16 II. REGULATORY FRAMEWORK FOR DETERMINING DISABILITY 17 A. The Five-Step Framework 18 Disability insurance benefits are available under the Social Security Act (the “Act”) when 19 an eligible claimant is unable “to engage in any substantial gainful activity by reason of any 20 medically determinable physical or mental impairment . . . which has lasted or can be expected to 21 last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A); see also 42 22 U.S.C. § 423(a)(1). A claimant is only found disabled if their physical or mental impairments are 23 2 At the outset of this case, the undersigned ordered the parties to meet and confer and submit 24 either a joint or separate statements of the administrative record. Dkt. No. 7. The parties failed to comply with the Court’s order. The purpose of this requirement is two-fold: the statements of the 25 record are helpful to the Court in reviewing the record and they also discourage the parties from filing boilerplate pleadings. Because the parties included relatively detailed descriptions of the 26 record in their briefs, the Court excuses their failure to comply with its order. However, it is expected that counsel will adhere to this requirement in future social security appeals before the 27 undersigned. 1 of such severity that they are not only unable to do their previous work but also “cannot, 2 considering [their] age, education, and work experience, engage in any other kind of substantial 3 gainful work which exists in the national economy.” 42 U.S.C. § 423(d)(2)(A). 4 The Commissioner has established a sequential, five-part evaluation process to determine 5 whether a claimant is disabled under the Act. See Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 6 1999) (citing 20 C.F.R. § 404.1520). The claimant bears the burden of proof at steps one through 7 four, but the burden shifts to the Commissioner at step five. Id. “If a claimant is found to be 8 ‘disabled’ or ‘not disabled’ at any step in the sequence, there is no need to consider subsequent 9 steps.” Id. 10 At step one, the ALJ considers whether the claimant is presently engaged in “substantial 11 gainful activity.” 20 C.F.R. § 404.1520(a)(4)(i).4 If the claimant is engaged in such activity, the 12 ALJ determines that the claimant is not disabled, and the evaluation process stops. Id. If the 13 claimant is not engaged in substantial gainful activity, the ALJ continues to step two. See id. 14 At step two, the ALJ considers whether the claimant has “a severe medically determinable 15 physical or mental impairment” or combination of such impairments that meets the regulations’ 16 twelve-month durational requirement. 20 C.F.R. §§ 404.1509, 404.1520(a)(4)(ii). An impairment 17 or combination of impairments is severe if it “significantly limits [the claimant’s] physical or 18 mental ability to do basic work activities.” 20 C.F.R. § 404.1520(c). If the claimant does not have 19 a severe impairment, disability benefits are denied. 20 C.F.R. § 404.1520(a)(4)(ii). If the ALJ 20 determines that one or more impairments are severe, the ALJ proceeds to the next step. See id. 21 At step three, the ALJ compares the medical severity of the claimant’s impairments to a 22 list of impairments that the Commissioner has determined are disabling (“Listings”). See 20 23 C.F.R. § 404.1520(a)(4)(iii); see also 20 C.F.R. Pt. 404, Subpt. P, App. 1. If one or a combination 24 of the claimant’s impairments meets or equals the severity of a listed impairment, the claimant is 25 disabled. 20 C.F.R. § 404.1520(a)(4)(iii). Otherwise, the analysis continues. See id. 26 At step four, the ALJ must assess the claimant’s residual functional capacity (“RFC”) and 27 1 past relevant work. 20 C.F.R. § 404.1520(a)(4)(iv). The RFC is “the most [a claimant] can still 2 do despite [that claimant’s] limitations . . . based on all the relevant evidence in [that claimant’s] 3 case record.” 20 C.F.R. § 404.1545(a)(1). The ALJ then determines whether, given the claimant’s 4 RFC, the claimant would be able to perform their past relevant work. 20 C.F.R. § 404.1520(a)(4). 5 Past relevant work is “work that [a claimant] has done within the past fifteen years, that was 6 substantial gainful activity, and that lasted long enough for [the claimant] to learn how to do it.” 7 20 C.F.R. § 404.1560(b)(1). If the claimant is able to perform their past relevant work, then the 8 ALJ finds that they are not disabled. If the claimant is unable to perform their past relevant work, 9 then the ALJ proceeds to step five. 10 At step five, the Commissioner has the burden to “identify specific jobs existing in 11 substantial numbers in the national economy that the claimant can perform despite [the claimant’s] 12 identified limitations.” Meanel v. Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999) (quoting Johnson v. 13 Shalala, 60 F.3d 1428, 1432 (9th Cir. 1995)). If the Commissioner meets this burden, the 14 claimant is not disabled. See 20 C.F.R. § 404.1520(f). Conversely, the claimant is disabled and 15 entitled to benefits if there are not a significant number of jobs available in the national economy 16 that the claimant can perform. Id. 17 B. Supplemental Regulations for Determining Mental Disability 18 The Social Security Administration has supplemented the five-step general disability 19 evaluation process with regulations governing the evaluation of mental impairments at steps two 20 and three of the five-step process. See generally 20 C.F.R. § 404.1520a. First, the Commissioner 21 must determine whether the claimant has a medically determinable mental impairment. 20 C.F.R. 22 § 404.1520a(b)(1). Next, the Commissioner must assess the degree of functional limitation 23 resulting from the claimant’s mental impairment with respect to the following functional areas: 1) 24 understand, remember, or apply information; 2) interact with others; 3) concentrate, persist, or 25 maintain pace; and 4) adapt or manage oneself. 20 C.F.R. §§ 404.1520a(b)(2), (c)(3). Finally, 26 the Commissioner must determine the severity of the claimant’s mental impairment and whether 27 that severity meets or equals the severity of a mental impairment listed in Appendix 1. 20 C.F.R. 1 impairment meets or equals the severity of a listed mental impairment, the claimant is disabled. 2 See 20 C.F.R. § 404.1520(a)(4)(iii). Otherwise, the evaluation proceeds to step four of the general 3 disability inquiry. See 20 C.F.R. § 404.1520a(d)(3). 4 Appendix 1 provides impairment-specific “Paragraph A” criteria for determining the 5 presence of various listed mental impairments, but all listed mental impairments share certain 6 “Paragraph B” severity criteria in common (and some have alternative “Paragraph C” severity 7 criteria). See generally 20 C.F.R. § 404, Subpt. P, App. 1 at 12.00. Any medically determinable 8 mental impairment—i.e., one that satisfies the Paragraph A criteria of one or more listed mental 9 impairments—is sufficiently severe to render a claimant disabled if it also satisfies the general 10 Paragraph B criteria, which requires that a claimant’s mental disorder “result in ‘extreme’ 11 limitation of one, or ‘marked’ limitation of two, of the four areas of mental functioning.” Id. at 12 12.00(A)(2)(b). A claimant has a “marked” limitation if the claimant’s “functioning in this area 13 independently, appropriately, effectively, and on a sustained basis is seriously limited.” 20 C.F.R. 14 § Pt. 404, Subpt. P, App. 1, 12.00(F)(2)(d). A claimant with an “extreme” limitation is “not able 15 to function in this area independently, appropriately, effectively, and on a sustained basis.” 20 16 C.F.R. § Pt. 404, Subpt. P, App. 1, 12.00(F)(2)(e). 17 This evaluation process is to be used at the second and third steps of the sequential 18 evaluation discussed above. Social Security Ruling 96-8p, 1996 WL 374184, at *4 (“The 19 adjudicator must remember that the limitations identified in the ‘paragraph B’ and ‘paragraph C’ 20 criteria are not an RFC assessment but are used to rate the severity of mental impairment(s) at 21 steps 2 and 3 of the sequential evaluation process.”). If the Commissioner determines that the 22 claimant has one or more severe mental impairments that neither meet nor are equal to any listing, 23 the Commissioner must assess the claimant’s residual functional capacity. 20 C.F.R. § 24 404.1520a(d)(3). This is a “mental RFC assessment [that is] used at steps 4 and 5 of the 25 sequential process [and] requires a more detailed assessment by itemizing various functions 26 contained in the broad categories found in paragraphs B and C of the adult mental disorders 27 listings in 12.00 of the Listing of Impairments . . . . ” Social Security Ruling 96-8p, 1996 WL 1 C. Factual Background 2 Plaintiff was 54 years old at the time of her applications for Title II and XVI benefits, in 3 2014. Administrative Record (“AR”) 251. She was born and raised in Oakland, California, to 4 parents who were IV drug users. AR 549. As a child, Plaintiff was removed from her parents’ 5 home numerous times and placed in group homes or with other families due to her parents’ drug 6 use. AR 974. When she was 18 years old, Plaintiff witnessed her stepfather being fatally stabbed. 7 AR 574. Plaintiff’s mother and sister died of drug-related causes. AR 825, 974. 8 Plaintiff began using crack cocaine in the ninth grade. AR 1012. Her cocaine use continued 9 until 2009. AR 537. Despite Plaintiff’s drug use, she graduated from high school in 1978. AR 10 536. Plaintiff obtained a certificate in baking and pastry from Laney College in 2012. AR 1012. 11 Plaintiff has a history of short-term, unskilled jobs, most recently in the food services department 12 at Oakland Coliseum, between 2013 and 2015. AR 1012. 13 Plaintiff is divorced and has one child and two grandchildren. AR 546, 1011. Plaintiff has 14 lived with family, in homeless shelters and in motels over the years. AR 1012-1013. Plaintiff has 15 a history of involvement in relationships in which she has been subjected to domestic violence. 16 AR 549, 825, 902, 973, 1012. In the early 1990s, Plaintiff was the victim of rape and attempted 17 murder in which her assailant slashed her throat, requiring 98 stitches. AR 549, 974, 1013. 18 Plaintiff claims that she cannot work due to anxiety, depression, past domestic violence, 19 phobia of people, paranoia, and sleepless nights. AR 247. The medical records reflect that she 20 began receiving mental health treatment on October 10, 2014, from Alameda County Mental 21 Healthcare Services, having been referred by Sausal Creek in connection with a recent mental 22 health “episode.” AR 561, 731. The therapist who met with her, Mazu Byrd, MFT, reported that 23 Plaintiff complained of insomnia, isolation, depression and auditory hallucinations and that her 24 symptoms had gotten worse since she stopped using cocaine, four years before. AR 731; see also 25 10/16/14 note by MFT Byrd stating that. Ms. Byrd also observed “repeated presence of psychotic 26 symptoms.” AR 723. She diagnosed Plaintiff with depressive disorder and PTSD. AR 550. 27 Psychiatrist Lusito Roxas, M.D., evaluated Plaintiff on October 24, 2014 and diagnosed her with 1 GAF score of 52. AR 564. He prescribed Celexa and trazadone. AR 737. In notes from a 2 November 17, 2014 appointment, Dr. Roxas noted that Plaintiff’s medication compliance was 3 poor and that she told him she did not understand she needed to take the Celexa he prescribed 4 every day. AR 744. He noted that Plaintiff reported she was “hearing whispers off and on.” Id. 5 Plaintiff received mental health treatment from NP Seamus McCoy and Dr. Hiawatha 6 Harris at Pathways to Wellness from January 15, 2015 through July 17, 2016. AR 569, 783-814, 7 815-898. There, she was diagnosed with major depressive disorder with psychotic features and 8 cannabis abuse. AR 569, 794. She was prescribed risperidone for psychosis, trazadone, Celexa 9 and Wellbutrin by Dr. Harris and NP McCoy. AR 783, 794, 796, 836-837. She complained 10 repeatedly of auditory hallucinations. AR 785 (6/30/16 treatment note by Dr. Harris reporting 11 Plaintiff “[r]eports ‘voices’ are good and bad”), 787 (4/20/16 treatment note by Dr. Harris stating 12 “[v]oices and noises still present ‘sometimes louder than other times’”), 789 (3/17/2016 treatment 13 note by Dr. Harris reporting Plaintiff “reports auditory hallucinations in the morning telling her to 14 ‘get up’ or ‘don’t go to the doctor today.’”), 793 (1/20/16 treatment note of NP McCoy observing 15 that auditory hallucinations had “decreased to echos and whispering”), 795 (1/9/15 treatment note 16 by NP McCoy that auditory hallucinations are “louder now”), 797 (9/10/15 treatment note by NP 17 McCoy describing auditory hallucinations as sometimes a “loud noise” but more commonly 18 “whispers” that are “dystonic” and “come from behind her head.”), 833 (1/30/15 treatment notes 19 by NP McCoy describing reports of auditory hallucinations in the form of voices that are “both 20 high pitched and deep, occasionally whispers” that “predict[ ] failure”). Plaintiff told NP McCoy 21 at a January 29, 2015 appointment that she could not remember when the auditory hallucinations 22 began, that she did not hear voices as a child, and that she began to hear voices more than four 23 months ago. AR 837. 24 Dr. Harris completed a Mental Impairment Questionnaire, dated April 13, 2016, in 25 connection with Plaintiff’s application for disability benefits. AR 910-913. Dr. Harris listed 26 Plaintiff’s diagnosis as DSM-IV code 296.34 (Major depressive affective disorder, recurrent 27 episode, severe, specified as with psychotic behavior) and stated that she prescribed Risperdal 1 impairment in the ability to maintain attention for two hour segments; maintain regular attendance 2 and be punctual within customary, usually strict tolerances; complete a normal workday or 3 workweek without interruption from psychologically based symptoms; perform at a consistent 4 pace without an unreasonable number and length of rest periods; and deal with normal work 5 stress. AR 912. Dr. Harris also opined Plaintiff has a marked impairment in the ability to sustain 6 an ordinary routine without special supervision; accept instructions and respond appropriately to 7 criticism from supervisors; and respond appropriately to changes in a routine work setting. Id. 8 Dr. Harris opined Plaintiff has a moderate impairment in the ability to understand, remember and 9 carry out simple instructions; make simple work-related decisions; work with or near others 10 without being unduly distracted or distracting them; interact appropriately with coworkers; interact 11 appropriately with the public; and adhere to basic standards of neatness and cleanliness. Id. Dr. 12 Harris found Plaintiff has an extreme deficiency of concentration, persistence and pace; a 13 moderate difficulty in maintaining social functioning; a 50% interference in concentration and 14 pace at work; and would be absent more than four days a month. AR 913. 15 In response to a question asking if the patient’s impairments “would remain as severe in 16 the absence of substance use[,]” Dr. Harris wrote, “Client does not use substances.” AR 910. In 17 response to a question asking if there were any additional reasons why her patient “would have 18 difficulty working at a regular job on a sustained basis[,]” Dr. Harris wrote, “can’t comprehend 19 instructions, no attention span, distraction from [auditory hallucinations], paranoid and no sense of 20 personal safety, trigger PTSD [symptoms]… response to internal stimuli.” Id. Finally, Dr. Harris 21 indicated Plaintiff is not a malingerer and is not able to manage funds in her own best interest. AR 22 910. 23 Mental Health NP Shana Green treated Plaintiff from January 27, 2017 until at least July 24 13, 2017 and completed a mental impairment questionnaire on July 13, 2017. AR 1005. Ms. 25 Green diagnosed Plaintiff with major depressive disorder with psychotic features; [rule out] 26 PTSD; [rule out] cognitive disorder [not otherwise specified]. Id. Ms. Green indicated Plaintiff 27 has a marked impairment in the overall ability to understand, remember and apply information; a 1 impairment in the ability to interact with others; and a moderate impairment in the ability to adapt 2 or manage oneself. AR 1007-08. 3 Ms. Green further found that Plaintiff has extreme impairments in the ability to remember 4 work-like procedures; understand, remember and carry out very short and simple instructions; 5 maintain attention in two hour segments; complete a normal workday or workweek without 6 interruptions from psychologically based symptoms; and perform at a consistent pace without an 7 unreasonable number and length of rest periods. AR 1008. Ms. Green wrote that Plaintiff has a 8 marked impairment in the ability to maintain regular attendance and be punctual within customary, 9 usually strict tolerances; sustain and ordinary routine without special supervision; respond 10 appropriately to changes in a routine work setting; and deal with normal work stress. AR 1008-09. 11 Ms. Green further indicated Plaintiff has a moderate impairment in the ability to work in 12 coordination with or proximity to others without being unduly distracted; make simple work- 13 related decision; ask simple questions or request assistance; accept instructions and respond 14 appropriately to criticism from supervisors; and be aware of normal hazards and take appropriate 15 precautions. Id. Finally, Ms. Green indicated Plaintiff has a mild impairment in the ability to get 16 along with co-workers or peers without unduly distracting them or exhibiting behavioral extremes. 17 AR 1008. Ms. Green opined Plaintiff would miss four days or more of work each month; be off- 18 task at least 30% of the time; and has a medically documented history of a mental illness of at 19 least two years duration with treatment but nonetheless exhibits marginal adjustment. AR 1009- 20 10. 21 The record contains an Initial Brief Mental Health Assessment by MFT Carlos Ponce dated 22 4/5/2017, which he conducted when Plaintiff self-referred for therapy. AR 994.5 Mr. Ponce 23 diagnosed Plaintiff with major depressive disorder with psychotic features. AR 999. He found that 24 Plaintiff has severe impairments in the areas of employment, food/shelter, social/peer relations, 25 and activities of daily living. AR 998. Mr. Ponce determined that Plaintiff has moderate 26 impairments in the areas of family relations, self-care, cognition/memory/thought, attention/ 27 1 impulsivity and affect regulation. Id. Finally, Mr. Ponce indicated Plaintiff has a mild impairment 2 in the areas of physical health and perceptual disturbance. Id. 3 The record also contains a number of other reports from psychological evaluations of 4 Plaintiff. Dr. Laura Catlin, PsyD, completed a report dated August 29, 2014. AR 535. Plaintiff 5 was referred to Dr. Catlin for a psychological evaluation by Alameda County Social Services. Id. 6 Dr. Catlin administered a clinical interview; Wechsler Abbreviated Scale of Intelligence; 7 Repeatable Battery for the Assessment of Neuropsychological Status; Beck Depression Inventory; 8 Brief Symptom Inventory; Burns PTSD Inventory; she also conducted a review of records (though 9 the report does not indicate what records were reviewed). Id. Dr. Catlin reported Plaintiff to be a 10 credible historian. Id. Dr. Catlin provided a detailed analysis of Plaintiff’s test results. AR 539-41. 11 Dr. Catlin diagnosed Plaintiff with depressive disorder, severe; PTSD; and cocaine use disorder, in 12 sustained remission. AR 542. 13 Dr. Catlin found Plaintiff has marked impairments in activities of daily living, social 14 functioning and concentration, persistence or pace. AR 543. She determined Plaintiff’s 15 impairments would cause her to be absent from work more than four days a month. AR 544. Dr. 16 Catlin determined Plaintiff has a severe impairment in the ability to work in coordination with or 17 proximity to others without being unduly distracted; complete a normal workday and workweek 18 without interruptions from psychologically based symptoms; maintain adequate pace and 19 persistence to perform complete/detailed tasks; perform at a consistent pace without an 20 unreasonable number and length of rest periods; withstand the stress of a routine workday; interact 21 appropriately with co-workers, supervisors, and public on a regular basis; and travel to unfamiliar 22 places and use public transportation. AR 543. 23 Dr. Catlin further found that Plaintiff has a moderate to severe impairment in the ability to 24 perform in the workplace; understand, remember or carry out detailed instructions; maintain 25 adequate pace and persistence to perform simple tasks; maintain attention for two hour segments; 26 maintain regular attendance and be punctual within customary, usually strict tolerances; interact 27 appropriately with the general public; adapt to changes in job routine; accept instruction and 1 distracting them or exhibiting behavioral extremes. AR 542-43. Dr. Catlin determined Plaintiff has 2 a moderate impairment in the ability to understand and remember short and simple work-like 3 procedures; carry out short and simple instructions; make simple work-related decisions; and be 4 aware of normal hazards and take appropriate precautions. Id. Finally, Dr. Catlin determined 5 Plaintiff has a mild impairment in the ability to ask simple questions or request assistance. AR 6 543. 7 The record also contains a report from a psychiatric evaluation conducted by consultative 8 examiner Salma Khan, MD, on September 23, 2016, who examined Plaintiff once for the 9 psychological evaluation. AR 899. Dr. Khan reviewed two forms completed by Plaintiff but no 10 medical records. AR 900. She based her opinions on the forms and a mental status examination 11 she conducted. AR 899-906. Dr. Khan did not administer any diagnostic tests. AR 899-909. Dr. 12 Khan described Plaintiff as “superficially cooperative” but said she “felt like [Plaintiff] was being 13 evasive and was overly vague about her history.” AR 904. She noted that Plaintiff reported some 14 “relatively new onset symptoms including auditory hallucinations” but also stated that it “wasn’t 15 clear to [her] how significant the symptoms are” and that “[t]here is some secondary gain in terms 16 of getting on disability income.” AR 904-905. Dr. Khan diagnosed Plaintiff with possible 17 schizophrenia spectrum disorder likely secondary to chronic cocaine and methamphetamine use 18 and a history of cocaine, methamphetamine, cannabis and prescription pill use disorders and 19 chronic depression. AR 904. Dr. Khan determined Plaintiff has a mild impairment in the ability to 20 do detailed and complex instructions and maintain concentration and attention, persistence and 21 pace but is otherwise unimpaired. AR 905. 22 A psychological evaluation was also conducted by Dr. Kyle Van Gaasbeek, PsyD, a 23 consultative examiner, who examined Plaintiff on October 11, 2014. AR 545. Like Dr. Khan, Dr. 24 Van Gaasbeek reviewed a form completed by Plaintiff but did not review any medical records; he 25 also conducted no diagnostic tests. His opinions are based on the interview and mental status 26 exam he conducted. AR 545-548. Dr. Van Gaasbeek diagnosed Plaintiff with psychosis due to 27 cocaine abuse. AR 547. Dr. Van Gaasbeek further determined Plaintiff is capable of managing her 1 moderately impaired in the ability to interact with coworkers and the public; mildly impaired in 2 the ability to maintain regular attendance in the workplace; mildly impaired in the ability to 3 complete a normal workday without interruptions from a psychiatric condition; and mildly 4 impaired in the ability to deal with the usual stress encountered in the workplace. AR 548. 5 Another psychological evaluation was conducted by Erica Williams, PsyD, and Lesleigh 6 Franklin, PhD on July 18, 2017. AR 1011-1016. Drs. Williams and Franklin administered a 7 clinical interview, Montreal Cognitive Assessment, Subtests of the Wide Range Assessment of 8 Memory and Learning, Amen Brain System Checklist, and PTSD Screening; they also reviewed 9 psychological evaluations from 2014 and 2016.6 Drs. Williams and Franklin diagnosed Plaintiff 10 with major depressive disorder, recurrent, severe, with mood-congruent psychotic features and 11 PTSD. AR 1015. 12 Based on Plaintiff’s test results they concluded Plaintiff has significant impairments in 13 attention, memory and concentration that “will have a significant impact on her ability to 14 remember both simple and complex directions, organize herself to complete tasks, and work as 15 quickly and accurately as other same age adults on tasks that include verbal and visual 16 information.” AR 1014. They determined Plaintiff has an extreme impairment in the ability to 17 understand, remember and carry out detailed instructions and marked impairments in the ability to 18 understand, remember and carry out very short and simple instructions; maintain attention and 19 concentration in two hour segments; perform at a consistent pace without an unreasonable number 20 of rest periods; and complete a normal workday and workweek without interruptions from 21 psychologically based symptoms. AR 1016. Drs. Williams and Franklin also determined Plaintiff 22 has a moderate impairment in the ability to accept instructions and respond appropriately to 23 criticism from supervisors or respond appropriately to changes in a routine work setting and deal 24 with normal work stressors. Id. They determined Plaintiff has a mild impairment in the ability to 25 get along and work with others; interact appropriately with the general public; and maintain 26 regular attendance and be punctual within customary, usually strict tolerances. Id. 27 1 The record also contains opinions of state agency doctors who did not exam Plaintiff and 2 based their opinions on a review of the record. Among them was Dr. D. Lucila, MD, who 3 provided opinions on December 3, 2014 in connection with the initial level of adjudication. AR 4 91. Dr. Lucila determined Plaintiff has a primary affective disorder and a secondary substance 5 addiction disorder. AR 92. He concluded Plaintiff has a mild restriction of activities of daily 6 living; moderate difficulties maintaining social functioning; and moderate difficulties with 7 maintaining concentration, persistence and pace. AR 92. Dr. Lucila further opined Plaintiff has a 8 moderate limitation in the ability to carry out detailed instructions; moderate limitation in the 9 ability to maintain attention and concentration for extended periods; a moderate limitation in the 10 ability to complete a normal workday and workweek without interruptions from psychologically 11 based symptoms and to perform at a consistent pace without unreasonable number and length of 12 rest periods; and a moderate impairment in the ability to interact with the general public. AR 94-5. 13 Ultimately, Dr. Lucila found that Plaintiff “can perform simple work.” AR 91. 14 At the reconsideration level of adjudication, state agency psychological consultant Cal 15 VanderPlate, PhD, provided a mental residual functional capacity assessment based on review of 16 the record on March 26, 2015. AR 106-113. Dr. VanderPlate determined Plaintiff has a primary 17 affective disorder and a secondary substance addiction disorder. AR 106. Dr. VanderPlate 18 concluded Plaintiff has a mild restriction of activities of daily living; moderate difficulties 19 maintaining social functioning; and moderate difficulties with maintaining concentration, 20 persistence and pace. Id. Dr. VanderPlate further opined Plaintiff has a moderate limitation in the 21 ability to carry out detailed instructions; moderate limitation in the ability to maintain attention 22 and concentration for extended periods; a moderate limitation in the ability to complete a normal 23 workday and workweek without interruptions from psychologically based symptoms and to 24 perform at a consistent pace without unreasonable number and length of rest periods; and a 25 moderate limitation in the ability to interact with the general public. AR 109. 26 Dr. VanderPlate further concluded that Plaintiff is able to understand, remember and carry 27 out simple one and two step instructions; maintain concentration, persistence and pace for periods 1 complete a normal workday and workweek; make simple work-related decisions; relate adequately 2 to coworkers and supervisors; ask simple questions; request assistance; accept instructions; 3 respond appropriately to criticism from supervisors; respond appropriately to changes in the work 4 setting; and be aware of normal hazards. AR 110. 5 At the July 26, 2017 hearing, medical expert Dr. Nathan Strahl was asked to summarize 6 the medical records. He testified that the medical records reflected that Plaintiff’s psychotic 7 symptoms, including auditory hallucinations, may have been caused by her marijuana use and her 8 major depressive disorder, but that even apart from her marijuana use Plaintiff experienced severe 9 depression and psychotic symptoms such as auditory hallucinations. AR 64, 68. 10 D. The ALJ’s Decision 11 At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity 12 since July 24, 2014.7 AR 29. 13 At step two, the ALJ found that Plaintiff had the following severe impairments: a 14 depressive disorder and a post-traumatic stress disorder (“PTSD”). Id. The ALJ found that 15 Plaintiff’s history of crack cocaine abuse was not a severe or contributing factor material to a 16 finding of disability. AR 30. He further found that there was insufficient evidence to find a severe 17 psychotic disorder. Id. 18 At step three, the ALJ found that Plaintiff’s impairments, considered individually or in 19 combination, did not meet a Listing. AR 32. He specifically considering Listings 12.02 20 (neurocognitive disorders), 12.03 (schizophrenia spectrum and other psychotic disorders), 12.04 21 (depressive, bipolar and related disorders ) and 12.15 (trauma- and stressor-related disorders). Id. 22 At step four, the ALJ found that Plaintiff had the residual functional capacity “to perform a 23 full range of work at all exertional levels but with the following nonexertional limitations: she is 24 limited to performing simple, routine tasks, and is limited to making simple work-related 25

26 7 The ALJ used this date because it was purportedly the date on which Plaintiff’s SSI application was filed. AR 29. In fact, the record reflects that the SSI application was filed on July 25, 2014. 27 AR 251. As stated above, the ALJ overlooked Plaintiff’s application for disability benefits under 1 decisions.” AR 33. 2 At step five, the ALJ found that in light of Plaintiff’s age, education and RFC, there were 3 jobs that exist in significant numbers in the national economy that Plaintiff can perform and 4 therefore, that she is not disabled. AR 44-45. 5 In reaching his conclusions, the ALJ gave great weight to the opinions of Dr. Khan, little 6 weight to the opinions of MFT Ponce, NP Green, Drs. Williams and Franklin, and Dr. Catlin, 7 limited weight to the opinions of Dr. Harris and partial weight to the opinions of ME Dr. Strahl. 8 AR 39-44. 9 E. The Appeals Council Decision 10 On February 2, 2019, the Appeals Council notified Plaintiff that it had granted Plaintiff’s 11 request for review of the ALJ’s decision. AR 239-243. In the notice, it explained that the ALJ had 12 failed to adjudicate Plaintiff’s claim for disability benefits under Title II and had not weighed all 13 the opinion evidence of record “including the State agency medical and psychological consultants 14 . . . or the psychological consultative examiner, Kyle VanGassbeek [sic], PsyD.” AR 240. In the 15 decision of the Appeals Council, it reopened the Title II claim and “adopt[ed] the findings or 16 conclusions regarding whether the claimant is disabled.” AR 5. However, the Appeals Council 17 adopted a somewhat more restrictive RFC based on the medical opinions the ALJ had failed to 18 weigh, concluding that Plaintiff had “the residual functional capacity to perform a full range of 19 work at all exertional levels but is limited to simple routine tasks in functioning and judgment; can 20 respond appropriately to the public on occasion; and has no difficulties with supervisors or 21 coworkers.” AR 6. 22 In connection with the amended RFC, the Appeals Council assigned weight to medical 23 opinions that had not been addressed by the ALJ as follows: 24 • The Appeals Council gives great weight to the December 3, 2014 opinion of the State Agency psychological consultant D. Lucila, M.D., that the claimant “can 25 perform simple work . . . ; 26 • The Appeals Council gives some weight to the March 26, 2015 opinion of the State Agency consultant Cal VanderPlate, Ph.D., that the claimant is able to understand, 27 remember and carry out simple one and two-step instructions; and is limited to • The Appeals Council gives great weight to the April 1, 2015 opinion of the State 1 Agency medical consultant S. Garcia, M.D., that the claimant has no severe 2 physical medically determinable impairments; and • The Appeals Council gives great weight to the consultative examiner Dr. 3 VanGassbeek’s [sic] opinion that the claimant’s ability to interact with coworkers and the public is mild to moderately impaired . . . . 4 5 AR 5-6. The Appeals Council concluded that that there are jobs in significant number in the 6 national economy that Plaintiff can perform based on testimony of the VE at the July 26, 2017 7 hearing in response to a hypothetical that matched the amended RFC. AR 6. 8 III. ISSUES FOR REVIEW 9 1. Whether the ALJ and/or Appeals Council erred in evaluating the medical opinion 10 evidence by: a) failing to give any reasons for the weight assigned to the opinions of Drs. 11 VanGaasbeek, VanderPlate and Lucila (Appeals Council); b) ignoring the opinions of 12 treatment providers Dr. Roxas, NP McCoy and NP Byrd (ALJ and Appeals Council); c) 13 failing to provide specific and legitimate reasons for rejecting the opinions of examining 14 psychologists Catlin, Williams and Franklin (ALJ); d) failing to provide specific and 15 legitimate reasons for rejecting the opinions of treating providers Harris, Green and Ponce 16 (ALJ); e) failing to provide specific and legitimate reasons for partially crediting the 17 opinions of Dr. Strahl (ALJ); f) failing to provide specific and legitimate reasons for 18 crediting the opinions of consultative examining psychiatrist Dr. Khan (ALJ). 19 2. Whether the ALJ’s step three findings were based on substantial evidence. 20 3. Whether the RFC adopted by the Appeals Council was based on substantial evidence. 21 IV. ANALYSIS 22 A. Standard of Review 23 District courts have jurisdiction to review the final decisions of the Commissioner and may 24 affirm, modify, or reverse the Commissioner’s decisions with or without remanding for further 25 hearings. 42 U.S.C. § 405(g); see also 42 U.S.C. § 1383(c)(3). When reviewing the 26 Commissioner’s decision, the Court takes as conclusive any findings of the Commissioner that are 27 free of legal error and supported by “substantial evidence.” Substantial evidence is “such evidence 1 entire record. Richardson v. Perales, 402 U.S. 389, 401. (1971). “‘Substantial evidence’ means 2 more than a mere scintilla,” id., but “less than preponderance.” Desrosiers v. Sec’y of Health & 3 Human Servs., 846 F.2d 573, 576 (9th Cir. 1988) (internal citation omitted). Even if the 4 Commissioner’s findings are supported by substantial evidence, the decision should be set aside if 5 proper legal standards were not applied when weighing the evidence. Benitez v. Califano, 573 6 F.2d 653, 655 (9th Cir. 1978) (quoting Flake v. Gardner, 399 F.2d 532, 540 (9th Cir. 1978)). In 7 reviewing the record, the Court must consider both the evidence that supports and the evidence 8 that detracts from the Commissioner’s conclusion. Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 9 1996) (citing Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985)). 10 A. Whether the ALJ and Appeals Council Erred in Weighing the Medical Evidence 11 “Cases in this circuit distinguish among the opinions of three types of physicians: (1) those 12 who treat the claimant (treating physicians); (2) those who examine but do not treat the claimant 13 (examining physicians); and (3) those who neither examine nor treat the claimant (nonexamining 14 physicians).” Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995), as amended (Apr. 9, 1996). 15 Under this hierarchy, a treating physician’s opinion is entitled to more weight than an examining 16 physician’s opinion, and an examining physician’s opinion is entitled to more weight than a non- 17 examining physician’s opinion. Id. To reject the uncontradicted opinion of an examining doctor, 18 the ALJ must provide clear and convincing reasons. Id. (citing Pitzer v. Sullivan, 908 F.2d 502, 19 506 (9th Cir.1990). Even if the examining doctor’s opinion is contradicted by another doctor, the 20 ALJ may reject it only for “specific and legitimate reasons.” Id. (citing Andrews v. Shalala, 53 21 F.3d 1035, 1043 (9th Cir.1995)).8 Here, the ALJ and Appeals Council committed a multitude of 22 errors in weighing the medical evidence, the most glaring of which are set forth below. 23 First, the Appeals Council assigned weight to various opinions of the State agency 24 consultants and examiners without any explanation whatsoever. This was legal error both because 25 it ignored some opinions of these individuals that were consistent with other medical evidence in 26 8 These standards apply to claims filed before March 27, 2017. See Revisions to Rules Regarding 27 the Evaluation of Medical Evidence (“Revisions to Rules”), 2017 WL 168819, 82 Fed. Reg. 5844, 1 the record and because it adopted opinions that were contradicted by other medical sources who 2 examined or treated Plaintiff. Thus, the Appeals Council was required to offer at least specific and 3 legitimate reasons for doing so. 4 For example, Dr. Van GaasBeek, the consultative examiner who opined that Plaintiff’s 5 ability to interact with coworkers and the public is mild to moderately impaired (the opinion the 6 Appeals Council gave great weight) also diagnosed Plaintiff with psychosis, AR 547, a diagnosis 7 that is repeated by numerous other examining and treating medical sources. See, e.g., AR 796 (NP 8 McCoy), 798 (NP McCoy), 817 (trainee Andrea Marks under supervision of Satwindar Mahabir, 9 MFT), 910 (Dr. Harris), 931 (Cory Bohman NP), 1005 (Shana Green NP), 1015 (Drs. Franklin 10 and Williams). Yet the Appeals Council offered no explanation for its failure to credit that 11 opinion or to reconsider the ALJ’s conclusion that Plaintiff’s psychosis was not severe. Likewise, 12 it did not explain why it apparently did not give any weight to Dr. Van Gaasbeek’s opinions that 13 Plaintiff’s ability to maintain regular attendance and complete a normal workday without 14 interruptions from her psychiatric condition was mildly impaired. AR 548. 15 The Appeal’s Council’s failure to explain its reasons for giving great weight to 16 psychological consultant Dr. Lucila’s opinion that Plaintiff “can perform simple work” is similarly 17 problematic. Dr. Lucila did not examine Plaintiff and relied only on his review of the record. In 18 doing so, he gave great weight to Dr. Van Gaasbeek’s opinions and little weight to Dr. Caitlin’s 19 report, opining that there was “no medical evidence” to support Dr. Catlin’s mental RFC. AR 94. 20 He did not explain why he rejected the results of the psychological testing Dr. Catlin conducted 21 (Dr. Van Gaasbeek did not administer any psychological tests); nor did he point to any specific 22 medical records in support of his conclusion. The Appeals Council was required to give specific 23 and legitimate reasons for giving great weight to Dr. Lucila’s opinion and failed to do so.9 24 The Appeals Council also gave no explanation for giving some weight to the March 26, 25 2015 opinion of State Agency consultant Dr. VanderPlate, that Plaintiff is able to understand, 26

27 9 To the extent that the Appeals Council relied on the reasons the ALJ gave for affording little 1 remember and carry out simple one and two-step instructions; and is limited to infrequent contact 2 with the public while ignoring other opinions that suggest a more limited RFC, such as his opinion 3 that Plaintiff is moderately limited in her ability to complete a normal work day or work week 4 without interruptions from psychologically based symptoms. AR 109. Given that numerous 5 doctors who examined or treated Plaintiff found that she was impaired in this respect, see AR 543 6 (Dr. Catlin finding of severe impairment), 548 (Van Gaasbeek finding of mild impairment), 912 7 (Dr. Harris finding of extreme impairment), 1008 (NP Green finding of extreme impairment), 8 1016 (Drs. Franklin and Williams finding of marked impairment), the Appeals Council was 9 required to give specific and legitimate reasons for rejecting Dr. Vanderplate’s opinion. It failed 10 to do so. 11 Second, the ALJ did not give specific and legitimate reasons for giving great weight to Dr. 12 Khan’s opinion that Plaintiff has only a mild impairment as to her ability to follow detailed and 13 complex instructions and maintain concentration and attention and is otherwise unimpaired with 14 respect to her mental functioning. AR 41-42, 905. In support of giving great weight to Dr. 15 Khan’s opinions, the ALJ pointed to her opinion that “secondary gain is a factor,” finding this 16 observation to be consistent with other notations in the record indicating that Plaintiff initially 17 sought treatment at Pathways to Wellness at the recommendation of her SSI advocate and that her 18 case manager had explained to her that medical records created through doctors’ visits would 19 support her SSI claim. AR 41-42 (citing AR 823, 852). He also found Dr. Khan’s opinions to be 20 entitled to great weight because Dr. Khan conducted an in-person evaluation of Plaintiff, was a 21 board certified psychiatrist, was familiar with the rules of the Social Security Administration and 22 her opinions were consistent with other evidence of record. AR 41. These reasons are not 23 legitimate. 24 The mere fact that Plaintiff was referred for mental health treatment at Pathways to 25 Wellness by her SSI attorney is not a legitimate basis for dismissing Plaintiff’s description of her 26 symptoms and limitations or the observations of her treatment providers as to her symptoms and 27 limitations. The single case cited by the Commissioner in support of the argument that this was a 1 734 Fed. App’x 489 (9th Cir. 2018) (unpublished), involved a very different factual scenario. 2 There, the court upheld that ALJ’s determination that the claimant’s symptom testimony was not 3 entirely credible based not only on the timing of her treatment but also because she came to the 4 doctor asking for tests that were “not pertinent for her medical problems” that she found on the 5 Social Security Administration website and which the doctor refused to order. 734 Fed. App’x at 6 491. Under those circumstances, the court found that the ALJ could draw a reasonable inference 7 that the claimant was “more interested in documenting disability than in receiving treatment to 8 become more functional.” Id. Nothing of the sort happened here; although Plaintiff was referred 9 to Pathways to Wellness by her SSI attorney, there is no suggestion that any provider believed 10 treatment was not warranted. 11 Nor has the Commissioner pointed to any authority to support the conclusion that the mere 12 fact that there is “secondary gain” associated with disability benefits – a reason that could be 13 offered to discount the severity of any claimant’s symptoms – is a legitimate reason for 14 discounting a claimant’s complaints related to their mental limitations. Dr. Khan’s “feeling” that 15 Plaintiff was being evasive and vague about her medical history is not a legitimate reason 16 supported by substantial evidence to accept her opinions about Plaintiff’s mental limitations given 17 that Dr. Khan did not conduct any psychological tests to determine if Plaintiff was malingering or 18 review her medical records to determine whether Plaintiff’s reports of her symptoms and 19 limitations were consistent with the medical record. 20 The Court also finds that the treatment note that the ALJ quoted at length to show that Dr. 21 Khan’s “feeling” was supported by the record, see AR 42 (quoting AR 852), is taken entirely out 22 of context. The ALJ quoted a portion of the note indicating that Plaintiff’s care manager told her 23 that all of her medical records created through doctor visits would support her SSI claim. 24 However, the ALJ omitted the portion of the note stating that Plaintiff had told the care manager 25 that she was experiencing shoulder pain and that the care manager was advising Plaintiff that she 26 should “go to the doctor right away to get help (before it gets worse).” AR 852. In other words, 27 the treatment provider was trying to encourage Plaintiff to see a doctor for a shoulder problem 1 not provide a legitimate basis for drawing the conclusion that Plaintiff was more interested in 2 building a record for her social security claim than in seeking treatment, in contrast to the case 3 cited by the Commissioner. If anything, it supports the opposite inference, namely, that Plaintiff 4 was reluctant to seek treatment despite her pending claims for disability benefits and SSI. 5 Moreover, the mere fact that Plaintiff knew that her medical records would be used to support her 6 SSI claim is not a legitimate reason. Medical records are used to support every SSI claim. 7 The ALJ also gave great weight to Dr. Khan’s opinions because she conducted an in- 8 person evaluation of Plaintiff, was a board-certified psychiatrist and was familiar with the rules of 9 the Social Security Administration. Yet the same is true of Drs. Catlin, Franklin and Williams, 10 who reached very different conclusions from Dr. Khan and found Plaintiff’s mental impairments 11 to result in more severe limitations than Dr. Khan did. Therefore, this is not a legitimate reason 12 for giving great weight to the opinions of Dr. Khan. This reason further falls short because the 13 latter doctors conducted extensive psychological testing and reviewed Plaintiff’s medical records 14 whereas Dr. Khan did neither. 15 Finally, the ALJ’s conclusion that Dr. Khan’s opinions were consistent with the medical 16 record is not a specific and legitimate reason for giving her opinions great weight and is not 17 supported by substantial evidence. Most notably, Dr. Khan diagnosed Plaintiff with possible 18 schizophrenia affective disorder, AR 904, a diagnosis that is found nowhere else in the record. 19 For these reasons, the Court finds that the ALJ failed to give specific and legitimate reasons 20 supported by substantial evidence for giving great weight to the opinions of Dr. Khan. 21 Conversely, the reasons the ALJ offered for rejecting the opinions of Drs. Catlin, Franklin 22 and Williams also were not specific and legitimate. The ALJ rejected the Catlin report for three 23 reasons: Dr. Catlin saw the client only one time; Dr. Catlin did not review the full record; and Dr. 24 Catlin relied on Plaintiff’s self-reports which are “compromised by inconsistencies in the 25 claimant’s reported history elsewhere in the record.” AR 39. Similarly, the ALJ rejected the 26 Williams/Franklin report because Dr. Williams saw Plaintiff only one time and Dr. Williams 27 relied on Plaintiff’s self-reports which may not have been accurate. AR 43. The fact that these 1 of their opinions, given that the ALJ gave “great weight” to the opinions of Drs. Khan, who also 2 saw Plaintiff only once. The ALJ’s rejection of Dr. Catlin’s opinions on the basis that she did not 3 have access to or review the full medical record also is not a legitimate reason to reject her 4 opinions when the ALJ offered no explanation for overlooking the same purported deficiency with 5 respect to Dr. Khan’s opinion. 6 The remaining reason offered by the ALJ for failing to credit the opinions of these doctors 7 – that they relied in part on Plaintiff’s self-reports and there are inconsistencies in the record with 8 respect to statements she has made to various providers, also is not a legitimate reason supported 9 by substantial evidence to discredit their opinions. Most notably, both doctors performed a series 10 of psychological tests and based their opinions, at least in part, on the results obtained from those 11 tests. The ALJ did not provide any explanation for failing to credit the findings of these doctors 12 based on objective testing. Nor is his decision to reject their findings supported by substantial 13 evidence given that the doctors whose opinions he relied upon did not conduct any such testing. 14 The Court also notes that the ALJ placed significant emphasis on purported inconsistencies 15 in the record with respect to Plaintiff’s reports of auditory hallucinations. He pointed out, for 16 example, that Plaintiff reported no auditory hallucinations to Dr. Catlin to support his 17 determination that her opinions were entitled to little weight. AR 39. Yet there are no 18 contemporaneous medical records from the summer of 2014, when Dr. Catlin examined Plaintiff, 19 indicating that Plaintiff was hearing voices at that time. Moreover, the treatment records 20 documenting reports of auditory hallucinations in 2015 and 2016 indicate that this symptom varied 21 in severity over time. The ALJ did not explain why Plaintiff’s failure to report to Dr. Catlin that 22 she was hearing voices in August 2014 was not simply a reflection of the fact that at that particular 23 point in time she was not experiencing this symptom. The Ninth Circuit also has recognized that 24 “[c]ycles of improvement and debilitating symptoms are a common occurrence,” and cautioned 25 that it is “error for an ALJ to pick out a few isolated instances of improvement over a period of 26 months or years and to treat them as a basis for concluding a claimant is capable of working.” 27 Garrison v. Colvin, 759 F.3d 995, 1017 (9th Cir. 2014). The ALJ’s reliance on the fact that 1 and legitimate reason supported by substantial evidence to reject Dr. Catlin’s opinions. 2 Finally, although the ALJ is not required to address every piece of evidence in the record, 3 he erred by ignoring the treatment notes of NP McCoy, Dr. Roxas and NP Mazu, all of whom 4 assessed Plaintiff’s symptoms and mental limitations in the course of treatment. In the case of NP 5 McCoy, he was able to observe Plaintiff’s symptoms over a series of visits. The treatment notes 6 of these providers include GAF scores and observations relating to Plaintiff’s ability to engage in 7 daily activities and social interactions and to manage her medications. They suggest a more 8 limited mental RFC than the ALJ assigned and are inconsistent in many respects with the opinions 9 of the medical sources to which the ALJ gave great weigh. “[A]n ALJ errs when he rejects a 10 medical opinion or assigns it little weight while doing nothing more than ignoring it, asserting 11 without explanation that another medical opinion is more persuasive, or criticizing it with 12 boilerplate language that fails to offer a substantive basis for his conclusion.” Garrison v. Colvin, 13 759 F.3d 995, 1012–13 (9th Cir. 2014). Even as to a treatment provider who is considered an 14 “other source,” such as a social worker, the ALJ was required to give “germane” reasons for 15 rejecting their opinions about Plaintiff’s symptoms and limitations to the extent they conflicted 16 with the opinions that the ALJ adopted. See Turner v. Comm’r of Soc. Sec., 613 F.3d 1217, 1224 17 (9th Cir. 2010). He failed to do so. 18 B. Remedy 19 “A district court may affirm, modify, or reverse a decision by the Commissioner ‘with or 20 without remanding the cause for a rehearing.’” Garrison v. Colvin, 759 F.3d at 1019 (quoting 42 21 U.S.C. § 405(g)) (emphasis omitted). “If additional proceedings can remedy defects in the original 22 administrative proceeding, a social security case should be remanded.” Lewin v. Schweiker, 654 23 F.2d 631, 635 (9th Cir. 1981). On the other hand, the court may remand for award of benefits 24 under the “credit as true” rule where: (1) “the ALJ failed to provide legally sufficient reasons for 25 rejecting evidence, whether claimant testimony or medical opinion”; (2) “there are [no] 26 outstanding issues that must be resolved before a disability determination can be made” and 27 “further administrative proceedings would [not] be useful”; and (3) “on the record taken as a 1 (citations and internal quotation marks omitted); see also Garrison, 759 F.3d at 1021 (holding that 2 || adistrict court abused its discretion in declining to apply the “credit as true” rule to an appropriate 3 case). 4 Here, the Court concludes that further administrative proceedings are required. While it is 5 apparent that the ALJ and the Appeals Council erred in weighing the evidence in the record, the 6 || Court finds that the evidence must be weighed under the correct legal standards to determine if 7 Plaintiff is disabled. The Commissioner should reconsider not only Plaintiff's mental RFC and 8 whether there are jobs she can perform that exist in significant number in the national economy; he 9 should also revisit steps two and three to determine whether Plaintiff meets a Listing. 10 || Vv. CONCLUSION 11 For the reasons stated above, the Court GRANTS Plaintiff’s Motion for Summary 12 || Judgment, DENIES Defendant’s Motion for Summary Judgment and remands for further 5 13 proceedings consistent with this opinion. IT IS SO ORDERED. 3 15 Dated: March 14, 2021 them J PH C. SPERO 17 ief Magistrate Judge 18 19 20 21 22 23 24 25 26 27 28