Hopton v. Saul

• Court: District Court, N.D. California
• Decided: February 20, 2020
• Docket: 3:18-cv-05435
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 TIMOTHY HOPTON, Case No. 18-cv-05435-JSC

8 Plaintiff, ORDER RE CROSS MOTIONS FOR 9 v. SUMMARY JUDGMENT

10 ANDREW SAUL, Re: Dkt. No. 18, 29 Commissioner of Social Security, 11 Defendant.

13 Plaintiff Timothy Hopton seeks social security benefits for mental impairments, including 14 obsessive compulsive disorder (OCD), generalized anxiety disorder, panic disorder, major 15 depressive disorder, and an insomnia disorder. (Administrative Record (“AR”) 59.) Pursuant to 16 42 U.S.C. § 405(g), Plaintiff filed this lawsuit for judicial review of the final decision by the 17 Commissioner of Social Security (“Commissioner”) denying his benefits claim. Now before the 18 Court are Plaintiff’s and Defendant’s Motions for Summary Judgment. (Dkt. Nos. 18, 29.) 19 Because the Administrative Law Judge’s weighing of the medical evidence and adverse credibility 20 finding are not supported by substantial evidence, the Court GRANTS Plaintiff’s motion, DENIES 21 Defendant’s cross-motion, and REMANDS for an award of benefits. 22 LEGAL STANDARD 23 A claimant is considered “disabled” under the Social Security Act if she meets two 24 requirements. See 42 U.S.C. § 423(d); Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). 25 First, the claimant must demonstrate “an inability to engage in any substantial gainful activity by 26 reason of any medically determinable physical or mental impairment which can be expected to 27 result in death or which has lasted or can be expected to last for a continuous period of not less 1 than 12 months.” 42 U.S.C § 423(d)(1)(A). Second, the impairment or impairments must be 2 severe enough that she is unable to do her previous work and cannot, based on her age, education, 3 and work experience “engage in any other kind of substantial gainful work which exists in the 4 national economy.” 42 U.S.C. § 423(d)(2)(A). To determine whether a claimant is disabled, an 5 administrative law judge (ALJ) is required to employ a five-step sequential analysis, examining: 6 (1) whether the claimant is engaging in “substantial gainful activity”; (2) whether the claimant has 7 a severe medically determinable physical or mental impairment” or combination of impairments 8 that has lasted for more than 12 months; (3) whether the impairment “meets or equals” one of the 9 listings in the regulations; (4) whether, given the claimant’s “residual function capacity,” (“RFC”) 10 the claimant can still do her “past relevant work”; and (5) whether the claimant “can make an 11 adjustment to other work.” Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012); see also 20 12 C.R.F. §§404.1520(a), 416.920(a). 13 An ALJ’s “decision to deny benefits will only be disturbed if it is not supported by 14 substantial evidence or it is based on legal error.” Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 15 2005) (internal quotation marks and citation omitted). “Substantial evidence means such relevant 16 evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (internal 17 quotation marks and citation omitted). “Where evidence is susceptible to more than one rational 18 interpretation, it is the ALJ’s conclusion that must be upheld.” Id. In other words, if the record 19 “can reasonably support either affirming or reversing, the reviewing court may not substitute its 20 judgment for that of the Commissioner.” Gutierrez v. Comm’r of Soc. Sec., 740 F.3d 519, 523 21 (9th Cir. 2014) (internal quotation marks and citation omitted). However, “a decision supported 22 by substantial evidence will still be set aside if the ALJ does not apply proper legal standards.” Id. 23 BACKGROUND 24 I. Procedural Background 25 Plaintiff filed applications for Title II and Title XVI social security disability benefits on 26 June 13, 2014 and August 18, 2014, respectively. (AR 245-48, 249-57). He alleged that the 27 disability began on December 21, 2013. (AR 245). The Commissioner denied both applications 1 request for a hearing before an ALJ. (AR 169.) In February 2017, Plaintiff appeared and testified 2 before ALJ Michael A. Cabotaje. (AR 7.) Aside from the Plaintiff, Joel M. Greenberg, a 3 vocational expert, also testified. (Id.) 4 In June 2017, the ALJ issued an unfavorable decision. (AR 53-68.) Plaintiff filed a 5 request for review of the ALJ’s decision, but in August 2018, the Appeals Council determined that 6 it would not review the ALJ’s findings, making the ALJ’s decision final. (AR 1-6.) Plaintiff then 7 sought review in this Court. (Dkt. No. 1.) In accordance with Civil Local Rule 16-5, the parties 8 filed cross-motions for summary judgment (Dkt. Nos. 18, 29), which are now ready for decision 9 without oral argument. 10 II. Administrative Record 11 Plaintiff was born on November 11, 1978 and resides in American Canyon, California. 12 (AR 15). He dropped out of high school while in the 12th grade because of panic attacks, and 13 does not have a GED. (AR 493.) He also has a history of mental health issues in his family: both 14 of his parents, now deceased, were frequently hospitalized due to mental health issues, and his 15 brother suffers from schizophrenia. (Id.) Plaintiff alleges that he has been unable to work since 16 December 21, 2013 because of mental impairments, including OCD, anxiety disorder, and chronic 17 insomnia disorder. (AR 270.) 18 A. Medical Evaluations and Physician Statements1 19 1. Psychological Evaluation by Dr. John Kiefer 20 Dr. John Kiefer is a consultative psychologist who examined the Plaintiff twice at the 21 Agency’s request. Once on January 24, 2012, prior to the alleged onset date, and again after the 22 onset date, on January 20, 2015. (AR 397-402, 492-497.) During the first examination, Dr. Kiefer 23 noted that the Plaintiff was cooperative throughout the interview, and his thought processes were 24 logical, goal-directed, and without indications of hallucinations or delusions. (AR 397-400.) 25 Further, Dr. Kiefer found Plaintiff’s intellectual functioning to be average, with an adequate fund 26 of knowledge, able to do simple math calculations, normal concentration abilities, limited 27 1 judgment, some ability to do abstract thinking, and fair insight. (AR 400-01.) Dr. Kiefer 2 diagnosed Plaintiff with OCD, panic disorder with agoraphobia, rule out hypochondriasis, rule out 3 delusional disorder, and gave a Global Assessment of Function (GAF) score of 45. (AR 401.) He 4 concluded that the likelihood of Plaintiff’s mental condition improving within the next 12 months 5 was poor. (Id.) Dr. Kiefer opined that the Plaintiff had a: 1) fair ability to understand, remember, 6 and carry out short and simple instructions; 2) poor ability to understand and remember complex 7 instructions; 3) fair ability to maintain attention and concentration; 4) poor ability to interact with 8 coworkers and accept instructions from a supervisor; 5) poor ability to sustain an ordinary routine 9 without special supervision; 6) poor ability to complete a normal workday/workweek at a 10 consistent pace without interruptions; and 7) poor ability to deal with changes in the workplace 11 setting. (AR 401.) Dr. Kiefer ended his report with the observation that the likelihood of Plaintiff 12 deteriorating in the work environment is high. (AR 402.) 13 Three years later, Dr. Kiefer again examined Plaintiff. (AR 492-497.) During this visit, as 14 before, Dr. Kiefer noted that Plaintiff was cooperative throughout the interview, and his thought 15 processes were logical, goal-directed, and without indications of hallucinations or delusions. (AR 16 494.) Similarly, Plaintiff’s intellectual functioning was again found to be average, with an 17 adequate fund of knowledge, able to do simple math calculations, normal concentration abilities, 18 limited judgment and ability to do abstract thinking, and fair insight. (AR 495.) Dr. Kiefer 19 diagnosed Plaintiff with insomnia disorder, OCD, generalized anxiety disorder, dysthymia, and 20 rule out delusional disorder. (AR 495-96.) He noted that Plaintiff appeared to respond to 21 questions in an open and honest manner, did not appear to be exaggerating his symptoms, and was 22 consistent in his account. (AR 496.) Dr. Kiefer also wrote that the likelihood of Plaintiff’s mental 23 condition improving in the next twelve months was poor, as Plaintiff appeared to be resistant to 24 treatment, specifically a sleep study. (Id.) Like the previous visit, Dr. Kiefer opined on Plaintiff’s 25 abilities as follows: 1) good ability to understand, remember, and carry out very short and simple 26 instructions; 2) good ability to understand and remember complex instructions; 3) good ability to 27 maintain attention and concentration; 4) poor ability to interact with coworkers and accept 1 supervision; 6) poor ability to complete a normal workday/workweek at a consistent pace without 2 interruptions; and 7) poor ability to deal with changes in the workplace setting. (Id.) Dr. Kiefer 3 again ended his report with the observation that the likelihood of Plaintiff deteriorating in the work 4 environment is high. (Id.) Apart from some improvements in nos. 1, 2, and 3 there was no change 5 in Plaintiff’s condition in Dr. Kiefer’s assessment during the two visits. 6 2. Psychological Evaluation by Dr. Judith Speed 7 Dr. Judith Speed is a treating psychologist who saw Plaintiff over the course of several 8 months. (AR 701-07.) On January 6, 2017, Dr. Speed completed a “Medical Source Statement” 9 form reflecting Plaintiff’s impairments. (AR 701-05.) Out of the 20 listed categories concerning 10 mental impairment and ability to work, Dr. Speed assessed that Plaintiff had “severe” limitations 11 in 6 of them: 1) ability to perform activities within a schedule, maintain regular attendance and be 12 punctual within customary tolerances; 2) ability to make simple work-related decisions; 3) ability 13 to complete a normal workday and workweek without interruptions from psychologically based 14 symptoms and to perform at a consistent pace without an unreasonable number and length of rest 15 periods; 4) ability to respond appropriately to changes in the work setting; 5) ability to travel to 16 unfamiliar places or to use public transportation; and 6) ability to set realistic goals or to make 17 plans independently of others. (AR 702-03.) Severe is defined as “[a] severe limitation which 18 precludes the individual’s ability usefully to perform the designate activity or to sustain 19 performance of the designated activity.” (AR 701.) 20 Dr. Speed further found that under the criteria established by Social Security Rulings 85- 21 15 and 96-9p, Plaintiff had a “substantial loss” of ability in three of the four basic work-related 22 activities on a sustained basis, meaning a full work-week schedule of 8-hour days, 5 days a week. 23 (AR 703-04.) Substantial loss is defined as “a substantial loss of ability to perform a basic mental 24 activity when he or she cannot perform the particular activity in regular, competitive employment 25 but, at best, could do so only in a sheltered work setting where special considerations and attention 26 are provided.” (AR 704.) A finding of substantial loss in any one of the activities can justify a 27 finding of disability. (AR 703.) Specifically, according to Dr. Speed, Plaintiff had substantial loss 1 are commensurate with the functions of unskilled work, i.e., simple work-related decisions; 3) 2 ability to deal with changes in a routine work setting. (AR 704.) Dr. Speed did not find a 3 substantial loss in ability to respond appropriately to supervision, co-workers and usual work 4 situations. (Id.) According to Dr. Speed, her assessed limitations of Plaintiff’s abilities had lasted 5 twelve continuous months or could be expected to last for that long at the assessed severity. (Id.) 6 Dr. Speed evaluated that Plaintiff’s assessed limitations began in Summer 2005. (Id.) 7 In a subsequent letter dated January 20, 2017, Dr. Speed further described Plaintiff’s 8 treatment and noted the history of mental illness in Plaintiff’s family. (AR 707.) Dr. Speed wrote 9 that while Plaintiff “appears very motivated to address and alleviate the symptoms of anxiety and 10 depression, they continue to be present at a consistent and high level, and his use of techniques 11 [to] reduce these symptoms has, to date, minimal success at best.” (AR 707.) Further, Plaintiff’s 12 prognosis is “guarded,” and the “mental health issues have been present for most of [Plaintiff’s] 13 life and efforts to address and alleviate symptoms have been minimally to not all successful.” (Id.) 14 3. Psychological Evaluation by Dr. Amy Jenks 15 Dr. Amy Jenks is a treating psychologist who treated the Plaintiff for OCD in 2011, before 16 the alleged onset date. (AR 528.) In a letter dated June 29, 2016, Dr. Jenks noted that the Plaintiff 17 “had a history of severe symptoms of OCD that had been inadequately treated.” (Id.) Dr. Jenks 18 wrote that the Plaintiff’s “symptoms interfered significantly with his activities of daily living and 19 his ability to obtain employment or maintain a job.” Ultimately, the therapy stopped “due to lack 20 of response to treatment.” (Id.) 21 B. ALJ Hearing 22 On February 8, 2017, Plaintiff appeared with his representative at a hearing before ALJ 23 Michael A. Cabotaje in Vallejo, California. (AR 7.) Plaintiff and Joel M. Greenberg, a vocational 24 expert, testified. (Id.) 25 1. Plaintiff’s Testimony 26 Plaintiff testified that he cannot work because of frequent “issues related to anxiety and 27 insomnia,” with the latter being more chronic since last fall. (AR 15-16.) He explained that he 1 especially if he is doing physical labor. (AR 15-16.) When he gets stimulated, he gets triggered, 2 which “sets off feelings of panic.” (AR 16.) The frequency of panic attacks depends on the nature 3 of the task. (Id.) He also gets triggered by “being away from home, having to drive, sitting at a 4 stoplight, having to be somewhere on time,” and the symptoms start to “snowball in [his] body.” 5 (Id.) 6 Further, Plaintiff testified that when his insomnia gets worse, he cannot sustain a task and 7 feels “impaired mentally through being able to figure stuff out and problem solve and focus on the 8 task at hand.” (AR 36-37.) When he is sleep deprived, he feels a “devastation,” and “tend[s] to 9 obsess about the possibility of more sleep deprivation, and the feeling of sleep deprivation tends to 10 aggravate the fear of more sleep deprivation.” (AR 39.) He has more panic attacks if he is sleep 11 deprived and away from home. (AR 39.) 12 Since his onset date, Plaintiff has finished a vocational rehabilitation program at the Thrive 13 Café where, on average, he worked four hours a day, two or three days a week. (AR 17.) He 14 enrolled in the vocational program in the hope “to get better and try to learn to work again.” (Id.) 15 At the beginning of the program, he was “quite on the edge of . . . having panic attacks. (Id.) 16 While with the program, he had a “peer mentor” assigned to him and sometimes he would have to 17 suddenly leave the job and take a break because of building anxiety. (AR 18.) Because it was a 18 vocational rehabilitation program, he could do so. (Id.) On average, Plaintiff would have severe 19 anxiety or panic two times a week. (AR 30-31.) Towards the end of the program when his 20 insomnia worsened, he frequently called in sick. (Id.) He described the peer mentor relationship 21 as one where the mentor was “holding [his] hand, basically” through the program, and frequently 22 gave him rides to work given Plaintiff’s anxiety around driving and taking public transportation. 23 (AR 29-30.) Besides the Thrive Café, Plaintiff also worked at a winery as a temporary worker, 24 but that only lasted two days because of panic attacks. (AR 19-20.) Prior to the winery, he 25 worked at Coca Cola, but ultimately had to quit that job as well because of “recurrent panic attacks 26 while on the job.” (AR 32.) 27 When asked by the ALJ why he was not completely compliant with medication, Plaintiff 1 medication that “could be [a] risk for making things worse long-term.” (AR 23.) Plaintiff 2 researches on the Internet, reads scientific journals, and has “accumulated basic understanding of 3 some of the scientific technology.” (AR 24.) Even though he has been advised by his therapists 4 to read less about his medications, Plaintiff cannot fully comply because “if something is a risk to 5 [his] health, [he] has to know,” and “it’s part of [his] obsessive nature” to know. (AR 35-36, 691- 6 92.) Plaintiff reported being compliant with his medication when he worked at the Thrive Café 7 and his previous jobs. (AR 31-32.) He also stated that he continues to try various medications 8 with his current doctor, but “almost all of the medications have not been helpful.” (AR 33.) 9 Because of his inability to work, Plaintiff said that he spends his time playing guitar, 10 watching movies, and listening to music to pass the time. (AR 26.) He also started learning 11 sewing patterns and taught himself how to make hats. (Id.) However, he has not made a hat in a 12 while, and working on new patterns has been very slow without much progress “because of the 13 difficulties in [his] life.” (Id.) The last hat he made was in October 2015. (AR 40.) He hardly 14 cooks and does not leave the house “very often.” (AR 27.) Occasionally, he gets out and sees 15 friends, but “it’s been happening less and less.” (AR 28.) He applied for MediCal and may have 16 had assistance in filling out the paperwork. (Id.) 17 2. Vocational Expert’s Testimony 18 Joel M. Greenberg, vocational expert, testified that in his current state, Plaintiff will not be 19 able to do the jobs he has done in the past. (AR 43.) The ALJ posited the following hypothetical 20 to Mr. Greenberg:

21 Assume a hypothetical individual of the claimant’s age and education and with the past jobs that you described. Further, assume that this 22 individual is limited to work at all exertional levels but limited to performing simple, routine, repetitive tasks, could not perform work 23 that requires a specific production rate, such as assembly line work, can deal with no more than occasional changes and activities or work 24 setting during the workday, would require frequent supervision, never work around hazards, defines as unprotected heights and dangerous 25 moving machinery, and limited to simple, work-related decisions.

26 (AR 42-43.) Upon clarification that the RFC included the need for “frequent supervision,” Mr. 27 Greenberg opined that an individual with the above RFC could not perform other work he had 1 identified, as a dishwasher or janitor. (AR 45-46.) He further added that with the additional 2 condition to the hypothetical of being “off-task 15% of the time,” the person would not be 3 employable, “especially in the type of unskilled, entry-level jobs identified.” (AR 46-47.) 4 C. ALJ’s Decision 5 On June 1, 2017, the ALJ issued a written decision denying Plaintiff’s applications and 6 finding that Plaintiff was not disabled within the meaning of the Social Security Act based on the 7 testimony, evidence, and the Social Security Administration’s five-step sequential evaluation 8 process for determining disability. (AR 53-68.) 9 At Step One, the ALJ concluded that Plaintiff had not engaged in substantial gainful 10 activity since his disability onset date of December 21, 2013. (AR 58.) 11 At Step Two, the ALJ found that Plaintiff has the following severe impairments: insomnia 12 disorder, OCD, generalized anxiety disorder, panic disorder, and major depressive disorder. (AR 13 59.) 14 At Step Three, the ALJ found that Plaintiff did not have an impairment or combination of 15 impairments that meets or medically equals the severity of one of the listed impairments in 20 16 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), and 17 416.926). (Id.) For Plaintiff’s mental impairments, the ALJ considered listings 12.04 and 12.06. 18 (Id.) The ALJ found that Plaintiff’s mental impairments did not cause at least two “marked” 19 limitations or one “extreme” limitation such that the Paragraph B criteria was not satisfied. (Id.) 20 In addition, the ALJ found that Plaintiff’s mental impairments did not satisfy Paragraph C criteria 21 because the mental disorder was not “serious and persistent.” (Id.) 22 Before reaching step four, the ALJ considered Plaintiff’s RFC and determined that Plaintiff 23 “has the residual functional capacity to perform medium work” as defined under 20 C.F.R. § 24 404.1567(c) and 416.967(c) with the following exceptions:

25 [Plaintiff] is limited to performing simple, routine, repetitive tasks. Also, he cannot perform work that requires a specific production rate, 26 such as assembly line work; he can deal with no more than occasional changes in activities or work setting during the workday; he requires 27 occasional supervision; he can never work around hazards, defined as (AR 60.) 1

2 In making his RFC determination, the ALJ found that Plaintiff’s “medically determinable 3 impairments could reasonably be expected to cause the alleged symptoms; however, the 4 [Plaintiff’s] statements considering the intensity, persistence and limiting effects of these 5 symptoms are not entirely consistent with the medical evidence and other evidence in the record.” 6 (AR 61.) In support of his determination, the ALJ cited Plaintiff’s treatment history, daily 7 activities, the objective medical evidence, and subjective symptoms reported to treatment 8 providers. (AR 61-67.) ALJ did not include any limitation in the RFC finding about “being off- 9 task, having to leave the worksite, or missing two or more days of work a month” because they 10 were “not totally supported by the record.” (AR 67.) 11 In considering the medical evidence, the ALJ gave “little weight” to Dr. Jenks’ assessment 12 of Plaintiff’s OCD because the treatment was before the alleged onset date. (AR 64.) Similarly, 13 the ALJ gave little weight to Dr. Kiefer’s first consultative examination of Plaintiff’s because it 14 pre-dated the alleged onset date and was “inconsistent with the evidence.” (AR 65.) The ALJ 15 gave “partial weight” to Dr. Kiefer’s second examination and only accepted Dr. Kiefer’s opinions 16 “to the extent that they are consistent with the treating psychologist opinion of Dr. Judith Speed.” 17 (Id.) The ALJ also relied on Plaintiff’s “ability to work at a café and work well with supervisors” 18 as a basis for his assessment of Dr. Kiefer’s opinions. (Id.) 19 Next, the ALJ gave “partial weight” to Dr. Speed’s opinion of Plaintiff’s abilities. (AR 20 66.) In support of his assessment, the ALJ cited Plaintiff’s ability to “sew hats from patterns . . . 21 do internet research, borrow books from the library, and read and understand information from 22 peer review studies and scientific journals about pharmacology of medications,” Plaintiff’s 23 participation in the rehabilitation program at Thrive Café, and applying for MediCal. (Id.) 24 At Step Four, the ALJ agreed with the vocational expert’s hearing testimony that the 25 Plaintiff is “unable to perform any past relevant work.” (Id.) (citing 20 C.F.R. 404.1565 and 26 416.965.) 27 At Step Five, the ALJ concluded that Plaintiff was not disabled because there were jobs 1 dishwasher and cleaner II. (AR 67-68.) The ALJ based this determination on the vocational 2 expert’s testimony and Plaintiff’s residual functional capacity, age, education, and work 3 experience. (AR 68.) 4 DISCUSSION 5 Plaintiff challenges the ALJ’s decision in numerous respects. First, Plaintiff contends that 6 the ALJ’s Step Three determination was in error because the ALJ failed to properly assess 7 Plaintiff’s mental impairments under the Paragraph B criteria for Listings 12.04 and 12.06. 8 Second, Plaintiff asserts that the ALJ’s RFC determination is not supported by substantial 9 evidence because of errors the ALJ made when weighing the medical evidence. Third, Plaintiff 10 insists that ALJ’s Step Five findings are also not supported by substantial evidence. (Dkt. No. 18 11 at 14-25.) Because Plaintiff’s arguments regarding the weighing of the medical evidence impact 12 the ALJ’s alleged errors at the other steps in the sequential evaluation, the Court’s analysis begins 13 there. 14 A. The ALJ’s Weighing of the Medical Evidence 15 In the Ninth Circuit, courts must “distinguish among the opinions of three types of 16 physicians: (1) those who treat the claimant (treating physicians); (2) those who examine but do 17 not treat the claimant (examining physicians); and (3) those who neither examine nor treat the 18 claimant (nonexamining physicians).” Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995) (as 19 amended (Apr. 9, 1996)). A treating physician’s opinion is entitled to more weight than that of an 20 examining physician, and an examining physician’s opinion is entitled to more weight than that of 21 a nonexamining physician. Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007). “The opinion of an 22 examining doctor, even if contradicted by another doctor, can only be rejected for specific and 23 legitimate reasons that are supported by substantial evidence in the record,” and the ALJ “must 24 provide “clear and convincing” reasons for rejecting an uncontradicted opinion of an examining 25 physician. Lester, 81 F.3d at 830-31. 26 “When an ALJ does not explicitly reject a medical opinion or set forth specific, legitimate 27 reasons for crediting one medical opinion over another, he errs. In other words, an ALJ errs when 1 asserting without explanation that another medical opinion is more persuasive, or criticizing it 2 with boilerplate language that fails to offer a substantive basis for his conclusion.” Garrison v. 3 Colvin, 759 F.3d 995, 1012-13 (9th Cir. 2014) (internal citation omitted). In weighing medical 4 opinions, the ALJ may consider (1) the examining relationship, (2) the treatment relationship, (3) 5 the supportability, (4) the consistency, (5) the specialization, and (6) other factors brought to the 6 ALJ’s attention. 20 C.F.R. § 416.927(c)(5). In conducting this review, the court “must consider 7 the entire record as a whole, weighing both the evidence that supports and the evidence that 8 detracts from the Commissioner’s conclusion, and may not affirm simply by isolating a specific 9 quantum of supporting evidence.” Trevizo v. Berryhill, 871 F.3d 664, 675 (9th Cir. 2017). 10 Plaintiff contends that the ALJ’s reasons for giving little to partial weight to the opinions 11 of examining psychiatric consultants Drs. Kiefer and Stone are neither clear or convincing, nor 12 specific and legitimate reasons supported by substantial evidence. 13 1. Dr. John Kiefer’s Consultative Assessment of the Plaintiff’s Mental 14 Impairments 15 Dr. Kiefer evaluated Plaintiff twice and the ALJ gave different weight to each of his 16 opinions. In particular, the ALJ gave little weight to Dr. Kiefer’s initial assessment because it 17 predated the alleged onset date and because it was “inconsistent with the evidence as described 18 above.” (AR 65.) 19 The ALJ’s reason for assigning little weight to Dr. Kiefer’s initial assessment because it 20 was “inconsistent with the evidence” is not sufficient. “An ALJ can satisfy the substantial 21 evidence requirement by setting out a detailed and thorough summary of the facts and conflicting 22 clinical evidence, stating his interpretation thereof, and making findings. The ALJ must do more 23 than state conclusions. He must set forth his own interpretations and explain why they, rather than 24 the doctors’, are correct.” Garrison, 759 F.3d at 1012 (internal citations and quotation marks 25 omitted). Here, rather than doing so, the ALJ simply stated that Dr. Kiefer’s assessment was 26 “inconsistent with the evidence” previously described. (AR 65.) Up until that point in the 27 opinion, the ALJ had summarized Plaintiff’s history of medical impairments and treatments. (AR 1 was inconsistent with Dr. Kiefer’s assessment. See Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 2 1988) (holding that and ALJ errs when he “merely states that the objective factors point toward an 3 adverse conclusion and makes no effort to relate any of these objective factors to any of the 4 specific medical opinions and findings he rejects.”). 5 The ALJ’s second reason for rejecting Dr. Kiefer’s initial opinion—that it predates the 6 alleged onset date—does not make the ALJ’s error above harmless. In support of the ALJ’s 7 conclusion that he could reject the opinion based solely on its date, the Commissioner cites Baker 8 v. Berryhill, 720 F. App’x. 352 (9th Cir. 2017) (unpublished), which relies on Carmickle v. 9 Comm’sr, Soc. Sec. Admin., 533 F.3d 1155 (9th Cir. 2008). In Carmickle, however, the court 10 explained that:

11 the ALJ gave little weight to [the physician’s] opinion because it was provided before [the plaintiff’s] alleged onset of disability at a time 12 when [the plaintiff] was working two jobs that he never indicated having trouble performing before his on-the-job injury. Medical 13 opinions that predate the alleged onset of disability are of limited relevance. See Fair v. Bowen, 885 F.2d 597, 600 (9th Cir.1989). This 14 is especially true in cases such as this where disability is allegedly caused by a discrete event. See SSR 83–20 (1983). 15 Id. at 1165. Thus, it was the timing of the opinion in relation to the plaintiff’s actual 16 circumstances at that time that gave the opinion limited relevance. Here, in contrast, the ALJ does 17 not identify any circumstance that would make Dr. Kiefer’s opinion—rendered a little less than 18 two years before the alleged onset date—wholly irrelevant. Similarly, in Fair v. Bowen, there was 19 an additional reason for discounting a medical opinion, beyond that it predated the alleged onset 20 date. 885 F.2d 597, 605 (9th Cir. 1989) (The ALJ properly discounted medical opinion prior to 21 the alleged onset date “because it was premised on [Plaintiff’s] own subjective complaints, which 22 the ALJ had already properly discounted.”); see also Burkhart v. Bowen, 856 F.2d 1335, 1339 n.1 23 (9th Cir. 1988) (“The ALJ correctly rejected this evidence on the grounds that it is not probative 24 both because it is prior to the relevant time period and inconclusive since the last notation was that 25 the depression was improved.”) (emphasis added). 26 In any event, assuming without deciding that the ALJ did not err in refusing to consider 27 Dr. Kiefer’s initial opinion, the ALJ erred in granting “partial weight” to Dr. Kiefer’s subsequent 1 evaluation. The ALJ rejected Dr. Kiefer’s opinion except to the extent that his opinion was 2 “consistent with the treating psychologist opinion of Dr. Judith Speed.” (AR 65.) The ALJ also 3 cited that Plaintiff “work[ed] at a café and work[ed] well with supervisors” as a basis for rejecting 4 Dr. Kiefer’s opinion that Plaintiff had “poor” functional abilities in social interaction. (Id.) 5 First, that Dr. Kiefer’s opinion differed in some respect from the opinion of Dr. Speed is 6 not in and of itself a basis for rejecting Dr. Kiefer’s opinion. Even if an examining doctor’s 7 opinion is contradicted by another doctor, it “can only be rejected for specific and legitimate 8 reasons that are supported by substantial evidence in the record.” Lester, 81 F.3d at 830-31. 9 Beyond the statement that he accepted Dr. Kiefer’s opinion to the extent that it was consistent with 10 Dr. Speed, the ALJ offered no other justification. (AR 65.) Moreover, the ALJ also did not fully 11 accept Dr. Speed’s opinion, even though it served as the basis for rejecting Dr. Kiefer’s second 12 evaluation. (AR 66.) 13 The Commissioner’s reliance on Tonapetyan v. Halter, 242 F.3d 1144 (9th Cir. 2001) in 14 support of the ALJ’s rejection of Dr. Kiefer’s second opinion is not persuasive. In Tonapetyan, 15 the ALJ rejected an examining physician’s opinion that the plaintiff was “totally disabled by her 16 physical impairments” in favor of two contrary opinions—one from an examining physician and 17 the other from a non-examining physician—that the Plaintiff was not totally disabled. 242 F.3d at 18 1149. The court found the two contrary opinions constituted specific and legitimate reasons 19 supported by substantial evidence because unlike the first examining physician whose opinion was 20 premised on the plaintiff’s subjective complaints, the latter opinions were based on an objective 21 examination of the plaintiff. (Id.) Here, unlike in Tonapetyan, the record does not include such 22 disparate opinions. To the contrary, Drs. Kiefer and Speed mostly agreed on the extent of 23 Plaintiff’s mental impairments, with some minor disagreements on degree of severity. (Compare 24 AR 495-96 with AR 702-04.) The ALJ had to do more than baldly recite that it was rejecting Dr. 25 Kiefer’s opinion to the extent it was not consistent with Dr. Speed’s opinion. 26 Second, the ALJ’s reliance on Plaintiff’s part-time work at Thrive Café to discount Dr. 27 Kiefer’s opinion is not a specific and legitimate reason supported by substantial evidence. 1 freedoms not traditionally associated with a work setting. (AR 17.) The program lasted from 2 March 2016 to September 2016. (AR 349.) Plaintiff had a “peer mentor” assigned to him where 3 the mentor was “holding [his] hand, basically” through the program, and frequently gave him rides 4 to work given Plaintiff’s anxiety around driving and taking public transportation. (AR 29-30.) 5 Plaintiff often had to suddenly leave the job and take a break because of building anxiety. (AR 6 17.) On average, Plaintiff would have severe anxiety or panic two times a week. (AR 30-31.) 7 The ALJ does not acknowledge any of these circumstances and therefore his conclusion that based 8 on his café work, Dr. Kiefer’s opinion of “poor” social interaction function was inconsistent is 9 illogical and not supported by substantial evidence. 10 Accordingly, the ALJ failed to offer clear and convincing or specific and legitimate 11 reasons supported by substantial evidence for giving partial weight to Dr. Kiefer’s second opinion. 12 2. Dr. Judith Speed’s Assessment of Plaintiff’s Mental Impairments 13 Plaintiff also challenges the ALJ’s assignment of “partial weight” to the opinion of treating 14 psychologist Dr. Speed. (AR 66.) The ALJ found that Dr. Speed’s opinion regarding Plaintiff’s 15 mild limitations in understanding, memory, and social interaction was consistent with the record, 16 but that her opinion regarding Plaintiff’s moderately severe or severe limitations in adaptation are 17 “not entirely consistent” with Plaintiff’s testimony that he can: 1)“sew hats from patterns (but 18 stopped because he was not satisfied with how they looked);” 2) “do Internet research, borrow 19 books from the library, and read and understand information from peer review studies and 20 scientific journals about pharmacology of medications;” 3) “learn how to make coffee and work 21 successfully at Thrive Café, albeit part time and with flexibility as to break;” and 4) “go to benefits 22 offices and, without incident, successfully apply for Medical.” (AR 66.) The ALJ further noted 23 that “Dr. Speed had only seen the claimant for a few months when she rendered her opinion.” 24 (Id.) 25 The inconsistencies cited by ALJ are not substantial evidence to reject Dr. Speed’s 26 opinion. See Holohan v. Massanari, 246 F.3d 1195, 1205 (9th Cir. 2001) (“That a person who 27 suffers from severe panic attacks, anxiety, and depression makes some improvement does not 1 workplace.”); see also Kelly v. Berryhill, 732 F. App'x 558, 561 (9th Cir. 2018) (unpublished) 2 (“cherry-picking of the record” is impermissible.) 3 First, that Plaintiff has made his own hats, does Internet research, borrows books from the 4 library, and reads about the pharmacology of medicine does not mean he does not suffer from 5 mental health issues which would preclude him from working. See Fair v. Bowen, 885 F.2d 597, 6 603 (9th Cir. 1989) (“[M]any home activities are not easily transferable to what may be the more 7 grueling environment of the workplace, where it might be impossible to periodically rest or take 8 medication.”). Plaintiff’s testimony regarding making hats exemplifies this point: Plaintiff 9 testified that he has not made a hat since October 2015 and working on new patterns has been very 10 slow without much progress “because of the difficulties in [his] life,” and not entirely because he 11 was not satisfied with the way they looked, as the ALJ put it. (AR 26, 40, 66.) 12 Second, the ALJ’s reliance on Plaintiff’s work at the Thrive Café to discount Dr. Speed’s 13 opinion is not enough. As discussed, supra, Thrive Café was a rehabilitation program that 14 allowed Plaintiff freedoms not traditionally associated with a work setting. 15 Third, that Plaintiff successfully applied for MediCal does not undermine Dr. Speed’s 16 finding that he has severe limitation in concentration and persistence and severe limitations in 17 adaptation, as evidenced by his work history. (AR 17, 19-20, 22, 702-03.) As with Plaintiff’s 18 activities of daily living, the ALJ fails to explain how his one-time application for MediCal 19 translates to the ability to perform in a work setting. See Trevizo v. Berryhill, 871 F.3d 664, 676 20 (9th Cir. 2017) (“Though the ALJ repeatedly pointed to Trevizo’s responsibilities caring for her 21 young adoptive children as a reason for rejecting her disability claim, the record provides no 22 details as to what Trevizo’s regular childcare activities involved.”). 23 Finally, that Dr. Speed only treated Plaintiff for a short period of time is not in and of itself 24 reason to discount her opinion. See 20 C.F.R. § 404.1527(a)(2) (“We may consider an acceptable 25 medical source who has treated or evaluated you only a few times or only after long intervals (e.g., 26 twice a year) to be your treating source if the nature and frequency of the treatment or evaluation 27 is typical for your condition(s)”.) When a treating doctor’s opinion is not controlling, it is 1 examination, the nature and extent of the treatment relationship, supportability, and consistency 2 with the record. See 20 C.F.R. § 404.1527(c)(2)–(6). The ALJ discounted Dr. Speed’s opinion 3 based on the length of the treating relationship without discussing the other relevant factors. 4 Plaintiff also argues that the ALJ failed to address Dr. Speed’s substantial loss assessment 5 of Plaintiff’s abilities. While there is some overlap between the substantial loss assessment and 6 the parts of Dr. Speed’s opinion the ALJ did discuss, the ALJ did not specifically discuss the 7 substantial loss assessment and offered no reason to ignore it. The Commissioner’s explanation 8 for why the ALJ did not discuss the substantial loss assessment—that it contradicted some other 9 parts of Dr. Speed’s opinion—cannot be considered as the Court is limited to evaluating ALJ’s 10 findings and reasonings. Bray v. Commissioner of Social Security Admin., 554 F.3d 1219, 1225 11 (9th Cir. 2009) (“Long-standing principles of administrative law require us to review the ALJ’s 12 decision based on the reasoning and factual findings offered by the ALJ—not post hoc 13 rationalizations that attempt to intuit what the adjudicator may have been thinking.”) 14 Accordingly, the ALJ failed to give either clear and convincing or specific and legitimate 15 reasons supported by substantial evidence for not fully crediting Dr. Speed’s treating physician 16 opinion. 17 B. The ALJ’s Adverse Credibility Finding 18 To “determine whether a claimant’s testimony regarding subjective pain or symptoms is 19 credible,” an ALJ must use a “two-step analysis.” Garrison, 759 F.3d at 1014. “First, the ALJ 20 must determine whether the claimant has presented objective medical evidence of an underlying 21 impairment which could reasonably be expected to produce the pain or other symptoms alleged.” 22 Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007) (citations omitted). “Second, if the 23 claimant meets the first test, and there is no evidence of malingering, the ALJ can reject the 24 claimant’s testimony about the severity of [his] symptoms only by offering specific, clear and 25 convincing reasons for doing so.” Id. (citations omitted). The clear and convincing standard is 26 “the most demanding required in Social Security cases.” Moore v. Comm'r of the Soc. Sec. 27 Admin., 278 F.3d 920, 924 (9th Cir. 2002). 1 disability asserted by the [Plaintiff] are not entirely consistent with the balance of the evidence.” 2 (AR 63.) “To discredit a claimant’s symptom testimony when the claimant has provided objective 3 medical evidence of the impairments which might reasonably produce the symptoms or pain 4 alleged and there is no evidence of malingering, the ALJ must give ‘specific, clear, and convincing 5 reasons for rejecting’ the testimony by identifying ‘which testimony [the ALJ] found not credible’ 6 and explaining ‘which evidence contradicted that testimony.’” Laborin v. Berryhill, 867 F.3d 7 1151, 1155 (9th Cir. 2017) (quoting Brown–Hunter v. Colvin, 806 F.3d 487, 489, 494 (9th Cir. 8 2015)). The ALJ’s reasons fail to meet the standard, and the Commissioner’s attempt to bolster 9 the ALJ’s reasons similarly fail. 10 The ALJ relied on the following “inconsistencies”: 11 • Plaintiff’s “daily activities are not consistent with a finding of disability” because he 12 “spends his day on the computer and doing research on the Internet . . . takes short walks, 13 plays guitar and reads . . . does some cooking and laundry” while doing “little 14 housekeeping . . . able to shop . . . getting out of the house and spending more time with 15 friends, as opposed to giving into anxiety and remaining at home . . . attends individual 16 and group counseling”; 17 • Plaintiff’s ability to “work on a sewing pattern” and that he “taught himself how to make a 18 hat”; 19 • Plaintiff “was able to take care of his MediCal renewal paperwork despite being stressed 20 out about it” and asked staff for help without “having a panic attack on that occasion,” 21 since renewing MediCal is “an important and consequential task” and being able to 22 accomplish it “is not inconsistent with allegations of a disabling mental impairment”; 23 • Plaintiff was not “fully compliant with his medications and ha[d] declined medications,” 24 while being “thorough” in his research of medication pharmacology by doing internet 25 research and reading peer-reviewed studies and journals; 26 • Plaintiff’s OCD “by self-report . . . does not appear to be incapacitating” and Dr. Amy 27 Jenks’ letter regarding Plaintiff’s lack of response to OCD treatment is worth little weight 1 (AR 63-64.) 2 As discussed supra, the first three reasons are not specific, clear, and convincing reasons 3 for rejecting Plaintiff’s mental and functional impairment claims. As for Plaintiff’s non- 4 compliance with medication, while Plaintiff has been afraid of taking certain medication at times, 5 he does have a long history of medication compliance. The medical records from Ole Health 6 spanning 8/19/2015 - 11/15-2016 note that Plaintiff has largely adhered to medication as 7 prescribed. (AR 663-700.) Plaintiff also reported being compliant with his medication when he 8 worked at the Thrive Café and his previous jobs. (AR 31-32.) He was also compliant with his 9 medication at the time of the hearing. (AR 33.) Moreover, Plaintiff’s noncompliance with 10 medication may itself be a result of his medical impairments. When asked at the hearing why he 11 sometimes does not comply with the medication, Plaintiff explained that he “tend[s] to a lot of 12 reading on pharmacology medications,” and is wary of medication that “could be [a] risk for 13 making things worse long-term.” (AR 23.) Even though he has been advised by his therapists and 14 other medical professionals to do less research about his medications, Plaintiff cannot fully 15 comply because “if something is a risk to [his] health, [he] has to know,” and “it’s part of [his] 16 obsessive nature” to know. (AR 35-36, 691-92.) “[I]t is a questionable practice to chastise one 17 with a mental impairment for the exercise of poor judgment in seeking rehabilitation.” Nguyen v. 18 Chater, 100 F.3d 1462, 1465 (9th Cir. 1996) (quotation marks and citations omitted). 19 Likewise, although the ALJ appears to reject Plaintiff’s self-reports of OCD, at Step Two 20 the ALJ found Plaintiff to be suffering from severe OCD. (AR 688, 59.) Indeed, the record 21 supports Plaintiff’s OCD: subsequent records from Ole Health show that the Plaintiff continued to 22 be diagnosed with OCD—along with insomnia, anxiety and panic symptoms—and was referred to 23 therapy for it. (AR 659-60.) The ALJ fails to acknowledge this internal inconsistency within his 24 opinion. 25 Accordingly, the ALJ failed to provide specific, clear and convincing reasons supported 26 by substantial evidence for discounting Plaintiff’s subjective testimony regarding his mental health 27 and functional limitations. 1 Because the ALJ’s consideration of the medical evidence and adverse credibility finding 2 are not supported by substantial evidence, the ALJ’s decision cannot stand. Given this, the Court 3 need not consider Plaintiff’s additional arguments regarding the RFC, Step three, and Step five 4 finding. The ALJ’s errors here go to the heart of the disability determination and are not harmless. 5 See Treichler v. Comm'r of Soc. Sec. Admin., 775 F.3d 1090, 1099 (9th Cir. 2014) (“An error is 6 harmless if it is inconsequential to the ultimate nondisability determination, or if the agency’s path 7 may reasonably be discerned, even if the agency explains its decision with less than ideal clarity.”) 8 (internal quotation marks and citations omitted); Stout v. Comm'r, Soc. Sec. Admin., 454 F.3d 9 1050, 1056 (9th Cir. 2006) (“[A] reviewing court cannot consider the error harmless unless it can 10 confidently conclude that no reasonable ALJ, when fully crediting the testimony, could have 11 reached a different disability determination.”). 12 C. Remand 13 Plaintiff asks the Court to remand for immediate benefits under the credit-as-true rule. 14 Generally, when the Court reverses an ALJ’s decision, “the proper course, except in rare 15 circumstances, is to remand to the agency for additional investigation or explanation.” Benecke v. 16 Barnhart, 379 F.3d 587, 595 (9th Cir. 2004). However, a court may remand for an immediate 17 award of benefits where “(1) the record has been fully developed and further administrative 18 proceedings would serve no useful purpose; (2) the ALJ has failed to provide legally sufficient 19 reasons for rejecting evidence, whether claimant testimony or medical opinion; and (3) if the 20 improperly discredited evidence were credited as true, the ALJ would be required to find the 21 claimant disabled on remand.” Garrison, 759 F.3d at 1020. Each part of this three-part standard 22 must be satisfied for the court to remand for an award of benefits, id., and “[i]t is the ‘unusual 23 case’ that meets this standard.” Williams v. Colvin, No. 12-cv-6179-YGR, 2014 WL 957025, at 24 *14 (N.D. Cal. Mar. 6, 2014) (quoting Benecke, 379 F.3d at 595); Leon v. Berryhill, 880 F.3d 25 1041, 1045 (9th Cir. 2017) (“where [...] an ALJ makes a legal error, but the record is uncertain and 26 ambiguous, the proper approach is to remand the case to the agency”) (citing Treichler, 775 F.3d 27 at 1105). It is only “rare circumstances that result in a direct award of benefits” and “only when 1 the record supported the reasons provided by the ALJ for denial of benefits.” Leon, 880 F.3d at 2 1047. 3 Such rare circumstances exist here. As to the first prong, the record is fully developed. It 4 spans more than seven hundred pages and contains treatment notes from dozens of doctor visits 5 during the insured period as well as medical history dating back as far as 2007. Although the ALJ 6 insisted Plaintiff’s mental impairments are not disabling, the record reflects Plaintiff’s ongoing 7 mental health problems and attempts to obtain treatment. The record also reflects Plaintiff’s 8 testimony before the ALJ and his responses to questionnaires about his physical and mental 9 limitations, and includes medical opinions of treating physician Dr. Speed, examining physician 10 Dr. Kiefer, and other extensive health records—all of which corroborate the disabling nature of 11 Plaintiff’s impairments. In addition, the VE testified that if someone requires “frequent 12 supervision,” they would not be employable in the two unskilled jobs that the ALJ ultimately 13 identified that the Plaintiff can do. Compare AR 45-46 with AR 68. The VE also testified that if 14 someone would be off-task for 15 percent of an eight-hour day, they would be unemployable. 15 (AR 46-47.) The VE’s testimony is consistent with the medical opinions of Dr. Speed and Dr. 16 Kiefer regarding Plaintiff’s abilities. Dr. Speed found severe limitations in: “ability to perform 17 activities within a schedule, maintain regular attendance and be punctual within customary 18 tolerances” and “ability to complete a normal workday and workweek without interruptions from 19 psychologically based symptoms and to perform at a consistent pace without an unreasonable 20 number and length of rest periods.” (AR 702.) In both of his opinions, Dr. Kiefer found the 21 Plaintiff had a poor ability to “sustain an ordinary routine without special supervision” along with 22 a poor ability “to complete a normal workday/workweek at a consistent pace without 23 interruptions.” (AR 401, 496.) 24 The second and third prongs of the credit-as-true standard are also satisfied. The ALJ 25 failed to provide legally sufficient reasons for rejecting the informed medical opinion of Plaintiff’s 26 treating physician Dr. Speed as well as the statements of her treating psychologist Dr. Kiefer, and 27 instead, improperly gave them less weight. When credited as true, Dr. Speed and Dr. Kiefer’s 1 limitations regarding concentration and persistence would be unemployable. (AR 45-46.) Brown- 2 Hunter vy. Colvin, 806 F.3d 487, 495 (9th Cir. 2015) (“The touchstone for an award of benefits is 3 || the existence of a disability, not the agency’s legal error.”); Trevizo v. Berryhill, 871 F.3d 664 (9th 4 || Cir. 2017) (applying credit-as-true where: (1) ALJ failed to provide legally sufficient reasons to 5 discredit treating doctor’s opinion; (2) treating opinion was supported by evidence; (3) VE 6 || testified that an individual of similar status and impairment was unable to work full-time; and (4) 7 || plaintiff's testimony was not inconsistent with the record). 8 The Commissioner insists that remand for an award of benefits is improper because the 9 || record contains conflicting evidence regarding Plaintiff's alleged disability—pointing to “conflict 10 of medical opinion evidence.” (Dkt. No. 29 at 14.) However, as discussed supra, this argument is 11 not supported by the record: there is no material conflict in the medical opinion evidence. “[T]he 12 || credit-as-true rule foreclose[s] the argument that a remand for the purpose of allowing the ALJ to 5 13 have a mulligan qualifies as a remand for a useful purpose under the first part of credit-as-true 14 analysis.” See Garrison, 759 F.3d at 1021 (citing Benecke, 379 F.3d at 595) (“Allowing the 3 15 Commissioner to decide the issue again would create an unfair ‘heads we win; tails, let’s play a 16 || again’ system of disability benefits adjudication.”) In sum, there is no serious doubt based on the 3 17 Court’s evaluation of the record as a whole that Plaintiff is disabled within the meaning of the 18 Social Security Act. 19 CONCLUSION 20 For the reasons stated above, Plaintiff's motion for summary judgment is GRANTED and 21 Defendant’s cross-motion is DENIED. The Court VACATES the ALJ’s final decision and 22 || REMANDS for an award of benefits. 23 IT IS SO ORDERED. 24 || Dated: February 20, 2020

26 ne 7 JAGQUELINE SCOTT CORL United States Magistrate Judge 28