1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 San Francisco Division 11 S.M., Case No. 19-cv-02509-LB
12 Plaintiff, ORDER GRANTING PLAINTIFF’S 13 v. MOTION FOR SUMMARY JUDGMENT AND DENYING 14 ANDREW SAUL ACTING COMMISSIONER’S CROSS-MOTION COMMISSIONER OF SOCIAL FOR SUMMARY JUDGMENT 15 SECURITY, Re: ECF Nos. 19 & 22 16 Defendant.
17 18 INTRODUCTION 19 The plaintiff S.M. seeks judicial review of a final decision by the Commissioner of the Social 20 Security Administration denying her claim for supplemental-security income (“SSI”) benefits 21 under Title XVI of the Social Security Act (“SSA”).1 The plaintiff moved for summary judgment.2 22 The Commissioner opposed the motion and filed a cross-motion for summary judgment.3 Under 23 Civil Local Rule 16-5, the matter is submitted for decision by this court without oral argument. 24 25
26 1 Compl. – ECF No. 1 at 2; Mot. – ECF No. 19 at 3. Citations refer to material in the Electronic Case File (“ECF”); pinpoint citations are to the ECF-generated page numbers at the top of documents. 27 2 Mot. – ECF No. 19. 1 The court grants the plaintiff’s motion, denies the Commissioner’s motion, and remands for 2 further proceedings. 3 4 STATEMENT 5 1. Procedural History 6 On February 20, 2015, the plaintiff applied for SSI benefits under Title XVI of the SSA.4 She 7 alleged disability beginning on January 1, 2015 from the following impairments: anger issues; 8 migraines; insomnia; and bipolar disorder.5 Her claim was denied initially and on reconsideration.6 9 The plaintiff requested a hearing before an Administrative Law Judge (“ALJ”), and one was 10 held on October 4, 2017, where a vocational expert (“VE”) testified.7 On March 14, 2018, the ALJ 11 held a second hearing because the plaintiff did not appear at the first hearing.8 The ALJ issued an 12 unfavorable decision on April 4, 2018.9 The Appeals Council denied the plaintiff’s request for 13 review on March 14, 2019.10 14 The plaintiff timely filed this action on May 9, 2019 and subsequently moved for summary 15 judgment.11 The Commissioner opposed the motion and filed a cross-motion for summary 16 judgment.12 All parties consented to magistrate-judge jurisdiction.13 17 18 19 20 21 4 AR 48. Administrative Record (“AR”) citations refer to page numbers in the bottom right-hand corner of the AR. 22 5 AR 48–49. 23 6 AR 57, 72. 7 AR 19. 24 8 Id. 25 9 AR 30. 26 10 AR 3. 11 Compl. – ECF No. 1; Mot. – ECF No. 19. 27 12 Cross-Mot. – ECF No. 22. 1 2. Summary of Administrative Record 2 2.1 Medical Records 3 The plaintiff alleged that she was disabled because of her anger issues, bipolar disorder, 4 migraines, and insomnia.14 The plaintiff submitted the following records in support of her claim: 5 (1) records from Santa Rita Jail from April 25, 2013 to July 23, 2013;15 (2) records from Sausal 6 Creek Outpatient Clinic, where she was treated for bipolar disorder, anxiety, and amphetamine and 7 marijuana dependence;16 (3) records from the Schuman-Liles Clinic, where she was treated for 8 mood disorder and post-traumatic stress disorder (“PTSD”);17 (4) a mental status exam by Paul 9 Martin, Ph.D.;18 and (5) records from John George Psychiatric Hospital.19 10 Because the plaintiff’s appeal involves her challenge of the ALJ’s assessment of the opinion of 11 examining psychologist Dr. Martin and the plaintiff’s function reports, this order fully recounts 12 these parts of the record. Because the parties also reference the plaintiff’s treatments from Michael 13 Hipolito, M.D., this order also summarizes these records. 14 2.1.1 Michael Hipolito, M.D. — Treating Psychiatrist 15 Michael Hipolito, M.D., treated the plaintiff four times from September 2, 2015 to August 3, 16 2016.20 On her initial visit, her chief complaint was anxiety.21 17 Dr. Hipolito conducted a mental-health status exam on each visit.22 Over an eleven-month 18 period, Dr. Hipolito observed that the plaintiff had normal impulse control, normal thought 19 20 21
22 14 AR 48. 23 15 AR 327–48. 16 AR 349–59. 24 17 AR 360–64, 384–99, 465–79. 25 18 AR 365–71. 26 19 AR 377–83. 20 AR 386, 391, 465, 469. 27 21 AR 392. 1 process and content, normal speech, fair insight and judgment, good eye contact, good grooming, 2 and no suicidal or homicidal ideations.23 3 The plaintiff experienced some improvements while she was on medication. For example, on 4 September 2, 2015, the plaintiff told Dr. Hipolito that she “felt more relaxed” and that the 5 medications were helpful with no side effects.24 She still complained of anxiety.25 6 On February 11, 2016 the plaintiff’s condition worsened. She had been “off meds for one 7 month” and was “on edge.”26 Her sleep was “fair,” her nightmares had returned, she endorsed a 8 depressed mood, and her anxiety was “high.”27 She did not report any auditory hallucinations, 9 which she previously had experienced.28 On August 3, 2016, the plaintiff had been off her 10 medications for two-and-a-half months and was feeling “somewhat depressed.”29 Dr. Hipolito 11 described her mood as “dysthymic” and “reactive.”30 12 Dr. Hipolito diagnosed the plaintiff with “unspecified mood (affective) disorder” and “[p]ost- 13 traumatic stress disorder, chronic.”31 He prescribed her Geodon, prazosin, and trazodone.32 He 14 also gave her a GAF score of 45.33 15 16 17 18
19 23 AR 387–88, 393, 467, 471. 20 24 AR 393. 25 AR 392. 21 26 AR 470. 22 27 Id. 23 28 AR 387, 470. 29 AR 467. 24 30 Id. 25 31 Id. 26 32 AR 468. 33 AR 467. A GAF score purports to rate a subject’s mental state and symptoms; the higher the rating, 27 the better the subject’s coping and functioning skills. Garrison v. Colvin, 759 F.3d 995, 1002 n.4 (9th Cir. 2014). A person with a GAF score of 41 and 51 “describes ‘serious symptoms’ or ‘any serious 1 2.1.2 Paul Martin, Ph.D. — Examining Psychologist 2 On July 13, 2015, Dr. Martin performed a psychological evaluation of the plaintiff.34 He 3 considered her a “fair historian.”35 He noted the plaintiff’s adequate grooming.36 She “made good 4 eye contact,” had “normal” facial expressions, and was “100% intelligible.”37 The plaintiff 5 reported taking Geodon, prazosin, and trazodone. She used methamphetamine “for about two or 6 three days” and denied using other drugs. The plaintiff had a history of psychiatric hospitalizations 7 and suicidal ideations, but no suicide attempts.38 She denied suicidal ideations and 8 hallucinations.39 Dr. Martin noted that she had the following daily activities: 9 The claimant is unable to prepare simple meals[,] . . . do light household chores[,] . . . make change at the store[,]. . . take public transportation . . . [or] drive a car. She does not 10 have a valid driver’s license. The claimant reportedly spends the day mostly at home resting and taking care of basic needs. She lives in a sober living house.40 11 12 The plaintiff complained of bipolar disorder and PTSD. She had “mood swings characterized 13 by crying spells and rage.” She was “easily emotional and overwhelmed . . . [and] frequently 14 [became] hyperactive.” Her “expanded moods last[ed] only approximately one hour . . . [and] she 15 often fe[lt] depressed . . . for an entire day.”41 Dr. Martin also noted that the plaintiff had a “history 16 of trauma throughout her life.”42 “[S]he reported having flashbacks, reoccurring dreams, 17 hypervigilance, hyper startle response, and [that] she [was] easily triggered.”43 She experienced 18 19 20
21 34 AR 365. 22 35 Id. 23 36 AR 367. 37 Id. 24 38 AR 366. 25 39 AR 367. 26 40 Id. 41 AR 365 27 42 AR 365–66. 1 “mood swings triggered by memories,” and anxiety.44 When asked about her mood, the plaintiff 2 replied, “I feel numb.”45 3 Dr. Martin found that the plaintiff’s attention and memory were “adequate,” her insight and 4 judgment were “fair,” her thought content was “normal,” and her thought process was 5 “[o]rganized, coherent, linear and goal directed.”46 6 The plaintiff’s psychological-functioning tests showed the following: (1) she had difficulty 7 with attention, concentration, and language-based skills; (2) she had “mild difficulty with new 8 learning and memory;” and (3) she had “significant difficulty with sustained attention and[] 9 mental tracking.”47 Dr. Martin concluded that she was not significantly limited in “performing 10 detailed and complex tasks versus simple and repetitive tasks.” The plaintiff had the following 11 mild limitations: (1) ability to maintain regular attendance in the workplace; (2) ability to perform 12 work activities without special or additional supervision; and (3) ability to accept instructions from 13 supervisors. Her ability to perform work on a consistent basis and ability to interact with 14 coworkers and the public were moderately limited. She had the following marked limitations: (1) 15 her ability to complete a normal workday or workweek without interruptions resulting from the 16 claimant’s psychiatric condition; and (2) her ability to deal with the usual stresses encountered in a 17 competitive work environment.48 18 Dr. Martin diagnosed the plaintiff with PTSD, chronic and mood disorder (not otherwise 19 specified), and gave her a GAF score of 55.49 20 21 22 23 44 Id. 45 AR 367. 24 46 Id. 25 47 AR 368–69. 26 48 AR 370. 49 AR 369. A person with a GAF score of 51 to 60 may connote “moderate symptoms” (e.g. a flat and 27 circumstantial speech and occasional panic attacks) or moderate difficulty in social, occupational, or school and chores-related functioning (e.g. few friends and conflicts with peers or co-workers). 1 2.2 Non-Medical Records 2 The plaintiff submitted two function reports—one on May 28, 2015, and another on 3 October 21, 2015.50 4 2.2.1 May 28, 2015 Function Report 5 In her May 28, 2015 function report, the plaintiff explained that her symptoms affected her 6 memory and concentration and her ability to follow instructions, get along with others, complete 7 tasks, and deal with authority.51 She described problems with sleeping and nightmares that 8 affected her thinking.52 She said that she felt “really depressed” and that her “mind [wa]s speeding 9 and [she] just c[ouldn]’t stay still[.]”53 She described feeling paranoid and reported that she had 10 trouble getting along with family and friends because her “character change[d] quick[ly] [from] 11 [her] bypolar [sic] and that even freak[ed] [her] out sometimes.”54 She “fe[lt] like people stare[d] 12 at [her] or talk[ed] about [her],” and she once “heard things that were not seeming real.”55 She 13 found changes in routine stressful.56 14 For daily activities, the plaintiff could drive, run errands (such as grocery shopping or going to 15 the post office), and do light housekeeping without assistance.57 She tried to make three or four 16 meals per day, and each meal took her around an hour-and-a-half to prepare.58 Sometimes she 17 would “get stuck in front of the food and have to reme[m]ber [she] was going to eat.”59 She had no 18 problems with personal care.60 She attended daily Alcoholics Anonymous meetings and saw her 19 20 50 AR 237–44, 255–63. 21 51 AR 242–43. 22 52 AR 237. 23 53 AR 238. 54 AR 238, 242. 24 55 AR 244. 25 56 AR 243. 26 57 AR 236. 58 AR 239. 27 59 Id. 1 mom and son every day.61 She shopped for groceries twice a month, could pay bills, and count 2 change. She did not need reminders to take her medicine.62 She could not use a checkbook or 3 handle a savings account.63 4 2.2.2 October 21, 2015 Function Report 5 On October 21, 2015, the plaintiff submitted another function report.64 6 Her symptoms remained similar to those she previously reported. Her medications made her 7 “shaky” and feel “slow.”65 Her anxiety “ma[de] it hard . . . to go out and talk to people” and she 8 had “trouble concentrating and completing tasks.”66 Her anxiety made her mind race, and she still 9 reported paranoia, insomnia, and nightmares.67 She had trouble following written instructions: “I 10 need to re-read thing[s] maybe a dozen times before I understand.”68 For spoken instructions, she 11 often needed people to repeat themselves.69 The plaintiff was taking trazodone, Geodone, and 12 what she described as “nightmare medicine.”70 13 The plaintiff described some new symptoms. She reported waking up “angry and irritable.”71 14 She struggled to wake up on time and had a “very low” appetite, and when she showered, she 15 would turn the water on and off because she felt like someone was talking to her. 72 She was 16 fearful of “crowds, new people, and new places.”73 She avoided people to deal with her stress.74 17
18 61 AR 240. 19 62 AR 239. 20 63 AR 240. 64 AR 255–63. 21 65 AR 255. 22 66 Id. 23 67 AR 256. 68 AR 260. 24 69 Id. 25 70 AR 262. 26 71 AR 256. 72 AR 255–56. 27 73 AR 261. 1 Her reported daily activities were similar to those in her May function report. Chores still took 2 her a “really long” time.75 She was able to leave the house, cook a few meals per day, drive 3 herself, visit her family, manage her own money, and had no issues with personal care.76 4 Unlike her May report, she now needed reminders to take her medicine, and to start and 5 complete chores.77 She also needed reminders on her phone to go places.78 Her mom took her 6 grocery shopping, whereas in May she reported doing so alone.79 This “[took] up to two hours” 7 because she got “distracted by people and tr[ied] to avoid them[;] [her] mom ha[d] to remind [her] 8 what [she was] buying.”80 When she went out, she sometimes needed a roommate to accompany 9 her because of her anxiety.81 The plaintiff could now use a checkbook and handle a savings 10 account.82 Her new hobbies included reading and watching TV.83 Finally, she fed her goldfish 11 “once or twice a week.”84 12 13 3. Administrative Proceedings 14 3.1 Disability Determination Explanation (“DDE”) 15 During the administrative process, non-examining consultants generated disability- 16 determination explanations (“DDE”), first at the initial level, and then at the reconsideration 17 level.85 18 19 20 75 AR 256–57. 21 76 AR 256–59. 22 77 AR 257. 23 78 AR 259. 79 AR 258. 24 80 Id. 25 81 Id. 26 82 Id. 83 AR 259. 27 84 AR 256. 1 At the initial level, Tawnya Brode, PsyD., found that the plaintiff had substance-addiction 2 disorder, a severe impairment.86 Dr. Brode did not assess the plaintiff’s residual-functional 3 capacity (“RFC”) but found that the plaintiff was not disabled.87 4 On reconsideration, Mercedes DeCubas, Ph.D., found that the plaintiff had the following 5 severe impairments: substance addiction disorder, anxiety disorder, and affective disorder.88 6 Dr. DeCubas assessed the plaintiff’s mental RFC.89 The plaintiff was moderately limited in the 7 following areas: (1) ability to understand and remember detailed instructions; (2) ability to carry 8 out detailed instructions; (3) ability to maintain attention and concentration for extended periods; 9 (4) ability to complete a normal workday and workweek without interruptions from 10 psychologically based symptoms and to perform at a consistent pace without an unreasonable 11 number and length of rest periods; (5) ability to interact appropriately with the general public; (6) 12 ability to accept instructions and respond appropriately to criticism from supervisors; and (7) 13 ability to respond appropriately to changes in the work setting.90 14 The plaintiff could understand, remember, and carry out simple instructions, follow a 15 schedule, and sustain goal-directed activity.91 “Timed work or work requiring quotas would not be 16 suitable” for the plaintiff, and that her “[a]ttention [and] concentration could vary throughout the 17 day.”92 Additionally, she “need[ed] a setting with minimal interpersonal demands” and “may be 18 hypersensitive to negative feedback.”93 The plaintiff may “prefer a setting with minimal changes 19 20 21 22 23 86 AR 55. 87 AR 56–57. 24 88 AR 67. 25 89 AR 69–71. 26 90 AR 70–71. 91 AR 69–70. 27 92 AR 70. 1 [or] demands in order to avoid frustration.”94 The agency again found the plaintiff to be not 2 disabled.95 3 3.2 Administrative Hearing 4 The ALJ initially held a hearing on October 4, 2017.96 The plaintiff’s attorney, Raymond 5 Austin, and VE Ron Fleck were present, but not the plaintiff. 97 6 VE Ron Fleck testified at the hearing.98 The plaintiff had no past relevant work.99 The ALJ 7 posed the first hypothetical: “[an] individual of the [c]laimant’s age and education . . . limited to 8 performing simple, routine tasks, limited to occasional interaction with coworkers and the public 9 and limited to simple, work-related decisions.”100 Mr. Fleck testified that such a person could be 10 an almond blancher.101 11 The ALJ posed a second hypothetical, which was the same as the first except that the person 12 was limited to “simple or detailed but non-complex tasks.”102 Mr. Fleck testified that the following 13 jobs would be available: (1) clothing layer; (2) flower-picker; and (3) almond blancher.103 14 The ALJ posed a third hypothetical: “a person . . . limited to simple, routine and repetitive 15 tasks and limited to occasional interaction with the public.”104 Mr. Fleck testified, in addition to 16 the previously mentioned jobs, the following jobs would be available: (1) vegetable-harvest 17 worker; (2) bakery wrapper; and (3) cleaner.105 18
19 94 Id. 20 95 AR 72. 21 96 AR 19. 97 Id. The ALJ held another hearing on March 17, 2018, to allow the plaintiff to appear. The plaintiff 22 again failed to appear. The record does not contain a transcript for the March hearing. Id. 23 98 AR 39–47. 99 AR 40. 24 100 Id. 25 101 AR 41. 26 102 AR 42. 103 AR 42–43. 27 104 AR 43. 1 The ALJ posed a fourth hypothetical where a person had the same limitations listed in the third 2 hypothetical, but was also off-task fifteen percent of the time.106 Mr. Fleck testified that no job 3 would be available to such a person.107 4 3.3 Administrative Findings 5 The ALJ followed the five-step sequential evaluation process to determine whether the 6 plaintiff was disabled and concluded she was not.108 7 At step one, the ALJ found that that the plaintiff had not engaged in substantial gainful activity 8 since her application date of February 20, 2015.109 9 At step two, the ALJ found that the plaintiff had the following severe impairments: mood 10 disorder, PTSD, and substance use disorder.110 11 At step three, the ALJ found that the plaintiff had no impairment or combination of 12 impairments that met or medically equaled the severity of a listed impairment.111 13 Before reaching step four, the ALJ determined that the plaintiff had the RFC to “perform a full 14 range of work at all exertional levels but . . . is limited to performing simple, routine, and 15 repetitive tasks . . . [and] occasional interaction with the public.”112 16 At step four, the ALJ concluded that the plaintiff had no past relevant work.113 17 At step five, the ALJ held that the following jobs were available to the plaintiff given her RFC: 18 (1) vegetable-harvest worker; (2) cleaner; and (3) racker.114 19 The ALJ found the plaintiff to be “not disabled.”115 20
21 106 AR 44–45. 22 107 AR 45. 23 108 AR 30. 109 AR 21. 24 110 Id. 25 111 AR 22. 26 112 AR 24. 113 AR 29. 27 114 AR 29–30. 1 STANDARD OF REVIEW 2 Under 42 U.S.C. § 405(g), district courts have jurisdiction to review any final decision of the 3 Commissioner if the claimant initiates a suit within sixty days of the decision. A court may set 4 aside the Commissioner’s denial of benefits only if the ALJ’s “findings are based on legal error or 5 are not supported by substantial evidence in the record as a whole.” Vasquez v. Astrue, 572 F.3d 6 586, 591 (9th Cir. 2009) (internal citation and quotation marks omitted); 42 U.S.C. § 405(g). 7 “Substantial evidence means more than a mere scintilla but less than a preponderance; it is such 8 relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” 9 Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). The reviewing court should uphold “such 10 inferences and conclusions as the [Commissioner] may reasonably draw from the evidence.” Mark 11 v. Celebrezze, 348 F.2d 289, 293 (9th Cir. 1965). If the evidence in the administrative record 12 supports the ALJ’s decision and a different outcome, the court must defer to the ALJ’s decision 13 and may not substitute its own decision. Tackett v. Apfel, 180 F.3d 1094, 1097–98 (9th Cir. 1999). 14 “Finally, [a court] may not reverse an ALJ’s decision on account of an error that is harmless.” 15 Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). 16 17 GOVERNING LAW 18 A claimant is considered disabled if (1) he suffers from a “medically determinable physical or 19 mental impairment which can be expected to result in death or which has lasted or can be expected 20 to last for a continuous period of not less than twelve months;” and (2) the “impairment or 21 impairments are of such severity that he is not only unable to do his previous work but cannot, 22 considering his age, education, and work experience, engage in any other kind of substantial 23 gainful work which exists in the national economy . . .” 42 U.S.C. § 1382c(a)(3)(A) & (B). The 24 five-step analysis for determining whether a claimant is disabled within the meaning of the Social 25 Security Act is as follows. Tackett, 180 F.3d at 1098–99 (citing 20 C.F.R. § 404.1520). 26 Step One. Is the claimant presently working in a substantially gainful activity? If so, then 27 the claimant is “not disabled” and is not entitled to benefits. If the claimant is not working in a substantially gainful activity, then the claimant’s case cannot be resolved at step one, 1 and the evaluation proceeds to step two. See 20 C.F.R. § 404.1520(a)(4)(i). 2 Step Two. Is the claimant’s impairment (or combination of impairments) severe? If not, 3 the claimant is not disabled. If so, the evaluation proceeds to step three. See 20 C.F.R. § 404.1520(a)(4)(ii). 4 Step Three. Does the impairment “meet or equal” one of a list of specified impairments 5 described in the regulations? If so, the claimant is disabled and is entitled to benefits. If the 6 claimant’s impairment does not meet or equal one of the impairments listed in the regulations, then the case cannot be resolved at step three, and the evaluation proceeds to 7 step four. See 20 C.F.R. § 404.1520(a)(4)(iii).
8 Step Four. Considering the claimant’s RFC, is the claimant able to do any work that he or she has done in the past? If so, then the claimant is not disabled and is not entitled to 9 benefits. If the claimant cannot do any work he or she did in the past, then the case cannot 10 be resolved at step four, and the case proceeds to the fifth and final step. See 20 C.F.R. § 404.1520(a)(4)(iv). 11 Step Five. Considering the claimant’s RFC, age, education, and work experience, is the 12 claimant able to “make an adjustment to other work?” If not, then the claimant is disabled and entitled to benefits. See 20 C.F.R. § 404.1520(a)(4)(v). If the claimant is able to do 13 other work, the Commissioner must establish that there are a significant number of jobs in 14 the national economy that the claimant can do. There are two ways for the Commissioner to show other jobs in significant numbers in the national economy: (1) by the testimony of 15 a vocational expert or (2) by reference to the Medical-Vocational Guidelines at 20 C.F.R., part 404, subpart P, app. 2. 16 17 For steps one through four, the burden of proof is on the claimant. At step five, the burden shifts to 18 the Commissioner. Gonzales v. Sec’y of Health & Human Servs., 784 F.2d 1417, 1419 (9th Cir. 19 1986). 20 21 ANALYSIS 22 The plaintiff contends that the ALJ erred by (1) underweighing the opinion of examining 23 psychologist Paul Martin, Ph.D., (2) overweighing non-examining state consultants’ opinions, and 24 (3) failing to base the plaintiff’s RFC on substantial evidence.116 For the reasons stated below, the 25 court grants the plaintiff’s motion for summary judgment, denies the Commissioner’s cross- 26 motion, and remands the case for further proceedings. 27 1 1. Whether the ALJ Erred in Weighing the Medical-Opinion Evidence 2 The plaintiff contends that the ALJ failed to provide specific and legitimate reasons for 3 according partial weight to examining psychologist Dr. Martin, and great weight to the opinions of 4 non-examining psychologists Drs. Brode and DeCubas.117 The court remands on this ground. 5 The ALJ is responsible for “‘resolving conflicts in medical testimony, and for resolving 6 ambiguities.’” Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014) (quoting Andrews, 53 F.3d 7 at 1039). In weighing and evaluating the evidence, the ALJ must consider the entire case record, 8 including each medical opinion in the record, together with the rest of the relevant evidence. 9 20 C.F.R. § 416.927(b); see Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (“[A] reviewing 10 court must consider the entire record as a whole and may not affirm simply by isolating a specific 11 quantum of supporting evidence.”) (internal quotation marks and citation omitted). 12 “In conjunction with the relevant regulations, [the Ninth Circuit has] developed standards that 13 guide [the] analysis of an ALJ’s weighing of medical evidence.” Ryan v. Comm’r of Soc. Sec., 528 14 F.3d 1194, 1198 (9th Cir. 2008) (citing 20 C.F.R. § 404.1527).118 Social Security regulations 15 distinguish between three types of physicians: (1) treating physicians; (2) examining physicians; 16 and (3) non-examining physicians. 20 C.F.R. § 416.927(c), (e); Lester v. Chater, 81 F.3d 821, 830 17 (9th Cir. 1995). “Generally, a treating physician’s opinion carries more weight than an examining 18 physician’s, and an examining physician’s opinion carries more weight than a reviewing [non- 19 examining] physician’s.” Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001) (citing 20 Lester, 81 F.3d at 830); Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996). 21 An ALJ may disregard the opinion of a treating physician, whether or not controverted. 22 Andrews, 53 F.3d at 1041. “To reject [the] uncontradicted opinion of a treating or examining 23 doctor, an ALJ must state clear and convincing reasons that are supported by substantial 24
25 117 Id. at 8–13. 26 118 The Social Security Administration promulgated new regulations effective March 27, 2017. The previous version, effective to March 26, 2017, applies here. See 20 C.F.R. § 404.614(a) (“[A]n 27 application for benefits, or a written statement, request, or notice is filed on the day it is received by an SSA employee at one of our offices or by an SSA employee who is authorized to receive it at a place 1 evidence.” Ryan, 528 F.3d at 1198 (alteration in original) (cleaned up). By contrast, if the ALJ 2 finds that the opinion of a treating physician is contradicted, a reviewing court will require only 3 that the ALJ provide “specific and legitimate reasons supported by substantial evidence in the 4 record.” Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (cleaned up); see Garrison, 759 5 F.3d at 1012 (“If a treating or examining doctor’s opinion is contradicted by another doctor’s 6 opinion, an ALJ may only reject it by providing specific and legitimate reasons that are supported 7 by substantial evidence.”) (cleaned up). “The opinions of non-treating or non-examining 8 physicians may [] serve as substantial evidence when the opinions are consistent with independent 9 clinical findings or other evidence in the record.” Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 10 2002). 11 An ALJ errs when he “rejects a medical opinion or assigns it little weight” without explanation 12 or without explaining why “another medical opinion is more persuasive, or criticiz[es] it with 13 boilerplate language that fails to offer a substantive basis for his conclusion.” Garrison, 759 F.3d 14 at 1012–13. “[F]actors relevant to evaluating any medical opinion, not limited to the opinion of the 15 treating physician, include the amount of relevant evidence that supports the opinion and the 16 quality of the explanation provided[,] the consistency of the medical opinion with the record as a 17 whole [and] the specialty of the physician providing the opinion . . . ” Orn, 495 F.3d at 631 (citing 18 20 C.F.R. § 404.1527(d)(3)–(6)); see also Magallanes v. Bowen, 881 F.2d 747, 753 (9th Cir. 19 1989) (an ALJ need not agree with everything contained in the medical opinion and can consider 20 some portions less significant than others). 21 1.1 Dr. Martin 22 Because Dr. Martin’s opinion was contradicted by the opinions of the state consultants, the 23 ALJ was required to provide specific and legitimate reasons in partially rejecting Dr. Martin’s 24 opinion. He did not do so. 25 In rejecting Dr. Martin’s findings, the ALJ reasoned that they were “inconsistent with the 26 opinions of the State agency psychological consultants, inconsistent with the claimant’s function 27 1 report, and inconsistent with the medical evidence of record as a whole.” 119 This conclusory 2 statement, with only a string citation to the record and no interpretation of the medical evidence, is 3 insufficient. See, e.g., Cox v. Colvin, No. 15-cv-00190-JSC, 2015 WL 8596436, at *11 (N.D. Cal. 4 Dec. 14, 2015) (“before rejecting a medical opinion an ALJ must do more than merely identify 5 conflicting evidence”) (cleaned up); Cox v. Berryhill, No. C 16-07183 WHA, 2018 WL 1536668, 6 at *4 (N.D. Cal. Mar. 29, 2018) (“reference to 58 pages of treatment notes, without discussion, 7 does not satisfy the ALJ’s burden to set out a detailed and thorough summary of the facts and 8 conflicting clinical evidence, state his interpretation hereof, and make findings”) (cleaned up). 9 Similarly, the ALJ did not explain why the plaintiff’s function reports were inconsistent with 10 Dr. Martin’s opinion. For example, the plaintiff described struggling to wake up on time, having 11 difficulty with concentrating and completing tasks, experiencing anxiety around others, and 12 needing reminders to take her medicine.120 The ALJ did not explain why this is inconsistent with 13 Dr. Martin’s finding of marked limitation in the plaintiff’s ability to complete a normal workday 14 without interruption or deal with the usual stresses in a competitive work environment.121 Cf. 15 Eiswald v. Berryhill, No. 18-cv-03714-LB, 2019 WL 3068339, at *22 (N.D. Cal. July 12, 2019) 16 (the ALJ erred when he failed to “provide more specific details as to why working part-time as a 17 housekeeper . . . is inconsistent with [the doctor’s] report indicating the plaintiff has a market 18 limitation in concentration and stability”). 19 Moreover, the ALJ erred when he found that the opinion was “undermined because the 20 claimant was not forthcoming about her substance abuse, which resulted in Dr. Martin’s not being 21 able to ask the claimant whether her anger and lashing out were related to her methamphetamine 22 use.”122 This mischaracterizes the evidence. Dr. Martin knew about the plaintiff’s past drug use. 23 He reported that the plaintiff used methamphetamine for “about two or three days” and was in a 24 25 26 119 AR 28. 120 AR 255–59. 27 121 AR 370. 1 sober living environment.123 It is thus unclear how the plaintiff was not “forthcoming.” See Dixon 2 v. Saul, 411 F. Supp. 3d 837, 850–51 (N.D. Cal. 2019) (the ALJ erred in rejecting examining 3 physician’s opinion as uninformed regarding the plaintiff’s drug use, where the physician 4 “express[ly]” acknowledged the “past [drug] use and the lack of present use”). 5 In sum, the ALJ did not provide specific and legitimate reasons to discount Dr. Martin’s 6 opinion. 7 1.2 Drs. Brode & DeCubas 8 The ALJ also did not provide specific and legitimate reasons for giving great weight to non- 9 examining psychologists Drs. Brode and DeCubas. 10 The ALJ gave these opinions great weight because: 11 [T]hey are well supported, consistent with the limitations noted in the record, and consistent with the medical records, which showed symptoms of bipolar disorder, 12 posttraumatic stress disorder, mood swings, anxiety, agitation, family conflict, and racing thoughts, but a normal mood, logical thoughts processes, a normal affect, adequate 13 language skills, good eye contact, cooperativeness, normal thought content, orientation times 14 four, alertness, and no delusions, hallucinations, suicidal ideations, or homicidal ideations. Great weight is also given to the opinions of the State agency psychological medical 15 consultants as they are familiar with, and have knowledge of, the criteria used to determine disability under the Social Security Act, and they are familiar with the 16 claimant’s record.124 17 First, to the extent the ALJ found the opinions consistent with the record, he did not discuss 18 other parts of the record that were apparently contradictory. For example, on August 3, 2016, 19 Dr. Hipolito noted that the plaintiff reported that, at night, she “hears someone trying to call [her] 20 attention, but not voices.”125 The ALJ does not reconcile this with his finding that the record 21 shows “no delusions [or] hallucinations.”126 Second, the ALJ’s finding that the consultants’ 22 opinions warranted great weight because they were familiar with the record and the SSA criteria is 23 similarly conclusory and insufficient. Cf. Keelen v. Comm’n of Soc. Sec., No. 19-cv-00461-LB, 24 25 26 123 AR 366. 124 AR 27–28 (internal citations omitted). 27 125 AR 466. 1 2020 WL 1306982, at *14 (N.D. Cal. Mar. 19, 2020) (the ALJ erred in according great weight to a 2 medical expert solely because the expert “had the opportunity to review all of the medical 3 evidence of record and his opinion is consistent with the record as a whole”). 4 In sum, the ALJ erred by failing to provide specific and legitimate reasons in according great 5 weight to the non-examining psychologists.
6 2. Whether the ALJ Erred by Assessing the Plaintiff’s RFC 7 The plaintiff argues that the ALJ erred in his RFC determination because (1) he failed to 8 incorporate limitations reported by Dr. DeCubas, and (2) he improperly discredited the plaintiff’s 9 reported activities of daily living.127 The court remands on this ground too. 10 “[T]he ALJ is responsible for translating and incorporating clinical findings into a succinct 11 RFC.” Rounds v. Comm’r of Social Sec. Admin., 807 F.3d 996, 1006 (9th Cir. 2015); see also 12 Vertigan v. Halter, 260 F.3d 1044, 1049 (9th Cir. 2001) (“it is the responsibility of the ALJ, not 13 the claimant’s physician, to determine residual functional capacity”). The ALJ’s determination of 14 a claimant’s RFC must be based on the medical opinions and the totality of the record. 20 C.F.R. 15 §§ 404.1527(d), 404.1546(c). Moreover, the ALJ is responsible for “‘determining credibility, 16 resolving conflicts in medical testimony, and for resolving ambiguities.’” Garrison, 759 F.3d at 17 1010 (quoting Andrews, 53 F.3d at 1039). In weighing and evaluating the evidence, the ALJ must 18 consider the entire case record, including each medical opinion in the record, together with the rest 19 of the relevant evidence. 20 C.F.R. § 416.927(b); see also Orn, 495 F.3d at 630 (“[A] reviewing 20 court must consider the entire record as a whole and may not affirm simply by isolating a specific 21 quantum of supporting evidence.”) (internal quotation marks and citation omitted). The “ALJ must 22 include all restrictions in the residual functional capacity [RFC] determination.” Lubin v. Comm’r 23 of Soc. Sec. Admin., 507 Fed. Appx. 709, 712 (9th Cir. 2013). 24 First, because the RFC relies on the medical evidence and the ALJ erred in weighing the 25 medical evidence (including the opinion of Dr. DeCubas), the court remands for reconsideration of 26 27 1 the RFC too. 2 Second, the ALJ erred in discrediting the plaintiff based on her reported daily activities.128 3 In assessing a claimant’s credibility, an ALJ must make two determinations. Molina, 674 F.3d 4 at 1112 (9th Cir. 2012). “First, the ALJ must determine whether [the claimant has presented] 5 ‘objective medical evidence of an underlying impairment which could reasonably be expected to 6 produce the pain or other symptoms alleged.’” Id. (quoting Vasquez, 572 F.3d at 591). Second, if 7 the claimant produces that evidence, and “there is no evidence of malingering,” the ALJ must 8 provide “specific, clear and convincing reasons for” rejecting the claimant’s testimony regarding 9 the severity of the claimant’s symptoms. Id. (internal quotation marks and citations omitted). 10 “At the same time, the ALJ is not ‘required to believe every allegation of disabling pain, or 11 else disability benefits would be available for the asking, a result plainly contrary to 42 U.S.C. § 12 423(d)(5)(A).’” Id. (quoting Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)). “Factors that an 13 ALJ may consider in weighing a claimant’s credibility include reputation for truthfulness, 14 inconsistencies in testimony or between testimony and conduct, daily activities, and unexplained, 15 or inadequately explained, failure to seek treatment or follow a prescribed course of treatment.” 16 Orn, 495 F.3d at 636 (internal quotation marks omitted). “The ALJ must identify what testimony 17 is not credible and what evidence undermines the claimant’s complaints.” Burrell v. Colvin, 775 18 F.3d 1133, 1138 (9th Cir. 2014) (internal citation omitted); see, e.g., Morris v. Colvin, No. 16-CV- 19 0674-JSC, 2016 WL 7369300, at *12 (N.D. Cal. Dec. 20, 2016). 20 Because, the ALJ found that the plaintiff’s medically determinable impairments could 21 reasonably be expected to cause the alleged symptoms, and there is no evidence of malingering, 22 the ALJ must provide specific, clear and convincing reasons for rejecting the plaintiff’s 23 statements.129 He did not do so. 24 25
26 128 AR 24–25. The Commissioner argues that the plaintiff failed to raise this argument. She did. The 27 plaintiff’s motion challenges the ALJ’s characterization and reliance on the plaintiff’s self-reported activities of daily living. Mot. – ECF No. 19 at 14–15. 1 “The Social Security Act does not require that claimants be utterly incapacitated to be eligible 2 for benefits, and many home activities may not be easily transferable to a work environment where 3 it might be impossible to rest periodically or take medication.” Fair, 885 F.2d at 603 (citation 4 omitted). The Ninth Circuit has held that “disability claimants should not be penalized for 5 attempting to lead normal lives in the face of their limitations.” Reddick, 157 F.3d at 722. 6 The ALJ rejected the plaintiff’s reported symptoms of her disability because her functions 7 report noted that: 8 [S]he takes care of her goldfish, prepares her own meals, drives a car, cleans the bathroom, goes grocery shopping, pays bills, counts change, handles a savings account, 9 uses a checkbook, reads, watches television, spends time with others, visits with her family on a regular basis, does not need any special reminders to take care of her personal 10 needs and grooming, has never been fired or laid off from a job due to problems with 11 others, goes on Facebook, uses a smartphone, bathes herself, and dresses herself.130 12 The ALJ does not explain, however, how these activities translate to a work setting or why they 13 are incompatible with the plaintiff’s reported limitations. See, e.g., Brown v. Berryhill, No. 16-cv- 14 04022-EMC, 2017 WL 4417516, at *10–12 (N.D. Cal. Oct. 4, 2017) (the ALJ erred when he “did 15 not explain why the[] relatively modest, simple tasks like microwaving meals, preparing salads 16 and soups, carrying light groceries . . . , and walking up to two blocks, provide an indication of 17 [the plaintiff’s] increased capabilities beyond those which [she] claimed”) (cleaned up); Cooper v. 18 Bowen, 815 F.2d 557, 561 (9th Cir. 1987) (“[d]isability does not mean that a claimant must 19 vegetate in a dark room excluded from all forms of human and social activity”) (cleaned up). 20 In sum, the court remands for reconsideration of the RFC. 21 22 3. Whether to Remand for Further Proceedings or Determination of Benefits 23 The court has “discretion to remand a case either for additional evidence and findings or for an 24 award of benefits.” McCartey v. Massanari, 298 F.3d 1072, 1076 (9th Cir. 2002) (citing Smolen, 25 80 F.3d at 1292); McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989) (“The decision whether 26 27 1 to remand for further proceedings or simply to award benefits is within the discretion of [the] 2 court.”) (citing Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1987)). 3 Generally, “‘[i]f additional proceedings can remedy defects in the original administrative 4 || proceeding, a social security case should be remanded.’” Garrison, 759 F.3d at 1019 (quoting 5 Lewin v. Schweiker, 654 F.2d 631, 635 (9th Cir. 1981)) (alteration in original); Treichler, 775 F.3d 6 || at 1099, 1106 (‘a reviewing court is not required to credit claimants’ allegations regarding the 7 || extent of their impairments as true merely because the ALJ made a legal error in discrediting their 8 testimony;” if “the reviewing court simply cannot evaluate the challenged agency action on the 9 || basis of the record before it, the proper course, except in rare circumstances, is to remand to the 10 agency for additional investigation or explanation.”) (citations omitted); see also Dominguez v. ll Colvin, 808 F.3d 403, 407 (9th Cir. 2015) (“Unless the district court concludes that further 12 administrative proceedings would serve no useful purpose, it may not remand with a direction to 5 13 provide benefits.”); McCartey, 298 F.3d at 1076 (remand for award of benefits is discretionary); 14 McAllister, 888 F.2d at 603 (remand for award of benefits is discretionary); Connett, 340 F.3d at 15 876 (finding that a reviewing court has “some flexibility” in deciding whether to remand). 16 Here, the court finds that remand is appropriate to “remedy defects in the original 5 17 administrative proceeding.” Garrison, 759 F.3d at 1019. 18 19 CONCLUSION 20 The court grants the plaintiffs motion, denies the Commissioner’s cross-motion, and remands 21 for further proceedings consistent with this order. 22 23 IT IS SO ORDERED. 24 Dated: September 8, 2020 Lit EC 25 LAUREL BEELER 26 United States Magistrate Judge 27 28