Mitchell v. Saul

• Court: District Court, N.D. California
• Decided: July 23, 2020
• Docket: 3:19-cv-03249
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 DOROTHY MITCHELL, Case No. 19-cv-03249-JSC

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

10 ANDREW SAUL, Re: Dkt. Nos. 16 & 17 Defendant. 11

12 Plaintiff Dorothy M. seeks social security benefits for a combination of mental and 13 physical impairments, including back problems and posttraumatic stress disorder (“PTSD”). 14 (Administrative Record (“AR”) 251.) Before the Court are Plaintiff’s and Defendant’s motions 15 for summary judgment.1 (Dkt. Nos. 16 & 17.)2 Because the Administrative Law Judge’s 16 (“ALJ’s”) decision does contain reversible error, the Court GRANTS Plaintiff’s motion for 17 summary judgment, DENIES Defendant’s cross motion, and REMANDS for reconsideration 18 consistent with this Order. 19 LEGAL STANDARD 20 A claimant is considered “disabled” under the Social Security Act if she meets two 21 requirements. See 42 U.S.C. § 423(d); Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). 22 First, the claimant must demonstrate “an inability to engage in any substantial gainful activity by 23 reason of any medically determinable physical or mental impairment which can be expected to 24 result in death or which has lasted or can be expected to last for a continuous period of not less 25 than 12 months.” 42 U.S.C. § 423(d)(1)(A). Second, the impairment or impairments must be 26 1 Both parties have consented to the jurisdiction of a magistrate judge pursuant to 28 U.S.C. § 27 636(c). (Dkt. Nos. 8 & 10.) 1 severe enough that she is unable to do her previous work and cannot, based on her age, education, 2 and work experience “engage in any other kind of substantial gainful work which exists in the 3 national economy.” 42 U.S.C. § 423(d)(2)(A). To determine whether a claimant is disabled, an 4 ALJ is required to employ a five-step sequential analysis, examining: (1) whether the claimant is 5 “doing substantial gainful activity”; (2) whether the claimant has a “severe medically determinable 6 physical or mental impairment” or combination of impairments that has lasted for more than 12 7 months; (3) whether the impairment “meets or equals” one of the listings in the regulations; (4) 8 whether, given the claimant’s “residual functional capacity” (“RFC”) the claimant can still do her 9 “past relevant work”; and (5) whether the claimant “can make an adjustment to other work.” 10 Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012); see also 20 C.F.R. §§ 404.1520(a), 11 416.920(a). 12 An ALJ’s “decision to deny benefits will only be disturbed if it is not supported by 13 substantial evidence or it is based on legal error.” Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 14 2005) (internal quotation marks and citation omitted). “Substantial evidence means such relevant 15 evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (internal 16 quotation marks and citation omitted). “Where evidence is susceptible to more than one rational 17 interpretation, it is the ALJ’s conclusion that must be upheld.” Id. In other words, if the record 18 “can reasonably support either affirming or reversing, the reviewing court may not substitute its 19 judgment for that of the Commissioner.” Gutierrez v. Comm’r of Soc. Sec., 740 F.3d 519, 523 20 (9th Cir. 2014) (internal quotation marks and citation omitted). However, “a decision supported 21 by substantial evidence will still be set aside if the ALJ does not apply proper legal standards.” Id. 22 BACKGROUND 23 I. Procedural History 24 Plaintiff applied for disability benefits under Title XVI of the Social Security Act in March 25 2016.3 (AR 240.) The Commissioner denied Plaintiff’s application on initial review in June 2016, 26 3 Plaintiff filed a previous application for disability benefits that was denied by an ALJ in 27 November 2014, and denied by the Appeals Council in February 2016. (See AR 20.) Plaintiff did 1 and on reconsideration. (AR 174-77, 181-87.) Plaintiff then requested an administrative hearing 2 before an ALJ. (AR 188.) The hearing was held on October 17, 2017. (AR 38.) In May 2018, 3 the ALJ issued a decision denying Plaintiff’s application, (AR 17-31), after which Plaintiff 4 requested review by the Appeals Council. The Appeals Council denied Plaintiff’s request. (AR 1- 5 3.) Plaintiff subsequently filed this action for judicial review pursuant to 42 USC §§ 405(g) and 6 1383(c)(3). (Dkt. No. 1.) 7 II. Administrative Record 8 Plaintiff was born on February 10, 1963. (AR 240.) Plaintiff alleges that she has been 9 unable to work since March 14, 2016 because of her disability.4 (AR 41, 77.) She has a 10 bachelor’s degree and was previously employed as an accountant and bookkeeper; she last worked 11 in 2011. (AR 45, 48-50, 1083.) 12 A. Medical Evaluations and Physician Statements 13 1. Opinions of Treating Physician Dr. Trinh 14 On February 14, 2017, Plaintiff was seen by Dr. Denise Trinh in connection with shoulder 15 pain and muscle spasms. (AR 1307.) Plaintiff self-reported that the symptoms caused by her 16 upper back and right shoulder pain were “moderate,” and that symptoms caused by her muscle 17 spasms were “severe” and randomly occurring. (Id.) Further, Plaintiff experienced “several days” 18 of “[d]epression, feeling down, depressed or hopeless,” as well as “back pain, neck pain, [and] 19 muscle cramps.” (AR 1309). 20 On May 17, 2017, Dr. Trinh saw Plaintiff for a breast exam. (AR 1295.) Dr. Trinh noted 21

22 4 Plaintiff’s application for benefits alleges that she has been unable to work since November 5, 2014 due to her disability. (AR 240.) However, at the October 2017 hearing, Plaintiff’s counsel 23 requested to amend the alleged disability onset to the date of Plaintiff’s application—March 14, 2016. (AR 41, 77.) The ALJ’s decision reflects the amendment. (See AR 20 (“Through her 24 attorney at the hearing, the claimant requested to amend her alleged onset date to the date of the application, March 14, 2016.”).) Plaintiff’s motion for summary judgment asserts that she 25 “requested at the hearing that her onset date be amended to November 5, 2014 in light of agency rules.” (See Dkt. No. 16 at 4.) This appears to be in error, however, because Plaintiff’s motion 26 also recognizes that “[t]he ALJ decision under review addressed the period of alleged disability beginning from the amended alleged onset date of March 14, 2016.” (See id. at 5.) Defendant’s 27 briefing does not address this discrepancy. Because an alleged onset date of either November 5, 1 during Plaintiff’s exam that Plaintiff demonstrated a limp on her “right side,” but that Plaintiff’s 2 right foot showed “no swelling,” was “full weight bearing” and required “no assistive device” 3 despite “moderate pain w[ith] motion.” (AR 1297.) Dr. Trinh opined that Plaintiff’s left foot was 4 “normal.” (AR 1297.) 5 When Dr. Trinh saw Plaintiff on June 30, 2017, Dr. Trinh completed a Patient Health 6 Questionnaire in which Plaintiff self-reported as having “[l]ittle interest or pleasure in doing 7 things” and “[f]eeling down, depressed, or hopeless” for several days over the previous two 8 weeks. (AR 1251-52.) Plaintiff reported feeling the same during an examination with Dr. Trinh 9 on September 25, 2017. (AR 1203.) In connection with the September 27, 2017 examination, Dr. 10 Trinh additionally completed an assessment of Plaintiff’s ability to do physical work-related 11 activities. (AR 1100.) In this assessment, Dr. Trinh opined that Plaintiff had chronic PTSD, and 12 “physical pain due to injury, anxiety[.]” (Id.) Dr. Trinh noted that Plaintiff had the ability to lift 13 and carry up to ten pounds for approximately one-third to two-thirds of an eight-hour day; could 14 stand and walk for approximately four hours of an eight-hour day; and could sit for less than two 15 hours during an eight-hour day. (AR 1101.) According to Dr. Trinh, Plaintiff was able to 16 occasionally twist, bend, crouch, and climb stairs or ladders. (AR 1102.) Plaintiff’s abilities to 17 reach, handle, finger, feel, and push or pull objects were not negatively affected by her 18 impairments. (Id.) Dr. Trinh noted that Plaintiff’s PTSD would cause her to be absent less than 19 once a month from work, but that Plaintiff’s impairments would interfere with her ability to 20 concentrate for approximately 50% of the workday. (AR 1104.) 21 Dr. Trinh, together with treating Licensed Clinical Social Worker (“LCSW”) Marike 22 Seemann completed and signed a mental health questionnaire with Plaintiff in September 2017. 23 (AR 1092-1098.) In this questionnaire, Dr. Trinh and Seemann diagnosed Plaintiff with “chronic” 24 PTSD, and noted that Plaintiff had responded “very well to treatment.” (AR 1092.) According to 25 Dr. Trinh and Seemann, Plaintiff’s difficulty sleeping and difficulty managing her low mood 26 “[had] improved but continue[d] to disturb her life.” (Id.) Plaintiff displayed moderate5 to 27 1 marked6 limitations in her abilities to execute work-like procedures, as well as her ability to 2 remember instructions of varying complexity. (AR 1094.) Plaintiff likewise showed moderate to 3 marked limitations in her ability to carry out instructions, perform work on a schedule, or 4 “complete [a] normal workday and workweek uninterrupted by psychologically based 5 symptoms[.]” (AR 1095.) Dr. Trinh and Seemann noted that Plaintiff’s disorder was of “at least 2 6 years’ duration[.]” (AR 1096.) They estimated that Plaintiff would be absent from work 7 approximately four days per month, and would be “off-task” for 30% of an 8-hour work day. (AR 8 1097.) At the time of the questionnaire’s completion, Dr. Trinh and Seemann believed Plaintiff 9 last used drugs or alcohol one year prior. (Id.) 10 2. Consultative Physician Dr. Robert Tang 11 On May 13, 2016, Plaintiff was seen by Dr. Robert Tang, who conducted a physical 12 examination in connection with Plaintiff’s application for benefits. (AR 591.) Dr. Tang noted 13 Plaintiff’s complaints of back pain due to degenerative disc disease and a treatment history that 14 included physical therapy, chiropractic services, and pain medication. (Id.) Plaintiff self-reported 15 that “[s]he is fully able to care for her personal needs[,]” and “can episodically complete house 16 chore duties.” (Id.) Dr. Tang noted that Plaintiff was “able to walk in the exam room without 17 difficulty” and without an assistive device, but that she had “a softer right step.” (AR 592.) 18 Further, Plaintiff could sit comfortably and “get on and off the examination table without any 19 problems.” (Id.) 20 On examination, Plaintiff was “[u]nable to tandem walk” due to her “softer right step/hip” 21 and was “also unable to toe-heel stand.” (Id.) Dr. Tang found full motor strength in all 22 extremities, but “[g]uarded” range of motion in the lumbar region and hip joints. (AR 593.) 23 Straight leg tests were negative. (Id.) Dr. Tang opined that Plaintiff had “some decrease in 24 physical function” due to her back and hip problems, with the following work-related physical 25 limitations: 26

27 1094.) With maximum allowable breaks, the claimant can stand and walk up 1 to six hours. The claimant can sit without limitations. The claimant does not use an assistive device. The claimant can lift and carry up 2 to 20 pounds occasionally and 10 pounds frequently. The claimant is capable of climbing occasionally, balancing occasionally, stooping 3 occasionally, kneeling occasionally, crouching occasionally, and crawling occasionally. The claimant is capable of reaching without 4 limitations, handling without limitations, fingering without limitations, and feeling without limitations. 5 (AR 594.) Dr. Tang concluded that while Plaintiff was limited in her ability to work “at heights,” 6 “around heavy machinery,” and “around dust, fumes, and gasses,” she had no limitations working 7 “around extremes of temperature.” (Id.) Dr. Tang determined that Plaintiff was not limited in her 8 ability to work around chemicals or “excessive noise.” (Id.) 9 3. Evaluation by Physician Dr. Michael Tseng 10 On September 8, 2016, Plaintiff was examined by orthopedic specialist Dr. Michael Tseng 11 in connection with complaints of lumbar pain. (AR 1069.) Dr. Tseng noted Plaintiff’s complaints 12 of “long-standing back and right leg pain,” and treatment history consisting of physical therapy, 13 acupuncture, chiropractic services, and “extensive medication.” (Id.) On examination, Dr. Tseng 14 noted normal gait and no difficulty “[h]eel walking.” (AR 1069) Dr. Tseng found full range of 15 motion in Plaintiff’s spine but noted some pain with motion. (Id.) Dr. Tseng also noted guarded 16 range of motion in the right hip. (Id.) Straight leg tests were negative bilaterally. (Id.) 17 Plaintiff presented “chronic appearing bilateral L5 pars defects.” (AR 1068.) X-rays 18 indicated “[m]oderate L5-S1 disc height narrowing,” and “[l]ikely broad-based L5-S1 disc bulge.” 19 (AR 1070.) Dr. Tseng diagnosed Plaintiff with “unstable L5-S1 isthmic spondylolisthesis” and 20 “[l]ikely spinal stenosis with neurogenic claudication right L5 distribution.” (Id.) Dr. Tseng 21 opined, in pertinent part: 22

23 Her imaging demonstrates unstable L5-S1 isthmic spondylolisthesis. I suspect that there is significant stenosis there. At this point I will 24 obtain MRI of lumbar spine to get a definitive diagnosis. She has failed conservative management to this point includ[ing] physical 25 therapy, chiropractic, acupuncture, medications. She [has] a lot of difficulty walking. I suspect she would be a candidate for L5-S1 26 anterior or posterior spinal fusion. She may also consider epidural steroid injection, however[,] given her significant instability, I suspect 27 that relief from this would be temporary. 1 4. Opinion of Treating Psychologist Dr. Adrian James 2 On November 28, 2016, Plaintiff’s treating psychologist Dr. Adrian James signed a Mental 3 Impairment Questionnaire prepared by treating LCSW Marike Seemann. (AR 1079.) The 4 questionnaire notes that Plaintiff was treated at the West Oakland Health Council for mental health 5 issues ten times since February 2016, and diagnosed with chronic PTSD. (AR 1074.) The 6 questionnaire also notes that Plaintiff received individual and “talk” therapy and been prescribed 7 trazadone and bupropion for her PTSD. (Id.) Further, the questionnaire states that Plaintiff’s 8 PTSD exacerbates her physical symptoms because “isolation leads to decreased mobility [and] 9 increased body pain.” (AR 1076.) 10 LCSW Seemann and Dr. James noted the following “marked” limitations7 in areas of 11 work-related functioning due to Plaintiff’s mental health condition: “[a]bility to remember 12 locations and work-like procedures,” “ability to understand and remember detailed instructions,” 13 “ability to carry out detailed instructions,” “ability to perform activities within a schedule,” 14 “ability to work with or near others without being distracted by them,” “ability to accept 15 instructions and respond appropriately to criticism from supervisors,” “ability to get along with 16 co-workers or peers without distracting them or exhibiting behavioral extremes,” “ability to 17 respond appropriately to changes in the work setting,” and “ability to be aware of normal hazards 18 and take appropriate precautions.” (AR 1076-78.) The questionnaire also noted “marked” 19 limitations based on “[d]ifficulties in maintaining social functioning” and “[d]ifficulties in 20 maintaining concentration, persistence or pace.” (AR 1078.) 21 LCSW Seemann and Dr. James noted “extreme” limitations8 in the “ability to maintain 22 attention and concentration for a two-hour segment,” “ability to complete normal workday and 23 workweek uninterrupted by psychologically based symptoms [and] perform at consistent pace 24 without an unreasonable number/length of rest periods,” and “ability to travel in unfamiliar places 25 or use public transportation.” (AR 1076-77.) The questionnaire also notes that Plaintiff would 26 7 The questionnaire defines a “marked limitation” as one that “would be expected to preclude 27 performance by more than 20% in an 8 hour work day.” (AR 1076.) 1 miss “5 days or more [of work] per month,” and be “precluded from performing her job” at least 2 30% of an 8-hour work day. (AR 1079.) Finally, the questionnaire notes that Plaintiff “has been 3 clean and sober for 6 months and continues to struggle with symptoms of depression and anxiety.” 4 (Id.) 5 5. Opinion of Examining Psychologist Dr. Laura Catlin 6 Dr. Laura Jean Catlin examined Plaintiff on June 29, 2017 and issued a Psychological 7 Disability Evaluation Report in connection with Plaintiff’s application for benefits. (AR 1081- 8 82.) Dr. Catlin conducted a clinical interview, mental status examination, administered tests 9 specific to PTSD and depression, and reviewed Plaintiff’s medical treatment records. (Id.) 10 Plaintiff reported symptoms of “severe anxiety, depression, and PTSD” stemming from a 11 relationship in which she was emotionally and physically abused; the relationship ended in 2015 12 when Plaintiff “moved into a battered women’s shelter.” (AR 1082-83.) Plaintiff also reported 13 “severe back and neck pain” stemming from a motor vehicle accident. (AR 1082-83.) 14 On examination Plaintiff “appeared alert and oriented,” engaged, “and able to sustain her 15 attention.” (AR 1083.) However, Plaintiff “had difficulty maintaining appropriate eye contact,” 16 “appeared nervous[,] and was restless and fidgety in her chair.” (AR 1084.) Plaintiff’s mood and 17 affect were “depressed and anxious.” (Id.) Plaintiff “walked with an adequate gait and sat with an 18 adequate posture.” (Id.) 19 Dr. Catlin opined that Plaintiff’s “concentration was very poor,” and Plaintiff had 20 “impairments in her immediate and delayed memory.” (Id.) According to a neurocognitive exam, 21 Plaintiff’s “Delayed Memory Index” was in the “Low Average” range; overall, however, Dr. 22 Catlin opined that Plaintiff’s exam performance indicated an “ability to learn new information and 23 require[d] some practice and repetition to do so.” (AR 1085.) A separate inventory indicated that 24 Plaintiff was “experiencing many symptoms of PTSD.” (AR 1086.) 25 Dr. Catlin concluded from her assessment that Plaintiff suffered from major depressive 26 disorder, PTSD, alcohol use disorder “in full remission[,]” chronic back pain, and that Plaintiff 27 had “other problems related to employment.” (AR 1087.) “Overall, the claimant’s physical and 1 Catlin opined that Plaintiff displayed marked to extreme impairments in her ability to execute 2 many workplace functions. (AR 1088-1089). Based on this assessment, Dr. Catlin concluded that 3 Plaintiff’s impairments would “cause her to be absent from work more than four days a month[,]” 4 that Plaintiff was “unable to engage in any meaningful employment and would not be able to 5 obtain or retain a job.” (AR 1090.) Dr. Catlin noted that Plaintiff’s condition would persist for at 6 least twelve months after the June 29, 2017 examination. (Id.) 7 6. Non-Examining State Agency Physicians 8 In September 2016, several non-examining state agency physicians reviewed Plaintiff’s 9 medical evidence at the reconsideration level. State agency medical consultant S.M. Niknia, 10 M.D., affirmed a prior state agency physician who determined that, at the reconsideration state, 11 Plaintiff “denie[d] worsening and new impairments.” (AR 159.) Dr. Niknia “reviewed 12 [Plaintiff’s] case and agree[d] with the RFC.” (Id.) That same month, state agency psychological 13 consultant Randall J. Garland, Ph.D., reviewed Plaintiff’s prior assessments and concluded that 14 Plaintiff had a medically determinable impairment. (Id.) However, Dr. Garland noted that “on 15 appeal[,] [Plaintiff] did not allege worsening or new psyc[hological] condition[s]” and adopted the 16 prior assessment regarding Plaintiff’s ability to complete unskilled work. (AR 160; 166.) 17 B. The ALJ’s Decision 18 On May 2, 2018, the ALJ issued a written decision denying Plaintiff’s application and 19 finding that Plaintiff was not disabled within the meaning of the Social Security Act based on the 20 testimony, evidence, and the Social Security Administration’s five-step sequential evaluation 21 process for determining disability. (AR 17.) 22 At step one, the ALJ concluded that Plaintiff had not engaged in substantial gainful activity 23 since March 14, 2016, the date of her disability benefits application. (AR 23.) 24 At step two, the ALJ concluded that the objective medical evidence indicated that 25 Plaintiff’s “degenerative disc disease, polysubstance abuse (alcohol and cocaine) possibly in 26 remission, and cardiomyopathy” constitute “severe impairments.” (Id. (citing 20 C.F.R. § 27 416.920(c)).) The ALJ further determined that Plaintiff’s mental impairments of “PTSD with 1 ability to perform basic work activities.” (AR 23-24.) 2 In evaluating Plaintiff’s mental impairments, the ALJ discussed Plaintiff’s mental health 3 treatment history since her March 2016 application for benefits, and determined that Plaintiff “had 4 a medically determinable mental impairment” but Plaintiff “did not prove that she had any 5 limitations in the ability to understand, remember, or apply information or interact with others.” 6 (AR 24-25 (citing section 12.00C of the Listing of Impairments (20 C.F.R., Part 404, Subpart P, 7 Appendix 1)).) The ALJ further determined that Plaintiff’s treatment history demonstrated only 8 “mild difficulties in the ability to concentrate, persist, or maintain pace and in the ability to adapt 9 or manage oneself.” (AR 25.) Based on these findings, the ALJ concluded that Plaintiff’s 10 “medically determinable mental impairment was not proven to cause more than mild limitations in 11 any of the functional areas,” and was therefore non-severe. (Id. (citing 20 C.F.R. § 12 404.1520a(d)(1)).) 13 At the third step, the ALJ concluded that Plaintiff “does not have an impairment or 14 combination of impairments that meets or medically equals the severity of one of the listed 15 impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1.” (AR 26 (citing 20 C.F.R. §§ 16 416.920(d), 416.925, 416.926).) In reaching that conclusion, the ALJ first considered listing 1.04 17 for Plaintiff’s “lumbar degenerative disc disease,” and found no evidence of: 18 compromise of a nerve root or the spinal cord, with evidence of nerve root compression characterized by neuroanatomic distribution of 19 pain, limitation of motion of the spine, motor loss accompanied by sensory or reflex loss and, if there is involvement of the lower back, 20 positive straight-leg raising test; or spinal arachnoiditis, manifested by severe burning or painful dysesthesia, resulting in the need for 21 changes in position or posture more than once every two hours; or lumbar spinal stenosis resulting in pseudoclaudication, manifested by 22 chronic nonradicular pain and weakness, and resulting in an inability to ambulate effectively. 23 24 (AR 26.) The ALJ noted that although one physician “suspected claudication[,] . . . it was not 25 proven.” (Id.) Further, Plaintiff “consistently was found to have negative straight-leg raising tests 26 and she consistently was found with a normal gait.” (Id.) The ALJ next considered Plaintiff’s 27 “cardiomyopathy within the context of Section 4.00 of the listings but did not find signs and 1 In between steps three and four, the ALJ considered Plaintiff’s RFC and concluded that 2 Plaintiff retained the RFC to perform light work as defined in 20 C.F.R § 416.967(b) (i.e., “lift and 3 carry 10 pounds frequently and 20 pounds occasionally; sit, stand, or walk for six hours each in an 4 eight-hour workday, and push/pull to the same weight limits”). (Id.) The ALJ also noted the 5 following limitations: “she occasionally could balance, stoop, kneel, crouch, and crawl. She 6 occasionally could work at unprotected heights, around moving mechanical parts, and in 7 environments with dust, odors, fumes, and other pulmonary irritants.” (Id.) 8 In making that determination the ALJ found that Plaintiff’s “medically determinable 9 impairments reasonably could be expected to cause the alleged symptoms; however, the 10 claimant’s statements concerning the intensity, persistence and limiting effects of these symptoms 11 are not entirely consistent with the medical evidence and other evidence in the record for the 12 reasons explained in this decision.” (AR 27.) The ALJ discussed Plaintiff’s subjective symptom 13 testimony in relation to the objective medical evidence, including X-rays and physical 14 examination findings, and Plaintiff’s self-reported activities of daily living. (AR 27-30.) 15 As for the medical opinion evidence, the ALJ afforded “great evidentiary weight” to the 16 opinion of Dr. Tang, who found that Plaintiff could perform work at the light level, because his 17 opinion was “the most consistent with the record.” (AR 28-29.) The ALJ further noted that Dr. 18 Tang’s opinion was supported by the examination results from Dr. Tseng. (AR 28 ([Dr. Tseng’s] 19 observation about normal gait, range of motion, and so on are quite similar to those of Dr. Tang 20 and support his conclusions.”).) 21 The ALJ discussed Dr. Trinh’s comments regarding Plaintiff’s impairments. (AR 29 (“Dr. 22 Trinh believed [Plaintiff] could lift and carry 10 pounds, stand and walk for four hours, and sit for 23 less than two hours in an eight-hour workday.”).) “However, [Dr. Trinh] also thought that 24 [Plaintiff’s] symptoms such as pain would interfere with her concentration or pace about 50 25 percent of the workday.” (Id.) Because Dr. Trinh only “occasionally” saw the Plaintiff, and there 26 was “no indication that Dr. Trinh [was] familiar with the Social Security program requirements or 27 that she is a specialist in orthopedic medicine[,]” the ALJ accorded “little weight” to Dr. Trinh’s 1 Based on Plaintiff’s evidence of severe but stable back pain and Dr. Tang’s medical 2 opinion evidence, the ALJ determined that Plaintiff “proved she ha[d] severe impairments that 3 result[ed] in significant functional limitations.” (AR 29.) Because Plaintiff self-reported to Dr. 4 Tang that she could “do volunteer accounting work” and “participate in AA meetings[,]” and had 5 reported that she could take care of other routine tasks, the ALJ determined that Plaintiff’s “daily 6 activities [were] generally consistent with the ability to perform light work[.]” (AR 29-30.) 7 At step four, the ALJ cited the Vocational Expert’s testimony that a hypothetical claimant 8 with Plaintiff’s RFC could perform Plaintiff’s past relevant work as an accounting clerk and 9 bookkeeper. (AR 30.) The ALJ concluded that such work “does not require the performance of 10 work-related activities precluded by [Plaintiff’s RFC],” and Plaintiff was therefore “able to 11 perform past relevant work as actually or generally performed.” (Id.) Thus, the ALJ did not reach 12 step five and determined that Plaintiff “has not been under a disability, defined in the Social 13 Security Act, since March 14, 2016.” (Id. (citing 20 C.F.R. § 416.920(f)).) 14 DISCUSSION 15 The parties dispute whether the ALJ erred in: (1) evaluating the medical opinion evidence; 16 (2) evaluating Plaintiff’s medically determinable impairments at steps two and three; (3) 17 evaluating Plaintiff’s RFC; (4) applying the Medical Vocational Guideline 202.04/202.06; and (5) 18 evaluating the vocational expert’s testimony. 19 I. Medical Opinion Evidence 20 A. Legal Standard 21 In assessing an ALJ’s consideration of the medical opinion evidence, courts “distinguish 22 among the opinions of three types of physicians: (1) those who treat the claimant (treating 23 physicians); (2) those who examine but do not treat the claimant (examining physicians); and (3) 24 those who neither examine nor treat the claimant (nonexamining physicians).” Lester v. Chater, 25 81 F.3d 821, 830 (9th Cir. 1995). “Generally, the opinions of examining physicians are afforded 26 more weight than those of non-examining physicians, and the opinions of examining non-treating 27 physicians are afforded less weight than those of treating physicians.” Orn v. Astrue, 495 F.3d 1 An ALJ may reject the “uncontradicted opinion of a treating or examining doctor” only by 2 stating “clear and convincing reasons that are supported by substantial evidence.” Ryan v. 3 Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) (internal quotation marks and citation 4 omitted). And “[e]ven if the treating doctor’s opinion is contradicted by another doctor, the 5 Commissioner may not reject this opinion without providing ‘specific and legitimate reasons’ 6 supported by substantial evidence in the record for so doing.” Lester, 81 F.3d at 830 (citation 7 omitted). That said, “[w]here the opinion of the claimant’s treating physician is contradicted, and the opinion of a nontreating source is based on independent clinical findings that differ from those 8 of the treating physician, the opinion of the nontreating source may itself be substantial evidence; 9 it is then solely the province of the ALJ to resolve the conflict.” Andrews v. Shalala, 53 F.3d 10 1035, 1041 (9th Cir. 1995); see also Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989) 11 (“[T]o the extent that [the nontreating physician’s] opinion rests on objective clinical tests, it must 12 be viewed as substantial evidence.”) (alterations in original). Likewise, the opinions of 13 nonexamining physicians may “serve as substantial evidence when the opinions are consistent 14 with independent clinical findings or other evidence in the record.” Thomas v. Barnhart, 278 F.3d 15 947, 957 (9th Cir. 2002). 16 “The ALJ need not accept the opinion of any physician, including a treating physician, if 17 that opinion is brief, conclusory, and inadequately supported by clinical findings.” Id. Ultimately, 18 “[t]he ALJ must do more than offer his conclusions” when rejecting a medical opinion; instead, 19 she “must set forth his own interpretations and explain why they, rather than the doctors’, are 20 correct.” Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988). Thus, “an ALJ errs when he 21 rejects a medical opinion or assigns it little weight while doing nothing more than ignoring it, 22 asserting without explanation that another medical opinion is more persuasive, or criticizing it 23 with boilerplate language that fails to offer a substantive basis for his conclusion.” Garrison v. 24 Colvin, 759 F.3d 995, 1012-13 (9th Cir. 2014). Plaintiff asserts that the ALJ erred in evaluating the opinions of Dr. Trinh, Dr. James, and 25 Dr. Catlin. 26 // 27 1 B. The ALJ’s Analysis 2 1. Opinions of Dr. Trinh 3 The ALJ gave “little weight” to the opinion of Dr. Trinh, Plaintiff’s treating physician, 4 regarding Plaintiff’s physical medical issues. (AR 28-29.) Similarly, the ALJ assigned “little 5 evidentiary weight” to a mental health questionnaire Dr. Trinh signed regarding Plaintiff’s PTSD 6 and the work-related limitations it imposed. (AR 25.) 7 Dr. Trinh’s opinions regarding Plaintiff’s physical medical issues were contradicted by 8 other medical opinion evidence offered by Dr. Tang and Dr. Tseng, namely that Plaintiff had a 9 “negative (normal) straight leg raising test,” “normal motor strength,” and that her “heel walking 10 was normal.” (AR 25.) Accordingly, the ALJ was required to provide “‘specific and legitimate 11 reasons’ supported by substantial evidence in the record” for discounting Dr. Trinh’s opinions 12 regarding Plaintiff’s physical medical issues. See Lester, 81 F.3d at 830 (citation omitted). As is 13 explained below, the ALJ did so. 14 Dr. Trinh’s opinions regarding Plaintiff’s mental health and PTSD were contradicted by 15 other evidence, namely inconsistences in Plaintiff’s treatment history and the opinion of state 16 agency reviewing psychologist Randall J. Garland, Ph.D., that Plaintiff could perform “simple, 17 repetitive work.” (AR 24-25; 160.) However, as explained below, the ALJ did not provide 18 “‘specific and legitimate reasons’ supported by substantial evidence in the record’ for assigning 19 Dr. Trinh’s opinions regarding Plaintiff’s mental health and PTSD “little evidentiary weight.” See 20 Lester, 81 F.3d at 830 (citation omitted). 21 a. Dr. Trinh’s Physical Assessment 22 The ALJ discounted Dr. Trinh’s September 27, 2017 medical source statement because it 23 was contradicted by the opinions of Dr. Tang and Dr. Tseng. The ALJ noted Dr. Trinh’s belief 24 that Plaintiff could “sit for less than two hours in an eight-hour workday” and would need to 25 “alternate sitting with standing every 15 minutes” was contradicted by Dr. Tang’s determination 26 that Plaintiff could “sit, stand, or walk for six hours each in an eight-hour workday[.]” (AR 28- 27 29.) Dr. Trinh’s opinion regarding Plaintiff’s back injury and limited ability to walk was further 1 raising test” and “normal motor strength,” and Dr. Tseng’s opinion that Plaintiff’s “heel walking 2 was normal.” (AR 28-29.) 3 Dr. Tang formed his opinion after conducting a physical examination of Plaintiff, and 4 found she could stand and walk up to six hours. (AR 591; 594). When “the opinion of the 5 claimant’s treatment physician is contradicted, and the opinion of the nontreating source is based 6 on clinical findings that differ from those of the treating physician, the opinion of the nontreating 7 source may itself be substantial evidence; it is then solely the province of the ALJ to resolve the 8 conflict.” Andrews v. Shalala, 53 F.3d at 1041. While Dr. Tseng opined that Plaintiff had 9 “difficulty walking,” he additionally noted that her straight leg tests were negative bilaterally, she 10 had a normal gait, and that her “heel walking was normal.” (AR 1069-1070.) Additionally, the 11 ALJ noted that Dr. Tseng observed Plaintiff’s “[r]ange of motion of the lumbar spine was 12 normal[.]” (AR 29.) For these reasons the ALJ found that Dr. Tseng’s medical opinions 13 supported those of Dr. Tang. See Thomas, 278 F.3d at 947 (stating that the opinions of 14 nonexamining physicians may “serve as substantial evidence when the opinions are consistent 15 with independent clinical findings or other evidence in the record.”). 16 Because Dr. Tang formed his opinions regarding Plaintiff’s physical medical issues after 17 conducting independent clinical examinations, and his opinion is consistent with other evidence in 18 the record, his opinion constitutes substantial evidence. The ALJ determined that Dr. Tang’s 19 opinion regarding Plaintiff’s physical medical issues was “consistent with the clinical signs 20 observed in his examination of the claimant” as well as “those observed by Dr. Tseng,” and 21 subsequently discounted Dr. Trinh’s opinion that Plaintiff could not sit for longer than two hours 22 and “would need to alternate sitting with standing every 15 minutes[.]” (AR 29.) This constitutes 23 a “specific and legitimate reason” for discounting Dr. Trinh’s opinion. See Lester, 81 F.3d at 830 24 (citation omitted). Therefore, the ALJ did not commit legal error in assigning “little weight” to 25 Dr. Trinh’s medical opinion regarding Plaintiff’s physical medical issues. 26 b. Dr. Trinh’s Mental Assessment 27 On September 25, 2017, Dr. Trinh completed a mental health questionnaire regarding 1 opinions in the questionnaire that Plaintiff suffered “moderate” to “marked” work-related 2 functional limitations for three main reasons. (AR 24-25.) First, Dr. Trinh’s opinions regarding 3 Plaintiff’s functional limitations were discounted because Dr. Trinh inconsistently noted in the 4 questionnaire that Plaintiff had responded “very well to treatment.” (AR 1092.) Second, the ALJ 5 noted Plaintiff’s treatment notes from West Oakland Health Counsel demonstrated her symptoms 6 had been improving, and that this improvement contradicted Dr. Trinh’s opinions in the 7 questionnaire regarding Plaintiff’s mental health. (AR 24.) Third, Randall J. Garland, Ph.D., 8 stated that Plaintiff could perform “simple, repetitive work,” which the ALJ held contradicted Dr. 9 Trinh’s opinion in the questionnaire that Plaintiff had “moderate” to “marked” functional 10 limitations in her ability to complete work-related tasks. (AR 24-25; 1094-1097.) 11 The ALJ found the inconsistencies in Dr. Trinh’s mental health questionnaire presented a 12 basis for assigning Dr. Trinh’s opinions in the questionnaire “little evidentiary weight.” (AR 25.) 13 However, a treating physician’s “statements must be read in context of the overall diagnostic 14 picture [she] draws.” Holohan v. Massanari, 246 F.3d 1195, 1205 (9th Cir. 2001). “That a 15 [Plaintiff] . . . makes some improvement does not mean that the person's impairments no longer 16 seriously affect her ability to function in a workplace.” Id. Dr. Trinh noted that Plaintiff was 17 responding well to treatment in the September 25, 2017 questionnaire, but also noted that: 18 Plaintiff’s PTSD symptoms “continue to disturb her life;” Plaintiff had “moderate” to “marked” 19 work-related functional limitations; Plaintiff’s impairments would cause her to be absent from 20 work “about 4 days per month;” and that while at work Plaintiff’s limitations would cause her to 21 be “off-task” for “[m]ore than 30%” of “an 8-hour work day.” (1092-1097.) Thus, the ALJ failed 22 to consider Dr. Trinh’s “overall diagnostic picture” and the work-related functional limitations it 23 articulated. See Holohan, 246 F.3d at 1205. 24 Similarly, the ALJ selected various treatment notes from Plaintiff’s psychotherapy visits at 25 West Oakland Health Counsel that state she at certain dates felt “more in control and less 26 forgetful,” and that some treatment notes “indicat[ed] that the [Plaintiff] had been doing well” and 27 “had made new friends at school.” (AR 24.) In September 2017, Plaintiff reported “feeling stable 1 Where an ALJ is “selective in his reliance” on treatment notes that reject a physician’s 2 opinion concerning “the scope of a [Plaintiff’s] limitations,” the plaintiff’s argument that an ALJ 3 “committed legal error . . . has merit.” Holohan, 246 F.3d at 1205. Furthermore, Dr. Trinh’s 4 treatment notes throughout Plaintiff’s treatment at West Oakland Health Counsel are consistent 5 with her opinion in the September 25, 2017 questionnaire. On June 30, 2017, Dr. Trinh noted that 6 Plaintiff had been bothered for “several days” during the previous two weeks by “feeling down, 7 depressed or hopeless” and having “little interest or pleasure in doing things.” (AR 1251-52.) 8 While Plaintiff’s treatment notes from August and September 2017 indicate she was “doing very 9 well in school” and began to feel stable, Dr. Trinh’s September 25, 2017 treatment notes state that 10 Plaintiff was “feeling down, depressed or hopeless (several days), [and had] [l]ittle interest or 11 pleasure in doing things (several days).” (AR 24; 1202-03.) In June 2016, LCSW Seemann 12 described Plaintiff’s “[symptoms] of PTSD” as “ongoing.” (AR 959.) Therefore, there is 13 evidence that the results of Dr. Trinh’s questionnaire are consistent with Plaintiff’s treatment notes 14 from West Oakland Health Counsel. 15 Defendant’s insistence that the ALJ properly adopted Dr. Garland’s administrative medical 16 finding that Plaintiff could complete simple work tasks over Dr. Trinh’s opinion that Plaintiff had 17 “moderate” to “marked” functional limitations in her ability to complete work-related tasks is not 18 persuasive. (AR 1094-1097.) The ALJ actually rejected Dr. Garland’s opinion (which adopted 19 the opinion of Judge Lisewski) that Plaintiff suffered severe mental impairments. (AR 24.) It 20 follows then that Dr. Garland’s report cannot satisfy the ALJ’s burden to provide “specific, 21 legitimate reasons” for crediting the opinions of non-examining psychologists over treating 22 physicians. See Nguyen v. Chater, 100 F.3d 1462, 1464-1465 (9th Cir. 1996). 23 2. Opinions of Dr. James 24 In affording little weight to Dr. James’s November 28, 2016 mental health questionnaire, 25 which addressed Plaintiff’s PTSD and functional limitations, the ALJ noted that the opinion 26 expressed in Dr. James’s questionnaire was “not consistent with the treatment records and can be 27 assigned no evidentiary weight.” (AR 25.) The ALJ’s determination to assign Dr. James’s 1 prior medical records from West Oakland Health Counsel do not provide “specific and legitimate 2 reasons” for rejecting Dr. James’s medical opinion as Plaintiff’s treating psychologist. See Lester, 3 81 F.3d at 830 (citation omitted). 4 Dr. James’s questionnaire stated Plaintiff suffered marked limitations in many areas of 5 work-related functioning, including the “[a]bility to remember locations and work-like 6 procedures[.]” (AR 1076.) Dr. James noted extreme limitations in Plaintiff’s “ability to maintain 7 attention and concentration for a two-hour segment,” as well as in Plaintiff’s “ability to complete 8 [a] normal workday and workweek uninterrupted by psychologically based symptoms [and] 9 perform at consistent pace without an unreasonable number/length of rest periods[.]” (AR 1076- 10 77.) Dr. James further noted that Plaintiff would miss “5 days or more [of work] per month,” and 11 be “precluded from performing her job” at least 30% of an 8-hour work day. (AR 1079.) 12 Select evidence of Plaintiff’s psychotherapy visits to West Oakland Health Counsel does 13 not provide specific or legitimate reasons for rejecting Dr. James’s assessment. The ALJ 14 emphasized Plaintiff’s June 9, 2016 treatment notes, which state Plaintiff was in a “better [and] 15 more stable mood.” (AR 957.) However, the ALJ conceded that during this same medical 16 appointment “[t]here was some evidence [Plaintiff] continued to have some PTSD-type 17 symptoms, such as fear issues and frightening dreams.” (AR 24.) Therefore, despite a notation 18 regarding Plaintiff’s improved mood, Plaintiff’s June 9, 2016 treatment notes support rather than 19 refute Dr. James’s opinion that Plaintiff’s PTSD presented functional limitations. The ALJ 20 additionally cites treatment notes from September 19, 2017, “near the end of [Plaintiff’s] therapy,” 21 as evidence of Plaintiff’s stability and good mood. (AR 24.) These notes retain Plaintiff’s 22 diagnosis with “Post-traumatic stress disorder, chronic.” (AR 1208.) During a September 26, 23 2017 medical appointment, Plaintiff’s treatment notes indicate that she was “feeling down, 24 depressed or hopeless (several days), [with] [l]ittle interest or pleasure in doing things (several 25 days).” (AR 1203). 26 While Plaintiff may have been “doing very well in school,” (AR 1231), this progress on its 27 own is insufficient to accord Dr. James’s medical opinion no evidentiary weight. Further, as the 1 accord Dr. James’s medical opinion regarding her work-related functional limitations no weight. 2 Therefore, Plaintiff’s treatment notes from June 2016 to approximately September 2017 do not 3 offer specific or legitimate reasons for the ALJ rejecting entirely Dr. James’s medical opinion. 4 3. Opinions of Dr. Catlin 5 On June 29, 2017, Dr. Laura Catlin, Psy.D., examined Plaintiff. (AR 1081.) On June 30, 6 2017, Dr. Catlin prepared a psychological evaluation report regarding Plaintiff’s examination. 7 (AR 1081.) The ALJ noted that in her report, Dr. Catlin assessed Plaintiff as having “marked to 8 extreme impairments in all aspects of work-related activity.” (AR 25.) Because Dr. Catlin’s 9 assessment was “not supported by her own observations and [was] at odds with treatment records” 10 from West Oakland Health Counsel “showing [Plaintiff] was doing well,” the ALJ assigned “no 11 weight” to Dr. Catlin’s medical opinion. (AR 25; 1081.) 12 The ALJ correctly determined that Dr. Catlin’s assessment was at odds with Plaintiff’s 13 treatment records. While Plaintiff’s treatment records provide support for treating physician Dr. 14 Trinh’s determination that Plaintiff held moderate to marked work-related functional impairments 15 as a result of her mental health and PTSD, they do not provide support for the opinion of Dr. 16 Catlin, a non-treating physician, that Plaintiff suffered marked to extreme functional impairments. 17 (AR 1088-90.) See Orn, 495 F.3d at 631 (“[T]he opinions of examining non-treating physicians 18 are afforded less weight than those of treating physicians.”). This heightened characterization of 19 Plaintiff’s functional limitations is without “substantial support from the primary treating records.” 20 (AR 25.) “The ALJ need not accept the opinion of any physician . . . if the opinion is brief, 21 conclusory, and inadequately supported by clinical findings.” Thomas, 278 F.3d at 957. Because 22 Dr. Catlin’s opinion is not adequately supported by clinical findings, the ALJ committed no legal 23 error by discounting Dr. Catlin’s assessment because of Plaintiff’s conflicting treatment records. 24 II. Medically Determinable Impairments 25 A. The ALJ’s Step Two Analysis 26 At the second step, the ALJ has to determine whether the claimant has a “severe medically 27 determinable physical or mental impairment” or combination of impairments that has lasted for 1 a “de minimis screening device to dispose of groundless claims.” Smolen v. Chater, 80 F.3d at 2 1290. “An impairment or combination of impairments can be found not severe only if the 3 evidence establishes a slight abnormality that has no more than a minimal effect on an individual’s 4 ability to work.” Id. (internal quotation marks and citations omitted). 5 The ALJ found that Plaintiff had a “medically determinable mental impairment,” but that 6 Plaintiff’s mental impairment failed to meet any criteria “set out in the disability regulations for 7 evaluating mental disorders[.]” (AR 25.) Given that the ALJ erred in devaluing the medical 8 opinions of Dr. Trinh and Dr. James, the ALJ was also incorrect in failing to consider the severity 9 of Plaintiff’s PTSD. As the step two inquiry is intended to be a “de minimis screening device to 10 dispose of groundless claims,” the ALJ erred in not considering the substantial evidence relating to 11 Plaintiff’s PTSD. Smolen, 80 F.3d at 1290. 12 B. The ALJ’s Step Three Analysis 13 1. Listing 1.04 14 Plaintiff also argues that the ALJ erred in finding Plaintiff does “not have an impairment or 15 combination of impairments that meets or medically equals the severity of one of the listed 16 impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1.” (AR 26 (citing 20 C.F.R. §§ 17 416.920(d), 416.925, 416.926).) “If a claimant has an impairment or combination of impairments 18 that meets or equals a condition outlined in the ‘Listing of Impairments,’ then the claimant is 19 presumed disabled at step three, and the ALJ need not make any specific finding as to his or her 20 ability to perform past relevant work or any other jobs.” Lewis v. Apfel, 236 F.3d 503, 512 (9th 21 Cir. 2001) (citing 20 C.F.R. § 404.1520(d)). “To equal a listed impairment, a claimant must 22 establish symptoms, signs and laboratory findings at least equal in severity and duration to the 23 characteristics of a relevant listed impairment, or, if a claimant’s impairment is not listed, then to 24 the listed impairment most like the claimant’s impairment.” Tackett, 180 F.3d at 1099 (internal 25 quotations omitted) (emphasis removed); 20 C.F.R. § 404.1526. 26 The ALJ’s conclusion that Plaintiff’s “lumbar degenerative disc disease” did not meet the 27 requirements of Listing 1.04 relied in part on Dr. Tseng’s “suspected” but “not proven” 1 some pain with motion. (AR 1069.) Furthermore, Plaintiff’s straight leg tests were negative 2 bilaterally. (Id.) Dr. Tseng further determined that, while Plaintiff had “difficulty walking,” she 3 had a normal gait, and that her “heel walking was normal.” (AR 1069-1070.) Therefore, medical 4 evidence properly sustains the ALJ’s finding that Plaintiff did not meet the requirements in Listing 5 1.04. The ALJ did not commit legal error in concluding Plaintiff did not have “signs or symptoms 6 consistent with those requirements.” (AR 26.) 7 2. Listings 12.04, 12.05, 12.06, and 12.15 8 The ALJ summarily found that Plaintiff did not meet the requirements for the “four broad 9 areas of mental functioning set out in the disability regulations for evaluating mental disorders[.]” 10 (AR 25.) Because the ALJ neglected to consider the opinions of Dr. Trinh and Dr. James 11 regarding Plaintiff’s mental health and PTSD, it follows that the ALJ failed to properly evaluate 12 the medical evidence in determining that Plaintiff did not suffer any impairment under these 13 Listings. Similarly, the ALJ failed to provide any evidentiary support for the conclusion that 14 Plaintiff failed to prove “she had any limitations in the ability to understand, remember, or apply 15 information or interact with others; and she demonstrated mild difficulties in the ability to 16 concentrate, persist, or maintain pace and in the ability to adapt or manage oneself.” (AR 25.) For 17 these reasons, the ALJ committed legal error in his evaluation of Plaintiff under these Listings. 18 III. Plaintiff’s Residual Functional Capacity 19 The “Medical-Vocational Guidelines” of the Social Security regulations define RFC as 20 “the maximum degree to which the individual retains the capacity for sustained performance of the 21 physical-mental requirements of jobs.” 20 C.F.R. pt. 404, subpt. P, app. 2, § 200.00(c). It is 22 essentially a determination of what the claimant can still do despite her physical, mental, and other 23 limitations. See 20 C.F.R. § 404.1545(a). “In determining a claimant’s RFC, an ALJ must consider 24 all relevant evidence in the record, including, inter alia, medical records, lay evidence, and the 25 effects of symptoms, including pain, that are reasonably attributed to a medically determinable 26 impairment.” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006) (internal citations 27 and quotation marks omitted). 1 The ALJ found that Plaintiff had the “residual functional capacity to perform light work[.]” 2 (AR 26.) The RFC determination cannot be sustained on this record because it fails to consider 3 the opinions of Dr. Trinh and Dr. James regarding Plaintiff’s PTSD and the work-related 4 limitations it imposed. 5 Plaintiff self-reported an ability to do certain activities, such as “prepare[] simple meals,” 6 “shop[] twice a month for two to three hours,” and “watch[] television,” and told Dr. Tang she 7 could do “volunteer accounting work at her transitional living residence and participate in AA 8 meetings.” (AR 29-30.) The inconsistences related to Plaintiff’s self-reported activities, however, 9 do not undermine the opinions of Dr. Trinh and Dr. James that Plaintiff suffered marked 10 limitations in her ability to complete work-related activities, and that her PTSD-related symptoms 11 would “preclude[] [Plaintiff] from performing her job” at least 30% of an 8-hour day. (AR 1079.) 12 Because the ALJ failed to consider this relevant evidence in determining Plaintiff’s RFC, 13 the ALJ committed legal error. 14 IV. Vocational Expert’s Testimony 15 The ALJ was required to address all of Plaintiff’s limitations, including her limitations in 16 concentration, persistence and pace in the RFC and hypothetical to the vocational expert. See 17 Magallanes v. Bowen, F. 2d 747, 756 (9th Cir. 1989); 20 C.F.R. § 416.945; see also Lubin v. 18 Comm’n of Social Sec. Admin., 507 Fed. Appx. 709, 712 (9th Cir. Feb. 8, 2013) (“The ALJ must 19 include all restrictions in the residual functional capacity determination and the hypothetical 20 question posed to the vocational expert, including moderate limitations in concentration, 21 persistence, or pace.”). The ALJ, however, failed to do so. (AR 70-74.) The ALJ’s questions 22 emphasized Plaintiff’s physical abilities and ambulation. (Id.) While the ALJ asked hypothetical 23 questions regarding an individual who cannot “perform tasks which demand concentration on 24 details” and would “occasionally isolate . . . from [coworkers],” these may not fully and accurately 25 reflect Plaintiff’s limitations given the ALJ’s failure to properly weigh the opinions of Dr. Trinh 26 and Dr. James. See Hill v. Astrue, 698 F. 3d 1153, 1162 (9th Cir. 2012) (“If a vocational expert’s 27 hypothetical does not reflect all of the limitations, then the expert’s testimony has no evidentiary 1 However, upon examination by Plaintiff’s attorney, the VE testified that a hypothetical individual 2 suffering from difficulties in concentration, persistence, and pace, as well as an “inability to 3 remember instructions 15 percent of the time,” would have had their past work been made 4 “unavailable.” (AR 74-75.) 5 In sum, the ALJ erred by not posing a hypothetical to the VE that considered Plaintiff’s 6 full limitations. Notably, however, the VE indicated that these limitations would “prevent [an] 7 individual from performing past work.” (AR 75.) Taking the VE’s answers to hypothetical 8 questions that accurately reflect Plaintiff’s limitations, the ALJ should have applied the Medical- 9 Vocational Guideline 202.04/202.06 because Plaintiff was not capable of performing past work. 10 See 20 C.F.R. Pt. 404, Subpt. P, App. 2, § 200.00(a) (stating the Medical Vocational Guidelines 11 apply in cases where an “individual’s impairment(s) prevents the performance of his or her 12 vocationally relevant past work.”). 13 V. Remand 14 The Court now addresses the question of whether to remand this case to the SSA for 15 further administrative proceedings or with instructions to award benefits. A district court may 16 “revers[e] the decision of the Commissioner of Social Security, with or without remanding the 17 cause for a rehearing,” Treichler v. Comm'r of Soc. Sec. Admin., 775 F.3d 1090, 1099 (9th Cir. 18 2014) (citing 42 U.S.C. § 405(g)) (alteration in original), but “the proper course, except in rare 19 circumstances, is to remand to the agency for additional investigation or explanation.” Id. 20 (citation omitted). 21 A district court is precluded from “remanding a case for an award of benefits unless certain 22 prerequisites are met." Dominguez v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015) (internal citations 23 and quotations omitted). “The district court must first determine that the ALJ made a legal error, 24 such as failing to provide legally sufficient reasons for rejecting evidence.” Id. (citation omitted). 25 “If the court finds such an error, it must next review the record as a whole and determine whether 26 it is fully developed, is free from conflicts and ambiguities, and all essential factual issues have 27 been resolved.” Id. (internal quotation marks and citation omitted). Where the record has been so 1 rejected, in the context of the otherwise undisputed record, and determine whether the ALJ would 2 necessarily have to conclude that the claimant were disabled if that testimony or opinion were 3 deemed true.” Id. If the answer is yes, “the district court may exercise its discretion to remand the 4 case for an award of benefits.” Id. Each part of this three-part standard must be satisfied for the 5 court to remand for an award of benefits. Id. “It is the ‘unusual case’ that meets this standard.” 6 Williams v. Colvin, 24 F. Supp. 3d 901, 919 (N.D. Cal. 2014) (citation omitted). 7 Notably, district courts retain “‘flexibility’ in determining the appropriate remedy[.]” 8 Burrell v. Colvin, 775 F.3d 1133, 1141 (9th Cir. 2014) (quoting Garrison, 759 F.3d at 1021). 9 Specifically, the court “may remand on an open record for further proceedings when the record as 10 a whole creates serious doubt as to whether the claimant is, in fact, disabled within the meaning of 11 the Social Security Act.” Id. (internal quotation and citation omitted). In addition, “[i]f additional 12 proceedings can remedy defects in the original administrative proceedings,” the case should be 13 remanded. Lewin v. Schweiker, 654 F.2d 631, 635 (9th Cir. 1981). 14 Applying these principles here, the Court’s concludes the ALJ erred in: discrediting the 15 medical opinion evidence of Dr. Trinh and Dr. James without specific or legitimate reasons; not 16 fully considering medical opinion evidence of Plaintiff’s PTSD when evaluating whether she had 17 a severe medically determinable mental or physical impairment; failing to properly evaluate 18 medical opinion evidence in determining that Plaintiff did not satisfy the limitations under Listings 19 12.04, 12.05, 12.06, and 12.15; failing to consider relevant evidence in determining Plaintiff’s 20 RFC; and not addressing all of Plaintiff’s limitations with the VE. These errors meet the threshold 21 requirement of legal error. 22 The next question is whether the record has been fully developed and further 23 administrative proceedings would serve no useful purpose. See Dominguez, 808 F.3d at 407 24 (“Unless the district court concludes that further administrative proceedings would serve no useful 25 purpose, it may not remand with a direction to provide benefits.”). Here, Drs. Trinh and James, 26 whose opinions the ALJ erred in discrediting, both opined that Plaintiff had work-related and 27 psychologically-based functional limitations that would cause her to be “off-task” for at least or 1 the question of Plaintiffs exact disability status, as there are some inconsistencies between the 2 || opinions of Drs. Trinh and James and how nonetheless Dr. Trinh stated in Plaintiff's September 3 || 2017 mental health questionnaire that she was responding “very well to treatment” for her PTSD, 4 and that treatment notes dated August 8, 2017 from West Oakland Health Counsel state Plaintiff 5 || was doing “very well in school.” (AR 1092; 1231-32.) While the ALJ erroneously did not 6 || consider Dr. Trinh’s “overall diagnostic picture” of Plaintiff's mental health, see Holohan, 246 7 F.3d at 1205, these are two such “inconsistencies, conflicts, or gaps in the record[,]” Dominguez, 8 808 F.3d at 410, that further administrative proceedings could address and for which they would 9 serve a useful purpose. Accordingly, the Court does not proceed to the next question of whether 10 || the ALJ would be required to find Plaintiff disabled if the treating physicians’ opinions were taken 11 as true. Jd. The Court will therefore remand this case to the ALJ for further proceedings rather 12 || than payment of benefits. 13 CONCLUSION 14 For the reasons set forth above, the Court GRANTS Plaintiff's motion for summary 3 15 || judgment, DENIES Defendant’s cross-motion, and REMANDS for reconsideration consistent a 16 || with this Order. 3 17 This Order disposes of Docket Nos. 16 and 17. 18 IT IS SO ORDERED. 19 Dated: July 23, 2020 20 , 21 JACQUELINE SCOTT CORWEY 22 United States Magistrate Judge 23 24 25 26 27 28