2 UNITED STATES DISTRICT COURT 3 WESTERN DISTRICT OF WASHINGTON AT TACOMA 4 STEVE M., CASE NO. C19-5690 BHS 5 Plaintiff, ORDER REVERSING DENIAL OF 6 v. BENEFITS AND REMANDING FOR FURTHER PROCEEDINGS 7 COMMISSIONER OF SOCIAL SECURITY, 8 Defendant. 9 10 I. BASIC DATA 11 Type of Benefits Sought: 12 ( ) Disability Insurance 13 (X) Supplemental Security Income 14 Plaintiff’s: 15 Sex: Male 16 Age: 41 at the time of alleged disability onset. 17 Principal Disabilities Alleged by Plaintiff: Posttraumatic stress disorder (“PTSD”), 18 schizoaffective disorder, manic depression, bipolar disorder, borderline personality disorder, dyslexia, right shoulder impairment, lower back nerve damage. Admin. Record 19 (“AR”) at 100–01.
20 Disability Allegedly Began: November 7, 2014 21 Principal Previous Work Experience: Abrasive blasting equipment operator and construction worker. 22 1 Education Level Achieved by Plaintiff: GED. 2 II. PROCEDURAL HISTORY—ADMINISTRATIVE
3 Before Administrative Law Judge (“ALJ”) Paul Gaughen: 4 Date of Hearing: March 22, 2018 5 Date of Decision: September 6, 2018 6 Appears in Record at: AR at 16–30 7 Summary of Decision: 8 The claimant has not engaged in substantial gainful activity since April 14, 2016, the application date. See 20 C.F.R. §§ 416.971–76. 9 The claimant has the following severe impairments: Severe 10 musculoskeletal impairments affecting the shoulders bilaterally with impingement syndrome, left sided sciatica, diabetes mellitus II, chronic 11 obstructive pulmonary disease with emphysema component, affective disorder, and substance addiction by history. See 20 C.F.R. § 416.920(c). 12 The claimant does not have an impairment or combination of 13 impairments that meets or medically equals the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. See 20 C.F.R. 14 §§ 416.920(d), 416.925, 416.926.
15 The claimant has the residual functional capacity (“RFC”) to perform light work as defined in 20 C.F.R. § 416.967(b), with exceptions. 16 He cannot engage in vigorous repetitive activity using the right upper extremity, even if only negligible amounts of weight are being handled. He 17 can lift or carry 10 pounds of weight less than occasionally with the right upper extremity overhead. He has no additional restrictions to the left upper 18 extremity. He can understand, remember, and follow as needed to do simple to moderately detailed instructions, with a maximum of about five 19 or six steps to be learned in a ready fashion and applied to work. He can call upon previously acquired information. He needs regular work hours 20 with set breaks, and cannot handle unusual work stressors. He cannot work in a dangerous industrial setting or in unprotected high places. He can 21 engage in routine and perfunctory social interaction needed at work with coworkers, supervisors, and/or customers. He cannot perform work duties 22 needing a higher level or sophisticated social interaction and/or work 1 requiring him to frequently travel to new and unfamiliar places in order to do business. He cannot keep up with fast-paced production demands. 2 The claimant is unable to perform any past relevant work. See 20 3 C.F.R. § 416.965.
4 The claimant was a younger individual (age 18–49) on the date the application was filed. See 20 C.F.R. § 416.963. 5 The claimant has at least a high school education and is able to 6 communicate in English. See 20 C.F.R. § 416.964.
7 Transferability of job skills is not an issue because the claimant does not have past relevant work. See 20 C.F.R. § 416.968. 8 Considering the claimant’s age, education, work experience, and 9 RFC, there are jobs that exist in significant numbers in the national economy that the claimant can perform. See 20 C.F.R. §§ 416.969, 10 416.969(a).
11 Before Appeals Council: 12 Date of Decision: June 24, 2019 13 Appears in Record at: AR at 1–3 14 Summary of Decision: Denied review. 15 III. PROCEDURAL HISTORY—THIS COURT 16 Jurisdiction based upon: 42 U.S.C. § 405(g) 17 Brief on Merits Submitted by (X) Plaintiff (X) Commissioner 18 IV. STANDARD OF REVIEW 19 Pursuant to 42 U.S.C. § 405(g), the Court may set aside the Commissioner’s 20 denial of Social Security benefits when the ALJ’s findings are based on legal error or not 21 supported by substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 22 1211, 1214 n.1 (9th Cir. 2005). “Substantial evidence” is more than a scintilla, less than 1 a preponderance, and is such relevant evidence as a reasonable mind might accept as 2 adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971);
3 Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). The ALJ is responsible for 4 determining credibility, resolving conflicts in medical testimony, and resolving any other 5 ambiguities that might exist. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). 6 While the Court is required to examine the record as a whole, it may neither reweigh the 7 evidence nor substitute its judgment for that of the ALJ. See Thomas v. Barnhart, 278 8 F.3d 947, 954 (9th Cir. 2002). “Where the evidence is susceptible to more than one
9 rational interpretation, one of which supports the ALJ’s decision, the ALJ’s conclusion 10 must be upheld.” Id. 11 V. EVALUATING DISABILITY 12 Plaintiff bears the burden of proving he is disabled within the meaning of the 13 Social Security Act (“Act”). Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999). The
14 Act defines disability as the “inability to engage in any substantial gainful activity” due to 15 a physical or mental impairment which has lasted, or is expected to last, for a continuous 16 period of not less than twelve months. 42 U.S.C. § 1382c(3)(A). A claimant is disabled 17 under the Act only if his impairments are of such severity that he is unable to do his 18 previous work, and cannot, considering his age, education, and work experience, engage
19 in any other substantial gainful activity existing in the national economy. 42 U.S.C. § 20 1382c(3)(B); see also Tackett v. Apfel, 180 F.3d 1094, 1098–99 (9th Cir. 1999). 21 The Commissioner has established a five-step sequential evaluation process for 22 determining whether a claimant is disabled within the meaning of the Act. See 20 C.F.R. 1 § 416.920. The claimant bears the burden of proof during steps one through four. 2 Valentine v. Comm’r of Soc. Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009). At step
3 five, the burden shifts to the Commissioner. Id. 4 VI. ISSUES ON APPEAL 5 A. Whether the ALJ reasonably discounted Plaintiff’s symptom testimony. 6 B. Whether the ALJ reasonably discounted Plaintiff’s girlfriend’s testimony. 7 C. Whether the ALJ reasonably rejected the opinions of examining 8 psychologist Terilee Wingate, Ph.D.
9 D. Whether the ALJ reasonably accounted for the opinions of consulting 10 doctor Jan Lewis, Ph.D. in the RFC. 11 E. Whether the ALJ accounted for all of Plaintiff’s limitations in the RFC. 12 VII. DISCUSSION 13 A. The ALJ Erred in Discounting Plaintiff’s Symptom Testimony
14 Plaintiff argues the ALJ erred in discounting his symptom testimony. Pl. Op. Br., 15 Dkt. 11 at 12–15. Plaintiff focuses his argument on his mental symptom testimony, so the 16 Court will do the same. See id. 17 Plaintiff testified that he has visual and auditory hallucinations. See AR at 51–52, 18 55–56. He testified that he has difficulty focusing and concentrating as a result. See AR
19 at 52, 236. He testified that he has depression which makes it difficult for him to get out 20 of bed in the morning and to consistently take care of his two sons. See AR at 52–54. 21 Plaintiff testified that he has difficulty with public tasks like grocery shopping and has 22 difficulty interacting with others. See AR at 58–59, 241–42. 1 The Ninth Circuit has “established a two-step analysis for determining the extent 2 to which a claimant’s symptom testimony must be credited.” Trevizo v. Berryhill, 871
3 F.3d 664, 678 (9th Cir. 2017). The ALJ must first determine whether the claimant has 4 presented objective medical evidence of an impairment that “‘could reasonably be 5 expected to produce the pain or other symptoms alleged.’” Id. (quoting Garrison v. 6 Colvin, 759 F.3d 995, 1014–15 (9th Cir. 2014)). At this stage, the claimant need only 7 show that the impairment could have caused some degree of the symptoms; he does not 8 have to show that the impairment could reasonably be expected to cause the severity of
9 the symptoms alleged. Id. The ALJ found that Plaintiff met this step because his 10 medically determinable impairments could reasonably be expected to cause the 11 symptoms he alleged. AR at 22. 12 If the claimant satisfies the first step, and there is no evidence of malingering, the 13 ALJ may only reject the claimant’s testimony “‘by offering specific, clear and convincing
14 reasons for doing so. This is not an easy requirement to meet.’” Trevizo, 871 F.3d at 678 15 (quoting Garrison, 759 F.3d at 1014–15). In evaluating the ALJ’s determination at this 16 step, the Court may not substitute its judgment for that of the ALJ. Fair v. Bowen, 885 17 F.2d 597, 604 (9th Cir. 1989). As long as the ALJ’s decision is supported by substantial 18 evidence, it should stand, even if some of the ALJ’s reasons for discrediting a claimant’s
19 testimony fail. See Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001). 20 The ALJ discounted Plaintiff’s mental symptom testimony for two reasons. First, 21 the ALJ found that Plaintiff’s testimony was inconsistent with the overall medical 22 1 evidence. See AR at 24–26. Second, the ALJ found that Plaintiff’s testimony was 2 inconsistent with his activities of daily living. See AR at 26–27.
3 1. Inconsistency with the Medical Evidence 4 The ALJ erred in discounting Plaintiff’s testimony regarding his mental 5 impairments as inconsistent with the objective medical evidence. An ALJ may reject a 6 claimant’s symptom testimony when it is contradicted by the medical evidence. See 7 Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1161 (9th Cir. 2008) (citing 8 Johnson v. Shalala, 60 F.3d 1428, 1434 (9th Cir.1995)). But the ALJ must explain how
9 the medical evidence contradicts the claimant’s testimony. See Dodrill v. Shalala, 12 10 F.3d 915, 918 (9th Cir. 1993). Furthermore, the ALJ “cannot simply pick out a few 11 isolated instances” of medical health that support his conclusion, but must consider those 12 instances in the broader context “with an understanding of the patient’s overall well- 13 being and the nature of [his] symptoms.” Attmore v. Colvin, 827 F.3d 872, 877 (9th Cir.
14 2016). 15 The ALJ pointed to a number of normal medical findings to support his rejection 16 of Plaintiff’s symptom testimony. See AR at 24–26. But those findings do not contradict 17 Plaintiff’s testimony, and many have little to do with Plaintiff’s claimed symptoms. For 18 example, the ALJ noted that Plaintiff had normal speech at several appointments. See
19 AR at 24, 25, 315, 751, 1214. But Plaintiff did not allege problems with speech; he 20 alleged problems with attention and concentration, motivation, and social interaction. 21 See AR at 51–54, 58–59. Similarly, the ALJ referenced Plaintiff’s lack of delusions. See 22 AR at 24–26. But Plaintiff complained of hallucinations, which are distinct from 1 delusions. See Am. Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental 2 Disorders, Appendix C (5th ed. 2013) (“DSM-V”).1 The ALJ did not identify actual
3 inconsistencies between Plaintiff’s claimed symptoms and the objective medical 4 evidence, and thus erred in rejecting Plaintiff’s testimony on this basis. 5 2. Inconsistency with Plaintiff’s Activities of Daily Living 6 The ALJ further erred in discounting Plaintiff’s testimony regarding his mental 7 impairments as inconsistent with Plaintiff’s activities of daily living. An ALJ may reject 8 a plaintiff’s symptom testimony based on his daily activities if they contradict his
9 testimony or “meet the threshold for transferable work skills.” Orn v. Astrue, 495 F.3d 10 625, 639 (9th Cir. 2007) (citing Fair, 885 F.2d at 603). However, “the mere fact that a 11 plaintiff has carried on certain daily activities, such as grocery shopping, driving a car, or 12 limited walking for exercise, does not in any way detract from [his] credibility as to [his] 13 overall disability. One does not need to be ‘utterly incapacitated’ in order to be
14 disabled.” Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001) (quoting Fair, 885 15 F.2d at 603). 16 The ALJ’s discussion of Plaintiff’s daily activities is not convincing. The ALJ 17 noted that Plaintiff “reported no difficulty reading a newspaper and performing basic 18 math.” AR at 26. Plaintiff actually testified that he could read “like at a fifth grade
20 1 The DSM-V defines delusion as “[a] false belief based on incorrect inference about external reality that is firmly sustained despite what almost everyone believes and despite what 21 constitutes incontrovertible and obvious proof or evidence to the contrary.” Id. The DSM-V defines hallucination as “[a] sensory perception that has the compelling sense of reality of a true 22 perception but that occurs without external stimulation of the relevant sensory organ.” Id. 1 level” and could “mostly” read a newspaper. AR at 44. He testified that he could add, 2 subtract, and multiply small numbers, but could not divide. Id. The ALJ noted that
3 Plaintiff can pay bills and count change. AR at 26. The only bill the record establishes 4 that Plaintiff pays is a flat amount to his girlfriend once a month. See AR at 60–61. And 5 Plaintiff needs a calculator to count change. See AR at 44. The ALJ noted that Plaintiff 6 “helps his children with homework.” AR at 26. But the ALJ failed to mention that 7 Plaintiff’s children were around five and seven years old at the time. See AR at 312–13. 8 The ALJ found that Plaintiff could interact with others and visit public places
9 because he could go grocery shopping and spent time with his girlfriend and sons. AR at 10 26–27. That Plaintiff can interact with his girlfriend and sons does not show that he 11 could get along with coworkers, supervisors, or the general public. Nor does the fact that 12 Plaintiff can go to the grocery store contradict his testimony that he struggles to shop 13 successfully. The ALJ misconstrued the evidence and erred in discounting Plaintiff’s
14 testimony regarding his mental impairments based on his activities of daily living. 15 In sum, the ALJ did not provide any clear and convincing reasons for discounting 16 Plaintiff’s symptom testimony regarding his mental impairments. The ALJ thus erred. 17 B. The ALJ Erred in Rejecting Plaintiff’s Girlfriend’s Testimony 18 Plaintiff argues the ALJ erred in rejecting lay witness statements from Plaintiff’s
19 girlfriend. Pl. Op. Br. at 11–12. Plaintiff’s girlfriend reported that Plaintiff is not able to 20 follow written or verbal instructions. See AR at 244, 248, 251. She reported that 21 Plaintiff has difficulty getting along with others. See AR at 248–50. She reported that 22 Plaintiff has visual and auditory hallucinations. AR at 250. 1 The ALJ found that Plaintiff’s girlfriend “largely reiterated [Plaintiff’s] allegations 2 regarding the severity of his impairments.” AR at 22. The ALJ discounted Plaintiff’s
3 girlfriend’s statements because “she is not medically trained to make exacting 4 observations” regarding medical signs and symptoms. AR at 28. The ALJ also 5 discounted Plaintiff’s girlfriend’s statements because, like Plaintiff’s testimony, they 6 were inconsistent with the objective medical evidence. Id. 7 In determining disability, “‘an ALJ must consider lay witness testimony 8 concerning a claimant’s ability to work.’” Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir.
9 2009) (quoting Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1053 (9th Cir. 2006)). 10 The ALJ must “give reasons germane to each witness” before he can reject such lay 11 witness evidence. Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (internal 12 citations and quotation marks omitted). “Further, the reasons ‘germane to each witness’ 13 must be specific.” Bruce, 557 F.3d at 1115 (quoting Stout, 454 F.3d at 1054).
14 The ALJ erred in rejecting Plaintiff’s girlfriend’s testimony based on her lack of 15 medical training. That a lay witness lacks medical training is not a valid reason to reject 16 her testimony. See McCutcheon v. Astrue, 378 F. App’x 649, 651 (9th Cir. 2010). Lay 17 witness testimony is uniquely valuable because these witnesses, unlike doctors, are able 18 to observe the claimant’s symptoms and activities on a daily basis. See Diedrich v.
19 Berryhill, 874 F.3d 634, 640 (9th Cir. 2017) (“The fact that lay testimony and third-party 20 function reports may offer a different perspective than medical records alone is precisely 21 why such evidence is valuable at a hearing.”). 22 1 The ALJ also erred in rejecting Plaintiff’s girlfriend’s testimony as inconsistent 2 with the medical evidence. The ALJ relied on his analysis of the objective medical
3 evidence as it related to Plaintiff’s symptom testimony. See AR at 28. Because, as 4 discussed above, that analysis was flawed, the ALJ erred in relying on it to reject 5 Plaintiff’s girlfriend’s testimony. See supra Part VII.A.1. 6 C. The ALJ Erred in Rejecting Dr. Wingate’s Opinions 7 Plaintiff argues the ALJ erred in rejecting examining psychologist Dr. Wingate’s 8 opinions. Pl. Op. Br. at 3–9. Dr. Wingate examined Plaintiff in April 2016. See AR at
9 312–19. Dr. Wingate conducted a clinical interview, a mental status exam, and several 10 other psychological tests. See id. Dr. Wingate opined that Plaintiff was markedly limited 11 in his ability to understand, remember, and persist in tasks following detailed 12 instructions, perform activities within a schedule, maintain attendance, ask simple 13 questions or request assistance, communicate and perform effectively in a work setting,
14 maintain appropriate behavior in a work setting, and complete a normal work day or 15 week without interruptions from his psychologically-based symptoms. AR at 314. 16 The ALJ gave Dr. Wingate’s opinions little weight. AR at 27. The ALJ reasoned 17 that Dr. Wingate’s opinions were inconsistent with the overall medical evidence and Dr. 18 Wingate’s own examination findings. Id. The ALJ further reasoned that Dr. Wingate
19 largely based her opinions on Plaintiff’s self-reports, which the ALJ had already rejected. 20 AR at 28. The ALJ last determined that Dr. Wingate’s opinions were inconsistent with 21 Plaintiff’s activities of daily living. Id. 22 1 The ALJ must provide “clear and convincing” reasons for rejecting the 2 uncontradicted opinion of a treating or examining physician. Trevizo v. Berryhill, 871
3 F.3d 664, 675 (9th Cir. 2017) (quoting Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 4 (9th Cir. 2008)). When a treating or examining physician’s opinion is contradicted, an 5 ALJ must provide specific and legitimate reasons for rejecting it. Id. In either case, 6 substantial evidence must support the ALJ’s findings. Id. Here, Dr. Wingate’s opinions 7 were contradicted by Dr. Lewis’s opinions, so the specific and legitimate standard 8 applies. See AR at 109–10; see also Moore v. Comm’r of Soc. Sec. Admin., 278 F.3d
9 920, 924 (9th Cir. 2002) (noting that the specific and legitimate standard applies when an 10 examining doctor’s opinions are contradicted by a non-examining doctor). 11 The ALJ erred in rejecting Dr. Wingate’s opinions as inconsistent with the overall 12 medical evidence. The ALJ’s analysis of this issue was the same as his analysis of the 13 medical evidence with respect to Plaintiff’s testimony and was thus equally flawed here.
14 See supra Part VII.A.1. 15 The ALJ also erred in rejecting Dr. Wingate’s opinions as inconsistent with her 16 own examination findings. The ALJ noted that Dr. Wingate found Plaintiff cooperative, 17 with normal speech, orientation, memory, and fund of knowledge. AR at 27. But Dr. 18 Wingate also found that Plaintiff was paranoid and experienced auditory and visual
19 hallucinations. AR at 316. Dr. Wingate found that Plaintiff’s abstract thought, insight, 20 and judgment were all outside normal limits. Id. Dr. Wingate, as the medical 21 professional, was the one best positioned to interpret these normal and abnormal results. 22 See Moghadam v. Colvin, No. C15-2009-TSZ-JPD, 2016 WL 7664487, at *6 (W.D. 1 Wash. Dec. 21, 2016); Schmidt v. Sullivan, 914 F.2d 117, 118 (7th Cir. 1990) (“[ALJs] 2 must be careful not to succumb to the temptation to play doctor. . . . The medical
3 expertise of the Social Security Administration is reflected in regulations; it is not the 4 birthright of the lawyers who apply them. Common sense can mislead; lay intuitions 5 about medical phenomena are often wrong.”) (internal citations omitted). 6 The ALJ next erred in rejecting Dr. Wingate’s opinions for relying too heavily on 7 Plaintiff’s self-reports, which the ALJ had found unreliable. First, the ALJ erred in 8 discounting Plaintiff’s symptom testimony, so he erred in rejecting Dr. Wingate’s
9 opinions for being based on that testimony. See supra Part VII.A. Second, an ALJ 10 generally may not reject an opinion from a psychologist for being too heavily based on 11 the plaintiff’s self-reports when the doctor performs a clinical interview or mental status 12 evaluation because those are objective measures that can separately support the doctor’s 13 opinion. See Buck v. Berryhill, 869 F.3d 1040, 1049 (9th Cir. 2017). Dr. Wingate
14 conducted a clinical interview and mental status exam, as well as other objective 15 measures, so her opinions could not be rejected as too heavily based on Plaintiff’s self- 16 reports. See AR at 312–13, 315–19. 17 The ALJ last erred in rejecting Dr. Wingate’s opinions as inconsistent with 18 Plaintiff’s daily activities. Once again, the ALJ’s analysis here mirrored his analysis with
19 respect to Plaintiff’s testimony. See AR at 26–28. That analysis was flawed with respect 20 to Plaintiff’s testimony and is equally flawed here. See supra Part VII.A.2. The ALJ 21 therefore failed to provide specific and legitimate reasons for rejecting Dr. Wingate’s 22 opinions and consequently erred. 1 D. The ALJ Erred in Accounting for Dr. Lewis’s Opinions 2 Plaintiff argues the ALJ erred in failing to fully account for Dr. Lewis’s opinions
3 in the RFC assessment. Pl. Op. Br. at 9–11. Dr. Lewis reviewed Plaintiff’s records as 4 part of the initial review of Plaintiff’s disability claims. See AR at 104–106, 108–10. Dr. 5 Lewis opined that Plaintiff has the ability to understand and remember simple work tasks 6 and instructions. AR at 109. Dr. Lewis opined that Plaintiff could complete simple work 7 tasks, with occasional waning of attention and concentration, over a 40-hour work week 8 with customary breaks and rest periods. AR at 110. Dr. Lewis opined that Plaintiff can
9 have superficial interaction with coworkers and supervisors, but not with the general 10 public. See id. Finally, Dr. Lewis opined that Plaintiff can complete goals established by 11 others. Id. 12 The ALJ gave Dr. Lewis’s opinions “some weight.” AR at 27. The ALJ noted 13 that Dr. Lewis’s opinions were generally consistent with the overall evidence, but gave
14 Plaintiff “the benefit of the doubt regarding some of his alleged mental limitations” and 15 included greater limitations than Dr. Lewis’s opinions indicated. Id. 16 Plaintiff is correct that the ALJ’s RFC does not line up with Dr. Lewis’s opinions, 17 which—contrary to the ALJ’s statement—were more restrictive than the limitations in 18 the RFC. First, Dr. Lewis reported that Plaintiff could understand and remember “simple
19 work tasks [and] instructions.” AR at 109. The ALJ found that Plaintiff could 20 understand and remember “simple to moderately detailed instructions related to work,” 21 meaning “those which have a maximum of about five or six steps to be learned in a ready 22 1 fashion and applied to work.” AR at 21. Simple instructions are not the same as 2 moderately detailed instructions. The ALJ erred in failing to address this discrepancy.
3 Second, Dr. Lewis opined that Plaintiff could have brief, superficial interactions 4 with coworkers and supervisors, where the general public was not present. See AR at 5 110. The ALJ found that Plaintiff could “engage in routine and perfunctory social 6 interaction needed at work with coworkers, supervisors and/or customers.” AR at 21. 7 The ALJ gave no justification for this difference, and thus erred. 8 Finally, Plaintiff argues that Dr. Lewis reported Plaintiff would have “occasional
9 waning of attention and concentration,” so the ALJ needed to include some limitation for 10 time off-task. See Pl. Op. Br. at 10–11. Plaintiff’s argument fails on this point. 11 Although Dr. Lewis did opine that Plaintiff would occasionally have lower attention and 12 concentration, she also opined that Plaintiff was not significantly limited in his ability to 13 perform activities within a schedule or complete a normal work day and week without
14 interruptions from his psychologically-based symptoms. See AR at 109–10. The obvious 15 inference is that the ALJ interpreted Dr. Lewis’s opinion to mean that any decrease in 16 attention or concentration was not significant enough that Plaintiff would fall below 17 customary workplace tolerances. Cf. Ludwig v. Astrue, 681 F.3d 1047, 1051 (9th Cir. 18 2012) (noting that the ALJ’s findings should be upheld if they are supported by
19 inferences reasonably drawn from the record). Plaintiff has thus failed to show that the 20 ALJ erred in translating Dr. Lewis’s opinion that Plaintiff’s attention and concentration 21 would occasionally wane into an RFC limitation. 22 1 In sum, the ALJ erred by failing to account for Dr. Lewis’s opinions regarding 2 understanding and memory, and social interaction, but did not err in addressing Dr.
3 Lewis’s opinions regarding attention and concentration. 4 E. The ALJ Erred in Assessing Plaintiff’s RFC 5 Plaintiff argues the ALJ failed to account for all of Plaintiff’s limitations in the 6 RFC. Pl. Op. Br. at 15–17. Plaintiff is correct because the ALJ erred in analyzing the 7 evidence and thus failed to account for all of Plaintiff’s limitations in the RFC or 8 hypotheticals to the vocational expert. See supra Part VII.A–D. The RFC was therefore
9 not supported by substantial evidence. See Lingenfelter v. Astrue, 504 F.3d 1028, 1040– 10 41 (9th Cir. 2007) (holding that ALJ’s RFC assessment and step-five determination were 11 not supported by substantial evidence where the ALJ’s RFC and hypotheticals to 12 vocational expert failed to include all of the claimant’s impairments). 13 Plaintiff makes a number of specific arguments about conditions that should have
14 been addressed in the RFC. See Pl. Op. Br. at 15–17. The Court need not address these 15 arguments because the ALJ must craft a new RFC on remand and may address these 16 conditions. 17 F. Scope of Remand 18 Plaintiff asks the Court to remand this matter for an award of benefits. Pl. Op. Br.
19 at 17–18. Remand for an award of benefits “is a rare and prophylactic exception to the 20 well-established ordinary remand rule.” Leon v. Berryhill, 880 F.3d 1041, 1044 (9th Cir. 21 2017). The Ninth Circuit has established a three-step framework for deciding whether a 22 case may be remanded for an award of benefits. Id. at 1045. First, the Court must 1 determine whether the ALJ has failed to provide legally sufficient reasons for rejecting 2 evidence. Id. (citing Garrison, 759 F.3d at 1020). Second, the Court must determine
3 “whether the record has been fully developed, whether there are outstanding issues that 4 must be resolved before a determination of disability can be made, and whether further 5 administrative proceedings would be useful.” Treichler v. Comm’r of Soc. Sec. Admin., 6 775 F.3d 1090, 1101 (9th Cir. 2014) (internal citations and quotation marks omitted). If 7 the first two steps are satisfied, the Court must determine whether, “if the improperly 8 discredited evidence were credited as true, the ALJ would be required to find the
9 claimant disabled on remand.” Garrison, 759 F.3d at 1020. “Even if [the Court] 10 reach[es] the third step and credits [the improperly rejected evidence] as true, it is within 11 the court’s discretion either to make a direct award of benefits or to remand for further 12 proceedings.” Leon, 880 F.3d at 1045 (citing Treichler, 773 F.3d at 1101). 13 The appropriate remedy here is to remand this matter for further administrative
14 proceedings. Conflicts in the evidence remain that the ALJ must resolve, such as 15 differences among Plaintiff’s testimony, his girlfriend’s testimony, Dr. Wingate’s 16 opinions, and Dr. Lewis’s opinions, regarding the limitations caused by Plaintiff’s 17 impairments. See Andrews, 53 F.3d at 1039. Furthermore, the Court is not in a position 18 to translate this evidence into an RFC. See Rounds v. Comm’r Soc. Sec. Admin., 807 F.3d
19 996, 1006 (9th Cir. 2015) (citing Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174 (9th 20 Cir. 2008)) (“[T]he ALJ is responsible for translating and incorporating clinical findings 21 into a succinct RFC.”). 22 1 On remand, the ALJ shall reevaluate Plaintiff’s testimony regarding his mental 2 impairments, Plaintiff’s girlfriend’s testimony, the opinions of Dr. Wingate, and the
3 opinions of Dr. Lewis. The ALJ shall reassess Plaintiff’s RFC, and the step five 4 determination. The ALJ shall conduct all further proceedings necessary to reevaluate the 5 disability determination in light of this opinion. 6 VIII. ORDER 7 Therefore, the Commissioner’s final decision is REVERSED and this case is 8 REMANDED for further administrative proceedings under sentence four of 42 U.S.C. §
9 405(g). 10 Dated this 31st day of March, 2020. A 11 12 BENJAMIN H. SETTLE 13 United States District Judge
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