1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 LAKONNIE M.,1 Case No.: 22cv985-LR
12 Plaintiff, ORDER REGARDING JOINT 13 v. MOTION FOR JUDICIAL REVIEW
14 KILOLO KIJAKAZI, Acting [ECF No. 19] Commissioner of Social Security, 15 Defendant. 16 17 18 On July 6, 2022, Lakonnie M. (“Plaintiff”) filed a Complaint pursuant to 42 U.S.C. 19 § 405(g) seeking judicial review of a decision by the Commissioner of Social Security 20 (“Defendant”) denying Plaintiff’s application for social security disability benefits. (ECF 21 No. 1.) Now pending before the Court is the parties’ “Joint Motion for Judicial Review” 22 seeking judicial review (“Joint Motion”). (ECF No. 19 (“J. Mot.”).) For the reasons 23 discussed below, the final decision of the Commissioner is REVERSED, and the case is 24 REMANDED for further proceedings. 25
26 1 Pursuant to Civil Local Rule 7.1(e)(6)(b), the Court’s opinions in Social Security cases filed under 27 42 U.S.C. § 405(g) “refer to any non-government parties by using only their first name and last initial.”
28 1 I. PROCEDURAL BACKGROUND 2 On February 6, 2020, Plaintiff filed an application for social security disability 3 benefits under Title II of the Social Security Act (the “Act”), alleging disability beginning 4 February 5, 2020.2 (ECF No. 13 (“AR”)3 at 15, 151.) After her application was denied 5 initially and upon reconsideration, (id. at 15, 86–89, 93–98), Plaintiff requested an 6 administrative hearing before an administrative law judge (“ALJ”), (id. at 99–100). An 7 administrative hearing was held on May 13, 2021. (Id. at 29–47, 117, 136.) Plaintiff 8 appeared at the hearing with counsel, and testimony was taken from her and a vocational 9 expert (“VE”). (Id. at 29–47.) 10 As reflected in his July 9, 2021 hearing decision, the ALJ found that Plaintiff had 11 not been under a disability, as defined in the Act, from February 5, 2020, through the date 12 of the decision. (Id. at 16, 23–24.) The ALJ’s decision became the final decision of the 13 Commissioner on May 31, 2022, when the Appeals Council denied Plaintiff’s request for 14 review. (Id. at 1–6.) This timely civil action followed. (See ECF No. 1.) 15 II. SUMMARY OF THE ALJ’S FINDINGS 16 The ALJ followed the Commissioner’s five-step sequential evaluation process. 17 See 20 C.F.R. § 404.1520. At step one, the ALJ found that Plaintiff had not engaged in 18 substantial gainful activity since the alleged onset date. (AR at 17.) At step two, the ALJ 19 determined that Plaintiff had the following severe impairments: “ear pain with vertigo; 20 migraine headaches; hearing loss: generally mild per testing at Family Health Center.” 21
22 2 The ALJ’s written decisions and the parties’ Joint Motion list February 6, 2020, as the date when 23 Plaintiff filed her application for social security disability benefits, and February 5, 2020, as the alleged disability onset date. (AR at 15; J. Mot. at 2 (citing AR at 151–57).) The referenced application, 24 however, lists February 24, 2020, as the application date and disability onset date. (AR at 151; see also 25 id. at 150.)
26 3 “AR” refers to the Administrative Record filed on September 27, 2022. (ECF No. 13.) The Court’s citations to the AR in this Order are to the page numbers listed on the original document rather than the 27 page numbers designated by the Court’s Case Management/Electronic Case Filing System (“CM/ECF”). For all other documents, the Court’s citations are to the page numbers affixed by CM/ECF. 28 1 (Id.) At step three, the ALJ found that Plaintiff did not have an impairment or 2 combination of impairments that met or medically equaled the severity of one of the 3 impairments listed in the Commissioner’s Listing of Impairments. (Id. at 19.) 4 Next, the ALJ determined that Plaintiff had the residual functional capacity 5 (“RFC”) to “perform light work as defined in 20 CFR 404.1567(b) except limited to 6 occasional postural activity, except no climbing of ladders or scaffolds; no exposure to 7 hazards such as dangerous moving machinery and unprotected heights; and no work in 8 environments with excessive noise or environments requiring fine hearing.” (Id.) 9 At step four, the ALJ determined that Plaintiff was capable of performing her past 10 relevant work as a cytotechnologist. (Id. at 23.) The ALJ then found that Plaintiff was 11 not disabled. (Id.) 12 III. DISPUTED ISSUE 13 As reflected in the parties’ Joint Motion, Plaintiff is raising the following issue as 14 the ground for reversal and remand—whether the ALJ properly considered the evidence 15 of mental impairment affecting Plaintiff’s ability to perform past skilled work. (J. Mot. at 16 6.) 17 IV. STANDARD OF REVIEW 18 Section 405(g) of the Social Security Act allows unsuccessful applicants to seek 19 judicial review of the Commissioner’s final decision. 42 U.S.C. § 405(g). The scope of 20 judicial review is limited, and the denial of benefits will not be disturbed if it is supported 21 by substantial evidence in the record and contains no legal error. See id.; Buck v. 22 Berryhill, 869 F.3d 1040, 1048 (9th Cir. 2017). “Substantial evidence means more than a 23 mere scintilla, but less than a preponderance. It means such relevant evidence as a 24 reasonable mind might accept as adequate to support a conclusion.” Revels v. Berryhill, 25 874 F.3d 648, 654 (9th Cir. 2017) (quoting Desrosiers v. Sec’y Health & Hum. Servs., 26 846 F.2d 573, 576 (9th Cir. 1988)). In determining whether the Commissioner’s decision 27 is supported by substantial evidence, a reviewing court “must assess the entire record, 28 weighing the evidence both supporting and detracting from the agency’s conclusion,” 1 and “may not reweigh the evidence or substitute [its] judgment for that of the ALJ.” 2 Ahearn v. Saul, 988 F.3d 1111, 1115 (9th Cir. 2021). Where the evidence can be 3 interpreted in more than one way, the court must uphold the ALJ’s decision. Id. at 1115– 4 16; Attmore v. Colvin, 827 F.3d 872, 875 (9th Cir. 2016). The Court may consider “only 5 the reasons provided by the ALJ in the disability determination and may not affirm the 6 ALJ on a ground upon which [he or she] did not rely.” Revels, 874 F.3d at 654 (internal 7 quotation omitted). 8 V. DISCUSSION 9 A. Parties’ Arguments 10 Plaintiff argues that the ALJ did not properly consider the evidence of mental 11 impairment affecting Plaintiff’s ability to perform past skilled work. (See J. Mot. at 6–9.) 12 First, Plaintiff contends that her mental impairment is medically determinable, contrary to 13 the ALJ’s determination that medical records did not support a finding of depression as a 14 medically determinable impairment. (See id. at 6–7; see also AR at 18.) Plaintiff asserts 15 that state agency medical consultants, Karen Ying, M.D. and Ellen Rozenfeld, Psy.D., 16 described Plaintiff’s depressive, bipolar, and related disorders as “medically 17 determinable,” and found that Plaintiff had mild limitations in adapting or managing 18 herself. (J. Mot. at 6–7 (citing AR at 63–64, 79–80).) Plaintiff further asserts that the 19 ALJ improperly concluded that because he did not assess greater than mild limitations in 20 the four “B” criteria, Plaintiff’s mental impairment was not “severe.” (J. Mot. at 6 (citing 21 AR at 19).) Plaintiff alleges that “severe” addresses the capacity to engage in basic work 22 activities, and the ALJ failed to “consider the non-severe impairments as a combined 23 effect on the ability to engage in either past work or other work.” (J. Mot. at 6.) Second, 24 Plaintiff maintains that her mental impartment affects her ability to perform past skilled 25 work as a cytotechnologist. (Id. at 7–9.) 26 Defendant argues that the ALJ property found that Plaintiff did not have a severe 27 medically determinable mental impairment. (Id. at 10–15.) Defendant asserts that there 28 was insufficient evidence to establish depression as a medically determinable 1 impairment. (Id. at 10.) Defendant maintains that while Dr. Ying found the presence of a 2 medically determinable impairment in considering Listing 12.04 (Depressive, Bipolar, 3 and Related Disorders), “it is unclear what MDI she found was present.” (Id. (citing AR 4 at 63).) Defendant also contends that Dr. Rozenfeld’s findings were based on a treatment 5 record from a Keegan Wood, N.P.4 who diagnosed Plaintiff with “major depressive 6 disorder, recurrent, mild.” (J. Mot. at 6 (citing AR at 80, 1267).) Defendant further 7 argues that a diagnosis from an acceptable medical source alone is not sufficient to 8 establish a medically determinable impairment, and a claimant is required to establish a 9 medically determinable impairment with objective medical evidence. (J. Mot. at 10–11.) 10 Additionally, Defendant asserts that even if the ALJ erred, the error was harmless 11 because Plaintiff’s “mental-status examinations, activities of daily living, observed 12 capabilities, own account of her capabilities, and the medical opinions established, at 13 most, mild mental limitations that did not result in any significant deficits.” (Id. at 11 14 (citing AR at 18–19).) 15 Plaintiff replies that the ALJ incorrectly concluded that Plaintiff did not have a 16 medically determinable impairment because Plaintiff’s depression was not severe. (J. 17 Mot. at 15–16.) Plaintiff asserts that “medically determinable” and “severe” represent 18 two different findings at step two of the sequential evaluation process. (Id. at 16.) 19 Plaintiff contents that the ALJ committed a reversible error. (Id. at 9, 17.) 20 21 22
23 4 Defendant claims that the record does not establish whether Mr. Wood was an acceptable medical 24 source qualified to offer a diagnosis because Mr. Wood is a Nurse Practitioner. (See J. Mot. at 10–11.) 25 The ALJ, however, did not discuss whether Keegan Wood, N.P. was an acceptable source under the regulations in his written opinion. (See AR at 15–24.) The Court can only assess the reasoning the ALJ 26 provided in his decision. See Revels, 874. F.3d at 654 (stating that a court may consider “only the reasons provided by the ALJ in the disability determination and may not affirm the ALJ on a ground 27 upon which [he or she] did not rely”). Further, as discussed in detail in this Order, Plaintiff’s medical records also contain diagnoses of depression and bipolar disorder by several Medical Doctors. 28 1 B. Relevant Medical Records and Testimony During Plaintiff’s 2 Administrative Hearing 3 1. Plaintiff’s depression and bipolar disorder diagnoses 4 Plaintiff’s medical records document her reported history of depression dating 5 back to 2000. (See AR at 830 (containing appointment notes from Keegan Wood N.P. 6 stating that Plaintiff reported that her depression started in 2000), 1222 (same), 1242 7 (same), 1265 (same).) Further, the records contain evidence of a possible depression 8 diagnosis on April 4, 2008, although they do not list the name of the medical provider 9 who made such diagnosis. (Id. at 917 (containing appointment notes from Dr. Hann 10 dated March 25, 2021, listing “Depression 4/4/2008” on Plaintiff’s “Problem List”), 1095 11 (same).) 12 Notably, Plaintiff’s medical records also contain depression diagnosis by Dr. 13 Kevin Neil Antonio on February 1, 2013. (Id. at 288.)5 Additionally, appointment notes 14 from Brian Jackson, N.P. dated May 1, 2020, state that Plaintiff complained of anxiety 15 and depression, and list “[m]ajor depressive disorder, single episode, unspecified (status 16 Active)” and “[m]ental disorder, not otherwise specified (status Active).” (Id. at 548–49, 17 552.) Further, notes from Dr. Talal Alquraini dated May 5, 2020, state that Plaintiff had 18 “abnormal mood/affect noted” and her mood was “depressed, worried.” (Id. at 555–57.) 19 Additionally, treatment notes from Dr. Havon Knight show that Plaintiff was 20 diagnosed with bipolar disorder and prescribed medication to treat the disorder. (See id. 21 at 1289–98.) On March 22, 2021, Plaintiff reported to Dr. Knight “having a Bipolar 22 Disorder initially diagnosed years ago,” Dr. Knight listed bipolar disorder as a chronic 23 diagnosis, and prescribed Quetiapine Fumarate (i.e., Seroquel) to treat Plaintiff’s bipolar 24 disorder. (Id. at 1295, 1297.) Dr. Knight’s March 24, 2021 note states the following 25
26 5 The Court notes that the Administrative Record does not contain Dr. Antonio’s February 1, 2013, 27 appointment notes, (see AR), but the depression diagnosis, the physician’s name (Dr. Kevin Neil Antonio), and the date of the diagnosis (February 1, 2013) are listed under “Active Problems” on Sharp 28 1 regarding Plaintiff’s bipolar disorder treatment: “Currently on Prozac 20 mg daily. States 2 she is still having a lot of difficulty sleeping. Pharmacy to deliver Seroquel 25 mg QHS 3 today.” (Id. at 1294.) Finally, on March 31, 2021, Dr. Knight stated in his notes 4 “Continue Prozac 20 mg daily and Seroquel 25 mg QHS. F/U with psychiatry as 5 scheduled. F/U with me in 4 weeks.” (Id. at 1290.) 6 2. Plaintiff’s Prescription of Fluoxetine6 7 Plaintiff reported taking Fluoxetine to treat depression in her Disability Report. 8 (Id. at 205, 232.) Plaintiff’s medical records also indicate that she was prescribed 9 Fluoxetine to treat bipolar disorder. (Id. at 1290, 1296–97.) Keegan Wood, N.P., 10 conducted four separate psychiatric evaluations of Plaintiff on May 19, August 18, 11 September 18, and December 1, 2020, (see id. at 830–33, 1222–25, 1242–45, 1265–68), 12 and stated in his appointment notes that Plaintiff “was placed on Prozac that treated 13 depression well,” (id. at 830, 1222, 1242, 1265). Additionally, Fluoxetine was listed as 14 Plaintiff’s “current” medication in Sharp Rees-Stealy Medical Group’s appointment notes 15 dated November 24, 2013. (Id. at 286, 289.) Metro Mission Valley initially prescribed 16 Plaintiff with Fluoxetine on April 7, 2014, and subsequently ordered refills seven times 17 through August 12, 2019. (Id. at 232.) Sharp Rees-Stealy Medical Group continued to 18 list Fluoxetine as a “current” medication for Plaintiff through 2020. (See id. at 408, 410, 19 420, 430, 483–84, 500.) 20 Further, Patrick Armstrong, M.D. identified Fluoxetine as one of Plaintiff’s 21 “active” medications on February 18, and June 18, 2019. (Id. at 445, 449, 453). Notes 22 from Kamen Zakov, M.D. also list Fluoxetine as one of Plaintiff’s “active” medications 23 on March 26, and March 31, 2020. (Id. at 538, 542.) On August 3, 2020, ENT 24 25 26 6 Fluoxetine is an antidepressant, which is also known under the brand name Prosac. See Hermiz v. 27 Berryhill, Case No.: 3:18-cv-01035-BEN(KSC), 2019 WL 3780271, at *3 n.3 (S.D. Cal. Aug. 9, 2019); Humphreys v. Astrue, No. 12–cv–328–W(PCL), 2014 WL 1255889, at *4 (S.D. Cal. Mar. 24, 2014). 28 1 Associates of San Diego noted that Keegan Wood, N.P., prescribed Fluoxetine on 2 February 19, 2020. (See id. at 682, 690.) Further, Dr. Knight’s March 31, 2021, note 3 stated that Plaintiff continued to take Fluoxetine, as well as the Quetiapine prescribed to 4 treat her bipolar disorder. (Id. at 1289–90.) Finally, records from Dr. Riley Anderson 5 dated April 7, 2021, list Fluoxetine as one of Plaintiff’s “current” medications. (Id. at 6 962.) 7 3. State Medical Consultants’ Opinions 8 On June 19, 2020, state agency medical consultant, Karen Ying, M.D., reviewed 9 Plaintiff’s medical records and filled out a “Medically Determinable Impairment and 10 Severity” form. (Id. at 64.) She stated that Plaintiff had a medically determinable 11 impairment, listed “Depressive, Bipolar and Related Disorders” as one of Plaintiff’s 12 impairments, and opined that the impairment was not severe. (Id.) Dr. Ying listed 13 “12.04-Depressive, Bipolar, and Related Disorders” under “‘B’ Criteria of the Listings,” 14 and opined that Plaintiff did not have any limitations in her ability to understand, 15 remember, or apply information, interact with others, and concentrate, persist, or 16 maintain pace. (Id.) Dr. Ying further opined that Plaintiff had mild limitations in her 17 ability to adapt or manage herself. (Id.) 18 On October 7, 2020, on reconsideration, state agency medical consultant, Ellen 19 Rozenfeld, Psy.D., opined that Plaintiff had a medically determinable impairment, listed 20 “Depressive, Bipolar and Related Disorders” as one of Plaintiff’s impairments, and stated 21 that the impairment was not severe. (Id. at 79–80.) Dr. Rozenfeld agreed with all of Dr. 22 Ying’s findings. (Id.) 23 4. Testimony during Plaintiff’s administrative hearing 24 During Plaintiff’s May 13, 2021 administrative hearing, Plaintiff’s attorney cited 25 “major depression” as Plaintiff’s diagnosis at the beginning of the hearing, and reiterated 26 at the end of the hearing that Plaintiff had been diagnosed with major depression. (Id. at 27 32, 47 (citing id. at 552).) The ALJ did not discuss or question Plaintiff regarding 28 depression or bipolar disorder during the administrative hearing. (See id. at 29–47.) 1 C. The ALJ’s Evaluation of Plaintiff’s Mental Impairments at Step Two of 2 the Sequential Evaluation Process 3 1. Applicable law 4 At step two of the sequential evaluation process, the Social Security 5 Administration (“SSA”) considers the medical severity of the claimant’s impairment. 20 6 C.F.R. § 404.1520(a)(4)(ii). To establish that a medically determinable impairment is 7 “severe,” the claimant must show that it “significantly limits [her] physical or mental 8 ability to do basic work activities.” 20 C.F.R. § 404.1520(c). “Basic work activities” 9 include physical functions such as walking, standing, sitting, lifting, pushing, pulling, 10 reaching, carrying, or handling; seeing, hearing, and speaking; understanding, carrying 11 out, and remembering simple instructions; use of judgment; responding appropriately to 12 supervision, co-workers, and usual work situations; and dealing with changes in a routine 13 work setting. 20 C.F.R. § 404.1522(b). 14 The ALJ is required to “follow a special technique” at step two in evaluating the 15 severity of the claimant’s mental impairment. 20 C.F.R. § 404.1520a(a). First, the ALJ 16 assesses the claimant’s “pertinent symptoms, signs, and laboratory findings” to determine 17 whether a medically determinable mental impairment is present. 20 C.F.R. 18 § 404.1520a(b)(1). Second, if the claimant has a medically determinable mental 19 impairment, the ALJ must “rate the degree of functional limitation resulting from the 20 impairment(s)” for four broad functional areas: (1) understanding, remembering, or 21 applying information; (2) interacting with others; (3) concentrating, persisting, or 22 maintaining pace; and (4) adapting or managing oneself. 20 C.F.R. § 404.1520a(b)(2), 23 (c)(3). These four functional areas are known as the “paragraph B criteria” due to how 24 they are categorized in the listings. See 20 C.F.R. Part 404, Subpart P, Appendix 1. 25 The degree of limitation for each of these categories are rated on the following 26 scale: none, mild, moderate, marked, and extreme. 20 C.F.R. § 404.1520a(c)(4). If the 27 degrees of limitation are rated as “none” or “mild,” the ALJ typically concludes that the 28 impairment is not severe, unless the evidence otherwise indicates that there is more than a 1 minimal limitation in the claimant’s ability to do basic work activities. 20 C.F.R. 2 § 404.1520a(d)(1). The ALJ’s written decision must incorporate the pertinent findings 3 and conclusions, and “must show the significant history, including examination and 4 laboratory findings, and the functional limitations that were considered in reaching a 5 conclusion about the severity of the mental impairment(s).” 20 C.F.R. § 404.1520a(e)(4). 6 The inquiry at step two of the sequential evaluation process is a “de minimis 7 screening device” to screen for groundless claims. Edlund v. Massanari, 253 F.3d 1152, 8 1158 (9th Cir. 2001) (“We have defined the step-two inquiry as ‘a de minimis screening 9 device to dispose of groundless claims.’”). The ALJ must consider the “combined effect 10 of all of the claimant’s impairments” on the claimant’s ability to function “without regard 11 to whether each [impairment] alone was sufficiently severe.” Id. at 1159. For purposes 12 of step two of the sequential evaluation process, “[a]n impairment or combination of 13 impairments may be found ‘not severe only if the evidence establishes a slight 14 abnormality that has no more than a minimal effect on an individual’s ability to work.’” 15 Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005) (internal citation omitted) (emphasis 16 in original). 17 2. Analysis 18 a. The ALJ improperly assessed Plaintiff’s mental health 19 impairment(s) at step two of the sequential evaluation process. 20 The ALJ first stated in his written decision that although there was “reference in 21 the record to depression,” there was “insufficient support in the record to find depression 22 as a medically determinable impairment.” (AR at 18 (citing id. at 552).) The ALJ then 23 stated that in making this finding, he had “considered the broad functional areas of 24 mental functioning set out in the disability regulations for evaluating mental disorders 25 and in the Listing of Impairments,” also known as “Paragraph B” criteria. (Id. at 18.) 26 With respect to the first functional area of understanding, remembering or applying 27 information, the ALJ found that Plaintiff had no limitation. (Id.) The ALJ noted that the 28 record demonstrated that Plaintiff could follow one- or two-step instructions to carry out 1 a task. (Id.) The ALJ further stated that Plaintiff was able to give background 2 information regarding her work and medical history at her administrative hearing, and 3 appropriately respond to questions. (Id.) The ALJ then stated that Plaintiff reported in 4 her Function Report that she could follow written instructions “very well” and spoken 5 instructions “well, if understood.” (Id. (citing id. at 243).) Additionally, the ALJ cited 6 Mr. Wood’s December 1, 2020 mental status examination, which found “linear content 7 [sic]7 and normal thought content.” (Id. at 18 (citing id. at 1223).) 8 Next, the ALJ found that Plaintiff had mild limitation in interacting with others. 9 (Id. at 18.) The ALJ stated that Plaintiff reported in her Function Report that she had 10 never been laid off or fired from a job due to problems with getting along with others, 11 and she had “no problems” with authority figures. (Id. (citing id. at 244).) Additionally, 12 the ALJ noted that the mental status examination performed by Mr. Wood found that 13 Plaintiff had an “appropriate” attention span. (Id. at 18 (citing id. at 1223).) The ALJ 14 also noted that Plaintiff was calm, polite, and cooperative at the administrative hearing. 15 (Id. at 18.) 16 Further, the ALJ found that Plaintiff had mild limitation in concentrating, 17 persisting, or maintaining pace. (Id.) The ALJ stated that Plaintiff reported in her 18 Function Report that she did not finish tasks that she started.8 (Id. (citing id. at 243).) 19 The ALJ also noted that Mr. Wood’s mental status examination revealed “linear tc0 [sic] 20 and normal thought content.” (Id. at 18 (citing id. at 1223).) The ALJ concluded that 21 medical records did not indicate that Plaintiff “was distracted by internal stimuli with any 22 regularity during the relevant period.” (Id. at 18.) 23 24 25 7 The referenced mental status exam found linear “thought process,” not “content.” (See id. at 18, 26 1223.)
27 8 The Court notes that, contrary to the ALJ’s statement in his written decision, Plaintiff checked “Yes” in the referenced Function Report in response to the following question: “Do you finish what you start? 28 1 Finally, the ALJ found that Plaintiff had no limitation in the functional area of 2 adapting or managing oneself. (Id.) The ALJ noted that in her Function Report, Plaintiff 3 did not report any difficulties with performing personal care activities, such as bathing or 4 grooming, and reported that she was able to prepare meals twice a day, complete 5 household chores, and manage her finances. (Id. at 18–19 (citing id. at 239–42).) 6 The ALJ concluded that because Plaintiff’s medically determinable mental 7 impairment caused no more than “mild” limitation in any of the functional areas, and the 8 evidence did not otherwise indicate that there was more than a minimal limitation in 9 Plaintiff’s ability to do basic work activities, her mental impairment was “nonsevere.” 10 (Id. at 20 (citing 20 C.F.R. § 404.1520a(d)(1).) 11 The Court initially notes that the ALJ’s written decision provides seemingly 12 contradictory assertions regarding whether Plaintiff had a medically determinable mental 13 impairment. (AR at 18–19.) The ALJ first stated that “there [wa]s insufficient support in 14 the record to find depression as a medically determinable impairment,” (id. at 18), but 15 then concluded that Plaintiff’s “medically determinable mental impairment cause[d] no 16 more than ‘mild’ limitation in any of the functional areas,” (id. at 19). 17 Further, the ALJ cited one medical record in concluding that there was no 18 substantial evidence in the record to find that Plaintiff’s depression was a medically 19 determinable impairment. (Id. at 18 (citing id. at 552).) The cited record contains notes 20 from Brian Jackson, N.P. dated May 1, 2020, which listed “[m]ajor depressive disorder, 21 single episode, unspecified (status Active)” and “[m]ental disorder, not otherwise 22 specified (status Active)” as Plaintiff’s “Problem List” issues. (Id.; see also id. at 550.) 23 The ALJ also cited Keegan Wood, N.P.’s notes dated December 1, 2020, to support his 24 findings of “no limitations” to “mild limitations” in the four functional areas, (id. at 18– 25 19 (citing id. at 1222–25)), but did not cite or discuss notes from other appointments 26 Plaintiff had with Mr. Wood on May 19, August 18, and September 18, 2020, (see id. at 27 830–33, 1242–45, 1265–68). During all four appointments, Mr. Wood conducted mental 28 status examinations, (id. at 831–32, 1223–24, 1243–44, 1266–67), and completed “San 1 Diego County Adult Medi-Cal Mental Health Severity Analysis” forms, (id. at 832–33, 2 1224–25, 1244–45, 1267–68). The ALJ also did not cite or discuss numerous additional 3 records documenting Plaintiff’s history of depression, including Dr. Antonio’s 4 February 1, 2013 diagnosis of depression and Dr. Knight’s March 22, 2021 diagnosis of 5 bipolar disorder. (See id. at 15–24; see also id. at 288, 1297–98.) 6 Although a diagnosis is not dispositive in finding a medically determinable 7 impairment, see 20 C.F.R. § 404.1521, the ALJ failed to cite, discuss, or even 8 acknowledge diagnoses and prescription medication history related to Plaintiff’s 9 depression, (see AR at 288, 552, 555–57, 917, 1095), and bipolar disorder, (see id. at 10 1289–98). The ALJ’s selective citations omitted records documenting Plaintiff’s 11 extensive history of outpatient psychiatric care and use of prescribed psychiatric 12 medications. (Id. at 18–19, 1265–68.) “The ALJ is not entitled to pick and choose from 13 a medical opinion, using only those parts that are favorable to a finding of 14 nondisability.” Robert D. v. Kijakazi, Case No.: 20cv2132-AJB (MSB), 2021 WL 15 5905734, at *6 (S.D. Cal. Dec. 14, 2021) (quoting Robinson v. Barnhart, 366 F.3d 1078, 16 1083 (10th Cir. 2004)); see also Holohan v. Massanari, 246 F.3d 1195, 1207 (9th Cir. 17 2001) (reversing, where the ALJ selectively relied “on some entries” in the claimant’s 18 records and “ignored the many others that indicated continued, severe impairment”); 19 Fanlo v. Berryhill, Case No.: 17cv1617-LAB (BLM), 2018 WL 1536732, at *10 (S.D. 20 Cal. Mar. 28, 2018) (stating that “[t]he ALJ is not permitted to ‘cherry-pick’ only the 21 records that support her position”). While the ALJ followed the steps to evaluate the 22 severity of Plaintiff’s mental impairment, the ALJ erred by failing to address treatment 23 records which undermined his conclusion, and his decision was not supported by 24 substantial evidence in the record. See Darren Jeffrey C. v. Kijakazi, Case No.: 3:21-cv- 25 01012-AHG, 2022 WL 4474261, at *16 (S.D. Cal. Sept. 26, 2022) (finding that the ALJ 26 did not support his assessment of plaintiff’s mental limitations at step two with 27 substantial evidence, and instead, “pick[ed] out certain aspects of [p]laintiff’s mental 28 status examinations to find mild limitations while ignoring the overall diagnostic picture 1 that consistently showed more debilitating symptoms associated with [p]laintiff’s 2 depression, anxiety, and adjustment disorder”); Rosemary Guadalupe V. v. Saul, Case 3 No.: 3:19-cv-00715-RBM, 2020 WL 85486, at *4–7 (S.D. Cal. Jan. 6, 2020) (finding that 4 the ALJ improperly assessed plaintiff’s mental health impairment at step two of the 5 sequential evaluation process, where the ALJ ignored treatment records that undermined 6 his conclusion, and “the record as a whole contain[ed] evidence of an impairment 7 sufficient to pass the de minimis threshold of step two”). 8 b. The ALJ’s error was not harmless 9 An error is harmless if it is inconsequential to the ALJ’s ultimate nondisability 10 determination. See Rounds v. Comm’r Soc. Sec. Admin., 807 F.3d 996, 1007 (9th Cir. 11 2015) (finding that the ALJ’s error was harmless because it was “inconsequential to the 12 ultimate nondisability determination.”); Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th 13 Cir. 2008) (internal quotation marks and citation omitted) (“[H]armless error . . . exists 14 when it is clear from the record that the ALJ’s error was inconsequential to the ultimate 15 nondisability determination.”). As relevant in this case, an error at step two of the 16 sequential evaluation may be harmless if an ALJ considers the claimant’s mental 17 impairment at steps four and five. See Davenport v. Colvin, 608 F. App’x 480, 481 (9th 18 Cir. 2015) (upholding the ALJ’s determination that the plaintiff’s mental impairments 19 were non-severe at step two, but concluding that “any error regarding the step-two 20 determination is harmless because the ALJ proceeded to step five and considered [the 21 plaintiff’s] mental impairments as part of the analysis”); Rosemary Guadalupe V., 2020 22 WL 85486, at *7 (citing Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007)) (“[A]n error 23 at the step two evaluation may be considered harmless if an ALJ extensively discusses 24 the claimant’s impairment at step four.”); Michael F. v. Kijakazi, Case No.: 3:20-cv- 25 00524-AHG, 2021 WL 4473176, at *5 (S.D. Cal. Sept. 30, 2021) (“If the Court finds it 26 was error for the ALJ to find a claimant’s mental impairments non-severe at step two, 27 such an error may be harmless where the ALJ proceeds to step five of the disability 28 analysis and considers the claimant’s mental impairments as part of that analysis.”). For 1 such an error to be harmless, the ALJ must consider how the combination of the 2 impairments affect the claimant’s ability to perform basic work activities, and incorporate 3 that consideration into the RFC determination. See Smolen, 80 F.3d at 1290–92; see also 4 Social Security Ruling 85-28, 1985 WL 56856, at *3 (Jan. 1, 1985) (“Although an 5 impairment is not severe if it has no more than a minimal effect on an individual’s 6 physical or mental ability(ies) to do basic work activities, the possibility of several such 7 impairments combining to produce a severe impairment must be considered.”). 8 In this case, the ALJ erred at step two of his sequential evaluation process because 9 he improperly evaluated Plaintiff’s mental health impairment(s). The ALJ determined 10 that Plaintiff had the RFC to “perform light work as defined in 20 CFR 404.1567(b) 11 except limited to occasional postural activity, except no climbing of ladders or scaffolds; 12 no exposure to hazards such as dangerous moving machinery and unprotected heights; 13 and no work in environments with excessive noise or environments requiring fine 14 hearing. (AR at 19.) The ALJ did not discuss Plaintiff’s mental impairment(s) in the 15 RFC analysis and determined at step four of his sequential evaluation that Plaintiff could 16 perform her past relevant work as a cytotechnologist. (See id. at 23.) At step five of the 17 sequential evaluation process, the ALJ found that Plaintiff was not disabled. (Id.) The 18 ALJ’s error at step two may have prejudiced his findings at steps four and five, and the 19 error was therefore not harmless. Loader v. Berryhill, 722 F. App’x 653, 655 (9th Cir. 20 2018) (finding reversible error where an ALJ found that plaintiff’s depression was a 21 medically determinable but nonsevere mental impairment at step two, but then “failed . . . 22 even to mention [plaintiff’s] depression or mental impairments when assessing his RFC, 23 and the RFC itself [stated] nothing at all about such impairments or their effects,” and the 24 ALJ did not mention the impairment in the hypothetical questions posed to the VE); 25 Hutton v. Astrue, 491 F. App’x. 850, 850–51, 2012 WL 6040731, at *1 (9th Cir. 2012) 26 (finding reversible error, where an ALJ determined at step two that plaintiff’s post- 27 traumatic stress disorder (“PTSD”) was “nonsevere,” but did not include PTSD in his 28 assessment of Plaintiff’s RFC analysis at step four and in his hypotheticals to the VE at 1 || step five of the sequential evaluation process). 2 VI. REMEDY 3 Plaintiff moves the Court to reverse the Commissioner’s decision and remand the 4 ||case for further proceedings. (J. Mot. at 9, 17-18.) Defendant asks the Court to affirm 5 Commissioner’s decision, or “[s]hould the Court disagree . . . remand for further 6 || proceedings.” (Id. at 18.) 7 The reviewing court may enter a judgment “affirming, modifying, or reversing” the 8 ||Commissioner’s decision. 42 U.S.C. § 405(g). The reviewing court may also remand the 9 || case to the Social Security Administration for further proceedings. Id. “If additional 10 || proceedings can remedy defects in the original administrative proceedings, a social 11 security case should be remanded.” Lewin v. Schweiker, 654 F.2d 631, 635 (9th Cir. 12 || 1981). The Court finds that further administrative proceedings could remedy defects in 13 ALJ’s decision. On remand, the ALJ must conduct a supplemental evaluation of the 14 || evidence of mental impairment(s) and incorporate his findings in his decision. Remand 15 || will also allow the ALJ to reconsider Plaintiff's RFC, including all of her relevant 16 || limitations, and determine whether there are jobs available that Plaintiff can perform. 17 Vil. CONCLUSION 18 For the reasons stated above, the Court REVERSES the final decision of the 19 ||Commissioner. The case is REMANDED for further proceedings to address the errors 20 || noted in this Order. 21 IT IS SO ORDERED. 22 ||Dated: September 27, 2023 23 24 / L 25 Honorable Lupe Rodriguez, Jr. 26 United States Magistrate Judge 27 28