Needham v. Berryhill

• Court: District Court, N.D. California
• Decided: October 31, 2019
• Docket: 4:18-cv-04183
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA

7 TIMOTHY NEEDHAM, Case No. 18-cv-04183-PJH 8 Plaintiff,

9 v. ORDER REGARDING CROSS- MOTIONS FOR SUMMARY 10 NANCY BERRYHILL, JUDGMENT 11 Defendant. Re: Dkt. Nos. 18, 19 12

13 14 Plaintiff Timothy Needham seeks judicial review of the Commissioner of Social 15 Security’s (the “Commissioner”) final decision denying Needham’s claim for disability 16 benefits pursuant to 42 U.S.C. § 405(g). This action is before the court on the parties’ 17 cross-motions for summary judgment. Having considered the parties’ cross-motions, the 18 pertinent legal authorities, and having reviewed the administrative record, the court 19 hereby remands this case to the Commissioner for further proceedings in accordance 20 with this court’s order. 21 BACKGROUND 22 A. Personal History 23 In October 2013, Needham applied for Supplemental Security Income, alleging 24 disability beginning in September 2006. Administrative Record (“A.R.”) 61. Needham 25 attended school through the tenth grade, obtained his GED, and attended community 26 college for a semester or two. A.R. 39, 539, 770, 913. Needham worked as a truck 27 driver from at least 1996 (perhaps earlier) to about 2001, when he was attacked on the 1 Around 2006, he divorced his wife, and in 2012 he became homeless. A.R. 240, 389, 2 520, 769–70, 913. He has used methamphetamine off and on throughout his life. 3 A.R. 519. 4 On September 7, 2013, Needham attempted to commit suicide. A.R. 518. After 5 being injured in an altercation and admitted into Eden Medical Center’s emergency room, 6 he entered a bathroom, slit his wrists, took a mixture of pills, wrote a suicide note on the 7 mirror, and hit the call button. A.R. 408, 417, 420, 518, 543, 788, 808. Medical staff 8 gave him medication and transferred him to John George Psychiatric Pavilion at the 9 Highland Campus, where he was diagnosed with depressive disorder not otherwise 10 specified (“NOS”) and alcohol abuse and assigned a Global Assessment Functioning 11 (“GAF”)1 score of 20. A.R. 443–45, 810. While at John George Psychiatric Pavilion, 12 Dr. John Fenton, M.D. evaluated Needham and diagnosed him with major depressive 13 disorder, alcohol abuse, and history of amphetamine abuse. A.R. 542. Dr. Fenton 14 reported improvement in Needham’s mood and that medication doses had been adjusted 15 to “therapeutic effect.” A.R. 544. 16 Needham was thereafter admitted to Woodroe Place Crisis Resolution, a 17 residential mental health facility operated by Bay Area Community Services (“BACS”). 18 A.R. 541, see also A.R. 904. At Woodroe Place, Dr. Edward Maxwell observed that 19 Needham was restless with a dysphoric, expansive mood and mildly impaired judgment. 20 A.R. 905–06. Needham continued to receive therapy from mental health counselors and 21 was assessed GAF scores ranging from 45 to 55. A.R. 893, 907. 22 On October 9, 2013, Needham was discharged from Woodroe Place and moved 23 1 A GAF score is a measurement of overall functioning. American Psychiatric 24 Association, Diagnostic and Statistical Manual of Mental Disorders, 27–34 (4th TR. ed. 2000). A score of 11–20 indicates “[s]ome danger of hurting self or others”; 21–30 25 indicates “inability to function in almost all areas”; 31–40 indicates “major impairment in several areas, such as work or school”; 41–50 indicates “[s]erious symptoms . . . OR any 26 serious impairment in social, occupation, or school functioning”; 51–60 indicates “[m]oderate symptoms . . . OR moderate difficulty in social, occupation, or school 27 functioning”; 61–70 indicates “[s]ome mild symptoms . . . OR some difficulty in social, 1 to the A Street shelter. A.R. 893. On October 10, 2013, Needham began participating in 2 mental health treatment and case management with BACS Oakland Project Connect. 3 A.R. 1074. He continued almost weekly contact with therapists and case managers until 4 July 28, 2016. E.g., A.R. 922. 5 Between October 2013 and December 2013, Needham was also treated at the 6 Sausal Creek Outpatient Stabilization Clinic, a drop-in mental health clinic. A.R. 485– 7 505. On October 28, 2013, Dr. Emma Castro observed that he was alert and had 8 anxious mood, irritable affect, logical thought process, and marginal judgment. A.R. 495. 9 She also saw him on November 8, November 22, 2013, and December 6, 2013, 10 diagnosing him with psychotic disorder NOS, bipolar disorder, and polysubstance 11 dependence in partial remission, and assigning GAF scores of 50, 52, and 55. A.R. 486, 12 490, 495. By the last visit, “the meds seem[ed] to be working good” and Needham’s 13 insight and judgment were good. A.R. 486. 14 In December 2013, Needham had several evaluations at the Winton Wellness 15 Center.2 On December 4, 2013, he saw Dr. Srilekha Puranam for his hypertension and 16 bipolar disorder. A.R. 763, 768. He reported aggravation of the bipolar disorder by drug 17 use as well as decreased sleep, depressed mood, and racing thoughts, but no suicidal 18 ideation. A.R. 763. On December 13, 2013, Needham had an initial psychiatric 19 evaluation with Dr. Catalina Villa. A.R. 769–72. He reported symptoms of severe 20 depression at least one week per month, including crying, staying in bed, and decreased 21 appetite. A.R. 769. Dr. Villa noted that despite a “constricted” affect, Needham showed 22 “unremarkable” behavior, good impulse control, and no suicidal or homicidal ideation. 23 A.R. 771. She diagnosed him with unspecified bipolar disorder, alcohol dependence in 24 early remission, and amphetamine dependence in full remission. Id. 25 On January 29, 2014, Needham returned to Sausal Creek with increased 26 symptoms, reporting he was “up/down with depression” for three weeks and that his 27 1 medications were not helping. A.R. 734. On February 24, 2014, he returned again to 2 Sausal Creek requesting medication for depression. A.R. 729. The staff psychiatrist 3 noted his euthymic affect and depressed mood and diagnosed him with psychotic 4 disorder NOS, bipolar disorder, and polysubstance abuse with a GAF score of 55. 5 A.R. 730. He prescribed him the same dosage of Remeron, Risperdone, Depakote, and 6 Benadryl, and added Buproprin. A.R. 728. 7 On February 14, 2014, psychologist Dr. Deepa Abraham examined Needham and 8 conducted a records review. A.R. 516. She noted he had “somewhat pressured” 9 speech, intact concentration, and average results on the Wechsler Adult Intelligence 10 Scales. A.R. 521–23. She reported that Needham exhibited symptoms of depression 11 such as lethargy, insomnia, and social withdrawal and a manic presentation including 12 grandiosity, racing thoughts, and reckless behavior. A.R. 526. She diagnosed him with 13 mood disorder NOS and polysubstance dependence while assigning him a GAF score 14 of 35. A.R. 527. Because of his symptoms, she opined that he would “experience 15 difficulty competing for jobs in an open labor market” and “difficulty coping with daily or 16 the usual stresses encountered in a competitive work environment.” A.R. 528–29. She 17 also noted his low auditory memory scores that “might reflect in difficulty with 18 remembering work assignments, processing complex instructions or in completing tasks.” 19 A.R. 528. She concluded that he had mild impairments in understanding, 20 comprehending, and remembering information; no significant impairment in social 21 interaction; and moderate impairment in adaptation. A.R. 528–29. 22 On April 1, 2014, Dr. Puranam reported Needham’s bipolar disorder and insomnia 23 were “[w]ell controlled” and noted he had not used alcohol in two months and 24 amphetamines in four months. A.R. 756. Around this time, Needham moved to 25 transitional housing. A.R. 1056–58. 26 Throughout 2014, Needham continued services at BACS Oakland Project 27 Connect. He met with MacKenzie Stuart, a BACS unlicensed marriage and family 1 therapy and help with tasks and appointments. A.R. 1031–63. Ms. Stuart diagnosed 2 Needham with a consistent GAF score of 45. A.R. 1031–63. His symptoms included 3 “overwhelming sadness” (A.R. 1039), suicidal ideation (A.R. 1045–46), anhedonia 4 (A.R. 1039–44, 1047), hypersomnia (A.R. 1039, 1050), and fear of leaving the house 5 (A.R. 1054). He also presented with pressured speech, racing thoughts, and anxiety. 6 A.R. 1033, 1037, 1049. Other times, he presented as euthymic (A.R. 1050–53) and 7 reported having “significantly better” mood (A.R. 1037) and no recent manic or severe 8 depressive episodes (A.R. 1053). 9 On December 15, 2014, Needham had an intake appointment with psychiatrist Dr. 10 Catherine Reed at Pathways to Wellness (“Pathways”), a mental health clinic. A.R. 531, 11 536. Needham reported mood swings, insomnia, and nighttime auditory hallucinations 12 that affected his activities of daily living. A.R. 531, 535–36. Dr. Reed diagnosed him with 13 bipolar disorder, depression, with psychotic features, and amphetamine dependence in 14 remission with a GAF score of 65. A.R. 535. She noted he had normal behavior, normal 15 speech, depressed mood but was “hopeful,” and appropriate affect. A.R. 534. She 16 added Latuda to his medications (A.R. 537) and opined that he had moderate restrictions 17 in activities of daily living; moderate difficulties in social functioning; mild difficulties in 18 maintaining, concentrating, and persistence of pace; and moderate episodes of 19 decomposition and increase of symptoms (A.R. 535). 20 Needham continued treatment at Pathways throughout 2015. On March 19, 2015, 21 Needham reported improvement with medications and mild sadness. A.R. 889. 22 Dr. Reed assessed a GAF score of 60–65. A.R. 888. On April 8, 2015, Needham told 23 Dr. Puranam that he felt better as his medication changed from Risperdone to Latuda. 24 A.R. 846. On July 9, 2015, Dr. Reed upgraded his GAF score to 65 after noting a good 25 response to medications, his attendance in DUI classes, and lack of psychosis or mania. 26 A.R. 884–85. On August 26, 2015, Needham reported feeling very sad after a friend’s 27 death and had not taken medication for two weeks. A.R. 882–83. On September 28, 1 dosage of Latuda. A.R. 880–81. Starting in August 2015, Dr. Reed reduced Needham’s 2 Wellbutrin dosage because of his increased blood pressure, and on December 16, 2015 3 Nurse Practitioner Sarah Levine noted that Needham’s depression was exacerbated by 4 the holiday season. A.R. 876–77. 5 Throughout 2015 and 2016, Needham continued to work with BACS for housing, 6 employment, and symptom management. A.R. 990, 922. Shandra Guzman diagnosed 7 him with major depressive disorder (severe without psychotic features), alcohol 8 dependence, and amphetamine dependence (sustained remission) with a GAF score of 9 45. A.R. 990. On March 25, 2015, Ms. Stuart “supported” Needham to an internal 10 medicine consultation and observed that he was anxious about attending the 11 appointment. A.R. 1019. Needham reported needing help to complete tasks and periods 12 of increased depression. A.R. 953–55, 986, 1008–11, 1025. 13 In January 2016, Needham moved to permanent supportive housing, and he 14 continued treatment at Pathways until November 2016. A.R. 939, 1078. On February 15 24, 2016, Needham reported anxiety over the recent move and increased auditory 16 hallucinations. A.R. 875. On March 23, 2016, he reported improvement in mood since 17 increasing his Latuda dosage. A.R. 872. On April 27, 2016, Needham reported he was 18 doing fairly well but still spent most of the day in bed about once a week; Nurse Levine 19 assigned a GAF score of 60. A.R. 870. As of June 23, 2016, a Pathways psychiatrist 20 reported that Needham was stable on medications “after so many trials.” A.R. 869. On 21 September 29, 2016, Needham said he was “doing well with his med[ication]s” and 22 presented with normal speech and euthymic mood. A.R. 1077. 23 In April 2017, Needham began therapy, social groups, and case management at 24 Lifelong Medical Care. A.R. 1082. On April 27, 2017, Needham felt stable on his 25 medications and denied suicidal ideation. On April 28, 2017, therapist Ann Sussman 26 observed Needham had rapid speech, tangential thought processes with grandiose 27 content, and that he “mostly blame[d] others for [his] problems.” A.R. 1093. On May 5, 1 pot on occasion[.]” A.R. 1096–97. 2 B. Procedural History 3 On October 25, 2013, Needham filed a Title II application for a period of disability 4 and disability insurance benefits as well as a Title XVI application for supplemental 5 security income. A.R. 15, 61, 85–86. Both applications stated an alleged onset date of 6 September 29, 2006 for disability. A.R. 61. The Commissioner denied Needham’s 7 claims both initially and again upon reconsideration on September 17, 2014 and June 3, 8 2015, respectively. A.R. 84, 116. On July 13, 2015, Needham requested a hearing 9 before an ALJ which took place on May 19, 2017. A.R. 145, 196. At the hearing, plaintiff 10 amended his disability onset date to September 7, 2013. A.R. 15, 59, 390. Vocational 11 expert Christopher Salvo testified at the proceeding. A.R. 54–59. Needham also testified 12 and answered questions from the ALJ and his counsel. A.R. 38–54. 13 In May 2017, the ALJ found that plaintiff was not disabled. The ALJ’s May 2017 14 decision became the Commissioner’s final decision when the Appeals Council denied 15 plaintiff’s request for review. A.R. 1–7. 16 STATUTORY AND REGULATORY FRAMEWORK 17 The Social Security Act provides for the payment of disability insurance benefits to 18 people who have contributed to the social security system and who suffer from a physical 19 or mental disability. See 42 U.S.C. § 423(a)(1). To evaluate whether a claimant is 20 disabled within the meaning of the Act, the ALJ is required to use a five-step sequential 21 analysis. See 20 C.F.R. § 416.920(a). The ALJ may terminate the analysis at any step if 22 he determines that the claimant is or is not disabled. Pitzer v. Sullivan, 908 F.2d 502, 23 504 (9th Cir. 1990). 24 At step one, the ALJ determines whether the claimant is engaging in any 25 “substantial gainful activity,” which would automatically preclude the claimant receiving 26 disability benefits. 20 C.F.R. §§ 416.920(a)(4)(i) & (b). If not, at step two, the ALJ 27 considers whether the claimant suffers from a severe impairment which “significantly 1 §§ 416.920(a)(4)(ii) & (c). 2 At the third step, the ALJ is required to compare the claimant’s impairment(s) to a 3 listing of impairments provided in an appendix to the regulations. 20 C.F.R. 4 § 416.920(a)(4)(iii). If the claimant’s impairment or combination of impairments meets or 5 equals the severity of any medical condition contained in the listing, the claimant is 6 presumed disabled and should be awarded benefits. Id.; 20 C.F.R. § 416.920(d). 7 If the claimant’s condition does not meet or equal a listing, at step four the ALJ 8 considers whether the claimant has sufficient residual functional capacity (“RFC”) to 9 perform his past work despite the limitations caused by the impairments. 20 C.F.R. 10 §§ 416.920(a)(4)(iv) & (e)–(f). An individual’s RFC is what he can still do in a workplace 11 setting despite his physical and mental limitations. 20 C.F.R. § 416.945. In determining 12 the RFC, the ALJ must consider all of the claimant’s impairments, including those that are 13 not severe, taking into account all relevant medical and other evidence. 20 C.F.R. 14 §§ 416.920(e), 416.945. If the claimant cannot perform his past work, the Commissioner 15 is required to determine, at step five, whether the claimant can perform other work that 16 exists in significant numbers in the national economy, taking into consideration the 17 claimant’s RFC, age, education, and work experience. See 20 C.F.R. 18 §§ 416.920(a)(4)(v) & (g). 19 In steps one through four, the claimant has the burden to demonstrate a severe 20 impairment and an inability to engage in his previous occupation. Andrews v. Shalala, 53 21 F.3d 1035, 1040 (9th Cir. 1995). If the analysis proceeds at step five, the burden shifts to 22 the Commissioner to demonstrate that the claimant can perform other work. Id. 23 ALJ’S FINDINGS 24 On May 31, 2017, the ALJ applied the sequential analysis and found that 25 Needham was not disabled, concluding that he could perform jobs within the national 26 economy. A.R. 12–27. 27 A. The ALJ’s Sequential Analysis 1 activity” since his amended onset date of September 7, 2013. A.R. 17.3 2 At step two, the ALJ found Needham suffered from severe impairments of bipolar 3 disorder, amphetamine dependence, alcohol dependence, and obesity. A.R. 18. The 4 ALJ also found that Needham’s hypertension and sarcoidosis were non-severe 5 impairments and that Needham did not provide evidence that these impairments would 6 result in a significant limitation in basic work-related activities. A.R. 18–19. 7 At step three, the ALJ concluded that the impairments failed to meet the criteria or 8 severity of any section of the listing of impairments in 20 CFR Part 404, subpart P, 9 Appendix 1. A.R. 19–23. In making that finding, the ALJ considered whether the 10 “paragraph B” criteria were satisfied. The ALJ found that disability could not be 11 established under paragraph B in light of the medical facts. A.R. 19–23. The mental 12 health records “reveal one major crisis but are inconsistent with disability.” A.R. 19. The 13 ALJ reviewed medical records, evaluated the persuasiveness of various sources in the 14 record, and concluded that plaintiff’s mental impairments do not cause at least two 15 “marked” limitations or one “extreme” limitation, so paragraph B criteria were not 16 satisfied. A.R. 23. The ALJ also briefly addressed paragraph C and determined plaintiff 17 did not satisfy its requirements. A.R. 23. 18 Having found that Needham did not suffer from a listed impairment, the ALJ 19 determined Needham’s RFC. The ALJ applied a two-step process that considered all 20 symptoms regardless of severity. A.R. 23. First, the ALJ determined whether there was 21 an underlying medically-determinable physical or mental impairment that could 22 reasonably be expected to produce Needham’s pain or other symptoms. A.R. 23. The 23 ALJ concluded that Needham’s medically-determinable impairments could reasonably be 24 expected to cause the alleged symptoms. A.R. 24. Second, the ALJ evaluated the 25 intensity, persistence, and limiting effects of Needham’s symptoms to determine the 26

27 3 The ALJ referred to the amended onset date as January 7, 2013 at finding of fact 1 and 1 extent to which they limited his functioning. A.R. 23. The ALJ concluded that Needham’s 2 testimony about the intensity, persistence and limiting effects of the symptoms was not 3 entirely consistent with medical evidence and other evidence in the record. A.R. 24. 4 Where Needham reported symptoms that did not match the objective medical evidence, 5 the ALJ made a credibility determination based on the entire medical record:

6 Claimant alleges he quit working as a truck driver in 2004 because of his conditions. . . However, he has submitted no 7 evidence from that time, and the current medical evidence of record shows claimant . . . lost his license/job after crashing into 8 a pole and received a DUI. Claimant testified he is unable to work due to his depression . . . [and] hears voices, which 9 prevents him from concentrating. On April 27, 2016, claimant reported he is not bothered by his auditory hallucinations . . . 10 He reported “doing well with his meds,” and was assigned a GAF score of 60 . . . . Recent records from Lifelong Medical 11 indicate claimant remains stable on medications. 12 AT 24 (internal quotation marks and citations omitted). The ALJ determined that plaintiff 13 has the RFC to perform light work, with certain exceptions. A.R. 23. 14 At step four of the sequential analysis, the ALJ determined that Needham had no 15 past relevant work. A.R. 25. 16 At step five, based on the vocational expert’s testimony, the ALJ determined that 17 jobs existed in significant numbers in the national economy that Needham could perform. 18 A.R. 25–26. Specifically, Needham’s RFC did not prevent him from working as a “small 19 products assembler”, “production assembler”, or “maid” as described in the Dictionary of 20 Occupational Titles. A.R. 26. The ALJ therefore determined that Needham was not 21 disabled and not eligible for disability benefits under the Social Security Act. A.R. 26. 22 B. The ALJ’s Weighing of the Medical Opinions and Testimony 23 The ALJ considered and weighed the testimony and opinions of several medical 24 professionals. The primary medical opinions were authored by: 25 1. Dr. Deepa Abraham 26 Dr. Abraham administered a psychological evaluation of Needham on February 27 14, 2014. A.R. 516. She opined that he would have “difficulty coping with [the] daily or [] 1 changes that interfere with his ability to sustain effort or adapt to changes in tasks or 2 responsibilities.” A.R. 529. She concluded he had mild impairments in understanding 3 information, no significant impairment in social interaction, and moderate impairment in 4 adaptation. A.R. 528–29. 5 Dr. Abraham was an examining psychologist, and the ALJ gave her opinion “great 6 weight” because her opinions were “consistent with the medical evidence…and based 7 upon a thorough examination and records review.” A.R. 22. 8 2. Dr. Catherine Reed 9 Dr. Reed conducted an initial psychological intake of Needham on December 15, 10 2014 (A.R. 536) and treated him from February 11, 2015 to October 26, 2015 (A.R. 879, 11 891). At intake, she assessed that he had moderate restrictions in activities of daily 12 living; moderate difficulties in social functioning; mild difficulties in maintaining, 13 concentrating, and persistence of pace; and moderate episodes of decomposition and 14 increase of symptoms. A.R. 535. 15 Dr. Reed was a treating psychiatrist, and the ALJ gave her opinion “great weight” 16 because it was “consistent with the medical evidence of record.” A.R. 22. 17 3. Dr. Margaret Pollack 18 On July 30, 2014, Dr. Pollack, Psy.D. conducted a psychological consultative 19 review of the medical records that guided the Social Security Administration’s 20 determination of “Not Disabled.” A.R. 69, 72. Dr. Pollack noted that in Dr. Abraham’s 21 evaluation, Needham alleged auditory hallucinations, but “there was no evidence that he 22 was responding to internal stimuli and no other evidence of psychosis.” A.R. 69. Dr. 23 Pollack opined that his depression and bipolar disorder were negatively impacted by lack 24 of reasonable compliance and “significant” substance abuse problems. A.R. 69. She 25 believed that with sustained sobriety, Needham “should be capable of simple & detailed 26 work-like activity for full workday/work week.” A.R. 69. She found his allegations about 27 the severity of his condition to be “partially credible,” enough to establish mild cognitive 1 As for Needham’s social interaction, Dr. Pollack found he was not significantly 2 limited in interacting with the general public and getting along with peers, however, his 3 ability to respond to criticism from supervisors was moderately limited. A.R. 71. As for 4 Needham’s adaptation, she found he was not significantly limited in traveling to unfamiliar 5 places or using public transportation, not significantly limited in setting realistic goals and 6 being aware of hazards, but moderately limited in responding to changes in the work 7 setting. A.R. 71. Accordingly, Dr. Pollack concluded plaintiff had mild restriction in 8 activities of daily living; moderate difficulties in social functioning; mild difficulties in 9 concentration, persistence, or pace; and no repeated episodes of decompensation of 10 extended duration. A.R. 69. 11 Dr. Pollack was a non-examining, state consultant physician, and the ALJ gave 12 her opinion “most weight” because it was “consistent with the medical evidence of record. 13 A.R. 21. 14 4. Dr. Preston Davis 15 On February 21, 2015, Dr. Davis, Psy.D. conducted a reconsideration of Dr. 16 Pollack’s consultative review. A.R. 99. He agreed with Dr. Pollack’s assessments and 17 found that evidence from, inter alia, Bayview and Pathways did not change the 18 determination that Needham was not disabled. A.R. 88–92; see A.R. 94, 96, 99 (“The 19 new MER [medical evidence of record] did not change the . . . determination”). He noted 20 that although Needham’s abilities to remember detailed information and carry out detailed 21 instructions were moderately limited, Needham’s abilities to concentrate for extended 22 times and carry out simple instructions were not significantly limited. A.R. 113. 23 Accordingly, Dr. Davis found mild restriction in activities of daily living; mild difficulties in 24 social functioning; moderate difficulties in concentration, persistence, or pace; and no 25 repeated episodes of decompensation of extended duration. A.R. 110. 26 Dr. Pollack was a non-examining, state consultant psychologist, and the ALJ gave 27 his opinion “most weight” because it was “consistent with the medical evidence of 1 DISCUSSION 2 A. Standard of Review 3 This court has jurisdiction to review final decisions of the Commissioner pursuant 4 to 42 U.S.C. § 405(g). See 42 U.S.C. § 405(c)(9) (“Decisions of the Commissioner of 5 Social Security under this subsection shall be reviewable by commencing a civil action in 6 the United States district court as provided in subsection (g).”). The ALJ’s decision must 7 be affirmed if the ALJ’s findings are “supported by substantial evidence and if the [ALJ] 8 applied the correct legal standards.” Holohan v. Massanari, 246 F.3d 1195, 1201 (9th 9 Cir. 2001); see 42 U.S.C. § 405(g) (“findings of the Commissioner of Social Security as to 10 any fact, if supported by substantial evidence, shall be conclusive”). “Substantial 11 evidence means more than a scintilla, but less than a preponderance.” Smolen v. 12 Chater, 80 F.3d 1273, 1279 (9th Cir. 1996) (internal quotation marks and citations 13 omitted); Valentine v. Comm’r of Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009). 14 “Substantial evidence is such relevant evidence as a reasonable mind might accept as 15 adequate to support a conclusion.” Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005); 16 Smolen, 80 F.3d at 1279. If the evidence is subject to more than one rational 17 interpretation, the court must uphold the ALJ’s findings if they are “supported by 18 inferences reasonably drawn from the record.” Tommasetti v. Astrue, 533 F.3d 1035, 19 1038 (9th Cir. 2008); see Burch v. Barnhart, 400 F.3d 676 (9th Cir. 2005). Yet the 20 reviewing court “must consider the entire record as a whole, weighing both the evidence 21 that supports and the evidence that detracts from the Commissioner’s conclusion, and 22 may not affirm simply by isolating a specific quantum of supporting evidence.” Revels v. 23 Berryhill, 874 F.3d 648, 654 (9th Cir. 2017). 24 “The ALJ in a social security case has an independent duty to fully and fairly 25 develop the record and to assure that the claimant's interests are considered.” Id. at 26 1150 (internal quotation marks omitted). Although the ALJ can and must weigh 27 conflicting evidence, “he cannot reach a conclusion first, and then attempt to justify it by 1 Heckler, 753 F.2d 1450, 1456 (9th Cir. 1984). 2 Additionally, the harmless error rule applies where substantial evidence otherwise 3 supports the ALJ’s decision. Curry v. Sullivan, 925 F.2d 1127, 1129 (9th Cir. 1991). 4 Harmless error is an error by the trier of fact which does not justify the reversal or 5 modification of the lower court's ruling. See id. 6 B. Issues 7 Needham seeks reversal of the ALJ’s denial of Social Security disability benefits, 8 arguing as follows: 9 1. The ALJ improperly rejected opinions. 10 2. The ALJ rejected plaintiff's testimony about his symptoms. 11 3. The ALJ found plaintiff's bipolar disorder did not meet or equal a listing 12 under Paragraph C. 13 4. Because of the above errors, the ALJ omitted limitations in plaintiff's 14 residual functional capacity. 15 5. Because of the above errors, the ALJ relied on vocational expert testimony 16 based on an incomplete hypothetical. 17 C. Analysis 18 1. Whether the ALJ Erred in Evaluating the Medical Opinions 19 Ninth Circuit case law and Social Security regulations distinguish between three 20 types of physicians: (1) those who treat the claimant (treating physicians); (2) those who 21 examine but do not treat the claimant (examining physicians); and (3) those who neither 22 examine nor treat the claimant (non-examining physicians). Lester v. Chater, 81 F.3d 23 821, 830 (9th Cir. 1996); see also 20 C.F.R. §416.927. “As a general rule, more weight 24 should be given to the opinion of a treating source than to the opinion of doctors who do 25 not treat the claimant.” Id. 26 “To reject the uncontradicted opinion of a treating or examining doctor, an ALJ 27 must state clear and convincing reasons that are supported by substantial evidence.” 1 “If a treating or examining doctor’s opinion is contradicted by another doctor’s opinion, an 2 ALJ may only reject it by providing specific and legitimate reasons that are supported by 3 substantial evidence.” Revels, 874 F.3d at 654; accord Lester, 81 F.3d at 830–31. “The 4 ALJ can meet this burden by setting out a detailed and thorough summary of the facts 5 and conflicting clinical evidence, stating his interpretation thereof, and making findings.” 6 Revels, 874 F.3d at 654; see also Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 7 600–01 (9th Cir. 1999). 8 The ALJ may discount testimony from “other sources” if the ALJ “gives reasons 9 germane to each witness for doing so.” Turner v. Comm'r of Soc. Sec., 613 F.3d 1217, 10 1224 (9th Cir. 2010) (quoting Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001)). Medical 11 sources not listed as an acceptable medical source are considered “other sources.” See 12 20 C.F.R. § 416.913(d)(1) (2013). Licensed clinical social workers, therapists, public and 13 private social welfare agency personnel, and rehabilitation counselors are not acceptable 14 medical sources. SSR 06-03P, 2006 WL 2329939 (Aug. 9, 2006); see also 20 C.F.R. 15 § 416.913(d) (2013). 16 a. Whether the ALJ Treated Records from Bay Area Community 17 Services (BACS) Therapists and Social Workers Erroneously 18 Plaintiff argues that the ALJ improperly rejected BACS “opinions and records” 19 without germane reasons supported by substantial evidence. Mot. at 9–12. Defendant 20 argues that the BACS observations do not constitute “medical opinions,” and in fact they 21 do not include any opinions at all. Opp. 8–9. Plaintiff argues that, even though they are 22 not medical opinions, they are nevertheless opinions that require consideration under the 23 regulations and germane reasons to reject.4 24 “Opinions from medical sources who are not acceptable medical sources and from 25 nonmedical sources” will be considered “using the same factors as listed in paragraph 26

27 4 The parties correctly agree that the BACS records are not acceptable medical opinions. 1 (c)(1) through (c)(6) in this section, [although] not every factor for weighing opinion 2 evidence will apply in every case because the evaluation of an opinion from a medical 3 source who is not an acceptable medical source or from a nonmedical source depends 4 on the particular facts in each case.” 20 C.F.R. § 416.927(f). Those factors are: 5 (1) whether the source of the opinion examined plaintiff; (2) whether the source of the 6 opinion treated plaintiff for his impairments; (3) the supporting evidence and explanation 7 the opinion provides; (4) how consistent an opinion is with the record as a whole; 8 (5) whether the opinion is from a specialist about issues related to his or her area of 9 specialty; and (6) other factors, for example the extent to which a medical source is 10 familiar with the other information in plaintiff’s case record. See 20 C.F.R. 11 § 416.927(c)(1)–(6). 12 “The adjudicator generally should explain the weight given to opinions from these 13 sources or otherwise ensure that the discussion of the evidence in the determination or 14 decision allows a claimant or subsequent reviewer to follow the adjudicator's reasoning, 15 when such opinions may have an effect on the outcome of the case.” See 20 C.F.R. 16 § 416.927(f)(2). To determine whether these requirements were met, the court asks 17 whether the ALJ enunciated specific, germane reasons when rejecting a non-medical 18 opinion. See, e.g., Bruce v. Astrue, 557 F.3d 1113, 1116 (9th Cir. 2009); Molina v. 19 Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). 20 The BACS treatment record extends from September 2013 to July 2016. 21 A.R. 904, 922. During that time, Needham received therapy and case management from 22 BACS therapists, including Ms. Stuart and Ms. Guzman, and various social workers. 23 A.R. 922, 944, 969, 1074. His symptoms included “overwhelming sadness” (A.R. 1039), 24 suicidal ideation (A.R. 1045–46), anhedonia (A.R. 1039–44, 1047), hypersomnia (A.R. 25 1039, 1050), and fear of leaving the house (A.R. 1054). He was diagnosed with major 26 depressive disorder (severe without psychotic features), alcohol dependence (partial 27 remission), and amphetamine dependence (sustained remission). BACS assessed him 1 A.R. 904 (45), 907 (55). Following that visit, BACS personnel consistently assessed him 2 with a GAF score of 45. A.R. 893–903; 910–1074. 3 The ALJ addressed the BACS records and their reported GAF figures directly.5 4 He recounted that at the time of plaintiff’s admission in September 2013, Dr. Maxwell 5 observed that plaintiff was talkative and restless with dysphoric and expansive mood, 6 ruminative thought content, and mildly impaired judgment. Otherwise, he was normal, 7 with a GAF score of 55. A.R. 19. From there, the ALJ explained that the records of his 8 therapy with BACS, which continued through January 16, 2015, “consistently indicate a 9 GAF score of 45,” but that low score “is inconsistent with generally unremarkable 10 observations” otherwise-present in the BACS record. A.R. 19. The ALJ rejected those 11 low GAF scores because he found them to be inconsistent with the medical evidence of 12 record and because they were assigned by social workers and family therapists who are 13 not acceptable medical sources. A.R. 19–20. Additionally, BACS’s services focused on 14 transitional housing and access to community programs rather than plaintiff’s mental 15 health needs. A.R. 20. The ALJ also noted that the BACS notes “are generally 16 unremarkable” and that they reported plaintiff’s GAF to be “constant at 45 whether 17 claimant was stable and euthymic or if he reported extreme depression following an 18 amphetamine relapse,” which shows the GAF scores were unreliable. A.R. 20. Finally, 19 BACS observations in 2015 were “generally within normal limits.” A.R. 21. 20 Considering the above, the ALJ discounted the BACS’s assessed GAF scores for 21 germane reasons. First, the ALJ may consider an opinion’s own supplied supporting 22 evidence and explanation (20 C.F.R. § 416.927(c)(3)), which the ALJ noted were 23 repeatedly in tension with the assessed GAF figured. E.g., A.R. 21 (“Observations during 24 those visits are generally within normal limits (Exhibit 19F at 36-122).”). Second, and 25

26 5 Although the GAF “does not have a direct correlation to the severity requirements in [the Commission’s] mental disorders listings” (65 Fed. Reg. 50746, 50764–65 (Aug. 21, 27 2000); see McFarland v. Astrue, 288 Fed. App’x 357, 359 (9th Cir. 2008)), it is 1 relatedly, the ALJ discounted the BACS’s assessed GAF score of 45 because, although 2 plaintiff’s condition was changing substantially between visits, BACS’s assessed score 3 never changed. E.g., A.R. 20 (citing Exhibit 19F at 123-155, and noting that GAF score 4 did not change from when plaintiff “was stable and euthymic” to when he “reported 5 extreme depression following an amphetamine relapse”). Such inconsistencies across 6 time are relevant. See Bagby v. Comm'r of Soc. Sec., 606 F. App'x 888, 889 (9th Cir. 7 2015) (substantial evidence supported the ALJ’s reasons for discounting doctors’ GAF 8 scores when they continued giving score of 40 despite significant improvement in 9 claimant’s mental health). 10 Third, the ALJ explained that the BACS’s assessed GAF score of 45 was 11 inconsistent with medical evidence in the record. E.g., A.R. 19–21 (citing 12 contemporaneous medical evidence throughout the time period that BACS was 13 assessing a 45 GAF score showing that plaintiff in fact had higher levels of functioning). 14 The ALJ may consider how consistent an opinion is with the record as a whole. 20 15 C.F.R. § 416.927(c)(3)–(4). Fourth, and relatedly, the ALJ afforded the BACS records 16 less weight than the conflicting medical evidence because BACS focused on housing and 17 related issues—not treating plaintiff—so that they were not acting as specialists when 18 assessing plaintiff’s mental acuity. The ALJ may consider whether the source of the 19 opinion treated plaintiff for his impairments and whether the opinion is from a specialist 20 about issues related to his or her area of specialty. 21 Plaintiff also argues that the ALJ impermissibly rejected the opinions in the BACS 22 records “that Plaintiff was depressed, anxious, and socially withdrawn, with a low 23 threshold for stress, low frustration tolerance, and periods of elevated mood as well as 24 periods when he could not get out of bed or complete basic tasks on his own.” Mot. at 25 10. He further argues that “BACS records indicate Plaintiff’s bipolar disorder causes 26 limitations related to social functioning, concentration, persistence and pace, adaptation, 27 the ability to tolerate routine stress, and maintain workplace attendance.” Mot. at 12. On 1 his” abilities. Reply at 3. 2 But the ALJ did not reject wholesale BACS’s observations and assessments. 3 Rather, he rejected the ultimate opinion of the GAF score, and in doing so he gave 4 germane reasons, as explained above. Plaintiff argues that BACS opined that plaintiff’s 5 symptoms were “interfering” with his abilities to function, and the ALJ ignored those 6 opinions. But the ALJ actually agreed with those observations. The ALJ made a 7 determination at Step 2 that plaintiff does have severe impairments, and his RFC 8 determination was based on those impairments. Those findings are consistent with the 9 BACS records plaintiff cites. 10 b. Whether the ALJ Erroneously Accorded Dr. Abraham and Dr. 11 Reed’s Opinions Improper Weight 12 Plaintiff argues that the ALJ improperly rejected the opinions of Dr. Abraham and 13 Dr. Reed by omitting “moderate” limitations they identified from the RFC determination. 14 Defendant argues that an ALJ can adequately capture moderate mental limitations by 15 accepting a medical source’s translation of those limitations into a restriction to simple or 16 unskilled work.6 17 As a general rule, “[t]he ALJ's assessment of a claimant adequately captures 18 restrictions related to concentration, persistence, or pace where the assessment is 19 consistent with restrictions identified in the medical testimony.” Stubbs-Danielson v. 20 Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008). For example, in Stubbs-Danielson, the 21 Ninth Circuit ruled that the ALJ's RFC finding limiting the claimant to simple tasks 22 “properly incorporated the limitations identified by” the medical doctors, “including those 23 related to pace and the other mental limitations regarding attention, concentration, and 24 adaption.” Stubbs-Danielson, 539 F.3d at 1174. Courts have widely applied that 25 principle. See Williams v. Colvin, 609 F. App’x 495, 496 (9th Cir. 2015) (“The RFC 26 6 Because the court finds that the ALJ adequately captured moderate mental limitations 27 by accepting a medical source’s translation of those limitations into a restriction to simple 1 finding adequately incorporated limitations related to concentration, persistence, or pace 2 because it limited the work that Claimant could do to simple, repetitive tasks.”) (citing 3 Stubbs-Danielson, 539 F.3d at 1176); Elmore v. Colvin, 617 F. App’x 755, 758 (9th Cir. 4 2015) (“the ALJ did not err by translating pace and mental limitations, into the only 5 concrete restrictions available to him—a recommended restriction to ‘simple tasks.’”) 6 (quoting Stubbs-Danielson, 539 F.3d at 1174); see also Mitchell v. Colvin, 642 F. App'x 7 731, 732–33 (9th Cir. 2016); Bruesch v. Colvin, 609 F. App'x 481, 481–82 (9th Cir. 2015) 8 (“In Stubbs–Danielson, we held that a finding that a claimant had the residual functional 9 capacity ‘to perform simple, routine, repetitive sedentary work,’ as well as a hypothetical 10 question that reflected the same limitations, adequately incorporated limitations related to 11 pace and other mental limitations regarding attention, concentration, and adaption that 12 had been identified by doctors.”). 13 On February 14, 2014, upon examining Needham, Dr. Abraham concluded 14 Needham had mild impairments in understanding information and sustaining effort, as 15 well as no significant impairment in social interaction. A.R. 516, 528–29. She also 16 opined that Needham had a moderate limitation in adaptation because he would have 17 “difficulty coping with [the] daily or [] usual stresses encountered in a competitive work 18 environment” and that his “mood changes [would] interfere with his ability to sustain effort 19 or adapt to changes in tasks or responsibilities.” A.R. 529. 20 On July 30, 2014, Dr. Pollack reviewed Dr. Abraham’s evaluation and other 21 records to determine that claimant “should be capable of simple [and] detailed work-like 22 activity for full workday/work week.” A.R. 69. 23 On December 15, 2014, Dr. Reed started treating Needham and assessed that he 24 had moderate restrictions in activities of daily living; moderate difficulties in social 25 functioning; mild difficulties in maintaining, concentrating, and persistence of pace; and 26 moderate episodes of decomposition and increase of symptoms. A.R. 535. State 27 consultant Dr. Davis reviewed Dr. Abraham’s evaluation, Dr. Reed’s assessments (see 1 Needham’s ability to complete a normal workday and workweek would not be significantly 2 limited. A.R. 99. 3 For the Step Three Listing determination, the ALJ assigned the “most weight” to 4 the opinions of Dr. Pollack and Dr. Davis and “great weight” to the opinions of Dr. 5 Abraham and Dr. Reed. A.R. 21–22. For the RFC finding, the ALJ assigned “great 6 weight” to all four opinions. A.R. 24–25. His reasoning for each of these decisions was 7 that the opinions were “consistent with the medical evidence of record, discussed above.” 8 A.R. 22. 9 Dr. Pollack and Dr. Davis translated limitations on Needham’s concentration, 10 social functioning, and activities of daily living into a restriction to simple work. This is 11 permitted. See, e.g., Stubbs-Danielson, 539 F.3d at 1174 (ALJ properly relied on state 12 agency physician’s translation of claimant’s moderate mental limitations, which were 13 observed by an examining doctor, into a restriction to “simple” work). Contrary to 14 plaintiff’s argument that Stubbs-Danielson is factually distinguishable because the 15 translation only pertained to pace limitations (Reply at 4), Stubbs-Danielson’s reasoning 16 extended to “other mental limitations regarding attention, concentration, and adaption” 17 (Stubbs-Danielson, 539 F.3d at 1174). This principle applies equally to moderate 18 limitations in social functioning, attendance, and ability to do work without special 19 supervision—which are relevant to this case. See Hurley v. Astrue, Case No. 12-cv- 20 01993-EDL, 2013 WL 12125536, at *6 (N.D. Cal. Apr. 15, 2013) (attendance and 21 supervision); Allain v. Astrue, Case No. 09-cv-00810-MLG, 2009 WL 3514424, at *3 22 (C.D. Cal. Oct. 27, 2009) (social functioning). 23 Because the opinions of Dr. Abraham and Dr. Reed are consistent with those of 24 Dr. Davis and Dr. Pollack, the ALJ has not implicitly rejected the former two and did not 25 impermissibly elevate the latter two. At Step Three, the ALJ rated Needham’s degree of 26 functional limitations in four areas and “was not required to make any more specific 27 findings.” Hoopai v. Astrue, 499 F.3d 1071, 1078 (9th Cir. 2007). 1 Weight. 2 Plaintiff argues that the ALJ erroneously rejected his statements about the severity 3 of his mental condition, thereby leading to an erroneous Step Three determination and 4 RFC determination. 5 An ALJ engages in a two-part analysis to determine whether a claimant’s 6 testimony regarding subjective symptoms is credible. 7 “First, the ALJ must determine whether the claimant has presented objective 8 medical evidence of an underlying impairment ‘which could reasonably be expected to 9 produce the pain or other symptoms alleged.’” Garrison v. Colvin, 759 F.3d 995, 1014 10 (9th Cir. 2014) (quoting Lingenfelter v. Astrue, 504 F.3d 1028, 1035–36 (9th Cir. 2007)). 11 The ALJ determined that plaintiff’s medically determinable impairments could reasonably 12 be expected to cause the alleged symptoms, so this step is satisfied. A.R. 24. Neither 13 party challenges that determination. 14 Second, if the claimant satisfies the first part and there is no evidence of 15 malingering, “the ALJ can reject the claimant’s testimony about the severity of [his] 16 symptoms only by offering specific, clear and convincing reasons for doing so.” Garrison, 17 759 F.3d at 1014; see also Robbins v. Social Sec. Admin., 466 F.3d 880, 883 (9th Cir. 18 2006) (“[U]nless an ALJ makes a finding of malingering based on affirmative evidence 19 thereof, he or she may only find an applicant not credible by making specific findings as 20 to credibility and stating clear and convincing reasons for each.”); Morgan, 169 F.3d at 21 599 (the ALJ “must provide ‘specific, cogent reasons for the disbelief’”). In making 22 credibility determinations, the ALJ must specifically identify the testimony she finds not to 23 be credible and must explain what evidence undermines the testimony. See Holohan, 24 246 F.3d at 1208. When weighing the claimant’s credibility, the ALJ may consider factors 25 such as the “claimant’s reputation for truthfulness, inconsistencies either in claimant’s 26 testimony or between her testimony and her conduct, claimant’s daily activities, her work 27 record, and testimony from physicians and third parties concerning the nature, severity, 1 947, 958–59 (9th Cir. 2002) (internal quotation marks omitted). 2 At the second step, the ALJ found that petitioner’s testimony concerning the 3 intensity, persistence, and limiting effects of his impairments was not entirely credible 4 because (a) Needham’s testimony about why he quit working as a truck driver was 5 inconsistent with the record; and (b) Needham’s account of his limitations was 6 inconsistent with the medical evidence of record. A.R. 24. 7 a. Loss of Driver’s License 8 The parties dispute whether the ALJ permissibly discounted plaintiff’s testimony at 9 the hearing because of allegedly-inconsistent reports about why he stopped working as a 10 truck driver. 11 To determine whether the claimant's testimony regarding the severity of his 12 symptoms is credible, “the ALJ may consider . . . ordinary techniques of credibility 13 evaluation, such as the claimant's reputation for lying, prior inconsistent statements 14 concerning the symptoms, and other testimony by the claimant that appears less than 15 candid[.]” Smolen, 80 F.3d at 1284. 16 The ALJ found two of claimant’s statements to be inconsistent with the record. 17 A.R. 24. 18 First, the ALJ found that plaintiff’s testimony about why he lost his truck-driving job 19 was inconsistent with the record:

20 Claimant alleges he quit working as a truck driver in 2004 because of his conditions (Testimony and Exhibit 3E at 3). 21 However . . . the current medical evidence of record shows claimant was “previously employed as commercial truck driver, 22 but lost his license/job after crashing into a pole and received a DUI,” (Exhibit 11F at 42 and 43). . . . Claimant testified he does 23 not have a driver’s license because his mental conditions make him unsafe. As discussed above, the medical evidence of 24 record shows claimant lost his job after an alcohol-involved crash in 2004. A July 9, 2015 record from Catherine Reed, 25 M.D., indicates he was also in DUI classes at that time (Exhibit 17F at 23). Thus, claimant’s allegations of disabling mental 26 impairment are inconsistent with the medical evidence of record[.] 27 1 The record is not entirely clear on this point, and plaintiff’s own testimony 2 contributed to the ambiguity. Given the importance of live testimony and credibility 3 determinations to resolving this issue, the court does not find that the ALJ committed 4 reversible error by discounting plaintiff’s testimony at the hearing to some degree 5 because his testimony was inconsistent with the record with respect to why he no longer 6 had a license and stopped working as a truck driver. 7 Upon review of the record as a whole, the following timeline appears most 8 plausible with respect to Needham’s driving and work history, although it contains 9 inconsistencies and leaves room for clarification: 10 • From approximately 1988 or 1996 to 2004, plaintiff worked as a truck driver. 11 A.R. 519 (1996–2001); A.R. 270 (1988–2004). 12 • In 2000 or 2001, plaintiff was assaulted while on the job, driving his delivery 13 truck. A.R. 518–19. 14 • Following the 2001 assault, he stopped driving the truck and received some 15 compensation based on his disability. A.R. 519 (received “disability through 16 work” for about two years); A.R. 250–52 (no FICA earning after at least 17 2006, potentially earlier). 18 • In January 2004, he stopped working his job as a truck driver “because of 19 [his] conditions.” A.R. 270 (truck driver position ended in 2004); A.R. 250– 20 52 (no FICA earning after at least 2006, potentially earlier). 21 • Sometime during 2010–2013, for “a few months,” plaintiff had and lost a 22 part-time “job in construction.” See A.R. 40–41 (May 2017 testimony); 23 A.R. 582 (September 2013 report discussing loss of construction job); 24 A.R. 913 (2016 report stating that “construction was under the table”). 25 • A September 2013 report states that plaintiff was “Previously employed as 26 commercial truck driver, but lost his license/job after crashing into a pole 27 and received DUI.” A.R. 582–83. This report is vague and difficult to 1 • Around 2006, he divorced. A.R. 770. 2 • Somewhere between 2007 and 2010, he was charged with DUI. A.R. 50 3 (Needham testifying that he got the DUI “about a year” after the divorce 4 [2007]), 534 (December 2014 report stating DUI was about 6 years ago 5 [2008]), 770 (December 13, 2013 evaluation stating DUI happened “3 yrs. 6 ago” [2010]), 520 (March 2014 report stating DUI charged “[a]pproximately 7 six years ago” [2008]). 8 • September 2013 is plaintiff’s alleged onset date of disability. 9 • In 2016, plaintiff completed classes to earn back his license following the 10 DUI, after struggling to do so. A.R. 913 (completed classes in 8/2016), 534 11 (intent to complete classes as of 12/2014), 980 (intent to continue DUI 12 classes as of 8/2015). 13 • In May 2017, plaintiff testified before the ALJ. He stated that he was a 14 commercial truck driver within the past 15 years. He also stated that he did 15 “some demolition work” four, five, six, or seven years ago, which would 16 place that around 2010–2013. He did that part-time for a few months. A.R. 17 40–41. He also testified that he does not currently have a driver’s license 18 because “I’m not safe. I wouldn’t put the -- when I drove professionally I 19 considered it I was a professional and I’m not -- I couldn’t imagine putting 20 other peoples’ lives in danger by having me on the road.” A.R. 49. Lives 21 would be in danger because plaintiff can’t think or focus on the road 22 sufficiently. Plaintiff also stated “I’ve never been in an accident, I’ve never 23 had a ticket while driving professionally and I can’t give that. I can’t even 24 give 30 percent of my attention.” A.R. 49. He was later asked if he ever 25 had a DUI, and he answered “I had a DUI after the divorce. I think it was 26 about a year after. . . . I got a baby sitter and I went out and I was just 27 angry and stupid and I got -- drank more than I’ve ever done in my entire 1 It appears that plaintiff drove a delivery truck until 2001 when he was assaulted, 2 and following the assault he collected disability insurance until about 2004. He then got 3 divorced, had some off-the-books work in light construction/demolition, and was charged 4 with a DUI while driving for personal reasons, not associated with any employment. The 5 record generally supports a timeline wherein the DUI came some time after plaintiff lost 6 his truck-driving job. One piece of evidence in the record suggests otherwise, but that 7 record is not particularly reliable on this point. A.R. 582–83. That record is a medical 8 evaluation report based on an interview with plaintiff, and the reference to the DUI is 9 included near the end of a lengthy comment section that is primarily concerned with 10 plaintiff’s mental health. The notes discuss whether plaintiff was hopeful about the future, 11 which is when it noted that he was “[p]reviously employed as commercial truck driver, but 12 lost his license/job after crashing into a pole and received DUI.” A.R. 582–83. As 13 relevant to his mental health, the record is accurate enough because plaintiff could not 14 look forward to getting his driving job back because of the DUI—regardless of the 15 circumstances under which he lost his license. On remand, the ALJ has opportunity to 16 clarify the record on this point and reevaluate the reliability of claimant’s testimony. 17 Second, the ALJ found plaintiff’s statement about why he does not have a driver’s 18 license inconsistent with the record. The ALJ stated that “Claimant testified he does not 19 have a driver’s license because his mental conditions make him unsafe. As discussed 20 above, the medical evidence of record shows claimant lost his job after an alcohol- 21 involved crash in 2004” and that “he was also in DUI classes.” A.R. 24. 22 At the hearing, plaintiff was asked “You said you don’t have a driver’s license. 23 Why not?” to which he answered that he loves driving but does not feel safe driving 24 because he cannot sufficiently concentrate. A.R. 49. He later testified that he had 25 completed all of his DUI course requirements and could get his driver’s license back if he 26 passed the test. A.R. 50. 27 When assessing credibility, the ALJ may consider ordinary techniques of credibility 1 Smolen, 80 F.3d at 1284. Here, it is clear that plaintiff lost his driver’s license because of 2 his DUI offense. Although the record also suggests that by the time of his testimony he 3 had completed certain mandatory courses that were necessary (but not sufficient) steps 4 to regaining his license, the most acute cause of his lost license was his DUI. Yet, in 5 response to the question “you don’t have a diver’s license. Why not?”, plaintiff neglected 6 to mention his DUI at all, but rather testified that he did not feel safe driving. Although 7 plaintiff may have meant that he had not gone to take his driver’s license test because he 8 feels unsafe to drive—even though he would be permitted to take the test because he 9 finished his DUI classes—this is precisely the type of issue where deference to the ALJ’s 10 evaluation of live testimony is appropriate. Such less-than-candid testimony is a 11 permissible and specific reason for the ALJ to discount the credibility of plaintiff’s 12 testimony. Moreover, the harm to plaintiff’s credibility was not cured by a later discussion 13 about the DUI, raised only after he was specifically asked about it by counsel. A.R. 50. 14 b. Medical Record and Severity of Symptoms 15 Plaintiff argues that the ALJ did not cite to much of the record in the section of the 16 disposition discounting plaintiff’s testimony about his subjective symptoms, and that it is 17 improper to “isolate[] examples of improvement in the record” to reject his testimony. 18 Reply at 6. Defendant argues that the ALJ properly found that plaintiff’s allegations about 19 his inability to work were not supported by the medical record and treatment history, and 20 the ALJ cited relevant portions of the record elsewhere in the decision. Opp. 3–4. 21 With respect to “mental health issues, it is error to reject a claimant's testimony 22 merely because symptoms wax and wane in the course of treatment. Cycles of 23 improvement and debilitating symptoms are a common occurrence, and in such 24 circumstances it is error for an ALJ to pick out a few isolated instances of improvement 25 over a period of months or years and to treat them as a basis for concluding a claimant is 26 capable of working.” Garrison, 759 F.3d at 1017. Instead, reports of improvement “must 27 be interpreted with an understanding of the patient's overall well-being and the nature of 1 The ALJ considered plaintiff’s testimony that he is unable to work due to his 2 depression, which keeps him from getting up, showering, and brushing his teeth. A.R. 3 41–42. The testimony included allegations that Needham could not function during 4 manic phases lasting a week, that his depressions lasted up to three months, that he 5 heard voices preventing him from sleeping and concentrating, and that “doing really 6 good” meant “getting a good week or two out of a couple months.” Id. The ALJ 7 concluded that Needham’s allegations of his inability to work were inconsistent with the 8 “medical evidence of record,” specifically pointing to five pieces of evidence: 9 1. On April 27, 2016, Needham reported he was not bothered by his auditory 10 hallucinations and is able to ignore them. A.R. 871. 11 2. Needham testified that he goes to five or six meetings per week at his 12 transitional housing facility. 13 3. Needham testified that he gets along well with his housemates. 14 4. Needham testified in May 2017 that he was depressed the last three 15 months. Yet, he received a GAF score of 60 and said that he was “doing 16 well” on medications on September 29, 2016 (A.R. 1077), and in April 2017 17 records indicate that he felt stable on medications (A.R. 1084). 18 5. Needham testified that his medications are helpful in managing his 19 symptoms, “especially his newly prescribed Latuda.” A.R. 24. Yet, he has 20 been on Latuda since December 15, 2014. A.R. 864, 867. 21 6. Needham’s GAF scores ranged from 55 to 70 since he was “stabilized in 22 September 2013.” A.R. 24. 23 First, regarding the auditory hallucinations, the record is replete with references to 24 them and how they bother plaintiff. Here, the ALJ identified a single record diminishing 25 their severity. The ALJ summarized the record by writing that “he is not bothered by his 26 auditory hallucinations, which he is able to ignore.” A.R. 24. But even the particular 27 record cited to is more nuanced. It states that “AH [auditory hallucinations] have 1 show that his auditory hallucinations never pose a problem, that record evidences that 2 plaintiff experiences cycles of improvement with respect to his auditory hallucinations. At 3 that particular time, they “ha[d] decreased.” That is consistent with his testimony. 4 Plaintiff testified that for a few weeks out of every couple of months he “can think halfway 5 decent and the voices aren’t so loud and so persistent. It’s easier to block them out, to 6 ignore them. . . . To make them softer in my head. . . . It’s hard to explain.” A.R. 42. A 7 single examination occurring during a time when the hallucinations had decreased is not 8 sufficiently-attuned to “the patient's overall well-being and the nature of her symptoms” to 9 justify discounting plaintiff’s testimony. Garrison, 759 F.3d at 1017. 10 Second, neither party addressed Needham’s testimony that he regularly attends 11 meetings at his transitional housing facility, and the ALJ did not provide a citation 12 supporting that statement. As with Needham’s auditory hallucinations, his testimony is 13 more nuanced than the ALJ’s analysis suggests. Plaintiff testified that when he is “in the 14 pit,” he sleeps all the time. But “[t]hese past weeks I’ve been fighting everything really 15 strong. I go to -- thank God the building I live in has services and I go to at least five or 16 six meetings a week now to -- you know, to get me out of there, out of the room. They 17 know I’m bad at it, so they have my number, so they call me to remind me, because I 18 forget. You know? They call to remind me to tell me to come downstairs. Just, you 19 know -- I just have to walk down five stairs[.]” A.R. 44. In context of his full answer, 20 plaintiff appears to be describing a recent phase where he has come out of “the pit” and 21 was putting forth a large effort to attend meetings. Even then, he often forgot and was 22 regularly reminded to attend, even though the meetings took place steps away, in the 23 same building in which he lived. As with Needham’s auditory hallucinations, the ALJ 24 identified isolated evidence of a short and recent positive cycle in plaintiff’s abilities—not 25 an overall trend supported by the record. Moreover, the supporting testimony makes 26 clear that plaintiff requires assistance to attend even the meetings he does not miss. 27 Third, Needham testified that he gets along well with his housemates. This is 1 defendant how this fact undermines plaintiff’s other testimony or his credibility. 2 Fourth, the ALJ points out that plaintiff testified in May 2017 that he had recently 3 been depressed, yet records indicate that he was “doing well” on September 29, 2016 4 and was stable in April 2017. At the hearing, plaintiff testified that he “just got out of a 5 three month” depressive phase “just a few weeks ago.” A.R. 42, 44 (plaintiff has been 6 “fighting everything really strong” “these past weeks”). So, plaintiff testified on May 19, 7 2017 that he got out of a three-month depressive pit “a few weeks ago.” Although 8 imprecise, that would allow the depression to have subsided somewhere between mid- 9 April and early May. Accordingly, the three-month depressive episode could have started 10 around mid-January to early February 2017, and ended around mid-April or early May 11 2017. Of course, these dates are approximate. 12 The ALJ points out that the record reflects plaintiff was doing well, “feels stable,” 13 and was “very pleasant” on April 27, 2017. A.R. 1084, 1086. There is no indication of an 14 ongoing depressive episode at that time. Given that the exam at issue happened in late 15 April (only 22 days before the hearing before the ALJ), plaintiff’s testimony that his recent, 16 3-month depressive spell ended a “few weeks” ago is potentially consistent with the 17 record. At least, the report does not clearly and convincingly contradict plaintiff’s 18 testimony. For example, it would be consistent with plaintiff’s testimony and the medical 19 records cited by the ALJ (from September 2016 and April 2017) if plaintiff had been in a 20 3-month depressive episode sometime between November 2016 and mid-April 2017. 21 Fifth, the ALJ noted that plaintiff testified at the hearing that his medications are 22 helpful in managing his symptoms, including “[t]he newest one they just got me on, 23 Latuda.” A.R. 47; see also A.R. 24. The ALJ also pointed out that plaintiff had been on 24 Latuda since December 15, 2014. A.R. 864, 867. Yet, the ALJ did not explain why he 25 considered these points relevant. For example, the ALJ did not explain whether the 26 discrepancy in timeline suggested that plaintiff’s testimony was generally unreliable, 27 whether the testimony substantively suggested that plaintiff was now stable on his current 1 was relevant or unreliable. Absent some explanation, there is no specific, clear, and 2 convincing reason to reject plaintiff’s testimony about the severity of his symptoms based 3 on this point. 4 Sixth, the ALJ generally references, without citation, GAF scores assessed 5 beginning in September 2013 that range from 55 to 70. Although GAF scores can 6 provide useful information, general references to GAF scores over a long period, without 7 identification of particular assessments, are not sufficiently-specific to provide clear and 8 convincing evidence to discount plaintiff’s testimony. 9 Defendant’s briefing raises additional record evidence, uncited by the ALJ, to 10 support a finding that the medical record is inconsistent with plaintiff’s testimony. But the 11 ALJ must specifically identify the testimony he finds not to be credible and must explain 12 what evidence undermines that testimony. Holohan, 246 F.3d at 1208. It is not enough 13 that evidence exists in the record that the ALJ could have cited when making his 14 credibility determination. See Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (“We 15 review only the reasons provided by the ALJ in the disability determination and may not 16 affirm the ALJ on a ground upon which he did not rely.”). 17 3. Listing Determination 18 If a claimant establishes that his impairments meet or medically equal an 19 impairment listed in 20 C.F.R. part 404, subpart P, appendix 1, an ALJ will find that the 20 impairments are severe enough to prevent the performance of any gainful activity. See 21 20 C.F.R. §§ 404.1525(a), 416,925(a), 404.1526, 416.926. 22 The ALJ must show that he or she has evaluated the relevant evidence before 23 deciding whether the claimant meets or equals a listed impairment. Lewis, 236 F.3d at 24 512–13 (“A boilerplate finding is insufficient to support a conclusion that a claimant’s 25 impairment does not” meet or equal a listed impairment.). As relevant here, listing 12.04 26 can be satisfied by meeting the requirements of Paragraph A and either Paragraph B 27 or C. The court addresses each in turn. 1 First, plaintiff argues that the ALJ failed to address Paragraph A, even though “the 2 [r]ecords show [Needham] has five or more symptoms” meeting its requirements. Mot. at 3 20 n.4. Defendant argues that plaintiff’s argument is waived because generally 4 referencing a 6-page statement of facts does not adequately brief the argument. Opp. at 5 12. 6 The court need not reach this issue because the ALJ’s failure to mention 7 Paragraph A in the listing determination does not necessarily constitute legal error. The 8 ALJ appears to have assumed without deciding that Paragraph A was met, and moved 9 on to Paragraphs B and C, which he determined were not met. See Walters v. Colvin, 10 No. 14-cv-03147-RHW, 2016 WL 8233438, at *5 (E.D. Wash. June 15, 2016) (ALJ did 11 not commit error when finding that claimant did not meet Listing 12.04 despite not 12 discussing Paragraph A because substantial evidence showed that claimant did not meet 13 the Paragraph B and Paragraph C criteria). 14 b. Paragraph B 15 Neither party challenges the ALJ’s Paragraph B finding. 16 c. Paragraph C 17 To meet the Paragraph C requirements, claimant’s mental disorder must be 18 “serious and persistent.” Serious and persistent means that there is a medically 19 documented history of the existence of the mental disorder over a period of at least 2 20 years, and evidence shows both: (1) claimant relies, on an ongoing basis, upon medical 21 treatment, mental health therapy, psychosocial support(s), or a highly structured 22 setting(s) to diminish the symptoms and signs of the mental disorder; and (2) despite 23 claimant’s diminished symptoms and signs, he has achieved only marginal adjustment. 24 See 20 C.F.R. § Pt. 404, Subpt. P, App. 1. “Marginal adjustment” means that claimant’s 25 adaptation to the requirements of daily life is fragile; that is, he has minimal capacity to 26 adapt to changes in his environment or to demands that are not already part of his daily 27 life. Id. The marginal adjustment requirement is satisfied, for example, when changes or 1 deterioration in functioning. Id. 2 To make his listing determination, the ALJ first considered Paragraph B and 3 summarized the mental health treatments records from 2013 to 2017. After concluding 4 that Paragraph B was not satisfied, the ALJ summarily wrote that “the evidence fails to 5 establish the presence of the ‘paragraph C’ criteria,” and then listed the formal disjunctive 6 and conjunctive requirements of Paragraph C. A.R. 19–23. Plaintiff characterizes this 7 analysis as impermissible “boilerplate recitation.” Mot. at 20. 8 An ALJ can evaluate the medical record in a separate section before concluding 9 whether a petitioner meets the Paragraph C requirements. Lewis, 236 F.3d at 513 (the 10 law “requires an ALJ to discuss and evaluate the evidence that supports his or her 11 conclusion; it does not specify that the ALJ must do so under the heading ‘Findings’”); 12 see also Holguin v. Berryhill, Case No. 16-cv-06479-HRL, 2017 WL 3033672, at *4 (N.D. 13 Cal. July 18, 2017) (discussion of medical evidence in other sections is sufficient). 14 In this case, the ALJ discussed Needham’s medical records at length when 15 considering Paragraph B, immediately before concluding that he did not meet the 16 Paragraph C requirements. See A.R. 19–23. Contrary to plaintiff’s argument, the ALJ’s 17 reasoning concerning Paragraph B is appropriate for this court to assess when 18 determining whether the ALJ adequately supported his conclusion that plaintiff did not 19 satisfy Paragraph C. That said, although technically allowed, review of the ALJ’s 20 Paragraph C assessment is made difficult because the decision states all of 21 Paragraph C’s requirements in a single sentence, and simply concludes that plaintiff did 22 not satisfy Paragraph C. The ALJ has not explained which requirement or requirements 23 of Paragraph C were not met. 24 The court is left to guess, for example, whether the ALJ’s decision turned on 25 whether or not plaintiff had a medical disorder for two years. Equally, the decision may 26 have turned on the ALJ’s conclusion that there was insufficient evidence of ongoing 27 treatment or a structured setting that diminishes symptoms of plaintiff’s mental disorder. 1 evidence of marginal adjustment, meaning a minimal capacity to adapt to new demands 2 or changes in the environment. 3 Without identifying the basis for his decision—which, if provided, this court could 4 evaluate in light of earlier-assessed evidence—the ALJ has not made “sufficient findings 5 upon which a ‘reviewing court may know the basis for the decision.’” Jessica B. v. 6 Comm'r of Soc. Sec., Case No. 18-cv-3074-TOR, 2019 WL 850954, at *5 (E.D. Wash. 7 Jan. 30, 2019) (quoting Gonzalez v. Sullivan, 914 F.2d 1197, 1200 (9th Cir. 1990)). As 8 such, “the Court simply cannot determine from the ALJ's opinion how he came to the 9 conclusion that Plaintiff's ‘severe’ impairments did not meet or equal the Paragraph C 10 criteria under the listings.” Id.7 11 4. Whether RFC Finding Is Supported by Substantial Evidence 12 Plaintiff argues that the ALJ’s RFC determination is flawed based on the 13 arguments addressed above. Given the above discussion, on remand, the ALJ must 14 reassess the weight he assigns to plaintiff’s testimony, and he must reassess whether 15 plaintiff meets the Paragraph C requirements. Those assessments will inform the ALJ’s 16 RFC determination on remand. Needham articulates no other potential source of error 17 with respect to this finding. 18 5. Whether ALJ Erred by Relying on Vocation Expert Testimony Based on an 19 Incomplete Hypothetical 20 The ALJ may ask a vocational expert a question about a hypothetical claimant with 21 an RFC that reflects all of the claimant's limitations supported by the record, but the 22 hypothetical loses evidentiary value if it omits limitations. 23 Plaintiff argues that the ALJ omitted limitations based on the arguments addressed 24 above. This argument is duplicative of the argument that the RFC finding is not 25

26 7 Defendant argues that the ALJ’s Paragraph C determination is required because plaintiff has not been hospitalized since September 2013. But hospitalization is not a 27 requirement to satisfy Paragraph C. The regulation refers—as an example—to situations 1 supported by substantial evidence. For the same reasons discussed above, on remand, 2 the ALJ must reassess the weight he assigns to plaintiff’s testimony, and he must 3 reassess whether plaintiff meets the Paragraph C requirements. Those assessments will 4 inform the ALJ’s RFC determination on remand, which will in turn inform the evidentiary 5 weight appropriate to afford the hypothetical question posed to the vocational expert. 6 Needham articulates no other potential source of error with respect to this finding. 7 6. Whether Remand Is the Proper Disposition 8 “Remand for further administrative proceedings is appropriate if enhancement of 9 the record would be useful.” Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004) 10 (citing Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir. 2000)). Under Harman, the court 11 may credit evidence that was rejected by the ALJ and remand for an award of benefits “if 12 (1) the ALJ failed to provide legally sufficient reasons for rejecting the evidence; (2) there 13 are no outstanding issues that must be resolved before a determination of disability can 14 be made; and (3) it is clear from the record that the ALJ would be required to find the 15 claimant disabled were such evidence credited.” Benecke, 379 F.3d at 593 (citing 16 Harman, 211 F.3d at 1178). 17 With respect to the first Harman factor, the ALJ failed to provide legally sufficient 18 reasons for discounting plaintiff’s testimony regarding the severity of his symptoms. 19 Second, there are outstanding issues that must be resolved before a determination of 20 disability can be made. Specifically, the ALJ must determine how to weigh plaintiff’s 21 testimony, and whether plaintiff meets the Paragraph C requirements. Third, it is not 22 clear from the record that the ALJ would be required to find the claimant disabled even if 23 the evidence were credited. 24 It is appropriate here to follow the “ordinary remand rule” and not apply the “rare” 25 remedy of finding disability when the agency did not. See Treichler v. Comm’r of Soc. 26 Sec. Admin., 775 F.3d 1090 (9th Cir. 2014). 27 CONCLUSION 1 GRANTED. The Commissioner’s cross-motion for summary judgment is DENIED. The 2 ALJ’s decision to deny Needham’s disability benefits failed to adequately explain how he 3 weighed Needham’s testimony regarding the severity of his symptoms, and he failed to 4 adequately explain whether plaintiff meets the Paragraph C requirements. Thus, remand 5 is appropriate pursuant to 42 U.S.C. § 405(g). On remand, the ALJ should explain the 6 weight he accords plaintiff’s testimony, and his reasons for doing so. The ALJ should 7 also explain whether plaintiff meets the Paragraph C requirements, including in light of 8 whatever weight he accords plaintiff’s testimony. The ALJ’s consideration of these issues 9 on remand may or may not impact his RFC determination and the relevance of the 10 hypothetical question posed to the vocational expert. 11 This order fully adjudicates the motions listed at Nos. 18 and 19 of the clerk’s 12 docket for this case, closes the case, and terminates all pending motions. 13 IT IS SO ORDERED. 14 Dated: October 31, 2019 15 /s/ Phyllis J. Hamilton PHYLLIS J. HAMILTON 16 United States District Judge

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