Platt v. Commissioner of Social Security

• Court: District Court, S.D. California
• Decided: November 23, 2020
• Docket: 3:19-cv-00956-JLB
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 SOUTHERN DISTRICT OF CALIFORNIA 12 13 KARI P., Case No.: 19-cv-00956-JLB

14 Plaintiff, ORDER REGARDING CROSS- 15 v. MOTIONS FOR SUMMARY JUDGMENT 16 ANDREW M. SAUL,

Acting Commissioner of Social Security, 17 Defendant. 18 [ECF Nos. 13, 14] 19 20 On May 22, 2019, plaintiff Kari P. (“Plaintiff”) filed a Complaint pursuant to 21 42 U.S.C. § 405(g) seeking judicial review of a decision by the Commissioner of Social 22 Security (“Commissioner”) denying her application for a period of disability and disability 23 benefits. (ECF No. 1.) 24 Now pending before the Court and ready for decision are the parties’ cross-motions 25 for summary judgment. (ECF Nos. 13, 14.) For the reasons set forth herein, Plaintiff’s 26 motion for summary judgment is GRANTED, the Commissioner’s cross-motion for 27 summary judgment is DENIED, and this matter is remanded for further administrative 28 proceedings consistent with this Order. 1 I. PROCEDURAL BACKGROUND 2 On April 28, 2016, Plaintiff filed an application for a period of disability and 3 disability benefits under Title II of the Social Security Act, alleging disability beginning 4 April 15, 2016. (Certified Administrative Record (“AR”) at 176–81.) After her application 5 was denied initially and upon reconsideration (AR 100–04, 106–11), Plaintiff requested an 6 administrative hearing before an administrative law judge (“ALJ”) (AR 112–13). An 7 administrative hearing was held on May 4, 2018. (AR 35–67.) Plaintiff appeared at the 8 hearing with counsel, and testimony was taken from her, as well as from a vocational expert 9 (“VE”). (AR at 35–67.) 10 As reflected in his September 6, 2018 hearing decision, the ALJ found that Plaintiff 11 had not been under a disability, as defined in the Social Security Act, from April 15, 2016 12 through the date of decision. (AR 17–34.) The ALJ’s decision became the final decision 13 of the Commissioner on April 22, 2019, when the Appeals Council denied Plaintiff’s 14 request for review. (AR 1–6.) This timely civil action followed. (ECF No. 1.) 15 II. SUMMARY OF THE ALJ’S FINDINGS 16 In rendering his decision, the ALJ followed the Commissioner’s five-step sequential 17 evaluation process. See 20 C.F.R. § 404.1520(a). At step one, the ALJ found that Plaintiff 18 had not engaged in substantial gainful activity since April 15, 2016, the alleged onset date. 19 (AR 22.) 20 At step two, the ALJ found that Plaintiff had the following severe impairment: aortic 21 dissection. (AR 22–24.) 22 At step three, the ALJ found that Plaintiff did not have an impairment or combination 23 of impairments that met or medically equaled the severity of one of the impairments listed 24 in the Commissioner’s Listing of Impairments. (AR 24.) 25 Next, the ALJ determined that Plaintiff had the residual functional capacity (“RFC”) 26 “to perform light work” with the following limitations: 27 /// 28 /// 1 [S]he is limited to occasional climbing of ramps and stairs, occasional climbing of ladders, ropes, or scaffolds, and occasional balancing, stooping, 2 kneeling, crouching, and crawling. 3 4 (AR 24–27.) 5 For purposes of his step four determination, the ALJ determined that Plaintiff was 6 unable to perform any past relevant work. (AR 27.) 7 The ALJ then proceeded to step five of the sequential evaluation process. Based on 8 the VE’s testimony that a hypothetical person with Plaintiff’s vocational profile and RFC 9 could perform the requirements of occupations that existed in significant numbers in the 10 national economy (i.e., information clerk, sub-assembler, hand packager), the ALJ found 11 that Plaintiff was not disabled under the law from April 15, 2016 through the date of 12 decision. (AR 28–29.) 13 III. PLAINTIFF’S CLAIMS OF ERROR 14 As reflected in Plaintiff’s motion for summary judgment, the disputed issues that 15 Plaintiff is raising as the grounds for reversal and remand are as follows: 16 1. Is it legally permissible for the ALJ to give great weight to Cardiologist 17 Folkerth, MD who limits Plaintiff to sedentary work and then find Plaintiff 18 able to perform light work? 19 2. Can the ALJ fail to address Plaintiff’s anxiety attacks including emergency 20 hospitalizations and not provide a mental RFC? 21 3. Did the Commissioner meet his burden of proof at step five where he provided 22 three jobs which exceed Plaintiff’s [limitations according to her] treating 23 cardiologist [to] who[m] the ALJ gave great weight? 24 4. Is the Commissioner required to provide a new hearing where the case is 25 within the time frame pursuant to Lucia v. SEC, 138 S. Ct. 2044 (2018)? 26 (ECF No. 13-1 at 5.) 27 /// 28 /// 1 IV. STANDARD OF REVIEW 2 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner’s decision to 3 determine whether the Commissioner’s findings are supported by substantial evidence and 4 whether the proper legal standards were applied. DeLorme v. Sullivan, 924 F.2d 841, 846 5 (9th Cir. 1991). Substantial evidence means “more than a mere scintilla” but less than a 6 preponderance. Richardson v. Perales, 402 U.S. 389, 401 (1971); Desrosiers v. Sec’y of 7 Health & Human Servs., 846 F.2d 573, 575–76 (9th Cir. 1988). Substantial evidence is 8 “such relevant evidence as a reasonable mind might accept as adequate to support a 9 conclusion.” Richardson, 402 U.S. at 401. This Court must review the record as a whole 10 and consider adverse as well as supporting evidence. Green v. Heckler, 803 F.2d 528, 529– 11 30 (9th Cir. 1986). Where evidence is susceptible of more than one rational interpretation, 12 the Commissioner’s decision must be upheld. Gallant v. Heckler, 753 F.2d 1450, 1453 13 (9th Cir. 1984). In reaching his findings, the ALJ is entitled to draw inferences which 14 logically flow from the evidence. Id. 15 V. DISCUSSION 16 A. Opinion of Theodore Folkerth, MD 17 1. Background 18 On June 26, 2013, Plaintiff was brought to the hospital at Tri-City Medical Center 19 and was diagnosed with a Type A aortic dissection with extension through the arch and the 20 descending thoracic and abdominal aorta. (AR 350–51.) She was taken urgently to the 21 operating room for repair and had successful repair of the aortic arch. (AR 348.) Her 22 surgeon was Theodore Folkerth, MD. (AR 348, 352.) 23 A month later, on July 25, 2013, Dr. Folkerth stated as follows: 24 [Plaintiff] is now status post operative repair of a left Type A aortic dissection, 25 also with repair of the left external iliac artery done on June 26th. She is 26 currently doing quite well, increasing her exercise on a daily basis, and has established a relationship with the primary care physician that her husband 27 uses from Kaiser. 28 1 Current Medications: Metoprolol 50 mg. twice daily; Potassium Chloride 20 mEq. b.i.d.; Lisinopril 10 mg. daily; and Lasix 40 mg. daily. 2 Physical Exam: She looks well today, and her incision is healed nicely. She 3 had one small area of eschar at the site where the chest tubes were, which I 4 debridement in the office. Her chest is clear and the incision otherwise is healed quite nicely. Her blood pressure is 117/74 mmHg in the left arm, and 5 her heart rate is 96 and regular. 0 saturation on room air is 99%. 2 6 Impression: In general, I think she has made excellent progress. 7 (AR 347.) 8 On February 25, 2015, Dr. Folkerth noted that Plaintiff “has been back at work” and 9 “has been good about taking her medication.” (AR 356.) He also noted that she had 10 “significant anxiety about what she has been told about the remaining part of her aorta.” 11 (AR 356.) On August 16, 2016, Dr. Folkerth wrote a letter to the Social Security 12 Administration (“SSA”), which stated: 13 I am well-aware of [Plaintiff]’s aortic dissection since I performed the surgery 14 on June 26, 2013. At that time she had replacement of the ascending aorta with a 26 mm. Hemashield graft under circulatory arrest, and then also had to 15 undergo an exploratory laparotomy with repair of a left external iliac artery 16 perforation. The patient has had a history of hypertension and I have not been involved with her care for the last 2 ½ years. 17 It would be ill-advised for [Plaintiff] to be involved with any work that 18 involved isometric activities which is common to be physically involved with 19 construction unless she was able to have an administrative or clerical-type situation. The medical conditions that led to this aortic dissection includes 20 hypertension, and the fact that the aorta did dissect indicates that this is a 21 chronic illness and she should not be involved with any work or non-work situations that could lead to further dissection, including any isometric-type 22 exercises. 23 If further information is needed, I would be happy to supply it as this is a 24 chronic situation and these recommendations are for life. 25 (AR 446.) 26 2. Legal Standard 27 There are three types of medical opinions (treating, examining, and nonexamining) 28 and each type is accorded different weight. See Valentine v. Comm’r of Soc. Sec. Admin., 1 574 F.3d 685, 692 (9th Cir. 2009); Lester v. Chater, 81 F.3d 821, 830–31 (9th Cir. 1996). 2 Generally, more weight is given to the opinion of a treating source than the opinion of a 3 doctor who did not treat the claimant. See Garrison v. Colvin, 759 F.3d 995, 1012 (9th 4 Cir. 2014). Medical opinions and conclusions of treating physicians are accorded special 5 weight because these physicians are in a unique position to know claimants as individuals, 6 and because the continuity of their dealings with claimants enhances their ability to assess 7 the claimants’ problems. See Embrey v. Bowen, 849 F.2d 418, 421–22 (9th Cir. 1988); 8 Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1987); see also Bray v. Comm’r of Soc. Sec. 9 Admin., 554 F.3d 1219, 1228 (9th Cir. 2009) (“A treating physician’s opinion is entitled to 10 ‘substantial weight.’”). Greater weight is afforded “to a treating physician’s opinion 11 because ‘he is employed to cure and has a greater opportunity to know and observe the 12 patient as an individual.’” Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989) 13 (quoting Sprague v. Bowen, 812 F.2d 1226, 1230 (9th Cir. 1987)). 14 “The ALJ must consider all medical opinion evidence.” Tommasetti v. Astrue, 533 15 F.3d 1035, 1041 (9th Cir. 2008) (citing 20 C.F.R. § 404.1527(b)). “Where an ALJ does 16 not explicitly reject a medical opinion or set forth specific, legitimate reasons for crediting 17 one medical opinion over another, he errs.” Garrison, 759 F.3d at 1012. “[A]n [ALJ] may 18 disregard [a] medical opinion that is brief, conclusory, and inadequately supported by 19 clinical findings.” Britton v. Colvin, 787 F.3d 1011, 1012 (9th Cir. 2015) (per curiam); see 20 also Burrell v. Colvin, 775 F.3d 1133, 1140 (9th Cir. 2014). 21 If a treating doctor’s opinion is not contradicted by another doctor, it may be rejected 22 only for “clear and convincing” reasons supported by substantial evidence in the record. 23 See Ryan v. Comm’r of Soc. Sec. Admin., 528 F.3d 1194, 1198 (9th Cir. 2008) (citation 24 omitted). Treating physicians’ subjective judgments are important, and “properly play a 25 part in their medical evaluations.” Embrey, 849 F.2d at 422. “Even if the treating doctor’s 26 opinion is contradicted by another doctor, the Commissioner may not reject this opinion 27 without providing ‘specific and legitimate reasons’ supported by substantial evidence in 28 the record for so doing.” Lester, 81 F.3d at 830 (citation omitted). 1 The ALJ accords “controlling weight” to a treating doctor’s opinion where medically 2 acceptable clinical and laboratory diagnostic techniques support the opinion and the 3 opinion is not inconsistent with other substantial evidence. See 20 C.F.R. § 404.1527(c)(2); 4 Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017). When a treating doctor’s opinion 5 is not controlling, it is weighted according to factors such as the length of the treatment 6 relationship and the frequency of examination, the nature and extent of the treatment 7 relationship, supportability, and consistency with the record. Id. (citing 20 C.F.R. 8 § 404.1527(c)(2)–(6)). Greater weight is given to the “opinion of a specialist about medical 9 issues related to his or her area of specialty.” Id. (citing 20 C.F.R. § 404.1527(c)(5)). 10 “The ‘RFC is an administrative assessment of the extent to which an individual’s 11 medically determinable impairment(s), including any related symptoms, such as pain, may 12 cause physical or mental limitations or restrictions that may affect his or her capacity to do 13 work-related physical and mental activities.’” Laborin v. Berryhill, 867 F.3d 1151, 1153 14 (9th Cir. 2017) (quoting Social Security Regulation (“SSR”) 96–8p, 1996 WL 374184, at 15 *2 (July 2, 1996)).1 “It ‘is the most [a claimant] can still do despite [his or her] 16 limitations.’” Id. (quoting 20 C.F.R. § 416.945(a)(1)); see also 20 C.F.R. § 404.1545(a)(1). 17 “The ALJ assesses a claimant’s RFC based on all the relevant evidence in [the] case 18 record.” Id. (quotation marks and citation omitted); see also 20 C.F.R. § 404.1545(a)(3). 19 The ALJ must consider both the medical evidence and “descriptions and observations of 20 [the claimant’s] limitations from [the claimant’s] impairment(s), including limitations that 21 result from [the claimant’s] symptoms, such as pain, provided by” the claimant, family, 22 friends, and other people. Id. (quoting 20 C.F.R. § 416.945(a)(3)); see also 20 C.F.R. 23

24 25 1 SSRs “do not carry the force of law, but they are binding on ALJs nonetheless,” and “[t]hey reflect the official interpretation of the SSA and are entitled to 26 some deference as long as they are consistent with the Social Security Act and regulations.” 27 Molina v. Astrue, 674 F.3d 1104, 1113 n.5 (9th Cir. 2012) (citations omitted), superseded by regulation on other grounds; see also Holohan v. Massanari, 246 F.3d 1195, 1203 n.1 28 1 § 404.1545(a)(3). The RFC assessment must “[c]ontain a thorough discussion and analysis 2 of the objective medical and other evidence, including the individual’s complaints of pain 3 and other symptoms and the adjudicator’s personal observations, if appropriate.” SSR 96– 4 8p, 1996 WL 374184, at *7. 5 3. Analysis 6 Plaintiff argues that the ALJ erred in giving great weight to Dr. Folkerth’s opinion 7 and still finding Plaintiff capable of performing light work. (ECF No. 13-1 at 5–16.) 8 Dr. Folkerth opined that Plaintiff should not be involved with any work involving isometric 9 activities, which are commonly involved with construction, unless she could have an 10 administrative or clerical-type situation. (ECF No. 13-1 at 11–12; see also AR 446.) The 11 ALJ gave great weight to Dr. Folkerth’s opinion, stating as follows: 12 Dr. Folkerth opined that the claimant is precluded from any work involving 13 isometric activities, commonly involved with construction ([AR 446]). Dr. Folkerth’s opinion regarding the claimant’s functional limitations is 14 highly credible because it is well-supported by the objective medical 15 evidence, including records of the claimant’s surgical treatment and diagnostic evidence. It is also consistent with the record a whole, including 16 the claimant’s activities of daily living. Thus, the undersigned assigns great 17 weight to Dr. Folkerth’s opinion. 18 (AR 26.) 19 After taking into consideration the record as a whole, including Dr. Folkerth’s 20 opinion, the ALJ determined that Plaintiff was able to perform “light work,”2 with no other 21 exertional limitations.3 The question is therefore whether these limitations incorporate 22 23 24 2 “Light work involves lifting no more than 20 pounds at a time with frequent 25 lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, 26 or when it involves sitting most of the time with some pushing and pulling of arm or leg 27 controls.” 20 C.F.R. § 404.1567(b). 3 “Exertional capacity addresses an individual’s limitations and restrictions of 28 1 Dr. Folkerth’s prohibition on isometric activities. Plaintiff urges the Court to construe 2 Dr. Folkerth’s opinion as requiring sedentary work; while the Commissioner argues that 3 the ALJ’s RFC assessment contained all the limitations the ALJ found supported by 4 substantial evidence. (See ECF Nos. 13-1 at 11–13; 14-1 at 15.) As set forth below, the 5 Court finds that the ALJ erred by not adequately resolving this question. 6 Neither Dr. Folkerth nor the ALJ defined isometric activities. Plaintiff defines 7 isometric activity circularly as “resisting or pushing; isometric muscle action.” (ECF No 8 13-1 at 15 n.3.) Defendant defines it as “‘contractions of a particular muscle or group of 9 muscles’ where ‘the muscle [does not] noticeably change length and the affected joint [does 10 not] move.’” (ECF No. 14-1 at 14 (citing MayoClinic.org, Laskowski, Edward, M.D., Are 11 isometric exercises a good way to build strength? (Jan. 17, 2018), available at 12 https://www.mayoclinic.org/healthy-lifestyle/fitness/expert-answers/isometric- 13 exercises/faq-20058186).) Similarly, Stedman’s Medical Dictionary defines isometric 14 exercises as exercises “consisting of muscular contractions without movement of the 15 involved parts of the body.” Isometric Exercise, Stedman’s Medical Dictionary 309480 16 (revised 2014). Isometric exercise is often contrasted with isotonic exercise where 17 muscular contractions shorten or lengthen the muscles, resulting in movement of the 18 joints.5 For example, a plank or a wall sit would be considered isometric exercises. Lunges 19 20 21 strength demands: Sitting, standing, walking, lifting, carrying, pushing, and pulling.” SSR 22 96–8p, 1996 WL 374184, at *5. 23 4 The State Agency physicians who reviewed Plaintiff’s medical records opined that Plaintiff was capable of performing light work, but they did not have the benefit of 24 Dr. Folkerth’s opinion regarding Plaintiff’s limitations on isometric activities. (See AR 25 68–80, 82–94.) 5 Compare Isometric exercises (“Exercise against a fixed resistance, i.e., the 26 muscles become tense but do not shorten.”) with Isotonic contractions (“Exercises where 27 the tension remains the same while the joint moves (the muscles lengthen and shorten), e.g., in swimming or riding an exercise bicycle.”), Glossary of terms, 1 Medical 28 1 and push-ups, as well as walking and riding a bicycle, on the other hand, would be 2 considered isotonic exercises. 3 Here, the ALJ concluded that Plaintiff was capable of light work, which includes 4 lifting up to 20 pounds at a time with frequent lifting or carrying of objects weighing up to 5 10 pounds. (AR 24 (citing 20 C.F.R. § 404.1567(b).) These lifting and carrying limitations 6 reflect the opinions of the State Agency physicians and have support in the record.6 7 However, the definition of light work does not specifically address the distinction between 8 isometric and isotonic activities. And the ALJ neither included a further restriction of no 9 isometric exercise nor reconciled this limitation with the demands of the full range of light 10 work, despite having given great weight to Dr. Folkerth’s opinion. Therefore, the ALJ 11 erred. See Valentine, 574 F.3d at 690 (“[A]n RFC that fails to take into account a claimant’s 12 limitations is defective.”). 13 The Court further finds that this error was not harmless. The hypothetical an ALJ 14 poses to a VE, which derives from the RFC, “must set out all the limitations and restrictions 15 of the particular claimant.” Id. (quoting Embrey, 849 F.2d at 422). Here, the hypotheticals 16 given to the VE, derived from the RFC, did not include Plaintiff’s limitations on isometric 17 activities. Additionally, although the VE testified that there would be jobs in the national 18 economy even if Plaintiff was limited to sedentary work, as the ALJ recognized during the 19 hearing, the application of the Medical Vocational Guidelines, or “the grids,” may direct a 20 finding of disabled. 21 Medical-Vocational Rule 201.14 directs a finding of disability where the claimant is 22 limited to sedentary work, is an individual closely approaching advanced age, has at least 23 a high school education, has previous skilled or semiskilled job experience but no 24 25

26 27 6 Plaintiff testified to being able to lift a gallon of milk (or 8 to 10 pounds) and her treating cardiologist, Dr. Stephan, stated in October 2016 that Plaintiff should not lift 28 1 transferrable skills, and no basis for direct entry into skilled sedentary work. 20 C.F.R. 2 Pt. 404, Subpt. P, App. 2, § 201.14. Here, the ALJ determined that Plaintiff was an 3 individual closely approaching advanced age, had at least a high school education, and 4 previously performed semiskilled work. (AR 27.) Based on the foregoing, Rule 201.14 5 would apply if she had no transferrable job skills. The ALJ did not determine whether 6 Plaintiff had transferrable job skills, however, deeming the issue immaterial for purposes 7 of his decision. (AR 27.)8 Accordingly, the Court cannot find that the ALJ’s error was 8 inconsequential to the outcome and therefore harmless. See Boykin v. Berryhill, No. 1:16- 9 CV-00853-GSA, 2017 WL 1739831, at *4 (E.D. Cal. May 4, 2017) (remanding because 10 the ALJ erroneously applied the light grids instead of the sedentary grids and never reached 11 the issue of transferability of skills). 12 B. Mental RFC 13 Next, Plaintiff argues that the ALJ erred in failing to address Plaintiff’s mental 14 impairments in formulating his RFC. (ECF No. 13-1 at 16–17.) To determine whether a 15 claimant has a severe mental impairment at step two of the Commissioner’s sequential 16 evaluation process, an ALJ must follow a “special technique.” See 20 C.F.R. 17 § 404.1520a(a). This entails the following steps: determining whether the claimant has any 18 19 20 7 See also 20 C.F.R. Pt. 404, Subpt. P, App. 2, § 201.00(g) (“Individuals 21 approaching advanced age (age 50–54) may be significantly limited in vocational adaptability if they are restricted to sedentary work. When such individuals have no past 22 work experience or can no longer perform vocationally relevant past work and have no 23 transferable skills, a finding of disabled ordinarily obtains. However, recently completed education which provides for direct entry into sedentary work will preclude such a finding. 24 For this age group, even a high school education or more (ordinarily completed in the 25 remote past) would have little impact for effecting a vocational adjustment unless relevant work experience reflects use of such education.”). 26 8 Although the ALJ stated in his decision that he was not determining whether 27 Plaintiff had transferrable job skills as the issue was immaterial to his decision, the Court notes that the ALJ did inquire of the VE at the hearing whether Plaintiff had transferable 28 1 medically determinable mental impairments; rating the degree of functional limitation 2 resulting from the mental impairment(s) in four broad functional areas; determining the 3 severity of the mental impairment(s); and then, if any of the mental impairments is severe, 4 proceeding to step three of the sequential evaluation process. See id. § 404.1520a(b)–(d). 5 The four broad functional areas are: understand, remember, or apply information; 6 interact with others; concentrate, persist, or maintain pace; and adapt or manage oneself. 7 See id. § 404.1520a(c)(3). In rating the degree of limitation in these areas, the following 8 five-point scale is utilized: None, mild, moderate, marked, and extreme. See id. 9 § 404.1520a(c)(4). Under the Commissioner’s regulations, if the degrees of limitation are 10 rated as “none” or “mild,” the impairment generally is considered not severe, “unless the 11 evidence otherwise indicates that there is more than a minimal limitation in [a claimaint’s] 12 ability to do basic work activities.” See id. § 404.1520a(d)(1). 13 Here, the ALJ’s decision reflects that he followed the “special technique” at step 14 two. He acknowledged that Plaintiff had the medically determinable mental impairments 15 of anxiety and depression. (AR 23.) He then proceeded to find that (a) Plaintiff had no 16 limitation in the first, second, and third broad functional areas (i.e., understanding, 17 remembering or applying information; interacting with others; and concentrating, 18 persisting, or maintaining pace), and (b) Plaintiff had only a mild degree of limitation in 19 the other broad functional area (i.e., adapting or managing oneself). (AR 23–24.) 20 Accordingly, the ALJ found that “[b]ecause the claimant’s medically determinable mental 21 impairments cause no more than ‘mild’ limitation in any of the functional areas, they are 22 nonsevere.” (AR 24.) 23 Plaintiff is not challenging the ALJ’s non-severity finding. Rather, Plaintiff 24 contends that the ALJ erred in failing to address Plaintiff’s mental impairments in 25 formulating his RFC. (ECF No. 13-1 at 16–17.) Plaintiff contends that the ALJ was 26 required to weigh the evidence and follow the special technique in formulating Plaintiff’s 27 RFC, and he failed to do so. (ECF No. 16 at 8–9.) 28 /// 1 In assessing a claimant’s RFC, an ALJ must consider the limiting effect of all 2 impairments, including those that are non-severe. See 20 C.F.R. § 404.1545(a)(2). “While 3 a ‘not severe’ impairment(s) standing alone may not significantly limit an individual’s 4 ability to do basic work activities, it may—when considered with limitations or restrictions 5 due to other impairments—be critical to the outcome of a claim.” SSR 96–8p, 1996 WL 6 374184, at *5. 7 The ALJ’s step two assessment of the four broad areas of mental functioning, known 8 as the “paragraph B” criteria, is not an RFC assessment. See id. at *4. Rather, in 9 formulating the mental RFC used at steps four and five of the sequential evaluation process, 10 the ALJ is required to perform “a more detailed assessment by itemizing various functions 11 contained in the broad categories found in paragraphs B and C of the adult mental disorders 12 listings in 12.00 of the Listing of Impairments, and summarized on the [Psychiatric Review 13 Technique Form].” Id. 14 In Hutton v. Astrue, 491 F. App’x 850 (9th Cir. 2012), the ALJ determined at step 15 two that the claimant’s post-traumatic stress disorder (“PTSD”) caused mild limitations in 16 concentration, persistence or pace, but was non-severe. Id. at 850. The ALJ later explicitly 17 excluded consideration of the claimant’s PTSD in making his determination of the 18 claimant’s RFC because he found that the claimant lacked credibility. In holding that the 19 ALJ had erred, the Ninth Circuit reasoned: “[W]hile the ALJ was free to reject Hutton’s 20 testimony as not credible, there was no reason for the ALJ to disregard his own finding that 21 Hutton’s nonsevere PTSD caused some ‘mild’ limitations in the areas of concentration, 22 persistence, or pace.” Id.at 851. 23 Numerous courts in this Circuit have followed Hutton and found reversible error 24 where the ALJ failed to include mild mental limitations found at step two in the assessment 25 of the claimant’s RFC. See, e.g., Carlson v. Berryhill, No. 18-CV-03107-LB, 2019 WL 26 1116241, at *17–18 (N.D. Cal. Mar. 10, 2019); Barrera v. Berryhill, No. CV 17-07096- 27 JEM, 2018 WL 4216693, at *4–5 (C.D. Cal. Sept. 5, 2018); Gates v. Berryhill, No. ED CV 28 16–00049 AFM, 2017 WL 2174401, at *2 (C.D. Cal. May 16, 2017); Smith v. Colvin, No. 1 14-cv-05082-HSG, 2015 WL 9023486, at *8–9 (N.D. Cal. Dec. 16, 2015); Kramer v. 2 Astrue, No. CV 12–5297–MLG, 2013 WL 256790, at *2–3 (C.D. Cal. Jan. 22, 2013). 3 Here, at step two, the ALJ found mild limitation in Plaintiff’s ability to adapt or 4 manage oneself. (AR 24.) This finding was based on Plaintiff’s testimony that she is 5 limited in cleaning and performing activities of daily living, and her husband’s testimony 6 in a functional report that she does not handle changes in routine or stress well.9 (AR 24.) 7 In addressing Plaintiff’s RFC, the ALJ did not discuss or consider the mild limitation 8 caused by Plaintiff’s anxiety and depression.10 He did give the testimony of Plaintiff’s 9 husband no weight, finding his statements unpersuasive “of additional restrictions in the 10 [RFC], as the clinical or diagnostic medical evidence does not support” his assertions. (AR 11 26.) However, as in Hutton, while the ALJ was free to reject Plaintiff’s husband’s 12 testimony, there was no apparent reason for the ALJ to disregard his own finding that 13 Plaintiff’s nonsevere anxiety and depression caused some mild limitation in her ability to 14 adapt or manage herself. See Hutton, 491 F. App’x at 851. 15 Based on the foregoing, the Court finds that the ALJ erred in failing to properly 16 consider Plaintiff’s mild mental limitations in formulating the RFC. 17 /// 18 /// 19

20 21 9 Plaintiff’s husband stated that she does not handle stress well, but she handles changes in routine “ok.” (AR 293.) 22 10 The Court finds the ALJ’s boilerplate statement at step 2 that his subsequent 23 RFC assessment “reflects the degree of limitation the undersigned has found in the ‘paragraph B’ mental function analysis” to be insufficient. See Uranna G. v. Saul, No. 24 3:18-CV-02117-RNB, 2019 WL 5342537, at *4 (S.D. Cal. Oct. 21, 2019) (finding the 25 exact same statement insufficient for purposes of the RFC analysis); Smith, 2015 WL 9023486, at *8–9 (same); Carlson, 2019 WL 1116241, at *17 (same); cf. Curtis v. Comm’r 26 of Soc. Sec., 584 F. App’x 390, 391 (9th Cir. 2014) (“Although the ALJ wrote that he 27 considered ‘[a]ll impairments, severe and non-severe,’ in determining Curtis’ residual functional capacity (RFC), we are unable to determine on the record before us whether the 28 1 C. Testimony of Plaintiff and Spouse 2 Next, Plaintiff argues that the ALJ failed to properly consider her symptom 3 testimony and the testimony of her husband. (ECF No. 13-1 at 17–19.) Plaintiff 4 specifically points to her hearing testimony, where she claimed she could no longer work 5 because she has issues with her aorta on both sides of her neck (see id. at 18 (citing AR 6 43)), and Plaintiff’s husband testimony that Plaintiff needs a ten-minute rest after she walks 7 about one-quarter mile (id.). Plaintiff claims the ALJ’s rejection of this symptom testimony 8 “was ‘improperly cherry-picked’ out of context and thus not based on substantial 9 evidence.” (Id. at 19.) 10 1. Legal Standard 11 Where, as here, there is no evidence of malingering and the ALJ concludes that 12 Plaintiff has provided objective medical evidence of an underlying impairment which 13 might reasonably produce the pain or other symptoms alleged, the ALJ may “reject the 14 claimant’s testimony about the severity of her symptoms only by offering specific, clear 15 and convincing reasons for doing so.” Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th 16 Cir. 2007) (citation and internal quotation marks omitted). A finding that a claimant’s 17 testimony is not credible “must be sufficiently specific to allow a reviewing court to 18 conclude the adjudicator rejected the claimant’s testimony on permissible grounds and did 19 not arbitrarily discredit a claimant’s testimony regarding [the symptom].” Bunnell v. 20 Sullivan, 947 F.2d 341, 345–46 (9th Cir. 1991) (citation and internal quotation marks 21 omitted). “General findings are insufficient; rather, the ALJ must identify what testimony 22 is not credible and what evidence undermines the claimant’s complaints.” Reddick v. 23 Chater, 157 F.3d 715, 722 (9th Cir.1998) (citation and internal quotation marks omitted); 24 see also Holohan, 246 F.3d at 1208 (“[T]he ALJ must specifically identify the testimony 25 she or he finds not to be credible and must explain what evidence undermines the 26 testimony.”); SSR 96–7p, 1996 WL 374186 at *2 (July 2, 1996). In weighing a claimant’s 27 credibility, the ALJ may consider the claimant’s reputation for truthfulness, inconsistencies 28 either in his testimony or between his testimony and his conduct, unexplained or 1 inadequately explained failure to seek treatment or to follow a prescribed course of 2 treatment, his daily activities, his work record, and testimony from physicians and third 3 parties concerning the nature, severity, and effect of the symptoms of which he complains. 4 See Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996) (citations omitted). 5 “In determining whether a claimant is disabled, an ALJ must consider lay witness 6 testimony concerning a claimant’s ability to work.” Stout v. Comm’r of Soc. Sec. Admin., 7 454 F.3d 1050, 1053 (9th Cir. 2006) (citing Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 8 1993); 20 C.F.R. §§ 404.1513(d)(4) & (e), 416.913(d)(4) & (e)); see also Molina, 674 F.3d 9 at 1114 (“Lay testimony as to a claimant’s symptoms or how an impairment affects the 10 claimant’s ability to work is competent evidence that the ALJ must take into account.”). 11 Lay testimony is competent evidence and cannot be disregarded without comment. 12 Molina, 674 F.3d at 1114 (citing Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996)); 13 Stout, 454 F.3d at 1053. To discount lay witness testimony, the ALJ must give reasons 14 germane to each witness. See Leon v. Berryhill, 880 F.3d 1041, 1046 (9th Cir. 2018) (as 15 amended); Molina, 674 F.3d at 1114. An ALJ is not, however, required “to discuss every 16 witness’s testimony on an individualized, witness-by-witness basis.” Molina, 674 F.3d at 17 1114. “Rather, if the ALJ gives germane reasons for rejecting testimony by one witness, 18 the ALJ need only point to those reasons when rejecting similar testimony by a different 19 witness.” Id. 20 2. Analysis 21 a. Plaintiff’s Testimony 22 At the hearing, Plaintiff testified “that she could no longer work because she has 23 issues with her aorta on both sides of her neck.” (AR 25; see also AR 45.) She testified 24 that after surgery she “attempted to go back to work after 8 months of rest, however she 25 experienced lightheadedness.” (AR 25; see also AR 42–46.) She further testified that she 26 went to the emergency room in 2018 for chest pain. (AR 25; see also AR 52–53.) 27 In evaluating Plaintiff’s symptom testimony, the ALJ determined that Plaintiff’s 28 “medically determinable impairments could reasonably be expected to cause the alleged 1 symptoms; however, [her] statements concerning the[ir] intensity, persistence and limiting 2 effects . . . [we]re not entirely consistent with the medical evidence and other evidence in 3 the record.” (AR 25.) The ALJ reasoned that Plaintiff’s failure to “specify any particular 4 complaint related to” her aortic dissection after surgery (other than regular follow-up 5 treatment and monitoring) and the fact her treatment was “essentially routine and 6 conservative in nature” indicated that her symptoms and limitations were not as severe as 7 alleged. (AR 25–26.) As set forth below, the Court finds that the ALJ provided specific, 8 clear and convincing reasons, supported by substantial evidence in the record, for 9 discounting Plaintiff’s testimony about the severity of her symptoms. 10 “[E]vidence of ‘conservative treatment’ is sufficient to discount a claimant’s 11 testimony regarding severity of an impairment.” Parra v. Astrue, 481 F.3d 742, 751 (9th 12 Cir. 2007) (citing Johnson v. Shalala, 60 F.3d 1428, 1434 (9th Cir. 1995)). Here, the ALJ 13 fairly summarized Plaintiff’s post-surgery treatment for her aortic dissection, which can 14 reasonably be construed as conservative, as follows: 15 The medical evidence indicates that the claimant attended annual CT scans in 16 follow-up to the aortic dissection. During these visits, the record does not show significant findings or changes ([AR 805]). Moreover, the claimant 17 reported that she was “doing well and no issues” ([AR 800]). Several physical 18 examinations in 2017 and 2018 were unremarkable ([AR 818, 866]). An echocardiogram performed in November 2017 also reflected mild results. The 19 diagnostic imaging revealed mild left ventricular hypertrophy, mild aortic 20 regurgitation, and mild elevated descending thoracic aortic velocity of 2.1 m/s with no obvious coarctation ([AR 872]). The doctor noted that a stable 21 extensive type A thoracic aortic dissection with no significant change since 22 May 2016 ([AR 873]). Several months later, the claimant presented to the emergency room with chest pressure ([AR 893]). A CT scan revealed 23 postsurgical changes involving ascending aorta, however, there was no 24 evidence of pericardial effusion. The claimant’s heart size was within normal limits ([AR 911, 954–56]). The treating doctor assessed intrascapular pain 25 and ruled out dissection ([AR 901]). The lack of more aggressive treatment 26 or even a referral to a specialist suggests the claimant’s symptoms and limitations were not as severe as she alleged. The claimant even indicated 27 that her blood pressure was “fine” and that she walked regularly, covering 3.2 28 miles a day (Id. [see also AR 893]). 1 (AR 25–26.) 2 An ALJ may also consider an “unexplained or inadequately explained failure to seek 3 treatment” in determining whether a claimant’s testimony is credible. Smolen v. Chater, 4 80 F.3d 1273, 1284 (9th Cir. 1996); see also Molina, 674 F.3d at 1113 (a claimant’s 5 “statements may be less credible if the level or frequency of treatment is inconsistent with 6 the level of complaints” (quoting SSR 96–7p)). Here, although Plaintiff sought treatment, 7 the ALJ permissibly considered the lack of complaints in Plaintiff’s medical records 8 regarding her aortic dissection in determining that her symptoms were not as ongoing and 9 disabling as alleged. The ALJ pointed out that Plaintiff’s “medical notes reflect numerous 10 occasions on which [she] did not specify any particular complaint” related to her aortic 11 dissection after surgery. (AR 25.) The ALJ found the lack of complaints inconsistent with 12 Plaintiff’s “claim of ongoing, disabling symptoms since the alleged onset date.” (AR 25.) 13 Instead, the ALJ noted that Plaintiff sought treatment for other ailments during this time, 14 including “for a dermatofibroma on her left shoulder, mild low back pain from moving 15 boxes, and foot pain.” (AR 25 (citing AR 751, 757, 760).) 16 Plaintiff does not argue that the reasons identified by the ALJ are legally insufficient 17 or unsupported by substantial evidence. Rather, Plaintiff argues that the ALJ 18 impermissibly picked through the record to support discrediting Plaintiff’s testimony. 19 (ECF No. 13-1 at 18–19.) There is nothing before the Court to suggest, however, that the 20 ALJ improperly cherry-picked the record in discounting Plaintiff’s symptom testimony, 21 and Plaintiff does not identify which part of the record she believes the ALJ failed to 22 consider.11 23 /// 24 25 26 11 The only testimony cited by Plaintiff is her statement that her aorta is split and 27 cannot be fixed, thus suggesting that she cannot work. However, the Court notes that there are no medical opinions or notes from treating physicians indicating that Plaintiff cannot 28 1 For the foregoing reasons, the Court finds that the ALJ’s adverse credibility 2 determination is free of legal error and supported by substantial evidence in the record.12 3 b. Spouse’s Testimony 4 The Court further finds that the ALJ gave germane reasons for rejecting the 5 testimony of Plaintiff’s spouse. Plaintiff’s husband testified that she needs to take a ten- 6 minute rest after she walks about one-quarter mile. (ECF No. 13-1 at 19; see also AR 292.) 7 The ALJ gave no weight to the statement of Plaintiff’s husband. (AR 26.) The ALJ stated 8 that the husband’s assertions regarding Plaintiff’s limitations “are not persuasive of 9 additional restrictions in the [RFC], as the clinical or diagnostic medical evidence does not 10 support his statement.” (AR 26.) 11 Inconsistency with medical evidence is a germane reason to discredit the testimony 12 of a lay witness. Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005). Plaintiff does 13 not identify any medical evidence supporting her husband’s testimony regarding her need 14 to rest after walking one-quarter mile, and the Court cannot identify any such evidence. 15 Accordingly, the Court finds that the ALJ’s rejection of this testimony is also free of legal 16 error and supported by substantial evidence in the record. 17 D. Appointments Clause 18 Lastly, Plaintiff argues that the ALJ who oversaw her hearing was 19 “unconstitutionally appointed” and argues her “application is required to be remanded for 20 a new hearing with a different and constitutionally appointed ALJ.” (ECF No. 13-1 at 19.) 21 In support of her argument, Plaintiff relies on the Supreme Court’s decision in Lucia v. 22 SEC, 138 S. Ct. 2044, 2051 (2018). In Lucia, the Supreme Court held that ALJs of the 23 Securities and Exchange Commission (“SEC”) are “Officers of the United States,” subject 24 to the Appointments Clause of Article II of the United States Constitution. Lucia, 138 S. 25 Ct. 2055; see also U.S. Const. art. II, § 2, cl. 2. Lucia also held that the appropriate remedy 26 27 12 The Court notes that in making this finding it does not affirm the ALJ’s RFC 28 1 to a timely challenge “before the Commission” was a new hearing before a different ALJ 2 that was properly appointed. Id. at 2055. 3 When Lucia was decided on June 21, 2018, Plaintiff’s application was already 4 pending before the ALJ, who had held the hearing but not yet issued a decision. Although 5 Lucia did not involve the appointment of ALJs within the SSA, the Acting Commissioner 6 of the SSA responded to the ruling by ratifying the appointments of ALJs and 7 administrative appeals judges on her own to address any Appointments Clause concerns 8 involving Social Security claims on July 16, 2018.13 Accordingly, Plaintiff now argues 9 that because the ALJ was “unconstitutionally appointed” at the time he presided over her 10 hearing in May 2018, the matter should be remanded for a “new hearing with a different 11 and constitutionally appointed ALJ.” (ECF No. 13-1 at 19.) In response, Defendant argues 12 that Plaintiff failed to make a timely challenge to the validity of the ALJ appointment 13 because the issue was not raised before the ALJ and therefore, the issue has been waived. 14 (ECF No. 14-1 at 24–30.) 15 As the Court has decided that the case must be remanded for a new hearing based 16 on the merits, it need not decide whether an additional ground for remand is the 17 Appointments Clause. See Kirkendoll v. Saul, No. 18-CV-07649-JSC, 2020 WL 435497, 18 at *4–5 (N.D. Cal. Jan. 28, 2020). If the Commissioner were to have the same ALJ conduct 19 Plaintiff’s hearing upon remand, Plaintiff would have the opportunity to argue that a new 20 ALJ must hear the case at that time. See Lucia, 138 S. Ct. at 2055 (noting that that even if 21 the original ALJ subsequently received a constitutional appointment, he could not hear the 22 plaintiff’s case upon remand because “[h]e cannot be expected to consider the matter as 23 though he had not adjudicated it before”). 24 /// 25 /// 26 27 13 See “Emergency Message EM-18003 REV 2”, available at 28 1 |} VI. CONCLUSION 2 For the reasons discussed above, Plaintiff's motion for summary judgment is 3 || GRANTED, the Commissioner’s cross-motion for summary judgment is DENIED, and 4 ||this matter is remanded for further administrative proceedings consistent with this Order. 5 IT IS SO ORDERED. 6 || Dated: November 23, 2020 -

n. Jill L. Burkhardt 8 ited States Magistrate Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28