Proulx v. Berryhill

• Court: District Court, S.D. California
• Decided: September 5, 2023
• Docket: 3:18-cv-01755
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 VIOLET EMERSON PROULX, Case No.: 18cv1755 JAH-BGS

12 Plaintiff, ORDER GRANTING PLAINTIFF’S 13 v. MOTION FOR SUMMARY JUDGMENT AND DENYING 14 KILOLO KIJAKAZI, Acting DEFENDANT’S CROSS-MOTION Commissioner of Social Security,1 15 FOR SUMMARY JUDGMENT Defendant. [Doc. Nos. 11, 14] 16 17 18 19 INTRODUCTION 20 Plaintiff seeks review of the Social Security Commissioner’s final decision denying 21 benefits. After a thorough review of the parties’ submissions and for the reasons set forth 22 below, the Court GRANTS Plaintiff’s motion for summary judgment and DENIES 23 Defendant’s cross-motion for summary judgment. 24 // 25 // 26

27 1 Dr. Kilolo Kijakazi is named in place of Nancy A. Berryhill as Commissioner of Social Security 28 1 BACKGROUND 2 Plaintiff was born on June 4, 1985 and was 32 years of age at the time of the hearing 3 before the Administrative Law Judge (“ALJ”). AR2 at 29. She alleged a disability onset 4 of February 21, 2017. Id. at 18. She filed an application for a period of disability and 5 disability insurance benefits on March 22, 2015, and an application for supplement security 6 income on March 22, 2017. Id. at 18, 87, 88. The Commissioner denied the claims on 7 June 9, 2017 and denied the claims again upon reconsideration. Id. at 87-147. Plaintiff 8 requested a hearing and testified at the hearing on December 1, 2017. Id. at 18, 148. The 9 ALJ issued an unfavorable decision on January 31, 2018. Id. at 15. Plaintiff filed a request 10 for review of the ALJ’s decision and the Appeals Council denied the request. Id. at 1, 3. 11 Plaintiff, appearing through counsel, filed a complaint seeking review of the 12 Commissioner’s final decision denying benefits on July 30, 2018. See Doc. No. 1. 13 Defendant filed an answer and the administrative record on November 16, 2018. See Doc. 14 Nos. 9, 10. Thereafter, Plaintiff filed the pending motion for summary judgment and 15 Defendant filed an opposition and cross-motion for summary judgment. See Doc. Nos. 11, 16 14, 15. Plaintiff filed a reply. See Doc. No. 16. 17 DISCUSSION 18 I. Legal Standards 19 A. Qualifying for Disability Benefits 20 To qualify for disability benefits under the Act, an applicant must show that: (1) he 21 suffers from a medically determinable impairment that can be expected to result in death 22 or that has lasted or can be expected to last for a continuous period of not less than twelve 23 months; and (2) the impairment renders the applicant incapable of performing the work 24 that he previously performed or any other substantially gainful employment that exists in 25 26 27 28 1 the national economy. See 42 U.S.C. § 423(d)(1)(A), 2(A). An applicant must meet both 2 requirements to be “disabled.” Id. 3 The Secretary of the Social Security Administration has established a five-step 4 sequential evaluation process for determining whether a person is disabled. 20 C.F.R. §§ 5 404.1520, 416.920. Step one determines whether the claimant is engaged in “substantial 6 gainful activity.” If he is, disability benefits are denied. 20 C.F.R. §§ 404.1520(b), 7 416.920(b). If he is not, the decision maker proceeds to step two, which determines 8 whether the claimant has a medically severe impairment or combination of impairments. 9 If the claimant does not have a severe impairment or combination of impairments, the 10 disability claim is denied. 20 C.F.R. §§ 404.1520(c), 416.920(c). If the impairment is 11 severe, the evaluation proceeds to the third step, which determines whether the impairment 12 is equivalent to one of a number of listed impairments that the Secretary acknowledges are 13 so severe as to preclude substantial gainful activity. 20 C.F.R. §§ 404.1520(d); 20 C.F.R. 14 Part 404 Appendix 1 to Subpart P. If the impairment meets or equals one of the listed 15 impairments, the claimant is conclusively presumed to be disabled. If a condition “falls 16 short of the [listing] criterion” a multiple factor analysis is appropriate. Celaya v. Halter, 17 332 F.3d 1177, 1181 (9th Cir. 2003). Of such analysis, “the Secretary shall consider the 18 combined effect of all the individual’s impairments without regard to whether any such 19 impairment, if considered separately, would be of such severity.” Id. at 1182 (quoting 42 20 U.S.C. § 423(d)(2)(B)). If the impairment is not one that is conclusively presumed to be 21 disabling, the evaluation proceeds to the fourth step, which determines whether the 22 impairment prevents the claimant from performing work she has performed in the past. If 23 the claimant cannot perform his previous work, the fifth and final step of the process 24 determines whether he is able to perform other work in the national economy considering 25 his age, education, and work experience. The claimant is entitled to disability benefits only 26 if he is not able to perform other work. 20 C.F.R. §§ 404.1520(g)(1), 416.920(g)(1). 27 // 28 // 1 B. Judicial Review of an ALJ’s Decision 2 Section 405(g) of the Act allows unsuccessful applicants to seek judicial review of 3 a final agency decision of the Commissioner. 42 U.S.C. § 405(g). The scope of judicial 4 review is limited. The Commissioner’s denial of benefits “will be disturbed only if it is 5 not supported by substantial evidence or is based on legal error.” Brawner v. Secretary of 6 Health and Human Servs., 839 F.2d 432, 433 (9th Cir. 1988) (citing Green v. Heckler, 803 7 F.2d 528, 529 (9th Cir. 1986)). 8 Substantial evidence means “more than a mere scintilla” but less than a 9 preponderance. Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997) (citation omitted). 10 “[I]t is such relevant evidence as a reasonable mind might accept as adequate to support a 11 conclusion.” Id. (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)). The 12 Court must consider the record as a whole, weighing both the evidence that supports and 13 detracts from the Commissioner’s conclusions. Desrosiers v. Secretary of Health & 14 Human Servs., 846 F.2d 573, 576 (9th Cir. 1988) (citing Jones v. Heckler, 760 F.2d 993, 15 995 (9th Cir. 1985)). If the evidence supports more than one rational interpretation, the 16 Court must uphold the ALJ’s decision. Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984) 17 (citing Allen v. Secretary of Health and Human Servs., 726 F.2d 1470, 1473 (9th Cir. 18 1984)). When the evidence is inconclusive, “questions of credibility and resolution of 19 conflicts in the testimony are functions solely of the Secretary.” Sample v. Schweiker, 694 20 F.2d 639, 642 (9th Cir. 1982). 21 However, even if the reviewing court finds that substantial evidence supports the 22 ALJ’s conclusions, the Court must set aside the decision if the ALJ failed to apply the 23 proper legal standards in weighing the evidence and reaching a decision. See Benitez v. 24 Califano, 573 F.2d 653, 655 (9th Cir. 1978). Section 405(g) permits a court to enter a 25 judgment affirming, modifying, or reversing the Commissioner’s decision. 42 U.S.C. § 26 405(g). The reviewing court may also remand the matter to the Social Security 27 Administrator for further proceedings. Id. “If additional proceedings can remedy defects 28 in the original administrative proceeding, a social security case should be remanded.” 1 Marcia v. Sullivan, 900 F.2d 172, 176 (9th Cir. 1990) (quoting Lewin v. Schweiker, 654 2 F.2d 631, 635 (9th Cir. 1981)). 3 II. The ALJ’s Decision 4 In the present case, the ALJ found Plaintiff has not engaged in substantial gainful 5 activity since February 21, 2017 and has severe impairments, including Anxiety Disorder, 6 NOS, Mood Disorder with Depression, NOS, Borderline Personality Disorder, Post- 7 Traumatic Stress Disorder and Asthma. AR at 20. The ALJ determined Plaintiff does not 8 have an impairment or combination of impairments that meet or are medically equal in 9 severity to one of the listed impairments in 20 CFR Part 404 Subpart P, Appendix 1. Id. at 10 21. 11 The ALJ found Plaintiff has a residual functional capacity (“RFC”) 12 to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except the claimant can lift and/or carry 20 pounds occasionally and 10 pounds frequently; 13 stand and/or walk for 6 hours of an 8-hour workday; sit for 6 hours of an 8-hour 14 workday; must avoid dust, odors, fumes, and pulmonary irritants; can have no more than occasional social contact with co-workers or supervisors; can have no 15 in-person social contact with members of the public; and can perform simple, routine 16 tasks. Id. at 23. Additionally, the ALJ found Plaintiff’s statements concerning the 17 intensity, persistence and limiting effects of her symptoms were inconsistent with the 18 medical evidence. Id. at 26. 19 The ALJ gave some weight to the opinion of treating doctor Seda Gragossian, Ph.D, 20 some weight to the opinion of treating doctor, Lina Schein, M.D., significant weight to the 21 opinion of the examining doctor, Gregory Nicholson, M.D., some weight to the opinions 22 of the State agency psychiatric consultants, N. Haroun, M.D. and Dan Funkenstein, M.D. 23 and substantial weight to the opinions of the State agency physical consultants L. Naiman, 24 M.D. and M. Gleason, M.D. Id. at 26, 27, 28. 25 The ALJ determined Plaintiff was unable to perform her past relevant work but there 26 are jobs in the national economy in significant numbers that she can perform. Id. 28, 29. 27 28 1 Ultimately, the ALJ concluded Plaintiff has not been under a disability as defined by the 2 Act from February 21, 2017. Id. at 30. 3 III. Analysis 4 Plaintiff argues the ALJ failed to properly evaluate the opinions of the treating 5 psychologist, Dr. Gragossian and the opinion of the consultative examiner, Dr. Nicholson. 6 “[A]s a general rule, more weight should be given to the opinion of a treating source than 7 to the opinion of doctors who do not treat the claimant.” Benton v. Barnhart, 331 F.3d 8 1030, 1036 (9th Cir. 2003) (quoting Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995)). 9 Where a treating doctor’s or examining doctor’s opinion is not contradicted by another 10 doctor, it may be rejected only for “clear and convincing” reasons supported by substantial 11 evidence in the record. Trevizo v. Berryhill, 871 F.3d 664 (9th Cir. 2017) (quoting Ryan v. 12 Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008)). Even if the treating or 13 examining doctor’s opinion is contradicted by another doctor, the ALJ may not reject the 14 opinion without providing “specific and legitimate reasons” supported by substantial 15 evidence in the record. Id. (quoting Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 16 2005)). The ALJ can “meet this burden by setting out a detailed and thorough summary of 17 the facts and conflicting clinical evidence, stating his interpretation thereof, and making 18 findings.” Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (quoting Cotton v. 19 Bowen, 799 F.2d 1403, 1408 (9th Cir. 1986)). “The ALJ must do more than offer his 20 conclusions. He must set forth his own interpretations and explain why they, rather than 21 the doctors’, are correct.” Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (citing 22 Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988)). The ALJ need not accept the 23 opinion of any physician, including a treating physician, if that opinion is brief, conclusory, 24 and inadequately supported by clinical findings. Matney v. Sullivan, 981 F.2d 1016, 1019 25 (9th Cir. 1992). 26 A. Dr. Gragossian, Treating Psychologist 27 Plaintiff contends the ALJ was critical of Dr. Gragossian’s opinion indicating 28 Plaintiff must not return to work until she is fit for employment in a letter dated May 1, 1 2017 because it was made only two and a half months after the onset of the disability. 2 However, Plaintiff argues, Dr. Gragossian affirmed the disability in a series of subsequent 3 letters and attested to Plaintiff’s disability more than eight months after the onset. 4 She also argues the ALJ committed reversible error by ignoring the subsequent series 5 of letters from Dr. Gragossian in which Dr. Gragossian essentially opines that Plaintiff 6 suffers marked limitations in the work categories of performing day-to-day activities on a 7 sustained basis and responding appropriately to usual work situations and to changes in a 8 routine work setting. Plaintiff argues the ALJ’s articulated reason for rejecting those 9 opinions, that Dr. Gragossian did not provide a full residual functional capacity assessment 10 lacks merit because the Commissioner’s adjudicative guidelines instruct that a doctor’s 11 opinion that provides an opinion that encroaches on the Commissioner’s obligation 12 regarding a legal determination rather than a medical source statement must be considered 13 in the disability analysis because it sheds important light on a claimant’s functioning 14 capabilities. Plaintiff maintains the ALJ should have made slight translations or 15 modifications to Dr. Gragossian’s opinions so that they fit more directly into the Social 16 Security disability scheme. 17 Defendant argues the ALJ properly considered and weighed the opinions of Dr. 18 Gragossian. Specifically, Defendant contends the ALJ found the May 1, 2017 opinion 19 probative but, given that the date of the opinion was only two months after the onset of her 20 disability, found it was not persuasive evidence that Plaintiff met the definition of 21 disability. Although subsequent letters from Dr. Gragossian did not include the claim that 22 she should not return to work, Defendant contends, the ALJ found Plaintiff had severe 23 impairments that were expected to last 12 consecutive months and ultimately agreed with 24 Dr. Gragossian that Plaintiff could not return to her past job. 25 Defendant also contends the ALJ considered Dr. Gragossian’s series of letters 26 following the May opinion letter. Defendant argues the series of letters did not contain 27 specific language that directly affirmed the previous assessment contained in the May 28 letter. Defendant maintains, the series of letters did not state Plaintiff could not return to 1 work or that she was not fit for employment. Additionally, Defendant contends the letters 2 did not provide full residual functional capacity assessments and argues it was, therefore, 3 appropriate for the ALJ to give “some” weight to Dr. Gragossian’s opinions. The ALJ 4 agreed with Dr. Gragossian that Plaintiff’s impairments interfered with her ability to work. 5 Defendant maintains the ALJ found Plaintiff had severe impairments and Plaintiff’s RFC 6 included limitations that accommodated Plaintiff’s impairments and any limitations set 7 forth in Dr. Gragossian’s opinions as well as the objective evidence, opinion evidence and 8 treatment records. 9 In the written decision, the ALJ gave some weight to Dr. Gragossian’s opinions and 10 references the May 1, 2017 and June 14, 2017 letters. The ALJ found Dr. Gragossian’s 11 May 1, 2017 opinion that Plaintiff was “not to return to work until she is fit for 12 employment” probative but not persuasive because it was given only two months after 13 onset of her disability and, under the Social Security regulations, a claimant must suffer 14 from a physical or mental impairment which can be expected to last not less than 12 15 months. AR 26-27. The ALJ further found Dr. Gragossian’s opinion was only entitled to 16 some weight because it did not provide a full residual functional capacity assessment. Id. 17 at 27. 18 The ALJ provided a summary of the facts and evidence and an interpretation of the 19 evidence to support the findings and indicates he reviewed the entire record, including the 20 medical records from Dr. Gragossian. Id. at 20, 23. The ALJ specifically discusses the 21 May 1, 2017 letter and rejects the opinion that Plaintiff is unfit to return to work because it 22 was provided a short time after the onset of disability. The ALJ also mentions the June 14, 23 2017 letter but does not discuss any specifics about the letter. Id. at 26. The June letter 24 and the August 2, 2017 letter both state that Plaintiff “continues to experience symptoms 25 of Depression, Anxiety, interpersonal problems, and Post Traumatic Stress Disorder 26 (PTSD) which interfere with her ability to work…” and recommend Plaintiff continue with 27 treatment to gain tools “to contain herself emotionally and work with others.” Id. at 406, 28 409. While the letters do not explicitly state Plaintiff is unfit to return to work, they indicate 1 Plaintiff continues to suffer from the same problems that were “barriers to her returning to 2 work” in the May letter. Id. at 329. The clear inference from the language of the June and 3 August letters is that Plaintiff remains unfit for work because she has not gained the “skills 4 and tools to contain herself emotionally and work well with others.” Id. at 406, 409. The 5 October 20, 2017 letter includes information that Plaintiff’s symptoms persist and that she 6 was referred for additional therapy. Id. at 479. The ALJ fails to address the August and 7 October letters and Dr. Gragossian’s opinion contained therein that Plaintiff’s disabling 8 symptoms were persisting. This casts doubt on the legitimacy of the ALJ’s reason for 9 rejecting Dr. Gragossian’s opinion that Plaintiff is unfit to return to work. 10 Additionally, in the October letter, Dr. Gragossian explained Plaintiff was in 11 intensive individualized therapy and that she continued to struggle with “sleep disturbance, 12 difficulty concentrating, disassociating, lack of appetite, mental and physical fatigue, 13 feelings of helplessness and extreme fear that lead to reactivity.” Id. Mental disorders that 14 seriously limit an individual’s ability to function independently, appropriately, effectively 15 equates to a marked limitation. 20 C.F.R. § Pt. 404, Subpt. P, App. 1, § 12.00.F.2.D. As 16 such, the Court agrees, Dr. Gragossian essentially opines that Plaintiff suffers from marked 17 limitations in the work categories of performing day-to-day activities on a sustained basis 18 and responding appropriately to usual work situations. Although the ALJ explained he 19 rejected Dr. Gragossian’s opinion because she did not provide a full residual functional 20 capacity assessment, it is the ALJ’s responsibility to translate clinical findings into an RFC. 21 Rounds v. Commissioner Social Sec. Admin., 807 (F.3d 996, 1006 (9th Cir. 2015) (citing 22 Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008)). Accordingly, the ALJ 23 fails to provide specific and legitimate reasons for not crediting Dr. Gragossian’s opinion. 24 Plaintiff asks the Court to exercise its discretion to credit the opinion as true and 25 reverse and award benefits. The credit-as-true doctrine is appropriate only when “(1) the 26 record has been fully developed and further administrative proceedings would serve no 27 useful purpose; (2) the ALJ failed to provide legally sufficient reasons for rejecting 28 evidence; and (3) if the improperly discredited evidence were credited as true, the ALJ 1 would be required to find the claimant disabled on remand.” Garrison v. Colvin, 759 F.3d 2 995, 1020 (9th Cir. 2014). Even if all conditions are met, a court should remand if the 3 “record as a whole creates serious doubt that a claimant is, in fact, disabled.” Id. at 1021. 4 As discussed above, the ALJ failed to provide sufficient reasons for rejecting Dr. 5 Gragossian’s opinion that Plaintiff is unfit for work and the severity of Plaintiff’s 6 limitations. The record has been fully developed. In addition to the detailed record which 7 included numerous doctors’ opinions and treatment notes, the ALJ questioned the 8 vocational expert about several hypothetical “vocational profiles.” AR at 79. 9 Crediting Dr. Gragossian’s opinion that Plaintiff’s depression, anxiety, interpersonal 10 problems and PTSD interfere with her ability to work or engage in day-to-day activities 11 would entitle Plaintiff to benefits. However, looking to the record as a whole, there is 12 doubt as to whether Plaintiff is, in fact, disabled. Specifically, Dr. Nicholson opines that 13 Plaintiff’s condition was expected to improve with active treatment and that Plaintiff 14 suffers only mild or moderate limitations in her functional assessment. This contradicts 15 Dr. Gragossian’s marked limitation opinion. Remand is appropriate to allow the ALJ to 16 properly address and weigh the differing physician’s opinions. 17 B. Dr. Nicholson, Examining Psychiatrist 18 Plaintiff argues the ALJ failed to properly evaluate the consultative examiner’s 19 opinion. She maintains the ALJ states he gave significant weight to Dr. Nicholson’s 20 opinions but failed to pose all the limitations identified by Dr. Nicholson when presenting 21 hypotheticals to the vocational expert. Specifically, she argues, the ALJ’s RFC does not 22 take into account Dr. Nicholson’s opinion that she suffers from moderate limitations in the 23 ability to “perform work activities without special or additional supervision” and moderate 24 limitations in the ability to “respond appropriately to usual work situations and to changes 25 in a routine work setting”. 26 Defendant contends the ALJ properly considered Dr. Nicholson’s medical opinion. 27 Defendant argues it was unnecessary for the ALJ to pose the specific limitations when 28 adducing testimony from the vocational expert because the ALJ is required to review the 1 evidence and translate the limitations into work related functions. Defendant maintains the 2 ALJ synthesized the evidence consistent with the medical opinions into a functional 3 capacity that reflected the valid limitations stemming from Plaintiff’s medical conditions. 4 In the written decision, the ALJ gave significant weight to Dr. Nicholson’s opinion 5 and found his residual functional capacity assessment reasonable. AR at 27. The ALJ 6 determined Dr. Nicholson “assessed functional limitations that are essentially the same as 7 those included” in the ALJ’s RFC. Id. Dr. Nicholson opined that 8 1. [Plaintiff] is able to understand, remember, and carry out simple one or two-step job instructions. 9 2. [Plaintiff] is able to do detailed and complex instructions. 10 3. [Plaintiff’s] ability to relate and interact with coworkers and the public is moderately limited. 11 4. [Plaintiff’s] ability to maintain concentration and attention, persistence and pace 12 is moderately limited. 5. [Plaintiff’s] ability to accept instructions from supervisors is mildly limited. 13 6. [Plaintiff’s] ability to maintain regular attendance in the work place and perform 14 work activities on a consistent basis is mildly limited. 7. [Plaintiff’s] ability to perform work activities without special or additional 15 supervision is moderately limited. 16 AR at 513. He also opined, that based on her mental status exam demonstrating cognitive 17 deficits, Plaintiff has mild limitations understanding and remembering complex 18 instructions, carrying out complex instructions and the ability to make judgments on 19 complex work-related decisions. Id. at 515. Additionally, he determined Plaintiff’s 20 “symptoms of depression, anxiety, and derealization may interfere with interpersonal 21 interactions” and support moderate limitations in interacting appropriately with the public, 22 with her supervisor and co-workers, and responding appropriately to usual work situations 23 and to changes in a routine setting. Id. at 516. 24 Defendant suggests the RFC’s limitation to simple routine tasks, no more than 25 occasional contact with supervisors and coworkers and no in-person contact with the public 26 addresses Plaintiff’s limitations in her ability to “perform work activities without special 27 or additional supervision” and moderate limitations in the ability to “respond appropriately 28 to usual work situations and to changes in a routine work setting”. Although case law in 1 this circuit is split as to what limitations are addressed by an RFC that includes a restriction 2 to “simple repetitive tasks”, most courts “favor the view that a restriction to simple/routine 3 tasks is not a catchall.” de Los Santos v. Kijakazi, 2022 WL 1541464 (E.D. Cal. May 16, 4 2022) (listing district court cases addressing whether a limitation to simple, repetitive tasks 5 encompass certain moderate limitations). 6 The Court finds the RFC’s restrictions of simple routine tasks, no more than 7 occasional contact with supervisors and coworkers and no in-person contact with the public 8 do not provide for Plaintiff’s moderate limitations in the ability to “perform work activities 9 without special or additional supervision”. See Donna M. v. Saul, 2020 WL 6415601, at 10 *4 (N.D. Cal. Nov. 2, 2020) (Finding limitation to simple, routine tasks with no public 11 interaction in RFC did not address other moderate limitations, including the plaintiff’s 12 ability to relate to and interact with coworkers, associate with day-to-day work activity, 13 maintain regular attendance in the workplace, and perform work activities on a consistent 14 basis without special or additional supervision.); Lisardo S. v. Berryhill, 2019 WL 773686 15 at *5 (C.D. Cal. February 20, 2019) (Finding the ALJ’s RFC restricting the plaintiff to 16 simple work, limited contact with the public and a predictable work routine with no more 17 than simple decision making did not accommodate the plaintiff’s moderately limited ability 18 to perform work without special or additional supervision.). Furthermore, limitations to 19 simple routine tasks, no contact with the public and occasional contact with coworkers or 20 supervisors is distinct from the ability to respond appropriately to usual work situations 21 and changes in a routine work setting. See Bagby v. Comm’r of Soc. Sec., 606 Fed.Appx. 22 888, 890 (9th Cir. 2015). Accordingly, the ALJ erred by failing to set forth specific and 23 legitimate reasons for rejecting Dr. Nicholson’s opinions as to Plaintiff’s moderate 24 limitations. See Nguyen v. Chater, 100 F.3d 1462, 1464 (9th Cir. 1996) (citing Andrews v. 25 Shalala, 53 F.3d 1035, 1041 (9th Cir.1995)). 26 CONCLUSION AND ORDER 27 Based on the foregoing, IT IS HEREBY ORDERED: 28 1 1. Plaintiffs motion for summary judgment (Doc. No. 11) is GRANTED. The 2 matter is REMANDED for further proceedings. 3 2. Defendant’s cross-motion for summary judgment (Doc. No. 14) is DENIED. 4 3. The Clerk of Court shall enter judgment accordingly. 5 |} DATED: September 5, 2023 6

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