2 FILED IN THE U.S. DISTRICT COURT 3 EASTERN DISTRICT OF WASHINGTON May 27, 2020 4 SEAN F. MCAVOY, CLERK
5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6
7 MONICA S., NO: 1:19-CV-03092-FVS 8 Plaintiff, ORDER GRANTING PLAINTIFF’S 9 v. MOTION FOR SUMMARY JUDGMENT AND DENYING 10 ANDREW M. SAUL, DEFENDANT’S MOTION FOR COMMISSIONER OF SOCIAL SUMMARY JUDGMENT 11 SECURITY,
12 Defendant.
13 BEFORE THE COURT are the parties’ cross motions for summary 14 judgment. ECF Nos. 11 and 13. This matter was submitted for consideration 15 without oral argument. The Plaintiff is represented by Attorney D. James Tree. 16 The Defendant is represented by Special Assistant United States Attorney Jacob 17 Phillips. The Court has reviewed the administrative record, the parties’ completed 18 briefing, and is fully informed. For the reasons discussed below, the Court 19 GRANTS Plaintiff’s Motion for Summary Judgment, ECF No. 11, and DENIES 20 Defendant’s Motion for Summary Judgment, ECF No. 13. 21 1 JURISDICTION 2 Plaintiff Monica S.1 filed for supplemental security income on June 12, 3 2015, and child’s insurance benefits on June 16, 2015, alleging an onset date of 4 June 26, 2012 in both applications. Tr. 247-59. Benefits were denied initially, Tr.
5 119-33, and upon reconsideration, Tr. 137-48. A hearing before an administrative 6 law judge (“ALJ”) was conducted on February 23, 2018. Tr. 33-71. Plaintiff was 7 represented by counsel and testified at both hearings. Id. The ALJ denied benefits,
8 Tr. 12-32, and the Appeals Council denied review. Tr. 1. The matter is now 9 before this court pursuant to 42 U.S.C. §§ 405(g); 1383(c)(3). 10 BACKGROUND 11 The facts of the case are set forth in the administrative hearing and
12 transcripts, the ALJ’s decision, and the briefs of Plaintiff and the Commissioner. 13 Only the most pertinent facts are summarized here. 14 Plaintiff was 25 years old at the time of the hearing. Tr. 49. She finished
15 the ninth grade. Tr. 49. At the time of the hearing, Plaintiff lived alone with an 16 emotional support dog. Tr. 63. Plaintiff has no work history. Tr. 50. On the 17 alleged onset date, Plaintiff witnessed her father being fatally shot, and she 18 sustained a gunshot wound to the face. Tr. 50-51.
1 In the interest of protecting Plaintiff’s privacy, the Court will use Plaintiff’s first 20 name and last initial, and, subsequently, Plaintiff’s first name only, throughout this 21 1 Plaintiff testified that she has blurry vision as a result of her injury; however, 2 she reported that her primary limitation is mental health issues. Tr. 51-52. She 3 “lives in fear” of “running into a problem,” she has flashbacks to the shooting 4 every week, and she gets angry at people “a lot.” Tr. 55-56, 58. Plaintiff testified
5 that she could not do a full-time job because of her PTSD and anxiety, and because 6 she cannot focus when she has flashbacks. Tr. 57, 67, 70. 7 STANDARD OF REVIEW
8 A district court’s review of a final decision of the Commissioner of Social 9 Security is governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is 10 limited; the Commissioner’s decision will be disturbed “only if it is not supported 11 by substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153,
12 1158 (9th Cir. 2012). “Substantial evidence” means “relevant evidence that a 13 reasonable mind might accept as adequate to support a conclusion.” Id. at 1159 14 (quotation and citation omitted). Stated differently, substantial evidence equates to
15 “more than a mere scintilla[,] but less than a preponderance.” Id. (quotation and 16 citation omitted). In determining whether the standard has been satisfied, a 17 reviewing court must consider the entire record as a whole rather than searching 18 for supporting evidence in isolation. Id.
19 In reviewing a denial of benefits, a district court may not substitute its 20 judgment for that of the Commissioner. If the evidence in the record “is 21 susceptible to more than one rational interpretation, [the court] must uphold the 1 record.” Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). Further, a district 2 court “may not reverse an ALJ’s decision on account of an error that is harmless.” 3 Id. An error is harmless “where it is inconsequential to the [ALJ’s] ultimate 4 nondisability determination.” Id. at 1115 (quotation and citation omitted). The
5 party appealing the ALJ’s decision generally bears the burden of establishing that 6 it was harmed. Shinseki v. Sanders, 556 U.S. 396, 409-10 (2009). 7 FIVE-STEP EVALUATION PROCESS
8 A claimant must satisfy two conditions to be considered “disabled” within 9 the meaning of the Social Security Act. First, the claimant must be “unable to 10 engage in any substantial gainful activity by reason of any medically determinable 11 physical or mental impairment which can be expected to result in death or which
12 has lasted or can be expected to last for a continuous period of not less than twelve 13 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). Second, the claimant’s 14 impairment must be “of such severity that he is not only unable to do his previous
15 work[,] but cannot, considering his age, education, and work experience, engage in 16 any other kind of substantial gainful work which exists in the national economy.” 17 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B). 18 The Commissioner has established a five-step sequential analysis to
19 determine whether a claimant satisfies the above criteria. See 20 C.F.R. §§ 20 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v). At step one, the Commissioner 21 considers the claimant’s work activity. 20 C.F.R. §§ 404.1520(a)(4)(i), 1 Commissioner must find that the claimant is not disabled. 20 C.F.R. §§ 2 404.1520(b), 416.920(b). 3 If the claimant is not engaged in substantial gainful activity, the analysis 4 proceeds to step two. At this step, the Commissioner considers the severity of the
5 claimant’s impairment. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the 6 claimant suffers from “any impairment or combination of impairments which 7 significantly limits [his or her] physical or mental ability to do basic work
8 activities,” the analysis proceeds to step three. 20 C.F.R. §§ 404.1520(c), 9 416.920(c). If the claimant’s impairment does not satisfy this severity threshold, 10 however, the Commissioner must find that the claimant is not disabled. 20 C.F.R. 11 §§ 404.1520(c), 416.920(c).
12 At step three, the Commissioner compares the claimant’s impairment to 13 severe impairments recognized by the Commissioner to be so severe as to preclude 14 a person from engaging in substantial gainful activity. 20 C.F.R. §§
15 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the impairment is as severe or more 16 severe than one of the enumerated impairments, the Commissioner must find the 17 claimant disabled and award benefits. 20 C.F.R. §§ 404.1520(d), 416.920(d). 18 If the severity of the claimant’s impairment does not meet or exceed the
19 severity of the enumerated impairments, the Commissioner must pause to assess 20 the claimant’s “residual functional capacity.” Residual functional capacity (RFC), 21 defined generally as the claimant’s ability to perform physical and mental work 1 404.1545(a)(1), 416.945(a)(1), is relevant to both the fourth and fifth steps of the 2 analysis. 3 At step four, the Commissioner considers whether, in view of the claimant’s 4 RFC, the claimant is capable of performing work that he or she has performed in
5 the past (past relevant work). 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). 6 If the claimant is capable of performing past relevant work, the Commissioner 7 must find that the claimant is not disabled. 20 C.F.R. §§ 404.1520(f), 416.920(f).
8 If the claimant is incapable of performing such work, the analysis proceeds to step 9 five. 10 At step five, the Commissioner considers whether, in view of the claimant’s 11 RFC, the claimant is capable of performing other work in the national economy.
12 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). In making this determination, 13 the Commissioner must also consider vocational factors such as the claimant’s age, 14 education and past work experience. 20 C.F.R. §§ 404.1520(a)(4)(v),
15 416.920(a)(4)(v). If the claimant is capable of adjusting to other work, the 16 Commissioner must find that the claimant is not disabled. 20 C.F.R. §§ 17 404.1520(g)(1), 416.920(g)(1). If the claimant is not capable of adjusting to other 18 work, analysis concludes with a finding that the claimant is disabled and is
19 therefore entitled to benefits. 20 C.F.R. §§ 404.1520(g)(1), 416.920(g)(1). 20 The claimant bears the burden of proof at steps one through four. Tackett v. 21 Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to step five, 1 of performing other work; and (2) such work “exists in significant numbers in the 2 national economy.” 20 C.F.R. §§ 404.1560(c)(2), 416.960(c)(2); Beltran v. Astrue, 3 700 F.3d 386, 389 (9th Cir. 2012). 4 ALJ’S FINDINGS
5 At step one, the ALJ found that Plaintiff has not engaged in substantial 6 gainful activity since June 26, 2012, the alleged onset date. Tr. 18. At step two, 7 the ALJ found that Plaintiff has the following severe impairments: major
8 depressive disorder (MDD), general anxiety disorder (GAD), unspecified 9 personality disorder, oppositional defiant disorder (ODD), posttraumatic stress 10 disorder (PTSD), marijuana use, methamphetamine use in early remission, and 11 alcohol use. Tr. 18. At step three, the ALJ found that Plaintiff does not have an
12 impairment or combination of impairments that meets or medically equals the 13 severity of a listed impairment. Tr. 18. The ALJ then found that Plaintiff has the 14 RFC
15 to perform a full range of work at all exertional/physical levels but with the following nonexertional limitations: she is limited to work that requires her 16 to perform simple repetitive tasks. She sustains adequate concentration, persistence or pace with simple tasks that are routine for two-hour periods 17 with customary breaks in an eight-hour workday. She is limited to only superficial interaction and no more than occasional interaction with the 18 general public. She should have no interaction with general public for performance of job tasks. She can accept supervision but should have clear 19 boundaries from superiors/supervisors. She can interact with coworkers but no requirement to work in coordination with coworkers (no tandem 20 work/cooperative work tasks). She can sustain work tasks but no changes than those that are very routine in nature. She should not work at production 21 rate pace. She can have work with goals but not with quotas such as a 1 Tr. 21. At step four, the ALJ found that Plaintiff has no past relevant work. Tr. 2 26. At step five, the ALJ found that considering Plaintiff’s age, education, work 3 experience, and RFC, there are jobs that exist in significant numbers in the national 4 economy that Plaintiff can perform, including: can filling and closing machine
5 tender, lab cleaner, and hospital cleaner. Tr. 26-27. On that basis, the ALJ 6 concluded that Plaintiff has not been under a disability, as defined in the Social 7 Security Act, from June 12, 2012, through the date of the decision. Tr. 27.
8 ISSUES 9 Plaintiff seeks judicial review of the Commissioner’s final decision denying 10 her disability insurance benefits under Title II of the Social Security Act and 11 supplemental security income benefits under Title XVI of the Social Security Act.
12 ECF No. 11. Plaintiff raises the following issues for this Court’s review: 13 1. Whether the ALJ properly considered the medical opinion evidence; and 14 2. Whether the ALJ properly considered Plaintiff’s symptom claims.
15 DISCUSSION 16 A. Medical Opinions 17 There are three types of physicians: “(1) those who treat the claimant 18 (treating physicians); (2) those who examine but do not treat the claimant
19 (examining physicians); and (3) those who neither examine nor treat the claimant 20 [but who review the claimant's file] (nonexamining [or reviewing] physicians).” 21 Holohan v. Massanari, 246 F.3d 1195, 1201–02 (9th Cir. 2001) (citations omitted). 1 physician's, and an examining physician's opinion carries more weight than a 2 reviewing physician's. Id. If a treating or examining physician's opinion is 3 uncontradicted, the ALJ may reject it only by offering “clear and convincing 4 reasons that are supported by substantial evidence.” Bayliss v. Barnhart, 427 F.3d
5 1211, 1216 (9th Cir. 2005). Conversely, “[i]f a treating or examining doctor's 6 opinion is contradicted by another doctor's opinion, an ALJ may only reject it by 7 providing specific and legitimate reasons that are supported by substantial
8 evidence.” Id. (citing Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1995)). 9 “However, the ALJ need not accept the opinion of any physician, including a 10 treating physician, if that opinion is brief, conclusory and inadequately supported 11 by clinical findings.” Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1228
12 (9th Cir. 2009) (quotation and citation omitted). 13 Plaintiff argues the ALJ erroneously considered the opinions of examining 14 psychologist CeCilia R. Cooper, Ph.D., examining psychologist N.K. Marks,
15 Ph.D., reviewing psychologist Melanie Mitchell, Ph.D., reviewing psychologist 16 Phyllis N. Sanchez, Ph.D., and reviewing state agency psychologists Patricia Kraft, 17 Ph.D. and Carla van Dam, Ph.D. ECF No. 11 at 11-20. 18 1. Dr. CeCilia R. Cooper
19 In November 2015, Dr. Cooper examined Plaintiff and opined that she is 20 able to remember and complete instructions for tasks involving two or three 21 unrelated steps, remember written material, and appropriately respond to normal 1 [w]hen she is required to interact frequently with other persons her ability to maintain concentration is apt to be poor because of anxiety. If she has a 2 comfortable routine to follow by herself, her ability to concentrate would be adequate. . . . She would require moderately close supervision to ensure she 3 completes tasks as instructed throughout a normal shift. Her ability to maintain appropriate social interactions with persons in authority is apt to be 4 moderately to markedly impaired depending upon the circumstances. She would have some problems with peers because of mistrust and low self- 5 esteem. She is apt to have moderate to marked difficulty adapting to changes depending upon the perceived benefit. 6 Tr. 348. The ALJ gave “significant weight” to Dr. Cooper’s opinion because it 7 was “consistent with the record as a whole,” including Plaintiff’s “infrequent” 8 course of treatment, performance at mental status examinations, and her ability to 9 do housework, attend classes, go to the library, use the computer, and read. Tr. 25. 10 Plaintiff argues that the ALJ assigned significant weight to Dr. Cooper’s opinion, 11 but “failed to adequately account for all of her opined limitations, without specific 12 and legitimate reasons for doing so.” ECF No. 11 at 12. The Court agrees. 13 Here, Dr. Cooper specifically opined that Plaintiff “would require 14 moderately close supervision to ensure she completes tasks as instructed,” but Dr. 15 Cooper simultaneously found that Plaintiff’s “ability to maintain appropriate social 16 interactions with persons in authority is apt to be moderately to markedly impaired 17 depending upon the circumstances.” Tr. 347. Presumably in an attempt to 18 incorporate the latter portion of Dr. Cooper’s opinion into the RFC, the ALJ found 19 Plaintiff “can accept supervision but should have clear boundaries from 20 superiors/supervisors.” Tr. 21. Defendant argues that “the ALJ is responsible for 21 1 ALJ’s [RFC], read as a whole, reasonably accommodated Dr. Cooper’s 2 assertions.” ECF No. 13 at 8 (citing Rounds v. Comm’r Soc. Sec. Admin., 807 F.3d 3 996, 1006 (9th Cir. 2015); see also Turner v. Comm’r of Soc. Sec., 613 F.3d 1271, 4 1223 (9th Cir. 2010) (an ALJ’s findings need only be consistent with a physician’s
5 credited limitations, not identical to them). However, as noted by Plaintiff, 6 “[w]hile it is true that the ALJ is not bound to adopt, verbatim, the opinions of a 7 medical source, the ALJ is nevertheless required to explain why any conflicting
8 opinions have not been adopted,” and here, the ALJ’s “limitation to needing 9 additional supervision to maintain work tasks was not captured in the ALJ’s RFC, 10 and no explanation was provided to [justify] its rejection.” ECF No. 14 at 5; see 11 SSR 96-8p, 1996 WL 374184 at *7 (Jul. 2, 1996).
12 The Court finds the ALJ erred by failing by either providing the requisite 13 reasons to reject Dr. Cooper’s opinion that Plaintiff required “moderately close 14 supervision,” or to specifically incorporate this limitation into the assessed RFC.
15 See Marsh v. Colvin, 792 F.3d 1170, 1173 (9th Cir. 2015) (failure to address 16 medical opinion was reversible error); Robbins v. Soc. Sec. Admin., 466 F.3d 880, 17 886 (9th Cir. 2006) (“an ALJ is not free to disregard properly supported 18 limitations”). Moreover, it appears the ALJ accorded significant weight only to
19 Dr. Cooper’s assessment that Plaintiff was “moderately to markedly impaired” in 20 her ability to maintain appropriate social interactions with persons in authority, and 21 incorporated that assessment into the RFC by limiting Plaintiff to accepting 1 ALJ failed to resolve the internal discrepancy between Dr. Cooper’s opinion that 2 Plaintiff “required moderately close supervision,” and her conflicting assessment 3 that Plaintiff was moderately to markedly able to maintain appropriate social 4 interactions with people in authority. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th
5 Cir. 1995) (ALJ is responsible for “resolving conflicts in medical testimony, and 6 for resolving ambiguities.”). 7 Finally, the record, as it stands, does not permit the Court to conclude that
8 the error is harmless. See Molina, 674 F.3d at 1115 (error is harmless “where it is 9 inconsequential to the [ALJ’s] ultimate nondisability determination.”). Because 10 the hypothetical RFC posed to the vocational expert did not accurately reflect all of 11 Plaintiff’s limitations, the expert’s testimony has no evidentiary value to support
12 the ALJ’s step five finding that plaintiff can perform jobs in the national economy. 13 Robbins, 466 F.3d at 886. Accordingly, the ALJ’s step five determination is 14 unsupported by substantial evidence. Because the ALJ erred by failing to either
15 reject or properly incorporate Dr. Cooper’s opinion that Plaintiff required 16 moderately close supervision, and/or resolve the apparent inconsistency between 17 Dr. Cooper’s conflicting opinions regarding Plaintiff’s ability to interact with 18 supervisors, the opinion must be reconsidered on remand, along with the
19 subsequent steps of the sequential analysis. 20 2. Dr. N.K. Marks 21 Dr. Marks examined Plaintiff in May 2015 and May 2017. Tr. 335-40, 436- 1 ability to perform activities within a schedule, maintain regular attendance, and be 2 punctual within customary tolerances without special supervision; be aware of 3 normal hazards and take appropriate precautions; communicate and perform 4 effectively in a work setting; maintain appropriate behavior in a work setting;
5 complete a normal work day and work week without interruptions from 6 psychologically based symptoms; and set realistic goals and plan independently. 7 Tr. 337-38. In May 2017, Dr. Marks opined that Plaintiff had severe limitations in
8 her ability to communicate and perform effectively in a work setting; maintain 9 appropriate behavior in a work setting; complete a normal work day and work 10 week without interruptions from psychologically based symptoms; and set realistic 11 goals and plan independently. Tr. 439-40. Dr. Marks also opined that Plaintiff had
12 marked limitations in her ability to understand, remember, and persist in tasks by 13 following detailed instructions; perform activities within a schedule, maintain 14 regular attendance, and be punctual within customary tolerances without special
15 supervision; learn new tasks; perform routine tasks without special supervision; 16 adapt to changes in a routine work setting; make simple work-related decisions; 17 and ask simple questions or request assistance. Tr. 439-40. The ALJ gave little 18 weight to Dr. Marks’ opinions for several reasons. Tr. 25.
19 First, the ALJ found that Dr. Marks’ opinions are “snapshots of [Plaintiff’s] 20 functioning when [Plaintiff] admittedly was not getting treatment or taking any 21 antipsychotic medications at a time despite the recommended psychotherapy and 1 a medical opinion with the record as a whole is a relevant factor in evaluating that 2 medical opinion. See Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007). However, 3 as noted by Plaintiff, when explaining his reasons for rejecting medical opinion 4 evidence, the ALJ must do more than state a conclusion; rather, the ALJ must “set
5 forth his own interpretations and explain why they, rather than the doctors’, are 6 correct.” Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998). “This can be done 7 by setting out a detailed and thorough summary of the facts and conflicting clinical
8 evidence, stating his interpretation thereof, and making findings.” Id. 9 Here, the ALJ fails to explain with requisite specificity how Plaintiff’s 10 treatment history, and her self-report that she used medical marijuana, contradicts 11 Dr. Marks’ opinion. This error is particularly relevant given that Dr. Marks
12 conducted independent mental status examinations of the Plaintiff, discussed in 13 detail below; and Dr. Marks specifically considered Plaintiff’s use of medical 14 marijuana and alcohol in May 2017, as well as her lack of mental health treatment
15 in both opinions. Tr. 335-38, 437-39. Thus, because the ALJ failed to explain 16 why or how Plaintiff’s lack of treatment, and admitted use of alcohol and medical 17 marijuana, undermines Dr. Marks’ examining opinions, this was not a not specific, 18 legitimate reason, supported by substantial evidence, to reject Dr. Marks’ opinions.
19 See Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015) (“the agency 20 [must] set forth the reasoning behind its decisions in a way that allows for 21 meaningful review”). 1 Second, the ALJ noted that Dr. Marks was not Plaintiff’s treating 2 psychologist, and “[f]urthermore, Dr. Marks’ opined severity of [Plaintiff’s] 3 limitations is internally inconsistent with Dr. Marks’ own descriptions of 4 [Plaintiff’s] presentations during the corresponding mental status examinations.”
5 Tr. 25. As an initial matter, while the ALJ may consider the length and nature of a 6 treatment relationship in evaluating a medical opinion, the ALJ may not discredit a 7 medical opinion solely because the provider was not a treating source. See 20
8 C.F.R. §§ 404.1527(c), 416.927(c). The Court also notes the ALJ's reasoning on 9 this point is inconsistent with the “significant” weight given to state agency 10 reviewing psychologists Dr. Kraft and Dr. van Dam, who had no treatment 11 relationship with Plaintiff. Tr. 24. Furthermore, internal inconsistencies within a
12 physician’s report constitute relevant evidence when weighing medical opinions. 13 Morgan v. Comm’r Soc. Sec. Admin., 169 F.3d 595, 603 (9th Cir. 1999); see also 14 Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) (an ALJ may properly
15 reject a medical opinion if it is inconsistent with the provider's own treatment 16 notes). However, as noted by Plaintiff, many of the records cited by the ALJ in 17 support of this finding are Comprehensive Mental Health treatment records, as 18 opposed to the mental status examinations performed by Dr. Marks as part of her
19 evaluations. ECF No. 11 at 16 (citing Tr. 408, 410, 413, 418, 420, 423, 426-29, 20 434). Moreover, the Court’s review of Dr. Marks’ mental status examinations 21 reveals largely abnormal findings, including: poor grooming, depressed mood, 1 limits, memory not within normal limits, fund of knowledge not within normal 2 limits, abstract thought not within normal limits, and insight and judgment not 3 within normal limits; and Dr. Marks’ clinical findings placed Plaintiff in the 4 moderate to severe range of anxiety, severe range of depression, and severe range
5 of PTSD. Tr. 336, 339-40, 438-39, 440-42. Without further explanation of how 6 the severe and marked limitations opined by Dr. Marks were internally inconsistent 7 with her own abnormal mental status examination findings, the ALJ’s conclusory
8 rejection of Dr. Marks’ opinions for this reason is not supported by substantial 9 evidence. This was not a specific and legitimate reason for the ALJ to reject Dr. 10 Marks’ opinions. 11 Third, and finally, the ALJ generally cites “subsequent treatment records”
12 indicating that Plaintiff “resumed counseling” in June 2017, and in October 2017 13 “she denied any mental health symptoms except trouble in understanding, 14 concentrating, and remembering.” Tr. 25 (citing Tr. 390). The consistency of a
15 medical opinion with the record as a whole is a relevant factor in evaluating that 16 medical opinion. See Orn, 495 F.3d at 631. However, in support of this finding, 17 the ALJ relies entirely on Plaintiff’s single self-report in October 2017 that for the 18 “past 30 days” she did not have “a significant period of time” in which she
19 experience severe depression or anxiety, thoughts of suicide, or thoughts of 20 harming another person. Tr. 24, 390. Moreover, while the ALJ briefly references 21 Plaintiff’s return to counseling in June 2017, the Court’s review of the record 1 due to “not coming in” for services. See Tr. 382-87, 403. Thus, as above, the ALJ 2 fails to explain how this brief citation to the “subsequent treatment record” is 3 inconsistent with Dr. Marks’ examining opinions, including thorough mental status 4 examinations indicating Plaintiff was not within normal limits in thought process
5 and content, perception, memory, fund of knowledge, abstract thought, and insight 6 and judgment. Reddick, 157 F.3d at 725 (when explaining his reasons for rejecting 7 medical opinion evidence, the ALJ must do more than state a conclusion; rather,
8 the ALJ must “set forth his own interpretations and explain why they, rather than 9 the doctors’, are correct.”). Thus, to the extent the ALJ rejected Dr. Marks’ 10 opinions because they were inconsistent with “subsequent records,” this was not a 11 specific and legitimate reason, supported by substantial evidence.
12 For all of these reasons, the ALJ did not properly consider Dr. Marks’ May 13 2015 and May 2017 opinions, and they must be reconsidered on remand. 14 3. Additional Medical Opinions
15 Plaintiff argues the ALJ improperly considered the reviewing opinions of 16 Dr. Melanie Mitchell, Dr. Phyllis N. Sanchez, Dr. Patricia Kraft, and Dr. Carla van 17 Dam. Tr. 24-25, 80-81, 101-02, 372, 381. The ALJ gave “little weight” to the 18 May 2017 reviewing opinion of Dr. Melanie Mitchell because it was conclusory,
19 did not provide any explanation, and was “based on the narrative” of Dr. Marks’ 20 opinions which the ALJ gave “little weight.” Tr. 25. However, as noted by 21 Plaintiff, and discussed above, “[w]hile it is true that Dr. Mitchell based the 1 rejected these opinions and findings.” ECF No. 11 at 18-19. Thus, on remand, the 2 ALJ should reconsider Dr. Mitchell’s opinion. As a final matter, in light of the 3 need to reconsider the examining medical opinion evidence, the ALJ should 4 reconsider the reviewing medical opinion of Dr. Phyllis N. Sanchez, which was
5 also based on Dr. Marks’ May 2015 opinion, and the state agency reviewing 6 opinions of Dr. Patricia Kraft and Dr. Carla van Dam. 7 B. Plaintiff’s Symptom Claims
8 Plaintiff also challenges the ALJ's consideration of Plaintiff’s symptom 9 claims. ECF No. 11 at 2-11. Specifically, Plaintiff alleges that the ALJ erred by 10 rejecting Plaintiff’s symptom claims because (1) she has undergone only sporadic 11 mental health treatment, which “suggests her symptoms are not as severe as she
12 has alleged and indicates her unwillingness to comply with her treatment plan”; 13 and (2) her “allegations of chronic, incapacitating mental symptoms appear 14 incompatible with her relatively benign presentations” on mental health
15 examinations. Tr. 22-24. Thus, because the analysis of Plaintiff’s symptom claims 16 is largely dependent on the ALJ's reconsideration of the medical evidence on 17 remand, including Dr. Cooper opinion that Plaintiff’s “compliance with treatment 18 is apt to be erratic because of her personality factors and because of mistrust,” and
19 Dr. Marks’ opinion that Plaintiff “would benefit from some psychotherapy” but 20 she is “quite untrusting and this will be somewhat of a feat to organize,” the Court 21 declines to address Plaintiff’s challenges in detail here. Tr. 347, 369; See Nguyen, 1 part of a claimant's mental health condition, it may be inappropriate to consider a 2 claimant's lack of mental health treatment in rejecting Plaintiff’s symptom claims). 3 On remand, the ALJ is instructed to reevaluate Plaintiff’s symptom claims and 4 conduct a new sequential analysis.
5 REMEDY 6 The decision whether to remand for further proceedings or reverse and 7 award benefits is within the discretion of the district court. McAllister v. Sullivan,
8 888 F.2d 599, 603 (9th Cir. 1989). An immediate award of benefits is appropriate 9 where “no useful purpose would be served by further administrative proceedings, 10 or where the record has been thoroughly developed,” Varney v. Sec'y of Health & 11 Human Servs., 859 F.2d 1396, 1399 (9th Cir. 1988), or when the delay caused by
12 remand would be “unduly burdensome[.]” Terry v. Sullivan, 903 F.2d 1273, 1280 13 (9th Cir. 1990); see also Garrison v. Colvin, 759 F.3d 995, 1021 (noting that a 14 district court may abuse its discretion not to remand for benefits when all of these
15 conditions are met). This policy is based on the “need to expedite disability 16 claims.” Varney, 859 F.2d at 1401. But where there are outstanding issues that 17 must be resolved before a determination can be made, and it is not clear from the 18 record that the ALJ would be required to find a claimant disabled if all the
19 evidence were properly evaluated, remand is appropriate. See Benecke v. 20 Barnhart, 379 F.3d 587, 595-96 (9th Cir. 2004); Harman v. Apfel, 211 F.3d 1172, 21 1179-80 (9th Cir. 2000). 1 The Court finds that further administrative proceedings are appropriate. See 2 Treichler v. Comm'r of Soc. Sec. Admin., 775 F.3d 1090, 1103-04 (9th Cir. 2014) 3 (remand for benefits is not appropriate when further administrative proceedings 4 would serve a useful purpose). Here, the ALJ improperly considered the medical
5 opinion evidence, which calls into question whether the assessed RFC, and resulting 6 hypothetical propounded to the vocational expert, are supported by substantial 7 evidence. “Where,” as here, “there is conflicting evidence, and not all essential
8 factual issues have been resolved, a remand for an award of benefits is 9 inappropriate.” Treichler, 775 F.3d at 1101. Instead, the Court remands this case 10 for further proceedings. On remand, the ALJ should reconsider the medical opinion 11 evidence, and provide legally sufficient reasons for evaluating the opinions,
12 supported by substantial evidence. If necessary, the ALJ should order additional 13 consultative examinations and, if appropriate, take additional testimony from a 14 medical expert. In addition, the ALJ should reconsider Plaintiff’s symptom claims,
15 the remaining steps in the sequential analysis, reassess Plaintiff's RFC and, if 16 necessary, take additional testimony from a vocational expert which includes all of 17 the limitations credited by the ALJ. 18 ACCORDINGLY, IT IS ORDERED:
19 1. Plaintiff’s Motion for Summary Judgment, ECF No. 11, is GRANTED, 20 and the matter is REMANDED to the Commissioner for additional 21 proceedings consistent with this Order. 1 3. Application for attorney fees may be filed by separate motion. 2 The District Court Clerk is directed to enter this Order and provide copies to counsel. Judgment shall be entered for Plaintiff and the file shall be CLOSED. 4 DATED May 27, 2020. 5 @. 7 hy Sesto ° Stanley A. Bastian 9 United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21