Spieth v. Commissioner of Social Security

• Court: District Court, N.D. California
• Decided: September 25, 2020
• Docket: 3:19-cv-02648-SI
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 KIMBERLEY S., Case No. 19-cv-02648-SI

8 Plaintiff, ORDER GRANTING PLAINTIFF'S 9 v. MOTION FOR SUMMARY JUDGMENT AND DENYING 10 COMMISSIONER OF SOCIAL DEFENDANT'S CROSS-MOTION FOR SECURITY, SUMMARY JUDGMENT 11 Defendant. Re: Dkt. Nos. 17, 24 12 13 14 Plaintiff Kimberley S. seeks Social Security benefits under Titles II and XVI for a variety of 15 mental impairments including Post-Traumatic Stress Disorder (“PTSD”), anxiety, and depression.1 16 Pursuant to 42 U.S.C. § 405(g), plaintiff filed this lawsuit for judicial review of the final decision 17 by the Commissioner of Social Security (“Commissioner”) denying her benefits claim. Now before 18 the Court are the parties’ cross-motions for summary judgment. Dkt. Nos. 17, 24. Having 19 considered the parties’ papers and the administrative record, and for the reasons set forth below, the 20 Court GRANTS plaintiff’s motion for summary judgment (Dkt. No. 17), DENIES defendant’s 21 cross-motion for summary judgment (Dkt. No. 24), and REMANDS this action for immediate 22 payment of benefits, pursuant to sentence four of 42 U.S.C. § 405(g). 23 24 BACKGROUND 25 In April 2016 and August 2016, respectively, plaintiff applied for Disability Insurance 26

27 1 The Court partially redacts plaintiff’s name to mitigate privacy concerns, as suggested by 1 Benefits and Supplemental Security Income under Titles II and XVI of the Social Security Act. 2 Administrative Record (“AR”) 231-46, 247-48. She alleged a disability onset date of June 5, 2015. 3 Id. at 20. Her applications were denied originally and upon reconsideration. Id. at 147-52, 158-64. 4 Plaintiff’s applications were then heard by Administrative Law Judge (“ALJ”) David LaBarre at a 5 hearing on November 22, 2017. Id. at 20. The ALJ denied plaintiff’s claims in a decision dated 6 May 30, 2018.2 Id. at 16. The ALJ found plaintiff had the following severe impairments: PTSD, 7 anxiety disorder, and depressive disorder. Id. at 23. The ALJ also found, however, that plaintiff did 8 not have an impairment or combination of impairments that met or medically equaled one of the 9 listed impairments. Id. at 24-27. The ALJ then determined that plaintiff had the residual functional 10 capacity (“RFC”) to perform a full range of work at all exertional levels with certain nonexertional 11 limitations. Id. at 27. In light of that RFC finding, the ALJ concluded that plaintiff was not disabled 12 because she was capable of performing her past relevant work as a mail clerk. Id. at 28. 13 Plaintiff filed a request for review of the ALJ’s decision, and the Appeals Council denied 14 review of plaintiff’s claims on March 21, 2019, rendering ALJ LaBarre’s denial the final decision 15 of the Commissioner. See id. at 1-7. After the Appeals Council denied review, plaintiff sought 16 review in this Court. Dkt. No. 1. 17 18 ISSUES FOR REVIEW 19 1. Did the ALJ err in according reduced weight to the opinions of plaintiff’s treating 20 psychiatrists Dr. Streett and Dr. Fullar? 21 2. Did the ALJ err in discounting plaintiff’s symptom testimony? 22 23 LEGAL STANDARD 24 A claimant is considered “disabled” under the Social Security Act if he meets two 25 requirements. See 42 U.S.C. § 423(d); Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). First, 26 the claimant must demonstrate “an inability to engage in any substantial gainful activity by reason 27 1 of any medically determinable physical or mental impairment which can be expected to result in 2 death or which has lasted or can be expected to last for a continuous period of not less than 12 3 months.” 42 U.S.C § 423(d)(1)(A). Second, the impairment or impairments must be severe enough 4 that he is unable to do his previous work and cannot, based on his age, education, and work 5 experience “engage in any other kind of substantial gainful work which exists in the national 6 economy.” Id. § 423(d)(2)(A). To determine whether a claimant is disabled, an ALJ is required to 7 employ a five-step sequential analysis, examining: (1) whether the claimant is engaging in 8 “substantial gainful activity;” (2) whether the claimant has a severe medically determinable physical 9 or mental impairment” or combination of impairments that has lasted for more than 12 months; (3) 10 whether the impairment “meets or equals” one of the listings in the regulations; (4) whether, given 11 the claimant’s RFC, the claimant can still do his “past relevant work”’ and (5) whether the claimant 12 “can make an adjustment to other work.” Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012); 13 see also 20 C.F.R. §§404.1520(a), 416.920(a). 14 An ALJ’s “decision to deny benefits will only be disturbed if it is not supported by 15 substantial evidence or it is based on legal error.” Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 16 2005) (internal quotation marks and citation omitted). Substantial evidence is “more than a mere 17 scintilla but less than a preponderance.” Tackett, 180 F.3d at 1098. Substantial evidence means 18 “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” 19 Molina, 674 F.3d at 1110 (internal quotation marks and citations omitted). To determine whether 20 substantial evidence exists, the Court must consider the record as a whole, weighing both evidence 21 that supports and evidence that detracts from the Commissioner’s conclusion. Tackett, 180 F.3d at 22 1098. “Where evidence is susceptible to more than one rational interpretation,” the ALJ’s decision 23 should be upheld. Burch, 400 F.3d at 679. 24 25 DISCUSSION 26 I. The ALJ’s Evaluation of the Medical Evidence 27 Plaintiff contends that the ALJ erred in giving reduced weight to the opinions of her treating 1 “personal history is mired with loss, neglect and severe emotional and sexual trauma.” AR 560. 2 When plaintiff was 12 years old, her uncle molested her and her mother then accused her of lying 3 about it. Id. at 375, 1081. When plaintiff was 19 years old, during a trip to Boston, a group of five 4 men raped her in a hotel room and no one responded to her screams for help. Id. at 560, 1081. Dr. 5 Streett and Dr. Fullar diagnosed plaintiff with chronic and severe PTSD and major depressive 6 disorder and opined that she would be unable to work due to the severity of her mental health 7 symptoms. Id. at 349, 560, 924. 8 In the Ninth Circuit, courts must “distinguish among the opinions of three types of 9 physicians: (1) those who treat the claimant (treating physicians); (2) those who examine but do not 10 treat the claimant (examining physicians); and (3) those who neither examine nor treat the claimant 11 (nonexamining physicians).” Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995) (as amended (Apr. 12 9, 1996)). A treating physician’s opinion is entitled to more weight than that of an examining 13 physician, and an examining physician’s opinion is entitled to more weight than that of a 14 nonexamining physician. Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007). For claims filed before 15 March 27, 2017, such as plaintiff’s, “[t]he medical opinion of a claimant’s treating physician is 16 given ‘controlling weight’ so long as it ‘is well-supported by medically acceptable clinical and 17 laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the 18 claimant’s] case record.’” Trevizo v. Berryhill, 871 F.3d 664, 675 (9th Cir. 2017) (quoting 20 C.F.R. 19 § 404.1527(c)(2)). As such, the ALJ must provide clear and convincing reasons to reject the 20 uncontradicted opinion of a treating or examining physician. Lester, 81 F.3d at 830. Even where 21 an examining physician’s opinion is contradicted by another physician’s opinion, an ALJ may not 22 reject the opinion without “specific and legitimate reasons that are supported by substantial 23 evidence” in the record. Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014); Reddick v. Chater, 24 157 F.3d 715, 725 (9th Cir. 1998). “This is so because, even when contradicted, a treating or 25 examining physician’s opinion is still owed deference and will often be ‘entitled to the greatest 26 weight . . . even if it does not meet the test for controlling weight.’” Garrison, 759 F.3d at 1012 27 (quoting Orn, 495 F.3d at 633). 1 A. Dr. Streett 2 Plaintiff saw Dr. Streett for treatment at Kaiser from January 2014 until early 2016. AR 3 560, 924. The administrative record contains treatment notes and email correspondence from Dr. 4 Streett as well as forms Dr. Streett completed for the California Employment Development 5 Department to certify plaintiff’s short-term disability leave from her job. Dr. Streett also authored 6 two letters related to plaintiff’s leave from work. 7 On April 14, 2014, Dr. Streett wrote a letter stating, in part, that plaintiff had 8 severe, chronic, and treatment-refractory Post-Traumatic Stress Disorder, stemming from a group sexual assault that occurred at age 19, 29 years ago. She still has 9 frequent nightmares and intrusive memories of this event, is chronically irritable and mistrustful of others, and is often severely depressed with thoughts of death and 10 suicide. She has had intermittent psychiatric treatment, including trials of multiple psychiatric medications, over the past decade or so, none of it particularly helpful. 11 Her negative feelings about herself and other people have been increasing in recent years, to the point that she no longer feels able to interact well with coworkers and 12 customers in her job as a receptionist. I have given her disability leave from work, but it is not at all clear to me that she will be able to return to work within the one 13 year limit for short-term disability benefits. 14 Id. at 924. 15 On November 6, 2015, Dr. Streett wrote a letter stating, in part, that plaintiff had 16 ongoing symptoms of chronic and severe Post-Traumatic Stress Disorder stemming from a violent assault that occurred thirty years ago. At this time she is also suffering 17 from a severe episode of recurrent Major Depressive Disorder. Her current symptoms cause marked distress and interfere significantly with her activities of 18 daily living. She has been too disabled to work since June of this year, and I do not anticipate her being able to work any time soon. I have encouraged her to apply for 19 Social Security Disability benefits. 20 Id. at 349. 21 The ALJ gave “little weight” to Dr. Streett’s opinions contained in the two letters that 22 plaintiff would be unable to work because of her psychological impairments. Id. at 25. The ALJ 23 explained, 24 … treatment provider Robert Stuart Streett, M.D., submitted two vague opinions, on April 14, 2014, and November 6, 2015, opining that the claimant would be unable to 25 work due to her psychological impairments, but providing no detail or comprehensive assessments of particular functional limitations (Exhibits 1F; 8F). 26 Because these assessments are not consistent with the totality of the record, and in particular with the claimant’s sporadic engagement and compliance with treatment, 27 and because they delve into matters left to the discretion of the Commissioner, I give 1 Id. 2 Because Dr. Streett’s opinion is contradicted by the opinions of the State agency medical 3 consultants, who found plaintiff was not disabled and was only mildly restricted in her activities of 4 daily living, see id. at 99, 104-05, 115, 120, the ALJ needed to provide specific and legitimate 5 reasons supported by substantial evidence in the record to reject Dr. Streett’s opinion. See Lester, 6 81 F.3d at 830-31. The ALJ provided only two reasons, neither of which is a specific and legitimate 7 reason. 8 First, the ALJ rejected Dr. Streett’s opinion as “not consistent with the totality of the record, 9 and in particular with the claimant’s sporadic engagement and compliance with treatment[.]” AR 10 25. The ALJ did not support this statement with any citation to the over 1000-page record. This 11 was error. See Garrison, 759 F.3d at 1012 (“An ALJ can satisfy the substantial evidence 12 requirement by setting out a detailed and thorough summary of the facts and conflicting clinical 13 evidence, stating his interpretation thereof, and making findings. The ALJ must do more than state 14 conclusions. He must set forth his own interpretations and explain why they, rather than the 15 doctors’, are correct.”). 16 Moreover, the record is replete with indications that plaintiff’s “sporadic” treatment, if it can 17 be called “sporadic,” was attributable to problems with her health insurance and her inability to 18 afford the co-pay. See, e.g., AR 417 (October 2015 treatment note that her medical benefits will 19 end in January and she is “freaking out” about where she will receive treatment), 428 (April 2016 20 treatment note that her large co-pays “limit her ability to attend follow-up appointments with 21 psychiatrist, her therapist (Richard Carson) and even to fill medications”), 561 (September 2016 22 letter from Dr. Fullar that plaintiff’s psychiatric care is partially compromised by her inability to 23 pay co-pays), 814 (June 2016 treatment note that she can’t afford to go back to her therapist), 1061 24 (January 2017 treatment note that she “can't afford the co-pays for visits or medication” and was not 25 taking her meds “in about eight months because she can’t afford the co-pays”). In Regennitter v. 26 Commissioner of the Social Security Administration, 166 F.3d 1294, 1296-97 (9th Cir. 1999), the 27 Ninth Circuit found an ALJ’s rejection of the claimant’s symptom testimony was not supported by 1 insurance coverage ran out and where it was uncontested that he did not seek more treatment or take 2 prescription medications because he could not afford it. So too here. 3 The record also shows that on at least two occasions, plaintiff was going to therapy but then 4 had her treatment end through no fault of her own. On one occasion, around May 2014, her therapist 5 retired and Kaiser did not connect her to a new therapist. See AR 375. Another time, plaintiff was 6 referred to a different modality of treatment that her then-therapist said was incompatible with 7 seeing that therapist at the same time. See id. at 59-60 (explaining at the November 2017 hearing 8 that while plaintiff was trying to access an EMDR therapist through the county, her current therapist 9 sent her a text message to say “she was closing [her] out”). 10 In the above context, the Court finds that what the ALJ characterized as “sporadic 11 engagement and compliance with treatment” is not a legitimate reason to discount the opinions of 12 treating physician Dr. Streett. 13 The ALJ also rejected Dr. Streett’s opinions “because they delve into matters left to the 14 discretion of the Commissioner[.]” Id. at 25. While an ALJ is not bound by a treating physician’s 15 determination on the ultimate issue of disability, see 20 C.F.R. § 404.1527(e)(1) (“A statement by a 16 medical source that you are ‘disabled’ or ‘unable to work’ does not mean that we will determine 17 that you are disabled.”), “an ALJ may not simply reject a treating physician’s opinions on the 18 ultimate issue of disability.” Ghanim v. Colvin, 763 F.3d 1154, 1161 (9th Cir. 2014). In order to 19 discredit Dr. Streett’s opinions, the ALJ was required to provide specific, legitimate reasons for 20 doing so, and the ALJ did not do so here. See Garrison, 759 F.3d at 1012. 21 Finally, the Court agrees with plaintiff that the ALJ erred in weighing the opinion of a 22 treating physician such as Dr. Streett without applying the factors listed in 20 C.F.R. §§ 404.1527, 23 416.927. The regulations “provide that, when a treating source’s opinions are not given controlling 24 weight, an ALJ must apply the factors in 20 C.F.R. § 404.1527(c)(2)(i-ii) and (c)(3-6) in determining 25 how much weight to give each opinion.” Garrison, 759 F.3d at 1012 n.11. These factors include 26 the length of the treatment relationship and the frequency of examination, the nature and extent of 27 the treatment relationship, supportability, consistency, and specialization. Here, the ALJ did not 1 controlling weight. Dr. Streett was plaintiff’s treating psychiatrist since January 2014, and thus had 2 been treating and examining plaintiff since before and through the start of her requested disability 3 period. Moreover, Dr. Streett’s opinion merits more weight because it is “the medical opinion of a 4 specialist about medical issues related to his . . . area of specialty[.]” See 20 C.F.R. 5 §§ 404.1527(c)(5), 416.927(c)(5). Without discussing any of these factors, the ALJ gave “little 6 weight” to the opinions of plaintiff’s treating psychiatrist, while simultaneously giving “significant 7 weight” to the opinions of the State agency medical consultants, who never examined plaintiff. See 8 AR 25-26, 28. The ALJ’s failure to consider the factors outlined in the regulations “alone constitutes 9 reversible legal error.” See Trevizo, 871 F.3d at 676. 10 In sum, the ALJ erred both by rejecting Dr. Streett’s opinions without providing specific and 11 legitimate reasons supported by substantial evidence in the record and by failing to apply the factors 12 set forth in the regulations. 13 14 B. Dr. Fullar 15 The ALJ rejected the opinion of treating psychiatrist Dr. Fullar on largely the same grounds 16 as those used to reject Dr. Streett. Plaintiff began seeing Dr. Fullar in April 2016. AR 560. On 17 September 30, 2016, Dr. Fullar wrote a letter summarizing plaintiff’s personal history and 18 psychiatric treatment and stating that plaintiff “suffers from multiple symptoms of chronic Post 19 Traumatic Stress Disorder (PTSD) and Major Depressive disorder with suicidal ideation.” Id. Dr. 20 Fullar described plaintiff’s depression as “characterized by persistently low mood, crying spells, 21 significant appetite changes, insomnia, poor focus, agitation, decreased energy, decreased libido, 22 isolation, and irritability.” Id. Dr. Fullar went on to state, 23 Her psychiatric presentation is further compounded by severe symptoms of PTSD (after having been sexually assaulted by 5 men at age 19). Her symptoms of PTSD 24 are characterized by nightmares, flashbacks, intrusive recollections, irritable and unstable mood, anger, pessimism, and [a] sense of hopelessness. Her symptoms of 25 PTSD are severe and maladaptive enough to border on psychotic spectrum. As a result, she experiences persecutory and referential ideation, manifesting as gross 26 mistrustfulness towards people. Her symptoms render her social interaction often quite inappropriate . . . . Due to her discomfort and distress among people, . . . she 27 has difficulty going outside of her home. . . . Her psychiatric symptoms which have not responded to psychiatric treatment with 1 adequate resolution[] continue to interfere with her ability to work. The combination of Depressive and PTSD symptoms impair her ability to engage in sustained gainful 2 employment as she suffers from poor energy, impaired concentration, difficulty in formulating and executing simple decisions, gross limitation of interpersonal 3 interactions and severe distress in public places. Her social history indicates that her occupational and social functioning has been directly compromised by her chronic 4 psychiatric symptoms. 5 In this writer’s professional opinion, [plaintiff] suffers from chronic and persistent mental illness which has resulted into gradual functional decline and have [sic] led 6 to marginal social and occupational functioning. It is unlikely for her to regain such function to the extent where she can obtain and maintain competitive gainful 7 employment. . . . 8 Id. at 560-61. 9 The ALJ gave “some weight” to Dr. Fullar’s “recounting of the claimant’s treatment history 10 and symptoms,” but gave “little weight” to Dr. Fullar’s work-related conclusions, finding that Dr. 11 Fullar “intrudes into areas left to the discretion of the Commissioner, such as opining that the 12 claimant would be unable to maintain gainful employment[.]” Id. at 25. The ALJ also found “that 13 the reported level of symptom severity is not fully consistent with the record as a whole, including 14 the claimant’s somewhat sporadic engagement with treatment.” Id. 15 For the reasons explained more fully above in Section I.A, the Court finds the ALJ failed to 16 provide specific and legitimate reasons supported by substantial evidence for discounting the 17 opinion of treating physician Dr. Fullar. The ALJ improperly rejected Dr. Fullar’s opinion as 18 intruding into areas left to the discretion of the Commissioner, but “an ALJ may not simply reject a 19 treating physician’s opinions on the ultimate issue of disability.” See Ghanim, 763 F.3d at 1161. 20 This is particularly so here, where the ALJ failed to address the underlying bases for Dr. Fullar’s 21 disability opinion, such as Dr. Fullar’s conclusion that plaintiff’s psychiatric symptoms impaired 22 her concentration, led to difficulty in formulating and executing simple decisions, grossly limited 23 her interpersonal interactions, and caused severe distress in public places. See AR 560-61. As also 24 explained above, even accepting the ALJ’s characterization of plaintiff’s treatment as “sporadic,” 25 this was not a specific and legitimate reason to reject Dr. Fullar’s opinion, where the record shows 26 plaintiff could not afford treatment and where at least two therapists stopped treating plaintiff while 27 plaintiff indicated a willingness to continue treatment. Finally, the ALJ erred because, as with Dr. 1 Streett, the ALJ weighed Dr. Fullar’s opinion without applying the factors listed in 20 C.F.R. 2 §§ 404.1527, 416.927. 3 4 II. The ALJ’s Evaluation of Plaintiff’s Symptom Testimony 5 Plaintiff also challenges the ALJ’s rejection of her symptom testimony. The Ninth Circuit 6 has established a two-step analysis for determining how to credit a claimant’s symptom testimony: 7 First, the ALJ must determine whether the claimant has presented objective medical evidence of an underlying impairment which could reasonably be expected to 8 produce the pain or other symptoms alleged. . . . 9 If the claimant satisfies the first step of this analysis, and there is no evidence of malingering, the ALJ can reject the claimant’s testimony about the severity of her 10 symptoms only by offering specific, clear and convincing reasons for doing so. This is not an easy requirement to meet: The clear and convincing standard is the most 11 demanding required in Social Security cases.

12 Trevizo, 871 F.3d at 678 (quoting Garrison, 759 F.3d at 1014-15). If the ALJ finds the claimant’s 13 allegations of severity are not credible, “[t]he ALJ must state specifically which symptom testimony 14 is not credible and what facts in the record lead to that conclusion.” Smolen v. Chater, 80 F.3d 1273, 15 1284 (9th Cir. 1996). 16 At the first step of the credibility test, the ALJ found that plaintiff’s “medically determinable 17 impairments could reasonably be expected to cause the alleged symptoms[.]” AR 28. The ALJ 18 cited no evidence of malingering. Moving to the second step, the ALJ found plaintiff’s “statements 19 concerning the intensity, persistent and limiting effects of these symptoms [to be] not entirely 20 consistent with the medical evidence and other evidence in the record for the reasons explained in 21 this decision.” Id. 22 The ALJ provided two reasons for finding plaintiff’s statements regarding her symptoms to 23 be inconsistent with the record: (1) “as noted above, her engagement with treatment has been 24 sporadic[;]” and (2) “her conditions, while severe, do not cause the level of dysfunction she reports.” 25 Id. For the reasons explained in Section I.A above, the Court finds that any allegedly “sporadic” 26 engagement with treatment is not a clear and convincing reason to reject plaintiff’s statements, 27 1 particularly given the numerous and consistent records documenting her inability to afford her 2 insurance co-pay. 3 As to the second rationale the ALJ provided, the citations the ALJ gave do not support the 4 finding that plaintiff’s “conditions . . . do not cause the level of dysfunction she reports.” See id. In 5 making this finding, the ALJ discounted the statements of “some providers [who] have chosen to 6 opine in very general terms that the claimant is unable to perform any work,” finding “these 7 assessments are general and based on subjective reports rather than objective measures (see Exhibits 8 1F; 5F; 8F; 13F).” Id. The ALJ cited the two letters from Dr. Streett, the letter from Dr. Fullar, and 9 a 2017 psychological evaluation by licensed clinical psychologist Sherry Lebeck, Ph.D., to whom 10 plaintiff was referred by her then-therapist Louise Morgan.3 As an initial matter, the ALJ did not 11 address the fact that Dr. Streett’s and Dr. Fullar’s opinions were not simply based on plaintiff’s 12 “subjective reports” but also on their history of treating plaintiff over a span of several years (Dr. 13 Streett) and several months (Dr. Fullar). Moreover, Dr. Lebeck’s report lists the various tests that 14 Dr. Lebeck administered and the treatment records she reviewed and therefore on its face contradicts 15 the ALJ’s assessment that it was based solely on subjective reports. See AR 1080. 16 To the extent the ALJ rejected the opinions of Drs. Streett, Fullar, and Lebeck because the 17 ALJ perceived them to be “based on subjective reports,” the ALJ erred. The Ninth Circuit has held 18 that “a clinical interview and a mental status evaluation . . . are objective measures and cannot be 19 discounted as a ‘self-report.’” Buck v. Berryhill, 869 F.3d 1040, 1049 (9th Cir. 2017); see also 20 Savannah v. Astrue, 252 F. App’x 783, 785 (9th Cir. 2007) (“Diagnosis by a medical expert 21 constitutes objective medical evidence of an impairment.”); cf. Cox v. Apfel, 160 F.3d 1203, 1207 22 (8th Cir. 1998) (“Depression, diagnosed by a medical professional, is objective medical evidence of 23 pain to the same extent as an X-ray film.”). The Ninth Circuit has instructed, 24 Psychiatric evaluations may appear subjective, especially compared to evaluation in other medical fields. Diagnoses will always depend in part on the patient’s self- 25 report, as well as on the clinician’s observations of the patient. But such is the nature of psychiatry. Thus, the rule allowing an ALJ to reject opinions based on self-reports 26 does not apply in the same manner to opinions regarding mental illness. 27 1 Buck, 869 F.3d at 1049 (citing Poulin v. Bowen, 817 F.2d 865, 873 (D.C. Cir. 1987) (“However, 2 unlike a broken arm, a mind cannot be x-rayed.”)); see also Ferrando v. Comm’r of Soc. Sec. Admin., 3 449 F. App’x 610, 612 (9th Cir. 2011) (“[M]ental health professionals frequently rely on the 4 combination of their observations and the patient’s reports of symptoms (as do all doctors) . . . . To 5 allow an ALJ to discredit a mental health professional’s opinion solely because it is based to a 6 significant degree on a patient’s ‘subjective allegations’ is to allow an end-run around our rules for 7 evaluating medical opinions for the entire category of psychological disorders.”); see also 8 Regennitter, 166 F.3d at 1300 (holding ALJ erred in discounting opinion of examining psychologist 9 on the ground that psychologist “appears to have taken [the plaintiff’s] statements at face value” 10 because there was no evidence that the plaintiff was malingering or deceptive). This is the type of 11 conclusory statement that the Ninth Circuit has repeatedly held insufficient. See Embrey v. Bowen, 12 849 F.2d 418, 421 (9th Cir.1988) (“To say that medical opinions are not supported by sufficient 13 objective findings . . . does not achieve the level of specificity our prior cases have required, even 14 when the objective factors are listed seriatim.”); see also Regennitter, 166 F.3d at 1299. 15 The ALJ also stated that plaintiff’s conditions did not cause the level of dysfunction she 16 reports by citing: (1) “relatively normal mental status findings, at odds with the dire opinions 17 regarding an inability to work[;]” and (2) the June 2016 opinion by State agency consultant Monica 18 Yeater, Psy.D., who “opined with a reasonable degree of psychological certainty that the claimant 19 was not in immediate danger of self-harm or other violence (Exhibit 2F).” AR 28. It is not clear 20 what the relevance is of Dr. Yeater’s opinion. Plaintiff need not demonstrate that she is in immediate 21 danger of self-harm in order to meet Listing 12.04 (depressive, bipolar and related disorders), 12.06 22 (anxiety and obsessive-compulsive disorders), or 12.15 (trauma- and stressor-related disorders). See 23 https://www.ssa.gov/disability/professionals/bluebook/12.00-MentalDisorders-Adult.htm. Thus, 24 by the SSA’s own definition, a claimant may be found disabled on the basis of depression, anxiety, 25 or PTSD without being in immediate danger of self-harm. 26 As to the ALJ’s reference to “relatively normal mental status findings,” the Court finds the 27 records on which the ALJ relied do not support this conclusion. While some of the citations the 1 or to records that show plaintiff suffering from a range of mental health issues. For instance, the 2 ALJ cited to Exhibits 7F/39, 59, 74, and 9F/8. See AR 28. These are California Employment 3 Development Department forms that Dr. Streett completed to certify plaintiff’s continuing eligibility 4 for short-term disability leave. Id. at 827, 847, 862, 932. These forms do not contain mental status 5 findings; rather, they list plaintiff’s diagnoses and contain statements from Dr. Streett that plaintiff 6 cannot return to work because of her “Depressed mood, emotional volatility, anxiety, poor 7 concentration.” See id. at 827, 847 (same), 862 (same), 932 (same, with anxiety described as 8 “pervasive”). The ALJ also cited to treatment notes from plaintiff’s Kaiser clinician, LCSW Richard 9 Carson, that consistently show plaintiff struggling with her mental health. See, e.g., id. at 28 (citing 10 7F/21 (listing plaintiff’s mood as “depressed”), 7F/22 (noting that plaintiff reported significantly 11 worsened symptoms, that ongoing depression symptoms led to a recent hospitalization, and that 12 current symptoms include: depressed mood, anhedonia, insomnia, irritability, decreased energy, 13 hopelessness, decreased concentration), 7F/52 (listing current depressive symptoms as “depressed 14 mood, anhedonia, crying spells, significant appetite change, decreased energy, guilt, hopelessness, 15 decreased concentration, recurrent thoughts of death”), 7F/131 (describing mood as “dysphoric and 16 irritable” and noting on the prior page that plaintiff scored in the “severe” range of the PHQ-9 Patient 17 Health Questionnaire and GDS Global Distress Score)); see also id. at 809-10, 840, 918-19. In sum, 18 the ALJ’s statement that the records show “relatively normal mental status findings” is not supported 19 by substantial evidence because many, if not most, of the records in the ALJ’s string cite either do 20 not contain mental status findings or else support plaintiff’s claim of debilitating mental health 21 symptoms. 22 Accordingly, the ALJ failed to provide specific, clear and convincing reasons supported by 23 substantial evidence for discounting Plaintiff’s symptom testimony. 24 25 III. Remedy 26 Plaintiff argues that remanding solely for calculation and award of benefits is appropriate in 27 this case. Pl.’s Mot. at 25; Pl.’s Reply at 11-13. Defendant disagrees, arguing that “no doctor 1 any limitations.” Def.’s Cross-Mot. at 11-12. 2 “When the ALJ denies benefits and the court finds error, the court ordinarily must remand 3 to the agency for further proceedings before directing an award of benefits.” Leon v. Berryhill, 880 4 F.3d 1041, 1045 (9th Cir. 2017) (citing Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 5 1099 (9th Cir. 2014)). However, under the credit-as-true rule, the Court may order an immediate 6 award of benefits if three conditions are met. First, the Court asks “whether the ‘ALJ failed to 7 provide legally sufficient reasons for rejecting evidence, whether claimant testimony or medical 8 opinion.’” Id. (quoting Garrison, 759 F.3d at 1020). Second, the Court must “determine whether 9 there are outstanding issues that must be resolved before a disability determination can be made, . . 10 . and whether further administrative proceedings would be useful.” Id. (citations and internal 11 quotation marks omitted). Third, the Court then “credit[s] the discredited testimony as true for the 12 purpose of determining whether, on the record taken as a whole, there is no doubt as to disability.” 13 Id. (citing Treichler, 775 F.3d at 1101). Even when all three criteria are met, whether to make a 14 direct award of benefits or remand for further proceedings is within the district court’s discretion. 15 Id. (citing Treichler, 775 F.3d at 1101). In rare instances, all three credit-as-true factors may be 16 met but the record as a whole still leaves doubts as to whether the claimant is actually disabled. 17 Trevizo, 871 F.3d at 683 n.11. In such instances, remand for further development of the record is 18 warranted. Id. 19 Here, the Court has found that the ALJ failed to provide legally sufficient reasons for 20 rejecting the opinions of plaintiff’s treating practitioners—Drs. Streett and Fullar—and in 21 discrediting plaintiff’s symptom testimony. The Court further finds that there are no outstanding 22 issues to resolve. The record in this case is over 1000 pages and contains records from numerous 23 doctors’ visits and multiple physical and mental health evaluations. Plaintiff’s treating practitioners 24 met with her frequently and established relationships with her. The record does not need further 25 development, and further administrative proceedings would not be useful. 26 Crediting the discredited testimony as true, there is no doubt as to plaintiff’s disability. 27 Numerous treating and examining providers have diagnosed plaintiff with PTSD and depression. 1 examining physicians, i.e., Dr. Streett, Dr. Fullar, and Dr. Lebeck. In the entire ALJ decision, the 2 only physicians whose opinions received “significant weight” were those of the State agency 3 consultants who reviewed plaintiff’s file but did not examine or treat her. See id. at 26, 28. Yet the 4 ALJ discounted even these opinions in certain areas, finding the consultants’ assessment that 5 plaintiff would have moderate difficulties in her ability to perform activities within a regular 6 schedule, maintain regular attendance, be punctual, and complete a normal workday or work week 7 without interruptions from psychologically based symptoms warranted “some weight” but not 8 “significant weight.” See id. at 26. “The ALJ is not entitled to pick and choose from a medical 9 opinion, using only those parts that are favorable to a finding of nondisability.” See Craig v. Astrue, 10 269 F. App’x 710, 712 (9th Cir. 2008) (quoting Robinson v. Barnhart, 366 F.3d 1078, 1083 (10th 11 Cir. 2004)). 12 The hypothetical questions the VE answered during plaintiff’s administrative hearing 13 illustrate plaintiff’s disability. The Ninth Circuit has consistently remanded for an award of benefits 14 in cases where a VE was posed a hypothetical that included the RFC that a claimant would possess 15 if improperly discredited opinions or testimony were taken as true. See, e.g., Garrison, 759 F.3d at 16 1022; Lingenfelter v. Astrue, 504 F.3d 1028, 1041 (9th Cir. 2007); Varney v. Sec’y of Health & 17 Human Servs., 859 F.2d 1396, 1401 (9th Cir. 1988). In those cases, the claimant’s counsel presented 18 an alternative hypothetical to the VE that included the claimant’s limitations and RFC as described 19 by medical opinion or the claimant’s testimony. In each case the VE responded to that hypothetical 20 by saying that a person with those limitations would be disabled. And in each case, the appeals 21 court found that based on that evidence, the ALJ would be required to find the claimant disabled on 22 remand if the improperly rejected evidence were credited as true. 23 Here, the ALJ and plaintiff’s counsel posed multiple hypothetical questions to the VE. AR 24 63-70. The VE testified that a claimant who had marked limitation in concentration, persistence, or 25 pace; who would be off task 15% of the time or more; or who would be consistently absent from 26 work more than one time per month would not be able to maintain employment. Id. at 69-70. At 27 the hearing, plaintiff testified that she has crying spells “a lot,” and that she is terrified to leave the 1 June 2016 states that she is “not able to control emotions of anxiety or nightmares that [she] 2 experience[s] even during the day.” Id. at 291. Dr. Lebeck’s report notes that plaintiff repeatedly 3 hears the voice of one of her rapists. Id. at 1081. After crediting these statements as true, and 4 particularly when coupled with the improperly discounted opinions of the treating physicians, the 5 VE’s testimony provides adequate basis for the Court to conclude that plaintiff is disabled without 6 the need to remand for further proceedings. See Garrison, 759 F.3d at 1022. 7 Defendant argues that the record as a whole creates serious doubt as to plaintiff’s disability, 8 arguing that “no doctor actually indicated any functional assessment regarding Plaintiff’s mental 9 impairments argument or assessed any limitations[,]” and that “even Plaintiff’s treating physician 10 released Plaintiff for full time work, despite his letters to the contrary.” Def.’s Cross-Mot. at 11-12. 11 Reading the record as a whole, the Court disagrees. The record contains treatment notes, letters, 12 and evaluations from treating providers, namely Drs. Streett and Fullar, both of whom found, in 13 2014, in 2015, and in 2016, that plaintiff was unable to return to work. These conclusions were 14 corroborated by examining psychologist Dr. Lebeck, who opined in August 2017 that “it is clear 15 that [plaintiff] is in no emotional condition to return to work at this time, and that she should be 16 referred for intense psychotherapy to work through issues related to the rape and molestation.” AR 17 1085. In light of the numerous, consistent records and opinions from both treating and examining 18 physicians in this case, the Court will not remand for further proceedings solely for a doctor to 19 complete a formal “functional assessment” form. The ALJ did not indicate that he was rejecting the 20 opinions of Drs. Streett and Fullar based on a lack of any functional assessment, and the Court finds 21 there would be little utility in remanding for the doctors to complete a form opining that plaintiff 22 would miss “X” number of workdays per month, when they already provided letters stating that they 23 did not think plaintiff could work at all. 24 Additionally, defendant is incorrect that plaintiff’s treating physician, Dr. Streett, released 25 plaintiff to full-time work. Defendant states that “Plaintiff was released to full time work on July, 26 August, and October 2015 by Dr. Streett (AR 351-52, 354-56), and again in January and August 27 2016 (AR 353, 359).” Def.’s Cross-Mot. at 8. A review of these records shows that Dr. Streett was 1 time the disability period was due to end, Dr. Streett re-evaluated plaintiff and extended her leave. 2 || See AR 351-61 (Dr. Streett certifying plaintiff's leave from work from June 8, 2015, through April 3 17, 2016); see also id. at 361 (Dr. Fullar certifying plaintiffs leave from work from April 18, 2016 4 || through June 17, 2016).* 5 For all of the above reasons, the Court sees no basis for serious doubt in the record that 6 || plaintiff is disabled. Moreover, remand for benefits is appropriate here where plaintiff first applied 7 for benefits over four years ago and has already experienced lengthy, burdensome litigation. See 8 Vertigan v. Halter, 260 F.3d 1044, 1053 (9th Cir. 2001). 9 10 CONCLUSION 11 For the foregoing reasons, the Court GRANTS plaintiff's motion for summary judgment and 12 || DENIES defendant’s cross-motion for summary judgment. The Court REMANDS this case 13 pursuant to sentence four of 42 U.S.C. § 405(g) for an immediate payment of benefits.

IT IS SO ORDERED. a 16 || Dated: September 25, 2020 Site WU tee SUSAN ILLSTON Z 18 United States District Judge 19 20 21 22 23 24 25 26 27 4 At the hearing, plaintiff testified that she took medical leave in 2014 and then returned to 28 work in 2015 because she would be eligible for early retirement from her job at Kaiser if she worked through the end of 2015. AR 54-55. However, she was unable to work past June 2015. Id. at 349.