Steven J. Platkowsky v. Nancy A. Berryhill

• Court: District Court, C.D. California
• Decided: January 14, 2020
• Docket: 2:19-cv-04330
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 WESTERN DIVISION 11 12 STEVEN J. P., ) No. CV 19-4330-PLA ) 13 Plaintiff, ) MEMORANDUM OPINION AND ORDER ) 14 v. ) ) 15 ANDREW M. SAUL, COMMISSIONER ) OF SOCIAL SECURITY ) 16 ADMINISTRATION, ) ) 17 Defendant. ) ) 18 19 I. 20 PROCEEDINGS 21 Steven J. P.1 (“plaintiff”) filed this action on May 18, 2019, seeking review of the 22 Commissioner’s2 denial of his applications for a period of disability and Disability Insurance 23 Benefits (“DIB”) and Supplemental Security Income (“SSI”) payments. The parties filed Consents 24 1 In the interest of protecting plaintiff’s privacy, this Memorandum Opinion and Order uses 25 plaintiff’s (1) first name and middle and last initials, and (2) year of birth in lieu of a complete birth 26 date. See Fed. R. Civ. P. 5.2(c)(2)(B), Local Rule 5.2-1. 27 2 Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Andrew M. Saul, the newly-appointed Commissioner of the Social Security Administration, is hereby substituted as the 28 1 to proceed before a Magistrate Judge on June 11, 2019, and June 25, 2019. Pursuant to the 2 Court’s Order, the parties filed a Joint Submission (alternatively “JS”) on January 7, 2020, that 3 addresses their positions concerning the disputed issue in the case. The Court has taken the Joint 4 Submission under submission without oral argument. 5 6 II. 7 BACKGROUND 8 Plaintiff was born in 1966. [Administrative Record (“AR”) at 27, 217, 223.] He has past 9 relevant work experience as a janitor. [Id. at 26, 66.] 10 On September 1, 2010, plaintiff filed an application for a period of disability and DIB and 11 an application for SSI payments alleging in both that he has been unable to work since December 12 23, 2013. [Id. at 15; see also id. at 217-22, 223-26.] After his applications were denied initially 13 and upon reconsideration, plaintiff timely filed a request for a hearing before an Administrative Law 14 Judge (“ALJ”). [Id. at 161-63.] A hearing was held on December 27, 2017, at which time plaintiff 15 appeared represented by an attorney, and testified on his own behalf. [Id. at 36-72.] A vocational 16 expert (“VE”) also testified. [Id. at 65-71.] On May 23, 2018, the ALJ issued a decision concluding 17 that plaintiff was not under a disability from December 23, 2013, the alleged onset date, through 18 May 23, 2018, the date of the decision. [Id. at 15-28.] Plaintiff requested review of the ALJ’s 19 decision by the Appeals Council. [Id. at 215.] When the Appeals Council denied plaintiff’s request 20 for review on March 25, 2019 [id. at 1-5], the ALJ’s decision became the final decision of the 21 Commissioner. See Sam v. Astrue, 550 F.3d 808, 810 (9th Cir. 2008) (per curiam) (citations 22 omitted). This action followed. 23 24 III. 25 STANDARD OF REVIEW 26 Pursuant to 42 U.S.C. § 405(g), this Court has authority to review the Commissioner’s 27 decision to deny benefits. The decision will be disturbed only if it is not supported by substantial 28 evidence or if it is based upon the application of improper legal standards. Berry v. Astrue, 622 1 F.3d 1228, 1231 (9th Cir. 2010) (citation omitted). 2 “Substantial evidence . . . is ‘more than a mere scintilla[,]’ . . . [which] means -- and means 3 only -- ‘such relevant evidence as a reasonable mind might accept as adequate to support a 4 conclusion.’” Biestek v. Berryhill, 139 S. Ct. 1148, 1154, 203 L. Ed. 2d 504 (2019) (citations 5 omitted); Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017). “Where evidence is susceptible 6 to more than one rational interpretation, the ALJ’s decision should be upheld.” Revels, 874 F.3d 7 at 654 (internal quotation marks and citation omitted). However, the Court “must consider the 8 entire record as a whole, weighing both the evidence that supports and the evidence that detracts 9 from the Commissioner’s conclusion, and may not affirm simply by isolating a specific quantum 10 of supporting evidence.” Id. (quoting Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014) 11 (internal quotation marks omitted)). The Court will “review only the reasons provided by the ALJ 12 in the disability determination and may not affirm the ALJ on a ground upon which he did not rely.” 13 Id. (internal quotation marks and citation omitted); see also SEC v. Chenery Corp., 318 U.S. 80, 14 87, 63 S. Ct. 454, 87 L. Ed. 626 (1943) (“The grounds upon which an administrative order must 15 be judged are those upon which the record discloses that its action was based.”). 16 17 IV. 18 THE EVALUATION OF DISABILITY 19 Persons are “disabled” for purposes of receiving Social Security benefits if they are unable 20 to engage in any substantial gainful activity owing to a physical or mental impairment that is 21 expected to result in death or which has lasted or is expected to last for a continuous period of at 22 least twelve months. Garcia v. Comm’r of Soc. Sec., 768 F.3d 925, 930 (9th Cir. 2014) (quoting 23 42 U.S.C. § 423(d)(1)(A)). 24 25 A. THE FIVE-STEP EVALUATION PROCESS 26 The Commissioner (or ALJ) follows a five-step sequential evaluation process in assessing 27 whether a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920; Lounsburry v. Barnhart, 468 28 F.3d 1111, 1114 (9th Cir. 2006) (citing Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 1999)). 1 In the first step, the Commissioner must determine whether the claimant is currently engaged in 2 substantial gainful activity; if so, the claimant is not disabled and the claim is denied. Lounsburry, 3 468 F.3d at 1114. If the claimant is not currently engaged in substantial gainful activity, the 4 second step requires the Commissioner to determine whether the claimant has a “severe” 5 impairment or combination of impairments significantly limiting his ability to do basic work 6 activities; if not, a finding of nondisability is made and the claim is denied. Id. If the claimant has 7 a “severe” impairment or combination of impairments, the third step requires the Commissioner 8 to determine whether the impairment or combination of impairments meets or equals an 9 impairment in the Listing of Impairments (“Listing”) set forth at 20 C.F.R. § 404, subpart P, 10 appendix 1; if so, disability is conclusively presumed and benefits are awarded. Id. If the 11 claimant’s impairment or combination of impairments does not meet or equal an impairment in the 12 Listing, the fourth step requires the Commissioner to determine whether the claimant has sufficient 13 “residual functional capacity” to perform his past work; if so, the claimant is not disabled and the 14 claim is denied. Id. The claimant has the burden of proving that he is unable to perform past 15 relevant work. Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). If the claimant meets 16 this burden, a prima facie case of disability is established. Id. The Commissioner then bears 17 the burden of establishing that the claimant is not disabled because there is other work existing 18 in “significant numbers” in the national or regional economy the claimant can do, either (1) by 19 the testimony of a VE, or (2) by reference to the Medical-Vocational Guidelines at 20 C.F.R. part 20 404, subpart P, appendix 2. Lounsburry, 468 F.3d at 1114. The determination of this issue 21 comprises the fifth and final step in the sequential analysis. 20 C.F.R. §§ 404.1520, 416.920; 22 Lester v. Chater, 81 F.3d 721, 828 n.5 (9th Cir. 1995); Drouin, 966 F.2d at 1257. 23 24 B. THE ALJ’S APPLICATION OF THE FIVE-STEP PROCESS 25 At step one, the ALJ found that plaintiff had not engaged in substantial gainful activity since 26 27 28 1 December 23, 2013, the alleged onset date.3 [AR at 17.] At step two, the ALJ concluded that 2 plaintiff has the severe impairments of degenerative disc disease of the lumbar and cervical 3 spines; arachnoid cyst; epilepsy; seizure disorder; right knee arthralgia; and depressive disorder. 4 [Id.] At step three, the ALJ determined that plaintiff does not have an impairment or a combination 5 of impairments that meets or medically equals any of the impairments in the Listing. [Id. at 18.] 6 The ALJ further found that plaintiff retained the residual functional capacity (“RFC”)4 to perform 7 light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b),5 as follows: 8 [He] can lift/carry twenty pounds occasionally and ten pounds frequently. [He] can sit for six hours, stand for six hours, and walk for six hours in an eight-hour workday. 9 [He] can push/pull as much as he can lift/carry. [He] can frequently use his right hand for fingering. [He] can frequently climb ramps and stairs and never climb 10 ladders, ropes, or scaffolds. [He] can frequently stoop, kneel, crouch, and crawl. [He] must avoid exposure to unprotected heights and moving mechanical parts. 11 [He] can occasionally be exposed to work in extreme heat. [He] is limited to performing simple, routine tasks and simple work-related decisions. [He] can 12 frequently respond appropriately to supervisors and coworkers and occasionally respond appropriately to the public. [He] is limited to simple work-related decisions. 13 14 [Id. at 20.] At step four, based on plaintiff’s RFC and the testimony of the VE, the ALJ concluded 15 that plaintiff is unable to perform his past relevant work as a janitor. [Id. at 26, 66-67.] At step five, 16 based on plaintiff’s RFC, vocational factors, and the VE’s testimony, the ALJ found that there are 17 jobs existing in significant numbers in the national economy that plaintiff can perform, including 18 19 3 The ALJ concluded that plaintiff met the insured status requirements of the Social Security Act through December 31, 2018. [AR at 17.] 20 4 RFC is what a claimant can still do despite existing exertional and nonexertional 21 limitations. See Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). “Between steps 22 three and four of the five-step evaluation, the ALJ must proceed to an intermediate step in which the ALJ assesses the claimant’s residual functional capacity.” Massachi v. Astrue, 486 F.3d 1149, 23 1151 n.2 (9th Cir. 2007) (citation omitted). 24 5 “Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in 25 this category when it requires a good deal of walking or standing, or when it involves sitting most 26 of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of 27 these activities. If someone can do light work, we determine that he or she can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for 28 1 work as a “housekeeping cleaner” (Dictionary of Occupational Titles (“DOT”) No. 323.687-010), 2 as a “product trimmer” (DOT No. 732.684-046), and as a “machine tender” (DOT No. 363.685- 3 010). [AR at 28, 68-69.] Accordingly, the ALJ determined that plaintiff was not disabled at any 4 time from the alleged onset date of December 23, 2013, through May 23, 2018, the date of the 5 decision. [Id. at 28.] 6 7 V. 8 THE ALJ’S DECISION 9 Plaintiff contends that the ALJ erred when he assessed plaintiff’s residual functional 10 capacity for the mental requirements of work. [JS at 5.] As set forth below, the Court agrees with 11 plaintiff, in part, and remands for further proceedings. 12 13 A. LEGAL STANDARD 14 An RFC is “an assessment of an individual’s ability to do sustained work-related physical 15 and mental activities in a work setting on a regular and continuing basis.” Soc. Sec. Ruling 16 (“SSR”)6 96-9p, 1996 WL 374184, at *1 (1996). It reflects the most a claimant can do despite his 17 limitations. See Smolen v. Chater, 80 F.3d 1273, 1291 (9th Cir. 1996). An RFC must include an 18 individual’s functional limitations or restrictions as a result of all of his impairments -- even those 19 that are not severe (see 20 C.F.R. § 404.1545(a)(1)-(2), (e)) -- and must assess his “work-related 20 abilities on a function-by-function basis.” SSR 96-9p, 1996 WL 374184, at *1; see also Valentine 21 v. Comm’r of Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009) (“an RFC that fails to take into 22 account a claimant’s limitations is defective”). An ALJ errs when he provides an incomplete RFC 23 ignoring “significant and probative evidence.” Hill v. Astrue, 698 F.3d 1153, 1161-62 (9th Cir. 24 2012) (further noting that the error is not harmless when an ALJ fails to discuss significant and 25 26 6 “SSRs do not have the force of law. However, because they represent the Commissioner’s 27 interpretation of the agency’s regulations, we give them some deference. We will not defer to SSRs if they are inconsistent with the statute or regulations.” Holohan v. Massanari, 246 F.3d 1195, 1202 28 1 probative evidence favorable to a claimant’s position because when the RFC is incomplete, the 2 hypothetical question presented to the VE is incomplete and, therefore, the ALJ’s reliance on the 3 VE’s answers is improper). An RFC assessment is ultimately an administrative finding reserved 4 to the Commissioner. 20 C.F.R. § 404.1527(d)(2). However, an RFC determination must be 5 based on all of the relevant evidence, including the diagnoses, treatment, observations, and 6 opinions of medical sources, such as treating and examining physicians. Id. § 404.1545. A district 7 court must uphold an ALJ’s RFC assessment when the ALJ has applied the proper legal standard 8 and substantial evidence in the record as a whole supports the decision. See Bayliss v. Barnhart, 9 427 F.3d 1211, 1217 (9th Cir. 2005); Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). 10 11 B. ANALYSIS 12 1. Background 13 Plaintiff argues that the ALJ erred in formulating the RFC by failing to make explicit findings 14 regarding the March 28, 2016, opinion of reviewing examiner Timothy Schumacher, Ph.D. [AR at 15 118-20], whose opinion the ALJ gave “greater weight,” as Dr. Schumacher “had an opportunity 16 to review evidence submitted at a later stage in the proceedings.” [JS at 7 (citing AR at 24-25).] 17 Plaintiff notes that the ALJ properly rejected the opinions of other reviewing consultants but, 18 although he gave greater weight to Dr. Schumacher’s opinion, he nevertheless failed to articulate 19 “some basis for rejecting” certain of Dr. Schumacher’s findings. [Id.] Specifically, this includes the 20 following findings: (1) plaintiff could understand and remember “shorter-simple[r] . . . 1 to 2 step 21 job instructions” and could “complete routine 1 to 2 step assignments for up to 2 [hour] intervals”; 22 (2) plaintiff had moderate limitations interacting appropriately with the general public, and in 23 accepting instruction and responding appropriately to criticism from supervisors due to increased 24 stress from close interactions with the general public and from critical supervision from supervisors 25 aggravating his mood-anger symptoms, and could engage in routine contact with coworkers and 26 supervisors; and (3) plaintiff needed brief reminders to follow through on work assignment 27 changes. [Id. at 7-10 (citing AR at 118-20).] Plaintiff submits that the ALJ’s RFC determination 28 was deficient because the ALJ gave no reasons for rejecting “in whole or in part any of the aspects 1 of Dr. Schumacher’s expressions” of plaintiff’s RFC. [Id.] 2 3 2. One- and Two-Step Instructions 4 On November 21, 2015, Henry J. Venter, Ph.D., a licensed clinical psychologist, performed 5 a psychological consultative examination. [Id. at 626-35.] As relevant to this issue, Dr. Venter 6 concluded that plaintiff had no impairment in his ability to understand, remember, and carry out 7 simple one- or two-step job instructions; to do detailed and complex instructions; or to maintain 8 concentration and attention, persistence and pace. [Id. at 634.] Similarly, psychiatric consultant 9 Kevin Gregg, M.D. on initial determination, found that plaintiff’s mental impairment was “not 10 severe.” [Id. at 24 (citing id. at 81).] The ALJ gave the opinions of Dr. Venter and Dr. Gregg “little 11 weight, as they were not supported by the medical evidence of record.” [Id. at 24, 25.] The ALJ 12 noted that treatment records reflect that plaintiff “has a history of reported anger issues and 13 explosive outbursts with frequent verbal arguments with strangers,” and that on examination on 14 February 9, 2016, plaintiff exhibited “excessive speech, tangential associations, and ruminations,” 15 all of which “support greater limitations than provided for by” Dr. Venter. [Id.] 16 In contrast to the opinions of Dr. Venter and Dr. Gregg, in his March 28, 2016, opinion on 17 redetermination, Dr. Schumacher determined that plaintiff has moderate limitations in his ability 18 to understand and remember detailed instructions and “remains able to understand and remember 19 shorter-simpler 1 to 2 step job instructions”; has moderate limitations in his ability to maintain 20 attention and concentration for extended periods; has moderate limitations in his ability to 21 complete a normal workday and workweek without interruptions from psychologically-based 22 symptoms and to perform at a consistent pace without an unreasonable number and length of rest 23 periods; and is able to “complete routine 1 to 2 step assignments for up to 2 [hour] intervals.” [Id. 24 at 119-20.] 25 The ALJ noted that on initial review, Dr. Gregg opined that plaintiff’s mental impairments 26 were “not severe,” but that on reconsideration, Dr. Schumacher opined that plaintiff’s mental 27 impairments “are severe.” [Id. at 24-25.] The ALJ explicitly gave “[g]reater weight” to Dr. 28 Schumacher’s opinion because he had an opportunity to review “evidence submitted at a later 1 stage in the proceedings.” [Id. at 25.] As relevant to Dr. Schumacher’s opinions, the ALJ limited 2 plaintiff to “performing simple, routine tasks and work-related decisions.” [Id. at 20.] 3 Plaintiff contends that the ALJ failed to give a reasoned decision for rejecting the opinions 4 of Dr. Schumacher that plaintiff was limited to 1-2 step instructions and 1-2 step assignments for 5 up to two-hour intervals. [JS at 17-18.] He notes that Dr. Schumacher’s “narrative explanations” 6 regarding plaintiff’s moderate limitations in remembering instructions and maintaining attention and 7 concentration for extended periods, i.e., limiting plaintiff to shorter-simpler one- to two-step 8 instructions, or to “routine 1 to 2 step assignments” due to these limitations, “[are] the residual 9 functional capacity assessment” and, therefore, were entitled to “specific consideration” by the 10 ALJ. [Id. at 17.] Plaintiff further contends that Dr. Schumacher’s opinion that plaintiff is limited to 11 one- and two-step instructions and determination that plaintiff could “complete routine 1 to 2 step 12 assignments for up to 2 [hour] intervals,” “represents a more significant limitation on the ability to 13 perform work activity” than the ALJ’s limitation to simple work. [JS at 7 (citing Zavalin v. Colvin, 14 778 F.3d 842, 847 (9th Cir. 2015) (simple work has an apparent conflict with a reasoning level 3 15 occupation); Rounds v. Comm’r of Soc. Sec. Admin., 807 F.3d 996, 1002-04 (9th Cir. 2015) (one- 16 and two-step instructions have an apparent conflict with reasoning level 2 occupations)).] 17 According to plaintiff, that is because each of the three alternative occupations the ALJ found 18 plaintiff could perform require level 2 reasoning skills. He submits that the ALJ’s failure to provide 19 specific and legitimate reasons for rejecting Dr. Schumacher’s opinion that plaintiff is limited to 20 one- to two-step instructions, and instead determining -- without explanation -- that plaintiff was 21 limited to “simple, routine tasks,” was error that was not harmless because occupations requiring 22 reasoning level 2 are inconsistent with Dr. Schumacher’s assessed limitation. [Id. at 7-8.] 23 Defendant responds that the ALJ “properly considered the medical and nonmedical 24 evidence to determin[e] Plaintiff’s RFC.” [Id. at 11.] He argues that while Dr. Schumacher found 25 that plaintiff “could perform short simple instructions,” “with regard to more detailed instructions 26 [he found plaintiff] would be able to understand and remember shorter-simpler 1-2 step 27 instructions.” [Id. (citing AR at 23, 119-20).] He also argues that “the evidence shows” that while 28 plaintiff “could perform simple one to two step instructions, he was not limited to that, and could 1 also perform some detailed and complex tasks.” [Id. at 12 (citing AR at 119, 634).] Finally, 2 defendant submits that although plaintiff contends that “a limitation for one to two step tasks is 3 inconsistent with simple work and jobs with reasoning level 2,” the ALJ “did not find Plaintiff’s RFC 4 limits him to one to two step tasks.” [Id. (citing AR at 12).] 5 Defendant’s arguments are not persuasive. The Court agrees with defendant that Dr. 6 Schumacher found that plaintiff could perform “short[er]-simple[r] instructions” -- but only so long 7 as they were limited to “1 to 2 step job instructions.” [AR at 119 (“able to understand and 8 remember shorter-simpler 1 to 2 step job instructions”).] Additionally, contrary to defendant’s 9 argument, the evidence relied on by the ALJ to formulate plaintiff’s RFC does not show that 10 plaintiff “could also perform some detailed and complex tasks.” [JS at 12 (citing AR at 119, 634).] 11 In fact, Dr. Schumacher’s report [AR at 119], to which the ALJ gave “great[] weight,” reflects that 12 “[m]ood symptoms restrict [plaintiff] f[ro]m sustaining difficult-detailed 3 to 4 step work duties over 13 extended periods” but that he remains “able to understand and remember shorter-simpler 1 to 2 14 step job instructions.” [Id. at 120.] Similarly, defendant’s citation to Dr. Venter’s opinion that 15 plaintiff had “no impairment” in his ability to do detailed and complex instructions [AR at 634] is 16 unavailing in light of the fact that Dr. Venter’s opinion was explicitly rejected by the ALJ who 17 determined that it was entitled to little weight because it was not consistent with the evidence of 18 record. [Id. at 25.] 19 Finally, defendant’s suggestion that plaintiff’s reasoning level 2 argument is meritless simply 20 because the ALJ did not find that plaintiff’s “RFC limits him to one to two step tasks,” merely begs 21 the question of whether there was error caused by the ALJ’s failure to explain why he was 22 rejecting Dr. Schumacher’s stated shorter-simpler 1-2 step instruction limitation in favor of a 23 limitation to “simple, routine” tasks. According to the DOT, occupations with reasoning level 1 24 require the ability to “apply commonsense understanding to carry out simple one- or two-step 25 instructions [and] [d]eal with standardized situations with occasional or no variables in or from 26 these situations encountered on the job.” DOT App. C. In contrast, reasoning level 2 requires the 27 individual to carry out “detailed but uninvolved written or oral instructions.” DOT App. C (emphasis 28 added). 1 Although a limitation to simple repetitive tasks may be consistent with reasoning level 2 2 (see, e.g., Zavalin, 778 F.3d at 847), a limitation to one- to two-step instructions may not be 3 consistent with that reasoning level. See, e.g., Rounds, 807 F.3d at 1003-04 (finding an apparent 4 conflict between the claimant’s RFC limitation to one- to two-step tasks and the three 5 representative jobs the ALJ concluded she was capable of performing, each of which required 6 reasoning level 2). In Rounds, the ALJ confirmed at the outset of the VE’s testimony that he would 7 assume the VE’s testimony “is based on [his] knowledge, education, training, and experience 8 consistent with the DOT,” unless the VE told him otherwise. Id. at 1003. The ALJ then concluded 9 in his decision that the VE’s testimony -- that the hypothetical individual with a limitation to one- 10 to two-step tasks could perform reasoning level 2 occupations -- was consistent with the DOT, 11 “and never directly addressed whether [the claimant’s] limitation to one- to two-step tasks was 12 consistent with jobs requiring Level Two reasoning and, if so, why.” Id. Noting that the RFC 13 limitation was worded in a similar fashion to the requirements for level 1 reasoning, the court 14 rejected the Commissioner’s argument that Rounds’ inability to complete multi-step tasks “does 15 not necessarily contradict the VE’s opinion that [Rounds] has the ability to follow detailed 16 instructions, as required in Level Two jobs.” Id. The Ninth Circuit specifically noted that “[o]nly 17 tasks with more than one or two steps would require ‘detailed’ instructions . . . [a]nd these are 18 precisely the kinds of tasks Rounds’ RFC indicates she cannot perform.” Id. The Ninth Circuit 19 found, therefore, that there was an apparent conflict between the claimant’s RFC limitation to one- 20 to two-step tasks, and the demands of reasoning level 2. Id. at 1003. Because the ALJ had not 21 recognized the apparent conflict, the ALJ had not asked the VE to explain the conflict and the 22 Ninth Circuit remanded the matter for further proceedings. Id. at 1003-04. The court also found 23 that the ALJ’s failure to reconcile the apparent conflict was not harmless because he “did not 24 merely restrict Rounds to ‘simple’ or ‘repetitive’ tasks. Instead, he expressly limited her to ‘one 25 to two step tasks,’ apparently to address her ‘moderate’ problems with memory and 26 concentration.” Id. at 1004. 27 Here, plaintiff contends (and the Court agrees) that if -- consistent with the ALJ’s 28 determination that Dr. Schumacher’s opinion was entitled to “great[] weight” -- the ALJ had 1 adopted Dr. Schumacher’s opinion that plaintiff was limited to performing tasks with shorter- 2 simpler one- to two-step instructions, pursuant to Rounds that limitation would have been 3 inconsistent with the three reasoning level 2 occupations the ALJ determined, based on the 4 testimony of the VE, that plaintiff could perform with an RFC limitation to “simple, routine tasks.” 5 [JS at 7-8.] 6 The Court also agrees that the ALJ did not provide a specific and legitimate reason for 7 rejecting Dr. Schumacher’s opinion limiting plaintiff to one- and two-step instructions and 8 determination that plaintiff could “complete routine 1 to 2 step assignments for up to 2 [hour] 9 intervals.” The Court also determines that, consistent with Rounds, the ALJ’s error was not 10 harmless. 11 Remand is warranted on this issue. 12 13 3. Critical Supervision 14 Dr. Schumacher determined that plaintiff had moderate limitations in interacting 15 appropriately with the general public, and in accepting instruction and responding appropriately 16 to criticism from supervisors. [AR at 120.] He explained that “[s]tress from close interactions with 17 the general public and critical supervision aggravates [plaintiff’s] mood-anger symptoms.” [Id.] 18 Accordingly, he determined that plaintiff “can engage in routine contacts with coworkers and 19 employers.” [Id.] 20 Notwithstanding the “great[] weight” he gave to Dr. Schumacher’s opinion, the ALJ 21 determined -- without explanation -- that plaintiff “can frequently respond appropriately to 22 supervisors and coworkers and occasionally respond appropriately to the public.” [Id. at 20 23 (emphasis added).] Plaintiff contends that because the ALJ did not include any work-related 24 limitation with respect to plaintiff’s inability to withstand criticism from supervisors, the hypothetical 25 to the VE was incomplete, the “record is not clear whether any work is left when unable to tolerate 26 critical supervision from supervisors,” and the VE’s testimony, therefore, does not constitute 27 substantial evidence. [JS at 9.] 28 Defendant responds that the ALJ properly found that plaintiff “could frequently respond 1 appropriately to supervisors, co-workers and the public on an occasional basis.” [Id. at 10-11.] 2 Defendant further contends that Dr. Schumacher “summed up [his] findings in narrative form by 3 explaining stress from close interactions with . . . critical supervision aggravates Plaintiff’s mood- 4 anger symptoms, but he can engage in routine contacts with co-workers and employers.” [Id. at 5 11 (citing AR at 120).] 6 However, as noted, Dr. Schumacher determined that plaintiff was moderately limited in his 7 ability to accept instructions and respond appropriately to criticism from supervisors. [AR at 120.] 8 Although he gave “great[] weight” to Dr. Schumacher’s opinion, the ALJ did not explain how he 9 made the determination that plaintiff can frequently respond appropriately to supervisors given the 10 moderate limitation found by Dr. Schumacher in plaintiff’s ability to respond appropriately to 11 criticism from his supervisors. [Id. at 20.] Additionally, although the ALJ “translated” plaintiff’s 12 moderate limitation in his ability to interact with the general public into a limitation to occasionally 13 responding appropriately to the public, he inconsistently -- and without explanation -- “translated” 14 plaintiff’s moderate limitation to respond appropriately to criticism from supervisors to an ability to 15 frequently respond appropriately to supervisors. [Id.] 16 Accordingly, substantial evidence does not support the ALJ’s RFC determination and 17 remand is warranted on this issue. 18 19 4. Work-related Reminders 20 Dr. Schumacher determined that plaintiff had moderate limitations in the ability to respond 21 appropriately to changes in a work setting and, therefore, would need brief reminders to follow 22 through on work assignments. [Id. at 120.] 23 Plaintiff observes that the ALJ did not include any RFC limitation relating to plaintiff’s need 24 for reminders to follow through on work assignment changes, and that the incomplete RFC and 25 hypothetical question to the VE “leaves the vocational expert’s testimony as insubstantial.” [JS 26 at 10 (citation omitted).] 27 Defendant responds that the ALJ’s limitation to “making simple work related decisions” 28 “reasonably capture[s] Dr. Schumacher’s opinion that Plaintiff may need brief reminders to follow 1 through on work or assignment changes.” [Id. at 13 (citing AR at 20, 120).] 2 Because the matter is being remanded for the ALJ to reconsider plaintiff’s RFC with respect 3 to Dr. Schumacher’s opinions that plaintiff is limited to occupations with one- and two-step 4 instructions and determination that plaintiff could “complete routine 1 to 2 step assignments for up 5 to 2 [hour] intervals,” and to his opinion that plaintiff had moderate limitations responding 6 appropriately to criticism from supervisors, the ALJ on remand shall also reconsider plaintiff’s RFC 7 with respect to his need for brief reminders to follow through on work assignments. 8 9 VI. 10 REMAND FOR FURTHER PROCEEDINGS 11 The Court has discretion to remand or reverse and award benefits. Trevizo v. Berryhill, 871 12 F.3d 664, 682 (9th Cir. 2017) (citation omitted). Where no useful purpose would be served by 13 further proceedings, or where the record has been fully developed, it is appropriate to exercise this 14 discretion to direct an immediate award of benefits. Id. (citing Garrison, 759 F.3d at 1019). Where 15 there are outstanding issues that must be resolved before a determination can be made, and it 16 is not clear from the record that the ALJ would be required to find plaintiff disabled if all the 17 evidence were properly evaluated, remand is appropriate. See Garrison, 759 F.3d at 1021. 18 In this case, there are outstanding issues that must be resolved before a final determination 19 can be made. In an effort to expedite these proceedings and to avoid any confusion or 20 misunderstanding as to what the Court intends, the Court will set forth the scope of the remand 21 proceedings. First, the ALJ shall reassess the entire medical record, and all other evidence of 22 record relevant to plaintiff’s claim for DIB and SSI payments.7 The ALJ must explain the weight 23 afforded to each opinion and provide legally adequate reasons for any significant and probative 24 portion of an opinion that the ALJ discounts or rejects, including a legally sufficient explanation for 25 crediting one doctor’s opinion over any of the others. Second, the ALJ shall reassess plaintiff’s 26 27 7 Nothing herein is intended to disrupt the ALJ’s finding that plaintiff is unable to perform his 28 1 || subjective symptom statements and provide specific, clear and convincing reasons for discrediting 2| his testimony, if warranted. Third, based on his reevaluation of the entire medical record, and 3|| assessment of plaintiff's subjective symptom testimony, the ALJ shall determine plaintiff's RFC. 4|| Fourth, the ALJ shall proceed to step five and determine, with the assistance of a VE if necessary, 5 || whether there are jobs existing in significant numbers in the regional and national economy that 6 || plaintiff can still perform. See Shaibi v. Berryhill, 870 F.3d 874, 882-83 (9th Cir. 2017). 7 8 Vil. 9 CONCLUSION 10 IT IS HEREBY ORDERED that: (1) plaintiff's request for remand is granted; (2) the 11 || decision of the Commissioner is reversed; and (3) this action is remanded to defendant for further 12 || proceedings consistent with this Memorandum Opinion. 13 IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment herein on all parties or their counsel. 15 This Memorandum Opinion and Order is not intended for publication, nor is it 16 || intended to be included in or submitted to any online service such as Westlaw or Lexis. " Cae Kk. Mramet DATED: January 14, 2020 PAUL L. ABRAMS 19 UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28 AR