1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 D.T., Case No. 22-cv-07245-SVK
8 Plaintiff, ORDER ON CROSS-MOTIONS FOR 9 v. SUMMARY JUDGMENT
10 KILOLO KIJAKAZI, Re: Dkt. Nos. 15, 19 11 Defendant.
12 Plaintiff D.T. appeals from the final decision of Defendant Commissioner of Social 13 Security, which denied his application for supplemental security income. The Parties have 14 consented to the jurisdiction of a magistrate judge. See Dkts. 6, 10. For the reasons discussed 15 below, the Court GRANTS IN PART and DENIES IN PART Plaintiff’s motion for summary 16 judgment (the “Motion” at Dkt. 15) and GRANTS IN PART and DENIES IN PART 17 Defendant’s cross-motion for summary judgment (the “Cross-Motion” or “Opposition” at Dkt. 18 19). 19 I. BACKGROUND 20 On December 18, 2019, Plaintiff filed an application for Title XVI supplemental security 21 income, alleging a disability onset date of August 1, 2007. See AR 172-192.1 Defendant denied 22 Plaintiff’s claim on September 18, 2020 and request for reconsideration of that denial on February 23 4, 2021. See id. at 77-82, 86-90. Plaintiff then requested a hearing before an Administrative Law 24 Judge (“ALJ”) to reassess his claim. See id. at 91-93. In a brief he submitted before the hearing, 25 Plaintiff amended his alleged disability onset date to December 13, 2019. See id. at 292. Plaintiff 26 then appeared for a hearing before an ALJ on September 1, 2021. See id. at 28-40 (“Hr’g Tr.”). 27 1 The ALJ denied Plaintiff’s claim on November 1, 2021. See AR 10-27 (the “ALJ 2 Decision”). She found that Plaintiff has the following severe impairments: “substance induced 3 psychotic disorder; polysubstance abuse; dysthymic disorder; rule out psychotic disorder, NOS; 4 alcohol abuse; borderline intellectual functioning; and a history of paranoid schizophrenia.” Id. at 5 AR 15. She also found that these impairments (both individually and in combination) do not meet 6 or medically equal the requirements of any of impairments listed in 20 C.F.R. Section 404, 7 Subpart P, Appendix 1 (the “Listings”). See id. at AR 16-17. She then found that Plaintiff 8 maintains a residual functional capacity (“RFC”) to “perform a full range of work at all exertional 9 levels,” but with certain non-exertional limitations. See id. at AR 17-18. Finally, she found that 10 “there are jobs that exist in significant numbers in the national economy that [Plaintiff] can 11 perform.” Id. at AR 22. In light of these findings, the ALJ concluded that Plaintiff “has not been 12 under a disability, as defined in the Social Security Act, since December 13, 2019.” Id. at AR 23. 13 Plaintiff subsequently requested that the Appeals Council review the ALJ’s decision, and 14 the Appeals Council denied Plaintiff’s request. See AR 1-3. Plaintiff then timely filed an appeal 15 to this Court seeking review of the ALJ Decision. See Dkt. 1. Now before the Court are 16 Plaintiff’s Motion and Defendant’s Cross-Motion, which were filed pursuant to Civil Local Rule 17 16-5 and are ready for decision without oral argument. 18 II. ISSUES FOR REVIEW 19 In this Order, the Court reviews the following issues: 20 1. Did the ALJ properly evaluate the medical evidence? 21 2. Did the ALJ err in discrediting Plaintiff’s subjective statements regarding his 22 symptoms? 23 3. Did the ALJ properly evaluate whether Plaintiff’s impairments meet or medically 24 equal the requirements of any of the Listings? 25 4. Did the ALJ properly evaluate the testimony of the vocational expert (the “VE”)? 26 /// 27 /// III. STANDARD OF REVIEW 1 The Court is authorized to review Defendant’s decision to deny disability benefits, but “a 2 federal court’s review of Social Security determinations is quite limited.” Brown-Hunter v. 3 Colvin, 806 F.3d 487, 492 (9th Cir. 2015); see also 42 U.S.C. § 405(g). Federal courts “leave it to 4 the ALJ to determine credibility, resolve conflicts in the testimony, and resolve ambiguities in the 5 record.” Brown-Hunter, 806 F.3d at 492 (citation omitted). The Court’s limited role allows it to 6 disturb an ALJ’s decision only if that decision is (1) not supported by substantial evidence or (2) 7 based on the application of improper legal standards. Id. at 492. 8 Not Supported By Substantial Evidence: “Under the substantial-evidence standard, a 9 court looks to an existing administrative record and asks whether it contains ‘sufficien[t] evidence’ 10 to support the agency’s factual determinations,” and this threshold is “not high.” Biestek v. 11 Berryhill, 139 S. Ct. 1148, 1154 (2019) (citation omitted); see also Rounds v. Comm’r SSA, 807 12 F.3d 996, 1002 (9th Cir. 2015) (“Substantial evidence is ‘such relevant evidence as a reasonable 13 mind might accept as adequate to support a conclusion,’ and ‘must be “more than a mere 14 scintilla,” but may be less than a preponderance.’” (citation omitted)). The Court “must consider 15 the evidence as a whole, weighing both the evidence that supports and the evidence that detracts 16 from [Defendant’s] conclusion.” Rounds, 807 F.3d at 1002 (citation omitted). But where “the 17 evidence is susceptible to more than one rational interpretation, [the Court] must uphold the ALJ’s 18 findings if they are supported by inferences reasonably drawn from the record.” Id. (citation 19 omitted). 20 Application Of Improper Legal Standards: Even if the ALJ commits legal error, the 21 ALJ’s decision will be upheld if the error is harmless. Brown-Hunter, 806 F.3d at 492. But “[a] 22 reviewing court may not make independent findings based on the evidence before the ALJ to 23 conclude that the ALJ’s error was harmless” and is instead “constrained to review the reasons the 24 ALJ asserts.” Id. (citations omitted). 25 /// 26 /// 27 /// IV. DISCUSSION 1 As explained below, the Court holds that the ALJ acted properly with respect to Issues One 2 and Two and erred with respect to Issues Three and Four. 3 A. Analysis Of Issue One: The ALJ Properly Evaluated The Medical Evidence 4 Federal regulations require an ALJ to evaluate medical evidence along five factors: (1) 5 supportability, (2) consistency, (3) relationship with the claimant, (4) specialization and (5) “other 6 factors.” See 20 C.F.R. § 416.920c(c). The two “most important factors” are supportability and 7 consistency, and the regulations require an ALJ to expressly discuss these factors in their decision; 8 they do not obligate an ALJ to expressly discuss the remaining factors. See id. § 416.920c(b)(2); 9 see also Gentry S. v. Kijakazi, No. 20-cv-05814-SVK, 2022 WL 1601413, at *3 (N.D. Cal. Mar. 10 31, 2022). Supportability concerns the relevance of “the objective medical evidence and 11 supporting explanations presented by a medical source . . . to support his or her medical 12 opinion(s).” 20 C.F.R. § 416.920c(c)(1). Consistency, in turn, concerns the consistency between 13 a medical opinion and “the evidence from other medical sources and nonmedical sources.” Id. § 14 416.920c(c)(2). 15 Plaintiff argues the ALJ improperly applied the supportability and consistency factors in 16 analyzing the medical opinions of four medical examiners: Doctors Dixit, Gross, Amado and 17 Kirsch. See Motion at 4-8. The Court disagrees. 18 1. The ALJ Properly Concluded That The Findings 19 Of Doctors Dixit, Gross And Amado Were Persuasive 20 Doctors Dixit, Gross and Amado all opined that Plaintiff’s medical and psychological 21 conditions would not significantly impair his ability to work. See AR 51-52 (Gross), 69 (Amado), 22 362 (Dixit). In finding these opinions persuasive, the ALJ discussed in detail the doctors’ findings 23 and expressly noted the supportability and consistency of those findings. See ALJ Decision at AR 24 20-21. Indeed, each doctor’s report identifies the evidence considered, which supports their 25 conclusions (see AR 41-52 (Gross), 54-70 (Amado), 360-62 (Dixit)), and all three doctors reached 26 similar conclusions. Finding these opinions to be persuasive is therefore supported by substantial 27 evidence. 1 doctor’s reports and the ALJ’s analysis of them. The Court finds Plaintiff’s arguments to be 2 without merit. 3 With Respect To Doctor Dixit: First, Plaintiff argues the ALJ improperly relied on 4 Doctor Dixit’s “de minimis” findings in finding Doctor Dixit’s opinion to be persuasive, such as 5 Plaintiff’s ability to perform simple household tasks (e.g., washing dishes, doing laundry) and his 6 ability to perform simple mental tasks (e.g., solve simple math problems, following three-step 7 commands). See Motion at 5; see also ALJ Decision at AR 19. He bases this criticism of the 8 ALJ’s reasoning on regulatory language accompanying the relevant Listings that explains that a 9 claimant’s mental functioning outside of a work setting “will not necessarily” be extrapolated as 10 applying in a work setting and that an ALJ must consider “all evidence about [a claimant’s] mental 11 disorder and daily functioning.” See Listings at 12.00F.3.c. But evidence of Plaintiff’s mental 12 functioning outside of a work setting is not per se irrelevant, as acknowledged by the regulatory 13 language Plaintiff himself cites. See id. (“We will consider all evidence about your mental 14 disorder and daily functioning before we reach a conclusion about your ability to work.” 15 (emphasis added)); see also 20 C.F.R. § 416.920c(c)(2) (consistency evaluated based on both 16 “medical sources and nonmedical sources”); see, e.g., Billy P. v. Kijakazi, No. 22-cv-00113-DEB, 17 2023 WL 6378020, at *4-5 (S.D. Cal. Sept. 28, 2023) (ALJ properly considered evidence of daily 18 functioning in evaluating persuasiveness of medical opinions). 19 Second, Plaintiff argues the ALJ ignored two pieces of medical evidence that contradicted 20 Doctor Dixit’s opinions. See Motion at 6 (citing medical evidence at AR 308, 370). However, the 21 ALJ properly ignored this evidence. The first piece of evidence is a psychological evaluation 22 dated September 10, 2007. See AR 304-09. As the ALJ correctly observed, such evidence, which 23 predates the alleged disability onset date by over a decade, need not be considered. See ALJ 24 Decision at AR 21; Carmickle v. Comm’r, SSA, 533 F.3d 1155, 1165 (9th Cir. 2008) (“Medical 25 opinions that predate the alleged onset of disability are of limited relevance.” (citation omitted)); 26 see, e.g., Aileen M. v. Saul, No. 19-cv-01522-JST, 2020 WL 6074191, at *6 (N.D. Cal. Aug. 13, 27 2020) (ALJ properly discounted medical opinion rendered before alleged onset date). The second 1 report not to be persuasive. See Section IV.A.2, infra. 2 Third, Plaintiff argues Doctor Dixit’s report is internally inconsistent, because she 3 “remarked that [Plaintiff] said he was ‘able to provide for his own grooming and hygiene[,]’” but 4 later “note[d] that Plaintiff was ‘disheveled with compromised hygiene and grooming.’” Motion 5 at 6 (citations omitted). These observations do not render Doctor Dixit’s report internally 6 inconsistent. Plaintiff “said” he maintains his own grooming and hygiene, and Doctor Dixit noted 7 his unkempt appearance. See AR 361 (emphasis added). Those facts can simultaneously be 8 true—it is entirely possible that Plaintiff stated he can maintain his own grooming and hygiene, 9 and that statement may simply be false, as suggested by Doctor Dixit’s observation. 10 Fourth, Plaintiff argues Doctor Dixit’s “remark that [Plaintiff’s] uncle had to provide 11 additional pertinent details should have been a red flag to any mental health expert that the 12 Plaintiff is not a reliable historian and that he has a propensity to overstate his functional abilities.” 13 Motion at 6. But Plaintiff mischaracterizes Doctor Dixit’s report. Doctor Dixit did not state that 14 Plaintiff’s uncle “had to provide additional pertinent details” (id. (emphasis added)) and instead 15 merely noted that Plaintiff’s uncle did so. See AR 360 (“His uncle provided additional pertinent 16 details.”). Further, Doctor Dixit did not rely solely on Plaintiff’s own statements about his 17 capabilities—she observed Plaintiff’s behavior and evaluated his performance on a series of tests. 18 See id. at 361-62. 19 With Respect To Doctors Gross And Amado: First, Plaintiff argues Doctors Gross and 20 Amado based their conclusions on “little to no records.” Motion at 7. However, these doctors’ 21 reports enumerate the various medical records in their possession. See AR 42-43 (Gross report 22 listing seven medical records); id. 56-58 (Amado report listing 10 medical records). Plaintiff does 23 not address these records. 24 Second, Plaintiff argues Doctors Gross and Amado relied on “the flawed opinion of Dr. 25 Dixit.” Motion at 7. As explained above, however, the Court rejects Plaintiff’s attempts to 26 discredit Doctor Dixit’s opinions, and the ALJ properly found her opinions to be persuasive. 27 Third, Plaintiff argues Doctors Gross and Amado prepared their reports without the benefit 1 the ALJ properly found Doctor Kirsch’s report not to be persuasive. See Section IV.A.2, infra. 2 Further, “there is always some time lapse between a consultant’s report and the ALJ hearing and 3 decision, and the Social Security regulations impose no limit on such a gap in time.” Owen v. 4 Saul, 808 F. App’x 421, 423 (9th Cir. 2020). Thus, the Court will not fault the ALJ for relying on 5 medical opinions issued before all the evidence had been gathered. See, e.g., id. (“At the time they 6 issued their opinions, the non-examining experts had considered all the evidence before them . . . 7 .”). 8 2. The ALJ Properly Concluded That The Findings Of Doctor Kirsch Were Not Persuasive 9 Doctor Kirsch opined that Plaintiff’s medical and psychological conditions would result in 10 “moderate,” “marked” and “extreme” impairments of his ability to work. See AR 373. In finding 11 this opinion unpersuasive, the ALJ discussed in detail Doctor Kirsch’s findings and expressly 12 noted the internal inconsistencies in her findings and the inconsistencies between her findings and 13 other medical evidence in the record. See ALJ Decision at AR 20-21. Finding her opinion to be 14 unpersuasive is therefore supported by substantial evidence. 15 In rejecting this conclusion, Plaintiff identifies perceived deficiencies in the ALJ’s analysis 16 of Doctor Kirsch’s report. The Court finds Plaintiff’s arguments to be without merit. 17 First, Plaintiff argues the ALJ improperly relied on evidence of Plaintiff’s “adequate 18 attention and concentration throughout [Doctor Kirsch’s ] evaluation,” because Ninth Circuit 19 precedent does not require complete incapacitation to find disability. See Motion at 7. But the 20 ALJ did not decline to find Plaintiff disabled because he was not completely incapacitated—she 21 simply found evidence of Plaintiff’s ability to pay attention and concentrate as inconsistent with 22 Doctor Kirsch’s findings. See ALJ Decision at AR 20. 23 Second, Plaintiff argues Doctor Kirsch’s opinion is consistent with other medical evidence 24 in the record, namely two reports from 2007. See Motion at 8 (citing AR 308, 313). But as 25 previously discussed, the ALJ properly disregarded such outdated evidence. See Section IV.A.1, 26 supra. 27 Third, Plaintiff argues the ALJ failed to consider all of Doctor Kirsch’s findings and the 1 full range of testing she performed. See Motion at 7-8. But an ALJ need not consider every piece 2 of evidence in rendering a decision, so long as she does “not ignore significant probative evidence 3 that bears on the disability analysis.” See Kilpatrick v. Kijakazi, 35 F.4th 1187, 1193 (9th Cir. 4 2022). In any event, the ALJ expressly considered Doctor Kirsch’s findings and explained why 5 she found them unpersuasive. See ALJ Decision at AR 20-21. 6 * * * 7 Ultimately, Plaintiff quarrels with the ALJ’s reliance on evidence unfavorable to him and 8 rejection of his preferred, more-favorable evidence. Accepting either of Plaintiff’s preferred or 9 unpreferred evidence finds some support in the record. Under such circumstances, the Court must 10 defer to the ALJ, whose conclusions are supported by substantial evidence. See King v. Astrue, 11 497 F. App’x 758, 760 (9th Cir. 2012) (“Indeed, even ‘[w]here the evidence as a whole can 12 support either outcome, we may not substitute our judgement for the ALJ’s.’” (citations omitted)). 13 B. Analysis Of Issue Two: The ALJ Properly Discredited Plaintiff’s Subjective Statements Regarding His Symptoms 14 An ALJ must follow a two-step analysis in evaluating a claimant’s subjective statements 15 about their symptoms: 16
17 First, the ALJ must determine whether the claimant has presented objective medical evidence of an underlying impairment which could reasonably be expected 18 to produce the pain or other symptoms alleged. If the claimant meets the first test 19 and there is no evidence of malingering, the ALJ can only reject the claimant’s testimony about the severity of the symptoms if she gives “specific, clear and 20 convincing reasons” for the rejection. 21 22 Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (citations and quotation marks omitted). 23 Here, Plaintiff argues the ALJ erred at the second step, because she “used flawed evidence and a 24 boilerplate statement to reject the evidence provided in [Plaintiff’s] testimony.” Motion at 9. The 25 Court disagrees. 26 First, the ALJ did not merely provide a “boilerplate statement,” and instead discussed in 27 detail the medical evidence in the record. See Section IV.A, supra (ALJ discussed reports of 1 [Plaintiff’s] statements concerning the intensity, persistence and limiting effects of these 2 symptoms are not entirely consistent with the medical evidence and other evidence in the record 3 for the reasons explained in this decision.” (emphasis added)). 4 Second, the allegedly “flawed evidence” the ALJ considered was not the only evidence she 5 considered. Specifically, Plaintiff criticizes the ALJ’s reference to Plaintiff’s ability to maintain 6 his own hygiene, prepare simple meals, shop at stores and perform light cleaning, because 7 performing such “trivial tasks [does] not shed light on the Plaintiff’s ability to function in the work 8 place.” See Motion at 9-10. What Plaintiff ignores, however, is the ALJ’s detailed discussion of 9 Plaintiff’s other capabilities, as described in the reports of Doctors Dixit, Gross and Amado. See, 10 e.g., ALJ Decision at AR 19 (“He was able to remember three out of three objects immediately 11 and after three minutes. He was able to perform simple mathematical problems, perform serial 12 threes, follow a three-step command, and perform serial sevens. He was able to spell the word 13 ‘forget’ forward and backward. Moreover, the claimant demonstrated fair insight and adequate 14 social and personal judgment.” (citing Dixit report)), AR 21 (“The claimant is able to understand, 15 carry out, and remember simple instructions (e.g., understanding and learning terms, instructions, 16 and procedures; maintaining attention concentration for approximately two hour blocks. The 17 claimant is able to understand, carry out, and remember one to two step instructions; recognizing a 18 mistake and correcting it; being able to work consistently and at a reasonable pace for 19 approximately two-hour segments between arrival, first break, lunch, second break, and 20 departure.” (citing Gross report)). 21 Plaintiff also argues the ALJ failed to consider Plaintiff’s then-recent (at the time of the 22 September 1, 2021 hearing) failed work attempt. See Motion at 9-10. But such non-medical 23 evidence alone could not justify crediting Plaintiff’s subjective statements about his symptoms 24 where, as here, the ALJ had already concluded that the medical evidence did not support those 25 subjective statements. See 20 C.F.R. § 416.929(a) (“However, statements about your pain or other 26 symptoms will not alone establish that you are disabled. There must be objective medical 27 evidence from an acceptable medical source that shows you have a medical impairment(s) which 1 added)). Further, Plaintiff presented the ALJ with little evidence to consider about his failed work 2 attempt. See AR 292-98 (no express discussion of Plaintiff’s failed work attempt in pre-hearing 3 brief); Hr’g Tr. at AR 31-32 (counsel asking Plaintiff two questions only about failed work 4 attempt).2 5 C. Analysis Of Issue Three: The ALJ Failed To Consider Whether Plaintiff’s Impairments Meet Or Medically Equal The Requirements Of Listing 12.05 6 Plaintiff argues the ALJ erred in concluding his impairments do not meet or medically 7 equal the requirements of Listings 12.05 or 12.11, because the ALJ (1) improperly relied on the 8 opinions of Doctors Dixit, Gross and Amado, (2) declined to find persuasive the opinion of Doctor 9 Kirsch and (3) overemphasized the relevance of “de minimis things that would not carry over to 10 the rigors of an 8-hour competitive work environment.”3 See Motion at 10. As discussed above, 11 however, the ALJ properly found the opinion of Doctor Dixit to be persuasive, and she based her 12 finding that Plaintiff’s impairments do not meet or medically equal Listing 12.11 on Doctor 13 Dixit’s findings. See ALJ Decision at AR 16-17 (citing 4F portion of Administrative Record). 14 The reports of Doctors Gross and Amado, which the ALJ also properly found to be persuasive, 15 further support a finding that Plaintiff’s impairments do not meet or medically equal the 16 requirements of Listing 12.11. See AR 47 (Gross report discussing Listing 12.11), 61 (Amado 17 report discussing Listing 12.11); see also A.L. v. Kijakazi, No. 21-cv-07654-SVK, 2023 WL 18 3028084, at *6 (N.D. Cal. Apr. 19, 2023) (“Factual support for the ALJ’s conclusion on the 19 Listings properly can be deduced from the ALJ’s discussion of the medical evidence elsewhere in 20 his decision.” (citations omitted)). Plaintiff cites only to Doctor Kirsch’s report in support of his 21 assertion that he satisfies the requirements of Listing 12.11, but the ALJ properly found Doctor 22 Kirsch’s report not to be persuasive.4 See Motion at 10 (citing AR 365-74). Therefore, the ALJ’s 23
24 2 Doctor Kirsch also recounted Plaintiff’s then-recent failed work attempt in her report. See AR 366. However, her discussion includes little detail beyond what Plaintiff testified during the 25 hearing. 26 3 Plaintiff does not challenge the ALJ’s findings that his impairments do not meet or medically equal the requirements of Listing 12.03 and 12.04. See Motion at 10; see also ALJ 27 Decision at AR 16-17. 1 finding that Plaintiff’s impairments do not meet or medically equal the requirements of Listing 2 12.11 is supported by substantial evidence. 3 The ALJ did not, however, discuss Listing 12.05 in her decision. See ALJ Decision at AR 4 16-17 (no discussion of Listing 12.05 within analysis of Listings); see also Opposition at 16 n.8 5 (Defendant acknowledging ALJ discusses Listings 12.03, 12.04 and 12.11 only). Yet Plaintiff 6 expressly argued in his pre-hearing brief that his impairments meet or medically equal the 7 requirements of Listing 12.05. See AR 294-95. To be sure, failure to consider a particular Listing 8 may constitute harmless error where an ALJ’s decision provides sufficient reason to conclude that 9 a claimant’s impairments do not meet or medically equal the requirements of that Listing. See, 10 e.g., Kenneth C. v. Saul, No. 19-cv-06627-JST, 2021 WL 4927413, at *15 (N.D. Cal. Mar. 15, 11 2021) (“The ALJ did not specifically mention listing 11.14, but she provided an adequate basis for 12 rejecting this listing because she considered the relevant medical evidence in her RFC 13 determination at step four of her analysis.” (citations omitted)). But the ALJ did not provide such 14 sufficient reason here. 15 Listing 12.05 contains two sets of requirements—Paragraph A requirements and Paragraph 16 B requirements—and a claimant’s impairments meet or medically equal the requirements of the 17 Listing if either set of requirements is met. See Listings at 12.05. Here, although the ALJ did not 18 expressly discuss Listing 12.05 in her decision, she did expressly discuss the Paragraph B 19 requirements of Listings 12.03, 12.04 and 12.11, and the Paragraph B requirements of those 20 Listings parallel the Paragraph B.2 requirements of Listing 12.05, which must be satisfied for the 21 Paragraph B requirements of Listing 12.05 to be met. See ALJ Decision at AR 16-17; compare 22 Listings at 12.05B.2, with Listings at 12.03B, 12.04B, 12.11B. Accordingly, a finding that 23 Plaintiff’s impairments do not satisfy the Paragraph B requirements of Listing 12.05 is supported 24
25 cites to Doctor Kirsch’s report throughout the portion of her decision in which she finds that Plaintiff’s impairments do not meet or medically equal the requirements of Listing 12.11. See 26 ALJ Decision at AR 16-17 (citing 6F portion of Administrative Record). Further, some of the propositions for which the ALJ cites to Doctor Kirsch’s report do not appear to be supported by 27 Doctor Kirsch’s report. Nevertheless, as explained above, the ALJ’s findings regarding Listing 1 by substantial evidence. See, e.g., Turner v. Berryhill, 705 F. App’x 495, 498 (9th Cir. 2017) 2 (“The ALJ’s opinion concludes that Turner’s mental impairments did not meet or medically equal 3 the criteria of Listing 12.07 (Somatoform Disorders), rather than Listing 12.08 (Personality 4 Disorders), an apparent typographical error. Any error, however, was harmless, as the ALJ 5 determined that Turner failed to meet the requirements of Paragraph B of Listing 12.07, which are 6 identical to the requirements of Paragraph B of Listing 12.08, and substantial evidence supports 7 the ALJ’s conclusion that Turner did not meet those requirements.” (citation omitted)). 8 However, nowhere in her decision did the ALJ expressly address the Paragraph A 9 requirements of Listing 12.05, which, if satisfied, would provide an independently sufficient basis 10 for finding Plaintiff disabled. That failure constitutes reversible error, because Plaintiff argued at 11 the administrative level that his impairments meet or equal the requirements of Listing 12.05, 12 thereby requiring the ALJ to address that Listing. See, e.g., Thresher v. Astrue, 283 F. App’x 473, 13 475 (9th Cir. 2008) (“Here the ALJ did suggest that Thresher was not functionally mentally 14 retarded, but the ALJ’s failure to reference § 12.05 and, in particular, Listing 12.05C makes it 15 unclear whether the ALJ came to grips with the specific requirements of that section when she 16 issued her decision. . . . Thus, we remand . . . for clarification regarding the nature of the 17 considerations applied at step 3 and, particularly, precisely what was decided and why.” (citations 18 omitted)); Santiago v. Barnhart, 278 F. Supp. 2d 1049, 1058 (N.D. Cal. Aug. 13, 2003) (“Here, 19 Santiago presented a plausible theory of equivalency to the ALJ. The ALJ, however, did not 20 provide any explanation responsive to Santiago’s argument. . . . There was no discussion on how 21 Santiago’s alleged impairments failed to meet the listed impairments identified by Santiago.” 22 (emphasis added) (citations omitted)). 23 /// 24 /// 25 /// 26 /// 27 /// D. Analysis Of Issue Four: The ALJ Failed To Explain Why She 1 Disregarded A Potentially Dispositive Portion Of The VE’s Testimony 2 Plaintiff’s final argument is that the ALJ’s assessment of Plaintiff’s RFC was flawed by (1) 3 her reliance on the medical reports of Doctors Dixit, Gross and Amado that Plaintiff argues she 4 should not have found to be persuasive and (2) her failure to consider all of the VE’s testimony. 5 See Motion at 11. With respect to Plaintiff’s first argument, the Court has already concluded that 6 the ALJ’s persuasiveness findings regarding the various doctors’ reports in the record are 7 supported by substantial evidence. See Section IV.A, supra. With respect to Plaintiff’s second 8 argument, however, the Court agrees that the ALJ improperly disregarded the VE’s testimony. 9 During the September 1, 2021 hearing, the ALJ asked the VE, inter alia, whether two 10 hypothetical persons would be able to find work (see Hr’g Tr. at AR 37-39): 11 Person One: An individual affected by certain impairments equivalent to those 12 impairments impacting Plaintiff. 13 Person Two: An individual affected by the same impairments as Person One, but whose 14 impairments would also result in a time off task of 25%. 15 The VE testified that Person One could find work in multiple positions, but that Person Two could 16 find no work at all: 17 Q: Would [Person Two] be able to do those jobs that you listed [for Person One]? 18
19 A: No, Your Honor, definitely not.
20 Id. at AR 38. Plaintiff’s counsel then asked the VE about a hypothetical person impacted by the 21 same impairments listed by the ALJ but whose impairments would result in a time off task of 22 15%; the VE again testified that such an individual could not find work. See id. at AR 39 (“15% 23 off task time in this hypothetical precluded all work.”). 24 Thus, if (1) either time-off-task hypothetical (i.e., 25% or 15%) applied to Plaintiff and (2) 25 the ALJ credited the VE’s time-off-task testimony, then a finding of disability would have been 26 appropriate. See 20 C.F.R. § 416.920(a)(4)(v). But the ALJ did not address the VE’s time-off- 27 1 explain what the VE said about time off task or why she ignored that testimony. See ALJ 2 Decision at AR 22-23. That failure constitutes reversible error. See, e.g., O’Connor v. Astrue, No. 3 09-cv-01508-JCS, 2010 WL 3785433, at *13 (N.D. Cal. Sept. 27, 2010) (ALJ erred by ignoring 4 testimony of VE provided in response to hypothetical question that contradicts ALJ’s 5 determination); Barbee v. Berryhill, No. 16-cv-01779-BEN, 2017 WL 3034531, at *18 (S.D. Cal. 6 July 18, 2017) (remanding “because the ALJ failed to explain at step five why he disregarded the 7 VE’s testimony”), report and recommendation adopted, 2017 WL 3772975 (S.D. Cal. Aug 31, 8 2017). 9 This error is not harmless, because medical evidence in the record—including medical 10 evidence the ALJ found to be persuasive—suggests that Plaintiff’s impairments would result in at 11 least some time off task. See, e.g., AR 48-50 (Gross report noting “slow response time” resulting 12 in “moderate limit[ation]” in “ability to complete a normal workday and workweek without 13 interruptions . . . and to perform at a consistent pace without an unreasonable number and length 14 of rest periods”), 65 (Amado report noting similar “moderate limit[ation]”). The non-medical 15 evidence of Plaintiff’s then-recent (at the time of the September 1, 2021 hearing) failed work 16 attempt also suggests Plaintiff might experience time off task: 17 Q: What were the reasons that you had to be let go of that position? 18
19 A: I was just – wasn’t doing, like, I was kind of slow and I was wandering around.
20 Hr’g Tr. at 31-32. Further, the ALJ’s decision to sua sponte ask the VE about time off task 21 suggests that she too viewed the record as implicating Plaintiff’s time off task. 22 /// 23 /// 24 /// 25 /// 26 /// 27 V. CONCLUSION For the foregoing reasons, the Court GRANTS IN PART and DENIES IN PART 2 Plaintiff's Motion, GRANTS IN PART and DENIES IN PART Defendant’s Cross-Motion and 3 REMANDS this action for further proceedings. On remand, Defendant must expressly address 4 the following issues: 5 e Whether Plaintiffs impairments meet or medically equal the requirements of Listing 6 12.05. 7 e The extent to which Plaintiff's impairments would result in time off task. 8 e The VE’s testimony regarding time off task. 9 e Defendant’s reasons for accepting or disregarding the VE’s testimony regarding time off 10 task. 1] SO ORDERED. 3s 12 Dated: October 17, 2023 23 5 bal 14 vi 1S SUSAN VAN KEULEN United States Magistrate Judge Q 16 Z 18 19 20 21 22 23 24 25 26 27 28