1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 8 A.T., Case No. 22-cv-07189-VKD
9 Plaintiff, ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY 10 v. JUDGMENT AND DENYING DEFENDANT’S CROSS-MOTION FOR 11 MARTIN O’MALLEY, SUMMARY JUDGMENT Defendant. Re: Dkt. Nos. 15, 17 12
13 14 Plaintiff A.T. 1 appeals from a final decision of the Commissioner of Social Security (“the 15 Commissioner”) 2 denying her applications for disability insurance benefits under Title II of the 16 Social Security Act (“Act”), 42 U.S.C. § 423 et seq., and for supplemental security income under 17 Title XVI of the Act, 42 U.S.C. § 1381 et seq. A.T. contends that the administrative law judge 18 (“ALJ”) erred by: (1) improperly evaluating the opinions of her medical sources; (2) improperly 19 discounting her subjective statements about her symptoms; and (3) incorrectly determining her 20 residual functional capacity (“RFC”). 21 The parties have filed cross-motions for summary judgment. Dkt. Nos. 15, 17. The matter 22 was submitted without oral argument. See Civil L.R. 7-1(b). Upon consideration of the moving 23 and responding papers and the relevant evidence of record, the Court grants A.T.’s motion for 24 1 Because opinions by the Court are more widely available than other filings, and this order 25 contains potentially sensitive medical information, this order refers to the plaintiff only by her initials. This order does not alter the degree of public access to other filings in this action 26 provided by Rule 5.2(c) of the Federal Rules of Civil Procedure and Civil L.R. 5-1(c)(5)(B)(i).
27 2 Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Martin O’Malley, Commissioner 1 summary judgment and denies the Commissioner’s cross-motion for summary judgment.3 2 I. BACKGROUND 3 A.T. filed applications for disability insurance benefits and supplemental security income 4 on November 20, 2018, when she was 26 years old, alleging that she has been disabled since 5 November 13, 2018 due to post-traumatic stress disorder (“PTSD”) with panic attacks, 6 agoraphobia, generalized anxiety disorder, major depressive disorder, insomnia, and migraines. 7 AR 23, 73, 74, 88.4 8 As a child, A.T. suffered physical and sexual abuse. See AR 54, 445, 470, 546, 567, 612. 9 A.T. attended high school through the 11th grade, but dropped out in the 12th grade. AR 45; see 10 also AR 329. She has not obtained her GED. AR 45. A.T. has prior work as a fast-food worker 11 and a fast-food services manager. AR 31, 45-50, 345-50. 12 A.T.’s applications were denied initially and on reconsideration. AR 101-02, 131-32. An 13 ALJ held a hearing and subsequently issued an unfavorable decision on August 23, 2021. AR 23- 14 33. The ALJ found that A.T. met the insured status requirements of the Act through June 20, 2022 15 and that she did not engage in substantial gainful activity since the alleged onset of disability on 16 November 13, 2018. AR 25. He also found that A.T. had the following severe impairments: 17 “bipolar disorder;5 PTSD; unspecified anxiety disorder; ADHD; [and] cannabis abuse.” AR 26. 18 The ALJ noted that A.T. had class III obesity, migraine headaches, asthma, and mild obstructive 19 sleep apnea, but concluded that these impairments were not severe. AR 26. The ALJ concluded 20 that A.T. did not have an impairment or combination of impairments that met or medically 21 equaled the severity of one of the impairments listed in the Commissioner’s regulations. AR 26- 22 27. 23 3 All parties have expressly consented that all proceedings in this matter may be heard and finally 24 adjudicated by a magistrate judge. 28 U.S.C. § 636(c); Fed. R. Civ. P. 73; Dkt. Nos. 11, 12.
25 4 “AR” refers to the certified administrative record filed with the Court. Dkt. No. 14.
26 5 It is unclear why the ALJ included bipolar disorder in this list, as A.T. did not claim to have this condition. However, the Court notes that depression and bipolar disorder are included in the same 27 listing, 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.04; see also AR 101 (application for benefits 1 The ALJ determined that A.T. had the RFC to perform a full range of work at all exertional 2 levels but with the following non-exertional limitations: “[S]he is able to carry out simple, 3 routine, and repetitive tasks and may make simple work-related decisions. She may only work in 4 isolation, meaning other individuals may be present in the general vicinity from time to time (e.g., 5 in a commercial office building during a graveyard shift where there may be some individuals 6 around like security), but where she would not be required to interact with others. She can have 7 no public contact and only occasional contact with supervisors. She can perform low stress work, 8 which is defined as no work requiring confrontation, conflict resolution, mentoring, or supervision 9 as part of her job duties.” AR 28. Based on this RFC, the ALJ concluded that A.T. could not 10 perform her past relevant work, but was able to perform other jobs existing in significant numbers 11 in the national economy, including routing clerk, commercial cleaner, and conveyor feeder. AR 12 32. Accordingly, the ALJ concluded that A.T. was not disabled, as defined by the Act, from the 13 alleged onset date of November 13, 2018 through the date of the decision on August 23, 2021. 14 AR 33. 15 The Appeals Council denied A.T.’s request for review of the ALJ’s decision. AR 1-5. 16 A.T. then filed the present action seeking judicial review of the decision denying her applications 17 for benefits. See Dkt. No. 1. 18 II. LEGAL STANDARD 19 This Court has the authority to review the Commissioner’s decision to deny benefits 20 pursuant to 42 U.S.C. § 405(g). The Commissioner’s decision will be disturbed only if it is not 21 supported by substantial evidence or if it is based upon the application of improper legal 22 standards. Ahearn v. Saul, 988 F.3d 1111, 1115 (9th Cir. 2021); Morgan v. Comm’r of Soc. Sec. 23 Admin., 169 F.3d 595, 599 (9th Cir. 1999). In this context, the term “substantial evidence” means 24 “more than a mere scintilla” but “less than a preponderance” and is “such relevant evidence as a 25 reasonable mind might accept as adequate to support a conclusion.” Ahearn, 988 F.3d at 1115 26 (quoting Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) and Molina v. Astrue, 674 F.3d 1104, 27 1110-11 (9th Cir. 2012), superseded by regulation on other grounds); see also Morgan, 169 F.3d 1 decision, the Court examines the administrative record as a whole, considering adverse as well as 2 supporting evidence. Ahearn, 988 F.3d at 1115; Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 3 1989). Where evidence exists to support more than one rational interpretation, the Court must 4 defer to the decision of the Commissioner. Ahearn, 988 F.3d at 1115-16; Morgan, 169 F.3d at 5 599. 6 III. DISCUSSION 7 A.T. contends that the ALJ erred by (1) improperly evaluating the opinions of her treating 8 providers and of the state agency medical consultants; (2) improperly discounting her subjective 9 statements about her symptoms; and (3) incorrectly determining her RFC. 10 A. Medical Opinions 11 A.T. claims that the ALJ erred by finding the opinions of Carrie Whiting, PA-C and Emily 12 Caveza, PA-C unpersuasive and by relying on the opinions of two state agency consultants. Dkt. 13 No. 15 at 13-20. 14 Under the regulations that apply to A.T.’s applications,6 the ALJ must evaluate the 15 “persuasiveness” of all medical opinions in the record based on: (1) supportability; (2) 16 consistency; (3) relationship with the claimant; (4) specialization; and (5) other factors, such as 17 “evidence showing a medical source has familiarity with the other evidence in the claim or an 18 understanding of our disability program’s policies and evidentiary requirements.” 20 C.F.R. 19 § 404.1520c. The first two factors are considered the most important, and the ALJ is required to 20 explicitly address them in his or her decision. Id. § 404.1520c(b)(2). The ALJ “may, but [is] not 21 required to,” explain how he or she considered the remaining three factors listed in the regulations. 22 Id.; see Woods v. Kijakazi, 32 F.4th 785, 787 (9th Cir. 2022) (“For claims subject to the new 23 regulations, the former hierarchy of medical opinions—in which we assign presumptive weight 24 based on the extent of the doctor’s relationship with the claimant—no longer applies.”). As with 25 all other determinations made by the ALJ, the ALJ’s persuasiveness explanation must be 26 6 Because the regulations regarding disability insurance benefits applications and supplemental 27 security income applications are nearly identical, for simplicity this order cites only to the 1 supported by substantial evidence. Woods, 32 F.4th at 792. 2 1. Physician Assistants Whiting and Caveza 3 A.T. argues that the ALJ erred by discounting the opinions of two of her treating providers, 4 Carrie Whiting, PA-C and Emily Caveza, PA-C, regarding her mental impairments. Dkt. No. 15 5 at 13-14. The Court agrees. 6 a. Summary of Opinions 7 Ms. Whiting and Ms. Caveza are both physician assistants who provided psychiatric 8 treatment to A.T. on a monthly or bi-monthly basis. AR 30; see also AR 492-96, 525-29 (Whiting 9 opinions); AR 744-48 (Caveza opinion). 10 In January 2019, Ms. Whiting prepared a written evaluation of A.T.’s mental health after 11 having treated her since May 2018. AR 492-96, 525. With respect to A.T.’s current mental status, 12 Ms. Whiting noted that A.T. had normal appearance and behavior; mildly impaired concentration 13 and memory, but otherwise normal cognitive functioning; mildly depressed mood and blunted 14 affect; normal perception; and normal thought process. While Ms. Whiting noted that A.T. had a 15 “good” capacity in several areas of functionality, she also noted that A.T. had only a “fair” 16 capacity in other areas. Specifically, Ms. Whiting opined that A.T.’s “capacity to perform . . . is 17 impaired” with respect to her ability to “[u]nderstand, remember and carry out complex 18 instructions,” “[m]aintain concentration, attention and persistence,” “[p]erform activities with a 19 schedule and maintain regular attendance,” “[c]omplete a normal workday and workweek without 20 interruptions from psychologically based symptoms,” and “[r]espond appropriately to changes in a 21 work setting.” AR 495. She reported that A.T. suffered from “chronic PTSD, agoraphobia with 22 panic disorder, night terrors, [and] insomnia.” AR 492. Ms. Whiting summarized A.T.’s 23 treatment and prognosis as follows: “Depression has lessened and patient [is] coping more with 24 actual trauma and symptoms of PTSD. Patient [is] progressing well in treatment to learn coping 25 skills for anxiety[,] but still struggles with agoraphobia.” AR 494. 26 Ms. Whiting prepared another, more detailed, written evaluation in January 2020, after 27 having treated A.T. for approximately 20 months. AR 525-29. Ms. Whiting noted that A.T.’s 1 worthlessness, and irritability. AR 526. She also noted that A.T. had difficulty thinking or 2 concentrating, was easily distracted, had “flight of ideas,” and poor immediate and remote 3 memory. AR 526. Ms. Whiting identified symptoms of fear and paranoia, such as intrusive 4 recollections of a traumatic experience, suspiciousness, persistent irrational fears, recurrent panic 5 attacks, and vigilance and scanning. AR 526. In addition, she observed that A.T. displayed 6 anhedonia or pervasive loss of interests, appetite disturbances, catatonia or other grossly 7 disorganized behavior, decreased energy, both pressured and slowed speech, and social 8 withdrawal and isolation. AR 526. Ms. Whiting noted that A.T. experienced both decreased and 9 excessive sleep, and suicidal ideation, as well as past suicide attempts. AR 526. As of January 10 2020, Ms. Whiting reported diagnoses of major depressive disorder, recurrent; agoraphobia with 11 panic disorder; chronic PTSD; and attention deficit hyperactivity disorder—inattentive type. AR 12 525. Ms. Whiting remarked that A.T. has “[s]evere anxiety in crowds of people and stores, 13 problems with anxiety and depression leading to inability to hold a job.” AR 525. She identified 14 several clinical findings supporting these diagnoses, including A.T.’s scores on three assessments: 15 PHQ-9, GAD-7, and ASRS v.1.1 Adult ADHD scale. AR 527. Ms. Whiting also assessed A.T. as 16 having “marked” limitations in many functional areas, and estimated that A.T. was likely to be 17 absent from work more than three times per month due to her mental impairments or treatment. 18 AR 528-29. She opined that A.T.’s diagnoses and limitations were expected to last at least 12 19 months. AR 526. 20 Ms. Caveza began treating A.T. in March 2020. AR 588, 744. In June 2021, Ms. Caveza 21 prepared a detailed written evaluation of A.T.’s mental health. AR 744-48. Ms. Caveza reported 22 the same diagnoses as Ms. Whiting reported. AR 744. She remarked that A.T. experiences 23 “anxiety when in public,” panic attacks, avolition, and anhedonia. AR 746. Although Ms. Caveza 24 identified fewer signs and symptoms of impairment than Ms. Whiting did in her January 2020 25 evaluation, see AR 745, like Ms. Whiting, Ms. Caveza assessed A.T. as having “marked” 26 limitations in many functional areas, and estimated that A.T. was likely to be absent from work 27 more than three times per month due to her mental impairments or treatment, see AR 747. She 1 745. 2 The ALJ found Ms. Whiting’s January 2020 opinion and Ms. Caveza’s June 2021 opinion 3 “unpersuasive” because they were “neither supported by nor consistent with contemporaneous 4 treatment records.” AR 30. The ALJ explained that the providers’ treatment records “demonstrate 5 that the claimant generally reports improved symptoms with medication, including better sleep, 6 fewer nightmares, improved anxiety with Lorazepam and propranolol, and improved depressive 7 symptoms with Pristiq and later Wellbutrin and Prozac” and that “mental status findings in 8 treatment consistently demonstrate good concentration, good judgment and insight, and logical, 9 linear, and goal-directed thought processes.” AR 30. Conversely, the ALJ found Ms. Whiting’s 10 January 2019 opinion “more persuasive” because it was “consistent with the mental status findings 11 in treatment and with the claimant’s statements regarding her overall improvement with 12 treatment.” AR 30. 13 b. Analysis 14 A.T. argues that the ALJ’s analysis of Ms. Whiting’s and Ms. Caveza’s opinions was 15 flawed because he (1) did not provide an explanation for his conclusion that their opinions were 16 not supported, see Dkt. No. 15 at 14, (2) incorrectly concluded that A.T.’s treatment records 17 showed a pattern of sustained improvement, see id. at 16, (3) ignored evidence in the record that 18 supported Ms. Whiting’s and Ms. Caveza’s opinions, see id., and (4) misinterpreted Ms. Whiting’s 19 2019 opinion, see id. at 18. 20 The Court disagrees with A.T.’s first contention—that the ALJ did not provide an 21 explanation for his conclusion that Ms. Whiting’s and Ms. Caveza’s opinions were not supported 22 by their treatment records. The ALJ did provide an explanation for his conclusion. See AR 30. 23 However, the Court agrees with A.T.’s other three arguments, as the explanation the ALJ provided 24 for discounting Ms. Whiting’s and Ms. Caveza’s opinions is not supported by substantial 25 evidence. 26 The evaluation of medical opinions must be based on a “holistic view of the record.” 27 Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014). A few positive observations do not 1 (9th Cir. 2021) (“Physician reports of improvement are [] not sufficient to undermine the repeated 2 diagnosis of the alleged mental health conditions.”) (cleaned up). The symptoms of mental health 3 conditions often “wax and wane in the course of treatment. Cycles of improvement and 4 debilitating symptoms are a common occurrence, and in such circumstances it is error for an ALJ 5 to pick out a few isolated instances of improvement over a period of months or years and to treat 6 them as a basis for concluding a claimant is capable of working.” Garrison v. Colvin, 759 F.3d 7 995, 1017 (9th Cir. 2014). Moreover, reports of improvement must be examined in context—a 8 relative improvement in a claimant’s symptoms may not mean they are no longer disabled. See 9 Holohan v. Massanari, 246 F.3d 1195, 1205 (9th Cir. 2001) (“That a person who suffers from 10 severe panic attacks, anxiety, and depression makes some improvement does not mean that the 11 person’s impairments no longer seriously affect her ability to function in a workplace.”). 12 Here, the ALJ cited several instances where A.T. reported improved symptoms or positive 13 responses to medications. AR 30 (citing AR 504, 590-91, 598-99, 612, 620, 627, 696, 709); see 14 also AR 504 (April 9, 2019 treatment note stating: “‘I’ve doing really good.’ [A.T.] states she is 15 doing really well on her medication.”); AR 598 (May 7, 2020 treatment note stating: “‘I’ve been 16 doing alright.’ . . . [A.T.] reports she is feeling better after increasing the dose. She states ‘I am 17 still depressed but I do feel better. I feel better about myself.’”). However, “the examples an ALJ 18 chooses ‘must in fact constitute examples of a broader development.’” Attmore v. Colvin, 827 19 F.3d 872, 877 (9th Cir. 2016) (quoting Garrison, 759 F.3d at 1018). To the extent the ALJ 20 concluded that the cited examples constitute a broader positive change in A.T.’s condition, the 21 record does not support this conclusion. 22 A.T.’s medical records, when viewed as a whole, reveal instances of improvement 23 interspersed with reports of worsening symptoms, problems with medications, and other setbacks 24 in her progress. See, e.g., AR 540, 563, 594, 632, 640, 644, 648, 663, 666, 678, 693, 699, 709; see 25 also AR 540 (November 7, 2019 treatment note stating: “[depression r]elated symptoms are 26 uncontrolled. . . . The patient reports functioning as extremely difficult.”); AR 594 (April 21, 2020 27 treatment note stating: “‘I’ve been doing okay.’ [but also] [A.T.] reports continued symptoms of 1 (October 16, 2020 treatment note stating: “‘I don’t really see a difference with the pills and how 2 they are affecting me. I’m still sad.’”); AR 640 (January 19, 2021 treatment note stating: “[A.T.] 3 continues to have daily anxiety and she does not feel hydrazine is helping as much as it did 4 before.”); AR 648 (February 23, 2021 treatment note stating: “‘I feel like my medication gives me 5 a boost in the morning, but I’m still sad. Nothing fixes my sadness.’”). The ALJ also appeared to 6 overlook Ms. Caveza’s report in her January 2020 opinion that A.T. had scored 22 on the PHQ-9 7 and 18 on the GAD-7 questionnaires. AR 527. These tests are used to measure the severity of, 8 respectively, depression and anxiety. See Crystal L. v. Kijakazi, No. 22-CV-05180-TSH, 2023 9 WL 8101916, at *6 n.5 (N.D. Cal. Nov. 21, 2023). The scores reported in Ms. Caveza’s January 10 2020 opinion indicate severe depression and severe anxiety. A.T.’s medical records show that she 11 scored similarly on other occasions. See AR 578 (PHQ-9 score of 18 on September 13, 2018); AR 12 540-41 (PHQ-9 score of 25 on November 7, 2019). It was error for the ALJ to “‘cherry-pick” 13 treatment records that showed positive developments in A.T.’s condition without also considering 14 treatment records that reflected persistence or worsening of A.T.’s symptoms. Garrison, 759 F.3d 15 at 1018 (quoting Scott v. Astrue, 647 F.3d 734, 740 (7th Cir. 2011)); see also Norman v. Berryhill, 16 No. 17-CV-04108-SI, 2018 WL 4519952, at *13 (N.D. Cal. Sept. 19, 2018) (“The fact that 17 plaintiff ‘sounded less depressed’ on a few occasions does not mean that she was symptom-free or 18 that she was not disabled.”). 19 The ALJ also relied on treatment records finding that A.T. had normal “mental status 20 findings.” AR 30. Both Ms. Whiting and Ms. Caveza reported that A.T.’s depression, 21 agoraphobia, and PTSD manifested themselves in numerous ways, including “depressed mood,” 22 “persistent or generalized anxiety,” “intrusive recollections of a traumatic experience,” “recurrent 23 panic attacks,” “anhedonia/pervasive loss of interests,” and “social withdrawal or isolation.” See 24 AR 492-96, 525-29, 744-48. But the fact that A.T. demonstrated normal concentration, judgment, 25 or thought processes does not necessarily call into question any of her providers’ assessments. See 26 Rule v. Saul, 859 F. App’x 754 (9th Cir. 2021) (fact that “[claimant’s] thought processes, memory, 27 and concentration were within normal limits did not contradict [provider’s] conclusions that 1 in a work setting, or plan independently” and “were consistent with [provider’s] findings that 2 [claimant] was depressed, anxious, and distractible”); see also Bass v. Berryhill, No. 18-CV- 3 07053-DMR, 2020 WL 1531324, at *7 (N.D. Cal. Mar. 31, 2020) (“[T]he existence of some 4 normal mental status exams is not enough on its own to discount [a provider’s] opinion.”); 5 Kayleen N. v. Kijakazi, No. 1:20-CV-03131-JTR, 2021 WL 5238780, at *4 (E.D. Wash. July 29, 6 2021) (“While the ALJ was correct that the record did contain a number of normal or mostly 7 normal mental status exams, the ALJ’s conclusion that Plaintiff’s mental health symptoms were 8 generally stable is not supported.”). 9 The ALJ also failed to consider whether Ms. Whiting’s and Ms. Caveza’s opinions and 10 treatment notes are consistent with the observations of A.T.’s other providers. For example, on 11 September 13, 2018, two months before the alleged onset of disability, A.T. visited Churn Creek 12 Healthcare to establish care with a new primary care physician, Dr. Christine LiWanPo. AR 577- 13 81. Dr. LiWanPo noted diagnoses of “[a]nxiety disorder, unspecified . . . chronic” and 14 “[d]epression . . . chronic” in her initial assessment of A.T. AR 580. A.T. also scored an 18 on 15 the PHQ-9 at this appointment, indicating “[m]oderately severe depression.” AR 580. A.T. 16 continued to report significant mental health symptoms to Dr. LiWanPo during later visits. Dr. 17 LiWanPo’s treatment notes consistently document A.T.’s anxiety and depression and state that 18 these conditions make it “very difficult” for A.T. to function on numerous occasions. See AR 563 19 (March 14, 2019); AR 559 (April 11, 2019); AR 546 (August 22, 2019); AR 540 (November 7, 20 2019); AR 535 (June 18, 2020). On March 14, 2019, A.T. told Dr. LiWanPo that she had been 21 experiencing suicidal ideation, “was looking up how to use a drug to end her life,” and her fiancé 22 found “letters saying ‘goodbye.’” AR 563. And on November 11, 2019, A.T. scored 25 on the 23 PHQ-9, indicating “[s]evere depression,” and reported that functioning was “extremely difficult.” 24 AR 544. 25 Finally, as A.T. points out, the ALJ appears to have misinterpreted Ms. Whiting’s 2019 26 opinion. The ALJ stated that Ms. Whiting assessed A.T. “to have fair to good capacity in all 27 identified areas of mental functioning.” AR 30. However, the ALJ did not recognize that the 1 conclusion that the individual’s capacity to perform the activity is impaired, but the degree/extent 2 of the impairment needs to be further described.” AR 495. Under this definition, Ms. Whiting’s 3 assessment of A.T.’s functioning in many areas as “fair,” does not mean that A.T. was not 4 impaired, nor is it inconsistent with Ms. Whiting’s later assessment—made after another year of 5 treating and observing her—that A.T. had “marked” limitations in many areas. See AR 528. 6 * * * 7 In sum, the ALJ’s stated reasons for discounting Ms. Whiting’s and Ms. Caveza’s opinions 8 as “unpersuasive” are not supported by substantial evidence. 9 2. State Agency Consultants 10 A.T. argues that the ALJ erred by relying on the opinions of two state agency consultants 11 who did not examine her. The Court does not agree. 12 a. Summary of Opinions 13 The ALJ also considered the opinions of two state agency psychological consultants who 14 reviewed A.T.’s applications for benefits. AR 31; see also AR 80-81, 109-10 (state agency 15 consultant opinions). The state agency consultants—who reviewed A.T.’s medical records in 16 January and June of 2019—opined that A.T.’s symptoms were improving and that she would be 17 capable of “simple work in [a] low contact setting.” See AR 81 (“[N]otes indicate improvement of 18 all [diagnoses] with meds, which the [claimant] does not take consistently. . . . Expect continued 19 improvement with ongoing treatment[,] should be capable of simple work in low contact setting 20 by Nov[ember] 2019.”); AR 110 (“Updated findings actually showed improved [mental status 21 exams] w/ meds compliance[,] but affirmation of [initial RFC] appears appropriate.”). 22 The ALJ found the state agency consultants’ opinions “generally persuasive insofar as they 23 found the claimant capable of simple work in a low contact setting within 12 months of the alleged 24 onset.” AR 31. He claimed that the consultants’ opinions were “consistent with and supported by 25 the claimant’s treatment records, which demonstrate that she has had a good response to 26 medication with some adjustments, as well as to counseling” and that “the claimant’s providers 27 have indicated that her symptoms are stable and controlled, consistent with largely unremarkable 1 b. Analysis 2 A.T. argues that the ALJ erred in relying on the state agency consultants because (1) they 3 made predictions about how A.T. would function in the future, rather than opining on her 4 functioning at the time of their evaluations, and (2) because the opinions of non-examining 5 medical sources, standing alone, are not substantial evidence. Dkt. No. 15 at 19-20. Neither of 6 these arguments is persuasive. 7 First, A.T. accuses the state agency consultants of “speculating” about her ability to 8 function in the future. Dkt. No. 15 at 19. While the consultants did offer opinions about A.T.’s 9 ability to return to work 12 months after her alleged onset of disability, these opinions were based 10 on a review of the medical records included with her applications for benefits. See AR 80-81, 11 109-10. This is not unusual. In order for a claimant to be eligible for either disability insurance 12 benefits or supplemental security income, her disability “must have lasted or must be expected to 13 last for a continuous period of at least 12 months,” or be expected to result in death. See 20 C.F.R. 14 § 404.1509 (describing the “duration requirement”). Because of this, medical professional must 15 sometimes make predictions about a claimant’s future functioning in order to opine on whether the 16 claimant is disabled and eligible for benefits. Indeed, both Ms. Whiting and Ms. Caveza made 17 such predictions as well. See AR 526, 745 (both stating that A.T.’s “diagnoses and limitations 18 [are] expected to last at least 12 months”). There was nothing improper about nature of the state 19 agency consultants’ assessments in this regard. 20 Second, A.T. argues that opinions of non-examining medical sources, standing alone, 21 cannot be substantial evidence. Dkt. No. 15 at 19. This is not accurate. Under current 22 regulations, no medical opinion is entitled to “any specific evidentiary weight.” 20 C.F.R. 23 § 404.1520c(a). Rather, the ALJ is directed to weigh the source’s relationship with the claimant, 24 among other factors, while determining whether the source is persuasive or nor. Id. § 1520c(c)(3). 25 * * * 26 A.T. has not identified an error in the ALJ’s consideration of the state agency consultants’ 27 opinions. 1 B. Subjective Testimony 2 A.T. argues that the ALJ erred by discounting her own subjective testimony. Dkt. No. 15 3 at 20-22. 4 An ALJ is not “required to believe every allegation” of impairment. Treichler v. Comm’r 5 of Soc. Sec. Admin., 775 F.3d 1090, 1106 (9th Cir. 2014). In assessing a claimant’s subjective 6 testimony, an ALJ conducts a two-step analysis. First, “the claimant must produce objective 7 medical evidence of an underlying impairment or impairments that could reasonably be expected 8 to produce some degree of symptom.” Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) 9 (cleaned up). If the claimant does so, and there is no affirmative evidence of malingering, then the 10 ALJ can reject the claimant’s testimony as to the severity of the symptoms “only by offering 11 specific, clear and convincing reasons for doing so.” Id. That is, the ALJ must make an 12 assessment “with findings sufficiently specific to permit the court to conclude that the ALJ did not 13 arbitrarily discredit claimant’s testimony.” Id. At the second step, “a claimant is not required to 14 show that [her] medically determinable impairment could reasonably be expected to cause the 15 severity of the symptom [she has] alleged, and is not required to produce objective medical 16 evidence of the pain or fatigue itself, or the severity thereof.” Ferguson v. O’Malley, No. 21- 17 35412, — F.4th —, 2024 WL 1103364, at *6 (9th Cir. Mar. 14, 2024) (cleaned up, emphasis in 18 original). A reviewing court is “constrained to review the reasons the ALJ asserts.” Burrell v. 19 Colvin, 775 F.3d 1133, 1138 (9th Cir. 2014) (quoting Connett v. Barnhart, 340 F.3d 871, 874 (9th 20 Cir. 2003)). 21 1. Summary of Testimony 22 At the hearing, A.T. testified that she suffered from panic attacks and agoraphobia and that 23 “large crowds and noises really get on . . . [her] anxiety.” AR 52. A.T. said that that she would 24 “for sure have a panic attack” if she was in a crowded or busy space or if she was by herself. AR 25 55. A.T. testified that, in the month prior to the July 1, 2021 hearing, she had been “having quite a 26 few” and “over 20” panic attacks because her father had recently passed away. AR 56; see also 27 AR 741 (treatment note from June 15, 2021 stating that A.T. “reports anxiety is very high” and 1 In her applications for benefits, A.T. stated that she has difficulty dealing with stressful 2 situations. See AR 343 (“[I handle stress] not well at all.” “I am nervous around authority. I am 3 scared of saying the wrong thing.”). She also testified at the hearing that she used to have trouble 4 with “angry customers” during her work as a manager in a fast-food restaurant. AR 52. 5 A.T. testified that on a good day, she could “do some cleaning, and maybe watch a little bit 6 of TV.” AR 52; see also AR 60 (“Good days would be me getting up, taking a shower, and 7 getting dressed and taking my doggy out.”). On a bad day, she said, “I just stay in bed . . . It’s 8 hard for me to clean and stuff. And I get distracted and sidetracked a lot.” AR 53; see also AR 63 9 (“On my bad days, I kind of just sleep and I don’t take care of my hygiene.”). She reported that on 10 a typical month, her bad days were “probably about 50 percent of the time” and that “[t]here’s 11 more bad than there is good.” AR 57, 60. 12 A.T. said that her medications helped her “get motivated” and reduced her anxiety and 13 panic attacks. AR 53. She also said that she “get[s] dizzy sometimes” from her medication and 14 that they make it “hard for [her] to get up and down.” AR 53-54; see also AR 61. A.T. testified 15 that she had tried several different medications for her depression, but that sometimes “it makes 16 me feel worse” or “it works for a little while. . . . [a]nd then, it doesn’t work anymore—or I’ll just 17 start off feeling bad, but I want to give it a chance.” AR 58. 18 The ALJ concluded that A.T.’s medically determinable impairments could be reasonably 19 expected to cause the symptoms she described, but her “statements concerning the intensity, 20 persistence and limiting effects of these symptoms [were] not entirely consistent with the medical 21 evidence and other evidence in the record.” AR 29. He stated that “[t]he longitudinal record 22 demonstrate[d]” that A.T.’s symptoms, “while waxing and waning to some degree, [had] generally 23 improved and stabilized with treatment.” AR 29. 24 2. Analysis 25 A.T. argues that the ALJ erred by discounting her subjective statements regarding her 26 symptoms because those statements were inconsistent with a pattern of improvement reflected in 27 her medical records. Dkt. No. 15 at 21. The Court agrees. 1 interpreted A.T.’s medical records overall as showing a pattern of improvement over time. As 2 explained above, this conclusion, which relies on nearly identical evidence to the ALJ’s 3 assessment of Ms. Whiting’s and Ms. Caveza’s treatment records and opinions, is not supported 4 by substantial evidence. 5 Moreover, many of the specific records that the ALJ cited as illustrative of a trend of 6 improvement do not in fact “constitute examples of a broader development.” See Attmore, 827 7 F.3d at 877. For example, the ALJ cited records from November of 2018 and January, February, 8 April, and August of 2019 as illustrating a positive trend. AR 29 (citing AR 488, 499, 500, 504, 9 546). But he neglected to mention instances during the same period where A.T.’s symptoms 10 worsened. On February 19, 2019, A.T. told Ms. Whiting she was “having a really hard time,” 11 leading Ms. Whiting to prescribe her a new antidepressant (Pristiq). AR 500-01. A month later, 12 on March 14, 2019, A.T. reported experiencing suicidal ideation to Dr. LiWanPo. AR 512. The 13 ALJ also cited Dr. LiWanPo’s treatment note from an August 22, 2019 visit as evidence of A.T.’s 14 improvement. AR 29 (citing AR 546). However, while the ALJ quoted a section of Dr. 15 LiWanPo’s note saying that A.T.’s anxiety was “well controlled on current [medication] regime,” 16 see AR 548, he did not reference other sections of the note with more negative descriptions of 17 A.T.’s condition, see AR 546 (“There is continuation of initial symptoms [of anxiety] and 18 worsening of previously reported symptoms. The patient reports functioning as very difficult.”). 19 The ALJ also did not discuss A.T.’s report that her symptoms had worsened during the period 20 shortly before the July 1, 2021 hearing. See AR 741 (June 15, 2021 treatment note); AR 56 21 (hearing testimony). Examined in context, the instances of stabilization and improvement cited by 22 the ALJ do not contradict or disprove A.T.’s subjective symptom testimony. See Ferguson, 2024 23 WL 1103364, at *4 (“[T]he ALJ must provide specific, clear, and convincing reasons which 24 explain why the medical evidence is inconsistent with the claimant’s subjective symptom 25 testimony.”) (emphasis in original). 26 * * * 27 In sum, the ALJ failed to provide specific, clear and convincing reasons for discounting 1 C. Residual Functional Capacity 2 A.T. argues that the ALJ failed to properly determine her residual functional capacity. 3 Dkt. No. 15 at 13-20. The Court agrees. 4 An ALJ assesses a claimant’s RFC “based on all the relevant evidence in [the] case 5 record.” 20 C.F.R. § 404.1545(a)(1). The ALJ must consider both the medical evidence and 6 “descriptions and observations of [the claimant’s] limitations from [the claimant’s] impairment(s), 7 including limitations that result from [the claimant’s] symptoms” provided by the claimant, 8 family, friends, and other people. Id. § 404.1545(a)(3). 9 Here, because the ALJ erred in assessing the opinions of Ms. Whiting and Ms. Caveza and 10 in assessing A.T.’s subjective testimony, his RFC finding is not supported by substantial evidence 11 in the record. While the ALJ’s RFC incorporated some limitations based on A.T.’s testimony and 12 the opinions of her providers, the ALJ did not fully credit either, and the RFC does not reflect all 13 of the limitations that A.T. claims. AR 28-31. In these circumstances, the Court concludes that to 14 the extent the ALJ determined A.T.’s RFC based on an erroneous assessment of her limitations, 15 the ALJ failed to properly determine A.T.’s RFC. 16 IV. DISPOSITION 17 A.T. asks the Court to remand for payment of benefits, but this argument is not well- 18 developed. See Dkt. No. 15 at 22. “An automatic award of benefits in a disability benefits case is 19 a rare and prophylactic exception to the well-established ordinary remand rule.” Leon v. Berryhill, 20 880 F.3d 1041, 1044 (9th Cir. 2017) (cleaned up). The Court may remand for an immediate award 21 of benefits only where (1) the ALJ has failed to provide legally sufficient reasons for rejecting 22 evidence, whether claimant testimony or medical evidence; (2) there are no outstanding issues that 23 must be resolved before a determination of disability can be made; and (3) it is clear from the 24 record that the ALJ would be required to find the claimant disabled were such evidence credited. 25 Id. at 1045. Even when all three conditions are satisfied and the evidence in question is credited as 26 true, it is within the district court’s discretion whether to make a direct award of benefits or to 27 remand for further proceedings, when the record as a whole creates serious doubt as to disability. 1 This standard is not satisfied here. A final determination cannot be made absent a proper 2 assessment of the medical opinions and testimony in the record. As discussed above, on remand 3 || the ALJ must reconsider: (1) the persuasiveness of Ms. Whiting’s and Ms. Caveza’s opinions 4 || based on the record as a whole; (2) the credibility of A.T.’s subjective testimony; and (3) A.T.’s 5 || RFC. 6 || V. CONCLUSION 7 Based on the foregoing, A.T.’s motion for summary judgment is granted, the 8 || Commissioner’s motion for summary judgment is denied, and this matter is remanded for further 9 || proceedings consistent with this order. The Clerk shall enter judgment accordingly and close this 10 || file. 11 IT IS SO ORDERED. 12 Dated: March 25, 2024
Vurapvir EZ, QiMarede 1s Ro K. DEMARCHI nited States Magistrate Judge 16
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