1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ROSE V., Case No.: 3:19-cv-00703-AHG
12 Plaintiff, ORDER: 13 v. (1) GRANTING IN PART AND 14 ANDREW SAUL, Commissioner of DENYING IN PART DEFENDANT’S Social Security, 15 MOTION TO ALTER OR AMEND Defendant. JUDGMENT PURSUANT TO 16 FEDERAL RULE OF CIVIL 17 PROCEDURE 59(E);
18 (2) VACATING ORDER 19 RESOLVING PLAINTIFF’S MOTION FOR JUDICIAL REVIEW, 20 REVERSING DENIAL OF 21 BENEFITS, AND REMANDING FOR PAYMENT OF BENEFITS (ECF NO. 22 24); AND 23 (3) REMANDING ACTION FOR 24 FURTHER PROCEEDINGS 25 [ECF NOS. 24, 25] 26
27 1 This matter comes before the Court on Defendant Andrew Saul, Commissioner of 2 Social Security’s (“Defendant” or “the Commissioner”) Motion to Alter or Amend 3 Judgment Pursuant to Federal Rule of Civil Procedure 59(e) (the “Motion for 4 Reconsideration”). ECF No. 24. 5 I. BACKGROUND 6 On April 17, 2019, Plaintiff Rose V. (“Plaintiff”), proceeding pro se and in forma 7 pauperis, filed a civil complaint against Defendant, seeking judicial review of the denial 8 of her application for Supplemental Security Income (“SSI”) pursuant to 42 U.S.C. 9 § 405(g). ECF No. 1. 10 Plaintiff submitted a brief on the merits on February 5, 2020, and Defendant filed an 11 opposition brief on March 11, 2020. ECF Nos. 20, 23. Plaintiff did not file a reply. The 12 Court took the briefing under submission without oral argument and, on 13 November 30, 2020, issued an order reversing the Commissioner’s final decision and 14 remanding Plaintiff’s case for immediate payment of benefits (the “Reversal Order”). ECF 15 No. 24. 16 On December 9, 2020, the Commissioner filed the Motion for Reconsideration 17 presently before the Court. ECF No. 25. Defendant argues, pursuant to Rule 59(e), that 18 reconsideration of the Court’s Reversal Order is necessary to correct manifest errors of 19 law. 20 II. LEGAL STANDARD 21 Under Rule 59(e), the Court has the power to reconsider and amend a judgment, and 22 a party seeking such remedy must file a motion within 28 days of the judgment’s entry. 23 See Fed. R. Civ. P. 59(e). Amendment of a judgment pursuant to this rule is an 24 “extraordinary remedy, to be used sparingly in the interests of finality and conservation of 25 judicial resources.” Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir. 2003) (citation 26 omitted). Accordingly, a Rule 59(e) motion for reconsideration “should not be granted, 27 absent highly unusual circumstances, unless the district court is presented with newly 1 controlling law.” 389 Orange St. Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999). 2 “Clear error occurs when ‘the reviewing court on the entire record is left with the definite 3 and firm conviction that a mistake has been committed.’” Smith v. Clark Cty. Sch. Dist., 4 727 F.3d 950, 955 (9th Cir. 2013) (quoting United States v. U.S. Gypsum Co., 333 U.S. 5 364, 395 (1948)). Parties may not use a Rule 59(e) motion “to raise arguments or present 6 evidence for the first time when they could reasonably have been raised earlier in the 7 litigation.” Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000). 8 III. DISCUSSION 9 In the Reversal Order, the Court based its decision on the finding that the ALJ 10 improperly rejected the opinion of Plaintiff’s treating psychiatrist, Dr. Prakash Bhatia, 11 because the ALJ did not give specific and legitimate reasons supported by substantial 12 evidence for giving his opinion less weight than the non-treating state agency physicians. 13 In particular, the Court cited to numerous treatment records from Dr. Bhatia reflecting 14 observed deficits in Plaintiff’s memory and concentration, and judgments that Plaintiff had 15 serious symptoms or serious impairment in social, occupational, or school functioning. See 16 ECF No. 24 at 14-23. The Court found that the ALJ’s stated reasons for rejecting Dr. 17 Bhatia’s findings related to Plaintiff’s functioning in areas of memory, concentration, and 18 judgment—that Plaintiff’s symptoms steadily improved and that Plaintiff was stable on 19 medication—were not supported by substantial evidence. Id. at 20-23. The Court 20 concluded that reversal and remand for an immediate award of benefits was warranted, 21 based on testimony from the vocational expert at the hearing below that a hypothetical 22 person with an excessive amount of time off-task or with two or more absences per month 23 due to symptoms of her mental health conditions would not be able to perform any jobs 24 existing in significant numbers in the national economy. Id. at 24-25. 25 The Commissioner asserts several grounds of error in the Motion for 26 Reconsideration. Specifically, Defendant contends the Court erred by: (1) considering the 27 clinical findings contained in treatment records of Plaintiff’s treating psychiatrist, Prakash 1 was appropriate, relying on testimony from the vocational expert regarding hypothetical 2 functional limitations posed by Plaintiff’s attorney during the administrative hearing, and 3 attributing those proposed limitations to Dr. Bhatia; and (3) reversing for an award of 4 disability insurance benefits (“DIB”), when Plaintiff applied for SSI and not DIB. 5 In addition, with respect to the first claim of error regarding the Court’s evaluation 6 of the evidence contained in Dr. Bhatia’s treatment records, Defendant raises further 7 related claims of error. Namely, that even if the Court properly treated this evidence as a 8 treating physician’s opinion, (1) the ALJ gave specific and legitimate reasons supported by 9 substantial evidence to reject it; and (2) the rejection was harmless even if erroneous, 10 because Dr. Bhatia did not opine that Plaintiff had mental limitations beyond those that the 11 ALJ incorporated into his determination of Plaintiff’s residual functional capacity 12 (“RFC”). The Court addresses these arguments in Sections III.B. and III.C. before turning 13 to the Commissioner’s remaining claims of error. 14 A. Whether the Court Erred by Treating Dr. Bhatia’s Clinical Findings as Medical Opinion Evidence 15
16 First, Defendant argues the Court committed clear legal error by erroneously 17 conflating objective medical evidence contained in Dr. Bhatia’s treatment records with 18 medical-opinion evidence from Dr. Bhatia. ECF No. 25-1 at 3-4. 19 Agency regulations define “[m]edical opinions” as “statements from acceptable 20 medical sources that reflect judgments about the nature and severity of your impairment(s), 21 including your symptoms, diagnosis and prognosis, what you can still do despite 22 impairment(s), and your physical or mental restrictions.” 20 C.F.R. § 416.927(a)(1). 23 Defendant contends that the record statements that the Court treated as “medical 24 opinions” from Dr. Bhatia should instead have been treated as “objective medical 25 evidence,” which is defined in the regulations as “medical signs, laboratory findings, or 26 both.” Id. at 3 (quoting 20 C.F.R. § 416.913(a)(1)). “Medical signs,” in turn, include 27 “psychological abnormalities that can be observed . . . e.g., abnormalities of behavior, 1 Defendant takes the position that the Court’s recitation of statements from Dr. Bhatia’s 2 treatment notes was an improper elevation of objective medical evidence to the status of a 3 treating physician’s opinion, arguing, “while the Court concludes that Dr. Bhatia submitted 4 a medical opinion, the Court does not identify a medical opinion from Dr. Bhatia in the 5 record. Instead, the Court cites to Dr. Bhatia’s clinical findings, such as observations of 6 impaired memory and concentration, not a medical opinion.” ECF No. 25-1 at 4 (internal 7 citations omitted). 8 The Court agrees that clarification of its Order is needed on this point. It is true that 9 treating physicians often submit formal “medical source statements” reflecting their 10 medical opinions on claimants’ functional limitations to the SSA, to aid in disability 11 determinations regarding their patients. However, “medical opinion evidence” is not 12 limited to medical source statements. Rather, medical opinion evidence encompasses any 13 statement reflecting a medical source’s judgments about a claimant’s ability to work, even 14 where the statements are not formally submitted as medical source statements. 20 C.F.R. 15 § 416.927(a)(1); see, e.g., Sheffer v. Barnhart, 45 F. App’x 644, 645–46 (9th Cir. 2002) 16 (finding that the ALJ’s failure to request medical source statements from the plaintiff’s 17 treating physicians would not be reversible error in any event, because “[a] number of the 18 [plaintiff’s] doctors—including [two treating physicians]—stated opinions regarding what 19 work, if any, [the plaintiff] could still perform. Medical source statements provide the 20 same information. Thus, the ALJ’s failure to request medical source statements did not 21 result in any prejudice or unfairness.”) (emphasis added); Williams v. Astrue, No. ED CV 22 08-549-PLA, 2010 WL 431432, at *5 (C.D. Cal. Feb. 1, 2010) (treating two Medical 23 Report forms submitted by the claimant’s treating physician to San Bernardino County 24 Transitional Assistance Department as medical opinion evidence). Relevant here, Global 25 Assessment of Functioning (“GAF”) scores are properly treated as medical opinion 26 evidence. Macias v. Colvin, No. 1:15-CV-00107-SKO, 2016 WL 1224067, at *8 (E.D. Cal. 27 Mar. 29, 2016) (“As recognized by [the Social Security Administration’s Administrative 1 evidence as defined in 20 C.F.R. § 404.1527(a)(2).”);1 Dyer v. Berryhill, 762 F. App’x 439, 2 441 (9th Cir. 2019) (treating GAF scores as medical opinion evidence, as distinct from 3 clinical findings).2 4 The Court agrees with the Commissioner that record evidence reflecting solely a 5 treating physician’s summary of a claimant’s subjective reports of her symptoms, or the 6 physician’s neutral observations of medical signs, does not amount to a “statement[]” from 7 the treating source “that reflect[s] judgments about the nature and severity of [the 8 claimant’s] impairment(s),” including the claimant’s “symptoms, diagnosis and prognosis, 9 what [the claimant] can still do despite [her] impairments, and [her] physical and mental 10 restrictions,” as necessary to qualify as a “medical opinion” under the regulations. 20 11 C.F.R. § 416.927(a)(1) (emphasis added). And, upon review of the ruling at issue, the Court 12 finds that it should have more clearly differentiated between citations to the record 13 14 15 1 20 C.F.R. § 404.1527(a)(2) is a parallel regulation to 20 C.F.R. § 416.927(a)(2), but it 16 governs claims for Social Security Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act, rather than claims for SSI under Title XVI of the Act. The two 17 regulations are otherwise identical and are applied the same way. 18 2 Moreover, the conflation of medical opinion evidence and objective medical evidence 19 finds support in case law, insofar as “[m]edical opinion evidence is merely an example of 20 objective medical evidence[.]” Williams v. Berryhill, No. CV 17-03624-JDE, 2018 WL 791144, at *4 (C.D. Cal. Feb. 8, 2018) (citing Vigil v. Comm’r of Soc. Sec., 2017 WL 21 4075581, at *8 (E.D. Cal. Sept. 14, 2017) (explaining that medical opinions are based on 22 the objective medical evidence and thus do not constitute separate and distinct reasons for discrediting a plaintiff’s subjective reports of symptoms); and Petit v. Astrue, 2012 WL 23 3965146, at *7 (C.D. Cal. Sept. 11, 2012) (medical opinions are examples of objective 24 medical evidence)). See also Ward B. T. v. Saul, No. ED CV 19-00123-RAO, 2019 WL 6310272, at *10–11 (C.D. Cal. Nov. 25, 2019) (finding that the ALJ’s enumerated two 25 reasons for discrediting a plaintiff’s subjective symptom allegations—that the allegations 26 were not consistent with the objective medical evidence, and that there was no medical source statement endorsing the plaintiff’s allegations—in fact amounted to “only one 27 reason” because “medical opinion evidence is merely an example of objective medical 1 reflecting Dr. Bhatia’s neutral observations or summaries of Plaintiff’s subjective reports, 2 and those reflecting Dr. Bhatia’s judgments about the nature and severity of Plaintiff’s 3 impairments, including Plaintiff’s “symptoms, diagnosis and prognosis,” and her “mental 4 restrictions.” See id. 5 However, that lack of clarity does not amount to clear error. Dr. Bhatia’s treatment 6 records—and the Court’s citations thereto—do indeed contain judgments about the nature 7 and severity of Plaintiff’s impairments. For example, as discussed by the Court in its prior 8 order, Dr. Bhatia’s treatment records reflect judgments, upon mental status examination at 9 twelve appointments, that Plaintiff had “impaired immediate recall [memory] and impaired 10 recall memory,” that Plaintiff had “difficulty concentrating, memory problems (immediate, 11 recent, remote)[,]” and, significantly, that Plaintiff had a GAF score of 50, indicating 12 “serious symptoms or serious impair[ment] in social, occupational, or school functioning.” 13 ECF No. 24 at 15 (citing AR 347, 344, 339, 336, 333, 330, 327, 324, 321, 318, 315, and 14 312). See also ECF No. 24 at 19-20 (explaining that Dr. Bhatia’s opinions that Plaintiff 15 had “impaired immediate recall [memory] and impaired recall memory” and “difficulty 16 concentrating, memory problems (immediate, recent, remote)” were uncontradicted). All 17 of this evidence was properly treated as medical opinion evidence pertaining to the nature 18 and severity of Plaintiff’s impairments, Plaintiff’s symptoms, and Plaintiff’s mental 19 restrictions. 20 Therefore, the Court REJECTS the Commissioner’s first claim of error as a basis 21 for reconsideration of the Court’s Reversal Order. 22 B. Whether the Court Properly Found that Substantial Evidence Did Not Support the ALJ’s Rejection of Dr. Bhatia’s Opinions 23 24 Importantly, the ALJ addressed the various GAF scores in the record, including Dr. 25 Bhatia’s GAF rating of 50, and assigned them weight the same way he assigned weight to 26 other medical opinion evidence. See AR 27. The ALJ expressly gave “little weight to these 27 GAF scores since they are inconsistent with the claimant’s mental health treatment records, 1 treatment and medication. Further, the claimant was able to do a range of activities of daily 2 living including prepar[ing] simple meals, perform[ing] household chores, and handl[ing] 3 finances.” AR 27. That finding alone constitutes a rejection of a treating physician’s 4 medical opinion, requiring the support of specific and legitimate reasons in order to be 5 upheld on review. 6 On this point, the Court erred by imprecisely stating that the ALJ “thoroughly 7 examined the opinions of the other medical professionals, and detailed the amount of 8 weight given to their opinions, but did not do the same for Dr. Bhatia[.]” ECF No. 24 at 9 19. With respect to Dr. Bhatia’s opinion that Plaintiff had GAF score of 50, the ALJ 10 assigned that opinion little weight and explained why. But, as the Court previously found, 11 the reasons the ALJ gave for the weight he assigned to Dr. Bhatia’s GAF score were not 12 specific and legitimate reasons supported by substantial evidence. Namely, the Court found 13 there was not substantial evidence in the record to support the ALJ’s conclusions that 14 (1) Plaintiff’s mental impairments steadily improved, or (2) Plaintiff’s ability to perform 15 limited household tasks was inconsistent with Dr. Bhatia’s assessment of Plaintiff’s 16 functioning in areas of memory, concentration, and judgment. See ECF No. 24 at 22-23. 17 Defendant also challenges this finding, arguing that the Court “improperly 18 concluded the ALJ’s finding that Plaintiff’s condition improved with treatment 19 necessitated reversal.” ECF No. 25-1 at 5. 20 To reject a treating physician’s opinion regarding a claimant’s level of functioning, 21 the ALJ must provide specific and legitimate reasons supported by substantial evidence. 22 Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). Defendant argues that, even 23 assuming arguendo that Plaintiff’s condition did not improve with treatment, “the ALJ’s 24 interpretation of the medical evidence, reliance on the medical opinions, and Plaintiff’s 25 demonstrated capabilities would still warrant affirmance” because “substantial evidence” 26 is only “such relevant evidence as a reasonable mind might accept as adequate to support 27 a conclusion.” Id. at 5-6 (quoting Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019)) (other 1 for rejecting Dr. Bhatia’s opinion, and whether each reason is specific, legitimate, and 2 supported by substantial evidence. 3 i. Whether the ALJ’s finding that Plaintiff’s symptoms improved with treatment and medication is supported by substantial evidence 4
5 First, in giving little weight to Dr. Bhatia’s GAF score (and others, including scores 6 of 25-30 and 40 from Plaintiff’s therapist Ms. Smallwood, and a score of 56 from the 7 psychiatric consultative examiner Dr. Camellia Clark), the ALJ found such low scores 8 “inconsistent with the claimant’s mental health treatment records, which indicate that her 9 symptoms were mild to moderate and that they improved with treatment and medication.” 10 AR 27. Although the ALJ did not cite to the record to support this portion of his analysis, 11 earlier in the opinion, the ALJ discounted Plaintiff’s own statements about the intensity, 12 persistence, and limiting effects of her symptoms for similar reasons. AR 26. Specifically, 13 the ALJ found Plaintiff’s testimony that she had “personality changes and difficulty with 14 paying attention, understanding, and memory,” to be inconsistent, because her “mental 15 symptoms improved and stabilized on medication.” Id. To support this conclusion, the ALJ 16 cited to Exhibit 6F, pages 1, 25, and 28. Id. These citations correspond to Dr. Bhatia’s 17 progress notes from March 22, 2016 (AR 338), April 19, 2016 (AR 335), and June 7, 2017 18 (AR 311). The first two of these citations refer to identical notes that Plaintiff “feels she 19 worries less, anxiety improved.” AR 335, 338 (March 22, 2016 and April 19, 2016 progress 20 notes). The third refers to a note that Plaintiff is “stable on meds.” AR 311 (June 7, 2017 21 progress note). Therefore, the Court assumes the ALJ was referring to this same record 22 evidence when he later rejected various GAF assessments—including Dr. Bhatia’s—as 23 “inconsistent” with Plaintiff’s mental health treatment records purportedly showing 24 improvement with treatment and stability on medication. 25 The Court recognizes, as the Commissioner notes, that the “substantial evidence” 26 standard is a low bar, requiring only such relevant evidence as a reasonable mind might 27 accept as adequate to support a conclusion. Biestek, 139 S. Ct. at 1154. Indeed, the Court 1 as the Court also discussed in its prior Order, “it is error to reject a claimant’s testimony 2 merely because symptoms wax and wane in the course of treatment. Cycles of 3 improvement and debilitating symptoms are a common occurrence, and in such 4 circumstances it is error for an ALJ to pick out a few isolated instances of improvement 5 over a period of months or years and to treat them as a basis for concluding a claimant is 6 capable of working.” Garrison v. Colvin, 759 F.3d 995, 1017–18 (9th Cir. 2014); see Ryan 7 v. Comm’r of Soc. Sec., 528 F.3d 1194, 1200–01 (9th Cir. 2008) (“Nor are the references 8 in [a doctor’s] notes that [the plaintiff]’s anxiety and depression were ‘improving’ 9 sufficient to undermine the repeated diagnosis of those conditions, or [another doctor’s] 10 more detailed report.”); Holohan v. Massanari, 246 F.3d 1195, 1205 (9th Cir. 2001) (“[The 11 treating physician’s] statements must be read in context of the overall diagnostic picture he 12 draws. That a person who suffers from severe panic attacks, anxiety, and depression makes 13 some improvement does not mean that the person’s impairments no longer seriously affect 14 her ability to function in a workplace.”). 15 Applying this caselaw, the Court found that substantial evidence did not support the 16 ALJ’s finding that Plaintiff’s mental conditions “steadily improved,” because, when 17 properly viewed within the context of Plaintiff’s entire course of psychiatric treatment by 18 Dr. Bhatia, it was not reasonable to conclude that these isolated treatment notes showed 19 overall improvement. Nor did these few notes constitute any evidence of improvement of 20 the key symptoms at issue—Plaintiff’s limitations in understanding, remembering, or 21 applying information. Instead, as the Court discussed in its prior Order, Dr. Bhatia 22 consistently found that Plaintiff’s GAF score was 50 from January 2016 through June 2017, 23 and consistently found that Plaintiff showed “impaired immediate recall and impaired 24 recall memory;” “difficulty concentrating, memory problems (immediate, recent, 25 remote);” and “deficit in abstract thinking and judgment (impulsive, violent, dangerous).” 26 AR 312, 315, 318, 321, 324, 327, 330, 333, 336, 339, 344, 347. These findings, which 27 reflect a judgment by Dr. Bhatia that Plaintiff had “serious symptoms or serious impair in 1 in understanding, remembering, or applying information, were included in the very same 2 progress notes of Dr. Bhatia’s that were cited by the ALJ to discount Plaintiff’s testimony 3 that she had “difficulty with paying attention, understanding, and memory.” AR 26. Indeed, 4 in the April 19, 2016 progress notes from Dr. Bhatia that the ALJ cited, which state that 5 Plaintiff “worries less,” and her “anxiety [is] improved[,]” Dr. Bhatia also states 6 immediately thereafter that Plaintiff “continues to dissociate at times. Poor attention[.]” 7 AR 335. Accordingly, these notes do not constitute “such relevant evidence as a reasonable 8 mind might accept as adequate to support a conclusion” that Plaintiff’s mental limitations 9 related to understanding, remembering, or applying information improved and stabilized 10 on medications, and the Court thus did not err in finding these isolated instances of noted 11 “improvement” in the record failed to meet the “substantial evidence” bar to support the 12 ALJ’s conclusion in that regard. 13 ii. Whether the ALJ’s finding that Plaintiff’s daily activities are inconsistent with Dr. Bhatia’s evaluation of her limitations is supported by substantial evidence 14
15 The second reason the ALJ gave for rejecting Dr. Bhatia’s GAF score of 50, 16 indicating serious symptoms or serious impairment in social or occupational functioning, 17 was that Plaintiff “was able to do a range of activities of daily living including prepar[ing] 18 simple meals, perform[ing] household chores, and handl[ing] finances.” AR 27. The record 19 evidence the ALJ cited in support of that reason included Exhibits 3F (Adult Psychiatric 20 Evaluation completed by consultative examiner Dr. Clark), 3E (Plaintiff’s self-reported 21 Function Report), and 4E (Third Party Function Report completed by Plaintiff’s son, Ricky 22 Vader, Jr.). AR 184-93, 195-202, 288-90. 23 As the Court discussed in its prior Order, Plaintiff’s ability to perform limited 24 household tasks, as outlined in the cited exhibits, does not constitute substantial evidence 25 for his rejection of Dr. Bhatia’s opinion that Plaintiff has serious symptoms or serious 26 impairment in social or occupational functioning. See ECF No. 24 at 23 n.9. Dr. Clark’s 27 evaluation dated September 23, 2015 states that Plaintiff self-reported that she was able to 1 could take the bus, and handles her own funds. AR 289-90. However, the ALJ’s 2 characterization of how Plaintiff and her son describe Plaintiff’s daily activities in their 3 reports, which were completed only two months before Dr. Clark’s evaluation in July 2015, 4 omits the key fact that they both report that Plaintiff cannot do most of her activities without 5 reminders. See, e.g., AR 187 (Plaintiff reporting she needs reminders to take medication 6 and to do household chores); AR 197 (Plaintiff’s son stating that Plaintiff needs daily task 7 reminders, including reminders to do household chores); AR 199 (Plaintiff’s son stating 8 that she needs reminders to go places). The fact that Plaintiff requires daily reminders to 9 complete basic tasks is not sufficiently captured by Dr. Clark’s notes regarding Plaintiff’s 10 self-report that she is capable of caring for her hygiene, performing chores, taking the bus, 11 and handling funds. 12 Further, the reports from Plaintiff and her son show that even with reminders, 13 Plaintiff has difficulty performing the basic tasks that the ALJ relies on as evidence that a 14 GAF score of 50 is inconsistent with her daily activities. See AR 197; (Plaintiff’s son 15 reporting that it can take her “four hours or more to clean a small bathroom”); AR 198 16 (stating that Plaintiff’s son helps her shop for groceries so she can make faster decisions); 17 AR 200 (stating Plaintiff has “inability to follow and understand direction”; “is not good 18 at paying attention”; does not finish what she starts, e.g., a conversation, chores, reading, 19 or watching a movie; does not follow written instructions very well; and, with respect to 20 how well Plaintiff follows spoken instructions, “you have to tell her multiple times and 21 sometimes she still does it wrong.”). As for the ALJ’s statement that Plaintiff’s daily 22 activities include handling household finances, the Court notes that while the reports state 23 that Plaintiff has the ability to pay bills, handle a savings account, count change, and use a 24 checkbook, Plaintiff reports that her son handles the household finances because Plaintiff 25 has no money of her own. AR 188. Accord AR 198. 26 Elsewhere in the opinion, the ALJ similarly relies on Plaintiff’s ability to prepare 27 simple meals, as well as Plaintiff’s abilities “to attend her therapy and psychiatrist 1 groceries” to discount Plaintiff’s statements about the intensity, persistence, and limiting 2 effects of her symptoms, including Plaintiff’s testimony that she has difficulty paying 3 attention, understanding, and remembering. AR 26. The “simple meals” that Plaintiff is 4 able to prepare include microwaveable dinners, sandwiches, and soups. AR 187, 197. 5 Plaintiff is unable to drive herself anywhere, because she could not pass the written test to 6 obtain a driver’s license despite five attempts, and thus relies on other people to drive her 7 to her appointments, to socialize with her friend, and to the grocery store. See AR 52-53, 8 188, 198, 199. 9 Viewing these daily activities in the proper context, then, the Court did not clearly 10 err in finding that these daily activities did not constitute substantial evidence to support 11 the ALJ’s finding that Plaintiff’s symptoms were mild to moderate, and not as serious as 12 suggested by Dr. Bhatia’s (and others’) GAF scores. Even overlooking the ALJ’s 13 incomplete characterization of the activities, the ALJ does not explain how Plaintiff’s very 14 limited activities of daily living are inconsistent with, e.g., having serious symptoms or 15 serious impairment in occupational function, as Dr. Bhatia opined. “[D]isability claimants 16 should not be penalized for attempting to lead normal lives in the face of their limitations.” 17 Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998). For that reason, “daily activities are 18 inconsistent with claimed disability where the plaintiff is able to spend a substantial part 19 of the day engaged in activities that are transferable to a work setting.” Aguilar v. Berryhill, 20 No. CV 16-7565 SS, 2017 WL 3269376, at *4 (C.D. Cal. Aug. 1, 2017) (citing Fair v. 21 Bowen, 885 F.2d 597, 603 (9th Cir. 1989) (“The Social Security Act does not require that 22 claimants be utterly incapacitated to be eligible for benefits, . . . and many home activities 23 are not easily transferable to what may be the more grueling environment of the 24 workplace”)). Many courts have found comparable or even more challenging daily 25 activities not to be inconsistent with marked or extreme mental limitations. See, e.g., 26 Schiaffino v. Saul, 799 F. App’x 473, 476-77 (9th Cir. 2020) (rejecting the ALJ’s reliance 27 on such activities as taking a family trip to Disneyland, going out to the woods, shooting 1 social and cognitive functioning” that is “limited to the extent that all work would be 2 prohibited,” because the cited activities “do not show capacities that are transferable to a 3 work setting”) (internal quotations and citation omitted); Feasel v. Colvin, No. CV 14- 4 0047-S-REB, 2015 WL 1281071, at *4-5 (D. Idaho Mar. 20, 2015) (finding that the 5 plaintiff’s daily activities of daily walks, household chores, and reading a book for up two 6 hours while watching television were not inconsistent with his treating physician’s opinion 7 that he had marked limitations in attention and concentration for extended periods, among 8 other mental limitations); Aguilar, 2017 WL 3269376, at *4 (finding the plaintiff’s daily 9 activities of going to church, taking public transportation, caring for personal needs, eating 10 at fast food restaurants, going to the park, and driving a motor vehicle were not inconsistent 11 with extreme mental limitations); Crill v. Colvin, No. 2:15-CV-0063-FVS, 2016 WL 12 1069661, at *5 (E.D. Wash. Mar. 17, 2016) (finding that the plaintiff’s activities of caring 13 for his mother-in-law, shopping, cooking, driving, and cleaning are not necessarily 14 inconsistent with alleged disabling limitations in concentration and public interaction, and 15 absent evidence suggesting such activities were transferable to a work setting, could not 16 constitute substantial evidence to reject the plaintiff’s alleged limitations caused by stress, 17 panic, anxiety, and depression); Chalfant v. Astrue, No. CV 10-1684-PLA, 2011 WL 18 61612, at *8 (C.D. Cal. Jan. 6, 2011) (finding the plaintiff’s activities of reading, watching 19 television, and occasional computer use were not inconsistent with her treating physician’s 20 opinion that plaintiff’s medication side effects of drowsiness and difficulty concentrating 21 would interfere with her ability to work, because “there is no indication in plaintiff’s 22 testimony—or in the ALJ’s discussion of plaintiff’s activities” that such activities “require 23 a level of concentration comparable to what would be required in a work setting or that 24 these activities consumed a substantial part of her day”). 25 As discussed in the Court’s prior Order, Plaintiff’s activities of performing limited 26 household tasks (with reminders) are not necessarily transferable to a work setting. See 27 ECF No. 24 at 23 n.9. Although the ALJ here referenced the daily activities of Plaintiff 1 providers (including Dr. Bhatia), he made no specific findings as to whether Plaintiff 2 spends a substantial part of her day engaged in those activities, or how those activities 3 involve functions that would transfer to a work setting. And, as discussed, the ALJ’s 4 characterization of these activities is incomplete insofar as the ALJ did not acknowledge 5 that Plaintiff requires frequent reminders to complete them, further diminishing their 6 weight as evidence to contradict Plaintiff’s alleged difficulties in the areas of paying 7 attention, understanding, and memory. Therefore, the Court did not err in finding that “[t]he 8 ALJ’s reliance on Plaintiff’s ability to perform limited household tasks [] does not provide 9 substantial evidence for his conclusions.” Id. See Holcomb v. Saul, 832 F. App’x 505, 506 10 n.1 (9th Cir. 2020) (noting that it was error for an ALJ to discredit a claimant’s symptom 11 testimony based on the claimant’s daily activities, without making “the required ‘specific 12 finding’ that [the claimant] participated in those daily activities for a ‘substantial part of 13 his day.’”) (quoting Fair, 885 F.2d at 603) (emphasis added). 14 Therefore, with respect to the Commissioner’s first claim of error, the Court 15 REJECTS the Commissioner’s argument that substantial evidence supports the ALJ’s 16 rejection of Dr. Bhatia’s medical opinion indicating serious symptoms or serious 17 impairment in social or occupational functioning. 18 C. Whether the ALJ’s Rejection of Medical Opinion Evidence from Dr. Bhatia was Harmless 19 20 Defendant next argues that the ALJ did include mental limitations in Plaintiff’s RFC, 21 by limiting her to unskilled work requiring her only to “understand, remember, and carry 22 out simple instructions and tasks” and precluding her from working “in a setting which 23 includes constant/regular interaction with the general public or more than infrequent 24 handling of customer complaints.” AR 24. Therefore, because the ALJ “assessed reduced 25 capabilities in both cognitive functioning (including memory) and social functioning in 26 Plaintiff’s RFC[,]” the Commissioner asserts that remanding or reversing the decision is 27 improper “both because any error would be harmless and because the ALJ’s RFC 1 Once more, the Court agrees that its prior Order requires clarification on this point. 2 In finding error for failure to credit Dr. Bhatia’s opinions regarding the nature and severity 3 of Plaintiff’s impairments, the Court focused its discussion on the ALJ’s finding in the 4 “paragraph B” mental functional analysis at step three of the disability evaluation that “[i]n 5 understanding, remembering, or applying information, the claimant has no limitation.” AR 6 23 (emphasis added). In so doing, the Court neglected to acknowledge that, despite this 7 finding, the ALJ still incorporated some limitations related to understanding, remembering, 8 and applying information in his determination of Plaintiff’s RFC. See AR 24. 9 However, the rationale for that decision by the ALJ remains unclear. Although the 10 limitations identified in the “paragraph B” criteria are not an RFC assessment, the ALJ 11 expressly states in his opinion that his RFC assessment “reflects the degree of limitation 12 the undersigned has found in the ‘paragraph B’ mental functional analysis” at step three— 13 i.e., the analysis that included the ALJ’s determination that Plaintiff had “no limitation” in 14 understanding, remembering, or applying information. AR 24. Given this statement by the 15 ALJ that this finding at step three is reflected in the RFC determination, the Court cannot 16 say that it is “left with the definite and firm conviction that a mistake has been committed” 17 with respect to the Court’s conclusion that the ALJ’s RFC determination did not adequately 18 account for Plaintiff’s mental limitations in the areas of understanding, remembering, or 19 applying information, as reflected by the medical opinion evidence in Dr. Bhatia’s 20 treatment records. See Smith, 727 F.3d at 955; U.S. Gypsum Co., 333 U.S. at 395. The 21 question, then, is whether remand may still be required to resolve this apparent 22 inconsistency between the ALJ’s step three finding of “no limitation” in understanding, 23 remembering, or applying information and the ALJ’s RFC assessment limiting Plaintiff to 24 unskilled work. 25 The Commissioner notes that the step-five jobs the ALJ found Plaintiff could 26 perform were all unskilled positions. ECF No. 25-1 at 5. “Unskilled work” is defined in 27 pertinent part as “work which needs little or no judgment to do simple duties that can be 1 in 30 days, and little specific vocational preparation and judgment are needed.” 20 C.F.R. 2 § 416.968(a). Because the jobs identified at step five—dishwasher, cleaner, and 3 floorwaxer—are all classified as Specific Vocational Preparation (“SVP”) level 2 jobs, 4 they are considered unskilled under the regulations. See DICOT 318.687-010, 1991 WL 5 672755 (Dishwasher (Kitchen Helper)); DICOT 381.687-022, 1991 WL 673259 (Cleaner); 6 DICOT 381.687-034, 1991 WL 673262 (Floorwaxer). 7 However, a job’s SVP level is a separate vocational consideration from whether a 8 job requires the worker to understand, remember, and carry out only simple instructions 9 and tasks. See Meissl v. Barnhart, 403 F. Supp. 2d 981, 983 (C.D. Cal. 2005) (“A job’s 10 SVP is focused on ‘the amount of lapsed time’ it takes for a typical worker to learn the 11 job’s duties. A job’s reasoning level, by contrast, gauges the minimal ability a worker needs 12 to complete the job’s tasks themselves. As one court noted, ‘SVP ratings speak to the issue 13 of the level of vocational preparation necessary to perform the job, not directly to the issue 14 of a job’s simplicity, which appears to be more squarely addressed by the GED [reasoning 15 level] ratings.’”) (quoting Hall–Grover v. Barnhart, 2004 WL 1529283, at *4 (D. Me. Apr. 16 30, 2004)) (other citations omitted).3 17 18
19 20 3 Two of the three jobs identified by the ALJ at step five—Dishwasher and Cleaner—have Reasoning Level 2 ratings. The third—Floorwaxer—has a Reasoning Level of 1. See 21 DICOT 318.687-010, 1991 WL 672755 (Dishwasher (Kitchen Helper)); DICOT 381.687- 22 022, 1991 WL 673259 (Cleaner); DICOT 381.687-034, 1991 WL 673262 (Floorwaxer). Jobs classified as requiring “Level 2” Reasoning abilities require the worker to “[a]pply 23 commonsense understanding to carry out detailed but uninvolved written or oral 24 instructions” and to “[d]eal with problems involving a few concrete variables in or from [a] standardized situation.” DICOT Appendix C, 1991 WL 688702 (setting forth General 25 Educational Development (“GED”) reasoning levels “required of the worker for 26 satisfactory job performance”). Jobs classified as requiring “Level 1” Reasoning abilities require the worker to “[a]pply commonsense understanding to carry out simple one- or 27 two-step instructions” and to “[d]eal with standardized situations with occasional or no 1 Therefore, the Court disagrees with the Commissioner that any error in rejecting Dr. 2 Bhatia’s opinions regarding Plaintiff’s mental limitations would necessarily be harmless. 3 As the Commissioner notes elsewhere in the motion for reconsideration, “the record does 4 not contain the requisite vocational evidence necessary to ascertain whether Plaintiff would 5 be able to perform work existing in significant numbers in the national economy if she had 6 additional limitations beyond her RFC.” ECF No. 25-1 at 7. And, because the ALJ stated 7 that the RFC incorporated his step three findings of “no limitation” in understanding, 8 remembering, or applying information, the Court is ill-equipped to determine on the record 9 whether the ALJ’s RFC determination and, thus, the ALJ’s step-five finding would remain 10 the same had the ALJ credited Dr. Bhatia’s medical opinion evidence that Plaintiff (1) has 11 a GAF score of 50, indicating “serious symptoms or serious impair in social, occupational, 12 or school functioning,” (2) has impaired immediate recall and impaired recall memory, (3) 13 has difficulty concentrating and immediate, recent, and remote memory problems, and (4) 14 has deficits in abstract thinking and judgment, including impulsive, violent, and dangerous 15 tendencies. 16 The Court is especially reticent to draw conclusions about the potential impact of 17 crediting such findings (and whether not doing so constitutes harmful error) given that the 18 GAF scale “‘does not have a direct correlation to the severity requirements in [the Social 19 Security Administration’s] mental disorders listings.’” McFarland v. Astrue, 288 F. App’x 20 357, 359 (9th Cir. 2008) (quoting 65 Fed. Reg. 50,746, 50,765 (Aug. 21, 2000)). 21 “Consequently, an ALJ’s failure to address specific GAF scores does not constitute legal 22 error where the ALJ’s assessment of a claimant’s [RFC] accounts for the claimant’s severe 23 mental impairments, is not inconsistent with the assessed GAF score, and is otherwise 24 supported by substantial evidence in the record.” Mann v. Astrue, No. EDCV 08-1338 AN, 25 2009 WL 2246350, at *1 (C.D. Cal. July 24, 2009) (citing McFarland, 288 F. App’x at 26 359) (other citation omitted). Because of the potential conflict between the ALJ’s finding 27 at step three of “no limitation” in the areas of understanding, remembering, or applying 1 to determine whether the ALJ’s RFC accounts for the claimant’s mental impairments or is 2 inconsistent with the assessed GAF score. 3 Additionally, absent vocational evidence in the record regarding whether Plaintiff 4 can perform jobs with Reasoning Levels of 1 or 2 notwithstanding the memory, 5 concentration, and judgment deficits assessed by Dr. Bhatia, the Court cannot say that the 6 ALJ’s rejection of Dr. Bhatia’s opinions was harmless merely because the ALJ included 7 some mental limitations in Plaintiff’s RFC. Indeed, the Social Security Administration’s 8 internal Programs Operations Manual System (“POMS”) indicates that mental abilities 9 needed for any job include (among others) the ability to (1) understand and remember very 10 short and simple instructions; (2) maintain concentration and attention for approximately 11 two hours at a time; (3) sustain an ordinary routine without special supervision; and (4) 12 complete a normal workday and workweek without interruptions from psychologically 13 based symptoms. See SSA POMS DI 25020.010, Mental Limitations.4 Therefore, further 14 proceedings are necessary to determine whether Plaintiff’s deficits in the areas of 15 understanding, remembering, and applying information preclude all work, even unskilled 16 jobs with Reasoning Levels of 1 or 2. 17 Accordingly, with respect to the Commissioner’s first claim of error, the Court 18 REJECTS the Commissioner’s argument that the ALJ’s rejection of Dr. Bhatia’s opinion 19 evidence was harmless, even if erroneous. 20 D. Whether the Court Erred by Relying on Testimony from Vocational Expert Regarding Hypothetical Limitations Not Properly Attributed to Dr. Bhatia’s 21 Opinion and Reversing Instead of Remanding for Further Proceedings 22 23 The Court now turns to the Commissioner’s second claim of error raised in the 24 Motion for Reconsideration. In deciding to reverse and remand for an immediate award of 25 benefits, the Court applied the “credit-as-true” rule, i.e., that the Court “should credit 26
27 1 evidence that was rejected during the administrative process and remand for an immediate 2 award of benefits if: (1) the ALJ failed to provide legally sufficient reasons for rejecting 3 the evidence; (2) there are no outstanding issues that must be resolved before a 4 determination of disability can be made; and (3) it is clear from the record that the ALJ 5 would be required to find the claimant disabled were such evidence credited.” Benecke v. 6 Barnhart, 379 F.3d 587, 593 (9th Cir. 2004). Applying that rule to Dr. Bhatia’s opinion, 7 the Court concluded that “[w]hen Dr. Bhatia’s opinion is given appropriate weight, the 8 vocational expert’s testimony confirms that Plaintiff cannot perform work in the general 9 economy.” ECF No. 24 at 25. 10 This conclusion constitutes clear legal error. As the Commissioner notes, the Court’s 11 determination on this point depended on testimony from the vocational expert stating that 12 a hypothetical person “with an excessive amount of time off-task, meaning 10 to 15 percent 13 of the workday” or a hypothetical person “with two or more absences per month due to 14 symptoms of their mental health conditions” would not be able to find work available in 15 significant numbers in the national economy. See id. at 24; AR 54-55. However, these 16 hypothetical limitations are not necessarily derived from Dr. Bhatia’s opinions. That is, Dr. 17 Bhatia’s opinions that Plaintiff (1) has a GAF score of 50, indicating “serious symptoms 18 or serious impair in social, occupational, or school functioning,” (2) has impaired 19 immediate recall and impaired recall memory, (3) has difficulty concentrating and 20 immediate, recent, and remote memory problems, and (4) has deficits in abstract thinking 21 and judgment, including impulsive, violent, and dangerous tendencies, do not directly 22 translate to an assessment of Plaintiff’s ability to stay on-task or to avoid excessive 23 absences at work. Thus, it was clear legal error for the Court to apply its own interpretation 24 of Dr. Bhatia’s judgments about the severity of Plaintiff’s symptoms to determine that 25 crediting those judgments as true would necessarily translate into an inability to stay on 26 task or show up to work. Further proceedings are necessary to determine whether crediting 27 Dr. Bhatia’s opinions as true would have resulted in a different determination at step five 1 Accordingly, the Court GRANTS the Commissioner’s Motion for Reconsideration 2 || with respect to the second claim of error—namely, that the Court erred by reversing for an 3 ||immediate award of benefits, when the record is insufficient to determine whether the 4 || ALJ’s disability determination at step five would have been different had Dr. Bhatia’s 5 || opinions been credited as true.° 6 IV. CONCLUSION 7 For the foregoing reasons, the Commissioner’s Motion for Reconsideration (ECF 8 || No. 25) is GRANTED IN PART and DENIED IN PART. The Court VACATES its prior 9 || Order Resolving Plaintiff's Motion for Judicial Review, Reversing Denial of Benefits, and 10 ||Remanding for Payment of Benefits (ECF No. 24). 11 However, the Court’s finding that the ALJ committed reversible error by failing to 12 || give specific and legitimate reasons, supported by substantial evidence, for rejecting certain 13 ||medical opinion evidence from Plaintiff's treating psychiatrist stands. Accordingly, this 14 action is hereby REMANDED for further proceedings, consistent with this opinion. 15 IT IS SO ORDERED. 16 17 || Dated: May 14, 2021 is _ArwiorwH. Xyolard Honorable Allison H. Goddard 19 United States Magistrate Judge 20 21 22 23 24 25 96 ||° The Court also agrees with the Commissioner that it was a manifest error of law to award Plaintiff disability insurance benefits under Title II of the Act, when she applied only for 27 Supplemental Security Income under Title XVI of the Act. However, because the Court is 28 || vacating its prior order and remanding for further proceedings, this third claim of error is moot.