Whitworth v. Kijakazi

• Court: District Court, E.D. Washington
• Decided: November 2, 2021
• Docket: 4:20-cv-05164
• Status: Unknown

Opinion

FILED IN THE 2 U.S. DISTRICT COURT EASTERN DISTRICT OF WASHINGTON Nov 02, 2021 3

SEAN F. MCAVOY, CLERK 4 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6

7 ANGELA W.,1 No. 4:20-cv-5164-EFS

8 Plaintiff, ORDER GRANTING PLAINTIFF’S 9 v. SUMMARY-JUDGMENT MOTION AND DENYING DEFENDANT’S 10 KILOLO KIJAKAZI, Acting SUMMARY-JUDGMENT MOTION Commissioner of Social Security,2 11 Defendant. 12 13 14 Plaintiff Angela W. appeals the denial of benefits by the Administrative Law 15 Judge (ALJ). Because the record reveals that Plaintiff was more functionally 16 impacted by her brain aneurysm in the years immediately following the aneurysm 17

18 1 To protect the privacy of the social-security Plaintiff, the Court refers to her by 19 first name and last initial or as “Plaintiff.” See LCivR 5.2(c). 20 2 On July 9, 2021, Ms. Kijakazi became the Acting Commissioner of Social Security. 21 She is therefore substituted for Andrew Saul as Defendant. Fed. R. Civ. P. 25(d); 42 22 U.S.C. § 405(g). 23 1 rather than at the time of the administrative hearing, the ALJ erred by failing to 2 separately consider the evidence in closer proximity to the brain aneurysm as 3 compared to the evidence in closer proximity to the administrative hearing. This 4 error was harmful. On remand, the ALJ is to consider whether, at a minimum, a 5 closed period of disability is to be awarded. For the reasons set forth below, the 6 Court grants Plaintiff’s Motion for Summary Judgment, ECF No. 18, and denies 7 the Commissioner’s Motion for Summary Judgment, ECF No. 19. 8 I. Five-Step Disability Determination 9 A five-step sequential evaluation process is used to determine whether an 10 adult claimant is disabled.3 Step one assesses whether the claimant is engaged in 11 substantial gainful activity.4 If the claimant is engaged in substantial gainful 12 activity, benefits are denied.5 If not, the disability evaluation proceeds to step two.6 13 Step two assesses whether the claimant has a medically severe impairment 14 or combination of impairments that significantly limit the claimant’s physical or 15 16 17 18

19 3 20 C.F.R. § 404.1520(a). 20 4 Id. § 404.1520(a)(4)(i). 21 5 Id. § 404.1520(b). 22 6 Id. 23 1 mental ability to do basic work activities.7 If the claimant does not, benefits are 2 denied.8 If the claimant does, the disability evaluation proceeds to step three.9 3 Step three compares the claimant’s impairment or combination of 4 impairments to several recognized by the Commissioner as so severe as to preclude 5 substantial gainful activity.10 If an impairment or combination of impairments 6 meets or equals one of the listed impairments, the claimant is conclusively 7 presumed to be disabled.11 If not, the disability evaluation proceeds to step four. 8 Step four assesses whether an impairment prevents the claimant from 9 performing work she performed in the past by determining the claimant’s residual 10 functional capacity (RFC).12 If the claimant can perform past work, benefits are 11 denied.13 If not, the disability evaluation proceeds to step five. 12 Step five, the final step, assesses whether the claimant can perform other 13 substantial gainful work—work that exists in significant numbers in the national 14 15

16 7 20 C.F.R. § 404.1520(a)(4)(ii). 17 8 Id. § 404.1520(c). 18 9 Id. 19 10 Id. § 404.1520(a)(4)(iii). 20 11 Id. § 404.1520(d). 21 12 Id. § 404.1520(a)(4)(iv). 22 13 Id. 23 1 economy—considering the claimant’s RFC, age, education, and work experience.14 2 If so, benefits are denied. If not, benefits are granted.15 3 The claimant has the initial burden of establishing she is entitled to 4 disability benefits under steps one through four.16 At step five, the burden shifts to 5 the Commissioner to show the claimant is not entitled to benefits.17 6 II. Factual and Procedural Summary 7 Plaintiff filed a Title 2 application, alleging a disability onset date of 8 October 17, 2012—the date on which she suffered a brain aneurysm.18 Her claim 9 was denied initially and on reconsideration.19 An administrative hearing was held 10 before Administrative Law Judge Stewart Stallings.20 During the hearing, Plaintiff 11 testified that she began part-time work (about 18.5 hours per week) about four 12 months before the hearing because she financially needed to and that, even though 13 her employer desired her to work more hours, she was physically unable to work 14

15 14 20 C.F.R. § 404.1520(a)(4)(v); Kail v. Heckler, 722 F.2d 1496, 1497-98 (9th Cir. 16 1984). 17 15 20 C.F.R. § 404.1520(g). 18 16 Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). 19 17 Id. 20 18 AR 168–78. 21 19 AR 102–08, 110–16. 22 20 AR 34–62. 23 1 more hours.21 She testified that due to the brain aneurysm, spinal impairments, 2 and other physical and mental impairments, she has difficulty remembering 3 things, stutters when she is nervous and stressed, has low back, neck, and leg pain, 4 has numbness in her hands after twenty minutes of use, gets anxious around 5 people, experiences fatigue due to medications, has balance difficulties, and suffers 6 headaches.22 She also testified that she was able to work and did not have these 7 difficulties before her stroke.23 8 When denying Plaintiff’s disability claim, the ALJ found: 9 • Step one: Plaintiff had not engaged in substantial gainful activity 10 since October 17, 2012, the alleged onset date, through her date last 11 insured of December 31, 2017.24 12 • Step two: Plaintiff had the following medically determinable severe 13 impairments: transient ischemic attack (TIA) with aneurysm in 2012, 14 lumbar and cervical degenerative disc disease, neuropathy, anxiety, 15 neurocognitive decline, and speech deficits.25 16 17

18 21 AR 38–40, 47–48. 19 22 AR 41–50. 20 23 AR 50. 21 24 AR 17. 22 25 AR 17. 23 1 • Step three: Plaintiff did not have an impairment or combination of 2 impairments that met or medically equaled the severity of one of the 3 listed impairments.26 4 • RFC: Plaintiff had the RFC to perform light work: 5 She could lift up to 20 pounds, lift or carry up to 10 pounds frequently. Stand or walk for approximately 6 hours per 8- 6 hour workday, and sit for approximately 6 hours per 8-hour workday, with normal breaks. The claimant would have 7 needed a sit/stand option, defined as change from a standing position to a sitting position, or vice-versa, every 30 minutes 8 for 5 minutes while remaining at the workstation. A sit/stand at will option was acceptable as well. She could 9 never climb ladders, ropes or scaffolds; occasionally climb ramps and stairs; occasionally stoop; and never crouch, 10 kneel, or crawl. She could occasionally reach overhead, bilaterally. Frequently handle and finger. She would have 11 needed to avoid all use of moving or dangerous machinery and all exposure to unprotected heights. The claimant would 12 have needed low stress work, defined as no production pace conveyer belt type-work and a predictable work 13 environment. Work that involved no more than occasional interaction with the public, coworkers, and supervisors.27 14

• Step four: Plaintiff was unable to perform past relevant work.28 15 • Step five: considering Plaintiff’s RFC, age, education, and work 16 history, Plaintiff could have performed work that existed in significant 17 18 19

20 26 AR 18–19. 21 27 AR 19–23. 22 28 AR 23–24. 23 1 numbers in the national economy, such as electronics worker and 2 marker.29 3 When assessing the medical-opinion evidence, the ALJ found: 4 • the examining opinion of N.K. Marks, Ph.D., and the reviewing 5 opinions of Rita Flanagan, Ph.D., and Renee Eisenhauer, Ph.D. 6 persuasive. 7 • some portions of the examining opinions of James Wahl, Ph.D., and 8 James Opara, M.D., somewhat persuasive and other portions not 9 persuasive. 10 • the reviewing opinions of Robert Hander, M.D., and Norman Staley, 11 M.D., not persuasive.30 12 The ALJ also found Plaintiff’s medically determinable impairments could 13 reasonably be expected to cause some of the alleged symptoms, but her statements 14 concerning the intensity, persistence, and limiting effects of those symptoms were 15 not entirely consistent with the medical evidence and other evidence.31 16 17 18 19

20 29 AR 24–25. 21 30 AR 22–23. 22 31 AR 20–22. 23 1 Plaintiff requested review of the ALJ’s decision by the Appeals Council, 2 which denied review.32 Plaintiff timely appealed to this Court.33 3 III. Standard of Review 4 A district court’s review of the Commissioner’s final decision is limited.34 The 5 Commissioner’s decision is set aside “only if it is not supported by substantial 6 evidence or is based on legal error.”35 Substantial evidence is “more than a mere 7 scintilla but less than a preponderance; it is such relevant evidence as a reasonable 8 mind might accept as adequate to support a conclusion.”36 Moreover, because it is 9 the role of the ALJ and not the Court to weigh conflicting evidence, the Court 10 upholds the ALJ’s findings “if they are supported by inferences reasonably drawn 11 from the record.”37 The Court considers the entire record.38 12

13 32 AR 1–6. 14 33 See 20 C.F.R. § 404.981. 15 34 42 U.S.C. § 405(g). 16 35 Hill v. Astrue, 698 F.3d 1153, 1158 (9th Cir. 2012). 17 36 Id. at 1159 (quoting Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997)). 18 37 Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). 19 38 Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (The court “must 20 consider the entire record as a whole, weighing both the evidence that supports and 21 the evidence that detracts from the Commissioner's conclusion,” not simply the 22 evidence cited by the ALJ or the parties.) (cleaned up); Black v. Apfel, 143 F.3d 383, 23 1 Further, the Court may not reverse an ALJ decision due to a harmless 2 error.39 An error is harmless “where it is inconsequential to the ultimate 3 nondisability determination.”40 The party appealing the ALJ’s decision generally 4 bears the burden of establishing harm.41 5 IV. Analysis 6 A. Step Three (Listings): Plaintiff establishes consequential error. 7 Plaintiff contends the ALJ erred by 1) failing to consider whether Plaintiff’s 8 impairments met or equaled Listings 11.04, 12.04, and 12.05, and 2) failing to find 9 that Plaintiff’s impairments met or medically equaled Listings 1.04A, 12.02 and 10 12.06. As discussed below, the ALJ erred by failing to consider Listing 11.04. 11 If a claimant meets all of the listing criteria, she is considered disabled at 12 step three. A claimant who does not meet the listing criteria may still be 13 considered disabled at step three if her impairments medically equal a listed 14 15 16 17

18 386 (8th Cir. 1998) (“An ALJ's failure to cite specific evidence does not indicate that 19 such evidence was not considered[.]”). 20 39 Molina, 674 F.3d at 1111. 21 40 Id. at 1115 (cleaned up). 22 41 Shinseki v. Sanders, 556 U.S. 396, 409–10 (2009). 23 1 impairment.42 The ALJ is obligated to consider the relevant evidence to determine 2 whether a claimant’s impairments meet or equal one of the specified impairments 3 set forth in the listings.43 The ALJ need not recite the reasons for his step-three 4 determination under the listings portion of the decision so long as the relevant 5 evidence and underlying findings are discussed in the ALJ’s decision.44 6 Here, the ALJ did not mention Listing 11.04, which applies to vascular 7 insult to the brain and requires: 8 A. Sensory or motor aphasia resulting in ineffective speech or communication (see 11.00E1) persisting for at least 3 consecutive 9 months after the insult; or B. Disorganization of motor function in two extremities 10 (see 11.00D1), resulting in an extreme limitation (see 11.00D2) in the ability to stand up from a seated position, balance while standing or 11 walking, or use the upper extremities, persisting for at least 3 consecutive months after the insult; or 12 C. Marked limitation (see 11.00G2) in physical functioning (see 11.00G3a) and in one of the following areas of mental functioning, 13 both persisting for at least 3 consecutive months after the insult: 1. Understanding, remembering, or applying information 14 (see 11.00G3b(i)); or 2. Interacting with others (see 11.00G3b(ii)); or 15 3. Concentrating, persisting, or maintaining pace (see 11.00G3b(iii)); or 16 4. Adapting or managing oneself (see 11.00G3b(iv)).

18 42 Soc. Sec. Ruling 17-2p. See also Sullivan v. Zebley, 493 U.S. 521, 530 (1990) 19 (requiring a claimant to show that the impairment meets (or medically equals) all 20 of the specified medical criteria, not just some of the criteria). 21 43 20 C.F.R. § 404.1520(a)(4)(iii); Lewis v. Apfel, 236 F.3d 503, 512 (9th Cir.2001). 22 44 Lewis, 236 F.3d at 513. 23 1 Given the medical record following Plaintiff’s vascular insult to the brain in 2 October 2012, the ALJ erred by not discussing Listing 11.04. The medical records 3 in January 2013—three months after her brain aneurysm—reflect that her 4 coordination was abnormal, she struggled expressing her thoughts, and her speech 5 occasionally stalled although she was able to eventually find the words.45 In 6 February 2013, she experienced dizziness at her physical therapy sessions.46 Then 7 in March 2013, during her neuropsychological examination with Dr. Wahl, he 8 noted that Plaintiff’s “[s]peech was moderately dysarthric but there was minimal 9 stuttering”47 and: 10 Her test scores today suggested a significant decline in verbal functioning, especially concerning abstract reasoning skills, 11 vocabulary, verbal attention and arithmetic. I would guess her current FSIQ represents a decline from previous levels of about 10 points. In 12 addition to her verbal difficulties she also displayed slowed psychomotor speed, which is common in brain-injured patients.48 13

14 Although he opined that she was capable of engaging in appropriate social 15 interaction and managing her own funds, he “suspect[ed] that her persistence, 16 17 18

19 45 AR 276–77. 20 46 AR 940, 935, 933. 21 47 AR 263. 22 48 AR 264–65. 23 1 concentration and attention will be sporadically impaired for some time. Again, it 2 is unknown whether this will improve, and if so to what extent.”49 3 The medical record clearly indicates that Plaintiff initially struggled with 4 abnormal coordination, dizziness, weakness, speech, concentration, and attention 5 due to her brain aneurysm. Then in 2016, about three years after the aneurysm, 6 the medical record begins to indicate normal gait and infrequent speech challenges. 7 Yet, a consultative psychodiagnostics evaluation in August 2017 with Dr. Marks 8 reveals that Plaintiff continued to struggle with attention, focus, and switching 9 from one task to another, even though she could take care of household tasks if 10 given a sufficient amount of time to complete them.50 On this record, the ALJ erred 11 by not discussing Listing 11.04, particularly as to the period following the brain 12 aneurysm.51 This error was caused by the ALJ not separately considering 13 Plaintiff’s functioning in the period immediately following the brain aneurysm from 14 her functioning during the latter part of the alleged disability period. Instead of 15 separately considering these periods, the ALJ used Plaintiff’s improvement during 16 the alleged disability period as a basis to discount the medical opinions and 17 18 19

20 49 AR 265. 21 50 AR 423–27. 22 51 See Smith v. Kijakazi, --- F.4th ----, 2021 WL 4486998 at 4–6 (9th Cir. Oct. 1, 2021). 23 1 Plaintiff’s reported symptoms, thereby impacting the listings’ analysis.52 This error 2 was consequential. 3 The ALJ’s focus on Plaintiff’s comparatively improved condition as of the 4 date last insured permeated his entire listings’ analysis. Therefore, the Court does 5 not address Plaintiff’s remaining listings’ arguments. 6 B. Medical Opinions: Plaintiff establishes consequential error. 7 Plaintiff argues the ALJ erred by failing to fully incorporate Dr. Marks’ and 8 Dr. Flanagan’s opinions into the RFC after finding them persuasive. As discussed 9 below, the ALJ erred as to Dr. Marks’ opinion. 10 1. Standard53 11 An ALJ must consider and evaluate the persuasiveness of all medical 12 opinions or prior administrative medical findings.54 The ALJ need not however 13

14 52 AR 22 (“Although the testing was indicative of cognitive decline shortly after her 15 TIA and aneurysm, the evidence demonstrates improved cognitive functioning over 16 time. Thus, the undersigned finds [Dr. Wahl’s March 2013] neuropsychological 17 report and testing is not representative of her level of functioning throughout the 18 relevant period. Ultimately, the undersigned finds the consultative psychological 19 report from August 2017 . . . to be more persuasive as it is a better reflection of the 20 claimant’s true functioning during the period at issue.”). 21 53 20 C.F.R. § 404.1520c. 22 54 Id. § 404.1520c(a), (b). 23 1 “give any specific evidentiary weight” to a medical opinion.55 The factors for 2 evaluating the persuasiveness of medical opinions and prior administrative 3 medical findings include, but are not limited to, supportability, consistency, 4 relationship with the claimant, and specialization.56 Supportability and consistency 5 are the most important factors, and the ALJ is required to explain how both of 6 these factors were considered:57 7 (1) Supportability. The more relevant the objective medical evidence and supporting explanations presented by a medical source are to 8 support his or her medical opinion(s) or prior administrative medical finding(s), the more persuasive the medical opinions or prior 9 administrative medical finding(s) will be.

10 (2) Consistency. The more consistent a medical opinion(s) or prior administrative medical finding(s) is with the evidence from other 11 medical sources and nonmedical sources in the claim, the more 12 13

14 55 Revisions to Rules, 2017 WL 168819, 82 Fed. Reg. 5844, at 5867-68; see 20 C.F.R. 15 § 404.1520c(a). 16 56 Id. § 404.1520c(c)(1)–(5). When assessing the medical source’s relationship with 17 the claimant, the ALJ is to consider the treatment length, frequency, purpose, and 18 extent, and whether an examination was conducted. Id. The ALJ may also consider 19 whether the medical source has familiarity with the other record evidence or an 20 understanding of the disability program’s policies and evidentiary requirements. 21 Id. § 404.1527(c)(6). 22 57 Id. § 404.1520c(b)(2). 23 1 persuasive the medical opinion(s) or prior administrative medical finding(s) will be.58 2

Typically, the ALJ may, but is not required to, explain how the other factors were 3 considered.59 4 2. Dr. Marks 5 In August 2017, Dr. Marks completed a psychodiagnostics evaluation of 6 Plaintiff and reviewed Dr. Wahl’s 2013 neuropsychological screening.60 Dr. Marks 7 noted that Plaintiff’s speech was slow and hesitant, she had some difficulty finding 8 the words she was trying to use, she was anxious and depressed, her stream of 9 mental activity was organized but slow, she was orientated, her fund of knowledge 10 appeared to be poor, her cognitive abilities were estimated to be in the low average 11 range, she showed fair concentration, persistence, and pace, her short-term, long- 12 term, and working memory were intact, she exhibited abstract verbal reasoning, 13 and her problem solving and judgment appeared to be intact although the 14 15

16 58 Id. § 404.1520c(c)(1)–(2). 17 59 Id. § 404.1520c(b)(2). When two or more medical opinions or prior administrative 18 findings “about the same issue are both equally well-supported . . . and consistent 19 with the record . . . but are not exactly the same,” the ALJ is required to explain 20 how “the other most persuasive factors in paragraphs (c)(3) through (c)(5)” were 21 considered. Id. § 404.1520c(b)(3). 22 60 AR 421–28. 23 1 information provided by her then-husband suggested that in actual life situations 2 Plaintiff’s judgment was poor and her problem solving weak. As for cognitive WMS- 3 IV testing, Dr. Marks found that Plaintiff’s poorest performance was for the 4 Immediate Memory Index where she scored in the low average, as compared to her 5 average scores for the other four Indexes. As compared to others her age, she was 6 in the extremely low range for her Adaptive Behavior Assessment. For the Beck 7 Depression System and the Beck Anxiety Inventory, Plaintiff scored in the 8 moderate range. For Trail Making A, Plaintiff’s results indicated mild to moderate 9 impairment, and for Trail Making B, Plaintiff’s results indicated significant to 10 severe impairment. 11 Dr. Marks diagnosed Plaintiff with generalized anxiety disorder and major 12 depressive disorder—moderate.61 As to work limitations, Dr. Marks wrote, “testing 13 suggest that [Plaintiff] may have some distractibility concerns in a work-related 14 activity” and she “may experience some problems dealing with pressure in a 15 competitive work setting due to her depression and anxiety.”62 Although the test 16 results indicated that Plaintiff may have some difficulty with simple tasks, 17 Dr. Marks opined that Plaintiff would not have difficulty understanding, carrying 18 out, and remembering either complex or one-two step instructions in a work 19 setting. Rather, Dr. Marks found the challenge for Plaintiff was in her ability to 20

21 61 Id. 22 62 AR 427. 23 1 sustain concentration and persist when switching from one task to another or with 2 organizing and planning.63 Dr. Marks opined that Plaintiff’s prognosis was fair to 3 good and that she would benefit from individual psychotherapy to address her 4 depression and anxiety.64 5 The ALJ found Dr. Marks’ opinion persuasive because “it is well supported 6 by the psychodiagnostics interview, mental status exam, and WMS-IV testing” and 7 that Dr. Marks’ opinion “was consistent with the normal mental status 8 examination findings in the counseling records.”65 9 Plaintiff argues the ALJ erred by failing to incorporate Dr. Marks’ 10 persuasive opinion into the RFC, particularly her opinion that Plaintiff would have 11 difficulty with simple tasks and would struggle with sustaining attention and 12 focus. The Commissioner contends the ALJ did incorporate Dr. Marks’ opinion into 13 the RFC because it restricted Plaintiff to “low stress work, defined as no production 14 pace conveyer belt type-work and a predictable work environment. Work that 15 involved no more than occasional interaction with the public, coworkers, and 16 supervisors.”66 17 18

19 63 AR 426–27. 20 64 AR 426. 21 65 AR 23. 22 66 AR 19 23 1 The ALJ rationally incorporated Dr. Marks’ opinion that Plaintiff “may 2 experience some problems dealing with pressure in a competitive work setting due 3 to her depression and anxiety” by limiting her to low stress work. However, the 4 ALJ failed to incorporate Dr. Marks’ opinion that Plaintiff may be distracted at 5 work and therefore would have difficulty sustaining concentration and persisting 6 in a work-related activity at a reasonable pace.67 Contrary to the Commissioner’s 7 assertion that the ALJ incorporated this opined limitation into the RFC by 8 restricting Plaintiff to work that involved no more than occasional interaction with 9 the public, coworkers, and supervisors, this restriction did not resolve the area of 10 concern for which Dr. Marks assessed the concentration and persistence limitation. 11 For instance, whereas Dr. Marks found that Plaintiff could maintain effective 12 social interaction on a consistent and independent basis, his opined concentration 13 and persistence limitations were based on the Trail Making Part B test results, her 14 extremely low Adaptive Behavior Assessment System-3 results, and overall 15 testing, psychodiagnostics interview, and clinical observations.68 Therefore, the 16 RFC limiting Plaintiff to occasional social interaction did not sufficiently 17 incorporate Dr. Marks’ opinion that Plaintiff would have problems concentrating 18 and persisting in a work-related activity at a reasonable pace. 19 20

21 67 AR 427. 22 68 AR 426. 23 1 By not meaningfully explaining how Dr. Marks’ opinion was fully 2 incorporated into the RFC, the ALJ erred. This error was consequential because a 3 significant-to-severe impairment in the ability to sustain concentration and persist 4 when switching from one task to another, or with organizing and planning, may be 5 work preclusive, as the vocational expert testified that a person who is off task due 6 to lapses in concentration, persistence, and pace greater than 10 percent will be 7 precluded from competitive work.69 8 3. Dr. Flanagan 9 In September 2017, Dr. Flanagan reviewed the record.70 She reviewed the 10 medical evidence of record, diagnosed Plaintiff with generalized anxiety and major 11 depression, and opined as to the B Criteria that Plaintiff was mildly limited in her 12 abilities to understand, remember, or apply information; interact with others; and 13 adapt or manage herself; and moderately limited in her ability to concentrate, 14 persist, or maintain pace. As to the mental RFC assessment, Dr. Flanagan opined 15 that Plaintiff was moderately limited in her ability to sustain attention and 16 concentration for extended periods, as she would “experience occasional lapses in 17 attention, attendance, and concentration, persistence, and pace due to mental 18 health symptoms, but not at a level that precludes productive work activity.”71 19

20 69 AR 55–57. 21 70 AR 64–76. 22 71 AR 74. 23 1 The ALJ found Dr. Flanagan’s opinion was persuasive because it was based 2 on a thorough written summary of the longitudinal record up to the date of the 3 assessment, the evidence relied on fully supported her opinion, it was consistent 4 with the longitudinal record, which the ALJ found to include unremarkable mental 5 status findings and minimal mental health treatment, and consistent with 6 Plaintiff’s admitted ability to take care of her personal needs, drive, shop in stores, 7 and manage her own finances.72 8 Plaintiff argues that, when Dr. Flanagan’s medical opinion is considered, 9 along with the testimony of the vocational expert that occasional lapses in 10 attention, concentration, and pace preclude competitive employment, the ALJ 11 erred by not finding Plaintiff unable to sustain work. The ALJ did not err in this 12 regard. Although Dr. Flanagan found that Plaintiff had difficulties sustaining 13 concentration and persistence, Dr. Flanagan opined that Plaintiff could still 14 complete a normal workday and workweek. Contrary to Plaintiff’s argument, there 15 is no evidence that Dr. Flanagan defined “occasional” as meaning occurring up to 16 one-third of the day. In this regard, Plaintiff relies on the vocational expert’s 17 testimony. However, it was Plaintiff’s counsel who defined “occasional” as meaning 18 one-third of the day in the question posed to the vocational expert: 19 20 21

22 72 AR 23. 23 Q Separately, if an individual had occasional, one-third of the day, lapses in attention and concentration, persistence and pace, could such an individual sustain competitive employment? A No. Plaintiffs reliance on SSR 96-9p is also unavailing. That policy defines “occasional” for purposes of exertional limitations, not nonexertional limitations. Even if it did apply or was otherwise persuasive, SSR 96-9p provides a cetling—not a floor—for what qualifies as “occasional” under its provision, stating the term means “from very little up to one-third of the time.”7? Moreover, there is no evidence that when writing his report Dr. Flanagan used the term “occasional” consistent with SSR 96- 9p or counsel’s assigned meaning in his question. Therefore, this specific challenge by Plaintiff to the ALJ’s treatment of Dr. Flanagan’s opinion is denied. C. Borderline Age: Plaintiff fails to establish error. Plaintiff also argues the ALJ failed at step five to explain how Plaintiffs borderline age was considered. Here, the ALJ mentioned that Plaintiff was 54 years old—an individual closely approaching advanced age—on the date last insured and then listed the evidentiary considerations he relied on as to why he did

73 SSR 96-6p at *3, *8.

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1 not treat Plaintiff as a person of advanced age. The ALJ complied with his legal 2 requirements as to considering Plaintiff’s borderline age.74 3 D. Other Steps: The ALJ must reevaluate. 4 As discussed above, the ALJ’s focus on Plaintiff’s general capacity—both as 5 to her exertional and nonexertional abilities—over the entire period permeated the 6 ALJ’s analysis. This not only consequentially affected the ALJ’s failure to discuss 7 Listing 11.04 but also the ALJ’s analysis of Plaintiff’s symptom reports. Therefore, 8 Plaintiff’s other challenges to the ALJ’s decision are not addressed, other than to 9 mention that if the ALJ again discounts Plaintiff’s reported symptoms, the ALJ 10 must ensure he provides specific, clear, and convincing reasons for discounting 11 each of Plaintiff’s symptoms.75 “[P]roviding a summary of medical evidence . . . is 12 not the same as providing clear and convincing reasons for finding the claimant’s 13 symptom testimony not credible.”76 14 Here, although the ALJ supplemented his initial high-level reasons for 15 discounting Plaintiff’s symptom reports with a few specific reasons, the only 16 specific reason for discounting Plaintiff’s reported pain (low back, neck, and leg), 17 headaches, and fatigue was that Plaintiff engaged in “high functioning activities of 18 19

20 74 See Lockwood v. Comm’r Soc. Sec. Admin, 616 F.3d 1068, 1071 (9th Cir. 2010). 21 75 Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1995). 22 76 Lambert v. Saul, 980 F.3d 1266, 1278 (9th Cir. 2020) (cleaned up). 23 1 daily living.”77 Moreover, as previously mentioned, the ALJ’s failure to separately 2 consider the period of time following the brain aneurysm from the latter period 3 spanned by the medical records, consequentially impacted the ALJ’s assessment of 4 Plaintiff’s symptom reports.78 5 Finally, as to Plaintiff’s activities, the ALJ described them as the ability to 6 “take care of personal needs such as showering and dressing,” having a driver’s 7 license, driving, taking care of “household tasks such as sweeping, vacuuming, 8 mopping, or doing laundry” although it took a significant amount of time to 9 complete these household tasks, and shopping in stores if the store was not too 10 busy.79 The ALJ found these activities indicated that Plaintiff retained greater 11 physical and mental functioning than she reported. These activities, however, can 12 be done in less than two-hour intervals or with breaks. 80 Accordingly, on remand, 13 if the ALJ relies on Plaintiff’s activities of daily living to discount her reported 14 symptoms, the ALJ is to more clearly explain how these activities are inconsistent 15 with her reported pain, headaches, and fatigue, or are consistent with the ability to 16 sustain work. 17 18

19 77 AR 22. 20 78 See Smith, 2021 WL 4486998 at 4–5. 21 79 AR 22. 22 80 See Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001). 23 1 E. Remand for further proceedings. 2 Plaintiff submits remand for payment of benefits is warranted. 3 If the three-part credit-as-true analysis is satisfied, the decision whether to 4 remand a case for additional evidence, or simply to award benefits, is within the 5 Court’s discretion.81 Remand for further proceedings is the usual course, absent 6 clear evidence from the record that a claimant is entitled to benefits and no further 7 proceedings will be useful.82 8 Here, the ALJ erred by failing to provide legally sufficient reasons for failing 9 to incorporate Dr. Marks’ opinion that Plaintiff was significantly limited in her 10 ability to persist, concentrate, and maintain attention. However, neither Dr. Marks 11 nor the ALJ translated these limitations into specific amounts of time that Plaintiff 12 would be off-task or absent from work. Therefore, even if this opinion is credited as 13 true and considered along with the vocational expert’s testimony that being off task 14 more than 10 percent of the time precludes competitive employment,83 it is not 15 clear that the ALJ would be required to find Plaintiff disabled. Therefore, further 16

17 81 Garrison v. Coleman, 759 F.3d 995, 1020 (9th Cir. 2014); Sprague v. Bowen, 812 18 F.2d 1226, 1232 (9th Cir. 1987). 19 82 Leon v. Berryhill, 880 F.3d 1041, 1045 (9th Cir. 2017); Benecke v. Barnhart, 379 20 F.3d 587, 595 (9th Cir. 2004) (“[T]he proper course, except in rare circumstances, is 21 to remand to the agency for additional investigation or explanation.”). 22 83 AR 57. 23 1 proceedings are necessary so that the ALJ can translate Dr. Marks’ opined 2 limitations into specific amounts of time off task or absent from work. Also on 3 remand, based on Plaintiff’s more severe symptoms following her brain aneurysm, 4 the ALJ is to consider on remand whether, at a minimum, a closed period of 5 disability is to be awarded.84 6 F. Conclusion 7 Accordingly, IT IS HEREBY ORDERED: 8 1. The case caption is to be AMENDED consistent with footnote 2. 9 2. Plaintiff’s Motion for Summary Judgment, ECF No. 18, is 10 GRANTED. 11 3. The Commissioner’s Motion for Summary Judgment, ECF No. 19, is 12 DENIED. 13 4. The Clerk’s Office shall enter JUDGMENT in favor of Plaintiff 14 RESERVING and REMANDING the matter to the Commissioner of 15

16 84 Consistent with Dr. Wahl’s and Dr. Marks’ opinions, a clinician in October 2017 17 noted that Plaintiff’s thought process was slow, she struggled to remember details 18 at times, and she rambled at times. AR 883. Then by 2018 (after the date last 19 insured), Plaintiff’s psychotherapy, counseling, and medical management notes 20 reflect that although she had family and financial stressors, her speech, attention, 21 focus, insight, and judgment were appropriate to fair. AR 500–06, 517–75, 599, 22 603–05, 609–15, 622–52, 879–90. But see AR 588.84 23 Social Security for further proceedings pursuant to sentence four of 42 U.S.C. § 405(g). 5. The case shall be CLOSED. IT ISSO ORDERED. The Clerk’s Office is directed to file this Order and provide copies to all counsel. DATED this 2"! day of November 2021. Bud I feew. EDWARD F.SHEA Senior United States District Judge

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