Young v. Saul

• Court: District Court, N.D. California
• Decided: June 29, 2020
• Docket: 4:19-cv-01965
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA

7 MARCELL YOUNG, Case No. 19-cv-01965-PJH 8 Plaintiff,

9 v. ORDER GRANTING PLAINTIFF’S MOTION AND REMANDING FOR 10 ANDREW SAUL, FURTHER PROCEEDINGS 11 Defendant. Re: Dkt. Nos. 16, 17 12

13 14 Pursuant to 42 U.S.C. § 405(g), plaintiff Marcell Young (“plaintiff”) seeks judicial 15 review of the Commissioner of Social Security’s (“Commissioner” or “defendant”) final 16 decision denying his claims for disability benefits and Supplemental Security Income 17 (“SSI”). This action is before the court on the parties’ motions for summary judgment. 18 Having considered the parties’ motions, the pertinent legal authorities, and having 19 reviewed the administrative record, the court GRANTS plaintiff’s motion and hereby 20 REMANDS this action to defendant’s assigned administrative law judge for further 21 proceedings in accordance with this order. 22 BACKGROUND 23 A. Procedural History 24 On May 18, 2015, plaintiff filed two applications—one for Title II disability benefits 25 and one for Title XVI SSI benefits—both alleging disability as of May 14, 2015. 26 Administrative Record (“AR”) 235–47, Dkt. 13. Defendant denied plaintiff’s Title II and 27 Title XVI claims at the initial level on October 18, 2015 and October 20, 2015 respectively 1 132–33. Following a timely request for a hearing, Administrative Law Judge Arthur 2 Zeidman (the “ALJ”) held a hearing on plaintiff’s claims on December 13, 2017. Id. at 17. 3 At the hearing plaintiff and a vocational expert, Susan Moranda, testified. Id. at 67–69. 4 On April 2, 2018, the ALJ issued his decision on plaintiff’s application and 5 concluded that plaintiff was not disabled within the meaning of the applicable Social 6 Security laws and regulations. Id. at 17–30. Plaintiff filed a request for review of the 7 decision with the Social Security Appeals Council, which denied review on February 13, 8 2019. Id. at 233–34. 9 B. Summary of Plaintiff’s Medical and Employment History 10 Plaintiff is a 27-year-old resident of Alameda County. As a child, plaintiff was 11 diagnosed with borderline intellectual functioning and received SSI due to his impaired 12 intellectual functioning. Id. at 283. Plaintiff was enrolled in special education classes 13 throughout his schooling years as his borderline intellectual functioning manifested in low 14 basic reading ability, auditory processing deficiencies, and frequent truancy. Id. at 708. 15 In 2009, when he was 15 years old, plaintiff was involuntarily committed to inpatient 16 mental health treatment at Mills-Peninsula Health Services because he was threatening 17 family members and punched a hole in the wall. Id. at 924. Plaintiff was also twice 18 arrested and placed in the juvenile justice system. During that time, he graduated high 19 school and received his diploma from a residential facility in Nevada in March 2011. Id. 20 at 326. In November 2011, plaintiff (then 18 years old) was seen by Dr. Cecilia Hardey, 21 Ph.D. for a re-evaluation of his SSI benefits. Dr. Hardey administered the Wechsler Adult 22 Intelligence Scale–IV (“WAIS–IV”) test resulting in a full scale IQ of 71. Id. at 757. 23 Plaintiff’s scores generally placed him in the borderline range of intellectual functioning, 24 which Dr. Hardey diagnosed plaintiff as having. Id. at 757. However, plaintiff’s Social 25 Security Administration (“SSA”) disability examiner assessed that plaintiff no longer was 26 disabled. Id. at 81, 774–75. 27 From 2011 to 2012, plaintiff worked for brief periods of time in various positions 1 found longer term employment with the U.S. Postal Service as an assistant mail handler 2 from December 2012 to January 1, 2015. Id. at 611, 619, 623. According to plaintiff’s 3 mother, during this period in time, plaintiff was able to live on his own, manage his own 4 money, and had a girlfriend. Id. at 636. 5 Plaintiff states that beginning in early 2015 he began experiencing auditory 6 hallucinations and paranoia causing him to leave his apartment and end his employment 7 with the postal service. Id. at 891–901, 635–39. Plaintiff’s mother discovered plaintiff to 8 be homeless and brought him to the Sausal Creek Outpatient Stabilization Clinic (“Sausal 9 Creek”) for treatment. Id. at 891–901, 635–39. At his intake on May 15, 2015, plaintiff 10 was diagnosed with schizophrenia and prescribed Zyprexa, a drug used to treat mental 11 disorders. Id. at 891, 895. Plaintiff continued to seek treatment at Sausal Creek where 12 he was seen by various providers. Id. at 891–901. Sausal Creek providers assessed 13 plaintiff’s global assessment function (“GAF”) scores1 to be 49 (May 26, 2015 by Dr. Paul 14 Nichfarm, M.D.), 51 (October 9, 2015),2 and 55 (November 17, 2015 by Dr. James 15 Reichmuth, M.D.). Id. at 904, 909, 914. 16 In September 2015, plaintiff was evaluated by Dr. Shephali Gupta, Psy.D. on a 17 referral from the SSA. She administered the WAIS-IV test and found plaintiff’s full scale 18 IQ to be 81. Id. at 806. Dr. Gupta diagnosed plaintiff with psychotic disorder (not 19 specified), assessed a GAF of 60, and found mild or mild-to-moderate work limitations. 20 Id. at 808. On October 8, 2015, plaintiff visited the Highland Wellness Clinic and was 21 seen by Dr. Andrew Lash, M.D., who diagnosed plaintiff with psychosis and provided 22 plaintiff with a Zyprexa refill script. Id. at 850–55. Dr. Lash noted that plaintiff said he 23 had “[n]o voices, no visual hallucinations” and he “[s]leeps well.” Id. at 850. On October 24 1 “A GAF score is a rough estimate of an individual’s psychological, social, and 25 occupational functioning used to reflect the individual’s need for treatment. . . . According to the [Diagnostic and Statistical Manual of Mental Disorders, 4th Edition (“DSM–IV”)], a 26 GAF score between 41 and 50 describes ‘serious symptoms’ or ‘any serious impairment in social, occupational, or school functioning.’ A GAF score between 51 to 60 describes 27 ‘moderate symptoms’ or any moderate difficulty in social, occupational, or school 1 18, 2015, the SSA referred plaintiff’s case to Dr. Paul Klein, Psy.D., who evaluated 2 plaintiff’s medical record, including Dr. Gupta’s medical opinion, and opined that plaintiff 3 was mildly impaired in some work-related abilities. Id. at 87. The same month, plaintiff 4 was arrested for vandalism and received a mental status health examination at Santa 5 Rita Correctional Facility on October 29, 2015. The evaluation by Leonicia Castro, MFT 6 concluded that plaintiff appeared “in the early stages of a psychotic break” and had “poor 7 insight and judgment, poor understanding of his mental illness.” Id. at 888. 8 From November 2015 until February 2016, plaintiff received treatment at Bay Area 9 Community Services (“BACS”), including medication and case management and therapy 10 with BACS. Id. at 810–918, 974–1047. BACS’s non-physician clinicians noted various 11 degrees of severity of plaintiff’s condition. For example, one unlicensed worker noted 12 that plaintiff was in a “good” mood and “engaged well” with her. Id. at 984. Yet, in 13 December 2015, plaintiff’s Zyprexa prescription was increased from 5mg to 7.5mg after 14 plaintiff reported continuing auditory hallucinations. Id. at 978, 1002. In February 2016, 15 Dr. Fred Phillips, M.D., noted that plaintiff “has problems with concentration due to 16 aud[itory] hallucinations. Hallucinations are persecutory but not presently bothersome.” 17 Id. at 979. 18 BACS referred plaintiff to the Felton Institute’s Prevention and Recovery in Early 19 Psychosis (“PREP”) program in February 2016. During his time at PREP, three 20 successive therapists managed plaintiff’s care: Christina Shinn, MFT, from April 2016 21 until approximately late June or mid-July 2016 (id. at 1335–36, 1288); Louije Kim, MFT, 22 from July 2016 until late March or early April 2017 (id. at 1252, 1366, 1390–91); and 23 Teresa Shepard, LMFT through the remainder of 2017. Id. at 1390–91, 1433–34. Each 24 of plaintiff’s PREP therapists (Shinn, Kim, and Shepard) met with plaintiff, either in person 25 or by phone, on a weekly basis. See generally id. at 1149–445 (encounter notes 26 produced by PREP) During plaintiff’s entire duration at PREP, K. Lu Gilligan, N.P., a 27 psychiatric nurse practitioner, met with plaintiff on a bi-weekly or monthly basis to 1 1349–50. 2 In May 2016, a psychiatrist hired by the SSA, Dr. Norman Zukowsky, Ph.D., 3 conducted a reconsideration of Dr. Klein’s opinion. He examined plaintiff’s medical 4 record, including Dr. Gupta’s opinion, and determined that plaintiff had moderate 5 limitations in ability to maintain attention and concentration for extended periods. He 6 opined that plaintiff could “make basic decisions independently, as well as avoid common 7 hazards” and that plaintiff “can adapt adequately to typical workplace stresses and 8 changes.” Id. at 114. 9 Plaintiff’s intake assessment with PREP did not occur until June 16, 2016. At the 10 intake, plaintiff’s mother related to Shinn that plaintiff still talked to himself, isolated 11 himself, and rejected family interaction. Id. at 1151. Shinn also noted that plaintiff had 12 “punched his brother without provocation several months ago.” Id. at 1152. Shinn 13 determined that plaintiff was eligible for PREP services and diagnosed him with 14 schizophrenia, paranoid type. Id. at 1154. Plaintiff had several encounters with his 15 PREP therapist as well as structured group therapists around this time and, on June 28, 16 2016, Shinn again assessed plaintiff as having schizophrenia and an unspecified 17 intellectual disability.3 Id. at 1404. She also assigned plaintiff a GAF of 45. Id. at 1405. 18 On August 19, 2016, Kim reported that plaintiff participated in a therapy session 19 but “appeared bored at points, evidenced by wandering gaze and speaking minimally 20 when prompted.” Id. at 1366. He “appeared unaffected by praise and encouragement; 21 he neither smiled nor verbally responded to praise, though he would nod in agreement 22 occasionally.” Id. On September 12th, Kim noted that plaintiff “was wide-eyed and 23 staring into space. He was internally preoccupied and endorsed hearing multiple voices 24 throughout session.” Id. at 1363. Plaintiff was “undertalkative, replied to prompts using 25 single words or sentences. Affect was blunted.” Id. Plaintiff reported that “his voices 26 3 The assessment diagnosed an unspecified “mental retardation.” The court uses the 27 term “intellectual disability,” which is the current medical term used to describe the same 1 were at a ‘7’ out of 10 in severity and that he would like to go to the hospital if they reach 2 a ‘10.’” Id. That same day, Gilligan reported that she received a call from Casa staff (see 3 discussion of Casa below), “who reported [plaintiff] was symptomatic over the weekend, 4 and was paranoid and required staff accompany him at night.” Id. at 1362. Plaintiff 5 “reported an increase in hallucinosis and paranoia, stating that multiple voices were 6 intrusive and that he had grown fearful over the past week.” Id. Gilligan also increased 7 plaintiff’s Zyprexa dosage and started him on Risperdal, a different antipsychotic 8 medication. Id. 9 On October 10th, Kim reported that plaintiff “was subdued, dysphoric, and 10 guarded. His grooming and hygiene were at baseline. [Plaintiff’s] eye-contact was 11 downcast, poor. He was undertalkative, though more forthcoming than previous 12 presentations.” Id. at 1357. Kim observed similar behavior two days later (id. at 1356) 13 and on October 17th, Gilligan reported that plaintiff stated “that multiple voices were still 14 present, and then asked for an increase in Risperdal.” Id. at 1354. Gilligan “made sure 15 staff understood the severity [plaintiff’s symptoms].” Id. However, plaintiff appeared to 16 improve because in December 2016, Gilligan noted that plaintiff “reported that the 17 multiple voices and the paranoid ideation were in remission with the increase in 18 Risperdal.” Id. at 1339. 19 By early 2017, plaintiff’s providers recorded some positive encounters. For 20 example, on March 31, 2017, Gilligan and one of plaintiff’s other providers “agreed 21 [plaintiff] was doing exceptionally well, as he is now working full-time again at [the] Post 22 Office. Also, he’s still med-compliant.” Id. at 1392. Shepard also noted some 23 improvement, for example, on May 12, 2017, she recorded that plaintiff “was upbeat 24 during this meeting.” Id. at 1387. Then, on June 16, 2017, Shepard reported that 25 plaintiff’s brother was killed by a gunshot and plaintiff had been laid off at the Postal 26 Service. Id. at 1386. On June 26th, she reported that plaintiff’s “mood was ‘fine’ and 27 denied having hallucinations.” Id. at 1385. 1 that plaintiff “has periodically reported increase in depressive and psychotic symptoms 2 (most recently in March 2017) which have been controlled by medication.” Id. at 1426. 3 Plaintiff continued to receive mixed reports. For example, on September 15, 2017, a 4 PREP group therapist noted that plaintiff was not sleeping well and continued to struggle 5 with depression. Id. at 1437. On October 4, 2017, Shepard reported that plaintiff denied 6 symptoms of psychosis and sleep disturbance, though she also noted that plaintiff 7 “reported a 2-week period of increase depression and intrusive thoughts around death of 8 [his] brother.” Id. at 1434. 9 At the same time as his spring 2016 referral to PREP, plaintiff was homeless. In 10 June 2016, his PREP treatment team found him housing at Casa de la Vida (“Casa”), a 11 living facility with case management, group therapy, and skills workshops. Id. at 1318, 12 1119–48. On July 23, 2016, Shepard—using a check-the-box assessment form and co- 13 signed by Dr. Amanda Beth Elder, Psy.D.—assessed plaintiff as having severe functional 14 impairments in activities of daily living, unable to independently meet his needs for food 15 and shelter, and experiencing severe episodes of decompensation and increase of 16 symptoms. Id. at 1131. Shepard assessed that plaintiff met two criteria for Casa 17 residency: “significant impairment in an important area of life” and “probability of 18 significant deterioration in an important area of functioning.” Id. She noted that plaintiff’s 19 current GAF score was 45, which was determined on June 15, 2016 by a PREP 20 therapist. Id. at 1132. 21 Plaintiff failed to pay his rent at Casa in October 2016 resulting in him moving into 22 a different living facility, Turning Point. Id. at 1352. On October 31, 2016, Dr. Elder and 23 Shepard issued a discharge summary for plaintiff in which they opined that plaintiff 24 “adhered to medications, adjusted to a couple medication changes with his prescriber, 25 and stabilized his mental health.” Id. at 1119. He also “often engaged in pro-social 26 activities, playing basketball and walking in the community with peers.” Id. at 1119. They 27 diagnosed plaintiff with schizophrenia and assessed his GAF as 45. Id. at 1120. 1 employment opportunities. Id. at 264–65. He worked at Save-Mart in April 2016, for two 2 weeks until he was terminated for job abandonment. In May 2016, he was hired by Wal- 3 Mart but then fired within two weeks for excessive absences. The most notable 4 employment period was from November 21, 2016 to January 6, 2017 and again from 5 February 13, 2017 to June 2017 at the U.S. Postal Service. It appears that both 6 employment periods ended because the position with the Postal Service was temporary, 7 seasonal work. Id. at 1378, 1397–98. In October 2017, plaintiff started a vocational skills 8 program called CEO Works. As part of this program, plaintiff worked about three days a 9 week collecting trash for which he earned approximately $76 per day. Id. at 52–53. 10 STATUTORY AND REGULATORY FRAMEWORK 11 A. Five-Step Sequential Analysis 12 The Social Security Act provides for the payment of disability insurance benefits 13 and supplemental security income to people who suffer from a qualifying physical or 14 mental disability. 42 U.S.C. §§ 423(a)(1), 1382. To evaluate whether a claimant is 15 disabled within the meaning of the Social Security Act, the ALJ is required to use a five- 16 step sequential analysis. 20 C.F.R. § 416.920(a).4 The ALJ may terminate the analysis 17 at any step if he or she determines that the claimant is or is not disabled. Pitzer v. 18 Sullivan, 908 F.2d 502, 504 (9th Cir. 1990). 19 At step one, the ALJ determines whether the claimant has engaged in any 20 “substantial gainful activity,” which would automatically preclude the claimant receiving 21 disability benefits. 20 C.F.R. § 416.920(b). If the claimant has not engaged in substantial 22

23 4 A claimant who is disabled and has contributed to the Social Security program may be eligible for disability insurance benefits under 42 U.S.C. § 401 et seq. and the 24 corresponding regulations located at title 20 Code of Federal Regulations Part 404—a Title II claim. A claimant who is disabled with limited financial resources may be eligible 25 for supplemental security income under 42 U.S.C. § 1382 et seq. and the corresponding regulations located at title 20 Code of Federal Regulations Part 416—a Title XVI claim. 26 The regulations located at 20 C.F.R. § 416.900 et seq. and 20 C.F.R. § 404.1500 et seq. are essentially identical and the two trailing digits in one part correspond to the trailing 27 digits in the other part. Plaintiff has filed both a Title II and Title XVI and thus both 1 gainful activity for a continuous 12-month period, at step two, the ALJ considers whether 2 the claimant suffers from a severe impairment which “significantly limits [his] physical or 3 mental ability to do basic work activities.” 20 C.F.R. § 416.920(c). If the claimant does 4 not suffer from a severe impairment, he is not disabled. If, however, he does have a 5 severe impairment, the ALJ proceeds to step three. 6 At step three, the ALJ is required to compare the claimant’s impairment(s) to a 7 listing of impairments provided in an appendix to the regulations. 20 C.F.R 8 § 416.920(a)(4)(iii), (d). If the claimant’s impairment or combination of impairments 9 meets or equals the severity of any medical condition contained in the listing, the 10 claimant is presumed disabled and should be awarded benefits. 20 C.F.R. § 416.920(d). 11 If not, the ALJ goes to step four to consider whether the claimant has sufficient 12 residual functional capacity (“RFC”) to perform his past work despite the limitations 13 caused by the impairments. 20 C.F.R. § 416.920(e)–(f). An individual’s RFC is what he 14 can still do in a workplace setting despite his physical and mental limitations. 20 C.F.R. 15 § 416.945. In determining the RFC, the ALJ must consider all of the claimant’s 16 impairments, including those that are not severe, taking into account all relevant medical 17 and other evidence. 20 C.F.R. §§ 416.920(e), 416.945. If the claimant cannot perform 18 his past work, defendant is required to determine, at step five, whether the claimant can 19 perform other work that exists in significant numbers in the national economy, taking into 20 consideration the claimant’s RFC, age, education, and work experience. 20 C.F.R. 21 § 416.920(g). 22 At steps one through four, the claimant has the burden to demonstrate a severe 23 impairment and an inability to engage in his previous occupation. Andrews v. Shalala, 53 24 F.3d 1035, 1040 (9th Cir. 1995). If the analysis proceeds at step five, the burden shifts to 25 the Commissioner to demonstrate that the claimant can perform other work. Id. The 26 Commissioner must “identify specific jobs existing in substantial numbers in the national 27 economy that the claimant can perform despite [his] identified limitations. Meanel v. 1 1432 (9th Cir. 1995)). If the Commissioner is able to identify those specific jobs, then the 2 claimant is not disabled; otherwise, the claimant is disabled. 20 C.F.R. § 404.920(g)(1). 3 B. Supplemental Regulations for Determining Mental Disabilities 4 In addition to the general five-step evaluation process, the Commissioner has 5 promulgated regulations governing the evaluation of mental impairments applicable at 6 steps two and three of the five-step process. See 20 C.F.R. § 404.920a; see also 7 Achakzai v. Berryhill, No. 18-CV-07005-JCS, 2020 WL 1450554, at *11 (N.D. Cal. Mar. 8 25, 2020) (citing Clayton v. Astrue, No. CIV 09-2282-EFB, 2011 WL 997144, at *3 (E.D. 9 Cal. Mar. 17, 2011); and Maier v. Comm’r of Soc. Sec. Admin., 154 F.3d 913 (9th Cir. 10 1998) (per curiam)). First, the ALJ must determine whether the claimant has a medically 11 determinable mental impairment. 20 C.F.R. § 404.920a(b)(1). Second, when the 12 claimant establishes these medical findings, the ALJ “must assess the degree of 13 functional limitation resulting from the claimant’s mental impairment with respect to four 14 broad functional areas: (1) understanding, remembering, or applying information; (2) 15 interacting with others; (3) concentration, persistence, or maintaining pace; and (4) 16 adapting and managing oneself.” Achakzai, 2020 WL 1450554, at *11 (citing 20 C.F.R. 17 § 404.1520a(b)(2), (c)). Third, the ALJ then determines whether the claimant has a 18 severe mental impairment. 20 C.F.R. § 404.920a(d)(2). “Fourth, when a mental 19 impairment is found to be severe, the ALJ must determine if it meets or equals a listing in 20 20 C.F.R. Part 404, Subpart P, Appendix 1.” Clayton, 2011 WL 997144, at *3 (citing 20 21 C.F.R. §§ 404.1520a(d)(2), 416.920a(d)(2)). 22 Finally, if a listing is not met, the ALJ then assesses the claimant’s RFC, and the 23 ALJ’s decision “must incorporate the pertinent findings and conclusions” regarding the 24 claimant’s mental impairment, including a specific finding as to the degree of limitation as 25 to each of the functional areas described in sections 404.1520a(c)(3) and 416.920a(c) 26 (3). Id. (citing 20 C.F.R. §§ 404.1520a(d)(3), (e)(2), 416.920a(d)(3), (e)(2)). This is a 27 “mental RFC assessment [that is] used at steps 4 and 5 of the sequential process [and] 1 broad categories found in paragraphs B and C of the adult mental disorders listings in 2 12.00 of the Listing of Impairments . . . .” Social Security Ruling (“SSR”) 96-8p, 1996 WL 3 374184, at *4. 4 THE ALJ’S FINDINGS 5 On April 2, 2018, the ALJ issued his decision. He determined that plaintiff was not 6 disabled, finding that he had the residual functional capacity to perform simple, unskilled 7 work, and that there were a significant number of jobs in the national economy that 8 plaintiff could perform. AR 29–30. 9 A. The ALJ’s Sequential Analysis 10 At step one, the ALJ concluded that plaintiff had not engaged in substantial gainful 11 activity from May 14, 2015 to November 1, 2016. Id. at 20. Then, from November 1, 206 12 through July 2017, the ALJ found that plaintiff had engaged in substantial gainful activity 13 because the income plaintiff received while working at the U.S. Postal Service exceeded 14 the regulatory baseline amount for substantial gainful activity. Id. Considering these two 15 separate periods, the ALJ found there was a continuous 12-month period of no 16 substantial gainful activity from May 2015 to November 1, 2016, but no continuous 12- 17 month period after November 2016 through the date of decision. 18 At step two, the ALJ concluded that plaintiff has two medically determinable 19 impairments, schizophrenia and alcohol abuse. Id. The ALJ did not rate plaintiff’s 20 hypertension as a severe impairment because the evidence did not demonstrate the 21 claimed hypertension was more than a slight abnormality that caused more than minimal 22 limitation on plaintiff’s ability to perform basic work activities. Id. at 21. 23 At step three, the ALJ concluded that plaintiff’s impairments did not meet the 24 criteria for demonstrating the requisite severity of the impairments listed at title 20 C.F.R. 25 Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 416.920(d), 416.925, and 416.926) (the 26 “Listings”). Id. at 21–26. The ALJ broadly determined the medical evidence of record to 27 be inconsistent with disability and weighed the medical evidence as follows. 1 Creek GAF score of 30 because it was inconsistent with plaintiff’s denial of audio and 2 visual hallucinations. Id. at 21. The ALJ rejected a second May 2015 Sausal Creek GAF 3 score of 49 because plaintiff’s drug screen tested positive for THC, methamphetamine, 4 and crack cocaine and the GAF score “appears to reflect the acute effects of claimant’s 5 intoxication more than any serious mental impairment.” Id. The ALJ found three opinions 6 to be persuasive: Dr. Gupta’s September 2015 medical opinion, in which she assigned a 7 GAF score of 60, consistent with mild to moderate impairment (id. at 21–22); an 8 emergency room mental examination by Dr. Lash where plaintiff denied hearing voices or 9 having visual hallucinations; and Dr. Klein’s opinion. Id. at 22. 10 In the period from November 10, 2015 to February 8, 2016, the ALJ rejected a 11 November 2015 GAF score of 45 by Shaun Orrante, MFT because Orrante was not an 12 acceptable medical source and the score was inconsistent with Orrante’s unremarkable 13 contemporaneous observations. Id. at 23. The ALJ noted that, from November 2015 14 through plaintiff’s February 8, 2016 discharge from BACS, plaintiff reported continuous 15 improvement on Zyprexa. To illustrate the improvement, the ALJ cited treatment notes 16 that plaintiff was able to complete job applications, satisfy some probation requirements, 17 and cope by being around friends. Id. 18 In the period from February 8, 2016 to October 12, 2017, the ALJ noted three 19 emergency room visits during which physicians conducted mental status examinations of 20 plaintiff that were generally normal. Id. The ALJ rejected a GAF score of 45 by Shepard 21 because she was not an acceptable medical source and the score was inconsistent with 22 her unremarkable mental status examination. Id. The ALJ determined that plaintiff 23 showed a general improvement on medication from a baseline of “less mood swings and 24 no voices” that allowed plaintiff to return to substantial gainful activity in November 2016. 25 Id. at 24. In support of this conclusion, the ALJ cited plaintiff’s return to substantial 26 gainful employment in November 2016 and a March 2017 GAF score of 58. Id. The ALJ 27 also cited Casa’s treatment records showing that plaintiff enjoyed playing basketball and 1 The ALJ then analyzed whether plaintiff’s mental impairments satisfied Listing 2 12.03. Id. at 25. When doing so, the ALJ noted that he considered “paragraph B” 3 criteria, which mandates finding a qualifying mental impairment if a claimant’s mental 4 impairments causes either one “extreme” mental limitation or two “marked” limitations in 5 any of the three following areas: (1) understanding, remembering, or applying 6 information; (2) interacting with others; (3) concentrating, persisting, or maintain pace; 7 and (4) adapting or managing oneself. Id. at 26. The ALJ determined that plaintiff did not 8 satisfy paragraph B. The ALJ also found that plaintiff did not meet “paragraph C” criteria 9 because claimant does not have a

10 “serious and persistent” mental disorder over a period of two years with evidence of both: medical treatment, mental health 11 therapy, psychosocial support(s), or a highly structured settling(s) that is ongoing and diminishes the symptoms and 12 signs of your mental disorder; and marginal adjustment, that is minimal capacity to adapt to changes in the environment or to 13 demands that are not already part of one’s daily life. 14 Id. 15 Having found that plaintiff did not qualify as disabled under step three, the ALJ 16 then determined plaintiff’s residual functional capacity. To do so, the ALJ applied the 17 following two-step process: Whether there is an underlying medically determinable 18 physical or mental impairment that could reasonably be expected to produce plaintiff’s 19 pain or other symptoms; and once an underlying physical or mental impairment that could 20 reasonably be expected to produce claimant’s pain or other symptoms has been shown, 21 the ALJ was required to evaluate the intensity, persistence, and limiting effects of the 22 plaintiff’s symptoms to determine the extent to which such effects limit plaintiff’s functions. 23 Id. at 26–27. 24 When applying these sub-steps, the ALJ summarized plaintiff’s hearing testimony 25 concerning his symptoms as follows. Plaintiff stopped working for the U.S. Postal 26 Service because of his mental impairments and plaintiff “vaguely testified he cannot work 27 because of his symptoms.” Plaintiff stated that “in an average day, he watches television, 1 at 27. Plaintiff “vaguely testified he sometimes feels his treatment does not help to 2 improve his symptoms.” Plaintiff denied using cocaine, methamphetamines, and 3 marijuana and that he “slowed down drinking” to two to three cans of alcohol a day. He 4 also stated that he has “bad days” where he hears voices and is paranoid most days. Id. 5 With respect to the first sub-step, the ALJ concluded that plaintiff’s “medically 6 determinable impairments could reasonably be expected to cause the alleged 7 symptoms.” Id. at 28. However, with respect to the second sub-step, the ALJ, concluded 8 that plaintiff’s “statements concerning the intensity, persistence and limiting effects of 9 these symptoms are not entirely consistent with the medical evidence and other evidence 10 in the record.” Id. The ALJ determined that plaintiff was “limited to simple, unskilled work 11 defined by regulation and ruling as work that needs little to no judgment to perform simple 12 duties.” Id. 13 At step four, the ALJ determined that plaintiff is unable to perform relevant past 14 work as a mail carrier. Id. at 28–29. At step five, based on the Medical-Vocational 15 Guidelines, the ALJ determined that jobs exist in significant numbers in the national 16 economy that plaintiff could perform given his age, education, work experience, and 17 residual functional capacity. Id. at 29–30. Accordingly, the ALJ concluded that plaintiff 18 has not been disabled from May 14, 2015 through the date of his decision. Id. at 30. 19 B. The ALJ’s Weighing of the Medical Opinions and Testimony 20 The ALJ considered and weighed the testimony and opinions of several 21 professionals. Below, the court details such professionals, their respective opinions, and 22 the weight assigned to each by the ALJ. 23 1. Consultative Examiner—Dr. Shephali Gupta, Psy.D. 24 On September 1, 2015, Dr. Gupta performed a psychological evaluation on 25 plaintiff. In her report, Dr. Gupta catalogs plaintiff’s chief complaints (“[a]nger problems, 26 bad comprehension, schizophrenia and whatever comes with that”), her general 27 observations, history concerning plaintiff’s psychiatric, medical, psychological, 1 psychological test results. Id. at 804–07. 2 With respect to plaintiff’s test results, Dr. Gupta notes that she performed various 3 tests including a WAIS-IV exam, Wechsler Memory Scale exam (“WMS-IV”), and Trails A 4 and B exam. Id. at 806–07. Dr. Gupta recorded “average” to “low average” results with 5 respect to the various categories of plaintiff’s WMS-IV test. Id. at 806. Dr. Gupta 6 recorded “average” to “low average” results with respect to plaintiff’s WAIS-IV test, 7 including a full scale IQ composite score of 81, which was low average. Id. Dr. Gupta 8 recorded plaintiff’s Trail A and B tests as “within normal rate.” Id. Dr. Gupta conducted a 9 mental status examination noting that plaintiff’s attention was “adequate.” Id. at 805. Dr. 10 Gupta also noted that plaintiff’s “memory was grossly intact,” his insight and judgment 11 “appeared to be adequate,” his mood was “average,” his affect was “blunted,” and his 12 thought process was “linear and logical.” Id. 13 At the end of her five-page report, she concludes the following concerning 14 plaintiff’s functional capacity: 15 • Plaintiff had no impairment with respect to his ability to follow simple 16 instructions or his ability to follow complex/detailed instructions. 17 • Plaintiff’s ability to maintain adequate pace or persistence to perform one or 18 two simple repetitive tasks had no impairment and complex tasks is “mild” 19 • Plaintiff’s ability to adapt to change in a job routine his ability to withstand 20 the stress of a routine workday was “mild.” 21 • Plaintiff’s ability to appropriately interact with others on a regular basis was 22 “mild to moderate.” 23 • Plaintiff was unable to manage funds. Id. at 808. 24 The ALJ correctly characterized each of the above determinations by Dr. Gupta. 25 Id. at 21–22. The ALJ found Dr. Gupta persuasive because her opinion was consistent 26 with the medical evidence of record. Id. at 22. 27 2. Initial Reviewer—Dr. Paul Klein, Psy.D. 1 consultant, Dr. Paul Klein, completed an initial review of the record and opined on 2 plaintiff’s disability status under both Title II and Title XVI. This review included a 3 summary of the then-existing medical opinions concerning plaintiff’s residual functional 4 capacity, which at the time consisted only of Dr. Gupta’s opinion. Id. at 83. At the end of 5 the initial review, Dr. Klein determined that plaintiff did not meet either the A or B criteria 6 of the listings. Id. at 87. The initial decision by Dr. Klein concluded that plaintiff did not 7 qualify as disabled for purpose of receiving social security benefits. Id. at 89, 98. 8 The ALJ found Dr. Klein’s opinion to be persuasive because it was consistent with 9 the medical evidence of record. Id. at 22. 10 3. Reconsideration Reviewer—Dr. Norman Zukowsky, Ph.D. 11 On May 26, 2016, another non-examining, non-treating state agency consultant, 12 Dr. Norman Zukowsky, issued an opinion reconsidering the initial decision by Dr. Klein 13 under both Title II and Title XVI. Similar to Dr. Klein’s initial review, Dr. Zukowsky’s 14 reconsideration review included a summary of the relevant medical opinions and, similar 15 to the initial review, the only medical opinion cited was Dr. Gupta’s. Id. at 105. Unlike Dr. 16 Klein, Dr. Zukowsky opined that plaintiff had limitations with respect to his mental residual 17 functional capacity including that plaintiff was “moderately limited” for such areas as “the 18 ability to maintain attention and concentration for extend periods” and “the ability to 19 perform activities within a schedule, maintain regular attendance, and be punctual within 20 customary tolerances.” Id. at 112–13. Dr. Zukowsky recommended either “unskilled or 21 entry-level duties” as a result of plaintiff’s limitations. Id. at 114. However, Dr. Zukowsky 22 concluded that given plaintiff’s age, education, and RFC, plaintiff would still be able to 23 adjust to other work and that he was not disabled. Id. at 115. 24 Similar to Dr. Klein, the ALJ found Dr. Zukowsky persuasive because his opinion 25 was consistent with the medical evidence of record. Id. at 22. The ALJ also was 26 persuaded by Dr. Zukowsky’s opinion that plaintiff was capable of simple, unskilled work 27 with limited public contact. Id. 1 4. Nurse Practitioner K. Lu Gilligan, N.P. 2 On October 1, 2016, Gilligan—who represented that she had been treating plaintiff 3 since February 2016 on a bi-weekly or monthly basis—issued a letter regarding plaintiff’s 4 application for Social Security disability benefits. Id. at 1117. In it, she opined that 5 plaintiff meets the Social Security criteria for schizophrenic disorders and stated that “[h]e 6 continues to experience intrusive hallucinations of multiple voices that are taunting him, 7 and delusions that there are ghosts continually watching him.” Id. She also stated that 8 “[a]s recently as 3 days ago, [plaintiff] was still experiencing paranoid delusions . . . [and] 9 remains isolative and unable to function socially.” Id. at 1118. Gilligan reports that 10 “[e]ven in this supportive living environment[,] [plaintiff’s] daily functioning is severely 11 limited.” Id. 12 The ALJ gave “little weight” to Gilligan’s opinion, noting first that Gilligan was not 13 an acceptable medical source and that only the Commissioner can opine whether a 14 claimant meets a disability listing. Id. at 25. The ALJ also discounted Gilligan’s opinion 15 because it was not consistent with the medical evidence of record. Id. 16 5. Therapist Teresa Shepard, LMFT 17 On December 5, 2017, Shepard issued a letter in support of plaintiff’s Social 18 Security application. Id. at 1454–55. Shepard begins by noting that she had been in an 19 ongoing treatment relationship with plaintiff from February 2016 through the date of the 20 letter and further stated that Gilligan’s letter dated October 1, 2016 was “still an accurate 21 account of Mr. Young’s diagnosis, onset, and symptoms.” Id. at 1454. Shepard goes on 22 to opine that plaintiff “has poor insight. He is not able to be self-reflective or self-aware 23 and, as such, often does not accurately communicate about the extent or impact of his 24 psychological impairments.” Id. Shepard opined that plaintiff meets the A paragraph 25 criteria for schizophrenia because, “[d]espite the overall positive impact that medication 26 has had in managing [plaintiff’s] symptoms, he has had and continues to have periods of 27 increased symptoms, including intrusive auditory hallucinations.” Id. She stated that 1 activities of daily living; for example, she explained that “[h]e has poor memory and a very 2 diminished ability to follow through on tasks, in particular when the instruction of tasks 3 involves multiple steps.” Id. Finally, she opined that he meets paragraph C criteria 4 because he has been consistently in treatment and experiencing symptoms for over two 5 years. 6 The ALJ assigned “little weight” to Shepard’s opinion because it was inconsistent 7 with the medical evidence of record and, similar to Gilligan, Shepard was not an 8 acceptable medical source. Id. at 25. The ALJ stated that her opinion and Gilligan’s 9 opinion were “inconsistent with their own treatment notes, which consistently show 10 unremarkable mental status examinations and indicate improvement on medication” from 11 plaintiff’s baseline. Id. 12 6. Consultative Examiners—Dionne Childs, M.S. and Lesleigh Franklin, 13 Ph.D. 14 On November 11, 2017, Childs, under the supervisions of Franklin, conducted a 15 psychological evaluation of plaintiff. In their report, Childs and Franklin cataloged the 16 procedures they administered to plaintiff to conduct the examination, his background, his 17 educational and work history, his substance abuse history, his medical and psychiatric 18 history, their observations of plaintiff’s behavior and mental status, and their assessment 19 of his cognitive abilities. Id. at 1446–51. 20 In assessing plaintiff’s cognitive abilities, Childs and Franklin tested plaintiff’s 21 intellectual functioning using the Weschler Abbreviated Scale of Intelligence (“WASI”), his 22 neuropsychological functioning (i.e., language, visual abilities, memory and 23 concentration) using the Repeatable Battery for Assessment of Neuropsychological 24 Status (“RBANS”), as well as his emotional functioning using the Miller Forensic 25 Assessment of Symptoms Test (“M-FAST”). Id. at 1448. Using the WASI, plaintiff 26 received a full-scale IQ score of 64. Id. The RBANS test showed that plaintiff scored in 27 the “Extremely Low” range on the language, visuospatial/constructional, immediate 1 assessed plaintiff as showing “impaired performance on measures of executive 2 functioning” using the Trails A and B exercises. Id. at 1449–50. However, plaintiff’s 3 MMSE score was 29/30, which Childs and Franklin stated indicates that plaintiff was not 4 suffering from dementia or severe long term memory problems. Id. at 1450. Based on 5 the foregoing test results, they diagnosed plaintiff with schizophrenia, unspecified 6 depressive disorder, and borderline intellectual functioning. Id. They also found marked 7 or extreme limitations in all domains of work-related functioning. Id. at 1452–53. 8 The ALJ found Childs and Franklin’s assessment to be unpersuasive. The ALJ 9 discounted the WASI test because it is not accepted by the SSA and the score was 10 “grossly inconsistent” with plaintiff’s MMSE results as well as Dr. Gupta’s 2015 WAIS 11 results, claimant’s work history for the postal service, and observations of estimated 12 average intellectual functioning. Id. at 25. The ALJ rejected the RBANS results because 13 one month prior to the Childs and Franklin exam, Shepard noted that plaintiff “seemed to 14 have better than average understanding of news events than typical youth his age.” Id. 15 He also noted that the evaluation was conducted during a period of presumptive non- 16 disability. Id. 17 DISCUSSION 18 A. Standard of Review 19 This court has jurisdiction to review defendant’s final decisions pursuant to 42 20 U.S.C. § 405(g). The ALJ’s decision must be affirmed if his findings are “supported by 21 substantial evidence and if the [ALJ] applied the correct legal standards.” Holohan v. 22 Massanari, 246 F.3d 1195, 1201 (9th Cir. 2001). Substantial evidence “means—and 23 means only—‘such relevant evidence as a reasonable mind might accept as adequate to 24 support a conclusion.’” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (quoting 25 Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). If the evidence is subject 26 to more than one rational interpretation, the court must uphold the ALJ’s findings if they 27 are “supported by inferences reasonably drawn from the record.” Tommasetti v. Astrue, 1 record as a whole, weighing both the evidence that supports and the evidence that 2 detracts from the Commissioner’s conclusion, and may not affirm simply by isolating a 3 specific quantum of supporting evidence.” Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 4 2017). 5 “The ALJ in a social security case has an independent duty to fully and fairly 6 develop the record and to assure that the claimant’s interests are considered.” 7 Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001). An ALJ’s paraphrasing of 8 record material must be accurate. Reddick v. Chater, 157 F.3d 715, 722–23 (9th Cir. 9 1998). Although the ALJ can and must weigh conflicting evidence, “he cannot reach a 10 conclusion first, and then attempt to justify it by ignoring competent evidence in the 11 record that suggests an opposite result.” Gallant v. Heckler, 753 F.2d 1450, 1456 (9th 12 Cir. 1984). 13 Additionally, in the Social Security context, the harmless error rule applies. Curry 14 v. Sullivan, 925 F.2d 1127, 1129 (9th Cir. 1991). Harmless error is an error by the trier of 15 fact that is immaterial and therefore does not justify the reversal or modification of the 16 lower court’s ruling. Id. at 1131. 17 B. Analysis 18 Plaintiff seeks an order reversing the ALJ’s decision denying his application for 19 disability benefits and SSI. In support of his request, plaintiff argues the ALJ erred in 20 seven discrete areas. The court addresses each in turn. 21 1. Whether the ALJ Erred in Designating Certain Activity as Substantial 22 Gainful Activity 23 The ALJ did not err in determining plaintiff performed substantial gainful activity 24 from November 2016 to July 2017. Under the Social Security Act, disability is defined as 25 the inability “to engage in any substantial gainful activity by reason of any medically 26 determinable physical or mental impairment which . . . can be expected to last for a 27 continuous period of not less than twelve months.” 42 U.S.C. § 1382c(a)(3)(A). 1 involves doing significant physical or mental activities, taking into account the nature of 2 the work, how well it is performed, whether it is performed under special conditions, self- 3 employment, and time spent working.” Simpson v. Berryhill, No. 18-CV-00309-JSC, 4 2019 WL 2106591, at *2 (N.D. Cal. May 14, 2019) (citing 20 C.F.R. §§ 404.1572–73; 5 416.972–73). 6 In determining whether work activity constitutes substantial gainful activity, the 7 SSA’s “primary consideration will be earnings [the claimant] derive[s] from the work 8 activity.” 20 C.F.R. § 416.974(a)(1). “The mere existence of earnings over the statutory 9 minimum is not dispositive.” Keyes v. Sullivan, 894 F.2d 1053, 1056 (9th Cir. 1990) 10 (citing Chicager v. Califano, 574 F.2d 161, 163 (3d Cir. 1978)). However, earnings over 11 the statutory minimum creates a presumption of substantial gainful employment. Id. A 12 claimant may rebut the presumption “based on earnings with evidence of his inability to 13 be self-employed or to perform the job well, without special assistance, or for only brief 14 periods of time.” Id. (citing Anderson v. Heckler, 726 F.2d 455, 456 (8th Cir. 1984)). 15 Additionally, the Commissioner will “generally consider work that [the claimant is] 16 forced to stop or to reduce below the substantial gainful activity level after a short time 17 because of [his] impairment to be an unsuccessful work attempt. [The claimant’s] 18 earnings from an unsuccessful work attempt will not show that [he is] able to do 19 substantial gainful activity.” 20 C.F.R. § 416.974(a)(1). An unsuccessful work attempt 20 occurs “if, after [the claimant] worked for a period of 6 months or less, [the claimant’s] 21 impairment forced [him] to stop working or to reduce the amount of work you do so that 22 [his] earnings from such work fall below the substantial gainful activity level” set out in 23 regulations and the claimant meets certain other requirements. 20 C.F.R. 24 § 416.974(c)(1). 25 Here, plaintiff’s earnings exceed the statutory minimum threshold, as further 26 defined by 20 C.F.R. § 416.974(b)(2)(ii) and the SSA’s monthly earnings amounts 27 available online. Soc. Sec. Admin., Substantial Gainful Activity (2020), 1 December 2016 was $3,048.00 and his earnings for the first and second quarters 2017 2 (i.e., January to June) were $3,979.00 and $6,595.00.5 AR 20. Plaintiff’s monthly 3 average for 2016 was $1,524.00, which was above the 2016 monthly average of 4 $1,130.00 for non-blind claimants. Plaintiff’s monthly average for 2017 was $1,762.33, 5 which was also above the 2017 monthly average of $1,170.00 for non-blind claimants. 6 Therefore, there is a presumption that plaintiff performed substantial gainful activity from 7 November 2016 to July 2017. Plaintiff does not assert that any of the factors necessary 8 to rebut the presumption are present here. See Corrao v. Shalala, 20 F.3d 943, 948 (9th 9 Cir. 1994) (citations omitted) (noting factors as “the responsibilities and skills required to 10 perform the work, the amount of time the individual spends working, the quality of the 11 individual’s work, [and] special working conditions”). 12 Rather, plaintiff attempts to characterize his employment at the Postal Service as 13 an unsuccessful work attempt because his medical record demonstrates that his anxiety 14 and symptoms of schizophrenia threatened his ability to maintain employment so much 15 that he required support from his vocational specialist to manage his schedule, identify a 16 sleep routine, and plan his transportation. Dkt. 16 at 8. An unsuccessful work attempt 17 requires that plaintiff’s impairment forced him to stop working. 20 C.F.R. § 416.974(c)(1). 18 There is substantial evidence in the record demonstrating that the reason plaintiff 19 stopped working at the Postal Service was because his position was seasonal and 20 temporary in nature, i.e., not because of his impairment. For example, on June 16, 2017, 21 Shepard reported that plaintiff stated that he had been laid off from his job. AR 1386. In 22 October 2017, Gilligan also noted that plaintiff’s work was “as [a] temporary overnight 23 package handler.” Id. at 1431. Moreover, the medical record that plaintiff cites is not 24 indicative that plaintiff’s impairment prevented him from working. On December 2, 2016, 25 Kim reported that plaintiff “recently gained employment and has expressed having 26

27 5 It also appears that plaintiff earned an additional $8,333.00 in the second quarter 2017 1 positive experiences thus far.” Id. at 1344. On December 6, 2016, one of plaintiff’s group 2 therapists reported that he “continues to do well in his new job” and the plaintiff 3 “expressed some concern around job scheduling and his ability to ‘keep up with the 4 schedule.’” Id. at 1343. Thus, there is substantial evidence that plaintiff’s work attempts 5 ended not because of his impairment but because the position itself was temporary in 6 nature. 7 Finally, plaintiff suggests the ALJ erred by also finding plaintiff’s work in October 8 2017 as a temporary garbage collector to be substantial gainful activity. The ALJ stated 9 that a treatment note from Gilligan indicated that plaintiff worked three days a week for 10 $100.00 a day suggesting a monthly income of $1,200.00. Id. at 20. The ALJ did not 11 discuss testimony he received from plaintiff indicating that the actual amount received 12 was around $76.00 a day, which would suggest his monthly income to be $912.00. The 13 2017 monthly amount was $1,170.00, which would make the ALJ’s discrepancy 14 meaningful. Nonetheless, any error here is harmless because there was no continuous 15 12-month period from July 2017 to the ALJ’s decision in April 2018 that plaintiff did not 16 engage in substantial gainful activity. 17 2. Whether the ALJ Erred in Identifying a Severe Impairment 18 At step two, the ALJ listed two severe impairments: schizophrenia and alcohol 19 abuse. AR 20. Plaintiff contends this was in error because the ALJ should have also 20 found that plaintiff’s borderline intellectual functioning as a severe impairment. Dkt. 16 at 21 9–10. Defendant argues that any failure to list borderline intellectual functioning is 22 harmless because the ALJ considered and rejected medical opinions containing plaintiff’s 23 borderline intellectual functioning diagnosis at step four. Dkt. 17 at 4–5. 24 Generally, step two requires the ALJ to determine whether the claimant has an 25 impairment or combination of impairments that “significantly limits” the claimant’s ability to 26 do “basic work activities.” 20 C.F.R. § 416.920(c). “[T]he ALJ must consider the 27 combined effect of all of the claimant’s impairments on [his] ability to function, without 1 1290 (9th Cir. 1996) (citing 42 U.S.C. § 423(d)(2)(B); and SSR 86-8, 1986 WL 68636; 2 and SSR 85–28, 1985 WL 56856). Step two is a “de minimis screening device to dispose 3 of groundless claims.” Id. (citing Bowen v. Yuckert, 482 U.S. 137, 152–52 (1987)). “An 4 impairment or combination of impairments can be found ‘not severe’ only if the evidence 5 establishes a slight abnormality that has ‘no more than a minimal effect on an individual’s 6 ability to work.’” Id. (citing SSR 85–28; and Yuckert v. Bowen, 841 F.2d 303, 306 (9th 7 Cir. 1988)). 8 “Where the ALJ finds at least one severe impairment at step two, and properly 9 considers all medically determinable impairments at step four, failing to find that any 10 specific impairment is severe is harmless error.” Bass v. Berryhill, No. 18-CV-07053- 11 DMR, 2020 WL 1531324, at *3 (N.D. Cal. Mar. 31, 2020) (citing Buck v. Berryhill, 869 12 F.3d 1040, 1049 (9th Cir. 2017); and Brown v. Berryhill, No. 16-cv-04022-EMC, 2017 WL 13 4417516, at *7 (N.D. Cal. Oct. 4, 2017)). “However, if an ALJ does not consider all 14 medically determinable impairments when assessing a claimant’s RFC, then an error at 15 step two is not harmless.” Id. (citing Mercado v. Berryhill, No. 16-cv-04200-BLF, 2017 16 WL 4029222, at *6 (N.D. Cal. Sept. 13, 2017)). 17 Here, the ALJ found at least one severe impairment at step two therefore any error 18 by failing to list borderline intellectual functioning is harmless as long as he discussed all 19 medically determinable impairments when assessing plaintiff’s RFC. Yet, the ALJ failed 20 to consider plaintiff’s borderline intellectual functioning when assessing his RFC. The 21 ALJ’s RFC assessment does not clearly specify which impairments informed the 22 assessment. For example, the ALJ found that plaintiff’s “medically determinable 23 impairments could reasonably be expected to cause the alleged symptoms” and then 24 found that plaintiff’s statements concerning the intensity, persistence, and limiting effects 25 of these symptoms to be inconsistent with the medical evidence. AR 28. It appears that 26 he meant plaintiff’s schizophrenia and psychosis as the ALJ references plaintiff’s 27 psychosis in the RFC assessment. See id. at 27–28 (“Their statements of active 1 psychosis in remission.”). At the very least, he did not discuss any intellectual functioning 2 in his assessing plaintiff’s RFC. Because the ALJ did not discuss plaintiff’s borderline 3 intellectual functioning when assessing plaintiff’s RFC, the court must evaluate the ALJ’s 4 step two analysis for error. See Bass, 2020 WL 1531324, at *3; Mercado, 2017 WL 5 4029222, at *6. 6 There is sufficient evidence in the record to support plaintiff’s borderline intellectual 7 functioning as a medically determinable impairment. A claimant must establish a 8 physical or mental impairment with medical evidence consisting of signs, symptoms, and 9 laboratory findings and not by symptoms alone. 20 C.F.R. § 416.908. To be a severe 10 impairment, the impairment must last or be expected to last for a continuous period of at 11 least 12 months. 20 C.F.R. § 414.909. The evidence supporting plaintiff’s impairment 12 includes IQ tests administered at various points in time. “Under the DSM-IV, borderline 13 intellectual functioning was defined by an IQ of 71 to 84.”6 Merriott v. Berryhill, No. CV- 14 17-00138-TUC-LCK, 2018 WL 3610969, at *3 (D. Ariz. July 27, 2018) (citing Am. Psych. 15 Ass’n, Diagnostic & Statistical Manual of Mental Disorders 48 (4th ed. 2000)); see also 16 Gomez v. Astrue, 695 F. Supp. 2d 1049, 1053 n.2 (C.D. Cal. 2010) (“[A]n IQ of 70–85 17 signifies borderline intellectual functioning.”) (citing Stedman’s Medical Dictionary 18 “retardation” (27th ed. 2000))). 19 Both Dr. Hardey in 2011 and Dr. Gupta in 2015 measured plaintiff’s full scale IQ as 20 within the borderline range of intellectual functioning—71 and 81, respectively. AR 757– 21 58, 806. Childs assessed plaintiff’s full scale IQ as 64 and Franklin diagnosed plaintiff as 22 having borderline intellectual functioning. Id. at 1448, 1451. The SSA found that, as a 23 child, plaintiff had borderline intellectual functioning at a level sufficient to qualify for 24 disability payments. Id. at 81, 285, 749. Plaintiff was enrolled in special education 25 classes in school to help him overcome his borderline intellectual functioning. Id. at 661– 26 748 (plaintiff’s high school education records). 27 1 There is also sufficient evidence that plaintiff meets the durational requirement. 2 Plaintiff’s borderline intellectual functioning was first diagnosed when he was five (AR 3 635) and then reconfirmed by Dr. Hardey in 2011 and Dr. Gupta in 2015. Franklin also 4 diagnosed plaintiff with borderline intellectual functioning in 2017, though the ALJ 5 correctly points out that the test used by Childs and Franklin is not permitted to diagnose 6 a disability. See infra section B.3.vi. 7 Despite this evidence in the record, defendant contends any error is harmless 8 because the ALJ cited reasons to discount Dr. Hardey’s and Franklin’s opinions. Dkt. 17 9 at 5. The ALJ assigned little weight to Dr. Hardey’s opinion because it fell too far outside 10 the relevant time period and related to an administratively final determination. AR 24. 11 While defendant is correct that the ALJ may reject medical opinions that were more 12 remote in time (Johnson v. Astrue, 303 Fed. App’x 543, 545 (9th Cir. 2008) (unpublished 13 opinion)), the ALJ did not cite any medical opinion that contradicts Dr. Hardey’s 14 assessment.7 Therefore, the ALJ can only reject Dr. Hardey’s opinion with clear and 15 convincing reasons supported by substantial evidence. Popa v. Berryhill, 872 F.3d 901, 16 906 (9th Cir. 2017) (citing Lester v. Chater, 81 F.3d 821, 830–31 (9th Cir. 1995)). The 17 ALJ did not do so. While Dr. Hardey’s assessment relates to an administratively final 18 decision, an ALJ “will accept the factual finding made in the previous determination or 19 decision unless there are reasons to believe that [the finding] was wrong.” 20 C.F.R. 20 § 416.1450(f). The ALJ did not cite a reason to believe Dr. Hardey’s finding was wrong. 21 The ALJ rejected Franklin’s borderline intellectual functioning diagnosis and her 22 medical opinion because they were based on questionable results and were inconsistent 23 with the evidence of record. AR 25. As discussed herein, the ALJ’s rejection of 24 Franklin’s medical opinion regarding the borderline intellectual functioning disorder was 25 error. 26

27 7 The court notes that Dr. Gupta’s WAIS-IV result (full scale IQ of 81 with a “Low 1 In sum, the ALJ erred by failing to consider whether plaintiff’s borderline 2 intellectual functioning was a severe impairment at step two. This is not to suggest the 3 ALJ was required to find plaintiff’s borderline intellectual functioning as per se severe; 4 rather, the ALJ erred by failing to address the impairment at step two and then failing to 5 account for the limitations at step four. The court also notes that the ALJ did not consider 6 whether plaintiff’s schizophrenia combined with his borderline intellectual functioning 7 significantly limited plaintiff’s ability to do basic work activities. 20 C.F.R. § 416.945(a)(2). 8 The court draws particular attention to this issue because, as stated by a different court in 9 this district, borderline intellectual functioning may affect plaintiff’s ability to recognize and 10 articulate his own symptoms. See Reed v. Berryhill, No. 16-CV-06710-MEJ, 2017 WL 11 4948593, at *9 (N.D. Cal. Nov. 1, 2017) (“The ALJ also does not analyze whether 12 Plaintiff’s borderline level of intelligence might affect his ability to recognize psychological 13 symptoms and articulate them, much less obtain treatment for those problems.”). 14 3. Whether the ALJ Erred When Evaluating Medical Opinions 15 For claims filed before March 27, 2017, an ALJ applies the rules in title 20 C.F.R. 16 § 416.927 to evaluate medical opinion evidence. 20 C.F.R. § 416.927. An ALJ must 17 consider all medical opinions in the record together with any other relevant evidence 18 received. 20 C.F.R. § 416.927(b). 19 The Ninth Circuit and applicable regulations distinguish between three types of 20 physicians: (1) those who treat the claimant (treating physicians); (2) those who examine 21 but do not treat the claimant (examining physicians); and (3) those who neither examine 22 nor treat the claimant (non-examining, non-treating physicians). Lester v. Chater, 81 23 F.3d 821, 830 (9th Cir. 1995); 20 C.F.R. § 416.927(c). Unless an ALJ assigns a treating 24 source’s medical opinion “controlling weight” under 20 C.F.R. § 416.927(c)(2), the ALJ 25 generally considers the following factors when assigning weight to any particular medical 26 opinion: 27 • Examining relationship: An ALJ gives more weight to the medical opinion of 1 20 C.F.R. § 416.927(c)(1). 2 • Treatment relationship: An ALJ gives more weight to medical opinions from 3 a claimant’s treating source. 20 C.F.R. § 416.927(c)(2). 4 • Supportability: The more a medical source presents relevant evidence to 5 support a medical opinion or better explains its conclusions, the more 6 weight the ALJ will give that medical opinion. With respect to non- 7 examining source opinions, the weight given will depend on the degree to 8 which they provide supporting explanations for their opinions, including 9 whether they consider all of the pertinent evidence to a claim such as 10 medical opinions of treating and other examining sources. 20 C.F.R. 11 § 416.927(c)(3). 12 • Consistency: The more consistent a medical opinion is with the overall 13 record, the more weight the ALJ will give that opinion. 20 C.F.R. 14 § 416.927(c)(4). 15 • Specialization: An ALJ will give relatively more weight to the medical 16 opinion of a specialist about medical issues related to his area of specialty. 17 20 C.F.R. § 416.927(c)(5). 18 • Other factors: An ALJ may also consider other factors brought to his 19 attention that tend to support or contradict an opinion. 20 C.F.R. 20 § 416.927(c)(6). 21 Under 20 C.F.R. § 416.927(c)(2), if an ALJ finds that a treating source’s medical 22 opinion on an impairment is well-supported by medically acceptable clinical and 23 laboratory diagnostic techniques and is not inconsistent with the other substantial 24 evidence in the record, then the ALJ will give it “controlling weight.” 20 C.F.R. 25 § 416.927(c)(2). Otherwise, to determine the weight of such opinion, the ALJ must apply 26 the factors listed in § 416.927(c)(2)(i)–(ii) and 416.927(c)(3)–(6). 20 C.F.R. 27 § 416.927(c)(2). In any event, the ALJ must provide “good reasons” for the weight given 1 reasons in our notice of determination or decision for the weight we give your treating 2 source's medical opinion.”). 3 The Ninth Circuit acknowledges that that an ALJ may reject an uncontradicted 4 opinion of a claimant’s treating physician only for “clear and convincing” reasons 5 supported by substantial evidence. Popa, 872 F.3d at 906. In the event an ALJ rejects a 6 treating or examining physician’s opinion that is contradicted by another doctor, the ALJ 7 must set forth “specific and legitimate reasons that are supported by substantial 8 evidence.” Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017) (quoting Ryan v. 9 Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008)). 10 In addition to the three sorts of physician-related acceptable medical sources 11 discussed immediately above, an ALJ may also consider medical opinions from “not 12 acceptable” medical sources, i.e., nonmedical sources. 20 C.F.R. § 416.927(f). When 13 doing so, an ALJ generally applies the same considerations described at 14 § 416.927(c)(1)–(6), although the ALJ need not consider all such factors. 20 C.F.R. 15 § 416.927(f). “Depending on the particular facts in a case, and after applying the factors 16 for weighing opinion evidence, an opinion from a medical source who is not an 17 acceptable medical source or from a nonmedical source may outweigh the medical 18 opinion of an acceptable medical source, including the medical opinion of a treating 19 source.” 20 C.F.R. § 416.927(f). Such a finding may be warranted in circumstances 20 where a not acceptable medical source “has seen the individual more often than the 21 treating source, has provided better supporting evidence and a better explanation for the 22 opinion, and the opinion is more consistent with the evidence as a whole.” Id. Relatedly, 23 the Ninth Circuit has stated that “[a]n ALJ may discount the opinion of an ‘other source,’ 24 such as a nurse practitioner, if she provides ‘reasons germane to each witness for doing 25 so.’” Popa, 872 F.3d at 906. 26 i. Whether the ALJ Erred When Weighing Drs. Phillips and 27 Boutelle’s Opinions 1 Drs. Phillips and Boutelle who treated plaintiff at BACS and diagnosed plaintiff with 2 schizophrenia. Dkt. 16 at 12. Defendant responds that these are not medical opinions 3 but rather treatment notes that need not be credited. Dkt. 17 at 6. 4 Medical opinions reflect “judgments about the nature and severity of . . . 5 impairment(s), including . . . symptoms, diagnosis, prognosis, what [a claimant] can still 6 do despite impairment(s), and [the claimant’s] physical or mental restrictions.” 20 C.F.R. 7 § 404.927(a)(1). The court agrees with defendant that Drs. Phillips and Boutelle’s 8 records do not meet the definition of a medical opinion. Rather, they “simply record[] [the 9 physicians’] observations of [plaintiff’s] appearance and behavior. Bass, 2020 WL 10 1531324, at *6. Therefore, they are treatment notes. 11 Because Drs. Phillips and Boutelle’s reports were treatment notes, the ALJ was 12 not required to specifically address their reports, especially where the reports were not 13 probative of plaintiff’s RFC. Thus, the ALJ did not err by failing to specifically address 14 Drs. Phillips and Boutelle’s treatment notes. 15 ii. Whether the ALJ Erred When Weighing Dr. Elder and Shepard’s 16 Opinion 17 With respect to Shepard and Dr. Elder’s statement, plaintiff argues that the ALJ 18 was required to provide specific and legitimate reasons to reject the opinions of Dr. Elder. 19 Dkt. 16 at 12. Defendant responds that Dr. Elder and Shepard filled out intake paperwork 20 and, because they only recorded plaintiff’s responses to his intake interview, the ALJ did 21 not need to accord any particular weight to their opinion. Dkt. 17 at 7. The ALJ did not 22 evaluate Shepard and Dr. Elder’s statement as a medical opinion. 23 There are two notable entries from Shepard and Dr. Elder. The first, dated July 24 23, 2016, is a mental health assessment that Shepard completed and Dr. Elder co-signed 25 as part of plaintiff’s intake into Casa. AR 1132. As defendant indicates, there are several 26 entries in the assessment that only record plaintiff’s subjective complaints and 27 statements. Id. at 1121–25, 28–29. However, Shepard also recorded her perceptions of 1 “unremarkable” “appearance/grooming,” “speech,” “orientation,” “memory,” and “intellect.” 2 Id. at 1130. Shepard assessed plaintiff as having a “depressed” mood/affect and a 3 remarkable fund of knowledge that was “limited in scope or ability to speak about.” Id. 4 Shepard also found his insight/judgment to be remarkable for “potentially impaired or 5 history of impairment.” Id. She rated plaintiff as having severe impairments related to his 6 activities of daily living and episodes of decompensation. Id. at 1131. 7 The second entry, dated October 31, 2016, described plaintiff’s discharge 8 summary from Casa and it appears that Shepard completed the entry with Dr. Elder’s co- 9 signature. Id. at 1119–20. That summary noted that plaintiff adhered to medications and 10 “stabilized his mental health.” Id. at 1119. They also reported that plaintiff “often 11 engaged in pro-social activities, playing basketball and walking in the community with his 12 peers.” Id. Shepard and Dr. Elder reported plaintiff’s Axis I diagnosis as schizophrenia 13 and noted that his GAF score, as of June 2016, was 45. Id. at 1120. 14 These two entries do not meet the characteristics of medical opinions; rather, they 15 are consonant with treatment notes. There are no opinions about the nature and severity 16 of what plaintiff could do or plaintiff’s mental restrictions. Similar to the notes by Drs. 17 Boutelle and Phillips, the ALJ did nor err by failing to specifically address the treatment 18 notes signed by Dr. Elder. 19 iii. Whether the ALJ Erred When Weighing Plaintiff’s Medical 20 Evidence of Record from His Treating Providers 21 Plaintiff contends that the ALJ erred by failing to discuss opinions and GAF scores 22 from plaintiff’s providers at BACS, Casa, PREP, and Sausal Creek and did not provide 23 germane reasons for rejecting those records and opinions. Dkt. 16 at 12–13. Defendant 24 does not specifically address any particular provider but rather argues that the ALJ 25 referenced the treatment notes from providers at BACS, Casa, PREP, and Sausal Creek 26 by citing the exhibit numbers containing those treatment notes. Dkt. 17 at 7. 27 The ALJ did not err in his assessing records from plaintiff’s providers at BACS, 1 opinion, only treatment notes. Second, the ALJ cited and discussed some examples 2 from the medical record. See AR 22–24. Third, the ALJ did not err by rejecting various 3 GAF scores assessed by various non-physician providers. See Hughes v. Colvin, 599 4 Fed. App’x 765, 766 (9th Cir. 2015) (unpublished opinion) (“The ALJ did not err in failing 5 to address Dr. Caverly’s GAF score, because a GAF score is merely a rough estimate of 6 an individual’s psychological, social, or occupational functioning used to reflect an 7 individual’s need for treatment, but it does not have any direct correlative work-related or 8 functional limitations.” (citing Vargas v. Lambert, 159 F.3d 1161, 1164 n.2 (9th Cir. 9 1998))). 10 iv. Whether the ALJ Erred When Weighing Nurse Gilligan’s Opinion 11 The ALJ erred when discounting Gilligan’s opinion.8 Gilligan, “as a nurse 12 practitioner, qualified as an ‘other source[]’ that can provide evidence about the severity 13 of [a claimant's] impairment(s) and how it affects [the claimant’s] ability to work.’” 14 Garrison, 759 F.3d at 1013–14 (alterations in original) (quoting 20 C.F.R. § 404.1513(d)). 15 Gilligan proffered her opinion on October 1, 2016 and she stated that she had a treating 16 relationship with plaintiff since February 2016. AR 1117. The medical opinions 17 concerning plaintiff’s mental status and adverse to his position are based on one 18 examining but non-treating and two non-examining, non-treating evaluations that 19 occurred before October 2016 (Drs. Gupta, Klein, and Zukowsky). The ALJ fails to 20 provide any germane reason or evidence showing that such evaluations accurately 21 reflected plaintiff’s physical status as of October 2016. Id. at 25. Such failure is 22 8 As a general matter, the court notes that the ALJ’s selection of evidence from the record 23 tended to only support his conclusions rather than assess evidence that both supports and detracts from plaintiff’s claim. For example, the ALJ cites Shepard’s treatment notes 24 as a reason to discount Franklin’s opinion (AR 25), while also finding Shepard’s medical source statement to be inconsistent with the medical evidence of record (id.). Yet, there 25 is no corresponding discussion of Shepard’s observations and notes that tend to support plaintiff’s claim. The ALJ tended to credit Shepard’s and Gilligan’s treatment notes when 26 they supported his conclusion and discounted their opinions when they were contrary to his conclusion. This suggests that the ALJ reached a conclusion first and then attempted 27 to justify it by ignoring competent evidence from the record. See Gallant, 753 F.3d at 1 particularly notable given that certain records made by Gilligan detail the sorts of 2 psychological limitations that support plaintiff’s claim. E.g., id. at 1362 (describing 3 September 2016 incident). 4 In rejecting her opinion, the ALJ cited inconsistencies between Gilligan’s opinion, 5 on the one hand, and her treatment notes and the medical evidence of record on the 6 other. Id. at 25. The ALJ does not cite the particular medical evidence of record 7 supporting his conclusion; instead, he states that the notes “consistently show 8 unremarkable mental status examinations and indicate improvement on medication.” Id. 9 Gilligan’s treatment notes are not as consistently unremarkable as the ALJ indicates. For 10 example, on September 12, 2016, both Kim and Gilligan reported that plaintiff underwent 11 a psychotic episode. Kim stated plaintiff “was internally preoccupied and endorsed 12 hearing multiple voices throughout session.” AR 1363. Plaintiff reported that “his voices 13 were at a ‘7’ out of 10 in severity and that he would like to go to the hospital if they reach 14 a ’10.’” Id. Gilligan also noted plaintiff “reported an increase in hallucinosis and paranoia, 15 stating that multiple voices were intrusive and that he had grown fearful over the past 16 week.” Id. at 1362. Gilligan increased plaintiff’s Zyprexa dosage and started him on 17 Risperdal. Id. 18 Significantly, the ALJ failed to consider Gilligan’s opinion using the factors listed in 19 § 416.927(c)(1)–(6). See § 416.927(f) (“Although we will consider these opinions using 20 the same factors as listed in paragraph (c)(1) through (c)(6) in this section, not every 21 factor for weighing opinion evidence will apply in every case because the evaluation of an 22 opinion from a medical source who is not an acceptable medical source or from a 23 nonmedical source depends on the particular facts in each case.”); see also Garrison, 24 759 F.3d at 1013–14 (noting that ALJ committed error by failing to recognize that nurse 25 practitioner “qualified as an ‘other source[]’ that can provide evidence about the severity 26 of [a claimant’s] impairment(s) and how it affects [the claimant’s] ability to work” 27 (alterations in original) (quoting 20 C.F.R. § 1513(d))). The ALJ failed to address the 1 weight to her opinion under § 416.927(f) (“[I]t may be appropriate to give more weight to 2 the opinion of a medical source who is not an acceptable medical source if he or she has 3 seen the individual more often than the treating source.”). The administrative record 4 reflects that Gilligan met with plaintiff on a bi-weekly or monthly basis from February 2016 5 to at least October 2017. While Gilligan is not an acceptable medical source, the ALJ 6 brushed past the fact that Gilligan had a longitudinal treating relationship with plaintiff; 7 none of the medical opinions upon which the ALJ relied (Drs. Gupta, Klein, and 8 Zukowsky) had a similar breadth of data or had any treating relationship with plaintiff. 9 Given the above, the ALJ erred by failing to provide a germane reason when 10 assigning Gilligan’s opinion “little weight.” That error was not harmless because Gilligan 11 opined about various limitations relevant to the ALJ’s assessment of plaintiff’s RFC. 12 v. Whether the ALJ Erred When Weighing Shepard’s Opinion 13 The ALJ erred by assigning Shepard’s opinion “little weight.” AR 25. Like Gilligan, 14 he dismissed Shepard’s opinions because she was not an acceptable medical source 15 and because her opinion conflicted with her treatment notes. Id. Shepard’s opinion, 16 dated December 5, 2017, served as a supplement to Gilligan’s October 2016 opinion. Id. 17 at 1454. Shepard represented that she had a treating relationship with plaintiff since 18 February 2016 through December 2017. Id. 19 Similar to Gilligan’s opinion, the ALJ failed to consider Shepard’s opinion using the 20 factors listed in § 416.927(c)(1)–(6). See § 416.927(f); see also Garrison, 759 F.3d at 21 1013–14. Also similar to Gilligan, Shepard had a treating relationship with plaintiff that 22 was significant in both duration and frequency. Despite the lengthy treating relationship, 23 the ALJ discounted Shepard’s opinion by citing inconsistent treatment notes. Yet, the 24 ALJ did not cite specific inconsistencies nor did he cite or discuss Shepard’s treatment 25 notes that support rather than detract from Shepard’s opinion. 26 Thus, the ALJ erred by assigning Shepard’s opinion little weight without providing 27 germane reasons for doing so. This error was not harmless because she opined about 1 vi. Whether the ALJ Erred When Weighing Franklin and Childs’ 2 Opinion 3 The ALJ erred when he found the observations of Childs and the opinion of 4 Franklin unpersuasive. The ALJ focused largely on Franklin’s borderline intellectual 5 functioning diagnosis and noted that he was unpersuaded by the full scale IQ of 64 result 6 from the WASI test. AR 25. He cited six reasons in support of that conclusion: the WASI 7 test is not accepted by the SSA, the test was inconsistent with Dr. Gupta’s WAIS results, 8 plaintiff’s work history for the U.S. Postal Service, observations of estimated average 9 intellectual functioning, and the ALJ found the score to be grossly inconsistent with 10 plaintiff’s MMSE score administered by Childs. Id. 11 A disputed medical source opinion can only be rejected for specific and legitimate 12 reasons that are supported by substantial evidence in the record. Revels, 874 F.3d at 13 654. The ALJ is required to weigh evidence according to several factors, including 14 length of the treatment relationship and the frequency of examination; nature and extent 15 of the treatment relationship; supportability; consistency; and specialization. 20 CFR 16 § 416.927. Each of the six reasons cited by the ALJ are neither specific and legitimate 17 nor supported by substantial evidence in the record. 18 First, according to the SSA’s Program Operations Manual Systems, the Wechsler 19 Abbreviated Scale of Intelligence is essentially a screening test that is used to “estimate 20 IQ based on some, but not all, of the subtests contained in the Wechsler series of 21 intelligence tests.” Program Operations Manual Systems, DI 24583.055, Using 22 Intelligence Tests to Evaluate Cognitive Disorders, Including Intellectual Disorder, 23 https://secure.ssa.gov/apps10/poms.nsf/lnx/0424583055. The Manual instructs: “[d]o not 24 use the results of abbreviated tests to determine whether the person has a mental 25 impairment that meets or medically equals the requirements of listings 12.05 or 112.05. 26 Abbreviated or screening tests may be used to rule out a medically determinable 27 impairment but cannot be used to establish a medically determinable impairment.” Id. 1 consider in combination with other objective tests conducted by Childs and previous IQ 2 results from Drs. Hardey and Gupta demonstrating IQ results in the borderline intellectual 3 functioning range. 4 Second, Dr. Gupta’s full scale IQ result of 81 was a “low average” result, which is 5 not clearly inconsistent with the full scale IQ result assessed by Childs. Third, as Franklin 6 described in his opinion, the MMSE is cognitive test and is “a simple measure utilized to 7 describe an individual’s current mental status, and is less comprehensive than the other 8 tests performed. . . . The MMSE does help us to screen for patients with more severe 9 neuropsychological illnesses as a result of brain disease or physical trauma . . . .” AR 10 1448. The ALJ did not cite any reason why a cognitive impairment test (MMSE) 11 contradicts an IQ test (WASI). Instead, these assessments test different attributes 12 (cognition vs. intelligence). See McGarrah v. Berryhill, No. 17-cv-03092-DMR, 2018 WL 13 4207300, at *12 (N.D. Cal. Sept. 9, 2018) (“Based on this description of the test, it makes 14 little sense to point to [the claimant’s] overall MMSE score of 29/30 and conclude that it 15 ‘indicated no impairment,’ because [the claimant] does not allege ‘more serious 16 neuropsychological illnesses as a result of brain disease of physical trauma.”). Focusing 17 on the MMSE score also ignores the other objective tests conducted by Childs. 18 Fourth, the ALJ cited plaintiff’s employment and observations of estimated 19 average intellectual functioning, yet those references lack any specific citation to the 20 medical evidence of record. As an initial matter, the Ninth Circuit has not held that an 21 ALJ may discount objective test scores using observations from the record. Some district 22 courts in this circuit, citing Eighth Circuit precedent, have found that “[i]n assessing the 23 validity of IQ scores, the ALJ ‘may disregard test scores that are inconsistent with an 24 applicant’s demonstrated activities and abilities as reflected in the record as a whole.’” 25 See, e.g., Cometa v. Berryhill, No. 17-CV-06224-EDL, 2019 WL 1473454, at *15 (N.D. 26 Cal. Feb. 14, 2019) (quoting Clay v. Barnhart, 417 F.3d 922, 929 (8th Cir. 2005)); Wedge 27 v. Astrue, 624 F. Supp. 2d 1127, 1131 (C.D. Cal. 2008) (“Although the Ninth Circuit has 1 other Circuits have allowed the ALJ to use several factors in assessing the validity of test 2 results.” (citing Clay, 417 F.3d at 929)). Yet, even assuming an ALJ can use 3 observations from the record to disregard an objective assessment, the ALJ did not cite 4 specific instances in the record to discount such a test. Instead, in a parenthetical, he 5 cited two references to the record to demonstrate “estimated average intellectual 6 functioning.” Neither reference in the parenthetical support his point: the first reference is 7 to plaintiff’s initial PREP intake assessment by Shinn, which does not explicitly discuss 8 average intellectual functioning. AR 1369–73. The second reference is to Franklin’s 9 opinion. Id. at 1446–52. In sum, the reasons cited by the ALJ to reject Franklin’s 10 borderline intellectual functioning diagnosis are not specific and legitimate reasons 11 supported with substantial evidence from the record. 12 Finally, the ALJ did not comment on Franklin’s opinion to the extent it addressed 13 plaintiff’s limitations beyond the borderline intellectual functioning diagnosis. Franklin’s 14 opinion was based on a clinical interview with plaintiff, a review of his medical records, 15 and a series of objective tests. With that information, Franklin opined that plaintiff has 16 “difficulty remembering and following instructions, low frustration tolerance, and trouble 17 consistently complying with strict workplace expectations. He has a general history of 18 poor social interactions. Mr. Young also has a pattern of perceptual distortions and poor 19 coping skills, which appear to have influenced the severity of his mental health concerns.” 20 Id. at 1450–51. The ALJ failed to address these aspects of Franklin’s opinion. 21 Thus, the ALJ erred by failing to provide specific and legitimate reasons supported 22 by substantial evidence to discount the Franklin and Childs opinion. The error was not 23 harmless because Franklin and Childs opined that plaintiff had limitations that would have 24 informed the ALJ’s RFC assessment. See id. 25 4. Whether the ALJ Erred in Assessing Plaintiff’s Statements 26 Plaintiff contends that the ALJ erred by rejecting his testimony without clear and 27 convincing reasons supported by substantial evidence. Dkt. 16 at 20. Defendant 1 evidence. Dkt. 17 at 12–13. For example, the ALJ cited evidence that plaintiff received 2 effective treatment when he reported that his symptoms were “well managed by 3 medication” and determined that plaintiff engaged in activities inconsistent with disability. 4 Id. at 13. 5 When the medical records show that “[a claimant has] a medically determinable 6 impairment(s) that could reasonably be expected to produce [his] symptoms, such as 7 pain,” an ALJ “must then evaluate the intensity and persistence of [the claimant’s] 8 symptoms so that [the Commissioner] can determine how [his] symptoms limit [his] 9 capacity for work.” 20 C.F.R. § 416.929(c)(1). To evaluate such symptoms, the ALJ 10 “consider[s] all of the available evidence from [the claimant’s] medical sources and 11 nonmedical sources about how [his] symptoms affect [him].” Id. Such evidence includes 12 medical opinions, 20 C.F.R. § 416.929(c)(1), findings “obtained from the application of 13 medically acceptable . . . techniques,” 20 C.F.R. § 416.929(c)(2), and “any other 14 information [a claimant] may submit about [his] symptoms,” 20 C.F.R. § 416.929(c)(3). 15 When making that consideration, an ALJ will look to a claimant’s “statements in 16 relation to the objective medical evidence and other evidence” and “whether there are 17 any inconsistences in the evidence and the extent to which there are any conflicts 18 between [the claimant’s] statements and the rest of the evidence.” 20 C.F.R. 19 § 416.929(c)(4). An ALJ will find that a claimant’s symptoms diminish his or her “capacity 20 for basic work activities . . . to the extent that [the claimant’s] alleged functional limitations 21 and restrictions due to symptoms . . . can reasonably be accepted as consistent with the 22 objective medical evidence and other evidence.” Id. Social Security Ruling 16-3p further 23 provides that, when evaluating an individual’s testimony concerning his symptoms, an 24 ALJ may not simply “make a single, conclusory statement” discounting such testimony or 25 only “recite” the factors described in the regulations for evaluating symptoms. SSR 16- 26 3P, 2016 WL 1119029, at *9. Rather, the ALJ’s decision “must contain specific reasons 27 for the weight given to the individual’s symptoms, be consistent with and supported by 1 can assess how the adjudicator evaluated the individual’s symptoms.” Id. 2 In the Ninth Circuit, in the absence of evidence of malingering by a claimant, “the 3 ALJ can reject the claimant’s testimony about the severity of [his] symptoms only by 4 offering specific, clear and convincing reasons for doing so.” Lengenfelter v. Astrue, 504 5 F.3d 1028, 1036 (9th Cir. 2007) (quoting Smolen, 80 F.3d at 1281; and citing Robbins v. 6 Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006)).9 “This is not an easy requirement 7 to meet: ‘The clear and convincing standard is the most demanding required in Social 8 Security cases.’” Garrison, 759 F.3d at 1015 (quoting Moore v. Comm’r of Soc. Sec. 9 Admin., 278 F.3d 920, 924 (9th Cir. 2002)). “The Ninth Circuit has held that an ALJ does 10 not meet this standard ‘by simply reciting the medical evidence in support of his or her 11 residual functional capacity determination.’” Ruben A. v. Saul, No. 19-CV-03893-EMC, 12 2020 WL 1897578, at *7 (N.D. Cal. Apr. 16, 2020) (quoting Brown-Hunter v. Colvin, 806 13 F.3d 487, 489 (9th Cir. 2015)). Rather, the ALJ must “specify which testimony [he] finds 14 not credible, then provide clear and convincing reasons, supported by evidence in the 15 record, to support that credibility determination.” Brown-Hunter, 806 F.3d at 489. 16 Here, as an initial matter, the ALJ found that plaintiff’s “medically determinable 17 impairments could reasonably be expected to cause the alleged symptoms.” AR 28. The 18 ALJ did not find any evidence of malingering. As a result, the ALJ was required to 19 evaluate plaintiff’s allegations concerning his symptoms. At the hearing, plaintiff testified 20 that he experienced symptoms concerning being paranoid and having a sleeping 21 disorder. Id. at 55. The ALJ asked plaintiff to describe his daily activities and then asked 22 whether the medication and counseling he was receiving helped plaintiff. Id. at 56. 23 Plaintiff answered “yes, sometimes I feel that I don’t.” Id. That was the extent of the 24 ALJ’s questions concerning symptoms and the ALJ then concluded his inquiry by asking 25

26 9 In a footnote, defendant states his objection to the “clear and convincing” standard because it is inconsistent with the deferential substantial evidence standard but 27 acknowledges that the clear and convincing standard is the requisite standard in the 1 about plaintiff’s substance abuse. Id. at 56–58. The ALJ then heard testimony from 2 plaintiff, directed by plaintiff’s counsel, that plaintiff had trouble staying asleep every day 3 and that plaintiff’s medications sometimes helped but something did not. Id. at 58. Then, 4 plaintiff described how sometimes he would have good days and at other times had bad 5 days. Id. at 60–62. 6 In his opinion, the ALJ found plaintiff’s allegations to be inconsistent with the 7 medical evidence of record in three areas. First, he discounted plaintiff’s statement that 8 the stopped working for the U.S. Postal Service due to his mental impairments. Id. at 27. 9 In support of this, the ALJ cited his prior findings that plaintiff reported he quit for no 10 apparent reason. Id. Second, the ALJ discounted plaintiff’s testimony that he could not 11 work because of his symptoms. In support of this, the ALJ cited his prior finding that 12 plaintiff’s symptoms are well managed by medications and an October 2017 treatment 13 note where Gilligan reported that plaintiff had one episode of psychotic symptoms “two 14 months ago.” Id. The ALJ also cited notes from Casa showing that plaintiff enjoyed 15 playing basketball, spending time with friends, and peer interaction. Id. Third, the ALJ 16 discounted plaintiff’s testimony that his treatment does not help improve his symptoms. 17 In support of this, the ALJ noted that “the medical evidence of record consistently 18 indicates [plaintiff] reports, ‘he has less mood swings, and no voices currently,’ and that 19 he stated he has ‘greatly diminished symptoms when he regularly takes his medication.’” 20 Id. 21 The foregoing demonstrates that the ALJ did not err by making a single general 22 statement applicable to plaintiff’s testimony. See Brown-Hunter, 806 F.3d at 493. 23 Rather, the ALJ attempted to rebut specific points with evidence from the record. Cf. id. 24 at 494 (“[The ALJ] simply stated her non-credibility conclusion and then summarized the 25 medical evidence supporting her RFC determination.”). This does not mean, however, 26 that the ALJ’s opinion on this issue is free from error. “[I]n determining whether there is 27 substantial evidence to support the ALJ’s finding, a reviewing court must consider both 1 cannot affirm the examiner’s conclusion simply by isolating a specific quantum of 2 supporting evidence.’” Gallant v. Heckler, 753 F.2d 1450, 1455 (9th Cir. 1984) (quoting 3 Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975)). 4 Here, the ALJ erred by failing to consider evidence that supported plaintiff’s 5 testimony and only considering evidence that detracted from his testimony. For example, 6 the ALJ did not consider evidence from August and September 2016 that both Kim and 7 Gilligan reported. For example, on September 12th, Kim noted that plaintiff reported that 8 “his voices were at a ‘7’ out of 10 in severity and that he would like to go to the hospital if 9 they reach a ’10.’” AR 1363. That same day, Gilligan reported that she received a call 10 from Casa staff, “who reported [plaintiff] was symptomatic over the weekend, and was 11 paranoid and required staff accompany him at night.” Id. at 1362. Other evidence 12 supports plaintiff’s testimony. On September 15, 2017, a PREP group therapist noted 13 that plaintiff was not sleeping well and continued to struggle with depression. Id. at 1437. 14 On October 4, 2017, Shepard reported that plaintiff denied symptoms of psychosis and 15 sleep disturbance, though she also noted that plaintiff “reported a 2-week period of 16 increase depression and intrusive thoughts around death of [his] brother.” Id. at 1434. 17 The issue here is not that the ALJ failed to cite any evidence; instead, the ALJ 18 ignored competent evidence in the record that tended to support plaintiff’s contention that 19 he had good days and bad days. See Gallant, 753 F.2d at 1456 (“Although it is within the 20 power of the Secretary to make findings concerning the credibility of a witness and to 21 weigh conflicting evidence, he cannot reach a conclusion first, and then attempt to justify 22 it by ignoring competent evidence in the record that suggests an opposite result.” 23 (citations omitted)). The reviewing court “must consider the entire record as a whole, 24 weighing both the evidence that supports and the evidence that detracts from the 25 Commissioner’s conclusion, and may not affirm simply by isolating a specific quantum of 26 supporting evidence.” Revels, 874 F.3d at 654. 27 The court is also mindful that “[r]eports of ‘improvement’ in the context of mental 1 and the nature of [his] symptoms.” Garrison, 759 F.3d at 1017. “They must also be 2 interpreted with an awareness that improved functioning while being treated and while 3 limiting environmental stressors does not always mean that a claimant can function 4 effectively in a workplace.” Id. The Ninth Circuit has warned that it is “error for an ALJ to 5 pick out a few isolated instances of improvement over a period of months or years and to 6 treat them as a basis for concluding a claimant is capable of working.” Id. 7 Given this mandate combined with the selective citation of the medical evidence of 8 record, the ALJ erred in rejecting plaintiff’s testimony by clear and convincing evidence. 9 5. Whether the ALJ Erred in Rejecting Third Party Statements 10 Plaintiff argues that the ALJ erred by rejecting lay witness testimony from plaintiff’s 11 mother and uncle without giving germane reasons for doing so. Dkt. 16 at 21. Defendant 12 responds that the ALJ provided germane reasons to discount plaintiff’s own testimony 13 and also found that plaintiff’s mother and uncle’s statements to be duplicative of plaintiff’s 14 own testimony and inconsistent with the evidence of record. Dkt. 17 at 15. 15 “[T]he ALJ may expressly disregard lay testimony if the ALJ ‘gives reasons 16 germane to each witness for doing so.’” Turner v. Comm’r of Soc. Sec., 613 F.3d 1217, 17 1224 (9th Cir. 2010) (quoting Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001)). “The 18 Ninth Circuit has never found an ALJ’s ‘silent disregard of lay testimony about how an 19 impairment limits a claimant’s ability to work’ to be harmless, and consistently reverses 20 the Commissioner’s decisions for “failure to comment on such competent testimony.’” 21 Stephens v. Colvin, No. 13-CV-05156-RS, 2014 WL 6982680, at *7 (N.D. Cal. Dec. 9, 22 2014) (quoting Stout v. Comm’r of Soc. Sec., 454 F.3d 1050, 1055–56 (9th Cir. 2006); 23 and citing Van Nguyen v. Charter, 100 F.3d 1462, 1467 (9th Cir. 1996); and Lev v. 24 Astrue, C 09–05074 RS, 2010 WL 3037261, at *6 (N.D. Cal. July 30, 2010)). 25 Here, the ALJ found third party functional reports and statements from plaintiff’s 26 mother and uncle to be unpersuasive for two reasons. First, the ALJ stated that plaintiff’s 27 mother’s functional report is “extraordinarily vague and duplicates claimant’s own 1 both plaintiff and his mother that plaintiff does not drive because he does not have a 2 driver’s license but other medical evidence of record indicates plaintiff’s license was 3 suspended for driving with an open container. Id. Second, the ALJ discounted Latreesha 4 Young’s third party statement of active psychosis as inconsistent with Gilligan’s nearly 5 contemporaneous assessment of psychosis in remission. Id. at 27–28. 6 The ALJ improperly discounted the third party lay testimony as conflicting or 7 inconsistent with plaintiff’s medical record. With regard to Latreesha Young’s third party 8 functional reports, the primary reason cited by the ALJ was the discrepancy concerning 9 plaintiff’s driver’s license. Plaintiff’s mother’s functional reports in this regard are limited. 10 In response to a worksheet that prompted her to explain why plaintiff does not drive, she 11 responded “no car & license.” Id. at 425 (dated July 1, 2015). It is not clear that 12 Latreesha Young’s response is inconsistent with the fact that plaintiff’s license was 13 suspended, i.e., “no car & license” could mean that plaintiff had no license because it was 14 suspended. The ALJ also found that the functional report conflicted with medical 15 evidence of record, which he did not specify other than citing exhibits in a parenthetical. 16 See Achakzai, 2020 WL 1450554, at *20 (finding that “[t]he ALJ did not provide a 17 germane reason tied to [a family member’s] testimony, but rather offered a vague and 18 general conclusion that did not point to any specific inconsistencies between [the family 19 member’s] testimony and the record”). Moreover, as discussed below, referring to 20 medical evidence of record is not an appropriate ground to reject competent lay 21 testimony. Given the ambiguity of her statement concerning a driver’s license and the 22 failure to cite specific medical evidence of record, the ALJ erred by failing to provide a 23 germane reason for discounting the third party functional report. 24 With regard to Latreesha Young’s third party statement, the ALJ did not identify 25 any particular testimony that he discounted other than generally referring to her 26 “statements of active psychosis [is] inconsistent with Nurse Gilligan’s nearly 27 contemporaneous assessment of psychosis in remission.” AR 27–28. With the 1 were inconsistent with specific portions of her testimony. See Brown-Hunter v. Colvin, 2 806 F.3d 487, 494 (9th Cir. 2015) (“Because the ALJ failed to identify the testimony she 3 found not credible, she did not link that testimony to the particular parts of the record 4 supporting her non-credibility determination.”); Burrell v. Colvin, 775 F.3d 1133, 1138 (9th 5 Cir. 2014) (noting that an ALJ must “elaborate on which daily activities conflicted with 6 which part of [the] testimony”). As discussed above, the ALJ failed to cite portions of 7 Gilligan’s treatment notes that support plaintiff’s mother’s testimony. 8 Even if the ALJ had been more specific in identifying treatment records, “a lack of 9 support from the treatment records or clinical findings is not a proper basis for 10 disregarding lay witness observations.” Peter T. H. v. Saul, No. 2:18-10680 ADS, 2020 11 WL 1441102, at *5 (C.D. Cal. Mar. 24, 2020) (citing Diedrich v. Berryhill, 874 F.3d 634, 12 640 (9th Cir. 2017)); see also Bruce v. Astrue, 557 F.3d 1113, 1116 (9th Cir. 2009) (“Nor 13 under our law could the ALJ discredit [the witness’s] lay testimony as not supported by 14 medical evidence in the record.”). “The fact that lay testimony and third-party function 15 reports may offer a different perspective than medical records alone is precisely why 16 such evidence is valuable at a hearing.” Diedrich, 874 F.3d at 640. Plaintiff’s mother, 17 while not a medical professional, had the opportunity to observe plaintiff in situations that 18 his treating providers or the examining physicians were unable to see. She has managed 19 plaintiff’s symptoms and has had experience in submitting third party functional reports 20 because plaintiff previously had Social Security disability payments as a child. See 21 Dodrill v. Shalala, 12 F.3d 915, 918–19 (9th Cir. 1993) (“[F]riends and family members in 22 a position to observe a claimant’s symptoms and daily activities are competent to testify 23 as to [his or] her condition.”). In sum, the ALJ erred by failing to provide germane 24 reasons to reject plaintiff’s mother’s testimony. 25 With regard to plaintiff’s uncle’s testimony, the ALJ does not explicitly reference 26 any portion of his declaration and instead generally refers to “[t]heir statements”. AR 27. 27 There is some tension in the controlling authority on the extent to which an ALJ must 1 competent lay witness testimony, the ALJ ‘must give reasons that are germane to each 2 witness.’” Molina v. Astrue, 674 F.3d 1104, 1114 (9th Cir. 2012) (emphasis added) 3 (quoting Dodrill, 12 F.3d at 919); see also Nguyen v. Chater, 100 F.3d 1462, 1467 (9th 4 Cir. 1996) (“[L]ay witness testimony as to a claimant’s symptoms or how an impairment 5 affects ability to work is competent evidence, and therefore cannot be disregarded 6 without comment.” (citing 20 C.F.R. § 404.1513(e); and Sprague v. Bowen, 812 F.2d 7 1226, 1232 (9th Cir. 1987); and Dodrill, 12 F.3d at 919)). On the other hand, defendant 8 cites Valentine v. Commissioner Social Security Administration, 574 F.3d 685, 694 (9th 9 Cir. 2009), where the Ninth Circuit held that because “the ALJ provided clear and 10 convincing reasons for rejecting [the claimant’s] own subjective complaints, and because 11 [the lay witness’s] testimony was similar to such complaints, it follows that the ALJ also 12 gave germane reasons for rejecting [the lay witness’s] testimony.” The court in Molina 13 cited the foregoing excerpt from Valentine for the proposition that “[w]e have not, 14 however, required the ALJ to discuss every witness’s testimony on a [sic] individualized 15 witness-by-witness basis.” Molina, 674 F.3d at 1114. Thus, Valentine provides a narrow 16 exception to the requirement to provide a germane reason to reject each witness. 17 That exception is not applicable here because this court has already determined 18 that the ALJ failed to provide clear and convincing reason to reject plaintiff’s own 19 subjective complaints. See supra section B.4. Moreover, the Valentine exception should 20 not be read too broadly. As the district court in Stephens noted,

21 In Valentine, however, the ALJ did not silently reject witness testimony, but rather explicitly discounted the claimant’s wife’s 22 testimony based on specific reasons already enumerated to discredit the claimant’s testimony. Valentine is thus better 23 understood as allowing ALJs to reject lay witness testimony only with express reference to reasons already put forth to 24 reject similar testimony and “t[ying] the reasoning of their credibility determinations to the particular witnesses whose 25 testimony they reject.” 26 Stephens, 2014 WL 6982680, at *7 (quoting Valentine, 574 F.3d at 694). This approach 27 is in accord with the clear requirements in cases like Nguyen and Dodrill that lay 1 Nguyen, 100 F.3d at 1467; Dodrill, 12 F.3d at 919. Plaintiff’s uncle lived with him and 2 had the opportunity to observe plaintiff on a daily basis, which indicates why such 3 testimony is competent evidence. Moreover, plaintiff’s uncle disclosed that he “used to 4 work as a mental health professional, caring for people similar to Marcell.” AR 640. The 5 ALJ erred by rejecting plaintiff’s uncle’s testimony. 6 The errors concerning third party testimony was not harmless. “Where an ALJ 7 fails properly to consider competent lay testimony favorable to a claimant, the reviewing 8 court may not consider the error harmless ‘unless it can confidently conclude that no 9 reasonable ALJ, when fully crediting the testimony, could have reached a different 10 disability determination.’” Stephens, 2014 WL 6982680, at *7 (quoting Stout, 454 F.3d at 11 1056). Here, plaintiff’s mother testified that plaintiff “does not realize that something is 12 wrong with him. He will act like nothing is wrong, and sometimes he doesn’t want people 13 to know that he has schizophrenia.” AR 636. She stated that, unless she reminds him, 14 plaintiff “will go long periods of time without showering, doing laundry, or maintaining 15 basic hygiene” and that plaintiff cannot manage his own money. Id. at 636–37. She 16 acknowledged that plaintiff has improved on treatment and has good days, but she also 17 stated that “he has not stopped hearing voices or experiencing severe, totally 18 overpowering paranoia.” Id. at 637. If credited, plaintiff’s mother’s testimony could 19 support a finding that plaintiff is disabled. For example, the vocational expert testified 20 that a hypothetical individual with plaintiff’s RFC and attributes would not be able to find 21 gainful employment if that person missed two days of work per month. Id. at 67–68. 22 Plaintiff’s mother’s testimony, if credited, indicates that plaintiff is frequently absent from 23 his employment and his medication does not prevent plaintiff from entirely hearing voices 24 or experiencing overpowering paranoia. 25 Similarly, plaintiff’s uncle described “episodes of paranoia, anxiety, and strange 26 behavior” and includes examples of specific episodes, for example, “Marcell consistently 27 eats too much food, to the point where he vomits, despite having done this before.” Id. at 1 6. Whether the ALJ Erred in Assessing Plaintiff’s RFC and Relying on 2 the Medical-Vocational Guidelines 3 Because the two issues are related, the court combines its discussion of the ALJ’s 4 assessment of plaintiff’s RFC and his application of that RFC in step five. With regard to 5 the RFC assessment, plaintiff contends that the ALJ erred by failing to include all of 6 plaintiff’s limitations in his RFC and, further, that the RFC assessment was not supported 7 by substantial evidence. Dkt. 16 at 23. Defendant argues that plaintiff’s challenges to 8 the RFC assessment are dependent on his other arguments, which defendant contends 9 are supported by substantial evidence. Dkt. 17 at 15. 10 With regard to step five, plaintiff argues that the ALJ erred by applying the 11 Medical-Vocational Guidelines rather than relying on the vocational expert who testified 12 at the hearing. Dkt. 16 at 24–25. Defendant responds that the Ninth Circuit has held that 13 an ALJ need not consult a vocational expert when a claimant experiences moderate 14 mental limitations, which defendant contends was the case here. Dkt. 17 at 15–16. 15 At step three, the ALJ is required to determine a claimant’s RFC and at step four, 16 the ALJ applies the RFC to determine whether the plaintiff can perform the requirements 17 of past relevant work. An individual’s RFC is what he can still do in a workplace setting 18 despite his physical and mental limitations. 20 C.F.R. § 416.945. At step five, the 19 government has the limited burden of demonstrating that other work exists in significant 20 numbers given a claimant’s RFC, education, age, and work experience. 20 C.F.R. 21 §§ 416.912(f); 416.960(c). 22 One means of demonstrating that other work exists in the Medical-Vocational 23 Guidelines. “The Medical–Vocational Guidelines are a matrix system for handling claims 24 that involve substantially uniform levels of impairment.” Tackett v. Apfel, 180 F.3d 1094, 25 1101 (9th Cir. 1999) (citing 20 C.F.R. Pt. 404, Subpt. P, App. 2). The Ninth Circuit has 26 explained the mechanics of the Medical-Vocational Guidelines (also known as the 27 “grids”): determining the availability and numbers of suitable jobs for a 1 claimant. . . . The grids categorize jobs by their physical- exertional requirements and consist of three separate tables- 2 one for each category: “[m]aximum sustained work capacity limited to sedentary work,” “[m]aximum sustained work capacity 3 limited to light work,” and “[m]aximum sustained work capacity limited to medium work.” Each grid presents various 4 combinations of factors relevant to a claimant’s ability to find work. The factors in the grids are the claimant’s age, education, 5 and work experience. For each combination of these factors, e.g., fifty years old, limited education, and unskilled work 6 experience, the grids direct a finding of either “disabled” or “not disabled” based on the number of jobs in the national economy 7 in that category of physical-exertional requirements. 8 Id. (alterations in original) (footnote omitted) (quoting 20 C.F.R. Pt. 404, Subpt. P, App. 2, 9 Rule 200.00). “The ALJ may rely on the grids alone to show the availability of jobs for the 10 claimant ‘only when the grids accurately and completely describe the claimant’s abilities 11 and limitations.’” Id. at 1102 (quoting Jones v. Heckler, 760 F.2d 993, 998 (9th Cir. 12 1985); and citing 20 C.F.R. Pt. 404, Subpt. P, App. 2, Rule 200(e); and Desrosiers v. 13 Sec. of Health & Human Servs., 846 F.2d 573, 577 (9th Cir. 1988)). 14 There are circumstances, however, when an ALJ may not use the grids. For 15 example, “significant non-exertional impairments, such as poor vision or inability to 16 tolerate dust or gases may make reliance on the grids inappropriate.” Desrosiers, 846 17 F.2d at 577 (citations omitted). Further, “the grids are inapplicable ‘[w]hen a claimant’s 18 non-exertional limitations are sufficiently severe so as to significantly limit the range of 19 work permitted by the claimant’s exertional limitations.’” Hoopai v. Astrue, 499 F.3d 20 1071, 1075 (9th Cir. 2007) (alteration in original) (internal quotation marks omitted) 21 (quoting Burkhart v. Bowen, 856 F.2d 1335, 1340 (9th Cir. 1988)). “[T]he severity of 22 limitations at step five that would require use of a vocational expert must be greater than 23 the severity of impairments determined at step two, otherwise the two steps would 24 collapse and a vocational expert would be required in every case in which a step-two 25 determination of severity is made.” Id. (citing Heckler v. Campbell, 461 U.S. 458, 461 26 (1983)). 27 Here, at step four, the ALJ determined that plaintiff could not perform his past 1 plaintiff’s ability to work at all exertional levels was compromised by non-exertional 2 limitations, but then found that “these limitations have little or no effect on the 3 occupational base of unskilled work at all exertional levels.” Id. The ALJ applied the 4 Medical-Vocational Guidelines to find that plaintiff was not disabled. Id. 5 As discussed above, the ALJ erred when he gave little weight to the opinions of 6 Gilligan, Shepard, and Franklin and Childs. The ALJ’s assessment of plaintiff’s RFC is, 7 therefore, tainted with legal error by failing to incorporate the limitations and restrictions 8 identified in these opinions. Further, the ALJ failed to consider any restrictions imposed 9 by patient’s borderline intellectual functioning. This impairment could also impose 10 additional limitations that the ALJ did not explore—especially if plaintiff’s borderline 11 intellectual functioning compounded his ability to comprehend his own psychosis and 12 schizophrenia impairments. Finally, the ALJ failed to properly credit plaintiff’s testimony, 13 as well as the third party testimony of plaintiff’s mother and uncle. Therefore, to the 14 extent that the ALJ’s assessment of plaintiff’s RFC did not include these revised 15 limitations, the assessment was not supported by substantial evidence. 16 The erroneous RFC assessment also tainted the ALJ’s determination whether 17 plaintiff’s non-exertional limitations were “sufficiently severe so as to significantly limit the 18 range of work permitted by the claimant’s exertional limitations.” Hoopai, 499 F.3d at 19 1075. A revised RFC could result in non-exertional limitations that are sufficiently severe 20 such that the Medical-Vocational Guidelines were not applicable. 21 One final issue bears mention. At the hearing, the ALJ received testimony from a 22 vocational expert. The ALJ posed to the expert two hypotheticals. First, he asked 23 whether (1) an individual with plaintiff’s age and education; (2) holding the position of 24 postal mail carrier; (3) who had mental limitations such that he could respond “frequently” 25 to supervisors, coworkers, and the public; and (4) would be absent from work two days a 26 month would be able to hold the position of mail carrier. AR 67. The expert responded 27 that the hypothetical person would not be able to hold such a position because two days 1 market.” Id. at 67–68. Second, the ALJ asked her “[c]an the hypothetical individual 2 perform any other work” to which the expert responded “no” for the same reason as her 3 first answer. Id. at 68. Despite this testimony, in his opinion, the ALJ failed to discuss the 4 expert’s testimony and instead applied the Medical-Vocational Guidelines. The only 5 instance where he mentioned the vocational expert was to identify plaintiff’s past relevant 6 work. Id. at 29. 7 It is curious that an ALJ would solicit a vocational expert’s opinion and then ignore 8 that opinion in arriving at his conclusion concerning a claimant’s disability. As the 9 foregoing case law reveals, there may be instances where the ALJ can resolve the step 10 five assessment solely by referring to the Medical-Vocational Guidelines. Indeed, the 11 SSA regulations are permissive when discussing whether a vocational expert will be 12 used. See 20 C.F.R. § 416.960(b)(2) (“We may use the services of vocational experts or 13 vocational specialists . . . to obtain evidence we need to help us determine whether you 14 can do your past relevant work, given your residual functional capacity.” (emphasis 15 added)). 16 There is no controlling Ninth Circuit opinion on the issue of whether, having 17 solicited a vocational expert’s opinion, an ALJ errs by subsequently ignoring that opinion. 18 One other district court in this district and a Tenth Circuit opinion have found such a 19 circumstance to be error. Vasquez-Zarate v. Colvin, No. 4:12-CV-03843-KAW, 2014 WL 20 12482622, at *8 (N.D. Cal. Feb. 20, 2014); see also Campbell v. Bowen, 822 F.2d 1518, 21 1523 & n.6 (10th Cir. 1987) (stating that “[a]n administrative law judge may not ask a 22 vocational expert a hypothetical question based on substantial evidence and then ignore 23 unfavorable answers”). At the very least, the vocational expert’s testimony constituted 24 lay evidence, which cannot be silently rejected. As the Vasquez-Zarate court recognized, 25 “lay testimony as to a claimant’s symptoms or how an impairment affects ability to work is 26 competent evidence and therefore cannot be disregarded without comment.” 2014 WL 27 12482622, at *8 (quoting Stout, 454 F.3d at 1056). The court finds the Vasquez-Zarate 1 vocational expert, especially evidence that tends to support plaintiff’s claim, without 2 comment. Thus, the ALJ erred when he failed to discuss the vocational expert’s 3 testimony in his step five analysis. 4 7. Whether the Court Should Remand for Further Proceedings 5 “Remand for further administrative proceedings is appropriate if enhancement of 6 the record would be useful.” Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004) 7 (citing Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir. 2000)). In contrast, under 8 Harman, the court may credit evidence that was rejected by the ALJ and remand for an 9 award of benefits “if (1) the ALJ failed to provide legally sufficient reasons for rejecting the 10 evidence; (2) there are no outstanding issues that must be resolved before a 11 determination of disability can be made; and (3) it is clear from the record that the ALJ 12 would be required to find the claimant disabled were such evidence credited.” Id. 13 Here, remand for further proceedings is appropriate in this instance. The ALJ 14 failed to provide adequate reasons for the weight assigned to various opinions, including 15 those proffered by Gilligan, Shepard, and Childs and Franklin. The ALJ also failed to 16 provide adequate reasons for rejecting plaintiff’s testimony, his mother’s testimony, and 17 his uncle’s testimony. Lastly, the ALJ failed to consider plaintiff’s borderline intellectual 18 functioning as an impairment. 19 Such failures leave open various outstanding issues. Such issues include how to 20 weigh the various medical opinions once the ALJ remedies the above referenced 21 deficiencies and how to weigh the lay testimony (once the ALJ reweighs the professional 22 opinions). These revised opinions will then impact the ALJ’s assessment of plaintiff’s 23 RFC and the subsequent step five analysis. These issues are evidentiary in nature and, 24 therefore, the ALJ is best situated to resolve them. 25 As a result, the court remands for further proceedings in accordance with this 26 opinion. The ALJ must separately analyze and set forth adequate reasons for each 27 shortcoming identified above for each professional opinion. Further development of the 1 each such opinion to reach a conclusion on whether plaintiff is disabled. 2 CONCLUSION 3 For the foregoing reasons, plaintiff’s motion for summary judgment is GRANTED 4 and defendant’s cross-motion for summary judgment is DENIED. The court REMANDS 5 this action to the ALJ for further proceedings in accordance with this order. This order 6 adjudicates all pending motions and closes this case. 7 IT IS SO ORDERED. 8 Dated: June 29, 2020 9 /s/ Phyllis J. Hamilton PHYLLIS J. HAMILTON 10 United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27