(SS) Sondra Dynese Burton v. Commissioner of Social Security ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 SONDRA DYNESE BURTON, ) Case No.: 1:18-cv-1132 - JLT ) 12 Plaintiff, ) ORDER REMANDING THE ACTION PURSUANT ) TO SENTENCE FOUR OF 42 U.S.C. § 405(g) 13 v. ) ) ORDER DIRECTING ENTRY OF JUDGMENT IN 14 ANDREW M. SAUL1, ) FAVOR OF SONDRA DYNESE BURTON, AND Commissioner of Social Security, ) AGAINST DEFENDANT ANDREW M. SAUL, 15 ) COMMISSIONER OF SOCIAL SECURITY Defendant. ) 16 ) 17 Sondra Dynese Burton asserts she is entitled to continuing benefits under Title II of the Social 18 Security Act, and her benefits should not have been terminated. Plaintiff argues the administrative law 19 judge erred in evaluating the record and seeks judicial review of the decision finding her disability had 20 ended. Because the ALJ erred in evaluating the medical opinions related to Plaintiffs physical and 21 mental limitations, the matter is REMANDED for further proceedings pursuant to sentence four of 42 22 U.S.C. § 405(g). 23 BACKGROUND 24 Plaintiff reported she was unable to work due to fibromyalgia, headaches with nausea, IBS, 25 immune system problems, concentration, and balance problems. (Doc. 10-5 at 2) The Administration 26 determined the medical evidence submitted showed Plaintiff was disabled as of March 6, 2007, based 27 1 This action was originally brought against Nancy A. Berryhill in her capacity as then-Acting Commissioner. 28 (See Doc. 1) Andrew M. Saul, who is now the Commissioner, has been automatically substituted as the defendant in this 1 upon her “impairments and weight loss.” (Id. at 3) Plaintiff’s application was reviewed in November 2 2008, and the medical evidence showed her “condition [remained] severe enough to qualify for 3 benefits.” (Id. at 20) 4 In April 2014, the Administration reviewed Plaintiff’s case and found that her health had 5 improved, and Plaintiff was able to work. (Doc. 10-5 at 20) Plaintiff reported that she was disabled due 6 fibromyalgia, headaches, vomiting, stomach problems, and mesenteric artery syndrome. (Id.) The 7 Administration found these conditions were “no so severe as to be totally disabling,” and despite 8 Plaintiff’s lack of work experience, she “should be able to work at some jobs which are not difficult to 9 learn and remember.” (Id.) 10 Plaintiff requested a hearing, asserting her condition was “worse than when [she] originally was 11 put on disability.” (Doc. 10-5 at 55) The request for a hearing was granted, and Plaintiff testified 12 before an administrative law judge on March 28, 2017. (Doc. 10-3 at 16) The ALJ determined 13 Plaintiff’s disability ended as of March 26, 2014 and issued an order that affirmed the termination of 14 benefits on July 6, 2017. (Id. at 16-24) Plaintiff requested review by the Appeals Council, which 15 denied her request on June 18, 2018. (Id. at 2-5) Therefore, the ALJ’s determination became the final 16 decision of the Commissioner of Social Security. 17 STANDARD OF REVIEW 18 District courts have a limited scope of judicial review for disability claims after a decision by 19 the Commissioner to deny benefits under the Social Security Act. When reviewing findings of fact, 20 such as whether a claimant was disabled, the Court must determine whether the Commissioner’s 21 decision is supported by substantial evidence or is based on legal error. 42 U.S.C. § 405(g). The 22 ALJ’s determination that the claimant is not disabled must be upheld by the Court if the proper legal 23 standards were applied and the findings are supported by substantial evidence. See Sanchez v. Sec’y of 24 Health & Human Serv., 812 F.2d 509, 510 (9th Cir. 1987). 25 Substantial evidence is “more than a mere scintilla. It means such relevant evidence as a 26 reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 27 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197 (1938)). The record as a whole 28 must be considered, because “[t]he court must consider both evidence that supports and evidence that 1 detracts from the ALJ’s conclusion.” Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). 2 REVIEW OF DISABILITY BENEFITS 3 Recipients of disability benefits are subject to periodic review of their continued entitlement to 4 such benefits. 20 C.F.R. § 404.1594(a). The Commissioner must review the individual’s evidence of 5 continuing disability “on a neutral basis.” 20 C.F.R. § 404.1594(b)(6). When substantial evidence 6 demonstrates that the individual is able to engage in substantial gainful activity as a result of medical 7 improvement, the Commissioner will terminate the award of disability benefits. 42 U.S.C. § 423(f)(1). 8 “To assure that disability reviews are carried out in a uniform manner, that decisions of 9 continuing disability can be made in the most expeditious and administratively efficient way, and that 10 any decisions to stop disability benefits are made objectively, neutrally and are fully documented,” the 11 Commissioner established an eight-step process for the reviews. 20 CFR § 404.1594(f). The process 12 requires the ALJ to determine at steps one through four whether Plaintiff: (1) is engaging in substantial 13 gainful activity, (2) has an impairment that meets or medically equals a listed impairment forth in 20 14 C.F.R. § 404, Subpart P, Appendix 1, and (3) had a medical improvement (4) related to her ability to 15 work. Id. At step five, if there was no medical improvement, or the improvement was not related to 16 the claimant’s ability to work, the ALJ considers whether an exception under the Regulations may be 17 applied. Id., § 404.1594(f). Next, if the medical improvement relates to the ability to do work, the ALJ 18 must evaluate whether the claimant’s “impairments in combination are severe.” Id. If the impairments 19 are severe, the ALJ will determine at step seven whether a claimant has the ability to “do work … done 20 in the past.” Id. If so, the ALJ may stop the sequential process and “disability will be found to have 21 ended.” Id., § 404.1594(f)(7). When a claimant cannot perform past work, an ALJ considers at step 22 eight whether a claimant has the ability to do other work, considering her residual functional capacity, 23 age, education, and past work experience. Id., § 404.1594(f)(8). 24 Pursuant to the eight-step process, the ALJ determined first that Plaintiff had not engaged in 25 substantial gainful activity. (Doc. 10-3 at 18) The ALJ found Plaintiff’s medically determinable 26 impairments, as of March 26, 2014, included: “fibromyalgia; left shoulder internal derangement; mild 27 bilateral carpal tunnel syndrome; chronic pain syndrome; abdominal pain of unknown etiology; status 28 post superior mesenteric artery atheroma syndrome surgery; and migraine headaches.” (Id.) At step 1 three, the ALJ found these impairments did not meet or medically meet a Listing. (Id.) At step four, 2 the ALJ determined Plaintiff had “[m]edical improvement occurred as of March 26, 2014,” and noted 3 her “body mass index improved from 15.0 to 20.1-21.25.” (Id.) The ALJ concluded the medical 4 improvement was related to Plaintiff’s ability to work because her impairments “no longer met or 5 medically equal[] the same listing that was [previously] met.” (Id.) At step six, the ALJ determined 6 Plaintiff “continued to have a severe impairment or combination of impairments.” (Id.) 7 Next, the ALJ evaluated Plaintiff’s residual functional capacity as of March 26, 2014, and 8 determined: 9 [T]he claimant had the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) except the claimant can lift and carry 20 pounds occasionally and 10 10 pounds frequently; sit 6 hours in an 8 hour day; stand and walk 6 hours in an 8 hour day; occasionally stoop, crouch, kneel, crawl, and climb ladders, ropes, and scaffolds; 11 frequently climb stairs and ramps; occasionally reach overhead; and occasionally perform forceful [gripping] and grasping. 12 13 (Doc. 10-3 at 19) Plaintiff did not have past relevant work for the ALJ to evaluate with this residual 14 functional capacity. (Id. at 22) At step eight, the ALJ determined, “As of Mach 26, 2014, considering 15 the claimant’s age, education, work experience, and residual functional capacity based on the 16 impairments present as of March 26, 2014, the claimant was able to perform a significant number of 17 jobs in the national economy.” (Id.) Thus, the ALJ concluded Plaintiff’s disability had ended. (Id.) 18 DISCUSSION AND ANALYSIS 19 Plaintiff argues the ALJ erred in evaluating the medical record by rejecting the opinions of her 20 treating physicians. (Doc. 14 at 15-19) In addition, Plaintiff contends the ALJ failed to properly 21 address her mental impairments. (Id. at 19-22) The Commissioner asserts that the ALJ’s evaluation of 22 the medical evidence was proper, and she “properly found Plaintiff’s mental impairments as not 23 severe.” (Doc. 16 at 4, 11) (emphasis omitted). 24 A. Evaluation of the Medical Record 25 In this circuit, the courts distinguish the opinions of three categories of physicians: (1) treating 26 physicians; (2) examining physicians, who examine but do not treat the claimant; and (3) non- 27 examining physicians, who neither examine nor treat the claimant. Lester v. Chater, 81 F.3d 821, 830 28 (9th Cir. 1996). In general, the opinion of a treating physician is afforded the greatest weight, but it is 1 not binding on the ultimate issue of a disability. Id.; see also 20 C.F.R. § 404.1527(d)(2); Magallanes 2 v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). However, a physician’s opinion is not binding upon the 3 ALJ, and may be discounted whether another physician contradicts the opinion. Magallanes, 881 F.2d 4 at 751. An ALJ may reject an uncontradicted opinion of a treating or examining medical professional 5 only by identifying a “clear and convincing” reason. Lester, 81 F.3d at 831. In contrast, a contradicted 6 opinion of a treating or examining professional may be rejected for “specific and legitimate reasons that 7 are supported by substantial evidence in the record.” Id., 81 F.3d at 830. When there is conflicting 8 medical evidence, “it is the ALJ’s role to determine credibility and to resolve the conflict.” Allen v. 9 Heckler, 749 F.2d 577, 579 (9th Cir. 1984). 10 Plaintiff contends the ALJ erred in addressing the opinions of her treating physicians, Parmod 11 Kumar and Ramu Thiagarajan, who offered opinions related to Plaintiff’s physical limitations and 12 abilities. (Doc. 14 at 15-19) Because their opinions were contradicted by Dr. Frankel, a reviewing 13 physician, the ALJ was required to identify specific and legitimate reasons to reject the limitations 14 identified by Drs. Kumar and Thiagarajan. See Lester, 81 F.3d at 831. In addition, Plaintiff asserts the 15 ALJ erred in evaluating the opinions from Dr. Pauline Bonilla, who performed a psychological 16 consultative examination, and Dr. Olaya, who completed a mental residual functional capacity 17 assessment. (Id. at 19-21) As these physicians were the only two to give opinions related to Plaintiff’s 18 mental functioning, the ALJ was required to identify clear and convincing reasons to reject the 19 limitations. See Lester, 81 F.3d at 830. 20 1. Opinion of Dr. Parmod Kumar 21 On February 4, 2015, Dr. Kumar wrote a letter in which he indicated that he was Plaintiff’s 22 “gastroenterologist and internist for many years.”2 (Doc. 10-17 at 39) Dr. Kumar noted Plaintiff had 23 been diagnosed with “Super mesenteric artery/SMA syndrome, for which she underwent extensive 24 exploratory laparotomy.” (Id.) In addition, Dr. Kumar noted Plaintiff had a gastrojejunostomy surgery, 25 after which her symptoms “improved somewhat but not to the point where she is pain free.” (Id.) 26 According to Dr. Kumar, Plaintiff began to have more pain after the surgery, and an “upper endoscopy 27 28 2 The ALJ erroneously identified Dr. Kumar as Plaintiff’s neurologist, rather than her gastroenterologist. (Doc. 1 revealed that she [had] a large marginal ulcer at the anastomotic site after surgical intervention.” (Id.) 2 Dr. Kumar noted Plaintiff also had been diagnosed with fibromyalgia, gastritis, and gastroesophageal 3 reflux disease (GERD). (Id.) Dr. Kumar opined: 4 All these medical conditions have caused her to have Crippling Function Bowel disease, which causes her to have abdominal bloating, abdominal pain, abdominal 5 discomfort and diarrhea. These conditions enable her to have full-time employment of 8 hours a day, 5 days a week. 6 Based on my brief description of her medical history it is my professional opinion that 7 she should be granted full disability. 8 (Id.) 9 The ALJ addressed this statement from Dr. Kumar and stated the physician “commented that 10 although the claimant suffers from abdominal pain, the claimant is able to have full-time employment 11 of 8 hours a day, 5 days a week.” (Doc. 10-3 at 21) The ALJ indicated, “The opinions of Dr. Kumar 12 are generally accepted since they are not inconsistent with the entire medical evidence.” (Id.) 13 Plaintiff asserts the ALJ “exploits what appears to be a typographical error from Dr. Kumar, 14 when the opinion is viewed in context.” (Doc. 14 at 18) Plaintiff argues that “the entire context of Dr. 15 Kumar’s note explains in great detail why he believes that Plaintiff is not capable of full-time work, and 16 the single statement indicating she can work is quite clearly a typographical error.” (Id.) According to 17 Plaintiff, “Where the ALJ misstates a doctor’s opinion and fails account for the limitations truly opined 18 by the physician, the court should remand for proper consideration of the opinion.” (Id. at 17-18, citing 19 Regennitter v. Comm’r Soc. Sec. Admin., 166 F.3d 1294, 1297 (9th Cir. 1999) [finding “inaccurate 20 characterization of the evidence” warrants remand]). 21 As Plaintiff observes, Dr. Kumar explicitly stated that he believed Plaintiff “should be granted 22 full disability.” (See Doc. 10-17 at 39) Though this is an opinion on an issue reserved for the 23 Commissioner, the statement appears to support a conclusion that there was a typographical error as 24 Plaintiff argues, and that Dr. Kumar believed Plaintiff’s conditions did not enable her to be employed 25 full time. The ALJ did not address the final statement of the letter. Likewise, the ALJ did not address 26 opinion that Plaintiff was diagnosed with Crippling Function Bowel disease and the resulting 27 symptoms. (See Doc. 10-3 at 21-22) Thus, it appears that the ALJ failed to consider the statement as a 28 whole. The ALJ’s selective reading of the opinion from Dr. Kumar does not support the determination 1 that Plaintiff is able to perform full time work. See, e.g., Carpenter v. Astrue, 537 F.3d 1264, 1265 2 (10th Cir. 2008) (the ALJ may not “pick and choose … using portions of evidence favorable to his 3 position while ignoring other evidence”); Forman v. Comm’r of Soc. Sec. Admin, 2019 WL 5388038 4 (D. Az. Oct. 22, 2019) (observing that an ALJ is required to read records “in their proper context”); 5 Wick v. Astrue, 2009 WL 2393106 (D. Or. July 31, 2019) (finding that an ALJ erred by omitting a 6 physician’s discussion of the claimant’s condition and overall prognosis, because it resulted in “a 7 selective reading of the record”). 8 2. Opinion of Dr. Ramu Thiagarajan 9 On April 26, 2016, Dr. Thiagarajan completed a “Fibromyalgia Medical Source Statement,” in 10 which she indicated that she had been treating Plaintiff since September 2015. (Doc. 10-26 at 73) 11 According to Dr. Thiagarajan, the 2010 American College of Rheumatology Criteria for the 12 Classification of Fibromyalgia, including tender point criteria, were satisfied for Plaintiff. (Id.) She 13 indicated Plaintiff’s signs and symptoms included a history of widespread pain, tender points, cognitive 14 dysfunction, frequent severe headaches, dizziness, weakness, chronic fatigue syndrome, depression, and 15 more. (Id. at 73-74) Dr. Thiagarajan noted Plaintiff had also been diagnosed with chronic refractory 16 migraines and ulcerative colitis. (Id.) She indicated Plaintiff’s pain could be precipitated by changing 17 weather, fatigue, movement/overuse, cold, stress, and sleep problems. (Id.) Dr. Thiagarajan also 18 believed emotional factors contributed to the severity of Plaintiff’s symptoms and functional 19 limitations. (Id. at 74) Dr. Thiagarajan noted Plaintiff was “[n]ot any better with medication intake,” 20 and side effects from Lyrica and Cymbalta included weight gain and increased somnolence. (Id. at 75) 21 Dr. Thiagarajan opined Plaintiff did not have “the stamina and endurance to work an easy job 8 hours 22 per day 5 days per week” due to “chronic persistent pain [and] headache.” (Id.) She indicated Plaintiff 23 needed to be able to shift positions at will, and to take breaks every hour to rest due to pain and fatigue. 24 (Id. at 76) Further, Dr. Thiagarajan indicated Plaintiff could use her hands for grasping, reaching, and 25 fine manipulations only 10% of a workday. (Id.) She concluded Plaintiff was likely to be off task 20% 26 of a day due to her symptoms interfering with attention and concentration, and Plaintiff was likely to 27 miss more than four days per month of work as a result of her impairments. (Id.) 28 The ALJ reviewed this statement and indicated she gave “little weight” to the opinions from 1 Dr. Thiagarajan, stating: 2 Ramu Thiagarajan, M.D. opined the claimant does not have the ability to work 8 hours per day due to chronic persistent pain and headaches; can only use her hands 10% 3 during an 8 hour day; off tasks 20%; and miss work more than four days per month (Exhibit 36F/4-6). The opinions of Dr. Thiagarajan are given little weight since they 4 are not supported by [her] own physical examination despite the claimant’s subjective complaints: well developed and nourished appearance; full range of motion of neck; 5 regular rate and rhythm cardiovascularly; normal range of motion, strength, and tone; intact cranial nerves, motor and sensory function, reflexes, gait, and coordination; 6 tenderness in several points; and appropriate affect, demeanor, and normal speech, and normal memory (Exhibit 34F/4, 11-12, 14-15, 18-19, 23). In addition, during the same 7 period between September and November 2015, the claimant reported no weight change, generally healthy, no change in strength or exercise tolerance to another 8 physician, Dr. Sanchez (Exhibit 32F/28, 26, 24). Dr. Sanchez’ physical examination was similar to Dr. Thiagarajan’s findings: full range of motion, intact cranial pairs, +2 9 and symmetrical deep tendon reflexes, 5/5 motor strength, intact sensory, normal gait, and normal balance (Exhibit 32F/29, 27, 25, 23). 10 11 (Doc. 10-3 at 21-22) Plaintiff contends the ALJ engaged in a “selective discussion of the evidence” to 12 reject the limitations identified by Dr. Thiagarajan, which is “insufficient to support the rejection of a 13 treating physician’s opinion.” (Doc. 14 at 16) 14 Plaintiff asserts, “The ALJ’s recitation of normal findings, none of which are related to migraine 15 headaches and associated neurological problems, does not support the rejection of this opinion.” (Doc. 16 14 at 16) She observes that Dr. Thiagarajan’s examination findings included “significant tenderness in 17 several tender points on exam” and an “MRI of the brain revealed white matter changes.” (Id., citing 18 AR 1288 [Doc. 10-26 at 36]) In addition, Plaintiff contends the ALJ erred in summarizing findings of 19 Dr. Sanchez observed that “Plaintiff presented as emaciated and sickly, with weight loss and headaches, 20 and he found tenderness in the abdomen, spastic paraspinal muscles in the neck, and marked wasting of 21 musculature of all extremities.” (Id. at 17, citing AR 1196, 1201 [Doc. 10-25 at 17, 22]) Further, she 22 notes that the opinions from Dr. Thiagarajan were consistent with the findings of Dr. Sorenson, whose 23 “examination findings included hyper-reflexia with weakness in the left upper extremity, and 24 dysesthesia of the bilateral upper and lower extremities.” (Id., citing AR 1317 [Doc. 10-26 at 65]) 25 Notably, the Ninth Circuit determined an ALJ may reject limitations “unsupported by the record 26 as a whole” and inconsistent with the treatment a claimant received. Mendoza v. Astrue, 371 Fed. 27 Appx. 829, 831-32 (9th Cir. 2010). However, in this event, the ALJ has a burden to “set[] out a 28 detailed and thorough summary of the facts and conflicting clinical evidence, stating his interpretation 1 thereof, and making findings.” Cotton v. Bowen, 799 F.2d 1403, 1408 (9th Cir. 1986); see also Reddick 2 v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (“The ALJ must do more than offer his conclusions. He 3 must set forth his own interpretations and explain why they, rather than the doctors’, are correct.”). For 4 example, an ALJ may also discount the opinion of a treating physician by identifying an examining 5 physician’s findings to the contrary and identifying the evidence that supports that finding. See, e.g., 6 Creech v. Colvin, 612 F. App’x 480, 481 (9th Cir. 2015). 7 The ALJ fails to connect the normal findings identified to the limitations from Dr. Thiagarajan 8 related to Plaintiff’s stamina and endurance. Likewise, the ALJ fails to explain how Plaintiff’s normal 9 gait, reflexes, and coordination relate to whether or not Plaintiff could use her hands, would be off task, 10 or ability to complete a normal workweek. The ALJ also ignored the findings from Dr. Sanchez related 11 to Plaintiff’s weight loss and “[m]arked wasting of musculature of all extremities,” instead stating that 12 Dr. Sanchez believed Plaintiff was “generally healthy” and she had full motor strength. (Compare Doc. 13 10-3 at 22 with Doc. 10-25 at 22). Because the ALJ fails to explain how the findings identified conflict 14 with Dr. Thiagarajan’s opinions—including related to Plaintiff’s need to be able to switch positions, 15 endurance, stamina, and likelihood to miss more than four days of work each month—the ALJ erred in 16 evaluating the limitations identified by Plaintiff’s treating physician.3 Further, the ALJ erred by failing 17 to address probative findings from Dr. Sanchez that supported Dr. Thiagarajan’s opinion and instead 18 engaging in a selective review of the record related to Plaintiff’s physical functioning. Thus, the 19 purported inconsistencies do not support the ALJ’s decision to reject the limitations identified by Dr. 20 Thiagarajan. 21 3. Opinions related to Plaintiff’s mental functioning 22 Dr. Pauline Bonilla performed a comprehensive psychiatric evaluation on December 28, 2014, 23 at which time Plaintiff reported “a history of depressive symptoms since being diagnosed with 24 fibromyalgia.” (Doc. 10- 17 at 18) Plaintiff told Dr. Bonilla that she was depressed due to her medical 25 issues, chronic pain, decreased quality of life, inability to provide for herself financially, and physical 26 limitations. (Id. at 18-19) Plaintiff stated she had difficulty concentrating, a low frustration tolerance, 27 28 3 Notably, the ALJ did not acknowledge Dr. Thiagarajan’s opinion that Plaintiff needed to be able to switch 1 and poor sleep. (Id. at 19-20) Dr. Bonilla observed that Plaintiff’s mood was euthymic, her behavior 2 was cooperative, and her attitude was pleasant. (Id. at 20) Plaintiff “was able to recall 4/4 digits 3 forward and 4/4 digits backwards” and “recall 3/3 objects after five minutes.” (Id.) Dr. Bonilla noted 4 Plaintiff “had some difficulty performing simple mathematical calculations and serial 3s.” (Id. at 21) 5 She found Plaintiff could “perform a simple three-step command successfully” and opined Plaintiff’s 6 “concentration was within normal limits.” (Id.) Dr. Bonilla diagnosed Plaintiff with “Mood Disorder 7 NOS secondary to medical condition,” and gave her a GAF score of 64.4 (Id.) She believed Plaintiff’s 8 symptom severity was “in the moderate range.” (Id. at 22) Dr. Bonilla opined Plaintiff was “mildly-to- 9 moderately impaired” with the ability to perform simple and repetitive tasks, accept instructions, 10 sustain an ordinary routine without special supervision, and maintain regular attendance. (Id.) Further, 11 Dr. Bonilla determined Plaintiff was “moderately impaired” with the ability to perform detailed and 12 complex tasks, “complete a normal workday/workweek without interruptions from a psychiatric 13 condition” and to deal with stress. (Id.) 14 Dr. Yanira Olaya reviewed the findings from Dr. Bonilla and completed a mental residual 15 functional capacity assessment and psychiatric review technique form on January 20, 2015. (Doc. 10- 16 17 at 24-37) Dr. Olaya opined Plaintiff’s alleged level of symptomology was “not observed on [the] 17 exam.” (Id. at 25) According to Dr. Olaya, Plaintiff had mild restriction of activities of daily living; 18 moderate difficulties in social functioning; and moderate difficulties with maintaining concentration, 19 persistence, or pace. (Id. at 36) Dr. Olaya found Plaintiff was “capable of understanding, remembering 20 and carrying out simple one to two step (unskilled) tasks;” could perform “in a low demand work 21 setting consistent [with] simple tasks.” (Id. at 26) Further, Dr. Olava opined Plaintiff was “able to 22 interact adequately with coworkers and supervisors but may have difficulty dealing with the demands 23 of general public contact.” (Id.) 24 The ALJ reviewed these findings and gave “little weight” to the conclusions of Drs. Bonilla and 25 Olaya. (Doc. 10-3 at 22) The ALJ observed that Dr. Bonilla “only reviewed [a] two- page SSA 454 26 4 Global Assessment of Functioning (GAF) scores range from 1-100, and in calculating a GAF score, the doctor 27 considers “psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness.” American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, 34 (4th ed.) (“DSM-IV). A GAF score between 61-70 indicates “[s]ome mild symptoms (e.g., depressed mood and mild insomnia) OR some difficulty 28 in social, occupational, or school functioning . . . but generally functioning pretty well, has some meaningful interpersonal 1 form; [the] mental status examination was normal …; and there is no evidence of on-going psychiatric 2 treatment by a mental specialist.” (Doc. 10-3 at 22) In addition, the ALJ observed that the GAF score of 3 64 “indicates mild symptoms and does not correlate to moderate limitations.” (Id.) Thus, it appears the 4 ALJ rejected the limitations identified for internal inconsistencies in the report of Dr. Bonilla. 5 Likewise, the ALJ gave little weight to the opinion of Dr. Olaya, “[d]ue to [the] inconsistent mental 6 examination by Dr. Bonilla, e.g., intact memory and normal concentration, as well as a lack of 7 supporting treating notes.” (Id.) 8 Significantly, the ALJ failed to acknowledge positive findings from Dr. Bonilla’s examination, 9 such as Plaintiff’s “difficulty performing simple mathematical calculations and serial 3s.” (Doc. 10-17 10 at 21) The ALJ also failed to address portions of Dr. Olaya’s opinion related to Plaintiff’s limitations 11 with “dealing with the demands of general public contact” and need for “a low demand work setting.” 12 (See id. at 26) As discussed above, an ALJ may not selectively review the medical evidence and rely 13 upon only favorable entries to support her decision. Holohan v. Massanari, 246 F.3d 1195, 1204-05 14 (9th Cir. 2001). In addition, an ALJ “may not reject ‘significant and probative evidence’ without 15 explanation.” Flores v. Shalala, 49 F.3d 562, 570-71 (9th Cir. 1995) (quoting Vincent v. Heckler, 739 16 F.2d 1393, 1395 (9th Cir. 1984)). Because the ALJ failed to discuss these findings and opinions—and 17 thereby failed to reject the evidence— the ALJ erred in her evaluation of the medical evidence related 18 to Plaintiff’s mental impairments. See id.; Kendall v. Berryhill, 2018 WL 2117380 at*13 (E.D. Cal. 19 May 8, 2018) (“As the ALJ failed to discuss the significant, probative evidence favorable to Plaintiff 20 contained in the medical opinions, the RFC was incomplete and the ALJ’s error was not harmless”). 21 B. Remand is Appropriate 22 The decision whether to remand a matter pursuant to sentence four of 42 U.S.C. § 405(g) or to 23 order immediate payment of benefits is within the discretion of the district court. Harman v. Apfel, 24 211 F.3d 1172, 1178 (9th Cir. 2000). Except in rare instances, when a court reverses an administrative 25 agency determination, the proper course is to remand to the agency for additional investigation or 26 explanation. Moisa v. Barnhart, 367 F.3d 882, 886 (9th Cir. 2004) (citing INS v. Ventura, 537 U.S. 27 12, 16 (2002)). Generally, an award of benefits is directed when: 28 (1) the ALJ has failed to provide legally sufficient reasons for rejecting such evidence, (2) there are no outstanding issues that must be resolved before a determination of 1 disability can be made, and (3) it is clear from the record that the ALJ would be required to find the claimant disabled were such evidence credited. 2 3 Smolen v. Chater, 80 F.3d 1273, 1292 (9th Cir. 1996). In addition, an award of benefits is directed 4 where no useful purpose would be served by further administrative proceedings, or where the record is 5 fully developed. Varney v. Sec’y of Health & Human Serv., 859 F.2d 1396, 1399 (9th Cir. 1988). 6 The ALJ failed to resolve conflicts in the record related to the severity of Plaintiff’s 7 impairments and physical limitations. Similarly, the ALJ erred in her evaluation of the medical 8 evidence related to Plaintiff’s mental impairments, and by relying upon her own interpretation of the 9 evidence after by rejecting the only medical opinions in the record related to Plaintiff’s mental abilities. 10 Without medical opinions to support the ALJ’s conclusion, the residual functional capacity lacks the 11 support of substantial evidence. See Perez v. Sec’y of Health & Human Servs., 958 F.2d 445, 446 (1st 12 Cir. 1991) (holding “the ALJ’s conclusions are not supported by substantial evidence” if an RFC is 13 formulated without the findings of a physician). Thus, upon remand the ALJ should re-evaluate the 14 medical evidence and determine her residual functional capacity. See Moisa, 367 F.3d at 886. 15 CONCLUSION AND ORDER 16 For the reasons set for above, the Court finds the ALJ erred in evaluating the record related to 17 Plaintiff’s residual functional capacity, and the administrative decision should not be upheld by the 18 Court. See Sanchez, 812 F.2d at 510. Thus, the Court ORDERS: 19 1. The matter is REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for further 20 proceedings consistent with this decision; and 21 2. The Clerk of Court is DIRECTED to enter judgment in favor of Plaintiff Sondra Dynese 22 Burton, and against Defendant Andrew M. Saul, Commissioner of Social Security. 23 24 IT IS SO ORDERED. 25 Dated: March 29, 2020 /s/ Jennifer L. Thurston 26 UNITED STATES MAGISTRATE JUDGE 27 28