(SS) Pena v. Commissioner of Social Security ( 2020 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 LUCILA PENA, Case No. 1:19-cv-00780-AWI-SKO 11 Plaintiff, FINDINGS AND RECOMMENDATION ON PLAINTIFF’S SOCIAL SECURITY 12 v. COMPLAINT 13 OBJECTIONS DUE: 14 DAYS ANDREW SAUL, 14 Commissioner of Social Security (Doc. 1) 15 Defendant. 16 _____________________________________/ 17 18 I. INTRODUCTION 19 On June 3, 2019, Plaintiff Lucila Pena (“Plaintiff”) filed a complaint under 20 42 U.S.C. § 405(g) seeking judicial review of a final decision of the Commissioner of Social 21 Security (the “Commissioner” or “Defendant”) denying her application for disability insurance 22 benefits (“DIB”) under Title II of the Social Security Act (the “Act”). The matter is currently 23 before the Court on the parties’ briefs, which were submitted, without oral argument, to the 24 Honorable Sheila K. Oberto, United States Magistrate Judge. For the reasons set forth below, it is 25 respectfully RECOMMENDED that the Commissioner's decision be reversed, and the case 26 remanded to the Commissioner for further proceedings. 27 28 1 II. FACTUAL BACKGROUND 2 On September 21, 2015, Plaintiff protectively filed an application for DIB payments 3 alleging she became disabled on January 18, 2012 due to post-traumatic stress disorder (“PTSD”), 4 severe anxiety, depression, and panic attacks. (Administrative Record (“AR”) 23, 160, 173, 279– 5 80.) Plaintiff subsequently amended her alleged onset date of disability to June 1, 2014. (AR 127– 6 28.) Plaintiff was born on June 6, 1960, and was 53 years old as of the amended alleged onset 7 date. (See AR 31.) Plaintiff did not graduate high school and stopped going to school when she 8 moved to the United States at age 10, has past work experience as a janitor, and last worked full- 9 time in approximately 2014. (AR 31, 419, 518.) 10 A. Summary of Relevant Medical Evidence1 11 1. Kaiser Permanente 12 Plaintiff established care at Kaiser Permanente in approximately February 2012 for 13 treatment of her mental impairments and continued treatment there through at least October 2014. 14 (AR 575–901.) At her initial evaluation, the attending physician noted that Plaintiff referred 15 herself for treatment of depression, panic attacks, anxiety, sleep disturbance, and work stress. (AR 16 576.) The attending physician noted that Plaintiff experienced sexual abuse by her father until she 17 was 11 years old, verbal/emotional abuse at work, and had a myriad of mental impairment 18 symptoms including “excessive worry, restlessness, muscle tension, hypervigilance and somatic 19 complaints,” “depression including depressed mood, anhedonia, crying spells, insomnia, 20 irritability, agitation, decreased energy, guilt, hopelessness, decreased concentration,” “shortness 21 of breath, fear of losing control/going crazy, palpitations, dizziness, lightheadedness, shaking, 22 chest pain, sweating, chills and nausea,” and other symptoms. (AR 577.) 23 On May 16, 2014, Plaintiff reported that a coworker had bullied and threatened her for about 24 the previous four years, and Plaintiff believed the coworker was following her. (AR 762.) Plaintiff 25 stated she feels uncontrollable anger at this situation and described an incident where she was 26 1 As Plaintiff’s assignments of error are limited to her mental impairments, the summary of the relevant medical 27 evidence is limited to evidence related to Plaintiff’s mental impairments. This section includes only a summary of the relevant medical evidence in the record and does not contain every piece of relevant medical evidence that is in the 28 record. The parties also included summaries of the relevant medical evidence in their respective briefs. (Doc. 13 at 1 driving with her mother and pushed the gas pedal to the floor in anger. (AR 763.) Mental status 2 examination showed that Plaintiff’s behavior was tearful and fidgety; her speech was pressured, 3 rapid, and rambling; mood was depressed and anxious; affect was restricted; and impulse control 4 and insight were marginal. (AR 765.) 5 On June 12, 2014, Plaintiff reported having homicidal thoughts about her coworker and 6 feelings of extreme anger and rage, along with severe PTSD symptoms related to the sexual abuse 7 she suffered from her father. (AR 772.) Plaintiff reported that a workers’ compensation process 8 related to her conflict with her coworker brought up feelings of humiliation and embarrassment 9 about the sexual abuse because during the process she was questioned about it. (See AR 772.) 10 Plaintiff’s mental status examination was largely unchanged from the May 2014 appointment. 11 (See AR 773.) Later that day, Plaintiff was admitted to St. Joseph’s Behavioral Health for 12 depression and suicidal ideation. (AR 772–73; see AR 412–27.) Plaintiff was kept for observation 13 until June 16, 2014, and then discharged. (See AR 412.) The attending physician noted that 14 Plaintiff “was admitted on an involuntary basis” because she had suicidal ideation and “[p]lans to 15 cut her wrists, throat and chest or stab herself.” (AR 412, 415.) Plaintiff benefitted from group 16 therapy and medication and was discharged. (See AR 412.) On July 1, 2014, Plaintiff reported 17 her symptoms had been worsening and she continued to have suicidal ideation. (AR 809.) Plaintiff 18 was admitted to an intensive outpatient program on July 2, 2014, and discharged on August 8, 19 2014. (AR 866.) The program helped her deal with her depression, anxiety, and work stress, but 20 she still had frequent, intense suicidal ideation, nightmares, and flashbacks. (AR 866.) 21 2. Joseph Hernandez, Ph.D. 22 On October 7, 2014, Plaintiff established care with psychologist Joseph Hernandez. (AR 23 553.) At Plaintiff’s initial psychological assessment, Dr. Hernandez noted that Plaintiff suffered 24 an “industrial injury” on January 18, 2012, “when [Plaintiff] participated in a meeting designed to 25 end harassment by a coworker.” (AR 553.) Dr. Hernandez noted that Plaintiff fell within the 26 “severe” range of depressive and anxious symptoms upon examination and testing. (AR 555.) Dr. 27 Hernandez noted that Plaintiff’s “affective status has deteriorated over time due to what she 28 considers a hostile work environment” and her “emotional state deteriorated to the point that she 1 required hospitalization due to being a danger to herself.” (AR 555.) Dr. Hernandez opined that 2 Plaintiff met the diagnostic criteria for PTSD, as she “experiences recurrent and intrusive 3 recollections of her trauma . . . has increased physiological arousal . . . and exhibits avoidance 4 behaviors (unable to return to work).” (AR 556.) Dr. Hernandez opined that Plaintiff was not 5 “currently able to return to work” and she would not be able to return to work until, at the earliest, 6 January 1, 2015. (AR 556.) 7 On November 3, 2015, Dr. Hernandez completed a “Short-Form Evaluation for Mental 8 Disorders” on behalf of Plaintiff. (AR 525–28.) Dr. Hernandez noted that Plaintiff’s grooming 9 was disheveled; motor activity was retarded; speech was slow; interview behavior was 10 cooperative; concentration was moderately impaired; memory was normal; intelligence was 11 average; mood was anxious, depressed, and fearful; affect was blunted; associations were 12 blocking; judgment was moderately impaired; and she exhibited obsessive thoughts and thoughts 13 of being persecuted. (AR 525–26.) Dr. Hernandez noted that Plaintiff was “making progress” and 14 had “improved affect,” but she “continue[d] to fear return to work due to expectation of harm.” 15 (AR 527.) Dr. Hernandez opined that Plaintiff had poor ability to understand, remember, and carry 16 out complex instructions and complete a normal workday and workweek without interruptions 17 from psychologically based symptoms; fair ability to understand, remember, and carry out simple 18 instructions, maintain concentration, attention, and persistence, interact appropriately with 19 supervisors and coworkers, and respond appropriately to changes in a work setting; and good 20 ability to perform activities within a schedule and maintain regular attendance and interact 21 appropriately with the public. (AR 527.) 22 On March 1, 2016, Dr. Hernandez issued a final report regarding Plaintiff’s psychological 23 treatment. (AR 564–65.) Dr. Hernandez noted Plaintiff had been seen for psychotherapy treatment 24 for a total of 36 sessions in approximately 18 months.2 (AR 564.) Dr. Hernandez stated that 25 although Plaintiff had “made some progress in her affective condition . . . she is not entirely 26 affectively stabilized.” (AR 564.) Dr. Hernandez stated that Plaintiff “has good moments and 27 28 2 Most of the 36 appointments Plaintiff attended were with other treatment professionals as described below. (See AR 1 then reverts to severe anxiety symptoms” and “exhibits crying spells” but “is no longer considered 2 to be a current suicide risk.” (AR 564.) Dr. Hernandez noted that, despite these improvements, 3 “there is a significant question about whether [Plaintiff] will be able to return to any work at all.” 4 (AR 565.) Dr. Hernandez again diagnosed Plaintiff with PTSD. (AR 565.) 5 3. Fair Oaks Psychiatric Associates 6 In January 2015, Plaintiff established care at Fair Oaks Psychiatric Associates, where she 7 was treated by psychiatrists Janak Mehtani, M.D. and Stuart Tubis, M.D.3 (See AR 517–20, 906– 8 08.) On January 23, 2015, Dr. Mehtani noted that Plaintiff had “severe anxiety and panic attacks,” 9 and was becoming “increasingly more anxious, depressed, and despondent.” (AR 518.) Dr. 10 Mehtani opined that Plaintiff was “clinically depressed” and her depression was “directly and 11 temporarily caused by the injury she sustained during the course of employment.” (AR 519.) Dr. 12 Mehtani stated that Plaintiff was a “victim of severe emotional mistreatment and harassment at her 13 workplace,” and she “truly felt that her life was in danger by this janitor co-worker who threatened 14 her.” (AR 519.) Dr. Mehtani opined that “at this time, [Plaintiff] is totally disabled” and “needs 15 ongoing psychiatric care and treatment to alleviate the effects of the industrial injury.” (AR 519.) 16 Dr. Mehtani started Plaintiff on medications for her anxiety, panic attacks and agitation, including 17 Brintellix, Vistaril, Remeron, and trazadone. (AR 519.) 18 On November 3, 2016, Dr. Tubis opined that Plaintiff remained “totally disabled from 19 seeking gainful employment.” (AR 906.) Dr. Tubis stated that Plaintiff had not yet improved with 20 her prescribed medication and had actually gotten worse, and that her medications would be 21 adjusted to hopefully improve her depression and anxiety. (AR 906.) Dr. Tubis noted Plaintiff 22 was still feeling depressed, lacked energy and focus, was not motivated, was not happy, and stayed 23 at home because she was fearful she would be attacked again. (AR 906.) Dr. Tubis also opined 24 that Plaintiff was “totally disabled from seeking gainful employment” for similar reasons on 25 multiple previous occasions including on September 29, 2016, June 27, 2016, April 27, 2016, 26 March 1, 2016, February 1, 2016, and December 22, 2015. (AR 907, 909–913.) 27 3 Although the treatment letters appear to have been written by Antonio Luza, PA-C, they are signed by both Mr. Luza 28 and Dr. Tubis, his “Supervising Psychiatrist,” and the letters imply both professionals treated Plaintiff. (See, e.g., AR 1 4. Martin Shaffer, Ph.D. 2 Plaintiff saw psychologist Martin Shaffer on a number of occasions in connection with her 3 worker’s compensation claim. (See AR 444–98.) On July 15, 2015, during Dr. Shaffer’s 4 evaluation of Plaintiff, Plaintiff reported that she left work in June 2014, because she was “very 5 worn out” and she wanted to quit living. (AR 447.) Dr. Shaffer noted that Plaintiff exhibited 6 obsessive thoughts about her safety and the threat posed by her abusive coworker, and about her 7 childhood and the sexual abuse she suffered from her father. (AR 448.) Dr. Shaffer stated that 8 Plaintiff was afraid to leave the house because she is afraid the coworker might attack her. (AR 9 492.) Plaintiff stated that she became suicidal and required hospitalization as a result of the 10 deposition she had to attend where she was asked questions about her history of sexual abuse with 11 her father. (AR 448.) Plaintiff reported that she had panic attacks at night and she has significant 12 sleep disturbance. (AR 448.) Plaintiff stated that aside from contact with immediate family, she 13 has no relationships with others and has no friends. (AR 463.) 14 Dr. Shaffer diagnosed Plaintiff with major depression, PTSD, generalized anxiety disorder, 15 and occupational problems. (AR 490.) Dr. Shaffer opined Plaintiff has ongoing symptoms of 16 moderate to severe depression, moderate to severe anxiety with panic attacks, suicidal thoughts, 17 generalized anxiety, severe sleep disturbance, moderate to severe social withdrawal, and 18 diminished self-esteem. (AR 491.) Dr. Shaffer opined that Plaintiff had been totally disabled 19 since early June 2014 due to her PTSD. (AR 494–95.) 20 5. State Agency Physicians 21 On December 28, 2015, A. Garcia, M.D., a Disability Determinations Service medical 22 consultant, assessed the severity of Plaintiff’s mental impairments and Plaintiff’s mental RFC. 23 (AR 163–67.) Dr. Garcia opined that Plaintiff was moderately limited in her ability to understand, 24 remember, and carry out detailed instructions, and had no significant limitation in any other 25 functional area. (AR 166–67.) 26 Upon reconsideration, on April 22, 2016, another Disability Determinations Service medical 27 consultant, E. Aquino-Caro, M.D., affirmed Dr. Garcia’s findings. (AR 180–81.) 28 1 6. Third-Party Function Report (Lay Witness Testimony) 2 On November 1, 2015, Plaintiff’s son, Giovanni Maya, submitted a third-party function 3 report on behalf of Plaintiff setting forth his lay witness testimony regarding Plaintiff’s 4 impairments. (AR 330–37.) Mr. Maya stated that he visits Plaintiff two or three times per month 5 and that Plaintiff has “poor concentration, gets anxious in a social setting, and socially inhibited . 6 . . poor sleep pattern, at times drowsy or insomniac, related to medication side effects.” (AR 330.) 7 Mr. Maya stated that Plaintiff rarely goes out of the house alone, and mostly stays home. (AR 8 333–34.) Mr. Maya stated Plaintiff has impaired functioning related to memory, completing tasks, 9 concentration, understanding, following instructions, and getting along with others, and that she is 10 socially anxious and requires “thorough explanation” of anything Mr. Maya tells her in 11 conversation. (AR 335.) Mr. Maya stated Plaintiff requires repetition of instructions and is easily 12 frustrated with a poor attention span. (AR 335.) Plaintiff handles stress poorly and gets extremely 13 anxious and overwhelmed and has panic attacks. (AR 336.) Mr. Maya stated Plaintiff has 14 increased paranoia and believes people are going to break in her house and that people are watching 15 her when she leaves the house. (AR 336.) 16 B. Administrative Proceedings 17 The Commissioner denied Plaintiff’s application for benefits initially on December 29, 18 2015, and again on reconsideration. (AR 185–89, 195–99.) On June 3, 2016, Plaintiff requested 19 a hearing before an Administrative Law Judge (“ALJ”). (AR 201.) 20 On August 9, 2017, Plaintiff appeared with counsel and testified as to her alleged 21 disabling conditions before an ALJ with the help of a Spanish interpreter. (AR 125–59.) Plaintiff 22 testified she stopped working in 2014 because she was “totally very sick” from “the stress” she 23 was going through at work. (AR 130.) Plaintiff stated that her anxiety and depression started in 24 approximately 2008 when a coworker began threatening and verbally abusing her. (AR 131.) 25 Plaintiff testified that she worked with this coworker for about three years, but that experience 26 stuck with her and caused her to develop anxiety and depression at work. (AR 132.) Plaintiff 27 stated that now, she does not “want to be around people” and “[e]verything reminds [her] of what 28 [she] went through, and it’s not nice.” (AR 133.) She stated she has panic attacks at least twice 1 a day and she gets chest pain and has difficulty breathing. (AR 134.) Plaintiff stated she does 2 some household chores like laundry, cleaning, and cooking. (AR 138.) Plaintiff stated she 3 eventually filed for worker’s compensation. (See AR 142.) Plaintiff testified she takes 4 medications for her panic disorder, depression, sleep issues, and anxiety. (AR 147–48.) 5 A Vocational Expert (“VE”) testified at the hearing that Plaintiff had past work as a janitor, 6 Dictionary of Occupational Titles (DOT) code 381.687-018, which was medium work with a 7 specific vocational preparation (SVP)4 of 2. (AR 151.) The ALJ asked the VE to consider a person 8 of Plaintiff’s age, education, and with her work background. (AR 152.) The VE was also to 9 assume this person had a “marginal education,” could communicate in English but her primary 10 language was Spanish, could work at all exertional levels, but was limited to understanding, 11 remembering and carrying out simple routine repetitive tasks using judgment limited to simple 12 work-related decisions and was capable of socially interacting with supervisors, coworkers and the 13 public occasionally. (AR 152.) The VE testified that such a person could perform the job of 14 agriculture packer, DOT code 920.687-134- which is medium work with a SVP of 2 and 277,000 15 jobs available in the national economy; kitchen helper, DOT code 318.687-010, which is medium 16 work with a SVP of 2 and 206,000 jobs available; and auto detailer, which is medium work with 17 a SVP of 2 and 203,000 jobs available. (AR 153.) 18 In a second hypothetical, the ALJ asked the VE to consider an individual with the 19 limitations described in the first hypothetical, except that the person would be off task at least 20 twenty percent of the time and miss two days of work per month. (AR 153.) The VE testified that 21 such a person could not perform any work. (AR 153.) 22 C. The ALJ’s Decision 23 In a decision dated March 14, 2018, the ALJ found that Plaintiff was not disabled, as 24 defined by the Act. (AR 23–32.) The ALJ conducted the five-step disability analysis set forth in 25 20 C.F.R. § 404.1520. (AR 25–32.) The ALJ decided that Plaintiff had not engaged in substantial 26 4 Specific vocational preparation (SVP), as defined in DOT, App. C, is the amount of lapsed time required by a typical 27 worker to learn the techniques, acquire the information, and develop the facility needed for average performance in a specific job-worker situation. DOT, Appendix C – Components of the Definition Trailer, 1991 WL 688702 (1991). 28 Jobs in the DOT are assigned SVP levels ranging from 1 (the lowest level – “short demonstration only”) to 9 (the 1 gainful activity since June 1, 2014, the alleged onset date (step one). (AR 26.) At step two, the 2 ALJ found that Plaintiff had the following severe impairments: PTSD; depressive disorder; and 3 generalized anxiety disorder. (AR 26.) The ALJ found that Plaintiff did not have an impairment 4 or combination of impairments that met or medically equaled one of the Listings (step three). (AR 5 26.) 6 The ALJ assessed Plaintiff’s RFC and applied the RFC assessment at steps four and five. 7 See 20 C.F.R. § 404.1520(a)(4) (“Before we go from step three to step four, we assess your residual 8 functional capacity … We use this residual functional capacity assessment at both step four and 9 step five when we evaluate your claim at these steps.”). The ALJ determined that Plaintiff retained 10 the RFC: 11 to perform a full range of work at all exertional levels but with the following nonexertional limitations. [Plaintiff] is limited to understanding, remembering, and 12 carrying out simple, routine, and repetitive tasks. She is limited to using judgment 13 with simple work-related decisions. She is limited to occasional interaction with supervisors, coworkers, and the public. 14 (AR 28.) Although the ALJ recognized that Plaintiff’s impairments “could reasonably be expected 15 to cause the alleged symptoms[,]” he rejected Plaintiff’s subjective testimony as “not entirely 16 consistent with the medical evidence and other evidence in the record[.]” (AR 29.) At step five, 17 the ALJ found that Plaintiff could not perform her past relevant work, but that she could perform 18 the jobs of agriculture packer, kitchen helper, and auto detailer. (AR 31–32.) 19 Plaintiff sought review of this decision before the Appeals Council, which denied review 20 on April 5, 2019. (AR 2–4.) Therefore, the ALJ’s decision became the final decision of the 21 Commissioner. 20 C.F.R. § 404.981. 22 III. LEGAL STANDARD 23 A. Applicable Law 24 An individual is considered “disabled” for purposes of disability benefits if he or she is 25 unable “to engage in any substantial gainful activity by reason of any medically determinable 26 physical or mental impairment which can be expected to result in death or which has lasted or can 27 be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). 28 1 However, “[a]n individual shall be determined to be under a disability only if [her] physical or 2 mental impairment or impairments are of such severity that [s]he is not only unable to do [her] 3 previous work but cannot, considering [her] age, education, and work experience, engage in any 4 other kind of substantial gainful work which exists in the national economy.” Id. § 423(d)(2)(A). 5 “The Social Security Regulations set out a five-step sequential process for determining 6 whether a claimant is disabled within the meaning of the Social Security Act.” Tackett v. Apfel, 7 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 20 C.F.R. § 404.1520). The Ninth Circuit has provided 8 the following description of the sequential evaluation analysis: 9 In step one, the ALJ determines whether a claimant is currently engaged in substantial 10 gainful activity. If so, the claimant is not disabled. If not, the ALJ proceeds to step two and 11 evaluates whether the claimant has a medically severe impairment or combination of impairments. 12 If not, the claimant is not disabled. If so, the ALJ proceeds to step three and considers whether the 13 impairment or combination of impairments meets or equals a listed impairment under 20 C.F.R. 14 pt. 404, subpt. P, [a]pp. 1. If so, the claimant is automatically presumed disabled. If not, the ALJ 15 proceeds to step four and assesses whether the claimant is capable of performing her past relevant 16 work. If so, the claimant is not disabled. If not, the ALJ proceeds to step five and examines 17 whether the claimant has the [RFC] . . . to perform any other substantial gainful activity in the 18 national economy. If so, the claimant is not disabled. If not, the claimant is disabled. Burch v. 19 Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). “If a claimant is found to be ‘disabled’ or ‘not 20 disabled’ at any step in the sequence, there is no need to consider subsequent steps.” Tackett, 180 21 F.3d at 1098 (citing 20 C.F.R. § 404.1520). 22 “The claimant carries the initial burden of proving a disability in steps one through four of 23 the analysis.” Burch, 400 F.3d at 679 (citing Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir. 24 1989)). “However, if a claimant establishes an inability to continue her past work, the burden 25 shifts to the Commissioner in step five to show that the claimant can perform other substantial 26 gainful work.” Id. (citing Swenson, 876 F.2d at 687). 27 28 1 B. Scope of Review 2 “This court may set aside the Commissioner’s denial of disability insurance benefits [only] 3 when the ALJ’s findings are based on legal error or are not supported by substantial evidence in 4 the record as a whole.” Tackett, 180 F.3d at 1097 (citation omitted). “Substantial evidence is 5 defined as being more than a mere scintilla, but less than a preponderance.” Edlund v. Massanari, 6 253 F.3d 1152, 1156 (9th Cir. 2001) (citing Tackett, 180 F.3d at 1098). “Put another way, 7 substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to 8 support a conclusion.” Id. (citing Richardson v. Perales, 402 U.S. 389, 401 (1971)). 9 “This is a highly deferential standard of review …” Valentine v. Comm’r of Soc. Sec. 10 Admin., 574 F.3d 685, 690 (9th Cir. 2009). “The ALJ’s findings will be upheld if supported by 11 inferences reasonably drawn from the record.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th 12 Cir. 2008) (citation omitted). Additionally, “[t]he court will uphold the ALJ’s conclusion when 13 the evidence is susceptible to more than one rational interpretation.” Id.; see, e.g., Edlund, 253 14 F.3d at 1156 (citations omitted) (“If the evidence is susceptible to more than one rational 15 interpretation, the court may not substitute its judgment for that of the Commissioner.”). 16 Nonetheless, “the Commissioner’s decision ‘cannot be affirmed simply by isolating a 17 specific quantum of supporting evidence.’” Tackett, 180 F.3d at 1098 (quoting Sousa v. Callahan, 18 143 F.3d 1240, 1243 (9th Cir. 1998)). “Rather, a court must ‘consider the record as a whole, 19 weighing both evidence that supports and evidence that detracts from the [Commissioner’s] 20 conclusion.’” Id. (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)). 21 Finally, courts “may not reverse an ALJ’s decision on account of an error that is harmless.” 22 Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (citing Stout v. Comm’r, Soc. Sec. Admin., 23 454 F.3d 1050, 1055–56 (9th Cir. 2006)). Harmless error “exists when it is clear from the record 24 that ‘the ALJ’s error was inconsequential to the ultimate nondisability determination.’” 25 Tommasetti, 533 F.3d at 1038 (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 26 2006)). “[T]he burden of showing that an error is harmful normally falls upon the party attacking 27 the agency’s determination.” Shinseki v. Sanders, 556 U.S. 396, 409 (2009) (citations omitted). 28 1 IV. DISCUSSION 2 Plaintiff contends that the ALJ: (1) improperly rejected the opinions of the treating and 3 examining doctors; (2) improperly rejected Plaintiff’s testimony; (3) improperly rejected the lay 4 witness testimony of Mr. Maya; (4) erred in his formulation of the RFC; and (5) erred in 5 determining that Plaintiff could perform other work at step five. (See Doc. 13 at 15–28.) For the 6 7 reasons stated below, the Court agrees with Plaintiff that the ALJ committed reversible error in his 8 evaluation of the medical opinion evidence, Plaintiff’s testimony, and the lay witness testimony of 9 Mr. Maya, which resulted in a legally deficient RFC formulation and step five determination. 10 A. The ALJ Erred in His Evaluation of the Medical Opinion Evidence 11 1. Legal Standard 12 The ALJ must consider and evaluate every medical opinion of record. See 20 C.F.R. § 13 404.1527(b) and (c) (applying to claims filed before March 27, 2017); Mora v. Berryhill, No. 1:16– 14 15 cv–01279–SKO, 2018 WL 636923, at *10 (E.D. Cal. Jan. 31, 2018). In doing so, the ALJ “cannot 16 reject [medical] evidence for no reason or the wrong reason.” Mora, 2018 WL 636923, at *10. 17 Cases in this circuit distinguish between three types of medical opinions: (1) those given by 18 a physician who treated the claimant (treating physician); (2) those given by a physician who 19 examined but did not treat the claimant (examining physician); and (3) those given by a physician 20 who neither examined nor treated the claimant (non-examining physician). Fatheree v. Colvin, 21 22 No. 1:13–cv–01577–SKO, 2015 WL 1201669, at *13 (E.D. Cal. Mar. 16, 2015). “Generally, a 23 treating physician’s opinion carries more weight than an examining physician’s, and an examining 24 physician’s opinion carries more weight than a reviewing physician’s.” Holohan v. Massanari, 25 246 F.3d 1195, 1202 (9th Cir. 2001) (citations omitted); see also Orn v. Astrue, 495 F.3d 625, 631 26 (9th Cir. 2007) (“By rule, the Social Security Administration favors the opinion of a treating 27 physician over non-treating physicians.” (citing 20 C.F.R. § 404.1527)). The opinions of treating 28 1 2 physicians are employed to cure and thus have a greater opportunity to know and observe the 3 patient as an individual.” Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996) (citations omitted). 4 To evaluate whether an ALJ properly rejected a medical opinion, in addition to considering 5 its source, the court considers whether (1) contradictory opinions are in the record; and (2) clinical 6 findings support the opinions. An ALJ may reject an uncontradicted opinion of a treating or 7 examining medical professional only for “clear and convincing” reasons. Lester v. Chater, 81 F.3d 8 821, 830–31 (9th Cir. 1995). In contrast, a contradicted opinion of a treating or examining 9 10 professional may be rejected for “specific and legitimate reasons that are supported by substantial 11 evidence.” Trevizo v. Berryhill, 871 F.3d 664, 675 (9th Cir. 2017) (citing Ryan, 528 F.3d at 1198); 12 see also Lester, 81 F.3d at 830–31. “The ALJ can meet this burden by setting out a detailed and 13 thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof, 14 and making findings.” Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). While a treating 15 professional’s opinion generally is accorded superior weight, if it is contradicted by a supported 16 examining professional’s opinion (supported by different independent clinical findings), the ALJ 17 18 may resolve the conflict. Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995) (citing 19 Magallanes, 881 F.2d at 751). The regulations require the ALJ to weigh the contradicted treating 20 physician opinion, Edlund v. Massanari, 253 F.3d 1152, 1157 (9th Cir. 2001),5 except that the ALJ 21 in any event need not give it any weight if it is conclusory and supported by minimal clinical 22 findings. Meanel v. Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999) (treating physician’s conclusory, 23 minimally supported opinion rejected); see also Magallanes, 881 F.2d at 751. The opinion of a 24 25 26 27 5 The factors include: (1) length of the treatment relationship; (2) frequency of examination; (3) nature and extent of 28 the treatment relationship; (4) supportability of diagnosis; (5) consistency; and (6) specialization. 20 C.F.R. § 1 2 professional. Lester, 81 F.3d at 831. 3 2. Analysis 4 a. Dr. Hernandez’s Opinion 5 Plaintiff alleges―and the record reflects―that Dr. Hernandez was Plaintiff’s treating 6 psychologist. “If . . . a treating [physician’s] opinion . . . is well-supported by medically acceptable 7 clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial 8 evidence in [the] record, [the Commissioner] will give it controlling weight.” 20 C.F.R. § 9 404.1527(c)(2); cf. Reddick, 157 F.3d at 725 (“Where the treating doctor’s opinion is not 10 contradicted by another doctor, it may be rejected only for clear and convincing reasons supported 11 by substantial evidence in the record.” (citation omitted)). “If there is ‘substantial evidence’ in the 12 record contradicting the opinion of the treating physician, the opinion of the treating physician is 13 no longer entitled to ‘controlling weight.’” Orn, 495 F.3d at 632 (quoting 20 C.F.R. § 14 404.1527(d)(2)). 15 “If a treating physician’s opinion is not given ‘controlling weight’ because it is not ‘well- 16 supported’ or because it is inconsistent with other substantial evidence in the record, the 17 [Commissioner] considers specified factors in determining the weight it will be given.” Id. at 631. 18 These factors include (1) the “[l]ength of the treatment relationship and the frequency of 19 examination;” (2) the “[n]ature and extent of the treatment relationship;” (3) the “[s]upportability” 20 of the opinion;” (4) the “[c]onsistency” of the opinion “with the record as a whole;” (5) whether 21 the opinion is from “a specialist about medical issues related to his or her area of specialty;” and 22 (6) “any other factors [the claimant] or others bring to [the ALJ’s] attention, or of which [the ALJ 23 is] aware, which tend to support or contradict the opinion.” 20 C.F.R. § 404.1527(c)(2)–(6). 24 Further, “[e]ven if the treating doctor’s opinion is contradicted by another doctor, the ALJ 25 may not reject this opinion without providing ‘specific and legitimate reasons’ supported by 26 substantial evidence in the record.” Reddick, 157 F.3d at 725 (quoting Lester, 81 F.3d at 830). 27 See also Trevizo v. Berryhill, 871 F.3d 664, 675 (9th Cir. 2017) (citing Ryan v. Comm’r of Soc. 28 1 Sec., 528 F.3d 1194, 1198 (9th Cir. 2008)). “This can be done by setting out a detailed and 2 thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof, 3 and making findings.” Id. (citing Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)); see, 4 e.g., Chaudhry v. Astrue, 688 F.3d 661, 671 (9th Cir. 2012) (“The ALJ need not accept the opinion 5 of any physician, including a treating physician, if that opinion is brief, conclusory, and 6 inadequately supported by clinical findings.” (quoting Bray v. Comm’r of Soc. Sec. Admin., 554 7 F.3d 1219, 1228 (9th Cir. 2009))); Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 600 (9th 8 Cir. 1999) (“Opinions of a nonexamining, testifying medical advisor may serve as substantial 9 evidence when they are supported by other evidence in the record and are consistent with it.” 10 (citing Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995))); Matney on Behalf of Matney v. 11 Sullivan, 981 F.2d 1016, 1020 (9th Cir. 1992) (noting that “inconsistencies and ambiguities” in a 12 treating physician’s opinion “represent specific and legitimate reasons for” rejecting the opinion). 13 “The ALJ must do more than offer his conclusions.” Reddick, 157 F.3d at 725. “He must set forth 14 his own interpretations and explain why they, rather than the doctors’, are correct.” Id. (citing 15 Embrey v. Bowen, 849 F.2d 418, 421–22 (9th Cir. 1988)). 16 Dr. Hernandez treated Plaintiff on a few occasions from approximately October 2014 17 through at least March 2016. (See AR 553, 564.) As stated above, on November 3, 2015, Dr. 18 Hernandez completed a “Short-Form Evaluation for Mental Disorders” on behalf of Plaintiff. (AR 19 525–28.) Dr. Hernandez’s evaluation stated that Plaintiff had poor or fair ability in most functional 20 areas and could not return to work. (See AR 527.) 21 In weighing Dr. Hernandez’s opinion, the ALJ stated: 22 The undersigned accords partial but lesser weight to the opinion of Dr. Hernandez 23 because the doctor’s opinion is partially supported by the medical record, including his own treatment notes. However, the doctor’s opinion is not adopted because the 24 doctor’s treatment notes are repetitive, remain essentially unchanged from appointment to appointment, and do not provide ongoing mental status examinations 25 of [Plaintiff]. 26 (AR 29.) 27 Although not explicitly stated by the ALJ, portions of Dr. Hernandez’s opinion were 28 1 2 67, 180–81.) Thus, the ALJ was required to state “specific and legitimate” reasons, supported by 3 substantial evidence, for rejecting any portion of Dr. Hernandez’s opinion. Trevizo, 871 F.3d at 4 675 (citing Ryan, 528 F.3d at 1198); see also Lester, 81 F.3d at 830. 5 The Court finds the ALJ failed to offer “specific and legitimate” reasons for rejecting 6 portions of Dr. Hernandez’s opinion. First, the ALJ did not specify which portion of Dr. 7 Hernandez’s opinion he finds to be “supported by the medical record” and which portion he finds 8 to be unsupported by the medical record. Thus, the Court cannot find that the ALJ has offered 9 10 “specific and legitimate” reasons for rejecting a portion of his opinion where the ALJ does not 11 even state what portion of the opinion he is rejecting. 12 Second, the ALJ’s only reasons for rejecting an unspecified portion of Dr. Hernandez’s 13 opinion are that his treatment notes are “repetitive” and “largely unchanged” from appointment- 14 to-appointment, and do not provide “ongoing mental status examinations.” (See AR 29.) 15 However, Dr. Hernandez only saw Plaintiff on a few occasions,6 (see AR 564); thus the Court does 16 not find any repetition in Dr. Hernandez’s notes to be a specific and legitimate reason for rejecting 17 18 his opinion, see, e.g., Holohan v. Massanari, 246 F.3d 1195, 1207 (9th Cir. 2001). There is also 19 no requirement that a psychologist provide ongoing mental status examinations in additional to 20 clinical evaluations and observations. Finally, the ALJ does not specify what portion of the 21 treatment notes he finds repetitive, and does not specify why, if the repetition of the notes make 22 Dr. Hernandez’s opinion unreliable, the ALJ nonetheless accorded “partial but lesser” weight to 23 the opinion. See Reddick, 157 F.3d at 722–23. Thus, the Court finds the ALJ failed to offer any 24 25 specific or legitimate reason for rejecting Dr. Hernandez’s opinion. 26 27 28 1 2 Drs. Mehtani, Tubis, and Shaffer (“the workers’ compensation physicians”) examined 3 Plaintiff in connection with her workers’ compensation process. (See AR 444–98, 517–20, 906– 4 08.) All three doctors opined that Plaintiff was unable to work and that Plaintiff suffered from 5 various debilitating psychological symptoms. (See, e.g., AR 490, 519, 906.) In weighing these 6 three opinions, the ALJ stated: 7 These opinions are given no weight because they are based upon workers 8 compensation regulations and they are not relevant to a finding of disability on the basis of social security regulations. The opinions are also not based on a functional 9 assessment and do not provide any functional limitations. Furthermore, the opinions 10 are on an issue reserved to the Commissioner of Social Security; are conclusory; and are not supported by signs, laboratory findings, or an explanation. 11 (AR 30.) Because the workers’ compensation physicians’ opinions were partially contradicted by 12 the state agency physicians’ opinions, (compare AR 444–98, 517–20, 906–08), the ALJ was 13 14 required to state “specific and legitimate” reasons, supported by substantial evidence, for totally 15 rejecting the opinions. Trevizo, 871 F.3d at 675 (citing Ryan, 528 F.3d at 1998); see also Lester, 16 81 F.3d at 830. 17 The Court finds the ALJ failed to offer “specific and legitimate” reasons for rejecting the 18 opinions of the workers’ compensation physicians. The ALJ did not address the opinions 19 individually, but instead addressed them as a group, and did not make specific findings as to any 20 21 of them. (See AR 30.) Further, contrary to the ALJ’s statement, the workers’ compensation 22 physicians did not indicate that they based their opinions or observations on “workers 23 compensation regulations” and instead simply made findings related to Plaintiff’s psychological 24 symptoms. (See AR 30.) Also, the ALJ may not reject examining physicians’ opinions simply 25 because they were originally given in the context of a workers’ compensation proceeding. See 26 Booth v. Barnhart, 181 F. Supp. 2d 1099, 1106 (C.D. Cal. Jan. 22, 2002) (“[T]he ALJ may not 27 disregard a physician’s medical opinion simply because it was initially elicited in a state workers’ 28 1 2 (citing Coria v. Heckler, 750 F.2d 245, 247 (3d Cir. 1984)). 3 There is also no requirement that physicians’ opinions provide specific functional 4 limitations, Hill v. Astrue, 698 F.3d 1153, 1159 (9th Cir. 2012), and contrary to the ALJ’s opinion, 5 the workers’ compensation physicians’ opinions were not conclusory but were instead based on 6 extensive clinical observations and explanation as to Plaintiff’s symptoms and limitations. (See 7 AR 444–98, 517–20, 906–08.) Finally, although the opinion of ultimate disability is an issue 8 reserved for the Commissioner, the ALJ must still evaluate physicians’ opinions regarding 9 10 Plaintiff’s functional ability and whether she can perform various work-related functions. See, 11 e.g., Mora, 2018 WL 636923, at *10. 12 B. The ALJ Erred in His Evaluation of Plaintiff’s Testimony and the Lay Witness Testimony of Mr. Maya 13 1. The ALJ’s Evaluation of Plaintiff’s Testimony 14 a. Legal Standard 15 In evaluating the credibility of a claimant’s testimony regarding subjective pain, an ALJ 16 must engage in a two-step analysis. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). First, 17 the ALJ must determine whether the claimant has presented objective medical evidence of an 18 underlying impairment that could reasonably be expected to produce the pain or other symptoms 19 20 alleged. Id. The claimant is not required to show that her impairment “could reasonably be 21 expected to cause the severity of the symptom [he] has alleged; [he] need only show that it could 22 reasonably have caused some degree of the symptom.” Id. (quoting Lingenfelter v. Astrue, 504 23 F.3d 1028, 1036 (9th Cir. 2007)). If the claimant meets the first test and there is no evidence of 24 malingering, the ALJ can only reject the claimant’s testimony about the severity of the symptoms 25 if the ALJ gives “specific, clear and convincing reasons” for the rejection. Id. As the Ninth Circuit 26 27 has explained: 28 The ALJ may consider many factors in weighing a claimant’s credibility, including 1 for lying, prior inconsistent statements concerning the symptoms, and other 2 testimony by the claimant that appears less than candid; (2) unexplained or inadequately explained failure to seek treatment or to follow a prescribed course of 3 treatment; and (3) the claimant’s daily activities. If the ALJ’s finding is supported by substantial evidence, the court may not engage in second-guessing. 4 Tommasetti, 533 F.3d at 1039 (citations and internal quotation marks omitted); see also Bray v. 5 Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1226–27 (9th Cir. 2009); 20 C.F.R. § 404.1529. 6 Other factors the ALJ may consider include a claimant’s work record and testimony from 7 physicians and third parties concerning the nature, severity, and effect of the symptoms of which 8 he complains. Light v. Social Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997). 9 The clear and convincing standard is “not an easy requirement to meet” and it “is the most 10 demanding [standard] required in Social Security cases.” Garrison, 759 F.3d at 1015 (citation 11 omitted). “General findings are insufficient” to satisfy this standard. Burrell v. Colvin, 775 F.3d 12 1133, 1138 (9th Cir. 2014) (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995)). 13 “[R]ather, the ALJ must identify what testimony is not credible and what evidence undermines 14 the claimant’s complaints.” Id. (quoting Lester, 81 F.3d at 834); see, e.g., Vasquez v. Astrue, 572 15 F.3d 586, 592 (9th Cir. 2008) (“To support a lack of credibility finding, the ALJ [is] required to 16 ‘point to specific facts in the record which demonstrate that [the claimant] is in less pain than she 17 claims.’” (quoting Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993)); cf. Burrell, 775 F.3d at 18 1138 (stating that the Ninth Circuit’s “decisions make clear that [courts] may not take a general 19 finding . . . and comb the administrative record to find specific” support for the finding). 20 b. Analysis 21 The ALJ found Plaintiff’s “medically determinable impairments could reasonably be 22 expected to cause the alleged symptoms.” (AR 29.) The ALJ also found that “[Plaintiff’s] 23 statements concerning the intensity, persistence, and limiting effects of these symptoms are not 24 entirely consistent with the medical evidence and other evidence in the record[.]” (AR 29.) Since 25 the ALJ found Plaintiff’s “medically determinable impairments could reasonably be expected to 26 cause the alleged symptoms,” the only remaining issue is whether the ALJ provided “specific, 27 clear and convincing reasons” for his adverse credibility finding. See Vasquez, 572 F.3d at 591. 28 1 The ALJ gave only one specific reason as to why Plaintiff’s symptom statements were less 2 than credible: they were inconsistent with the objective medical evidence. (AR 29.) The Court 3 finds this is not a specific, clear and convincing reason to discount Plaintiff’s testimony because 4 the ALJ may not reject a claimant’s subjective statements for the sole reason that the testimony is 5 inconsistent with the objective evidence. See Brown-Hunter v. Colvin, 806 F.3d 487, 493–94 (9th 6 Cir. 2015). Further, the ALJ failed to even specify which statements he found to be less than 7 credible and why. This is required of the ALJ because, without that specification, the Court is left 8 to speculate as to which statements the ALJ intended to discount and how they are undermined by 9 the evidence, which the Court may not do. See id. at 494–95 (“We cannot review whether the ALJ 10 provided specific, clear and convincing reasons for rejecting [the claimant]’s pain testimony 11 where, as here, the ALJ never identified which testimony she found not credible, and never 12 explained which evidence contradicted that testimony . . . In sum, we cannot substitute our 13 conclusions for the ALJ’s, or speculate as to the grounds for the ALJ’s conclusions.”). 14 2. The ALJ’s Evaluation of the Lay Witness Testimony 15 a. Legal Standard 16 Lay testimony as to a claimant’s symptoms is competent evidence that an ALJ must consider, 17 unless he expressly determines to disregard such testimony and gives reasons germane to each 18 witness for doing so. Lewis, 236 F.3d at 511; Stout, 454 F.3d at 1053; see also 20 C.F.R. §§ 19 404.1527(f). In rejecting lay witness testimony, the ALJ need only provide “arguably germane 20 reasons” for dismissing the testimony, even if she does “not clearly link [her] determination to 21 those reasons.” Lewis, 236 F.3d at 512. An ALJ may reject lay witness testimony if it is 22 inconsistent with the record. See, e.g., id. at 511–12 (rejecting lay witness testimony conflicting 23 with the plaintiff’s testimony and the medical record); Bayliss, 427 F.3d at 1218 (rejecting lay 24 witness testimony conflicting with the medical record). The ALJ may “draw inferences logically 25 flowing from the evidence.” Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982). Further, 26 “[i]f the ALJ gives germane reasons for rejecting testimony by one witness, the ALJ need only 27 point to those reasons when rejecting similar testimony by a different witness.” Molina, 674 F.3d 28 at 1114. 1 b. Analysis 2 Plaintiff’s son, Giovanni Maya, submitted a third-party function report on behalf of Plaintiff, 3 which stated in part that Plaintiff has impaired functioning related to memory, completing tasks, 4 concentration, understanding, following instructions, and getting along with others, and that she is 5 socially anxious and requires “thorough explanation” of anything Mr. Maya tells her in 6 conversation. (See AR 330–37.) In evaluating Mr. Maya’s statements, the ALJ stated: 7 Giovanni Maya, [Plaintiff’s] son, filled out a Third Party Function Report about 8 [Plaintiff] on November 1, 2015. Mr. Maya noted that [Plaintiff] had poor concentration, acted anxious in social settings, and was socially inhibited. He 9 indicated that she had poor sleep patterns and was drowsy at times due to medication side effects. He primarily corroborated the statements of [Plaintiff]. The 10 undersigned finds the statements of Mr. Maya to be generally persuasive except in regards to the severity of [Plaintiff’s] impairments, as the medical evidence does not 11 support such severe limitations. 12 (AR 29.) 13 The Court finds the ALJ failed to offer sufficiently “germane” reason for partially rejecting 14 Mr. Maya’s statements because the ALJ may not offer inconsistency with the objective medical 15 16 evidence as the sole reason for rejecting a lay witness report. Diedrich v. Berryhill, 874 F.3d 634, 17 640 (9th Cir. 2017); Revels v. Berryhill, 874 F.3d 648, 668 (9th Cir. 2017). Further, the ALJ does 18 not specify which statements she finds to be credible and “generally persuasive” and which 19 statements she finds to be less than credible. Specifically, the ALJ states that all of Mr. Maya’s 20 statements are persuasive except those regarding “the severity of [Plaintiff’s] impairments,” but 21 Mr. Maya’s entire report Mr. Maya addresses the severity of Plaintiff’s impairments. (See AR 22 330–37.) Thus, without further specification the Court cannot find that the ALJ offered 23 24 sufficiently germane reasons for rejecting the lay witness testimony of Mr. Maya. 25 26 27 28 1 Were Unsupported by Substantial Evidence 2 1. Legal Standards 3 a. RFC Assessment 4 An RFC assessment is an “administrative finding” that is reserved to the Commissioner. See 5 20 C.F.R. § 416.927(d)(2). The RFC is “the most [a claimant] can still do despite [his or her] 6 limitations.” 20 C.F.R. § 416.945(a); see also 20 C.F.R. Part 404, Subpart P, Appendix 2, § 7 200.00(c) (defining an RFC as the “maximum degree to which the individual retains the capacity 8 for sustained performance of the physical-mental requirements of jobs”). In formulating an RFC, 9 the ALJ weighs medical and other source opinions, including lay opinions, as well as the 10 claimant’s credibility. See Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1226 (9th Cir. 11 2009). The RFC assessment must be supported by substantial evidence, and “must consider 12 limitations and restrictions imposed by all of an individual’s impairments, even those that are not 13 ‘severe.’” Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005); Buck v. Berryhill, 869 F.3d 14 1040, 1049 (9th Cir. 2017) (quoting SSR 96-8p). 15 b. Step Five Determination 16 “[I]f a claimant establishes an inability to continue her past work, the burden shifts to the 17 Commissioner in step five to show that the claimant can perform other substantial work.” Burch 18 v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (citing Swenson v. Sullivan, 876 F.2d 683, 687 (9th 19 Cir. 1989)). At step five, “the ALJ . . . examines whether the claimant has the [RFC] . . . to perform 20 any other substantial gainful activity in the national economy.” Id. “If the claimant is able to do 21 other work, then the Commissioner must establish that there are a significant number of jobs in 22 the national economy that the claimant can do.” Tackett v. Apfel, 180 F.3d 1094, 1099 (9th Cir. 23 1999). “There are two ways for the Commissioner to meet the burden of showing that there is 24 other work in ‘significant numbers’ in the national economy that claimant can do: (1) by the 25 testimony of a [VE] or (2) by reference to the Medical-Vocational Guidelines . . .” Id. “If the 26 Commissioner meets this burden, the claimant is not disabled and therefore not entitled to . . . 27 benefits.” Id. (citation omitted). “If the Commissioner cannot meet this burden, then the claimant 28 is disabled and therefore entitled to . . . benefits.” Id. (citation omitted). 1 2. Analysis 2 Here, the Court finds that the ALJ’s RFC determination and step five determination are 3 unsupported by substantial evidence because both determinations were based upon the ALJ’s 4 erroneous evaluation of the medical opinion evidence, Plaintiff’s testimony, and the lay witness 5 testimony. See Ghanim v. Colvin, 763 F.3d 1154, 1166 (9th Cir. 2014); Lingenfelter, 504 F.3d at 6 1040–41 (“Because the ALJ did not provide clear and convincing reasons for excluding 7 Lingenfelter’s pain and symptoms from his assessment of Lingenfelter’s RFC, substantial 8 evidence does not support the assessment . . . Nor does substantial evidence support the ALJ’s 9 step-five determination, since it was based on this erroneous RFC assessment.”). 10 Specifically, if the ALJ had credited the opinions of any of the four physicians mentioned 11 above, Plaintiff’s testimony, or Mr. Maya’s testimony, the ALJ may have included additional 12 psychological limitations in the RFC. These limitations may include, for example, a further 13 limitation related to interaction with others, or a limitation related to Plaintiff’s allegedly 14 debilitating panic attacks. If the RFC included those additional limitations, that may have changed 15 the ALJ’s step five determination. On remand, the ALJ should reevaluate the opinion evidence 16 and testimony as set forth above, and reevaluate Plaintiff’s RFC and whether Plaintiff can perform 17 her past relevant work or other work at steps four and five. 18 D. The ALJ’s Errors Were Not Harmless 19 The Court now turns to the determination of whether these errors by the ALJ were 20 harmless. The Ninth Circuit “ha[s] long recognized that harmless error principles apply in the 21 Social Security Act context.” Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) (citing Stout 22 v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006)); see also Garcia v. Comm’r of 23 Soc. Sec., 768 F.3d 925, 932 n.10 (9th Cir. 2014) (stating that the harmless error analysis applies 24 where the ALJ errs by not discharging their duty to develop the record). As such, “the court will 25 not reverse an ALJ’s decision for harmless error.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th 26 Cir. 2008) (citing Robbins, 466 F.3d at 885). 27 An error is harmless “where it is inconsequential to the ultimate nondisability 28 determination.” Molina, 674 F.3d at 1115 (citations omitted); see also Treichler v. Comm’r of 1 Soc. Sec. Admin., 775 F.3d 1090, 1099 (9th Cir. 2014) (stating that an error is also harmless “‘if 2 the agency’s path may reasonably be discerned,’ even if the agency ‘explains its decision with less 3 than ideal clarity’” (quoting Alaska Dep’t of Envtl. Conservation v. EPA, 540 U.S. 461, 497 4 (2004)). “In other words, in each case [courts] look at the record as a whole to determine whether 5 the error alters the outcome of the case.” Molina, 674 F.3d at 1115. “[T]he nature of [the] 6 application” of the “harmless error analysis to social security cases” is “fact-intensive―‘no 7 presumptions operate’ and ‘[courts] must analyze harmlessness in light of the circumstances of the 8 case.’” March v. Colvin, 792 F.3d 1170, 1172 (9th Cir. 2015) (quoting Molina, 674 F.3d at 1121). 9 “[T]he burden of showing that an error is harmful normally falls upon the party attacking the 10 agency’s determination.” Shinseki, 556 U.S. at 409 (citations omitted). 11 Here, the Commissioner does not contend that any potential error by the ALJ raised by 12 Plaintiff is harmless except for the purported error in evaluating Plaintiff’s credibility. (See Doc. 13 16 at 18.) The Court agrees with Plaintiff that if the ALJ had credited certain statements from 14 Plaintiff, Mr. Maya, or the four physicians that the ALJ rejected, that may have changed the 15 disability determination. This is especially true here, where Plaintiff and Mr. Maya alleged fairly 16 significant limitations, including that Plaintiff could barely ever leave the house, had debilitating 17 panic attacks twice a day, and could almost never be around others because it would produce 18 intense anxiety, and all four physicians opined that Plaintiff had significant limitations that 19 rendered her unable to work. Thus, the error was not “inconsequential to the ultimate nondisability 20 determination,” see Molina, 674 F.3d at 1115, and was not harmless. 21 E. The ALJ’s Errors Warrant Remand for Further Proceedings 22 Plaintiff contends that if the ALJ’s decision is reversed, the Court should remand the case 23 for an immediate award of benefits. (Doc. 13 at 28.) The Court disagrees and recommends the 24 case be remanded to the Commissioner to allow the ALJ to re-assess Plaintiff’s testimony, Mr. 25 Maya’s statements, and the four physicians’ opinions, incorporate any necessary additional 26 27 limitations in the RFC, and reevaluate the steps four and five determinations based on the new 28 RFC. 1 2 remand to the agency for additional investigation or explanation.” Treichler, 775 F.3d at 1099 3 (citations omitted). The Ninth Circuit recognized a limited exception to this typical course where 4 courts “remand[] for an award of benefits instead of further proceedings.” Id. at 1100–01 (citations 5 omitted); see also id. at 1100 (noting that this exception is “sometimes referred to as the ‘credit- 6 as-true’ rule”). In determining whether to apply this exception to the “ordinary remand rule,” the 7 court must determine, in part, whether (1) “the record has been fully developed;” (2) “there are 8 outstanding issues that must be resolved before a determination of disability can be made;” and 9 10 (3) “further administrative proceedings would be useful.” Id. at 1101 (citations omitted). As to the 11 last inquiry, additional “[a]dministrative proceedings are generally useful where the record has not 12 been fully developed, there is a need to resolve conflicts and ambiguities, or the presentation of 13 further evidence . . . may well prove enlightening in light of the passage of time.” Id. (citations 14 omitted). Ultimately, “[t]he decision whether to remand a case for additional evidence or simply 15 to award benefits is in [the court’s] discretion.” Swenson, 876 F.2d at 689 (citation omitted). 16 Here, the Court finds that the “credit-as-true” exception to the “ordinary remand rule” is 17 18 inapplicable because additional administrative proceedings would be useful. If the ALJ changes 19 his evaluation of Plaintiff’s subjective complaints, Mr. Maya’s statements, and/or the four 20 physicians’ opinions, he could incorporate any warranted additional limitations in the RFC. 21 Conversely, there may be specific, clear and convincing reasons the ALJ can offer for discounting 22 Plaintiff’s testimony, germane reasons the ALJ may offer for rejecting Mr. Maya’s testimony, and 23 specific and legitimate reasons the ALJ can offer for rejecting portions of the four physicians’ 24 25 opinions. See, e.g., Payan v. Colvin, 672 F. App’x 732, 733 (9th Cir. 2016); Voisard v. Berryhill, 26 No. 2:17-CV-1023-EFB, 2018 WL 4488474, at *5 (E.D. Cal. Sept. 19, 2018) (“That the ALJ failed 27 to provide sufficient reasons for discounting plaintiff’s subjective testimony in this instance does 28 1 2 evaluation of the medical opinions of the plaintiff’s treating physicians, “for the ALJ to properly 3 consider and discuss the treating physicians’ opinions,” direct any “further medical evaluation . . . 4 necessary,” and re-formulate the plaintiff’s RFC). Even if the ALJ decides to credit as true some 5 or all of the above testimony and opinion evidence and adjust the RFC determination, the ALJ may 6 still conclude that Plaintiff is not disabled—either because she has the RFC to perform the 7 requirements of her past relevant work or because she has the RFC to perform the requirements of 8 other work that exists in significant numbers in the national economy. 9 10 The ALJ may also elect to further develop the record, if deemed necessary. See, e.g., 11 Vaughn, 242 F. Supp. 3d at 1010 (“Any subsequent decision shall discuss what weight is assigned 12 to each physician’s opinion, the reasons for making such a determination, and why substantial 13 evidence supports that conclusion.”). Further proceedings would therefore be useful to allow the 14 ALJ to resolve these “outstanding issues” before a proper disability determination can be made. 15 See Varney v. Sec’y of Health & Human Servs., 859 F.2d 1396, 1401 (9th Cir. 1988). On remand, 16 the ALJ should reevaluate Plaintiff’s symptom testimony, Mr. Maya’s testimony, and the medical 17 18 opinion evidence, address any necessary changes to the RFC determination, and reevaluate the 19 steps four and five determinations based on the new RFC. 20 V. CONCLUSION AND RECOMMENDATION 21 Based on the foregoing, the Court finds that the ALJ's decision is not supported by 22 substantial evidence. Accordingly, the Court RECOMMENDS that the ALJ’s decision be 23 REVERSED and the case REMANDED to the Commissioner of Social Security for further 24 25 proceedings, and that judgment be entered in favor of Plaintiff Lucila Pena and against Defendant. 26 These findings and recommendations are submitted to the district judge assigned to this 27 action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court's Local Rule 304. Within fourteen 28 1 2 captioned "Objections to Magistrate Judge's Findings and Recommendations." The district judge 3 will review the magistrate judge's findings and recommendations pursuant to 28 U.S.C. § 4 636(b)(1)(C). The parties are advised that failure to file objections within the specified time may 5 waive the right to appeal the district judge's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 6 7 IT IS SO ORDERED. 8 Sheila K. Oberto 9 Dated: July 8, 2020 /s/ . UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28