(SS) Perez 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 ELISA PEREZ, ) Case No.: 1:18-cv-1264 - 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 COMMISSIONER OF SOCIAL SECURITY, ) FAVOR OF PLAINTIFF ELISA PEREZ, AND ) AGAINST DEFENDANT, THE COMMISSIONER 15 Defendant. ) OF SOCIAL SECURITY ) 16 ) 17 Elisa Perez asserts she is entitled to a period of disability, disability insurance benefits, and 18 supplemental security income under Titles II and XVI of the Social Security Act. Plaintiff seeks 19 judicial review of the decision to deny her application for benefits. Because the ALJ erred in 20 evaluating the medical record, the matter is REMANDED for further proceedings pursuant to sentence 21 four of 42 U.S.C. § 405(g). 22 BACKGROUND 23 In November 2014, Plaintiff filed applications for benefits under Titles II and XVI, asserting 24 she was unable to work due to the following conditions: depression, Type II diabetes, high blood 25 pressure, high cholesterol, a spinal disc herniation, hernia in the stomach, and a back injury. (Doc. 10- 26 7 at 2-16; Doc. 10-8 at 3) The Social Security Administration denied the applications at the initial 27 level and upon reconsideration. (Doc. 10-4 at 28-29, 60-61) Plaintiff requested a hearing and testified 28 before an ALJ on July 6, 2017. (See Doc. 10-3 at 22, 39) The ALJ determined Plaintiff was not 1 disabled under the Social Security Act, and issued an order denying benefits on October 23, 2017. 2 (Doc. 10-3 at 22-32) Plaintiff filed a request for review of the decision with the Appeals Council, 3 which denied the request on July 24, 2018. (Doc. 10-6 at 51; Doc. 10-3 at 2-4) Therefore, the ALJ’s 4 determination became the final decision of the Commissioner of Social Security. 5 STANDARD OF REVIEW 6 District courts have a limited scope of judicial review for disability claims after a decision by 7 the Commissioner to deny benefits under the Social Security Act. When reviewing findings of fact, 8 such as whether a claimant was disabled, the Court must determine whether the Commissioner’s 9 decision is supported by substantial evidence or is based on legal error. 42 U.S.C. § 405(g). The ALJ’s 10 determination that a claimant is not disabled must be upheld by the Court if the proper legal standards 11 were applied and the findings are supported by substantial evidence. See Sanchez v. Sec’y of Health & 12 Human Serv., 812 F.2d 509, 510 (9th Cir. 1987). 13 Substantial evidence is “more than a mere scintilla. It means such relevant evidence as a 14 reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 15 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197 (1938)). The record as a whole 16 must be considered, because “[t]he court must consider both evidence that supports and evidence that 17 detracts from the ALJ’s conclusion.” Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). 18 DISABILITY BENEFITS 19 To qualify for benefits under the Social Security Act, Plaintiff must establish he is unable to 20 engage in substantial gainful activity due to a medically determinable physical or mental impairment 21 that has lasted or can be expected to last for a continuous period of not less than 12 months. 42 U.S.C. 22 § 1382c(a)(3)(A). An individual shall be considered to have a disability only if: 23 his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work, but cannot, considering his age, education, and work 24 experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in 25 which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work. 26 27 42 U.S.C. § 1382c(a)(3)(B). The burden of proof is on a claimant to establish disability. Terry v. 28 Sullivan, 903 F.2d 1273, 1275 (9th Cir. 1990). If a claimant establishes a prima facie case of disability, 1 the burden shifts to the Commissioner to prove the claimant is able to engage in other substantial 2 gainful employment. Maounis v. Heckler, 738 F.2d 1032, 1034 (9th Cir. 1984). 3 ADMINISTRATIVE DETERMINATION 4 To achieve uniform decisions, the Commissioner established a sequential five-step process for 5 evaluating a claimant’s alleged disability. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The process 6 requires the ALJ to determine whether Plaintiff (1) is engaged substantial gainful activity, (2) had 7 medically determinable severe impairments (3) that met or equaled one of the listed impairments set 8 forth in 20 C.F.R. § 404, Subpart P, Appendix 1; and whether Plaintiff (4) had the residual functional 9 capacity to perform to past relevant work or (5) the ability to perform other work existing in significant 10 numbers at the state and national level. Id. The ALJ must consider testimonial and objective medical 11 evidence. 20 C.F.R. §§ 404.1527, 416.927. 12 A. Relevant Medical Background 13 In December 2013, Plaintiff went to an emergency room after suffering a fall. (Doc. 10-4 at 7) 14 Plaintiff described acute shoulder, neck, and back pain a week after her fall. (Id.) In addition, she 15 stated she had numbness in her buttocks and down her legs. (Id.) Plaintiff exhibited normal range of 16 motion and strength, but had tenderness in her shoulders and neck and was “unable to lift arms up [due] 17 to pain.” (Id.) 18 After continued reports of low back pain, which did not improve with therapy and ibuprofen, 19 Plaintiff underwent an MRI on her lumbar spine in July 2014. (Doc. 10-4 at 7) The MRI showed 20 “[d]isc desiccation at L3-4 [with] mild broad based disc bulge.” (Id.) There was no significant central 21 canal stenosis, and no evidence of nerve root compression. (Id. at 8) 22 Dr. Roger Fast reviewed available records and completed a physical residual functional capacity 23 assessment regarding Plaintiff’s current level of functioning on January 8, 2015. (Doc. 10-4 at 9, 11- 24 12) Dr. Fast found Plaintiff’s MRI “was essentially normal” and did not show a disc herniation as 25 Plaintiff alleged in her application for benefits. (Id. at 9, 12) He noted Plaintiff was “obese and 26 diabetic with hypertension,” and cardiac testing showed mild left ventricular hypertrophy. (Id.) Dr. 27 Fast opined Plaintiff could lift and carry 50 pounds occasionally and 25 pounds frequently, stand and/or 28 walk about six hours in an eight-hour day, and sit about six hours in an eight-hour day. (Id. at 12) He 1 found no postural, manipulative, or environmental limitations. (Id.) 2 Dr. Steven Swanson performed a psychological assessment on January 13, 2015. (Doc. 10-11 3 at 22) Plaintiff reported she had never been hospitalized in a psychiatric setting and “no history of 4 treatment of a mental health disorder.” (Id. at 23) Plaintiff told Dr. Swanson that her work history 5 included “in-home care for elderly persons” and being a janitor and seamstress. (Id.) She also stated 6 she could “independently … complete all activities of daily living.” (Id.) Dr. Swanson observed that 7 Plaintiff “was adequately-oriented to person, time, place, and situation;” and was “[v]ery pleasant.” 8 (Id. at 24) He determined Plaintiff’s “[f]orm and content of thought were within normal limits,” 9 without indication of delusional material or psychosis. (Id.) Dr. Swanson determined that Plaintiff’s 10 “[c]oncentration was adequate for performing simple, mathematical calculations,” and “maintained 11 satisfactory attention and concentration.” (Id.) 12 Dr. Swanson administered the TONI-3 test, which he noted was “a nonverbal test of intelligence 13 designed for use with disabled or minority populations who may require language-free testing formats,” 14 and Plaintiff “obtained a TONI-3 I.Q. of 75.” (Doc. 10-11 at 24) Dr. Swanson noted this indicated 15 Plaintiff’s intellectual functioning was “at the 5th percentile,” and was “equal to or better than 5 percent 16 of individuals the same age.” (Id. at 25) Thus, Dr. Swanson explained Plaintiff could “be expected to 17 perform at a level that is considerably lower than same-aged peers.” (Id.) He also administered the 18 WMS-IV, which tested Plaintiff’s memory. (Id.) He found Plaintiff obtained an immediate memory 19 score of 81 and delayed memory index score of 84, which Dr. Swanson noted were “consistent with the 20 findings of the intelligence test.” (Id.) Dr. Swanson diagnosed Plaintiff with borderline intellectual 21 functioning and opined: 22 [Plaintiff] is judged able to maintain concentration and relate appropriately to others in a job setting. She would be able to handle funds in her own best interest. She is 23 expected to understand, carry out, and remember simple instructions. She is judged able to respond appropriately to usual work situations, such as attendance, safety, and 24 the like. Changes in routine would not be excessively problematic for her. There do not appear to be substantial restrictions in daily functioning. Difficulties in maintaining 25 social relationships do not appear to be present. 26 (Id. at 25-26) 27 On June 26, 2015, Dr. J. Zhang performed a psychological evaluation upon the request of 28 Department of Social Services. (Doc. 10-11 at 31) Dr. Zhang noted Plaintiff reported a “history of 1 depression” and was taking a psychotropic medication. (Id. at 32) Plaintiff told Dr. Zhang that she was 2 “able to take care of her basic grooming and hygiene needs,” prepare simple meals, and go out alone. 3 (Id. at 33) She stated had “some difficulty” with making decisions, planning daily activities, and 4 “completing household tasks because of lack of motivation and energy.” (Id.) Plaintiff also said she 5 could drive, but usually walked or had others drive for transportation. (Id.) Dr. Zhang observed that 6 Plaintiff “appear[ed] to be depressed with constricted affect,” and was “oriented to time, person, place, 7 and situation.” (Id.) According to Dr. Zhang, Plaintiff was able “to perform simple calculations” and 8 “repeated 5 digits forward and 3 digits backward,” but had “a number of errors” when reporting serial 9 7s. (Id.) Dr. Zhang determined: “The claimant demonstrates mild depression secondary to her medical 10 problems and life difficulties. She is currently prescribed antidepressant medication with some positive 11 result.” (Id. at 34) Dr. Zhang opined Plaintiff had no impairment with the “[a]bility to understand, 12 remember, and carry out simple instructions;” and she had a mild impairment with detailed and 13 complex instructions. (Id.) Dr. Zhang also believed Plaintiff had a moderate impairment with her 14 “[a]bility to maintain attention, concentration, persistence, and pace in common work settings” and 15 “maintain consistent attendance and to perform routine work duties.” (Id.) 16 Dr. Amado reviewed the record related to the alleged mental impairment on July 24, 2015. 17 (Doc. 10-4 at 37-38) According to Dr. Amado, the diagnosis of borderline intellectual functioning was 18 “not well-supported in view of [Plaintiff’s] adaptive functioning.” (Id. at 37) However, Dr. Amado 19 noted: “A second look at the evidence on file, including [the] updated psych CE of 6/15, would favor a 20 [mental residual functional capacity] for unskilled work on a sustained basis.” (Id.) Dr. Amado 21 explained that though clinical depression was not identified by treating sources, Plaintiff “present[ed] 22 with a depressed mood / constricted affect and… some difficulty with sustained concentration for 23 mental math operations such as serial subtractions.” (Id.) Dr. Amado believed it was “likely that any 24 cognitive issues present [were] secondary to mood impairment and not indicative of an independent 25 concern.” (Id. at 37-38) Dr. Amado found Plaintiff was “[m]oderately limited” with her abilities to 26 “maintain attention and concentration for extended periods” and “perform activities within a schedule, 27 maintain regular attendance, and be punctual within customary tolerances.” (Id. at 40) Dr. Amado 28 concluded that “on a sustained basis,” Plaintiff was “limited to implementation of simple instructions 1 with adequate concentration / persistence / pace in order to complete usual work schedules.” (Id. at 41) 2 Dr. Angela Grasser completed a physical medical source statement on May 26, 2017. (Doc. 10- 3 14 at 98) Dr. Grasser noted she began treating Plaintiff in January 2014 and saw her on a monthly 4 basis. (Id.) She observed that Plaintiff had been diagnosed with a bulging disc and reported pain in her 5 back, neck, right shoulder, and right knee. (Id.) Dr. Grasser noted Plaintiff exhibited a decreased range 6 of motion and tenderness in her back, neck, knee, and shoulder. (Id.) Dr. Grasser indicated Plaintiff 7 could walk “1/4 of [a] city block” without rest; sit for twenty minutes at one time; stand for five 8 minutes at one time; and sit, stand, or walk for less than two hours total in an eight-hour day; and never 9 twist, stoop, crouch, squat, or climb. (Id. at 99-100) Dr. Grasser believed that Plaintiff’s symptoms 10 included imbalance and insecurity, and she should use a cane for “unstable gait.” (Id. at 99) Further, she 11 indicated Plaintiff would need unscheduled breaks every half hour to lie down, and needed to be able to 12 “shift[] positions at will from sitting, standing, or walking.” (Id. at 99, 101) Dr. Grasser opined 13 Plaintiff could rarely lift and carry less than 10 pounds, and reach—either in front of her body or 14 overhead—10 percent of the time with her right arm and 80 percent of the time with her left arm. (Id. 15 at 99-100) Dr. Grasser indicated that Plaintiff’s depression contributed to the severity of her symptoms 16 and functional limitations, and she was capable of low stress work due to depression and anxiety. (Id. 17 at 98, 100) Furthermore, Dr. Grasser believed Plaintiff was unable to tolerate extreme cold and should 18 avoid dust due to allergies. (Id. at 101) 19 B. Administrative Hearing 20 Plaintiff testified before the ALJ at a hearing on July 6, 2017. (Doc. 10-3 at 22) She reported 21 she lived with her husband and adult son, who was on disability. (Id. at 43, 50-51) Plaintiff estimated 22 that on any given day, she helped her son for “[a]bout half an hour a day,” and was paid for 42 hours 23 each month for taking care of her son by In Home Support Services. (Id. at 50, 60) She stated that she 24 would remind her son to take his medication, get it ready for him, prepare his food, and take him to 25 medical appointments every three months. (Id. at 51-52) 26 She reported that she had pain in her back, neck, and right knee. (Doc. 10-3 at 52) Plaintiff 27 wore a brace around her waist at the hearing, which she said was so her back would not “move around 28 too much.” (Id.) She stated that she wore that whenever she was “going to walk” or go out. (Id. at 52- 1 53) Plaintiff testified she also used a cane, which was prescribed to her sometime in 2015. (Id. at 53) 2 She reported that she no longer could do activities such as sweeping and mopping, because they 3 required her to move her back a lot. (Doc. 10-3 at 56) Plaintiff said that “carrying anything that’s 4 heavy” also caused problems with her back, and she was limited to lifting up “anything that’s about ten 5 pounds.” (Id.) Plaintiff reported she could do chores for a total of about four hours in one day. (Id. at 6 58) She estimated that she could stand for 15 or 20 minutes at one time before she needed to take a 7 break, and explained she needed “to be holding onto something if, whenever…standing.” (Id. at 57) In 8 addition, Plaintiff believed she could walk for “[a]bout five to ten minutes.” (Id.) She stated that if she 9 stood or walked for too long, she felt like her knee buckled. (Id. at 58) 10 Plaintiff stated she was taking medication for depression and took “[o]ne pill a day.” (Doc. 10- 11 3 at 53-54) She said she stopped going to counseling because she got embarrassed, but the medication 12 helped. (Id. at 54) 13 C. The ALJ’s Findings 14 Pursuant to the five-step process, the ALJ determined Plaintiff not engaged in substantial 15 gainful activity since the alleged disability onset date of September 3, 2014. (Doc. 10-3 at 24) Second, 16 the ALJ found Plaintiff’s severe impairments included: “Coronary artery disease secondary to 17 hypertension; diabetes mellitus II; obesity; degenerative disc disease with disc bulge at L3-4; sacroiliac 18 arthropathy, and right knee osteoarthritis.” (Id.) The ALJ noted Plaintiff had been diagnosed with 19 depression, but found it “does not cause more than minimal limitation in …[her] ability to perform 20 basic mental work activities and is therefore nonsevere.” (Id. at 26) At step three, the ALJ determined 21 Plaintiff’s impairment did not meet or medically equal a Listing. (Id. at 21-22) Next, the ALJ found: 22 [T]he claimant has the residual functional capacity to perform work as follows: lift and carry 25 pounds frequently and lift 50 pounds occasionally; stand and walk six for a 23 total of six out of eight hours; sit six hours in an eight-hour workday; [and] work involving no more than occasional exposure to cold temperature extremes. 24 25 (Id. at 26) With this residual functional capacity, the ALJ found Plaintiff was “capable of performing 26 past relevant work as a home care attendant.” (Id. at 32) Thus, the ALJ concluded Plaintiff was not 27 disabled as defined by the Social Security Act from September 3, 2014, through the date of the 28 decision. (Id. at 32) 1 DISCUSSION AND ANALYSIS 2 Appealing the decision to deny his applications for benefits, Plaintiff argues that the ALJ erred 3 in evaluating the medical record in finding her mental impairment was not severe and rejecting the 4 limitations identified by her treating physician, Dr. Grasser. (Doc. 18 at 1, 13-19) On the other hand, 5 the Commissioner argues that “the ALJ properly weighed the medical opinion evidence and assessed 6 [a residual functional capacity] consistent with the record as a whole.” (Doc. 23 at 13, emphasis 7 omitted). 8 A. Finding’s Related to Plaintiff’s Mental Impairments 9 The inquiry at step two is a de minimus screening for severe impairments “to dispose of 10 groundless claims.” Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996) (citing Bowen v. Yuckert, 11 482 U.S. 137, 153-54 (1987)). The purpose is to identify claimants whose medical impairment makes 12 it unlikely they would be disabled even if age, education, and experience are considered. Bowen, 482 13 U.S. at 153 (1987). At step two, a claimant must make a “threshold showing” that (1) she has a 14 medically determinable impairment or combination of impairments and (2) the impairment or 15 combination of impairments is severe. Id. at 146-47; see also 20 C.F.R. §§ 404.1520(c), 416.920(c). 16 Thus, the burden of proof is on the claimant to establish a medically determinable severe impairment. 17 Id.; see also Bray v. Comm’r of Soc. Sec. Admin, 554 F.3d 1219, 1222 (9th Cir. 2009) (“The burden of 18 proof is on the claimant at steps one through four...”). 19 An impairment, or combination thereof, is “not severe” if the evidence establishes that it has 20 “no more than a minimal effect on an individual’s ability to do work.” Smolen, 80 F.3d at 1290. For 21 an impairment to be “severe,” it must “significantly limit[]” the claimant’s “ability to do basic work 22 activities.” 20 C.F.R. §§ 404.1520(c), 416.920(c). Basic work activities are “the abilities and 23 aptitudes necessary to do most jobs.” 20 C.F.R. §§ 404.1522(b), 416.922(b). These activities include 24 “[u]nderstanding, carrying out, and remembering simple instructions;” “[u]se of judgment;” 25 “[r]esponding appropriately to supervision, co-workers and usual work situations;” and “[d]ealing with 26 changes in a routine work setting.” Id. 27 The “Paragraph B” criteria set forth in 20 C.F.R., Pt. 404, Subpart P, App. 1 are used to evaluate 28 the severity of mental impairments of a claimant, and include the ability to: “[u]nderstand, remember, 1 or apply information; interact with others; concentrate, persist, or maintain pace; and adapt or manage 2 oneself.” See id., §12.00(A)(2)(b) (2018). The Regulations inform claimants: 3 If we rate the degrees of your limitation as “none” or “mild,” we will generally conclude that your impairment(s) is not severe, unless the evidence otherwise indicates 4 that there is more than a minimal limitation in your ability to do basic work activities. 5 20 C.F.R. §§ 404.1520a(d)(1); 416.920a(d)(1). 6 1. The ALJ’s Findings 7 The ALJ determined Plaintiff’s “medically determinable mental impairment does not cause 8 more than minimal limitation in … [her] ability to perform basic mental work activities and is 9 therefore nonsevere.” (Doc. 10-3 at 25) In making this finding, the ALJ indicated she considered the 10 Paragraph B criteria and noted: 11 The claimant’s mental impairment causes a mild restriction in understanding, remembering, or applying information, and concentration, persistence, and pace; and no 12 restriction in interacting with others or adapting or managing oneself. Despite the claimant’s physical and mental complaints, she does housework and meal preparation, 13 helps care for her disabled adult son, has no problems with personal care, knits, drives, shops, is able to handle her finances, reads, watches television, talks on the phone, 14 attends church, and is able to pay attention and follow instructions (Exhibit 4E; testimony). 15 The record indicates complaints of situational stressors and depression related to 16 physical limitations (Exhibit 12F, pp. 51, 83, 85, 91). The claimant was prescribed Wellbutrin and Celexa by her primary doctor, and was evaluated by behavioral health in 17 May 2015 for depression, and seen again for depression secondary to pain, and financial stress. (Exhibit l 2F, p. 101). She reported slight improvement in her symptoms with 18 medication, and she was doing well by July 2015 (Exhibit 12F, pp. 83, 101, 107). The claimant testified that she takes Sertaline (Zoloft) daily which helps; and that she 19 attended counseling in 2015 but has not continued because she gets [embarrassed]. 20 (Doc. 10-3 at 25) 21 Plaintiff asserts this analysis was flawed because the ALJ rejected “the opinions of every 22 medical professional concerning Plaintiff’s severe mental impairment” and relied “on her lay 23 interpretation of the records.” (Doc 18 at 13) In particular, Plaintiff observes that “every medical 24 expert who examined the Plaintiff or reviewed her medical records concluded that her impairment is 25 severe, as it causes at least moderate limitations in functioning, and would impact per ability to work.” 26 (Id. at 14) 27 2. Medical evidence related to the Paragraph B domains 28 The ALJ did not clearly identify the evidence considered related to the domains, but 1 summarized evidence after stating her findings. However, each of the domains address various aspects 2 of a claimant’s ability to perform basic work activities. As explained by the regulations, the ability to 3 understand, remember, or apply information “refers to the abilities to learn, recall, and use information 4 to perform work activities.” 20 C.F.R., Pt. 404, Subpart P, App. 1, §12.00(E)(1) (2018). Examples of 5 such abilities include “[u]nderstanding and learning terms, instructions, [and] procedures,” and 6 “following one-or two-step oral instructions to carry out a task.” (Id.) The ability to learn information 7 is separate from a claimant’s ability to maintain “concentration, persistence, or pace” for basic work 8 activities. See 20 C.F.R., Pt. 404, Subpart P, App. 1, 12.00(A)(2)(b). 9 As Plaintiff observes, in making the step two determination, the ALJ did not address the 10 limitations identified by physicians related to Plaintiff’s mental impairment, including her abilities to 11 understand, remember, and carry out tasks; and related to concentration, persistence, and pace. (See 12 Doc. 10-3 at 26) However, each of the physicians in the record assessed limitations related to 13 Plaintiff’s mental abilities. For example, Dr. Swanson administered intelligence and psychological 14 testing and found Plaintiff’s “[c]oncentration was adequate for performing simple, mathematical 15 calculations” and she could be “expected to understand, carry out, and remember simple instructions.” 16 (Doc. 10-11 at 24-26) Dr. Zhang performed a second psychological evaluation and opined Plaintiff had 17 a moderate impairment with impairment with her “[a]bility to maintain attention, concentration, 18 persistence, and pace in common work settings” and “maintain consistent attendance and to perform 19 routine work duties.” (Id. at 34) Likewise, Dr. Amado concluded Plaintiff was “[m]oderately limited” 20 with her abilities to “maintain attention and concentration for extended periods” and “perform activities 21 within a schedule, maintain regular attendance, and be punctual within customary tolerances.” (Doc. 22 10-4 at 37-38) Finally, Plaintiff’s treating physician, Dr. Grasser, indicated her belief that Plaintiff’s 23 depression contributed to the severity of her symptoms, and Plaintiff was limited to low stress work due 24 to depression and anxiety. (Doc. 10-14 at 98, 100) Each of these opinions support a conclusion that 25 Plaintiff’s mental impairments were severe but were not discussed by the ALJ in the step two analysis. 26 On the other hand, the ALJ purported to reject several of these findings when addressing 27 Plaintiff’s residual functional capacity, and the decision to not iinclude any mental limitations. For 28 example, the ALJ gave little weight to the opinion of Dr. Swanson because of Plaintiff’s “history of 1 work in a semiskilled position and in consideration of the cultural/linguistic barriers to accurate 2 standardized testing noted in the report.” (Doc. 10-3 at 30) However, the ALJ fails to explain how 3 Plaintiff’s work history—years prior to the evaluation—related to her current level of functioning as 4 assessed by Dr. Swanson, or her level of functioning during the relevant period. In addition, the ALJ 5 failed to explain why the intelligence testing scores were rejected on cultural/linguistic grounds when 6 Dr. Swanson noted the test administered was specifically “for use with… or minority populations who 7 may require language-free testing formats.” (See Doc. 10-11 at 24) Indeed, Dr. Swanson also 8 administered the WMS-IV to test Plaintiff’s memory, and found the results for the test were “consistent 9 with the findings from the intelligence test.” (Id. at 25) Thus the reasons identified by the ALJ for 10 rejecting the opinions of Dr. Swanson are not adequately supported by the record. 11 Similarly, the ALJ fails to identify legally sufficient reject the opinions of Drs. Zhang and 12 Amado that Plaintiff had moderate limitations with her ability to maintain attention, concentration, and 13 pace; and maintain attendance to perform routine work duties. (See Doc. 10-4 at 37; Doc. 10-11 at 41) 14 The ALJ indicated she gave little weight to these opinions because Plaintiff “performs a wide range of 15 daily activities,” including “regular appointments for her health, works daily as a care provider for her 16 son, drives, and performs household duties, including cooking, shopping, handling the finances, and 17 driving.” (Doc. 10-3 at 31) The Ninth Circuit indicated an ALJ may reject limitations identified by 18 physicians where limitations identified “appear to be inconsistent with the level of activity that [the 19 claimant] engaged in.” Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 2001). However, the 20 activities identified by the ALJ address the domain of Plaintiff’s ability to adapt or manage herself, not 21 her ability to concentrate. See 20 C.F.R., Pt. 404, Subpart P, App. 1, §12.00(E)(4) (factors to be 22 considered include a claimant’s ability to make plans and maintain personal hygiene); see also Icobucci 23 v. Berryhill, 2018 U.S. Dist. LEXIS 96076, at *5 (W.D.N.Y. June 7, 2018) (finding the claimant did 24 “not have… deficits in adaptive functioning” where the plaintiff as able to clean, shop, take care of her 25 daughter, and “[the] plaintiff stated that she could perform her own personal needs, follow directions, 26 and can take standardized measures of intellectual functioning testing”) (emphasis added). 27 Furthermore, Plaintiff testified that her daily work for her son is no more than thirty minutes, and she 28 transported him to appointments once every three months. (Doc. 10-3 at 50, 51-52, 60) These limited 1 activities do not address Plaintiff’s concentration, persistence, or pace; and the ALJ has failed to 2 explain how the limitations identified by Drs. Zhang and Amado were inconsistent with Plaintiff’s level 3 of activity. 4 Because the ALJ erred in her evaluation at step two by ignoring probative evidence related to 5 Plaintiff’s mental functioning—including findings that her impairments included moderate 6 limitations—Plaintiff has carried the burden to demonstrate the ALJ erred in finding her depression was 7 not a severe impairment at step two. Likewise, the decision of the ALJ to not incorporate any mental 8 limitations in the residual functional capacity is not supported by the record, because the ALJ did not 9 identify legally sufficient reasons, supported by the record, for rejecting the physicians’ opinions 10 regarding Plaintiff’s mental abilities. 11 B. Evaluation of the Opinion of Dr. Grasser 12 Dr. Grasser, Plaintiff’s treating physician, completed a physical source statement in May 2017, 13 which the ALJ gave “little weight.” (Doc. 10-3 at 29-30) Plaintiff contends the ALJ erred in doing so, 14 and instead giving “significant weight” to the opinions of non-examining physicians, Drs. Fast and 15 Nasrabadi. (Doc. 18 at 16-18) 16 When evaluating the evidence from medical professionals, three categories of physicians are 17 distinguished: (1) treating physicians; (2) examining physicians, who examine but do not treat the 18 claimant; and (3) non-examining physicians, who neither examine nor treat the claimant. Lester v. 19 Chater, 81 F.3d 821, 830 (9th Cir. 1996). In general, the opinion of a treating physician is afforded the 20 greatest weight, but it is not binding on the issue of a disability. Id.; 20 C.F.R. § 404.1527(d)(2); 21 Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). If there is conflicting medical evidence, “it is 22 the ALJ’s role to determine credibility and to resolve the conflict.” Allen v. Heckler, 749 F.2d 577, 579 23 (9th Cir. 1984). The ALJ’s resolution of the conflict must be upheld by the Court when there is “more 24 than one rational interpretation of the evidence.” Id. An ALJ may reject the opinion of a medical source 25 that is contradicted by another with “specific and legitimate” reasons, supported by substantial 26 evidence in the record. Lester, 81 F.3d at 830; see also Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th 27 Cir. 2002). Because the opinion of Dr. Grasser conflicted with the opinions of Drs. Fast and Nasrabadi, 28 the ALJ was required to identify specific and legitimate reasons for rejecting the opinion. 1 In addressing each of the medical opinions in the record, the ALJ summarized the conclusions 2 of Dr. Grasser related to Plaintiff’s limitations and abilities, and stated: 3 The undersigned gives little weight to this opinion because the entirety of the medical record, including that of Dr. Grasser’s treatment notes and the associated records of 4 Adventist Health Community Care, do not support such exertional, postural, environmental, mental and manipulative restrictions. (Exhibits 3F, 9F, 12F) In 2014, Dr. 5 Grasser treated the claimant once a month for her physical impairments, including diabetes mellitus, obesity, hypertension, and bronchitis, with largely prescription 6 medication maintenance, treatment for allergic medication reaction, and adjustment of lifestyle and diet recommendations. The treatment notes, nor the objective findings, do 7 not indicate worsening musculoskeletal impairments, an abnormal gait, or the need for a cane (Exhibit 12F). 8 9 (Doc. 10-3 at 30) 10 The Ninth Circuit determined an opinion may be rejected where there are internal 11 inconsistencies within a physician’s report. Morgan v. Comm’r of the Soc. Sec. Admin., 169 F.3d 595, 12 603 (9th Cir. 1999). Further, an ALJ may reject limitations “unsupported by the record as a whole.” 13 Mendoza v. Astrue, 371 Fed. Appx. 829, 831-32 (9th Cir. 2010) (citing Batson v. Comm’r of the Soc. 14 Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2003)). 15 When an ALJ believes a physician’s opinion is unsupported by the objective medical evidence, 16 the ALJ has a burden to “set[] out a detailed and thorough summary of the facts and conflicting clinical 17 evidence, stating his interpretation thereof, and making findings.” Cotton v. Bowen, 799 F.2d 1403, 18 1408 (9th Cir. 1986). The Ninth Circuit explained: “To say that medical opinions are not supported by 19 sufficient objective findings or are contrary to the preponderant conclusions mandated by the objective 20 findings does not achieve the level of specificity our prior cases have required.” Embrey v. Bowen, 849 21 F.2d 418, 421-22 (9th Cir. 1988). 22 The ALJ cites to more than 280 pages of medical evidence—without identifying any specific 23 objective findings— in support of the conclusion that the record does not support the limitations 24 identified by Dr. Grasser. In doing so, the ALJ fails to identify specific conflicts in the record and fails 25 to resolve any conflict. Rather, the ALJ offers only her conclusion the record conflicts with the 26 physician’s opinion. See Embrey, 849 F.2d at 421; see also Wilson v. Colvin, 2016 U.S. Dist. LEXIS 27 28128 at *20 (N.D. Cal. Mar. 3, 2016) (finding the ALJ erred where she “did not identify the specific 28 conflicting clinical evidence she relied on, and referred only to the treatment records, imaging studies, 1 clinical findings and lab findings generally” and thus offered “no more than boilerplate language” to 2 reject an opinion as inconsistent with the record). 3 The ALJ fails to acknowledge Dr. Grasser’s report that Plaintiff exhibited a decreased range of 4 motion, and tenderness in her back, right knee, and right shoulder. (See Doc. 10-14 at 89) These 5 findings are supported by the treatment record, which includes objective findings such as decreased 6 range of motion in the shoulder, positive Gaenslen’s signs, positive Patrick’s signs, positive straight leg 7 raising, and trigger points. (See, e.g., Doc. 10-12 at 3; Doc. 10-13 at 5, 11) Though the ALJ “need not 8 discuss all evidence presented,” she “must explain why ‘significant probative evidence has been 9 rejected.’” Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984) (quoting Cotter v. Harris, 642 10 F.2d 700, 706 (3d Cir. 1981)) (emphasis in original). Because the ALJ engaged in selective reading of 11 the record, the ALJ erred in rejecting the limitations of Dr. Grasser. 12 C. Remand is Appropriate 13 The decision whether to remand a matter pursuant to sentence four of 42 U.S.C. § 405(g) or to 14 order immediate payment of benefits is within the discretion of the district court. Harman v. Apfel, 15 211 F.3d 1172, 1178 (9th Cir. 2000). Except in rare instances, when a court reverses an administrative 16 agency determination, the proper course is to remand to the agency for additional investigation or 17 explanation. Moisa v. Barnhart, 367 F.3d 882, 886 (9th Cir. 2004) (citing INS v. Ventura, 537 U.S. 18 12, 16 (2002)). Generally, an award of benefits is directed when: 19 (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 20 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. 21 22 Smolen v. Chater, 80 F.3d 1273, 1292 (9th Cir. 1996). In addition, an award of benefits is directed 23 where no useful purpose would be served by further administrative proceedings, or where the record is 24 fully developed. Varney v. Sec’y of Health & Human Serv., 859 F.2d 1396, 1399 (9th Cir. 1988). 25 Plaintiff met the burden to identify evidence in the record, which was not properly addressed or 26 rejected by the ALJ, that her mental impairment is severe at step two. In addition, the ALJ failed to 27 carry her burden to “set[] out a detailed and thorough summary of the facts and conflicting clinical 28 evidence” to reject the opinion of Dr. Grasser as inconsistent with the medical record. See Cotton, 799 1 F.2d at 1408. Therefore, the matter should be remanded for the ALJ to re-evaluate the medical evidence 2 and Plaintiff’s residual functional capacity. See Moisa , 367 F.3d at 886. 3 CONCLUSION AND ORDER 4 For the reasons set forth above, the Court finds the ALJ erred in evaluating the medical record, 5 and decision cannot be upheld by the Court. See Sanchez, 812 F.2d at 510. Thus, the Court ORDERS: 6 1. The matter is REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for further 7 proceedings consistent with this decision; and 8 2. The Clerk of Court IS DIRECTED to enter judgment in favor of Plaintiff Elisa Perez 9 and against Defendant, the Commissioner of Social Security. 10 11 IT IS SO ORDERED. 12 Dated: March 4, 2020 /s/ Jennifer L. Thurston 13 UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28