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

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DERECK S. LEE, No. 2:19-cv-0603 DB 12 Plaintiff, 13 v. ORDER 14 ANDREW SAUL, Commissioner of Social Security,1 15 16 Defendant. 17 18 This social security action was submitted to the court without oral argument for ruling on 19 plaintiff’s motion for summary judgment and defendant’s cross-motion for summary judgment.2 20 Plaintiff’s motion argues that the Administrative Law Judge erred at step two of the sequential 21 evaluation, reached a residual functional capacity determination that was not supported by 22 substantial evidence, and improperly rejected plaintiff’s testimony. 23 //// 24 1 Andrew Saul became the Commissioner of the Social Security Administration on June 17, 2019. 25 See https://www.ssa.gov/agency/commissioner.html (last visited by the court on July 30, 2019). Accordingly, Andrew Saul is substituted in as the defendant in this action. See 42 U.S.C. § 26 405(g) (referring to the “Commissioner’s Answer”); 20 C.F.R. § 422.210(d) (“the person holding the Office of the Commissioner shall, in his official capacity, be the proper defendant”). 27 2 Both parties have previously consented to Magistrate Judge jurisdiction over this action 28 1 For the reasons explained below, plaintiff’s motion is granted in part, the decision of the 2 Commissioner of Social Security (“Commissioner”) is reversed, and this matter is remanded for 3 further proceedings. 4 PROCEDURAL BACKGROUND 5 In July of 2015, plaintiff filed an application for Disability Insurance Benefits (“DIB”) 6 under Title II of the Social Security Act (“the Act”), alleging disability beginning on June 5, 7 2014. (Transcript (“Tr.”) at 18, 204-14.) Plaintiff’s alleged impairments included disc 8 degeneration disease, facet joint arthritis, disc herniations, lumbar spondylolysis, facet arapathy, 9 synovial cysts, and Scheurermann’s Disease.3 (Id. at 244.) Plaintiff’s application was denied 10 initially, (id. at 106-10), and upon reconsideration. (Id. at 116-20.) 11 Plaintiff requested an administrative hearing and a hearing was held before an 12 Administrative Law Judge (“ALJ”) on August 7, 2017. (Id. at 36-70.) Plaintiff was represented 13 by an attorney and testified at the administrative hearing. (Id. at 36-39.) In a decision issued on 14 April 24, 2018, the ALJ found that plaintiff was not disabled. (Id. at 30.) The ALJ entered the 15 following findings: 16 1. The claimant meets the insured status requirements of the Social Security Act through December 31, 2019. 17 2. The claimant has not engaged in substantial gainful activity 18 since June 5, 2014, the alleged onset date (20 CFR 404.1571 et seq.). 19 3. The claimant has the following severe impairments: 20 degenerative disc disease of the cervical and lumbar spines and myofascial pain syndrome (20 CFR 404.1520(c)). 21 4. The claimant does not have an impairment or combination of 22 impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 23 (20 CFR 404.1520(d), 404.1525, and 404.1526). 24 //// 25 //// 26 27 3 Scheuermann’s disease “is a condition of hyperkyphosis that involves the vertebral bodies and discs of the spine identified by anterior wedging of greater than or equal to 5 degrees in 3 or more 28 1 5. After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform sedentary 2 work as defined in 20 CFR 404.1567(a) except sit for four hours; stand and walk for four hours; and must alternate positions for five 3 minutes after every one-half hour and can remain on task. 4 6. The claimant is unable to perform any past relevant work (20 CFR 404.1565). 5 7. The claimant was born [in] 1978 and was 36 years old, which is 6 defined as a younger individual age 18-44, on the alleged disability onset date (20 CFR 404.1563). 7 8. The claimant has at least a high school education and is able to 8 communicate in English (20 CFR 404.1564). 9 9. Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a 10 framework supports a finding that the claimant is “not disabled,” whether or not the claimant has transferable job skills (See SSR 82- 11 41 and 20 CFR Part 404, Subpart P, Appendix 2). 12 10. Considering the claimant’s age, education, work experience, and residual functional capacity, there are jobs that exist in significant 13 numbers in the national economy that the claimant can perform (20 CFR 404.1569 and 404.1569(a)). 14 11. The claimant has not been under a disability, as defined in the 15 Social Security Act, from June 5, 2014, through the date of this decision (20 CFR 404.1520(g)). 16 17 (Id. at 20-29.) 18 On March 10, 2019, the Appeals Council denied plaintiff’s request for review of the 19 ALJ’s April 24, 2018 decision. (Id. at 1-5.) Plaintiff sought judicial review pursuant to 42 U.S.C. 20 § 405(g) by filing the complaint in this action on April 8, 2019. (ECF. No. 1.) 21 LEGAL STANDARD 22 “The district court reviews the Commissioner’s final decision for substantial evidence, 23 and the Commissioner’s decision will be disturbed only if it is not supported by substantial 24 evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 1158-59 (9th Cir. 2012). 25 Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to 26 support a conclusion. Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001); Sandgathe v. 27 Chater, 108 F.3d 978, 980 (9th Cir. 1997). 28 //// 1 “[A] reviewing court must consider the entire record as a whole and may not affirm 2 simply by isolating a ‘specific quantum of supporting evidence.’” Robbins v. Soc. Sec. Admin., 3 466 F.3d 880, 882 (9th Cir. 2006) (quoting Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 4 1989)). If, however, “the record considered as a whole can reasonably support either affirming or 5 reversing the Commissioner’s decision, we must affirm.” McCartey v. Massanari, 298 F.3d 1072, 6 1075 (9th Cir. 2002). 7 A five-step evaluation process is used to determine whether a claimant is disabled. 20 8 C.F.R. § 404.1520; see also Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). The five-step 9 process has been summarized as follows: 10 Step one: Is the claimant engaging in substantial gainful activity? If so, the claimant is found not disabled. If not, proceed to step two. 11 Step two: Does the claimant have a “severe” impairment? If so, 12 proceed to step three. If not, then a finding of not disabled is appropriate. 13 Step three: Does the claimant’s impairment or combination of 14 impairments meet or equal an impairment listed in 20 C.F.R., Pt. 404, Subpt. P, App. 1? If so, the claimant is automatically determined 15 disabled. If not, proceed to step four. 16 Step four: Is the claimant capable of performing his past work? If so, the claimant is not disabled. If not, proceed to step five. 17 Step five: Does the claimant have the residual functional capacity to 18 perform any other work? If so, the claimant is not disabled. If not, the claimant is disabled. 19 20 Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995). 21 The claimant bears the burden of proof in the first four steps of the sequential evaluation 22 process. Bowen v. Yuckert, 482 U.S. 137, 146 n. 5 (1987). The Commissioner bears the burden 23 if the sequential evaluation process proceeds to step five. Id.; Tackett v. Apfel, 180 F.3d 1094, 24 1098 (9th Cir. 1999). 25 APPLICATION 26 Plaintiff’s pending motion asserts the following three principal claims: (1) the ALJ erred 27 at step two of the sequential evaluation; (2) the ALJ’s treatment of the plaintiff’s subjective 28 //// 1 testimony constituted error; and (3) the ALJ’s residual functional capacity determination was 2 unsupported.4 (Pl.’s MSJ (ECF No. 12-1) at 15-30.5) 3 I. Step Two Error 4 Plaintiff argues that the ALJ erred at step two of the sequential evaluation by finding that 5 plaintiff’s anxiety and depressive disorders were not severe mental impairments. (Id. at 15-21.) 6 At step two of the sequential evaluation, the ALJ must determine if the claimant has a medically 7 severe impairment or combination of impairments. Smolen v. Chater, 80 F.3d 1273, 1289-90 (9th 8 Cir. 1996) (citing Yuckert, 482 U.S. at 140-41). The Commissioner’s regulations provide that 9 “[a]n impairment or combination of impairments is not severe if it does not significantly limit [the 10 claimant’s] physical or mental ability to do basic work activities.” 20 C.F.R. §§ 404.1521(a) & 11 416.921(a). Basic work activities are “the abilities and aptitudes necessary to do most jobs,” and 12 those abilities and aptitudes include: (1) physical functions such as walking, standing, sitting, 13 lifting, and carrying; (2) capacities for seeing, hearing, and speaking; (3) understanding, carrying 14 out, and remembering simple instructions; (4) use of judgment; (5) responding appropriately to 15 supervision, co-workers, and usual work situations; and (6) dealing with changes in a routine 16 work setting. 20 C.F.R. §§ 404.1521(b) & 416.921(b). 17 The Supreme Court has recognized that the Commissioner’s “severity regulation increases 18 the efficiency and reliability of the evaluation process by identifying at an early stage those 19 claimants whose medical impairments are so slight that it is unlikely they would be found to be 20 disabled even if their age, education, and experience were taken into account.” Yuckert, 482 U.S. 21 at 153. However, the regulation must not be used to prematurely disqualify a claimant. Id. at 158 22 (O’Connor, J., concurring). “An impairment or combination of impairments can be found not 23 severe only if the evidence establishes a slight abnormality that has no more than a minimal effect 24 on an individual[’]s ability to work.” Smolen, 80 F.3d at 1290 (internal quotation marks and 25 citation omitted). 26 4 The court has reordered plaintiff’s claims for purposes of clarity and efficiency. 27 5 Page number citations such as this one are to the page number reflected on the court’s CM/ECF 28 1 “[A]n ALJ may find that a claimant lacks a medically severe impairment or combination 2 of impairments only when his conclusion is ‘clearly established by medical evidence.’” Webb v. 3 Barnhart, 433 F.3d 683, 687 (9th Cir. 2005) (quoting Social Security Ruling (“SSR”) 85-28); see 4 also Ukolov v. Barnhart, 420 F.3d 1002, 1006 (9th Cir. 2005) (claimant failed to satisfy step two 5 burden where “none of the medical opinions included a finding of impairment, a diagnosis, or 6 objective test results”). “Step two, then, is ‘a de minimis screening device [used] to dispose of 7 groundless claims[.]’” Webb, 433 F.3d at 687 (quoting Smolen, 80 F.3d at 1290); see also 8 Edlund v. Massanari, 253 F.3d 1152, 1158-59 (9th Cir. 2001) (discussing this “de minimis 9 standard”); Tomasek v. Astrue, No. C-06-07805 JCS, 2008 WL 361129, at *13 (N.D. Cal. 10 Feb.11, 2008) (describing claimant’s burden at step two as “low”). 11 Moreover, where the ALJ determines the presence of a mental impairment at step two of 12 the sequential evaluation 20 C.F.R. § 404.1520a “requires those reviewing an application for 13 disability to follow a special psychiatric review technique.” Keyser v. Commissioner Social Sec. 14 Admin., 648 F.3d 721, 725 (9th Cir. 2011). 15 Under the special-technique regulation, if the ALJ determines that a mental impairment exists, he “must specify the symptoms, signs, and 16 laboratory findings that substantiate the presence of the impairment(s) and document [his] findings.” [20 C.F.R.] § 17 404.1520a(b)(1). The ALJ must also document “a specific finding as to the degree of limitation in each of” the four areas of functional 18 limitation listed in § 404.1520a(c)(3). Id. § 404.1520a(e)(4). In the first three areas of functional limitations—(a) activities of daily 19 living, (b) social functioning, and (c) concentration, persistence, or pace—the ALJ must rate the degree of limitation using “the 20 following five-point scale: None, mild, moderate, marked, and extreme.” Id. § 404.1520a(c)(4). The ALJ must rate the fourth 21 functional area—(d) episodes of decompensation—using “the following four-point scale: None, one or two, three, four or more.” 22 Id. Next, the ALJ must determine if the mental impairment is severe, and if so, whether it qualifies as a listed impairment. Id. § 23 404.1520a(d). If the mental impairment is severe but is not a listed impairment, the ALJ must assess the claimant’s RFC in light of how 24 the impairment constrains the claimant’s work abilities. See id. § 404.1520a(d)(3). The regulation specifically provides that the ALJ 25 must document all of the special technique’s steps. Id. § 404.1520a(e)(4). 26 27 Patterson v. Commissioner of Social Security Administration, 846 F.3d 656, 659 (4th Cir. 2017). 28 //// 1 Here, the ALJ found that plaintiff’s “anxiety and depressive disorders do not cause more 2 than minimal limitation in the claimant’s ability to perform basic mental work activities and is 3 therefore nonsevere.” (Tr. at 21.) The ALJ went on to apply the special psychiatric review 4 technique, finding that plaintiff’s “medical determinable mental impairment causes no more than 5 ‘mild’ limitation in any of the functional areas[.]” (Id. at 22.) The ALJ’s findings, however, are 6 belied by the evidence of record. 7 In this regard, in November of 2013, plaintiff was seen by Dr. Daniel Rockers, Ph.D., who 8 conducted a psychological evaluation. (Id. at 337.) Dr. Rockers found “symptoms of anxiety 9 sufficient for a diagnosis of panic attacks, and symptoms of depression sufficient for a diagnosis 10 of major depressive disorder.” (Id. at 339.) Dr. Rockers also found that plaintiff’s current Global 11 Assessment of Functioning (“GAF”) score was 55.6 (Id.) 12 On June 27, 2014, plaintiff was seen for a qualified medical evaluation by Dr. Kayvan 13 Haddadan. (Id. at 325.) Dr. Haddadan opined that plaintiff was “totally temporarily disabled 14 because of the pain and the possibility of marked-to-moderate depression.” (Id. at 330.) On 15 November 18, 2014, plaintiff was seen for an office visit and was given a refill of “Xanax for 16 breatkthrough anxiety” with instructions to return to discuss medication to “help control anxiety 17 and depression.” (Id. at 414.) 18 On October 16, 2015, plaintiff was examined by Les P. Kalman, M.D., Psy.D. (Id. at 19 904.) Dr. Kalman opined, in relevant part, that plaintiff’s had “dysphoric mood related to medical 20 conditions” and experienced “decreased ability to maintain attention, concentration and 21 memory[.]” (Id. at 906.) On March 28, 2016, plaintiff’s treating physician examined plaintiff 22 and found “depressed mood, anxious.” (Id. at 1149.) 23 6 A Global Assessment of Functioning or “GAF” score represents a present rating of overall 24 psychological functioning on a scale of 0 to 100. See Diagnostic and Statistical Manual of 25 Disorders, at 34 (Am. Psychiatric Ass’n, 4th Ed. 2000) (“DSM-IV”); see also Keyser v. Commissioner Social Sec. Admin., 648 F.3d 721, 723 (9th Cir. 2011) (“A GAF score is a rough 26 estimate of an individual’s psychological, social, and occupational functioning used to reflect the individual’s need for treatment.”). “A GAF score between 51 to 60 describes ‘moderate 27 symptoms’ or any moderate difficulty in social, occupational, or school functioning.” Garrison v. Colvin, 759 F.3d 995, 1003 n.4 (9th Cir. 2014). However, “GAF scores are typically assessed in 28 1 In addition to the opinions of Drs. Rockers, Haddadan, and Kalman, “at the request of” the 2 Commissioner Drs. “Jennifer Duffy Ph.D. and Ida Hilliard M.D. reviewed the evidence in record” 3 with respect to plaintiff’s mental impairment and found that plaintiff was “unable to consistently 4 maintain concentration, persistence or pace for complex tasks.” (Id. at 22.) And plaintiff’s 5 treating therapist submitted a letter on June 18, 2018, stating that “over the course of the last ten 6 years of our therapeutic relationship,” plaintiff had exhibited numerous symptoms, including 7 “anxiety, depression[.]”7 (Id. at 9.) 8 As noted above, the ALJ’s conclusion that the claimant lacks a medically severe 9 impairment or combination of impairments is valid only when that conclusion is “clearly 10 established by medical evidence.” Webb, 433 F.3d at 687. On this record, the court cannot say 11 that it was clearly established by the medical evidence that plaintiff lacked a medically severe 12 mental impairment. See Ortiz v. Commissioner of Social Sec., 425 Fed. Appx. 653, 655 (9th Cir. 13 2011) (“This is not the total absence of objective evidence of severe medical impairment that 14 would permit us to affirm a finding of no disability at step two.”); Webb, 433 F.3d at 687 15 (“Although the medical record paints an incomplete picture of Webb’s overall health during the 16 relevant period, it includes evidence of problems sufficient to pass the de minimis threshold of 17 step two.”); Russell v. Colvin, 9 F.Supp.3d 1168, 1186-87 (D. Or. 2014) (“On review, the court 18 must determine whether the ALJ had substantial evidence to find that the medical evidence 19 clearly established that Ms. Russell did not have a medically severe impairment or combination of 20 impairments.”); cf. Ukolov, 420 F.3d at 1006 (“Because none of the medical opinions included a 21 finding of impairment, a diagnosis, or objective test results, Ukolov failed to meet his burden of 22 establishing disability.”). 23 //// 24 25 7 Although this information was not before the ALJ, it was submitted to the Appeals Council which considered the evidence in denying review of the ALJ’s decision. (Tr. at 2.) “[W]hen a 26 claimant submits evidence for the first time to the Appeals Council, which considers that evidence in denying review of the ALJ’s decision, the new evidence is part of the administrative 27 record, which the district court must consider in determining whether the Commissioner’s decision is supported by substantial evidence.” Brewes v. Commissioner of Social Sec. Admin., 28 1 For the reasons stated above, the court cannot find that the ALJ’s step two finding was 2 clearly established by medical evidence or was free from error. Accordingly, the court finds that 3 plaintiff is entitled to summary judgment as to the claim that the ALJ erred at step two of the 4 sequential evaluation. 5 II. Plaintiff’s Subjective Testimony 6 The Ninth Circuit has summarized the ALJ’s task with respect to assessing a claimant’s 7 credibility as follows: 8 To determine whether a claimant’s testimony regarding subjective pain or symptoms is credible, an ALJ must engage in a two-step 9 analysis. First, the ALJ must determine whether the claimant has presented objective medical evidence of an underlying impairment 10 which could reasonably be expected to produce the pain or other symptoms alleged. The claimant, however, need not show that her 11 impairment could reasonably be expected to cause the severity of the symptom she has alleged; she need only show that it could 12 reasonably have caused some degree of the symptom. Thus, the ALJ may not reject subjective symptom testimony . . . simply because 13 there is no showing that the impairment can reasonably produce the degree of symptom alleged. 14 Second, if the claimant meets this first test, and there is no evidence 15 of malingering, the ALJ can reject the claimant’s testimony about the severity of her symptoms only by offering specific, clear and 16 convincing reasons for doing so[.] 17 Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007) (citations and quotation marks 18 omitted). “The clear and convincing standard is the most demanding required in Social Security 19 cases.” Moore v. Commissioner of Social Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002). “At 20 the same time, the ALJ is not required to believe every allegation of disabling pain, or else 21 disability benefits would be available for the asking[.]” Molina v. Astrue, 674 F.3d 1104, 1112 22 (9th Cir. 2012). 23 “The ALJ must specifically identify what testimony is credible and what testimony 24 undermines the claimant’s complaints.”8 Valentine v. Commissioner Social Sec. Admin., 574 25 8 In March 2016, Social Security Ruling (“SSR”) 16-3p went into effect. “This ruling makes 26 clear what our precedent already required: that assessments of an individual’s testimony by an ALJ are designed to ‘evaluate the intensity and persistence of symptoms after the ALJ finds that 27 the individual has a medically determinable impairment(s) that could reasonably be expected to produce those symptoms,’ and not to delve into wide-ranging scrutiny of the claimant’s character 28 1 F.3d 685, 693 (9th Cir. 2009) (quoting Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 2 599 (9th Cir. 1999)). In weighing a claimant’s credibility, an ALJ may consider, among other 3 things, the “[claimant’s] reputation for truthfulness, inconsistencies either in [claimant’s] 4 testimony or between [her] testimony and [her] conduct, [claimant’s] daily activities, [her] work 5 record, and testimony from physicians and third parties concerning the nature, severity, and effect 6 of the symptoms of which [claimant] complains.” Thomas v. Barnhart, 278 F.3d 947, 958-59 7 (9th Cir. 2002) (modification in original) (quoting Light v. Soc. Sec. Admin., 119 F.3d 789, 792 8 (9th Cir. 1997)). If the ALJ’s credibility finding is supported by substantial evidence in the 9 record, the court “may not engage in second-guessing.” Id. 10 Here, the ALJ recounted plaintiff’s testimony as follows: 11 The claimant is a forty-year-old male with a high school education. He alleges he suffers from “degenerative disc disease”, “facet joint 12 arthritis”, “disc herniations”, “left protractal L5/S1 HMP”, “lumbar spondylolysis L4/L5 thru L5/SI”, “facet arthropathy”, “synovial 13 cysts L4 L5 S1”, and “Scheurermann’s Disease” which significantly affect his ability to perform work related activities. 14 The claimant completed an Exertion Questionnaire form dated 15 August 13, 2015, wherein he reported spending an average day performing very light household chores which causes a mild increase 16 in pain. He is able to walk a half hour or half mile. He is limited in his ability to climb stairs, lift (up to fifteen pounds), and sleep. 17 However, he is able to load the dishwasher, wash laundry, dust, wipe off counter tops, and drive up to two hours. In addition, he is able to 18 work in the yard several times a month. 19 The claimant appeared and testified at the hearing, he was working part time for a good friend who worked around his physical 20 complaints and limitations. The claimant reported he was limited in his ability to sit for more than an hour, including while driving, and 21 could walk one to two hours. He has weekly flare-ups which vary in intensity and duration from one day to one week. He is no longer 22 able to go on vacations or spend time with family or friends as he fears he will fall or further injure himself. He recently had a 23 medication adjustment and is taking the highest dose of medication. He uses medications, ice, and heat to manage his symptoms. He no 24 longer has radiating pain into his lower extremities. However, he is limited in his ability to bend and stoop. 25 26 (Tr. at 24-25.) 27 //// 28 1 Thereafter, the ALJ found that plaintiff’s medically determinable impairments could 2 reasonably be expected to cause the symptoms alleged, but that plaintiff’s statements concerning 3 the intensity, persistence, and limiting effects of those symptoms were “not entirely consistent 4 with the medical evidence and other evidence in the record for the reason explained in [the] 5 decision.”9 (Id. at 25.) 6 One of the reasons offered by the ALJ for discrediting plaintiff’s testimony was that when 7 “offered a higher level of care at times, [plaintiff] declined these recommendations.” (Id.) 8 “[C]ase law is clear that if a claimant complains about disabling pain but fails to seek treatment, 9 or fails to follow prescribed treatment, for the pain, an ALJ may use such failure as a basis for 10 finding the complaint unjustified or exaggerated.” Orn v. Astrue, 495 F.3d 625, 638 (9th Cir. 11 2007); see also Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989) (ALJ may consider “an 12 unexplained, or inadequately explained, failure to seek treatment or follow a prescribed course of 13 treatment”). 14 Moreover, this finding is supported by substantial evidence in the record. In this regard, a 15 March 2, 2015 office visit reflects that plaintiff discontinued “gabapentin because [he] does not 16 feel any more nerve pain.” (Tr. at 400.) On August 20, 2015, plaintiff was “[o]ffered [a] pain 17 program,” but “declined.” (Id. at 928.) A June 15, 2016 treatment note reflects that plaintiff 18 “refuses to exercise[] or do physical therapy.”10 (Id. at 1181.) 19 The ALJ provided a clear and convincing reason for rejecting plaintiff’s testimony that 20 was supported by substantial evidence in the record. Plaintiff, therefore, is not entitled to 21 9 “ALJs routinely include this statement in their written findings as an introduction to the ALJ’s 22 credibility determination” before “identify[ing] what parts of the claimant’s testimony were not credible and why.” Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1103 (9th Cir. 23 2014). “The use of this generic language is not itself reversible error . . . but it inverts the responsibility of an ALJ, which is first to determine the medical impairments of a claimant based 24 on the record and the claimant’s credible symptom testimony and only then to determine the 25 claimant’s RFC. By rejecting a claimant’s subjective symptoms ‘to the extent they are inconsistent with the above residual functional capacity assessment,’ the agency indicates that it 26 is failing properly to incorporate a claimant’s testimony regarding subjective symptoms and pain into the RFC finding, as it is required to do.” Trevizo, 871 F.3d at 679 n.6. 27 10 The same note appears to reflect that plaintiff’s treating physician explained to plaintiff that 28 1 summary judgment on the claim that the ALJ’s treatment of plaintiff’s subjective testimony 2 constituted error. 3 III. RFC Error 4 Plaintiff argues that the ALJ’s Residual Functional Capacity (“RFC”) finding was not 5 supported by substantial evidence in the record. (Pl.’s MSJ (ECF No. 12-1) at 22-24.) A 6 claimant’s RFC is “the most [the claimant] can still do despite [his or her] limitations.” 20 C.F.R. 7 § 404.1545(a); 20 C.F.R. § 416.945(1); see also Cooper v. Sullivan, 880 F.2d 1152, n.5 (9th Cir. 8 1989) (“A claimant’s residual functional capacity is what he can still do despite his physical, 9 mental, nonexertional, and other limitations.”). In conducting an RFC assessment, the ALJ must 10 consider the combined effects of an applicant’s medically determinable impairments on the 11 applicant’s ability to perform sustainable work. 42 U.S.C. § 423(d)(2)(B); Macri v. Chater, 93 12 F.3d 540, 545 (9th Cir. 1996). The ALJ must consider all of the relevant medical opinions as 13 well as the combined effects of all of the plaintiff’s impairments, even those that are not “severe.” 14 20 C.F.R. §§ 404.1545(a); 416.945(a); Celaya v. Halter, 332 F.3d 1177, 1182 (9th Cir. 2003). 15 “[A]n RFC that fails to take into account a claimant’s limitations is defective.” Valentine v. 16 Commissioner Social Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009). The ALJ must determine a 17 claimant’s limitations on the basis of “all relevant evidence in the record.” Robbins v. Soc. Sec. 18 Admin., 466 F.3d 880, 883 (9th Cir. 2006). 19 Here, defendant argues that this claim of error is “duplicative” of plaintiff’s other claims 20 because, in part, “the ALJ’s findings regarding Plaintiff’s mental abilities were well supported.” 21 (Def.’s MSJ (ECF No. 13) at 20.) The court, however, has found that the ALJ’s finding that 22 plaintiff lacked a severe mental impairment was erroneous. Moreover, defendant fails to cite to 23 an example of the ALJ’s consideration of plaintiff’s mental impairment in determining the RFC— 24 nor could the court find such an example. 25 Accordingly, plaintiff’s is also entitled to summary judgment on the claim that the ALJ’s 26 RFC determination was erroneous. 27 //// 28 //// 1 CONCLUSION 2 With error established, the court has the discretion to remand or reverse and award 3 benefits. McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989). A case may be remanded 4 under the “credit-as-true” rule for an award of benefits where: 5 (1) the record has been fully developed and further administrative proceedings would serve no useful purpose; (2) the ALJ has failed to 6 provide legally sufficient reasons for rejecting evidence, whether claimant testimony or medical opinion; and (3) if the improperly 7 discredited evidence were credited as true, the ALJ would be required to find the claimant disabled on remand. 8 9 Garrison, 759 F.3d at 1020. Even where all the conditions for the “credit-as-true” rule are met, 10 the court retains “flexibility to remand for further proceedings when the record as a whole creates 11 serious doubt as to whether the claimant is, in fact, disabled within the meaning of the Social 12 Security Act.” Id. at 1021; see also Dominguez v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015) 13 (“Unless the district court concludes that further administrative proceedings would serve no 14 useful purpose, it may not remand with a direction to provide benefits.”); Treichler, 775 F.3d at 15 1105 (“Where . . . an ALJ makes a legal error, but the record is uncertain and ambiguous, the 16 proper approach is to remand the case to the agency.”). 17 Here, upon review of the record and the nature of the ALJ’s errors, the court cannot find 18 that further proceedings would serve no useful purpose. Thus, this matter must be remanded for 19 further proceedings. 20 Accordingly, IT IS HEREBY ORDERED that: 21 1. Plaintiff’s motion for summary judgment (ECF No. 12) is granted in part and denied in 22 part; 23 2. Defendant’s cross-motion for summary judgment (ECF No. 13) is granted in part and 24 denied in part; 25 3. The Commissioner’s decision is reversed; 26 //// 27 //// 28 //// wOAOe 2 fPIC AIC eI EN PAY AT UT Ott 1 4. This matter is remanded for further proceedings consistent with this order; and 2 5. The Clerk of the Court shall enter judgment for plaintiff and close this case. Dated: September 28, 2020 6 ORAH BARNES UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 DLB:6 DB\orders\orders.soc sec\lee0603.ord 24 25 26 27 28 14