(SS) Pender v. Commissioner of Social Security ( 2022 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JERAMIAH RAY PENDER, No. 2:21-CV-0938-DMC 12 Plaintiff, 13 v. MEMORANDUM OPINION AND ORDER 14 COMMISSIONER OF SOCIAL SECURITY, 15 Defendant. 16 17 18 Plaintiff, who is proceeding with retained counsel, brings this action for judicial 19 review of a final decision of the Commissioner of Social Security under 42 U.S.C. § 405(g). 20 Pursuant to the written consent of all parties, ECF Nos. 7 and 8, this case is before the 21 undersigned as the presiding judge for all purposes, including entry of final judgment. See 28 22 U.S.C. § 636(c); see also ECF No. 12 (minute order referring matter to Magistrate Judge). 23 Pending before the Court are the parties’ briefs on the merits, ECF Nos. 14 and 15. 24 The Court reviews the Commissioner’s final decision to determine whether it is: 25 (1) based on proper legal standards; and (2) supported by substantial evidence in the record as a 26 whole. See Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). “Substantial evidence” is 27 more than a mere scintilla, but less than a preponderance. See Saelee v. Chater, 94 F.3d 520, 521 28 (9th Cir. 1996). It is “. . . such evidence as a reasonable mind might accept as adequate to support 1 a conclusion.” Richardson v. Perales, 402 U.S. 389, 402 (1971). The record as a whole, 2 including both the evidence that supports and detracts from the Commissioner’s conclusion, must 3 be considered and weighed. See Howard v. Heckler, 782 F.2d 1484, 1487 (9th Cir. 1986); Jones 4 v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). The Court may not affirm the Commissioner’s 5 decision simply by isolating a specific quantum of supporting evidence. See Hammock v. 6 Bowen, 879 F.2d 498, 501 (9th Cir. 1989). If substantial evidence supports the administrative 7 findings, or if there is conflicting evidence supporting a particular finding, the finding of the 8 Commissioner is conclusive. See Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987). 9 Therefore, where the evidence is susceptible to more than one rational interpretation, one of 10 which supports the Commissioner’s decision, the decision must be affirmed, see Thomas v. 11 Barnhart, 278 F.3d 947, 954 (9th Cir. 2002), and may be set aside only if an improper legal 12 standard was applied in weighing the evidence, see Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th 13 Cir. 1988). 14 For the reasons discussed below, the matter will be remanded for further 15 proceedings. 16 17 I. THE DISABILITY EVALUATION PROCESS 18 To achieve uniformity of decisions, the Commissioner employs a five-step 19 sequential evaluation process to determine whether a claimant is disabled. See 20 C.F.R. §§ 20 404.1520 (a)-(f) and 416.920(a)-(f). The sequential evaluation proceeds as follows: 21 Step 1 Determination whether the claimant is engaged in substantial gainful activity; if so, the claimant is presumed 22 not disabled and the claim is denied; 23 Step 2 If the claimant is not engaged in substantial gainful activity, determination whether the claimant has a severe 24 impairment; if not, the claimant is presumed not disabled and the claim is denied; 25 Step 3 If the claimant has one or more severe impairments, 26 determination whether any such severe impairment meets or medically equals an impairment listed in the regulations; 27 if the claimant has such an impairment, the claimant is presumed disabled and the claim is granted; 28 1 Step 4 If the claimant’s impairment is not listed in the regulations, determination whether the impairment prevents the 2 claimant from performing past work in light of the claimant’s residual functional capacity; if not, the claimant 3 is presumed not disabled and the claim is denied; 4 Step 5 If the impairment prevents the claimant from performing past work, determination whether, in light of the claimant’s 5 residual functional capacity, the claimant can engage in other types of substantial gainful work that exist in the 6 national economy; if so, the claimant is not disabled and the claim is denied. 7 See 20 C.F.R. §§ 404.1520 (a)-(f) and 416.920(a)-(f). 8 9 To qualify for benefits, the claimant must establish the inability to engage in 10 substantial gainful activity due to a medically determinable physical or mental impairment which 11 has lasted, or can be expected to last, a continuous period of not less than 12 months. See 42 12 U.S.C. § 1382c(a)(3)(A). The claimant must provide evidence of a physical or mental 13 impairment of such severity the claimant is unable to engage in previous work and cannot, 14 considering the claimant’s age, education, and work experience, engage in any other kind of 15 substantial gainful work which exists in the national economy. See Quang Van Han v. Bower, 16 882 F.2d 1453, 1456 (9th Cir. 1989). The claimant has the initial burden of proving the existence 17 of a disability. See Terry v. Sullivan, 903 F.2d 1273, 1275 (9th Cir. 1990). 18 The claimant establishes a prima facie case by showing that a physical or mental 19 impairment prevents the claimant from engaging in previous work. See Gallant v. Heckler, 753 20 F.2d 1450, 1452 (9th Cir. 1984); 20 C.F.R. §§ 404.1520(f) and 416.920(f). If the claimant 21 establishes a prima facie case, the burden then shifts to the Commissioner to show the claimant 22 can perform other work existing in the national economy. See Burkhart v. Bowen, 856 F.2d 23 1335, 1340 (9th Cir. 1988); Hoffman v. Heckler, 785 F.2d 1423, 1425 (9th Cir. 1986); Hammock 24 v. Bowen, 867 F.2d 1209, 1212-1213 (9th Cir. 1989). 25 / / / 26 / / / 27 / / / 28 / / / 1 II. THE COMMISSIONER’S FINDINGS 2 Plaintiff applied for social security benefits on February 8, 2019. See CAR 16.1 3 Plaintiff claims disability began on February 29, 2019. See id. Plaintiff’s claim was initially 4 denied. Following denial of reconsideration, Plaintiff requested an administrative hearing, which 5 was held on October 1, 2020, before Administrative Law Judge (ALJ) Lawrence Duran. In an 6 October 21, 2020, decision, the ALJ concluded plaintiff is not disabled based on the following 7 relevant findings: 8 1. The claimant has the following severe impairment(s): left calcaneus fracture, status post open reduction and internal fixation 9 surgery; major depressive disorder; post-traumatic stress disorder; and anxiety; 10 2. The claimant does not have an impairment or combination of 11 impairments that meets or medically equals an impairment listed in the regulations; 12 3. The claimant has the following residual functional capacity: the 13 claimant can perform medium work; the claimant is able to lift/carry 50 pounds occasionally and 25 pounds frequently; the 14 claimant can stand/walk for 4 hours in an 8-hour day; sit for 6 hours in an 8-hour day; the claimant can frequently climb, stoop, 15 kneel, crouch, and crawl, but is unable to operate foot controls with his left foot; he is unable to perform any fast-paced work or 16 intensely concentrate for greater than 30 minutes without a 5- minute change in focus; he is limited to occasional interaction with 17 coworkers and supervisors and is to have no interaction with the public; he may be absent or off task 5% of the time due to foot 18 pain and mental distractions; 19 4. Considering the claimant’s age, education, work experience, residual functional capacity, and vocational expert testimony, the 20 claimant is able to perform his past relevant work and there are jobs that exist in significant numbers in the national economy that 21 the claimant can perform. 22 See id. at 19-28. 23 After the Appeals Council declined review on April 19, 2021, this appeal followed. 24 / / / 25 / / / 26 / / / 27 1 Citations are to the Certified Administrative Record (CAR) lodged on December 28 13, 2021, ECF No. 11. 1 III. DISCUSSION 2 In his opening brief, Plaintiff argues: (1) the ALJ failed to provide specific, clear, 3 and convincing reasons for discounting Plaintiff’s allegations concerning mental limitations; (2) 4 the ALJ failed to explain his departure from the opinions of the agency mental health consultants; 5 (3) the ALJ failed to account for deficits in attention and memory in hypotheticals posed to the 6 vocational expert; (4) the ALJ failed to provide germane reasons for discounting third-party lay 7 witness evidence from Plaintiff’s friend Laura Chambard; (5) Plaintiff’s past work as a computer 8 peripheral equipment operate did not constitute substantial gainful activity; and (6) the ALJ failed 9 to resolve apparent inconsistencies between the vocational expert’s testimony and the definitions 10 in the Dictionary of Occupational Titles. 11 A. Medical Opinions 12 “The ALJ must consider all medical opinion evidence.” Tommasetti v. Astrue, 13 533 F.3d 1035, 1041 (9th Cir. 2008) (citing 20 C.F.R. § 404.1527(b)). The ALJ errs by not 14 explicitly rejecting a medical opinion. See Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 15 2014). The ALJ also errs by failing to set forth sufficient reasons for crediting one medical 16 opinion over another. See id. 17 Under the regulations, only “licensed physicians and certain qualified specialists” 18 are considered acceptable medical sources. 20 C.F.R. § 404.1513(a); see also Molina v. Astrue, 19 674 F.3d 1104, 1111 (9th Cir. 2012). Where the acceptable medical source opinion is based on 20 an examination, the “. . . physician’s opinion alone constitutes substantial evidence, because it 21 rests on his own independent examination of the claimant.” Tonapetyan v. Halter, 242 F.3d 1144, 22 1149 (9th Cir. 2001). The opinions of non-examining professionals may also constitute 23 substantial evidence when the opinions are consistent with independent clinical findings or other 24 evidence in the record. See Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). Social 25 workers are not considered an acceptable medical source. See Turner v. Comm’r of Soc. Sec. 26 Admin., 613 F.3d 1217, 1223-24 (9th Cir. 2010). Nurse practitioners and physician assistants 27 also are not acceptable medical sources. See Dale v. Colvin, 823 F.3d 941, 943 (9th Cir. 2016). 28 Opinions from “other sources” such as nurse practitioners, physician assistants, and social 1 workers may be discounted provided the ALJ provides reasons germane to each source for doing 2 so. See Popa v. Berryhill, 872 F.3d 901, 906 (9th Cir. 2017), but see Revels v. Berryhill, 874 3 F.3d 648, 655 (9th Cir. 2017) (quoting 20 C.F.R. § 404.1527(f)(1) and describing circumstance 4 when opinions from “other sources” may be considered acceptable medical opinions). 5 The Commissioner has promulgated revised regulations concerning how ALJs 6 must evaluate medical opinions for claims filed, as here, on or after March 27, 2017. See 20 7 C.F.R. §§ 404.1520c, 416.920c. These regulations supersede prior caselaw establishing the 8 treating physician rule which established a hierarchy of weight to be given medical opinions 9 depending on their source. See id.; see also Jones v. Saul, 2021 WL 620475, at *9 (E.D. Cal. 10 Feb. 17, 2021) (“In sum, because (1) the 2017 regulations are not arbitrary and capricious or 11 manifestly contrary to statute, (2) the prior judicial construction was not mandated by the 12 governing statutory language to the exclusion of a differing agency interpretation, and (3) the 13 [treating-physician rule] is inconsistent with the new regulation, the court concludes that the 2017 14 regulations effectively displace or override [prior caselaw.]”). Thus, ALJs are no longer required 15 to “defer to or give any specific evidentiary weight to” treating physicians over medical opinions 16 from other sources. See Carr v. Comm’r of Soc. Sec., 2021 WL 1721692, at *7 (E.D. Cal. Apr. 17 30, 2021). 18 Under the revised regulations, the ALJ must evaluate opinions and prior 19 administrative medical findings by considering their “persuasiveness.” See Buethe v. Comm’r of 20 Soc. Sec., 2021 WL 1966202, at *3 (E.D. Cal, May 17, 2021) (citing 20 C.F.R. § 404.1520c(a)). 21 In determining how persuasive the opinion of a medical source is, an ALJ must consider the 22 following factors: supportability, consistency, treatment relationship, specialization, and “other 23 factors.” See Buethe, 2021 WL 1966202, at *3 (citing § 404.1520c(b), (c)(1)-(5)). Despite a 24 requirement to consider all factors, the ALJ’s duty to articulate a rationale for each factor varies. 25 See Buethe, 2021 WL 1966202, at *3 (citing § 404.1520c(a)-(b)). 26 / / / 27 / / / 28 / / / 1 Specifically, in all cases the ALJ must at least “explain how [she] considered the 2 supportability and consistency factors,” as they are “the most important factors.” See Buethe, 3 2021 WL 1966202, at *4 (citing § 404.1520c(b)(2)). For supportability, the regulations state: 4 “[t]he more relevant the objective medical evidence and supporting explanations presented by a 5 medical source are to support his or her medical opinion(s) or prior administrative medical 6 finding(s), the more persuasive [the opinion] will be.” See Buethe, 2021 WL 1966202, at *4 7 (quoting § 404.1520c(c)(1)). “For consistency, the regulations state: ‘[t]he more consistent a 8 medical opinion(s) or prior administrative medical finding(s) is with the evidence from other 9 medical sources and nonmedical sources in the claim, the more persuasive [the opinion] will be.’” 10 Buethe, 2021 WL 1966202, at *4 (quoting § 404.1520c(c)(2)). “The ALJ is required to articulate 11 findings on the remaining factors (relationship with claimant, specialization, and ‘other’) only 12 when ‘two or more medical opinions or prior administrative medical findings about the same 13 issue’ are ‘not exactly the same,’ and both are ‘equally well-supported [and] consistent with the 14 record.’” Buethe, 2021 WL 1966202, at *4 (quoting § 404.1520c(b)(2) & (3)). 15 At Step 4, the ALJ considered the medical opinion evidence in formulating 16 Plaintiff’s residual functional capacity. See CAR 24-25. Specifically, the ALJ noted the opinions 17 of state agency consultants, Drs. Acinas and Linder, who provided opinions regarding physical 18 capacity, and Drs. Stephenson and Collado, who provided opinions regarding mental capacity. 19 See id. The ALJ stated: 20 The State Agency medical consultants issued opinions regarding the claimant’s ability to perform work-related activities. Drs. Acinas and 21 Linder opined that the claimant has the ability to perform light work tasks that involve frequent balancing, stooping, kneeling, crouching and 22 crawling and occasional climbing of ramps, stairs, ladders, ropes and scaffolds, but should sit for 2 minutes every 2 hours to alleviate left lower 23 extremity pain (Ex. 1A & 5A). As to his mental impairments, Drs. Stephenson and Collado noted that the claimant is capable of simple 1-2 24 step tasks for 8 hours per day/40 hours per week albeit with limited public interaction (Ex. 1A & 5A). 25 As for medical opinions and prior administrative medical findings, we will 26 not defer or give any specific evidentiary weight, including controlling weight, to any prior administrative medical findings or medical opinions, 27 including those from your medical sources. We fully considered the medical opinions and prior administrative medical findings in your case. 28 1 In determining the claimant's residual functional capacity, the opinions of Drs. Acinas and Linder (Ex. 1A & 5A) are found partially persuasive as to 2 the claimant’s physical limitations. However, the objective and examination findings of record and the claimant’s good recovery 3 from surgery supports less exertional limitation. By his own admission, the claimant reported that he walks 2-3 miles a day and that physical 4 conditions do not primarily restrict him. The opinions of Drs. Stephenson and Collado (Ex. 1A & 5A), as they pertain to the claimant’s psychiatric 5 impairments, are found persuasive, as they show consistency with the record and are supported by examination findings and by the claimant’s 6 activities of daily living. . . . 7 CAR 24-25. 8 Plaintiff argues the ALJ erred by accepting mental limitations opined by Drs. 9 Stephenson and Collado yet failing to include such limitations in Plaintiff’s residual functional 10 capacity. See ECF No. 14, pgs. 19-21. According to Plaintiff: 11 On May 7, 2019, a State agency psychologist, Mack Stephenson, Ph.D., opined that Plaintiff should be restricted to simple 1-2 step tasks 12 with limited public interaction (Tr. 81). On June 4, 2019, a State agency psychiatrist, J. Collado, M.D., concurred (Tr. 106). 13 The ALJ found that the State agency mental health consultants’ opinions were persuasive, supported, and consistent with the record 14 evidence (Tr. 25). Despite finding these medical source opinions persuasive, the ALJ did not include a restriction in Plaintiff’s residual 15 functional capacity (RFC) limiting him to simple 1 to 2 step tasks (Tr. 21). Rather, the ALJ found that Plaintiff could perform work that was not fast- 16 paced so long as he would not need to “intensely concentrate” for more than 30 minutes without a 5-minute change in focus (Tr. 20). Additionally, 17 the ALJ limited Plaintiff to occasional interaction with coworkers and supervisors, no interaction with the public, and provided that Plaintiff 18 would be absent or off task 5% of the time (Tr. 20). The ALJ formulated a residual functional capacity that materially 19 departed from the State agency psychologists’ opinions. The omission of a limitation to simple “1 to 2 step tasks” is not immaterial. In Rounds v. 20 Comm’r of Soc. Sec., the Ninth Circuit found that an individual restricted to 1 to 2 step tasks could not perform occupations requiring a Dictionary 21 of Occupational Titles (DOT) reasoning level of 2. See Rounds v. Comm’r of Soc. Sec., 807 F.3d 996, 1003 (9th Cir. 2015) (“There was an apparent 22 conflict between Rounds' RFC, which limits her to performing one- and two-step tasks, and the demands of Level Two reasoning, which requires a 23 person to “[a]pply commonsense understanding to carry out detailed but uninvolved written or oral instructions.””). 24 The ALJ’s failure to explain his rationale for departing from the opinions of the State agency psychologists constituted clear legal error. 25 See SSR 96-8p (“If the RFC assessment conflicts with an opinion from a medical source, the adjudicator must explain why the opinion was not 26 adopted.”); Burkett v. Saul, 806 Fed. Appx. 509, 511 (9th Cir. Mar. 6, 27 / / / 28 / / / 1 2020) (“An ALJ may reject the opinion of nonexamining physicians so long as the ALJ references specific evidence in the medical record’ that 2 supports doing so”) (internal citation omitted). 3 ECF No. 14, pgs. 19-20. 4 Here, the ALJ observed that “Drs. Stephenson and Collado noted that the claimant 5 is capable of simple 1-2 step tasks for 8 hours per day/40 hours per week. . . .” CAR 24. The 6 ALJ also stated: “The opinions of Drs. Stephenson and Collado (Ex. 1A & 5A), as they pertain 7 to the claimant’s psychiatric impairments, are found persuasive, as they show consistency with 8 the record and are supported by examination findings and by the claimant’s activities of daily 9 living. . . .” Id. at 25. In describing Plaintiff’s mental residual functional capacity, the ALJ found 10 that Plaintiff “. . .is unable to perform any fast-paced work or intensely concentrate for greater 11 than 30 minutes without a 5-minute change in focus; he is limited to occasional interaction with 12 coworkers and supervisors and is to have no interaction with the public; he may be absent or off 13 task 5% of the time due to foot pain and mental distractions.” Id. at 21. 14 The Court finds that the ALJ did not reject any opinions offered by Drs. 15 Stephenson and Collado. To the contrary, the ALJ’s mental residual functional capacity 16 assessment captures the mental limitations opined by these doctors, including a limiting to 1-2 17 step tasks. In particular, the ALJ determined that Plaintiff cannot perform fast-paced work or 18 work requiring intense concentration. The ALJ also acknowledged the doctors’ opinions by 19 indicating that Plaintiff would need to frequently change focus and that Plaintiff would be off task 20 due to mental distractions. Moreover, as Defendant notes, the vocational expert in this case 21 testified that someone with the mental residua capacity described by the ALJ could perform the 22 job of housekeeping cleaner, which requires only reasoning skill level 1, which is consistent with 23 simple 1-2 step tasks according to the Dictionary of Occupational Titles. 24 B. Plaintiff’s Statements and Testimony 25 The Commissioner determines the weight to be given to a claimant’s own 26 statements and testimony, and the Court defers to the Commissioner’s discretion if the 27 Commissioner used the proper process and provided proper reasons. See Saelee v. Chater, 94 28 F.3d 520, 522 (9th Cir. 1996). An explicit finding must be supported by specific, cogent reasons. 1 See Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). General findings are insufficient. 2 See Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995). Rather, the Commissioner must identify 3 what testimony is not afforded weight and what evidence undermines the testimony. See id. 4 Moreover, unless there is affirmative evidence in the record of malingering, the Commissioner’s 5 reasons for rejecting testimony as not credible must be “clear and convincing.” See id.; see also 6 Carmickle v. Commissioner, 533 F.3d 1155, 1160 (9th Cir. 2008) (citing Lingenfelter v Astrue, 7 504 F.3d 1028, 1936 (9th Cir. 2007), and Gregor v. Barnhart, 464 F.3d 968, 972 (9th Cir. 2006)). 8 If there is objective medical evidence of an underlying impairment, the 9 Commissioner may not discredit a claimant’s testimony as to the severity of symptoms merely 10 because they are unsupported by objective medical evidence. See Bunnell v. Sullivan, 947 F.2d 11 341, 347-48 (9th Cir. 1991) (en banc). As the Ninth Circuit explained in Smolen v. Chater: 12 The claimant need not produce objective medical evidence of the [symptom] itself, or the severity thereof. Nor must the claimant produce 13 objective medical evidence of the causal relationship between the medically determinable impairment and the symptom. By requiring that 14 the medical impairment “could reasonably be expected to produce” pain or another symptom, the Cotton test requires only that the causal relationship 15 be a reasonable inference, not a medically proven phenomenon. 16 80 F.3d 1273, 1282 (9th Cir. 1996) (referring to the test established in Cotton v. Bowen, 799 F.2d 1403 (9th Cir. 1986)). 17 18 The Commissioner may, however, consider the nature of the symptoms alleged, 19 including aggravating factors, medication, treatment, and functional restrictions. See Bunnell, 20 947 F.2d at 345-47. In weighing a claimant’s statements and testimony, the Commissioner may 21 also consider: (1) the claimant’s reputation for truthfulness, prior inconsistent statements, or other 22 inconsistent testimony; (2) unexplained or inadequately explained failure to seek treatment or to 23 follow a prescribed course of treatment; (3) the claimant’s daily activities; (4) work records; and 24 (5) physician and third-party testimony about the nature, severity, and effect of symptoms. See 25 Smolen, 80 F.3d at 1284 (citations omitted). It is also appropriate to consider whether the 26 claimant cooperated during physical examinations or provided conflicting statements concerning 27 drug and/or alcohol use. See Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002). If the 28 claimant testifies as to symptoms greater than would normally be produced by a given 1 impairment, the ALJ may disbelieve that testimony provided specific findings are made. See 2 Carmickle, 533 F.3d at 1161 (citing Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir. 1989)). 3 Regarding reliance on a claimant’s daily activities to discount testimony of 4 disabling pain, the Social Security Act does not require that disability claimants be utterly 5 incapacitated. See Fair v. Bowen, 885 F.2d 597, 602 (9th Cir. 1989). The Ninth Circuit has 6 repeatedly held that the “. . . mere fact that a plaintiff has carried out certain daily activities . . . 7 does not . . .[necessarily] detract from her credibility as to her overall disability.” See Orn v. 8 Astrue, 495 F.3d 625, 639 (9th Cir. 2007) (quoting Vertigan v. Heller, 260 F.3d 1044, 1050 (9th 9 Cir. 2001)); see also Howard v. Heckler, 782 F.2d 1484, 1488 (9th Cir. 1986) (observing that a 10 claim of pain-induced disability is not necessarily gainsaid by a capacity to engage in periodic 11 restricted travel); Gallant v. Heckler, 753 F.2d 1450, 1453 (9th Cir. 1984) (concluding that the 12 claimant was entitled to benefits based on constant leg and back pain despite the claimant’s 13 ability to cook meals and wash dishes); Fair, 885 F.2d at 603 (observing that “many home 14 activities are not easily transferable to what may be the more grueling environment of the 15 workplace, where it might be impossible to periodically rest or take medication”). Daily 16 activities must be such that they show that the claimant is “. . .able to spend a substantial part of 17 his day engaged in pursuits involving the performance of physical functions that are transferable 18 to a work setting.” Fair, 885 F.2d at 603. The ALJ must make specific findings in this regard 19 before relying on daily activities to discount a claimant’s pain testimony. See Burch v. Barnhart, 20 400 F.3d 676, 681 (9th Cir. 2005). 21 At Step 4, the ALJ considered Plaintiff’s statements and testimony in determining 22 Plaintiff’s residual functional capacity. See CAR 21-24. The ALJ summarized Plaintiff’s 23 statements as testimony as follows: 24 The claimant noted in an April 2019 Function Report (Ex. 4E) that he a calcaneal fracture keeps him from working on his feet, as he can only 25 stand for about 20 minutes at a time and always uses a cane. He also reported that due to PTSD, he has issues relating to people because of his 26 uncontrollable rage. He stated that he lives alone; takes care of his dog; has no problems seeing to his personal care; prepares his own meals every 27 day; makes himself exercise once a day by walking 1 mile, resting and walking 1 more mile with his dog; and then he reads and is on the internet. 28 He noted that he does not drive; shops in stores for groceries weekly; and 1 can count change. He reported that he does not spend time with others, but goes to therapy every 2 weeks. He stated that he does not finish what he 2 starts and can read and understand written instructions just fine, but cannot handle stress or changes in routine. 3 The claimant more recently testified that he is single with no children; has 4 been homeless since 2008 when he stopped working; can read, write and do simple math; and has been to jail a few times for misdemeanors. He 5 reported that he spends his time thinking and contemplating his life; checking out dumpsters for food or recycling (3 -4 hours); charges his 6 phone for 2 hours; and walks for an hour. He noted that he can fix meals; take care of his hygiene; do house chores such as mopping, sweeping, 7 vacuuming, dishes, laundry and yard work (15-20 minutes); shops twice a week; and cares for his dog. He stated that he has a phone and checks his 8 mail and whether his dad has called for 2 hours and has reconnected with his brothers and sisters by phone. He reported that he has a female friend 9 who helps him and he goes to her house daily for 1 hour. 10 The claimant testified that he cannot work because of mental instability that became problem years ago. He noted that he has been diagnosed with 11 PTSD and depression, but is working on it, sees a therapist, is on medication for mood stabilization, anxiety and depression and would like 12 to go back to work. He reported that his therapist who he sees every 2 months and his dad help, but there is always the possibility of violence. He 13 noted that he can lift 10-15 pounds; walk for 15 minutes at a time as surgical screws for his fracture make it too painful to walk; sit for 1 hour; 14 bend; crouch; and reach and that he has no problems using his hands and fingers. He stated that he has not tried to find work and does not volunteer 15 anywhere and is paranoid everyday as he has a fear of doing anything out of his comfort zone, as he feels unsafe as he could be hurt and gets 16 anxious and worked up. He reported that he crosses the street if he sees someone and only goes to Grocery Outlet, as Walmart is too much. 17 CAR 21-22. 18 19 The ALJ concluded that Plaintiff’s statements and testimony are “not entirely 20 consistent with the medical evidence and other evidence in the record. . . .” Id. at 22. The ALJ 21 stated: 22 The claimant’s statements about the intensity, persistence, and limiting effects of his symptoms are inconsistent. The undersigned notes that the 23 claimant seems to exaggerate his symptoms and limitations, which are not supported by the medical evidence of record to the extent that he claims. 24 Although the claimant experiences discomfort in his foot, he is able to walk and move about in a satisfactory manner. In addition, there are no 25 indications of major muscle weakness or loss of control in his legs due to nerve damage. The claimant reported and testified that he walks 2 miles a 26 day for exercise. 27 / / / 28 / / / 1 Similarly, the claimant may be affected by mental health issues at times, but the record shows that he is able to think, communicate and act in his 2 own interest, adjust to ordinary emotional stresses and get along with others superficially, as well as to do his usual activities and remember 3 and follow basic instructions. He leads an independent life; is able to care for himself and his dog; has a relationship with his father and siblings; and 4 has a female friend who he sees on a daily basis. 5 The claimant slipped and fell when he was fishing in Oregon in May 2017 and experienced a non-displaced comminuted left calcaneus fracture. In 6 June 2017, he underwent an open reduction and internal fixation procedure. Dr. Osborne reported that the claimant would be non-weight- 7 bearing for a total of 10 weeks and that physical therapy would be initiated in 2 weeks (Ex. 1F/4). 8 The claimant had his first follow-up after surgery in January 2018 and 9 noted that he was having trouble finding a job and wanted disability. In April 2018, the claimant reported left leg and low back pain, a gastric 10 ulcer and depression with anxiety. A thoracic x-ray showed no evidence of scoliosis or abnormality. He was prescribed Tylenol, Ibuprofen and 11 Prilosec, but declined medication for depression (Ex. 2F/33). In June 2018, Tylenol was continued for low back pain and Prilosec was also 12 recommended. The claimant denied a history of depression. He was oriented x 3 and mood/affect were appropriate (Ex. 2F/28). In July 2018, 13 the claimant reported neck pain and was offered physical therapy. (Ex. 2F/24). 14 The claimant reported acute left shoulder pain and left leg pain in April 15 2019. However, he had good range of shoulder motion and no local inflammatory signs. Left leg pain was noted to be residual from his 16 previous surgery. Tylenol was prescribed and physical therapy was offered (Ex. 2F/3). 17 The claimant reported that his primary issues are related to PTSD and 18 anxiety. Mental Status Examinations over the last few years identified hyperactive psychomotor behaviors (Ex. 2F/62), paranoia (Ex. 2F/14 & 19 3F/15, 18, 21), abnormal mood and/or affect (Ex. 2F/6, 9, 1, 15, 19 & 3F/7, 11, 15, 18, 21, 24, 32, 35, 39, 43, 45, 48, 57, 62, 65, 72, 75, 79, 81), 20 poor impulse control (Ex. 2F/6, 9, 12, 19 & 3F/7, 18, 21), poor judgment (Ex. 3F/7, 15), abnormal thought processes (Ex. 3F/15, 18, 21, 24, 35, 43, 21 46, 58, 73, 76, 82) and pressured speech (Ex. 3F/throughout). 22 Diagnoses usually included recurrent episodes of mild major depressive disorder; moderate/severe PTSD with dissociative symptoms and 23 derealization; and poorly controlled impulse control (Ex. 2F/6, 9, 12 & 3F/7, 11, 15, 18, 21, 24, 28, 32, 35, 39, 46, 49, 53, 58, 62, 66, 73, 76, 24 79, 82). The claimant had one PHQ-9 test, with a score of 26/27. He described a lack of stamina and motivation, feeling down or depressed 25 without energy, sleeping 12 hours a day and little interest or pleasure in doing things nearly every day. He was without suicidal ideation or plans, 26 but felt that it was not worth it to continue living (Ex. 2F/26). 27 / / / 28 / / / 1 The claimant noted in July 2018 that he was occasionally depressed, as he used to be able to walk 10 miles/day and now could only walk 3 miles/day 2 due to ongoing pain. He reported that he had not worked since 2006 when his mom passed away and had been traveling for 7 years, visiting many 3 states. Examination showed that memory was intact. Judgment was fair and insight was poor. Thought process and content were normal. He 4 denied suicidal/homicidal ideation. Mild major depressive disorder was diagnosed and Zoloft was started. Global Assessment of Functioning 5 (GAF) score was 60, which indicates mild-moderate symptoms. The claimant noted in September 2018 that Zoloft was helping, but he cannot 6 work because he does not get along well with others. Examination was normal except for anxious mood and constricted affect. Insight and 7 judgment were fair. GAF score was again 60. The claimant reported that he struggled with occasional regressive behavior throughout 2018 (Ex. 8 2F). 9 The claimant reported feeling calmer in January 2019. He was exercising and walking a lot. Sleep was good and mood was stable except he was 10 anxious. He was being treated for mild recurrent major depressive disorder and PTSD in March 2019. He noted that Depakote had helped his anger 11 issues, but he did not want to continue due to sedation, and wanted to manage his emotional difficulties with Zoloft. He noted no suicidal/ 12 homicidal ideation. He was oriented x4. There were some behavior regressions with poor impulse control, but speech was normal. 13 Mood was euthymic, but affect was constricted. Memory was intact. The claimant was cooperative. Insight and judgement were fair. Thought 14 content and process were normal (Ex. 2F/7). 15 The claimant has been living independently for years as a homeless individual. He currently lives in an isolated drainage pipe away from 16 people, as he feels safer there (Ex. 3F/14, 20, 23, 31). Pre-Covid, the claimant was having difficulty getting to his appointments in the clinic and 17 is very grateful now that telehealth appointments make[] it easier for him to get psychotherapy services (Ex. 3F/17). 18 The claimant’s treatment plan identified that he is easily distracted; has 19 poor short term memory recall; avoidant behaviors (Ex. 3F/76); anger issues (Ex. 2F/5, 11 & 3F/60, 78); and panic/phobic behaviors that are 20 consistent, with an unreasonable fear/anxiety of specific situation/objects that impact somewhat on daily functioning (Ex. 3F/8, 76). However, in 21 February 2020, the claimant noted significant improvement in depressive symptoms since starting sertraline and will continue as is. Impulsivity was 22 still an issue, but he reported major improvement in mood stability, anger, and rage since starting Abilify. He now feels that he is able to function in 23 society for the first time in many years, is considering going back to work and will continue as is. He was encouraged to continue therapy, 24 particularly EMDR/brain spotting for PTSD (Ex. 3F/54). 25 The most recent records from August 2020 show that the claimant reported that he is "doing good". Anxiety and depressive symptoms have 26 been minimal/manageable, mood overall is stable and he continues to meet with Ernesto weekly which the claimant stated helps quite a bit. The 27 claimant reported that he gets through the night with minimal interruptions and is generally well rested. He reported that he is happy with his current 28 psychiatric medication regimen and wishes to continue as is. Abilify was 1 continued for mood and mood stabilization, and sertraline as is for anxiety and depressive symptoms (Ex. 3F/12). The claimant was taking care of 2 himself and his dog; was keeping up with the news on the internet; was in contact with family; and had a female friend who he visits daily at her 3 home. 4 CAR 22-24. 5 Plaintiff argues that the ALJ erred in several ways. See ECF No. 14, pgs. 14-19. 6 First, Plaintiff contends the ALJ improperly rejected Plaintiff’s statements as to mental limitations 7 by referencing Plaintiff’s purportedly exaggerated physical symptoms. See id. at 14-15. Second, 8 Plaintiff argues the ALJ cited no evidence in support of the conclusion that Plaintiff’s daily 9 activities are inconsistent with his testimony. See id. at 15-16. Third, Plaintiff asserts that the 10 record does not support the ALJ’s statement that Plaintiff’s mental symptoms improved while 11 Plaintiff was taking his prescribed medication. See id. at 17-18. Finally, Plaintiff argues that the 12 ALJ’s reference to “conservative treatment” was not specific to treatment for Plaintiff’s physical 13 or mental impairments and that the record does not indicate conservative treatment for the latter. 14 See id. at 18-19. 15 1. Exaggerated Symptoms 16 According to Plaintiff: 17 . . . First, the ALJ found that Plaintiff seemed to exaggerate his symptoms and limitations (Tr. 22). To support this conclusion, the ALJ 18 cites no evidence of malingering or exaggeration noted by Plaintiff’s doctors or therapist (Tr. 22). In any event, the ALJ was referencing 19 symptoms related to Plaintiff’s physical impairment, and this was not a reason for discounting Plaintiff’s allegations of mental dysfunction (Tr. 20 22). 21 ECF No. 14, pgs. 14-15. 22 The Court finds Plaintiff’s argument well-taken. As Plaintiff notes, the ALJ cited 23 no evidence in support of the conclusion that Plaintiff exaggerated symptoms. 24 2. Daily Activities 25 Plaintiff contends: 26 Contrary to the ALJ’s finding that Plaintiff was able to act in his own interest and lead an independent life, the record showed that Plaintiff 27 was homeless and living in a drainage pipe, where he isolated from other people (Tr. 425, 428, 431, 442). During therapy appointments, Mr. 28 Cervantes regularly observed that Plaintiff appeared disheveled and had 1 poor hygiene (Tr. 443, 456, 459, 468, 476, 483, 486, 490, 492). Thus, while Plaintiff might have been “independent” in so far as he was 2 homeless, the record does not support the ALJ’s inference that Plaintiff was successful in caring for himself (Tr. 22-23). Moreover, while Plaintiff 3 had a dog, it was a service animal providing emotional support, which corroborated rather than detracted from Plaintiff’s allegations of mental 4 dysfunction (Tr. 431, 483). With regard to the ALJ’s suggestion that Plaintiff maintained good 5 relationships with his family, in fact, Plaintiff had not seen his father for 20 years prior to January 2019 (Tr. 368). Further, Plaintiff testified that he 6 spoke to his siblings on the phone but did not see them in person (Tr. 48), and he reported to his psychiatrist that his family was not ready or willing 7 to help him get back up on his feet (Tr. 368). Further, Plaintiff’s friend reported that Plaintiff was estranged from most of his family (Tr. 255). 8 Additionally, while Plaintiff had one friend, this relationship did not contradict his allegations of social dysfunction. The record documented 9 that Plaintiff was quick to anger and had altercations with police and another homeless person (Tr. 371, 374, 431). Plaintiff also reported and 10 exhibited paranoid thought content during therapy appointments (Tr. 374- 375, 426, 429, 431-432). Such evidence contradicted the ALJ’s general 11 assertion that Plaintiff got along superficially with others (Tr. 22-23). 12 * * * 13 [T]he ALJ asserted that Plaintiff’s “daily activities” contradicted his allegations of mental dysfunction (Tr. 25). The ALJ does not identify 14 what activities Plaintiff engaged in that were at odds with his reported symptoms (Tr. 25). Indeed, Plaintiff described his day as waking up at 15 3pm and searching though dumpsters for food and recyclables (Tr. 44). Otherwise, he charged his phone and checked the news (Tr. 55). Such 16 minimal activities in no way contradicted Plaintiff’s allegations of mental disability. See Garrison, 759 F.3d at 1016 (“We have repeatedly warned 17 that ALJs must be especially cautious in concluding that daily activities are inconsistent with testimony […] because impairments that would 18 unquestionably preclude work and all the pressures of a workplace environment will often be consistent with doing more than merely resting 19 in bed all day.”) (citing Bjornson v. Astrue, 671 F.3d 640, 647 (7th Cir.2012) (“The critical differences between activities of daily living and 20 activities in a full-time job are that a person has more flexibility in scheduling the former than the latter, can get help from other persons ..., 21 and is not held to a minimum standard of performance, as she would be by an employer. The failure to recognize these differences is a recurrent, and 22 deplorable, feature of opinions by administrative law judges in social security disability cases.”)). 23 ECF No. 14, pgs. 15-16. 24 The Court agrees with Plaintiff that the ALJ’s reliance on daily activities to reject 25 Plaintiff’s testimony is misplaced. Here, the ALJ noted that Plaintiff has been living 26 independently for years as a homeless individual and that Plaintiff currently lives in an isolated 27 drainage pipe away from people, as he feels safer there. The ALJ also observed that Plaintiff was 28 able to care for his dog, keep up with the news, and stay in contact with family. These very 1 general activities of daily life, however, do not indicate an ability to perform consistently in full- 2 time competitive work. Plaintiff’s own description of his daily activities shows quite limited 3 ability which the ALJ did not address. 4 3. Improvement on Medication 5 Plaintiff asserts: 6 Contrary to the ALJ’s assertion, the record does not show that Plaintiff experienced significant improvement, even with regular use of 7 medications. Although Plaintiff reported improvement to his anger with Depakote, this medication was ultimately discontinued in early 2019 8 due to side effects of sedation (Tr. 365, 368). Additionally, although Plaintiff had difficulty obtaining his medications in June 2019 due to 9 problems with his insurance coverage (Tr. 483, 486), and in March 2020, due to a disruption at the campsite where he was staying (Tr. 459), he 10 otherwise appears to have been compliant with prescribed medications during the adjudicated period. Despite taking his medications, he 11 nevertheless regularly exhibited a disheveled appearance, poor hygiene, anxious and depressed mood, distracted attention, abnormal thought 12 process, and inconsistent/erratic memory (Tr. 435, 443, 446, 454, 457, 476-477, 483-484, 486-487). The most recent treatment notes recorded 13 in July and August 2020 showed that Plaintiff exhibited pressured speech, anxious and depressed mood, erratic and inconsistent memory, distracted 14 attention, poor impulse control, abnormal thought process, and paranoid thought content (Tr. 418, 426, 429, 432). Additionally, he exhibited poor 15 concentration (Tr. 429), poor reasoning (Tr. 418, 429), and poor judgment (Tr. 418). Mr. Cervantes noted that, despite medications, Plaintiff 16 continued to have great difficulty around other people, ongoing paranoia, and ongoing difficulty with attention and memory (Tr. 428, 431). 17 Moreover, Plaintiff reported that, even with his medications, he still struggled with social anxiety, depression, and isolation (Tr. 486). 18 The foregoing treatment notes demonstrated that Plaintiff did not experience sustained or significant improvement to his mental condition. 19 Although Plaintiff acknowledged that he received some benefit from his medications, that did not equate with an admission that his mental 20 impairments were no longer disabling. See Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014) (“The fact that a person suffering from 21 depression makes some improvement “does not mean that the person's impairment [ ] no longer seriously affect[s] [his] ability to function in a 22 workplace.”) (internal citation omitted). As the Ninth Circuit has emphasized, “it is error to reject a claimant's testimony merely because 23 symptoms wax and wane […] Cycles of improvement and debilitating symptoms are a common occurrence, and in such circumstances it is error 24 for an ALJ to pick out a few isolated instances of improvement over a period of months or years and to treat them as a basis for concluding a 25 claimant is capable of working.” Garrison, 759 F.3d at 1017-18. Though Plaintiff reported improvement to his mental symptoms during some 26 treatment appointments, the therapy notes and mental status examinations clearly showed that he continued to experience significant mental 27 28 / / / 1 dysfunction. As such, it was error for the ALJ to point out a few instances where Plaintiff reported improvement and use those to discount his 2 allegations of mental disability (Tr. 24-25). 3 ECF No. 14, pgs. 17-18. 4 Plaintiff’s argument is persuasive. Here, the ALJ noted some improvement at 5 times, but also noted regression of symptoms at other times. As such, the ALJ acknowledges that 6 Plaintiff’s mental health symptoms wax and wane. As the Ninth Circuit has noted, this type of 7 history is common with mental health issues and not a proper basis to discount a claimant’s 8 testimony. See Garrison, 759 F.3d at 1017-18. 9 4. Conservative Treatment 10 According to Plaintiff: 11 Lastly, the ALJ discounted Plaintiff’s symptom allegations because he received “conservative treatment” (Tr. 25). It is unclear whether the 12 ALJ believed that Plaintiff’s mental treatment was conservative, or if this was simply a reference to his physical treatment. To the extent the ALJ 13 indicated that Plaintiff’s mental treatment was conservative, the record does not support such a finding. Plaintiff regularly received treatment 14 from a psychiatrist and therapist, and he was prescribed multiple psychotropic medications. Although Plaintiff was not psychiatrically 15 hospitalized, the Ninth Circuit has held that “[h]ospitalization is not required to show that mental health conditions such as PTSD, OCD, and 16 anxiety are disabling from employment.” Schiaffino v. Saul, 799 Fed. Appx. 473, 476 (9th Cir. Jan. 9, 2020). Plaintiff submits that psychiatric 17 treatment supplemented with psychotherapy was not “conservative” treatment undermining his allegations of mental dysfunction. Rather, such 18 treatment was entirely consistent with a finding of mental disability. See Revels v. Berryhill, 874 F.3d 648, 667 (9th Cir. 2017) (“Any evaluation of 19 the aggressiveness of a treatment regimen must take into account the condition being treated.”). 20 ECF No. 14, pgs. 18-19. 21 22 The Court agrees. Here, the ALJ passingly stated that Plaintiff’s statements are 23 belied by conservative treatment. See CAR 25. The ALJ does not, however, indicate whether the 24 physical treatment or mental treatment was conservative. Moreover, as to mental treatment, the 25 ALJ’s own description of the record shows a significant treatment including various medications 26 over time and therapy. 27 / / / 28 / / / 1 C. Lay Witness Evidence 2 In determining whether a claimant is disabled, an ALJ generally must consider lay 3 witness testimony concerning a claimant's ability to work. See Dodrill v. Shalala, 12 F.3d 915, 4 919 (9th Cir. 1993); 20 C.F.R. §§ 404.1513(d)(4) & (e), 416.913(d)(4) & (e). Indeed, “lay 5 testimony as to a claimant's symptoms or how an impairment affects ability to work is competent 6 evidence . . . and therefore cannot be disregarded without comment.” See Nguyen v. Chater, 100 7 F.3d 1462, 1467 (9th Cir. 1996). Consequently, “[i]f the ALJ wishes to discount the testimony of 8 lay witnesses, he must give reasons that are germane to each witness.” Dodrill, 12 F.3d at 919. 9 When rejecting third party statements which are similar in nature to the statements of plaintiff, the 10 ALJ may cite the same reasons used by the ALJ in rejecting the plaintiff’s statement. See 11 Valentine v. Commissioner Soc. Sec. Admin., 574 F.3d 685, 694 (9th Cir. 2009) (approving 12 rejection of a third-party family member’s testimony, which was similar to the claimant’s, for the 13 same reasons given for rejection of the claimant’s complaints). 14 On April 2, 2019, Plaintiff’s friend, Laura Chambard, submitted a third-party 15 statement. See CAR 250-57 (Exhibit 3E). The Court accepts Plaintiff’s description of this 16 statement as follows: 17 In a third-party function report, Plaintiff’s friend, Laura Chambard, claimed that Plaintiff’s PTSD, depression, and anger outbursts made it 18 difficult for him to work with others (Tr. 250). Further, Ms. Chambard reported that Plaintiff lived in a tent in the woods, he was estranged to 19 most of his family, he could only walk for 20 minutes before needing to rest for 2 hours, he could not sit long, he did not like talking to others, he 20 did not get along with most people, and he got irritated quickly (Tr. 252, 255). Additionally, she reported that Plaintiff was not very good at 21 following written instructions, he got frustrated when following oral instructions and would go into a “rage,” he did not get along with 22 authority figures well and attacked a police officer in September 2018, he did not handle changes in routine well, he handled stress very poorly, and 23 he got angry very quickly (Tr. 255-256). 24 ECF No. 14, pg. 22. 25 At Step 4, the ALJ mentioned Ms. Chambard’s statement only in passing: “The 26 Third-Party Statement of the claimant’s friend (Ex. 3E) has also been considered in adjudicating 27 this case.” CAR 25. The ALJ, however, does not state whether the statement is accepted, or 28 rejected, and if rejected, why. Given that the Court finds that a remand is appropriate to address 1 flaws in the ALJ’s analysis of Plaintiff’s statements and testimony, the Commissioner is 2 encouraged to give more than passing consideration of Ms. Chambard’s statements, which appear 3 consistent with Plaintiff’s own testimony. 4 D. Vocational Findings 5 The Medical-Vocational Guidelines (Grids) provide a uniform conclusion about 6 disability for various combinations of age, education, previous work experience, and residual 7 functional capacity. The Grids allow the Commissioner to streamline the administrative process 8 and encourage uniform treatment of claims based on the number of jobs in the national economy 9 for any given category of residual functioning capacity. See Heckler v. Campbell, 461 U.S. 458, 10 460-62 (1983) (discussing creation and purpose of the Grids). 11 The Commissioner may apply the Grids in lieu of taking the testimony of a 12 vocational expert only when the Grids accurately and completely describe the claimant’s abilities 13 and limitations. See Jones v. Heckler, 760 F.2d 993, 998 (9th Cir. 1985); see also Heckler v. 14 Campbell, 461 U.S. 458, 462 n.5 (1983). Thus, the Commissioner generally may not rely on the 15 Grids if a claimant suffers from non-exertional limitations because the Grids are based on 16 exertional strength factors only. See 20 C.F.R., Part 404, Subpart P, Appendix 2, § 200.00(b). “If 17 a claimant has an impairment that limits his or her ability to work without directly affecting his 18 or her strength, the claimant is said to have non-exertional . . . limitations that are not covered by 19 the Grids.” Penny v. Sulliacvan, 2 F.3d 953, 958 (9th Cir. 1993) (citing 20 C.F.R., Part 404, 20 Subpart P, Appendix 2, § 200.00(d), (e)). The Commissioner may, however, rely on the Grids 21 even when a claimant has combined exertional and non-exertional limitations, if non-exertional 22 limitations do not impact the claimant’s exertional capabilities. See Bates v. Sullivan, 894 F.2d 23 1059, 1063 (9th Cir. 1990); Polny v. Bowen, 864 F.2d 661, 663-64 (9th Cir. 1988). 24 In cases where the Grids are not fully applicable, the ALJ may meet his burden 25 under step five of the sequential analysis by propounding to a vocational expert hypothetical 26 questions based on medical assumptions, supported by substantial evidence, that reflect all the 27 plaintiff’s limitations. See Roberts v. Shalala, 66 F.3d 179, 184 (9th Cir. 1995). Specifically, 28 / / / 1 where the Medical-Vocational Guidelines are inapplicable because the plaintiff has sufficient 2 non-exertional limitations, the ALJ is required to obtain vocational expert testimony. See 3 Burkhart v. Bowen, 587 F.2d 1335, 1341 (9th Cir. 1988). 4 Hypothetical questions posed to a vocational expert must set out all the substantial, 5 supported limitations and restrictions of the particular claimant. See Magallanes v. Bowen, 881 6 F.2d 747, 756 (9th Cir. 1989). If a hypothetical does not reflect all the claimant’s limitations, the 7 expert’s testimony as to jobs in the national economy the claimant can perform has no evidentiary 8 value. See DeLorme v. Sullivan, 924 F.2d 841, 850 (9th Cir. 1991). While the ALJ may pose to 9 the expert a range of hypothetical questions based on alternate interpretations of the evidence, the 10 hypothetical that ultimately serves as the basis for the ALJ’s determination must be supported by 11 substantial evidence in the record as a whole. See Embrey v. Bowen, 849 F.2d 418, 422-23 (9th 12 Cir. 1988). 13 At Step 5, the ALJ concluded that Plaintiff could perform his past relevant work 14 as a computer peripheral equipment operator. See CAR 25-26. The ALJ stated: 15 Michael Frank, an impartial vocational expert, testified as to the vocational aspects of this case. Upon review of the claimant’s work 16 history in the file and after hearing the claimant’s testimony concerning his past work, Mr. Frank testified that the claimant has past relevant work 17 experience as a fence erector (DOT # 869.684-022) which is a heavy, skilled (SVP 5) job; an informal waiter (DOT # 311.477-030) which is a 18 light (occasionally performed as medium), semi-skilled (SVP 3) job; a computer peripheral operator (DOT #213.382-010) which is a light 19 (performed as sedentary), semi-skilled (SVP 4) job; and a bartender (DOT # 312.474-010) which is a light, (performed as heavy), semi-skilled (SVP 20 3) job. 21 The undersigned instructed the expert to assume a hypothetical person with the same age and education as the claimant. The undersigned told the 22 expert to assume that such a person retains the residual functional capacity to perform medium work except he is able to lift/carry 50 pounds 23 occasionally and 25 pounds frequently; stand/walk for 4 hours in an 8- hour day; sit for 6 hours in an 8-hour day; and frequently climb, stoop, 24 kneel, crouch, and crawl, but he is unable to operate foot controls with his left foot. He is unable to perform any fast-paced work or intensely 25 concentrate for greater than 30 minutes without a 5-minute change in focus. He is limited to occasional interaction with coworkers and 26 supervisors and is to have no interaction with the public. He may be absent or off task 5% of the time due to foot pain and mental distractions. 27 28 / / / 1 The undersigned then asked if such a person could perform the past relevant work of the claimant as he performed it or as it is performed in 2 the national economy. The expert testified that the person could perform the claimant’s past relevant work as a computer peripheral operator as he 3 performed it at the sedentary level. 4 In comparing the claimant’s residual functional capacity with the physical and mental demands of this work, the undersigned finds that the claimant 5 is able to perform the job of computer peripheral operator as it is actually performed. 6 CAR 25-26. 7 8 As an alternative finding, the ALJ also concluded that Plaintiff can perform other 9 jobs which exist in the national economy. The ALJ found: 10 Although the claimant is capable of performing past relevant work, there are other jobs existing in the national economy that he is also able to 11 perform. Therefore, the Administrative Law Judge makes the following alternative findings for step five of the sequential evaluation process. 12 The claimant was born on May 1, 1977 and was 41 years old, which is 13 defined as a younger individual age 18-49, on the amended alleged disability onset date (20 CFR 404.1563 and 416.963). The claimant has an 14 11th grade limited education (20 CFR 404.1564 and 416.964). Transferability of job skills is not material to the determination of 15 disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is "not disabled," whether or not the 16 claimant has transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2). 17 In the alternative, considering the claimant's age, education, work 18 experience, and residual functional capacity, there are other jobs that exist in significant numbers in the national economy that the claimant also can 19 perform (20 CFR 404.1569, 404.1569a, 416.969, and 416.969a). 20 In determining whether a successful adjustment to other work can be made, the undersigned must consider the claimant's residual functional 21 capacity, age, education, and work experience in conjunction with the Medical-Vocational Guidelines, 20 CFR Part 404, Subpart P, Appendix 2. 22 If the claimant can perform all or substantially all of the exertional demands at a given level of exertion, the medical-vocational rules direct a 23 conclusion of either "disabled" or "not disabled" depending upon the claimant's specific vocational profile (SSR 83-11). When the claimant 24 cannot perform substantially all of the exertional demands of work at a given level of exertion and/or has nonexertional limitations, the medical- 25 vocational rules are used as a framework for decision-making unless there is a rule that directs a conclusion of "disabled" without considering the 26 additional exertional and/or nonexertional limitations (SSRs 83-12 and 83- 14). If the claimant has solely nonexertional limitations, section 204.00 in 27 the Medical-Vocational Guidelines provides a framework for decision- making (SSR 85-15). 28 1 If the claimant had the residual functional capacity to perform the full range of light work, a finding of "not disabled" would be directed by 2 Medical-Vocational Rule 202.18. However, the claimant's ability to perform all or substantially all of the requirements of this level of work 3 has been impeded by additional limitations. To determine the extent to which these limitations erode the unskilled light occupational base, the 4 Administrative Law Judge asked the vocational expert whether jobs exist in the national economy for an individual with the claimant's age, 5 education, work experience, and the aforementioned residual functional capacity. 6 The vocational expert testified that given all of these factors the individual 7 would be able to perform the requirements of representative occupations such as housekeeping cleaner (DOT # 323.687-014), a light, unskilled 8 (SVP 2) job with an availability of 133,000 jobs in the US; marker (DOT # 209.587-034) a light, unskilled (SVP 2) job with an availability of 9 39,600 jobs in the US; and routing clerk (DOT # 222.687-022) a light, unskilled (SVP 2) job with an availability of 40,600 jobs in the US. 10 CAR 26-27, 11 12 Plaintiff raises two arguments challenging the ALJ’s vocational findings at Step 5. 13 First, Plaintiff contends that the ALJ erred in concluding that Plaintiff had performed his past 14 relevant work at the substantial gainful level. Second, Plaintiff argues the ALJ failed to resolve 15 conflicts between the vocational expert’s testimony and the Dictionary of Occupational Titles 16 (DOT). Because the ALJ made alternative findings at Step 5, concluding that Plaintiff can 17 perform his past relevant work as well as other jobs which exist in the national economy, any 18 error with respect to past relevant work is harmless. The Court therefor focuses the remainder of 19 the analysis on Plaintiff’s second argument regarding the DOT. 20 For Social Security benefits hearings, the DOT is the default presumption for 21 disability classifications. See Massachi v. Astrue (9th Cir. 2007) 486 F.3d 1149, 1150. 22 Moreover, the ALJ has an affirmative responsibility to ask about any possible conflict between 23 vocational expert evidence and information provided in the DOT. See id. The ALJ may, 24 however, rebut the presumption of applicability of the DOT when expert testimony exists that is 25 supported by persuasive evidence contradicting the DOT. See Murry v. Apfel, 1999 U.S. App. 26 LEXIS 28911, 1, 9 (9th Cir. 1999) (holding that the Administrative Law Judge is not bound by 27 the DOT descriptions but can instead rely on the testimony of the vocational expert and own 28 findings specific to the individual plaintiff before the Administrative Law Judge); see also Tackett 1 v. Apfel, 180 F.3d 1094, 1101 (9th Cir. 1999) (holding that the ALJ can rely on vocational 2 expert’s testimony as to (1) the jobs a claimant can work in given the limitations and residual 3 functional capacity and (2) the availability of these jobs on a national scale); Moncada v. Chater, 4 60 F.3d 521, 524 (9th Cir. 1995) (concluding that vocational experts have the authority to testify 5 whether a particular plaintiff would be able to perform specific jobs within DOT 6 subcategories); Distasio v. Shalala, 47 F.3d 348, 350 (9th Cir. 1995); Barker v. Secretary of 7 Health and Human Svcs., 882 F.2d 1474, 1478 n.1 (9th Cir. 1989) (holding that a plaintiff 8 restricted to sedentary work is not automatically barred from performing all "light" jobs when 9 plaintiff was still capable of performing a subcategory of “light” jobs); Terry v. Sullivan, 903 10 F.2d 1273, 1277 (9th Cir. 1990). 11 Regarding potential conflicts with the DOT, the ALJ stated: 12 The vocational expert testified that while his testimony was not inconsistent with the Dictionary of Occupational Titles (DOT), the 13 limitation in the residual functional capacity as to time off task is not directly addressed by the DOT. In regard to any item not directly 14 addressed by the DOT, the vocational expert testified that he relied upon his work experience of 40 years in job placement. The undersigned 15 accepted the vocational expert’s testimony in regard to all vocational issues. 16 CAR 26-27. 17 18 Here, the Court finds that the ALJ properly relied on the vocational expert’s 19 testimony to resolve any possible inconsistencies with the definitions contained in the DOT. 20 Specifically, the ALJ acknowledged possible inconsistencies and asked the vocational expert to 21 address the, which he did by providing testimony based on his knowledge and experience. 22 / / / 23 / / / 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / 1 IV. CONCLUSION 2 For the foregoing reasons, this matter will be remanded under sentence four of 42 3 || U.S.C. § 405(g) for further development of the record and/or further findings addressing the 4 || deficiencies noted above. 5 Accordingly, IT IS HEREBY ORDERED that: 6 1. Plaintiff's motion for summary judgment, ECF No. 14, is granted; 7 2. Defendant’s motion for summary judgment, ECF No. 15, is denied; 8 3. The Commissioner’s final decision is reversed and this matter is remanded 9 | for further proceedings consistent with this order; and 10 4. The Clerk of the Court is directed to enter judgment and close this file. 1] 12 | Dated: December 23, 2022 Ss..c0_, 13 DENNIS M. COTA 14 UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 25