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

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 FELIX GOMEZ, Case No. 1:20-cv-01595-SAB 12 Plaintiff, ORDER GRANTING PLAINTIFF’S SOCIAL SECURITY APPEAL AND REMANDING 13 v. ACTION TO COMMISSIONER FOR FURTHER PROCEEDINGS 14 COMMISSIONER OF SOCIAL SECURITY, (ECF Nos. 17, 18, 22) 15 Defendant. 16 17 18 19 I. 20 INTRODUCTION 21 Plaintiff Felix Gomez (“Plaintiff”) seeks judicial review of a final decision of the 22 Commissioner of Social Security (“Commissioner” or “Defendant”) denying his application for 23 Social Security Income (SSI) benefits pursuant to Title XVI of the Social Security Act. The 24 matter is currently before the Court on the parties’ briefs, which were submitted without oral 25 argument, to Magistrate Judge Stanley A. Boone.1 For the reasons set forth below, Plaintiff’s 26 appeal shall be granted, and the action shall be remanded to the Commissioner for further 27 1 The parties have consented to the jurisdiction of the United States Magistrate Judge and this action has been 28 assigned to Magistrate Judge Stanley A. Boone for all purposes. (ECF Nos. 7, 9, 10.) 1 proceedings. 2 II. 3 BACKGROUND2 4 On February 21, 2018, Plaintiff filed an application for SSI under Title XVI, alleging 5 disability beginning August 14, 2000. (Admin. Rec. (“AR”) 185–189, ECF No. 12-1.) Plaintiff’s 6 claim was initially denied on April 11, 2018, and denied upon reconsideration on July 27, 2018. 7 (AR 80, 100.) On May 13, 2020, Plaintiff appeared before Administrative Law Judge Lynn 8 Ginsberg (the “ALJ”), by telephone, for an administrative hearing. (AR 19.) On June 5, 2020, 9 the ALJ issued a decision denying benefits. (AR 16–33.) On September 8, 2020, the Appeals 10 Council denied Plaintiff’s request for review, making the ALJ’s decision the final decision of the 11 Commissioner. (AR 1–6.) 12 Plaintiff initiated this action in federal court on November 12, 2020, and seeks judicial 13 review of the denial of his application for disability benefits under Title XVI. (ECF No. 1.) The 14 Commissioner lodged the administrative record on May 28, 2021. (ECF No. 12.) On September 15 29, 2021, Plaintiff filed an opening brief. (ECF No. 17.) On November 8, 2021, Defendant filed 16 a brief in opposition. (ECF No. 18.) On November 29, 2021, Plaintiff filed a reply. (ECF No. 17 22.) 18 III. 19 LEGAL STANDARD 20 A. The Disability Standard 21 To qualify for disability insurance benefits under the Social Security Act, the claimant 22 must show that he is unable “to engage in any substantial gainful activity by reason of any 23 medically determinable physical or mental impairment3 which can be expected to result in death 24 or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 25 2 For ease of reference, the Court will refer to the administrative record by the pagination provided by the 26 Commissioner and as referred to by the parties, and not the ECF pagination. However, the Court will refer to the parties’ briefings by their ECF pagination. 27 3 A “physical or mental impairment” is one resulting from anatomical, physiological, or psychological abnormalities 28 that are demonstrable by medically acceptable clinical and laboratory diagnostic techniques. 42 U.S.C. § 423(d)(3). 1 42 U.S.C. § 423(d)(1)(A). The Social Security Regulations set out a five-step sequential 2 evaluation process to be used in determining if a claimant is disabled. 20 C.F.R. § 404.1520; 3 Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1194 (9th Cir. 2004). The five steps in 4 the sequential evaluation in assessing whether the claimant is disabled are: 5 Step one: Is the claimant presently engaged in substantial gainful activity? If so, the claimant is not disabled. If not, proceed to step 6 two. 7 Step two: Is the claimant’s alleged impairment sufficiently severe to limit his or her ability to work? If so, proceed to step three. If not, 8 the claimant is not disabled. 9 Step three: Does the claimant’s impairment, or combination of impairments, meet or equal an impairment listed in 20 C.F.R., pt. 10 404, subpt. P, app. 1? If so, the claimant is disabled. If not, proceed to step four. 11 Step four: Does the claimant possess the residual functional 12 capacity (“RFC”) to perform his or her past relevant work? If so, the claimant is not disabled. If not, proceed to step five. 13 Step five: Does the claimant’s RFC, when considered with the 14 claimant’s age, education, and work experience, allow him or her to adjust to other work that exists in significant numbers in the 15 national economy? If so, the claimant is not disabled. If not, the claimant is disabled. 16 17 Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 2006). The burden of proof is 18 on the claimant at steps one through four. Ford v. Saul, 950 F.3d 1141, 1148 (9th Cir. 2020). A 19 claimant establishes a prima facie case of qualifying disability once he has carried the burden of 20 proof from step one through step four. 21 Before making the step four determination, the ALJ first must determine the claimant’s 22 RFC. 20 C.F.R. § 416.920(e); Nowden v. Berryhill, No. EDCV 17-00584-JEM, 2018 WL 23 1155971, at *2 (C.D. Cal. Mar. 2, 2018). The RFC is “the most [one] can still do despite [his] 24 limitations” and represents an assessment “based on all the relevant evidence.” 20 C.F.R. §§ 25 404.1545(a)(1), 416.945(a)(1). The RFC must consider all of the claimant’s impairments, 26 including those that are not severe. 20 C.F.R. §§ 416.920(e), 416.945(a)(2); Social Security 27 Ruling (“SSR”) 96–8p. 28 A determination of residual functional capacity is not a medical opinion, but a legal 1 decision that is expressly reserved for the Commissioner. See 20 C.F.R. §§ 404.1527(d)(2) (RFC 2 is not a medical opinion), 404.1546(c) (identifying the ALJ as responsible for determining RFC). 3 “[I]t is the responsibility of the ALJ, not the claimant’s physician, to determine residual 4 functional capacity.” Vertigan v. Halter, 260 F.3d 1044, 1049 (9th Cir. 2001). 5 At step five, the burden shifts to the Commissioner, who must then show that there are a 6 significant number of jobs in the national economy that the claimant can perform given his or her 7 RFC, age, education, and work experience. 20 C.F.R. § 416.912(g); Lounsburry v. Barnhart, 468 8 F.3d 1111, 1114 (9th Cir. 2006). To do this, the ALJ can use either the Medical Vocational 9 Guidelines (“grids”), or call a vocational expert (“VE”). See 20 C.F.R. § 404 Subpt. P, App. 2; 10 Lounsburry, 468 F.3d at 1114; Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001). 11 “Throughout the five-step evaluation, the ALJ is responsible for determining credibility, resolving 12 conflicts in medical testimony, and for resolving ambiguities.’ ” Ford, 950 F.3d at 1149 (quoting 13 Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)). 14 B. Standard of Review 15 Congress has provided that an individual may obtain judicial review of any final decision 16 of the Commissioner of Social Security regarding entitlement to benefits. 42 U.S.C. § 405(g). In 17 determining whether to reverse an ALJ’s decision, the Court reviews only those issues raised by 18 the party challenging the decision. See Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). 19 Further, the Court’s review of the Commissioner’s decision is a limited one; the Court must find 20 the Commissioner’s decision conclusive if it is supported by substantial evidence. 42 U.S.C. 21 405(g); Biestek v. Berryhill, 139 S. Ct. 1148, 1153 (2019). “Substantial evidence is relevant 22 evidence which, considering the record as a whole, a reasonable person might accept as adequate 23 to support a conclusion.” Thomas v. Barnhart (Thomas), 278 F.3d 947, 954 (9th Cir. 2002) 24 (quoting Flaten v. Sec’y of Health & Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995)); see also 25 Dickinson v. Zurko, 527 U.S. 150, 153 (1999) (comparing the substantial-evidence standard to 26 the deferential clearly-erroneous standard). “[T]he threshold for such evidentiary sufficiency is 27 not high.” Biestek, 139 S. Ct. at 1154. Rather, “[s]ubstantial evidence means more than a 28 scintilla, but less than a preponderance; it is an extremely deferential standard.” Thomas v. 1 CalPortland Co., 993 F.3d 1204, 1208 (9th Cir. 2021) (internal quotations and citations omitted); 2 see also Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996). Even if the ALJ has erred, the 3 Court may not reverse the ALJ’s decision where the error is harmless. Stout, 454 F.3d at 1055– 4 56. Moreover, the burden of showing that an error is not harmless “normally falls upon the party 5 attacking the agency’s determination.” Shinseki v. Sanders, 556 U.S. 396, 409 (2009). 6 Finally, “a reviewing court must consider the entire record as a whole and may not affirm 7 simply by isolating a specific quantum of supporting evidence.” Hill v. Astrue, 698 F.3d 1153, 8 1159 (9th Cir. 2012) (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)). 9 However, it is not this Court’s function to second guess the ALJ’s conclusions and substitute the 10 Court’s judgment for the ALJ’s; rather, if the evidence “is susceptible to more than one rational 11 interpretation, it is the ALJ’s conclusion that must be upheld.” Ford, 950 F.3d at 1154 (quoting 12 Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)). 13 IV. 14 DISCUSSION AND ANALYSIS 15 While the ALJ considered both physical and mental impairments in her disability 16 determination, Plaintiff’s appeal focuses only on the mental impairments. Plaintiff raises the 17 following issues on appeal: (1) the ALJ erred by failing to develop the record regarding Plaintiff’s 18 diagnosis of neurocognitive disorder due to congenital hydrocephalus; (2) the ALJ erred in 19 discounting Dr. Ekram Michiel’s consultative psychiatric opinion; and (3) the ALJ erred in the 20 RFC determination because she failed to consider Plaintiff’s diagnosed obsessive-compulsive 21 disorder.4 (ECF No. 17 at 18–24.) The Court addresses each argument in turn. 22 A. The ALJ’s Decision 23 The ALJ conducted the five-step disability analysis set forth in 20 C.F.R. §§ 404.1520, 24 416.920. (AR 21–28.) At step one, the ALJ found the claimant had not engaged in substantial 25 gainful activity since February 21, 2018, the application date. (AR 21.) At step two, the ALJ 26 4 As Defendant correctly observes, Plaintiff does not raise any issues with respect to the ALJ’s discounting of 27 Plaintiff’s testimony, nor does Plaintiff contest the ALJ’s determination as it related to Plaintiff’s physical impairments. Accordingly, the Court only considers the issues presently before it, and any issues not raised on 28 appeal are deemed waived. Lewis, 236 F.3d at 517 n.13. 1 found Plaintiff had the severe impairments of bilateral hearing loss; right eye strabismus and 2 diplopia; depression; anxiety; developmental speech disorder; hiatal hernia; hypertension; and 3 scoliosis of the thoracolumbar spine with chronic back pain. (AR 21 (citing 20 C.F.R. § 4 416.920(c)).) The ALJ additionally found Plaintiff had the medically determinable impairments 5 of obesity and a history of hydrocephalus with shunt placement, but determined these were 6 nonsevere impairments. (AR 21.) Finally, Plaintiff was diagnosed with a neurocognitive 7 disorder during his June 2018 consultative psychiatric evaluation with Dr. Michiel, but the ALJ 8 determined the purported neurocognitive disorder was not an established medically-determinable 9 impairment because the diagnosis was inconsistent with Plaintiff’s actual functioning and lacked 10 evidence from an “acceptable medical source in order to establish [its] existence.” (AR 21–22 11 (citing 20 C.F.R. §§ 404.1513(a), 416.913(a); SSR 06-03p).) In supporting her determination 12 regarding Plaintiff’s impairments, the ALJ found the opinion of Dr. Macnamara was persuasive, 13 the opinion of Dr. Damania was mostly persuasive, and the opinions of Drs. Lowe, Frye, Harper, 14 and Michiel were unpersuasive. (AR 21, 26–27.) 15 At step three, the ALJ found Plaintiff did not have an impairment or combination of 16 impairments that met or medically equaled the severity of the listed impairments in 20 C.F.R. §§ 17 416.920(d), 416.925, and 416.926. (AR 22.) In evaluating Plaintiff’s mental impairments under 18 the “paragraph B” criteria, the ALJ determined Plaintiff only had moderate limitations with 19 respect to the criteria, including the category of “concentrating, persisting or maintaining pace.” 20 (AR 22–23.) 21 Before proceeding to step four, the ALJ determined Plaintiff’s RFC permitted him to 22 perform medium work as defined in 20 C.F.R. § 416.967(c) with the following limitations: 23 [Plaintiff] can lift/carry no more than 100 pounds occasionally and 50 pounds frequently. He can never climb ladders, ropes, or 24 scaffolds. He can have no use of moving, hazardous machinery and cannot have any exposure to unprotected heights. He cannot work 25 at an active construction site. [Plaintiff] can work in a work environment with a moderate noise level. He can perform jobs that 26 do not require fine hearing. [Plaintiff] can understand, remember, and carry out simple instructions that can be learned in up to and 27 including 30 days of on-the-job training. He can keep a sufficient pace to complete tasks and meet quotas typically found in unskilled 28 work but is limited to generally goal-oriented work that is not time- 1 sensitive, strict, production-quota work. He cannot perform conveyor belt work. [Plaintiff] can have superficial, non-direct 2 interaction with the public and can have occasional interaction with coworkers and supervisors. [Plaintiff] can adapt to occasional 3 changes in the workplace. 4 (AR 23.) 5 At step four, the ALJ found Plaintiff had no past relevant work. (AR 27.) At step five, 6 the ALJ determined Plaintiff could perform jobs existing in significant numbers in the national 7 economy, specifically the jobs of laundry worker, prep cook, and mail room clerk. (AR 27–28.) 8 Therefore, the ALJ found Plaintiff was not under a disability at any time since February 21, 2018. 9 (AR 28.) 10 B. Whether the ALJ Erred by Failing to Develop the Record 11 At its core, the issue in this case is one of an ALJ’s duty to supplement the record when 12 evidence suggests a mental impairment that goes unresolved. Plaintiff’s first argument is that the 13 ALJ failed to develop the record regarding Plaintiff’s neurocognitive disorder diagnosis. (ECF 14 No. 17 at 19–20.) Plaintiff’s third argument — that the ALJ failed to consider Plaintiff’s 15 diagnosed obsessive compulsive disorder (“OCD”) — is also, in part, a failure to develop the 16 record argument and will therefore be addressed concurrently here. 17 1. Legal Standard 18 “The claimant has the burden of proving that she is disabled.” Smolen, 80 F.3d at 1288. 19 However, “[t]he ALJ always has a ‘special duty to fully and fairly develop the record and to 20 assure that the claimant’s interests are considered . . . even when the claimant is represented by 21 counsel.’” Celaya v. Halter, 332 F.3d 1177, 1183 (9th Cir. 2003) (quoting Brown v. Heckler, 713 22 F.2d 441, 443 (9th Cir. 1983)). “Social Security proceedings are inquisitorial rather than 23 adversarial.” Schiaffino v. Saul, 799 Fed. App’x 473, 476 (9th Cir. 2020) (quoting Sims v. Apfel, 24 530 U.S. 103, 111–12 (2000)). The ALJ’s duty to develop the record fully is also heightened 25 where the claimant may be mentally ill and thus unable to protect his own interests. Tonapetyan 26 v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001) (citing Higbee v. Sullivan, 975 F.2d 558, 562 (9th 27 Cir. 1992)). 28 The ALJ is not a mere umpire at such a proceeding, but has an 1 independent duty to fully develop the record . . . it is incumbent upon the ALJ to scrupulously and conscientiously probe into, 2 inquire of, and explore for all the relevant facts. He must be especially diligent in ensuring that favorable as well as unfavorable 3 facts and circumstances are elicited. 4 Celaya, 332 F.3d at 1183 (quoting Higbee, 975 F.2d at 561). 5 In Celaya v. Halter, for example, the claimant, proceeding pro se, claimed disability based 6 on her diabetes and hypertension. Celaya, 332 F.3d at 1182. The claimant also implicitly raised 7 obesity in her report of symptoms, but because her obesity was not quite sufficient to meet the 8 listing criterion, and because she did not expressly raise her obesity as a disabling factor, the ALJ 9 declined to consider the claimant’s obesity in the multiple impairment analysis and ultimately 10 found her not disabled. Id. On appeal, the Ninth Circuit found the ALJ erred in failing to 11 consider the claimant’s obesity in the step-three multiple impairment analysis. Id. at 1182–83. 12 Citing the ALJ’s duty to develop the record, the court found the ALJ’s failure to develop the 13 record further with respect to the claimant’s obesity constituted reversible error. Further, because 14 the ALJ’s RFC determination was based on a multiple impairment analysis that did not 15 contemplate the effects of the claimant’s obesity, the Ninth Circuit found the RFC determination 16 and subsequent finding that the claimant could perform certain existing jobs were not based on 17 substantial evidence that took the totality of the claimant’s medical condition into account and 18 were therefore made in error. Id. at 1130–84. 19 The Ninth Circuit has explained that ambiguous evidence, or the ALJ’s own finding that 20 the record is inadequate to allow for proper evaluation of the evidence, triggers the ALJ’s duty to 21 “conduct an appropriate inquiry.” Tonapetyan, 242 F.3d at 1150 (quoting Smolen, 80 F.3d at 22 1288 (“If the ALJ thought he needed to know the basis of Dr. Hoeflich’s opinions in order to 23 evaluate them, he had a duty to conduct an appropriate inquiry, for example, by subpoenaing the 24 physicians or submitting further questions to them.”)). “The ALJ may discharge this duty in 25 several ways, including: subpoenaing the claimant’s physicians, submitting questions to the 26 claimant’s physicians, continuing the hearing, or keeping the record open after the hearing to 27 allow supplementation of the record.” Tonapetyan, 242 F.3d at 1150 (citations omitted). The 28 regulations, similarly, provide the ALJ may order further consultative examination to “resolve an 1 inconsistency in the evidence or when the evidence as a whole is insufficient to support a 2 determination or decision.” See 20 C.F.R. § 416.919a. Examples of situations under which 3 further developing the record may be required include when the additional evidence needed is not 4 contained in the records of the claimant’s medical sources, and when highly technical or 5 specialized medical evidence not available from the claimant’s medical sources is needed. 20 6 C.F.R. § 416.919a(b). Once the duty to further develop the record is triggered, failure to do so 7 constitutes reversible error. See Tonapetyan, 242 F.3d at 1150–51. 8 In Tonapetyan, one of the claimant’s psychiatrists diagnosed her with schizophrenia. 9 Tonapetyan, 242 F.3d at 1150. A psychological consultant diagnosed the claimant with mild 10 depression, but was equivocal about whether she also had schizophrenia. Id. The ALJ rejected 11 the psychiatrist’s diagnosis as unsupported by the record, and relied upon the consultant’s opinion 12 in disregarding the claimant’s claim of schizophrenia. Id. The Ninth Circuit reversed, holding 13 the evidence of the claimant’s schizophrenia triggered the ALJ’s duty to supplement the record. 14 Id.; see also Garcia v. Comm’r, 768 F.3d 925 (9th Cir. 2014) (where the ALJ relied upon medical 15 records, including partial IQ scores, in assessing the claimant’s mental impairments, the ALJ 16 failed in his duty to supplement where a “fully and fairly developed record [would] include a 17 complete set of IQ scores that report verbal, non-verbal, and full-scale abilities.”); Smolen, 80 18 F.3d at 1288 (where a physician indicated a claimant’s condition could have a material impact on 19 the disability decision, the court ordered remand for the ALJ to further investigate). 20 2. Analysis 21 a. Neurocognitive Disorder Diagnosis 22 Specifically regarding Dr. Michiel’s diagnosis of neurocognitive disorder, the ALJ 23 rejected Dr. Michiel’s diagnosis of neurocognitive disorder because (1) “Dr. Michiel only 24 administered a mental status evaluation and no other testing,” (2) Plaintiff “has not received any 25 treatment for this impairment,” and (3) there is no “evidence from an ‘acceptable medical 26 source’” to “establish [Plaintiff’s purported] neurocognitive disorder as a medically-determinable 27 impairment.” (AR 21–22, 26.) The ALJ does not indicate the diagnosis was contradicted by any 28 of the medical evidence or rejected by another physician. 1 With respect to the first reason, Plaintiff argues the fact that the ALJ noted Dr. Michiel 2 “only administered a mental status evaluation and no other testing” demonstrates the ALJ 3 believed further testing was required to evaluate the neurocognitive disorder diagnosis (though 4 the ALJ does not identify what test or tests were missing). Defendant, moreover, argues Dr. 5 Michiel should have conducted a Montreal Cognitive Assessment.5 (ECF No. 18 at 13.) Plaintiff 6 argues these acknowledgments that additional testing was required — in the ALJ’s mind, at least 7 — to facilitate a determination of whether Plaintiff had a neurocognitive disorder demonstrates 8 the ALJ should have developed the record further. The Court tends to agree. The fact that the 9 ALJ indicated additional tests should have been performed and Defendant identified an actual test 10 that could have been performed suggests the record was incomplete and therefore “ambiguous” 11 with respect to the neurocognitive disorder diagnosis, thus triggering the ALJ’s duty to further 12 develop the record. Tonapetyan, 242 F.3d at 1150; see also Schiaffino, 799 Fed. App’x at 475–76 13 (ALJ dismissing ambiguous opinion instead of further developing the record was reversible error 14 where ALJ’s analysis might have changed if the doctor was given the opportunity to clarify her 15 opinion). Moreover, rather than outright rejecting Dr. Michiel’s diagnosis on this basis, the ALJ 16 could have developed the record simply by subpoenaing Dr. Michiel, submitting further questions 17 to him, or permitting supplementation of the record. Smolen, 80 F.3d at 1288. 18 Plaintiff also disputes the ALJ’s second reason, that no treatment was provided for the 19 neurocognitive disorder. Plaintiff argues this statement is contradicted by the evidence that 20 Plaintiff was placed in special education classes in high school and participated in a counseling 21 program with Licensed Clinical Social Workers (“LCSW”) Chrystal Hedlin and Maria Becerra, 22 who both assessed Plaintiff with a development disorder. (AR 392, 397, 414–15, 417.) The ALJ 23 does not appear to have addressed or considered this evidence at all. Yet, the reason Plaintiff 24 argues this evidence is relevant to Dr. Michiel’s diagnosis is because of the relationship between 25 congenital hydrocephalus (an impairment the ALJ did recognize) and neurocognitive disorders; 26 5 Defendant additionally argues Dr. Michiel should have also conducted a “mini mental state examination,” but does 27 not explain the distinction or relevance of performing a “mini” mental state examination where Dr. Michiel already performed a mental status examination. (See AR 295–96 (discussing results under heading of “mental status 28 examination”).) 1 specifically, that hydrocephalus “can permanently damage the brain, causing problems with 2 physical and mental development.” (ECF No. 17 at 19 n.9 (citing National Library of Medicine, 3 https://medlineplus.gov/hydrocephalus.html); see also ECF No. 22 at 2 n.1 (“Neurocognitive 4 disorder is a general terms that describes decreased mental function due to a medical disease other 5 than a psychiatric illness.”).) At this point, the Court finds it relevant to note that, while the ALJ 6 referred to Dr. Michiel’s diagnosis in truncated fashion as “neurocognitive disorder,” Dr. 7 Michiel’s express full diagnosis of Plaintiff is “neurocognitive disorder due to another medical 8 condition, hydrocephalus.” (AR 296.) Plaintiff proffers the ALJ did not consider his 9 developmental accommodations in connection with the neurocognitive disorder diagnosis due to a 10 lack of understanding of the connection between congenital hydrocephalus and neurocognitive 11 disorders. The Court need not reach this conclusion. It is sufficient to note the ALJ’s statement 12 that Plaintiff received no treatment related to this condition appears to be belied by the record, 13 that the ALJ outright rejected Dr. Michiel’s diagnosis without considering additional tests that she 14 stated were necessary for consideration of the diagnosis, and that the record consequently remains 15 ambiguous with respect to the diagnosis. 16 The ALJ’s third reason for rejecting the diagnosis is somewhat ambiguous. Defendant 17 interprets the ALJ’s comment that there was “no “evidence from an ‘acceptable medical source’ ” 18 as a more general reference to the record on whole, asserting the ALJ was stating no objective 19 medical evidence in the record supported Dr. Michiel’s diagnosis. Plaintiff, on the other hand, 20 interpreted the ALJ’s statement to be a reference to Dr. Michiel himself, indicating that Dr. 21 Michiel is not an “acceptable medical source” for purposes of making a neurocognitive disorder 22 diagnosis but rather, a specialist such as a neurologist must be utilized. If the first interpretation 23 is accurate, the Court finds the ALJ’s reason conflicts with the evidence of special education 24 accommodations Plaintiff required and his ongoing treatment related to his developmental 25 disability. Or, alternatively, that Dr. Michiel, who constitutes an “acceptable medical source” 26 provided observations of Plaintiff in his medical notes that support his diagnosis. If the latter 27 interpretation is more appropriate, the Court would agree with Plaintiff, again, that the duty to 28 further develop the record and seek a consultative examination by a neurologist was triggered. 1 In any event, the lack of explanation or clarity in the ALJ’s rejection of Dr. Michiel’s 2 diagnosis indicates further development of the record was required. A further consequence of 3 rejecting the neurocognitive disorder diagnosis without developing the record is that the ALJ did 4 not consider a neurocognitive disorder in his multiple factors analysis, and it is possible the 5 remaining steps of the ALJ’s disability analysis would also be affected. See Celaya, 332 F.3d at 6 1181–82. “In cases where an ALJ fails to develop the record, courts ‘cannot conclude that the 7 ALJ’s decision was based on substantial evidence . . . [when taking] the totality of [the 8 claimant’s] mental condition into account.’ ” Alderson v. Saul, 859 Fed. App’x 25, 27 (9th Cir. 9 2021) (mem.) (quoting Celaya, 332 F.3d at 1184 (alterations in original)). For these reasons, 10 remand is warranted. Tonapetyan, 242 F.3d at 1150–51. 11 b. Obsessive Compulsive Disorder 12 Plaintiff additionally argues the ALJ erred in the RFC determination because she failed to 13 consider Plaintiff’s diagnosed obsessive-compulsive disorder. (ECF No. 17 at 22–23.) 14 Defendant argues Plaintiff’s OCD symptoms were largely or solely supported by his subjective 15 testimony and were therefore properly discounted by the ALJ. (ECF No. 18 at 14–15.) But a 16 review of the ALJ’s decision reflects that the ALJ never discussed or appears to contemplate 17 Plaintiff’s OCD condition at all.6 In this situation, the Court finds Plaintiff’s argument sounds in 18 both a failure to develop the record as well as a faulty RFC determination. 19 Plaintiff reported symptoms associated with his OCD to medical providers, who also 20 diagnosed Plaintiff with OCD, “mixed obsessional thoughts and acts.” (See AR 395, 397, 410, 21 414–15, 424, 427.) Symptoms include that Plaintiff isolates himself five times a week, feels like 22 bugs are crawling on his face, washes his hands at least fifteen to a hundred times per day, to the 23 point that they get cuts on them and become dry or burn, must put things in the same order, and 24 “freaks out” if he “loses things.” As noted, the ALJ found a number of Plaintiff’s conditions 25 6 At most, the ALJ’s decision refers to Plaintiff’s “depression and anxiety symptoms . . . including feeling down, 26 feeling anxious, and worrying.” (AR 25.) However, Plaintiff argues, and this Court agrees, an obsessive-compulsive disorder is distinct from depression and anxiety, and it presents different functional limitations. (See ECF No. 17 at 27 23 n.10 (citing https://medlineplus.gov/obsessivecompulsivedisorder.html) (“Obsessive-compulsive disorder (OCD) is a mental disorder in which you have thoughts (obsessions) and rituals (compulsions) over and over. They interfere 28 with your life, but you cannot control or stop them.”)).) 1 constituted severe impairments; Plaintiff’s obesity and history of hydrocephalus with shunt 2 replacement constituted non-severe impairments, and the ALJ rejected Dr. Michiel’s diagnosis of 3 neurocognitive disorder as being any kind of impairment whatsoever. Yet, even though the 4 diagnoses by Plaintiff’s medical providers constitute evidence in the record of potential mental- 5 health issues, the ALJ does not — as she did with Dr. Michiel’s diagnosis — address Plaintiff’s 6 diagnosis of OCD, either to find the existence of a medically determinable impairment or to reject 7 the diagnosis. Similarly, while the ALJ discounts Plaintiff’s testimony with respect to his 8 difficulty with concentration, depression, and anxiety symptoms (AR 25), the ALJ does not 9 mention Plaintiff’s OCD and related symptoms, indicate that she is discounting the medical 10 records documenting that condition, or provide any reasons — let alone clear and convincing 11 ones — for rejecting Plaintiff’s OCD as a medically-determinable impairment.7 This 12 demonstrates a failure to properly develop the record. 13 Furthermore, “an RFC that fails to take into account a claimant’s limitations is 14 defective.” Valentine v. Comm’r. of Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009); Martin 15 v. Comm’r of Soc. Sec. Admin., 472 Fed. App’x 580 (9th Cir. 2012) (unpublished) (“The [ALJ] 16 erred when formulating [the claimant’s RFC] because the RFC neither incorporated Dr. Steiner’s 17 opinion of [the claimant’s] work limitations nor gave specific and legitimate reasons for rejecting 18 it.”; and finding VE’s testimony based on flawed RFC had no evidentiary value). Here, the ALJ’s 19 opinion is unclear as to whether she accounted for Plaintiff’s OCD in her mental RFC finding. 20 Although the ALJ is entitled to reject limitations that are unsupported by the record, she must 21 provide the reasons for discounting that evidence. Because of the above deficiencies in the ALJ’s 22 23 7 Objective medical evidence is a relevant factor the ALJ may consider when evaluating symptom testimony, but an ALJ may not reject a claimant’s subjective complaints based solely on a lack of medical evidence to fully corroborate 24 his alleged symptoms. See Burch, 400 F.3d at 680–81; Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001). Furthermore, if an ALJ discounts symptom testimony, he must provide “specific, clear, and convincing reasons for 25 doing so.” Lambert v. Saul, 980 F.3d 1266, 1277 (9th Cir. 2020) (citations omitted). “This requires the ALJ to specifically identify the testimony [from a claimant] she or he finds not to be credible and . . . explain what evidence undermines that testimony.” Id. (citations and internal quotations omitted). With respect to the instant case, the 26 Court acknowledges Plaintiff does not challenge the ALJ’s discounting of his own testimony and that specific issue is therefore not before the Court. Lewis, 236 F.3d at 517 n.13. However, Plaintiff did not need to object to the ALJ’s 27 improper discounting of his OCD symptom testimony because there was no basis to do so — as no addressing, discussing, or discounting of such testimony exists in the decision; indeed, nothing in the ALJ’s decision indicates 28 she considered and/or rejected Plaintiff’s OCD in any manner whatsoever. 1 explanation, the Court is unable to determine whether any rejection of potentially pertinent, 2 relevant evidence was proper.8 3 In sum, the Court cannot conclude that the ALJ’s decision was based on substantial 4 evidence taking the totality of Plaintiff’s impairments into account. See Alderson, 859 Fed. 5 App’x at 27; Celaya, 332 F.3d at 1184. On this basis, the ALJ’s failure to further develop the 6 record was not harmless. Accordingly, remand is warranted.9 7 C. Remand 8 The decision whether to remand a matter pursuant to sentence four of 42 U.S.C. § 405(g) 9 or to order immediate payment of benefits is within the discretion of the district court. Harman v. 10 Apfel, 211 F.3d 1172, 1178 (9th Cir. 2000). Except in rare instances, when a court reverses an 11 administrative agency determination, the proper course is to remand to the agency for additional 12 investigation or explanation. Moisa v. Barnhart, 367 F.3d 882, 886 (9th Cir. 2004) (citing INS v. 13 Ventura, 537 U.S. 12, 16 (2002)). Generally, an award of benefits is directed when: 14 (1) the ALJ has failed to provide legally sufficient reasons for rejecting such evidence, (2) there are no outstanding issues that 15 must be resolved before a determination of disability can be made, and (3) it is clear from the record that the ALJ would be required to 16 find the claimant disabled were such evidence credited. 17 Smolen, 80 F.3d at 1292. In addition, an award of benefits is directed where no useful purpose 18 8 On remand, the ALJ must clarify her findings with respect to any limitations relating to Plaintiff’s OCD and explain 19 how, if at all, her RFC finding accounts for such limitations. If the ALJ concludes that Plaintiff’s OCD does not limit his ability to work, she must explain and support the reasons for that conclusion. 20 9 Based on this conclusion, the Court need not address Plaintiff’s additional arguments. Nonetheless, the Court notes 21 that the ALJ likewise fails to discuss Plaintiff’s OCD in her analysis of the opinions of Drs. Michiel and Macnamara. Furthermore, the Court notes the ALJ does not consider Plaintiff’s prior special education accommodations relative 22 to his ability to ultimately obtain a two-year associate degree in her discussion of Plaintiff’s RFC. Nor does the ALJ explain how the ADLs identified in her RFC discussion show “capacities that are transferrable to a work setting, or 23 are otherwise inconsistent with Plaintiff’s alleged social and mental capacity limitations. See Schiaffino, 799 Fed. App’x at 476–77 (solitary ADLs are not inconsistent with alleged social limitations); see also Zeitler v. Berryhill, No. 24 5:16-cv-00862-EJD, 2017 WL 4150978, at *6 (N.D. Cal. Sept. 19, 2017) (ADLs including reading and playing online games, without specific details about the frequency and extent of the activities, did not constitute substantial 25 evidence inconsistent with physician opinions of claimant’s limitations). Finally, the ALJ is reminded that the Ninth Circuit has commented “it is a questionable practice to chastise one with a mental impairment for the exercise of poor judgment in seeking rehabilitation.” Schiaffino, 799 Fed. App’x at 476 (quoting Nguyen v. Chater, 100 F.3d 1462, 26 1465 (9th Cir. 1996)) (rejecting ALJ’s decision that claimant’s medical record was “inconsistent with disabling mental health limitations” of PTSD, OCD and anxiety because the claimant “has had no significant therapy or 27 counseling since May 2013,” was never “hospitalized due to mental disorders,” and did not go to his psychiatrist often enough). On remand, the ALJ should clarify how Plaintiff’s OCD and other purported limitations were 28 considered in according weight to the opinions of his mental health physicians and determining Plaintiff’s RFC. 1 | would be served by further administrative proceedings, or where the record is fully developed. 2 | Varney v. Sec’y of Health & Human Serv., 859 F.2d 1396, 1399 (9th Cir. 1988). 3 Here, an award of benefits by this Court is not appropriate, because the record is not “free 4 | of conflicts, ambiguities, or gaps.” Leon v. Berryhill, 880 F.3d 1041, 1047 (9th Cir. 2017). The 5 | ALJ rejected Dr. Michiel’s diagnosis of neurocognitive disorder without considering additional 6 || tests that she deemed necessary for consideration of the diagnosis, and she failed to discuss 7 | Plaintiff's OCD diagnosis or consider the impact of Plaintiff's OCD symptoms on his ability to 8 | work. Determination of these issues could impact other aspects of the ALJ’s decision, such as 9 | evaluation of the other medical opinions, determination of the severity of all of □□□□□□□□□□□ 10 | impairments and the combination thereof, the determination of Plaintiff's RFC, and consequently 11 | the ultimate determination of whether Plaintiff is able to perform work in the national economy. 12 | Therefore, the matter shall be remanded for the ALJ to re-evaluate the entirety of the medical 13 | evidence, fully develop the record regarding Plaintiffs physical impairments, and identify legally 14 | sufficient grounds to support her decision. 15 V. 16 CONCLUSION AND ORDER 17 For the foregoing reasons, IT IS HEREBY ORDERED that: 18 1. Plaintiff's appeal from the decision of the Commissioner of Social Security (ECF 19 No. 17) is GRANTED; 20 2. The matter is REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for 21 further proceedings consistent with this decision; and 22 3. The Clerk of the Court is DIRECTED to enter judgment in favor of Plaintiff Felix 23 Gomez and against Defendant Commissioner of Social Security. 24 95 IT IS SO ORDERED. FA. ee 26 | Dated: _ June 3, 2022 4 UNITED STATES MAGISTRATE JUDGE 28 15