(SS) Martinez v. Commissioner of Social Security ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MAXINE MARTINEZ, Case No. 1:20-cv-00728-CDB (SS) 12 Plaintiff, ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND 13 v. REMANDING ACTION FOR FURTHER PROCEEDINGS UNDER SENTENCE FOUR 14 COMMISSIONER OF SOCIAL OF 42 U.S.C. § 405(g) SECURITY,1 15 (Doc. 18) Defendant. 16 17 18 Maxine Martinez (“Plaintiff”) seeks judicial review of a final decision of the 19 Commissioner of Social Security (“Commissioner” or “Defendant”) denying her application for 20 disability insurance and supplemental security income benefits under the Social Security Act. 21 (Doc. 1). The matter currently is before the Court on the certified administrative record (Doc. 13) 22 and the parties’ briefs, which were submitted without oral argument. (Docs. 18-20).2 Plaintiff 23 24 1 On December 20, 2023, Martin O’Malley was named Commissioner of the Social Security Administration. See https://www.ssa.gov/history/commissioners.html. He therefore is 25 substituted as the defendant in this action. See 42 U.S.C. § 405(g) (referring to the “Commissioner’s Answer”); 20 C.F.R. § 422.210(d) (“the person holding the Office of the 26 Commissioner shall, in [their] official capacity, be the proper defendant.”). 27 2 Both parties have consented to the jurisdiction of a magistrate judge for all proceedings 28 in this action, in accordance with 28 U.S.C. § 636(c)(1). (Doc. 12). 1 asserts the Administrative Law Judge (“ALJ”) erred in his analysis of two issues and requests the 2 decision of the Commissioner be vacated and the case be remanded for the payment of benefits 3 based on the credit-as-true rule. (Doc. 18 at 19-37). 4 I. BACKGROUND 5 A. Administrative Proceedings 6 On June 2, 2016, Plaintiff filed an application for benefits pursuant to Title II, Part A of 7 Title XVIII, and Title XVI of the Social Security Act (the “Act”), 42 U.S.C. § 401 et seq., 8 alleging a period of disability beginning on April 22, 2016. (Administrative Record (“AR”) at 9 341-53). Plaintiff was 50 years old on the alleged disability onset date. Id. at 341. The 10 Commissioner denied Plaintiff’s application initially and again on reconsideration. Id. at 116-88. 11 Plaintiff submitted a written request for a hearing by an ALJ on August 14, 2017. Id. at 213-15. 12 On March 25, 2019, Plaintiff, represented by counsel, appeared for a hearing before ALJ 13 Gerald Meyer. Id. at 24, 87-115. Vocational Expert (“VE”) Denise Weaver also testified at the 14 hearing. Id. 87, 107-13. 15 B. Medical Record 16 The relevant medical record was reviewed by the Court and will be referenced below as 17 necessary to this Court’s decision. 18 C. Hearing Testimony 19 Plaintiff testified she lives in Fresno with her son. Id. at 92. Plaintiff noted her son and 20 daughter drive her because she does not have a car or license. Id. at 93. Plaintiff stated she 21 completed high school and attended trade school. Id. 22 Plaintiff testified the last time she had worked was for the Internal Revenue Service 23 (“IRS”) from 1991 to 2004. Id. at 93-94. Plaintiff worked as a clerk, hired and trained new hires, 24 and worked for 11 months of the year. Id. Plaintiff also took care of her husband until he passed 25 away on February 26, 2005. Id. Plaintiff returned to work “back [in] 2006, but the union, they 26 just told me I could not concentrate. I couldn’t do it anymore.” Id. The ALJ determined that 27 Plaintiff’s past work was too remote in time to be considered. Id. 28 Plaintiff testified her daughter takes her to appointments and she takes the bus when she 1 can. Id. at 95. Plaintiff stated she takes “like 14 medications” a day and she gets shots every two 2 weeks. Id. at 96. Plaintiff claimed her daughter reminds her to take her medication. Id. at 96, 3 104. Plaintiff testified she has swelling in her feet and has a little problem with her blood sugar. 4 Id. at 96-97. 5 Plaintiff also testified she has trouble breathing and has anxiety attacks. Id. at 97. 6 Plaintiff testified she takes two asthma pumps a day, but if she has an anxiety attack, then the 7 pumps will not help her, and she ends up going to the hospital. Id. at 97, 102. Plaintiff stated she 8 has an asthma educator to help her with the asthma pumps. Id. at 97-98. Plaintiff also sees a 9 heart doctor because she has an enlarged heart with a hole in it. Id. at 98, 101. 10 Plaintiff noted she had gone to the hospital seven or eight times in connection with suicide 11 attempts. Id. at 99-100. Plaintiff stated she has seen a case manager for mental health issues 12 since 2015. Id. at 99. The case manager reminds Plaintiff to take her medications and go to her 13 appointments. Id. at 104. Plaintiff also sees a therapist to address Plaintiff’s drug overdoses. Id. 14 at 105. Plaintiff claims her medications help her relax and sleep at night. Id. at 106. Plaintiff 15 stated she takes naps and watches TV during the day. Id. Plaintiff claims she takes medication to 16 take a nap. Id. Plaintiff also asserts she routinely hears voices and noise. Id. 17 Plaintiff testified she had trouble breathing even when she did not have a panic attack. Id. 18 at 100. Plaintiff was provided a “gas chamber” by her asthma educator but she sometimes leaves 19 it at home when she is in a hurry. Id. Plaintiff stated she was able to walk to the store where her 20 son works but she has to stop “like three times” because of spinal or breathing issues. Id. at 100- 21 01. 22 Plaintiff testified she takes medication for anxiety. Id. at 103. Plaintiff claims she has 23 anxiety attacks if she is late for appointments, and she has difficulty being around a lot of people. 24 Id. at 103-04. Plaintiff noted she tries to go out early in the morning with her daughter to avoid 25 crowds. Id. at 104. Plaintiff testified she walks to the grocery store with her daughter and oldest 26 granddaughter. Id. 27 The ALJ proffered a hypothetical to the VE of an individual with the same age, education, 28 and work experience as Plaintiff who is able to perform light work, and not able to climb ladders, 1 ropes, or scaffolds. Id. at 109. The individual can occasionally climb ramps and stairs and 2 balance on surfaces. Id. The individual can frequently, stoop, crouch, kneel, and crawl, can 3 engage in gross and fine manipulation of objects, lift, and feel with the bilateral upper extremities. 4 Id. The individual can have occasional exposure to irritants, such as fumes, odors, dust, and 5 gasses, no use of hazardous machines, and no exposure to unshielded moving mechanical parts 6 and unprotected heights. Id. at 109-10. The individual would not be able to drive a motor 7 vehicle. Id. at 110. 8 Further, the individual is able to remember, understand, and carry out only simple and 9 routine instructions and tasks consistent with specific vocational preparation levels 1 and 2 type 10 jobs with only simple work-related decisions with few if any workplace changes. Id. The 11 individual can have no interaction with the general public and only occasional interaction with 12 coworkers and supervisors, with no tandem tasks with coworkers. Id. The VE determined that an 13 individual with such limitations could perform work in several fields, including as a folding 14 machine operator (DOT #208.685-014), garment sorter (DOT #222.687-014), and routing clerk 15 (DOT #222.687-022). Id. 16 The ALJ proffered a second hypothetical of an individual similar to the first but would 17 have to be reminded of tasks frequently during an eight-hour workday by her supervisor and that 18 the individual would require close supervision. Id. at 110-11. The VE testified that there would 19 be no jobs in the national economy for this individual. Id. at 111. The ALJ asked the VE if she 20 concurred that an individual from the first hypothetical was restricted to sedentary work “that 21 would place…would grid [Plaintiff[ under the applicable rules.” Id. The VE concurred with the 22 ALJ. Id. 23 Next, the ALJ asked if due to a combination of medical conditions and mental 24 impairments, a hypothetical individual that would be off task 15 percent or more of the time for 25 an eight-hour day in addition to regularly scheduled breaks could still work. Id. at 111-12. The 26 VE determined that the individual would be precluded from all work in the national economy. Id. 27 at 112. The ALJ asked if due to a combination of medical conditions and mental impairments, a 28 hypothetical individual that would have two days of unexcused or unscheduled absences per 1 month could still work. Id. at 112-13. The VE held that the individual would be unable to work. 2 Id. at 112. 3 Plaintiff’s counsel proffered a hypothetical of an individual that would need two 4 unscheduled breaks in addition to normal breaks of at least 15 minutes each in addition to normal 5 breaks. Id. at 113. The VE found there would not be work available for that individual. Id. The 6 VE noted the breaks would require some type of accommodation from the employer, and if no 7 accommodation was provided there would be no job available. Id. 8 D. The ALJ’s Decision 9 On June 19, 2019, the ALJ issued a decision finding that Plaintiff was not disabled. Id. at 10 37-51. The ALJ conducted the five-step disability analysis set forth in 20 C.F.R. § 404.1520(a). 11 Id. at 40-51. The ALJ found Plaintiff had not engaged in substantial gainful activity since 12 January 15, 2006, the alleged onset date (step one). Id. at 40.3 The ALJ held Plaintiff possessed 13 the following severe impairment: obesity, disorder of the thoracic and lumbar spine, congestive 14 heart failure, plantar fasciitis, chronic pain, anemia, depressive, bipolar, and related disorders with 15 psychotic features, anxiety, and post-traumatic stress disorder (step two). Id. 16 The ALJ determined Plaintiff did not have an impairment or combination of impairments 17 that meets or medically equals the severity of one of the listed impairments in 20 C.F.R. Part 404, 18 Subpart P, Appendix 1 (“the Listings”) (step three). Id. at 40-42. The ALJ held Plaintiff had 19 moderate limitations in understanding, remembering, applying information, interacting with 20 others, concentrating, persisting, maintaining pace, and adapting or managing oneself. Id. The 21 ALJ noted Plaintiff endorsed auditory hallucinations and had been hospitalized for psychiatric 22 concerns on multiple occasions. Id. The ALJ determined Plaintiff’s memory was intact, thought 23 process organized, cognition normal, she was cooperative and friendly, with good eye contact, 24 normal insight, and judgment, adequate social judgment, and she was fully oriented. Id. The ALJ 25 noted in a function report, that Plaintiff did not allege difficulties, getting along with others, 26 27 3 The ALJ cited the initially alleged onset date; however, as the ALJ noted earlier in his opinion, Plaintiff amended the alleged onset date to April 22, 2016, when she moved to dismiss 28 the Title II application. Id. 37. 1 remembering, completing tasks, understanding, following instructions, completing tasks, 2 concentrating, and following instructions. Id. at 41. 3 The ALJ then assessed Plaintiff’s residual functional capacity (“RFC”). Id. at 42. The ALJ 4 found that Plaintiff retained the RFC: 5 “to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except the individual can never climb ladders, ropes and scaffolds. The individual can 6 occasionally climb ramps and stairs. The individual can occasionally balance on 7 narrow, slippery, or erratically moving surfaces. The individual can frequently, stoop, couch, kneel and crawl. The claimant can handle objects that is gross 8 manipulation, frequently with the bilateral upper extremities. The claimant can finger, that is fine manipulation, of items no smaller than the size of paper clip, frequently 9 with the bilateral upper extremities. The claimant can feel frequently with the bilateral upper extremities. The individual can have occasional exposure to irritants 10 such fumes, odors, dust and gasses. The individual can have no use of hazardous 11 machinery, unshielded moving mechanical parts, and unprotected heights. There should be no driving of motor vehicles as part of the work function. The individual is 12 able to remember, understand, and carry out only simple and routine instructions and tasks consistent with SVP levels 1 and 2 type jobs with only simple, work-related 13 decisions, with few, if any, work place changes. The individual can have no interaction with the general public. The individual can have only occasional 14 interaction with coworkers and supervisors. However, there should be no tandem 15 t asks with co-workers.” 16 Id. The ALJ noted Plaintiff testified: 17 “she has swelling in her feet. She can only be on her feet for 10 minutes before needing to sit down. She is on asthma medications. She also has a hard time breathing 18 with anxiety. She has an enlarged heart and a hole in her heart. She has attempted 19 suicide. She has been involuntarily hospitalized for psychiatric concerns. She gets short of breath when walking. She worries a lot and has ruminating thoughts. Going 20 to the store or being around a lot of people causes anxiety attacks. She will go places early in the morning to avoid crowds. Her daughter or case manager reminds her to 21 take medication and about appointments. She has auditory hallucinations. She has to take naps during the day[.]” 22 23 Id. at 43. The ALJ acknowledged that while Plaintiff’s impairments could reasonably be 24 expected to cause the alleged symptoms, the ALJ held Plaintiff’s statements concerning the 25 intensity, persistence, and limiting effects of these symptoms were not entirely consistent 26 with the medical evidence and other evidence in the record. Id. 27 In evaluating Plaintiff’s heart condition, the ALJ determined Plaintiff had normal 28 sinus rhythm with normal S1 and S2 without audible click, murmur, thrills, or rubs. Id. 1 The ALJ noted Plaintiff’s records reflected a 2/6 systolic murmur present at the left lower 2 sternal border and her second heart sound was split, but without gallop. Id. The ALJ found 3 Plaintiff had “symmetric breath sounds,” no wheezes, rhonchi, or rales, and her expiratory 4 phase was within normal limits, and she had no edema or cyanosis. Id. The ALJ 5 recognized Plaintiff underwent cardiac catheterization on July 25, 2016, which revealed no 6 angiographic evidence of coronary stenosis, her left ventricular end diastolic pressure was 7 elevated but she had normal global left ventricular systolic function. Id. The ALJ 8 considered “[s]ubsequent records” that reflected an abnormal left ventricular size with 9 abnormal systolic thickening with normal systolic function and that her left ventricular 10 ejection fraction was estimated to be at 30 percent and 41 percent. Id. 11 Next, the ALJ evaluated Plaintiff’s back pain, plantar fasciitis, and obesity. Id. The 12 ALJ noted that Plaintiff’s straight leg raising and “Laseque’s sign” were negative. Id. The 13 ALJ found Plaintiff had no muscle spasms, her range of motion was within normal limits in 14 her back, upper extremities, and lower extremities. Id. The ALJ determined Plaintiff’s 15 handgrip was normal, her reflexes were within normal limits and she had good muscle tone 16 with good active motion. Id. The ALJ noted Plaintiff had 5/5 strength in all extremities, 17 her coordination was intact, gait and balance were normal, she was able to ambulate to the 18 examination room with assistance, and she was able to sit comfortably on the examination 19 table without difficulty or evidence of pain. Id. The ALJ found imaging revealed 20 degenerative changes to Plaintiff’s lumbar and lower thoracic spine, and she had grade 1 21 spondylolisthesis in her L4-L5. Id. at 43-44. Further, the ALJ considered “SSR 19-2p” in 22 evaluating Plaintiff’s obesity. Id. at 44. 23 The ALJ also evaluated Plaintiff’s psychological symptoms. Id. at 44-45. The ALJ 24 noted on August 23, 2016, Plaintiff was found by her children on the ground with spilled 25 medication around her. Id. at 44. Plaintiff refused to answer questions and was tearful 26 when asked if she was trying to hurt herself. Id. The ALJ found on examination she was 27 sleepy but easily roused, oriented to self, and was tearful, aggressive, and angry when 28 asked why she took so many pills. Id. The ALJ recognized subsequent records reflected 1 that she had no thought disturbance, she denied current suicidal or homicidal thoughts, she 2 was alert, oriented, with good memory, concentration, insight, and judgment. Id. The ALJ 3 found at discharge, Plaintiff had no mood disturbance. Id. 4 The ALJ noted Plaintiff was involuntarily held for psychiatric concerns on 5 November 19, 2016, after reporting a desire to hurt her children. Id. The ALJ found on 6 examination Plaintiff was slow to respond, was tearful, and exhibited thought blocking. Id. 7 Plaintiff’s thoughts were disorganized, circumstantial, fragmented, tangential, and she 8 exhibited impaired judgment. Id. The ALJ noted Plaintiff was again hospitalized from 9 May 8, 2018, through May 10, 2018, after an overdose, which she denied was intentional. 10 Id. Plaintiff was again hospitalized for psychiatric concerns from February 23, 2019, 11 through February 24, 2019. Id. 12 The ALJ found other records that reflected Plaintiff was cooperative, friendly, fully 13 oriented, had no mood swings or psychotic features, with memory intact, normal cognition, 14 organized thought processes, good insight, normal and intact judgment, and had average 15 intelligence. Id. The ALJ also recognized the records reflected Plaintiff was described as 16 suspicious and disorganized, she had trouble completing thoughts and sentences, and was 17 noted to be non-compliant with her medications. Id. at 44-45. 18 The ALJ reviewed Plaintiff’s records from a consultative examination performed by 19 Dr. Farshid Yadegar. Id. at 45, 609. The ALJ acknowledged these records described 20 Plaintiff as clean, appropriate, polite, respectful, and cooperative with good hygiene. Id. at 21 45. The ALJ noted Plaintiff was tearful, sad, and her speech was slow and difficult to 22 comprehend with a lot of mumbling. Id. The ALJ noted Plaintiff was “very tangential,” 23 her thinking process was difficult to follow and it impacted her speech. Id. Plaintiff was 24 not persistent, her insight was impaired, her memory was poor, and she was disoriented. 25 Id. Plaintiff did not know what state she was in, who the President was, and the date. Id. 26 Plaintiff was able to spell the word “world” after many attempts but could not spell it 27 backwards. Id. Plaintiff was only able to recall 1 of 3 words and she could not focus and 28 answer questions. Id. 1 Further, the ALJ noted Plaintiff endorsed auditory hallucinations and experienced 2 thought blocking and loose association. Id. Plaintiff was not able to follow a 3-step 3 command or “perform serial 7’s.” Id. The ALJ also acknowledged Plaintiff could perform 4 serial 5s and she was able to spell. Id. 5 Next, the ALJ considered Plaintiff’s records from a second consultative 6 examination performed by Dr. Lance Portnoff. Id. at 45, 640. Plaintiff was adequately 7 groomed, had fair eye contact, and was oriented in time, place, and surroundings. Id. at 45. 8 Plaintiff’s immediate recall was intact, and her thought processes were coherent, but mildly 9 to moderately concrete and preoccupied. Id. The ALJ noted Plaintiff had mild 10 psychomotor slowing and could only recall 1/3 words after several minutes. Id. Plaintiff 11 did not know the capital of her state, the president, or the location of the Statue of Liberty. 12 Id. Plaintiff was unable to perform simple mathematic calculations, could not count 13 backwards from 20, and was unable to interpret common proverbs. Id. The ALJ found 14 Plaintiff’s social judgment was adequate and she had adequate insight. Id. 15 The ALJ assigned little weight to the opinion of Dr. Yadegar. Id. The ALJ 16 determined “[w]hile [Plaintiff’s] performance on [the] consultative examination supports 17 the examiner’s limitations and concerns, the totality of the evidence received at the hearing 18 level is not consistent with these limitations over a longitudinal period.” Id. The ALJ 19 noted Plaintiff was generally described as fully oriented, her thought processes were 20 organized, cognition was normal, and her memory was intact. Id. The ALJ found that 21 Plaintiff retained the capacity to remember, understand, and carry out only simple and 22 routine instructions and tasks consistent with SVP levels 1 and 2 type jobs. Id. Further, the 23 ALJ determined Plaintiff’s insight and judgment were normal. Id. The ALJ stated Plaintiff 24 retained the capacity for only simple, work-related decisions, and jobs with few, if any, 25 workplace changes. Id. The ALJ noted Plaintiff was cooperative, had good eye contact, 26 and was friendly. Id. at 45-46. The ALJ held Plaintiff can have only occasional interaction 27 with coworkers and supervisors but with no tandem tasks with coworkers. Id. at 46. 28 The ALJ assigned partial weight to the opinion of Dr. Portnoff to the extent it was 1 consistent with the totality of the evidence received at the hearing level. Id. The ALJ then 2 repeated word-for-word the same reasoning and cited the same exhibits he provided in 3 evaluating Dr. Yadegar’s opinion. Id. at 45-46. 4 The ALJ assigned little weight to the opinion of a physical medicine consultative 5 examiner, Dr. Mickey Sachdeva. Id. at 46, 597. The ALJ held “[w]hile [Dr. Sachdeva] 6 supported his opinion with an explanation, the totality of the evidence [was] consistent with 7 further limitations.” Id. at 46. The ALJ noted Plaintiff had good muscle tone with good 8 active motion, she had 5/5 strength in all extremities and her gait and balance were normal. 9 Id. The ALJ found Plaintiff was able to sit comfortably on the examination table without 10 difficulty or evidence of pain. Id. The ALJ then largely recited his RFC finding. See id. 11 The ALJ assigned little weight to the opinion of Plaintiff’s provider, Dr. Mario 12 Ochoa. Id. The ALJ concluded summarily that Dr. Ochoa’s opinions were inconsistent 13 with the totality of the evidence received at the hearing level. Id. at 46-47. The ALJ then 14 repeated word-for-word the same reasoning and cited the same exhibits he provided in 15 discounting Dr. Sachdeva’s opinion. Id. at 47. 16 The ALJ assigned little weight to the opinions of Plaintiff’s provider Nurse 17 Practitioner (“NP”) Angela Desai. Id. The ALJ concluded summarily that NP Desai’s 18 opinions were inconsistent with the totality of the evidence received at the hearing level. 19 Id. The ALJ then repeated word-for-word the same reasoning and cited the same exhibits 20 he provided in evaluating Drs. Yadegar and Portnoff’s opinions. Id. 21 The ALJ assigned partial weight to the opinion of Dr. Jack Lebeau to the extent it 22 was consistent with the totality of the evidence received at the hearing level. Id. The ALJ 23 then repeated word-for-word the same reasoning and cited the same exhibits he provided in 24 evaluating Drs. Sachdeva and Ochoa’s opinions. Id. at 47-48. 25 The ALJ assigned partial weight to the opinion of Dr. Ann Monis to the extent it 26 was consistent with the totality of the evidence received at the hearing level. Id. at 48. 27 The ALJ then repeated word-for-word the same reasoning and cited the same exhibits he 28 provided in evaluating Drs. Yadegar, Portnoff, and NP Desai’s opinions. Id. 1 The ALJ assigned partial weight to the opinions of the state agency psychological 2 consultants Drs. H. Amadol and Heather M. Abrahimi to the extent consistent with the 3 totality of the evidence received at the hearing level. Id. The ALJ then repeated word-for- 4 word the same reasoning and cited the same exhibits he provided in evaluating Drs. 5 Yadegar, Portnoff, Monis, and NP Desai’s opinions. Id. at 48-49. 6 The ALJ assigned little weight to the opinions of the state agency medical 7 consultants Drs. R. Betcher and G. Dale. Id. at 49. The ALJ found the record was 8 sufficient to establish severe physical impairments. Id. The ALJ noted Plaintiff’s left 9 ventricular end diastolic pressure was elevated, and she had an abnormal left ventricular 10 size with abnormal systolic thickening. Id. The ALJ also noted Plaintiff’s left ventricular 11 ejection fraction was estimated to be 30 percent, imaging revealed degenerative changes of 12 the lumbar and lower thoracic spine and there was grade 1 spondylolisthesis at L4-L5. Id. 13 The ALJ assigned little weight to the opinions of Plaintiff’s son, Tomas Martinez. 14 Id. The ALJ noted Mr. Martinez reported Plaintiff’s impairments affected her ability to 15 lift, squat, walk, kneel, and climb stairs. Id. The ALJ determined Mr. Martinez’s 16 “statement was considered in terms of understanding the severity of Plaintiff’s physical and 17 mental impairments, but has been given little weight, as it is a lay opinion based upon 18 casual observation, rather than objective medical examination and testing.” Id. The ALJ 19 also held Mr. Martinez’s opinion did not outweigh the medical evidence regarding the 20 extent to which Plaintiff’s impairments limited her functional abilities. Id. Specifically, 21 the ALJ found examinations showing 5/5 strength and a normal gait “to be more persuasive 22 in this regard.” Id. 23 The ALJ held that the RFC assessment was supported by the record when 24 considered as a whole. Id. The ALJ asserted the objective medical and opinion evidence 25 suggested greater sustained capacity than described by Plaintiff. Id. The ALJ determined 26 that Plaintiff had no past relevant work (step four) but could perform a significant number 27 of other jobs in the national economy, including folding machine operator, garment sorter, 28 and routing clerk (step five). Id. at 49-50. The ALJ concluded Plaintiff has not been under 1 a disability as defined in the Act. Id. at 50-51. 2 E. The Appeals Council’s Decision 3 On March 23, 2020, the Appeals Council denied Plaintiff’s request for review, making the 4 ALJ’s decision the final decision of the Commissioner. Id. at 4-10. Plaintiff filed this action on 5 May 22, 2020, seeking judicial review of the denial of her application for benefits. (Doc. 1). The 6 Commissioner lodged the administrative record on April 12, 2021. (Doc. 13). Plaintiff filed an 7 opening brief on July 16, 2021. (Doc. 18). On August 16, 2021, Defendant filed a responsive 8 brief and Plaintiff filed a reply on August 31, 2021. (Docs. 19-20). 9 II. LEGAL STANDARD 10 A. The Disability Standard 11 Disability Insurance Benefits and Supplemental Security Income are available for every 12 eligible individual who is “disabled.” 42 U.S.C. §§ 402(d)(1)(B)(ii) and 1381(a). An individual 13 is “disabled” if unable to “engage in any substantial gainful activity by reason of any medically 14 determinable physical or mental impairment …”4 Bowen v. Yuckert, 482 U.S. 137, 140 (1987) 15 (quoting identically worded provisions of 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A)). To 16 achieve uniformity in the decision-making process, the Social Security regulations set out a five- 17 step sequential evaluation process to be used in determining if an individual is disabled. See 20 18 C.F.R. § 404.1520; Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1194 (9th Cir. 2004). 19 Specifically, the ALJ is required to determine: 20 (1) whether a claimant engaged in substantial gainful activity during the period of 21 alleged disability, (2) whether the claimant had medically determinable “severe” impairments, (3) whether these impairments meet or are medically equivalent to one 22 of the listed impairments set forth in 20 C.F.R. § 404, Subpart P, Appendix 1, (4) whether the claimant retained the RFC to perform past relevant work and (5) 23 whether the claimant had the ability to perform other jobs existing in significant numbers at the national and regional level. 24 25 Stout v. Comm’r. Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 2006). The burden of proof is 26 4 A “physical or mental impairment” is one resulting from anatomical, physiological, or 27 psychological abnormalities that are demonstrated by medically acceptable clinical and laboratory diagnostic techniques. 42 U.S.C. § 423(d)(3). 28 1 on a claimant at steps one through four. Ford v. Saul, 950 F.3d 1141, 1148 (9th Cir. 2020) (citing 2 Valentine v. Comm’r of Soc. Sec. Admin, 574 F.3d 685, 689 (9th Cir. 2009)). 3 Before making the step four determinations, the ALJ first must determine the claimant’s 4 RFC. 20 C.F.R. § 416.920(e). The RFC is the most a claimant can still do despite their 5 limitations and represents an assessment based on all relevant evidence. 20 C.F.R. §§ 6 404.1545(a)(1); 416.945(a)(1)). The RFC must consider all of the claimant’s impairments, 7 including those that are not severe. 20 C.F.R. § 416.920(e); § 416.945(a)(2). E.g., Wells v. 8 Colvin, 727 F.3d 1061, 1065 (10th Cir. 2013) (“These regulations inform us, first, that in 9 assessing the claimant’s RFC, the ALJ must consider the combined effect of all of the claimant’s 10 medically determinable impairments, whether severe or not severe.”). The RFC is not a medical 11 opinion. 20 C.F.R. § 404.1527(d)(2). Rather, it is a legal decision that is expressly reserved to 12 the Commissioner. 20 C.F.R. § 404.1546(c); see Vertigan v. Halter, 260 F.3d 1044, 1049 (9th 13 Cir. 2001) (“[I]t is the responsibility of the ALJ, not the claimant’s physician, to determine 14 residual functional capacity.”). 15 At step five, the burden shifts to the Commissioner to prove that Plaintiff can perform 16 other work in the national economy given the claimant’s RFC, age, education, and work 17 experience. Garrison v. Colvin, 759 F.3d 995, 1011 (9th Cir. 2014). To do this, the ALJ can use 18 either the Medical-Vocational Guidelines or rely upon the testimony of a VE. Lounsburry v. 19 Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006); Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th 20 Cir. 2001). “Throughout the five-step evaluation, the ALJ ‘is responsible for determining 21 credibility, resolving conflicts in medical testimony and for resolving ambiguities.’” Ford, 950 22 F.3d at 1149 (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)). 23 B. Standard of Review 24 Congress has provided that an individual may obtain judicial review of any final decision 25 of the Commissioner of Social Security regarding entitlement to benefits. 42 U.S.C. § 405(g). In 26 determining whether to reverse an ALJ’s decision, a court reviews only those issues raised by the 27 party challenging the decision. See Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). A 28 court may set aside the Commissioner’s denial of benefits when the ALJ’s findings are based on 1 legal error or are not supported by substantial evidence. Tackett v. Apfel, 180 F.3d 1094, 1097 2 (9th Cir. 1999). 3 “Substantial evidence is relevant evidence which, considering the record as a whole, a 4 reasonable person might accept as adequate to support a conclusion.” Thomas v. Barnhart, 278 5 F.3d 947, 954 (9th Cir. 2002) (quoting Flaten v. Sec’y of Health & Human Servs., 44 F.3d 1453, 6 1457 (9th Cir, 1995)). “[T]he threshold for such evidentiary sufficiency is not high.” Biestek v. 7 Berryhill, 139 S. Ct. 1148, 1154 (2019). Rather, “[s]ubstantial evidence means more than a 8 scintilla, but less than a preponderance; it is an extremely deferential standard.” Thomas v. 9 CalPortland Co., 993 F.3d 1204, 1208 (9th Cir. 2021) (internal quotations and citations omitted). 10 “[A] reviewing court must consider the entire record as a whole and may not affirm 11 simply by isolating a specific quantum of supporting evidence.” Hill v. Astrue, 698 F.3d 1153, 12 1159 (9th Cir. 2012) (internal quotations and citations omitted). “If the evidence ‘is susceptible 13 to more than one rational interpretation, it is the ALJ’s conclusion that must be upheld.’” Ford, 14 950 F.3d at 1154 (quoting Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)). Even if the 15 ALJ has erred, the Court may not reverse the ALJ’s decision where the error is harmless. Stout, 16 454 F.3d at 1055-56. An error is harmless where it is “inconsequential to the [ALJ’s] ultimate 17 nondisability determinations.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) 18 (quotation and citation omitted). The burden of showing that an error is not harmless “normally 19 falls upon the party attacking the agency’s determination.” Shinseki v. Sanders, 556 U.S. 396, 20 409 (2009). 21 III. LEGAL ISSUES 22 Plaintiff asserts the ALJ committed harmful error by failing to defer and afford “greatest 23 weight” to the medical source statements of consultative examiner Dr. Yadegar, treating 24 physician Dr. Ochoa, and treating NP Desai, “absent the requisite ‘specific and legitimate’ 25 reasons.” (Doc. 18 at 6, 19-33). Plaintiff also argues the ALJ committed harmful error by failing 26 to provide “clear and convincing” reasons for rejecting Plaintiff’s symptomology evidence. Id. at 27 6, 33-37. 28 1 IV. DISCUSSION 2 A. Whether the ALJ committed harmful error by failing to afford “greatest 3 weight” to the opinions of Drs. Yadegar, Ochoa, and NP Desai. 4 For Social Security disability cases filed before March 27, 2017, the weight to be given to 5 medical opinions depends in part on whether the opinions are proffered by treating, examining, or 6 nonexamining health professionals.5 Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995); Fair v. 7 Bowen, 885 F.2d 597, 604 (9th Cir. 1989). “As a general rule, more weight should be given to 8 the opinion of a treating source than to the opinion of doctors who do not treat the claimant…” as 9 a treating doctor is employed to cure and has a greater opportunity to know and observe the 10 patient as an individual. Lester, 81 F.3d at 830; Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 11 1996); Bates v. Sullivan, 894 F.2d 1059, 1063 (9th Cir. 1990); Cf. Pitzer v. Sullivan, 908 F.2d 12 502, 506, n.4 (9th Cir. 1990) (the least weight is given to the opinion of a non-examining 13 professional). 14 The uncontradicted opinion of a treating or examining physician may be rejected only for 15 clear and convincing reasons supported by substantial evidence in the record. Lester, 81 F.3d at 16 831. The opinion of a treating or examining physician that is controverted by another doctor may 17 be rejected only for specific and legitimate reasons supported by substantial evidence in the 18 record. Id. Specific and legitimate reasons require the ALJ to set out a detailed and thorough 19 summary of the facts and conflicting clinical evidence, state his/her interpretation of the evidence, 20 and make a finding. Magallanes v. Bowen, 881 F.2d 747, 751-55 (9th Cir. 1989); see Reddick v. 21 Chater, 157 F.3d 715, 725 (9th Cir. 1998) (“The ALJ must do more than offer his conclusions. 22 He must set forth his interpretations and explain why they, rather than the doctors’, are correct.”). 23 Absent specific and legitimate reasons, the ALJ must defer to the opinion of a treating or 24 5 Effective March 27, 2017, Revisions to Rules Regarding the Evaluation of Medical 25 Evidence removed provisions extending per se preferential status to opinions of treating physicians. Because Plaintiff’s application was filed prior to March 27, 2017 (AR at 341-53) and 26 not decided until after that date, 20 C.F.R. §§ 404.1527(c) and 416.927(c) apply and required the 27 ALJ to extend preferential status to treating as compared to non-treating medical sources. See, e.g., Chessani v. Saul, No. 2:20-cv-0082 DB, 2021 WL 916198, at *3 n.3 (E.D. Cal. Mar. 10, 28 2021) (citing Edinger v. Saul, 432 F. Supp. 3d 516, 530 & n.16 (E.D. Pa. 2020)). 1 examining physician. See Lester, 81 F.3d at 830-31. 2 1. Dr. Yadegar 3 Plaintiff was seen by Dr. Yadegar on September 7, 2016. AR at 605-09. Dr. Yadegar 4 documented Plaintiff claimed she had difficulty focusing, her neighbors were bothering her, she 5 had anxiety attacks, was taking too many sleeping pills while drinking alcohol, and was taken for 6 psychiatric hospitalizations. Id. Dr. Yadegar noted Plaintiff mentioned she had been homeless on 7 and off. Id. Plaintiff “just got a place, but she is behind in rent for two months” and she was still 8 grieving her husband’s loss. Id. Dr. Yadegar identified Plaintiff was taking Remeron and 9 Fluoxetine for a few years, but Plaintiff was unable to provide the exact date she started the 10 medication. Id. 11 Dr. Yadegar noted Plaintiff was hospitalized in 2005, at Community Behavioral Health 12 Center (“Community”) for danger to herself around the time when her husband died. Id. at 606. 13 Plaintiff was again hospitalized at Community on August 23, 2016, for danger to herself. Id. Dr. 14 Yadegar noted “[i]n the report that she brought with her, it said ‘I don’t want to live anymore’” 15 and “[s]he wanted to hurt herself.” Id. 16 Dr. Yadegar reviewed her family, social, and employment history. Id. Dr. Yadegar noted 17 Plaintiff was using alcohol up until August 25, 2016, but Plaintiff believed she was not addicted. 18 Id. Dr. Yadegar also discussed Plaintiff’s activities of daily living. Id. Dr. Yadegar noted “[s]he 19 can do pretty much [sic] around the house” but when her feet hurt, she can’t walk very long, gets 20 tired, and starts to have anxiety thinking she won’t be able to get to her destination. Id. 21 Dr. Yadegar found Plaintiff was clean, and appropriate with good hygiene. Id. Dr. 22 Yadegar determined Plaintiff was polite, respectful, cooperative, pleasant, “but very tearful, very 23 sad.” Id. Dr. Yadegar stated her mood and affect was extremely sad and depressed, although she 24 denied feeling suicidal and homicidal at the examination. Id. Dr. Yadegar noted Plaintiff’s 25 speech was slow, mumbled, and difficult to comprehend sometimes. Id. at 607. Dr. Yadegar 26 determined Plaintiff was “very tangential” and her thinking process was “really difficult to follow 27 her speech and she elaborates that she gets lost in her own thoughts impacting her speech.” Id. 28 Next, Dr. Yadegar noted Plaintiff claimed she experienced auditory hallucinations when 1 she was depressed and when she was around people. Id. Dr. Yadegar found Plaintiff could not 2 really tell him clearly what she was hearing and was “very vague.” Id. Dr. Yadegar reported 3 Plaintiff stated, “the voices tell her sometimes let go of her husband, get over it and she 4 mentioned that she can’t.” Id. Dr. Yadegar found Plaintiff had to rely on a list to remember what 5 medication to take and not to take. Id. Plaintiff reported feeling 8/10 in regard to feeling 6 depressed and anxious. See id. (“Depression being 10, 1 being happy… 10 being the worse 7 anxiety, 1 being no anxiety at all”). 8 Dr. Yadegar determined Plaintiff was oriented to plate but she did not know what state she 9 was in, the president, or “today’s date.” See id. (“I have been sleeping a lot, I cannot remember 10 today’s date. I think we are in September or August.”). Dr. Yadegar found Plaintiff only knew 11 her date of birth and the purpose of the visit. Id. Dr. Yadegar reported Plaintiff was “definitely 12 disoriented.” Id. 13 Dr. Yadegar noted Plaintiff could spell the word “world” after many attempts but was 14 unable to spell it backward. Id. Plaintiff did not have her address or phone number memorized. 15 Id. Dr. Yadegar found Plaintiff’s memory was impaired, that “she is oriented,” and that he had 16 major concerns with her cognition. Id. Dr. Yadegar determined Plaintiff could not focus and 17 answer questions, she had thought blocking, loose association, and her mind was defragmented 18 and confused. Id. Further, Dr. Yadegar reported Plaintiff could perform calculations but had 19 difficulties in concentration, abstract thinking, similarities/differences, and with judgment/insight. 20 Id. at 608. 21 Dr. Yadegar stated Plaintiff’s condition “is problematic, so it is very concerning…I am 22 very concerned and I do like her to see someone for the intellectual abilities, possibly some form 23 of treatment that she can go to.” Id. at 607-08. Dr. Yadegar held Plaintiff “definitely needs some 24 form of case management, someone to help her with finances, someone to help her with 25 managing her daily living situation.” Id. at 608. Dr. Yadegar warned without support Plaintiff 26 could become homeless again and could end up hurting herself. Id. Dr. Yadegar noted Plaintiff 27 has children but did not know how much they could help her. Id. 28 Dr. Yadegar diagnosed Plaintiff with a not otherwise specified (“NOS”) depressive 1 disorder, and a NOS anxiety disorder. Id. Dr. Yadegar “rule[d] out cognitive, as well as, 2 intellectual disability difficult, challenges” and alcohol dependence. Id. Dr. Yadegar referred 3 Plaintiff to the “Department of Mental Health just in case she became depressed again and wants 4 to hurt herself and some kind of support system would definitely be good for her.” Id. 5 Dr. Yadegar concluded Plaintiff’s prognosis was not good as she had a lot of difficulties 6 and various challenges, in her life. See id. at 608-09 (“She is taking her medications really well, 7 but restraining herself and accomplishing tasks is very difficult for her.”). Dr. Yadegar again 8 noted Plaintiff would benefit from some support from a case manager. Id. at 608. 9 Dr. Yadegar noted Plaintiff was not capable of managing her funds and stated Plaintiff 10 was mildly impaired in her ability to perform simple and repetitive tasks. Id. at 609. Dr. Yadegar 11 found Plaintiff was moderately impaired in her ability to handle instructions from a supervisor. 12 Id. Dr. Yadegar determined Plaintiff was markedly impaired in her ability: 13 “to perform detailed and complex tasks, interact with co-workers and the public, to perform 14 work activities on a consistent basis without special or additional instruction, to maintain regular attendance in the workplace, to complete a normal workday/workweek without 15 interruptions from a psychiatric condition, and deal with the usual stress encountered in the work place.” 16 17 Id. Dr. Yadegar concluded he had “never given this kind of rating, so this is really alarming, it is 18 very concerning to me.” Id. 19 As discussed above, the ALJ assigned little weight to the opinion of Dr. Yadegar because 20 “the totality of the evidence received at the hearing level is not consistent with these limitations 21 over a longitudinal period.” Id. at 45. 22 Plaintiff argues the ALJ failed to provide specific and legitimate reasons to discount Dr. 23 Yadegar’s opinion. (Doc. 18 at 20). Plaintiff asserts the ALJ used the “same, cherry-picked 24 language, verbatim” to reject Dr. Yadegar’s opinion as he did with five other opinions. (Docs. 18 25 at 20, 22; 20 at 3-5). Plaintiff contends the ALJ mischaracterized the record by highlighting 26 negative findings of psychological impairment taken during gynecological examinations and 27 failing to address “extensive” positive findings of psychological impairment, Plaintiff’s non- 28 1 conservative treatment, and Plaintiff’s hospitalizations. (Docs. 18 at 22-25, 27; 20 at 7, 9-10). 2 Additionally, Plaintiff argues the ALJ erred in failing to address “the extensive, specific, and 3 rather ominous” findings of Dr. Yadegar. (Docs. 18 at 24; 20 at 7). 4 In response, Defendant claims the ALJ’s findings were based on a reasonable 5 interpretation of the record and supported by Dr. Monis’ opinion. (Doc. 19 at 8-9). Defendant 6 asserts the ALJ considered both the positive and negative mental status findings. Id. at 9. 7 Defendant contends the longitudinal record cited by the ALJ showed Dr. Yadegar’s opinion was 8 not supported by the generally normal exam findings. Id. Defendant avers “Plaintiff’s contention 9 that the ALJ could not rely on mental status findings in records where she received treatment for 10 physical impairments is incorrect.” Id. 11 The Court finds the ALJ has failed to provide specific and legitimate reasons to discount 12 examining physician, Dr. Yadegar’s opinion. As detailed above (supra 9-11), the ALJ assigned 13 little weight to Dr. Yadegar and NP Desai’s opinions and partial weight to Drs. Portnoff, Monis, 14 Amadol, and Abrahimi. Despite the differences in the assigned weight and the inherent 15 differences within the opinions, the ALJ provided alternating versions of a “boilerplate” 16 explanation for all six opinions. The ALJ’s reliance on identical reasoning for addressing all six 17 opinions “tends to indicate that the ALJ used standard boilerplate language to address [the] 18 opinions irrespective of their individual content.” Deleon v. Saul, No. CV 19-1687-GSA, 2021 19 WL 63336, at *5 (E.D. Cal. Jan. 7, 2021). Particularly given the ALJ’s summary and conclusory 20 discounting of the physicians’ opinions (including those of Dr. Yadegar), the ALJ’s recitation of 21 boilerplate language is not sufficiently specific. Id. (citing Garrison, 759 F.3d at 1013) (noting 22 that the specific and legitimate reasoning standard is not satisfied where the ALJ uses “boilerplate 23 language that fails to offer a substantive basis for his conclusion.”). 24 To take one example, the ALJ summarily discounted the opinions of Drs. Yadegar and 25 Portnoff and cited as support the same, verbatim listing of more favorable and generalized 26 assessments of Plaintiff’s medical examinations. AR 45-46. However, the two opinions offered 27 unique insights and perspective – including, as to Dr. Yadegar, Plaintiff’s endorsement of 28 auditory hallucinations – yet the ALJ’s opinion offers no indication that he gave individualized 1 consideration to the examining doctors’ assessments. Accordingly, the ALJ has failed to provide 2 a specific reason to discount Dr. Yadegar’s opinion. 3 Next, the Court holds Plaintiff failed to provide legitimate reasons to discount Dr. 4 Yadegar’s opinion. As Plaintiff acknowledges, an ALJ may properly review and consider mental 5 impairments addressed in medical records documenting a patient’s treatment for physical 6 impairments. See (Doc. 20 at 6) (“The Defense mischaracterizes the argument in Pl. Br. by 7 opining, incorrectly, that Ms. Martinez’s contention was that ‘the ALJ could not rely on mental 8 status findings in records where she was receiving treatment for physical impairments.’”). 9 However, it is equally true that an ALJ may not “cherry-pick” negative findings of mental 10 impairment and ignore positive findings of mental impairment. See Holohan v. Massanri, 246 11 F,3d 1195, 1207 (9th Cir. 2001) (reversing where the ALJ “selectively relied on some entries [in 12 the plaintiff’s treatment records] and ignored the many others that indicated continued, severe 13 impairment.”). 14 As discussed above, the ALJ cited exhibits that showed Plaintiff was oriented (AR at 559, 15 666, 952), she had normal insight and judgment (id. at 677, 679, 952, 954, 956), intact memory 16 (id. at 560, 666, 986), she was cooperative (id. at 559, 666, 677, 679), had good eye contact (id. at 17 679, 952, 956), and was friendly (id. at 954). However, those same exhibits also provided 18 positive findings of mental impairment that the ALJ did not address when discounting Dr. 19 Yadegar’s opinion. See AR at 677, 679, 952, 954, 956. Specifically, Plaintiff’s thought content 20 was helpless/hopeless, had hallucinations, she was anxious and depressed, and she suffered from 21 liable, blunt, and flat affect. Id. The ALJ’s failure to address these positive findings of mental 22 impairment, while citing negative examples from the same exhibits, demonstrates the ALJ 23 impermissibly relied on evidence from the record selectively. 24 Further, the Court holds the ALJ erred in discounting Dr. Yadegar’s opinion without 25 discussing his conclusion relating to severity. Following his examination, Dr. Yadegar found 26 Plaintiff was markedly impaired in six different categories. Supra 18. Dr. Yadegar concluded, “I 27 never [have] given this kind of rating, so this is really alarming, it is very concerning to me.” AR 28 at 609. An ALJ is not required to discuss all evidence that is presented, but unquestionably must 1 explain why significant probative evidence has been rejected. Vincent v. Heckler, 739 F.2d 1393, 2 1395 (9th Cir. 1984) (citation omitted); see Matthew A. B. v. Berryhill, No. 3:18-cv-05531-DWC, 3 2019 WL 1594363, at *4 (W.D. Wash. Apr. 15, 2019) (“[T]he ALJ’s description of Dr. Koch’s 4 evaluation overlooks abnormal findings which may support her opined limitations.”). Here, the 5 ALJ’s failure to even note Dr. Yadegar’s disconcerting conclusion (see generally id. at 37-51) 6 constitutes a striking omission from the ALJ’s opinion. Under these circumstances, the Court 7 cannot find that the ALJ provided specific and legitimate reasons supported by substantial 8 evidence to discount Dr. Yadegar’s opinion. 9 2. Dr. Ochoa 10 Plaintiff was seen by Dr. Ochoa between July 8, 2015, and February 16, 2019. AR at 532- 11 36, 552-53, 959-67). Dr. Ochoa treated Plaintiff for left foot pain, cough, chest pain, swelling, 12 abnormal uterine bleeding, chronic back pain, shortness of breath, and anxiety. Id. 13 On September 14, 2017, Dr. Ochoa completed a physical medical source statement for 14 Plaintiff. Id. at 645-48. Dr. Ochoa diagnosed Plaintiff with foot pain, musculoskeletal pain, 15 asthma, and hypertension. Id. at 645. Dr. Ochoa noted Plaintiff experienced pain, fatigue, 16 tenderness, stiffness, depression, and anxiety. Id. Dr. Ochoa found Plaintiff’s impairments had 17 not lasted or were not expected to last at least twelve months. Id. 18 Dr. Ochoa estimated Plaintiff could walk one city block without rest or severe pain. Id. 19 Dr. Ochoa noted Plaintiff could sit 45 minutes before needing to get up and stand 20 minutes 20 before needing to sit down or walk around. Id. Dr. Ochoa found Plaintiff could sit for about four 21 hours and stand/walk about two hours total in an eight-hour workday (with normal breaks). Id. 22 Dr. Ochoa held Plaintiff would need a job that permits shifting positions at will from sitting, 23 standing, or walking. Id. Dr. Ochoa determined Plaintiff would need to walk around during an 24 eight-hour workday every 30 minutes for 10 minutes each time. Id. at 646. 25 Dr. Ochoa found Plaintiff would sometimes need to take unscheduled 15-minute breaks 26 during a workday every one to two hours. Id. Dr. Ochoa stated Plaintiff’s chronic fatigue, pain/ 27 paresthesias, and numbness caused a need for these breaks. Id. Dr. Ochoa determined Plaintiff 28 could lift and carry in a competitive work situation less than 10 pounds occasionally, 10 pounds 1 occasionally, 20 pounds rarely, and 50 pounds never. Id. Dr. Ochoa found Plaintiff could rarely 2 twist, and occasionally stoop/bend, crouch/squat, climb stairs, and climb ladders. Id. Dr. Ochoa 3 noted Plaintiff could use her hands/fingers/arms to grasp, turn, twist objects, engage in fine 4 manipulations, and reach in front of the body and overhead, 80% of an eight-hour workday. Id. at 5 647. 6 Dr. Ochoa estimated Plaintiff was likely to be off task 20% of the time during a typical 7 workday. Id. Dr. Ochoa reported Plaintiff was capable of low-stress work and she was likely to 8 have “good days” and bad days.” Id. Dr. Ochoa determined Plaintiff was likely to be absent 9 from work more than four days per month. Id. Dr. Ochoa found Plaintiff could walk a block at a 10 reasonable place on rough or uneven surfaces, use standard public transportation, grocery, and 11 clothes shop, go to the bank, and climb stairs at a reasonable pace with use of only a single 12 handrail. Id. Dr. Ochoa affirmed that Plaintiff’s impairments, demonstrated by signs, clinical 13 findings, and laboratory or test results were reasonably consistent with the functional limitations 14 he provided. Id. at 648. Dr. Ochoa reiterated that Plaintiff could not sit, stand, or walk too long 15 due to pain. Id. 16 On October 27, 2018, Dr. Ochoa completed a second physical medical source statement 17 for Plaintiff. Id. at 896-99. Dr. Ochoa diagnosed Plaintiff with chronic renal failure, 18 hypertension, asthma, and chronic pain. Id. at 896. Dr. Ochoa determined Plaintiff had 9/10 19 stabbing pain on the back of her legs, stiffness in her hands and fingers, and reduced sensation in 20 her right leg. Id. Dr. Ochoa concluded Plaintiff’s impairments had lasted or were expected to last 21 at least 12 months and that Plaintiff’s “bipolar disease” affected her physical condition. Id. 22 Dr. Ochoa estimated Plaintiff could walk half of a city block without rest or severe pain. 23 Id. Dr. Ochoa noted Plaintiff could sit 30 minutes before needing to get up and stand 10 minutes 24 before needing to sit down or walk around. Id. at 897. Dr. Ochoa estimated Plaintiff could sit 25 about four hours and stand/walk less than two hours total in an eight-hour workday (with normal 26 breaks). Id. Dr. Ochoa determined Plaintiff would need to walk around during an eight-hour 27 workday every 20 minutes for 5 minutes each time. Id. 28 Dr. Ochoa found Plaintiff would sometimes need to take unscheduled 15-minute breaks 1 during a workday every 20 to 30 minutes. Id. Dr. Ochoa stated Plaintiff’s chronic fatigue, pain/ 2 paresthesias, numbness, and muscle weakness caused a need for these breaks. Id. In a marked 3 degradation in his assessment of Plaintiff’s weight-bearing capability since his first exam of her 4 one year earlier, Dr. Ochoa determined Plaintiff could lift and carry in a competitive work 5 situation less than 10 pounds rarely, and never anything 10 pounds or over. Id. at 898. Dr. Ochoa 6 opined Plaintiff could occasionally twist, stoop/bend, crouch/squat, climb stairs, and climb 7 ladders. Id. Dr. Ochoa noted Plaintiff could use her hands/fingers/arms to grasp, turn, twist 8 objects, engage in fine manipulations, and reach in front of the body and overhead, 10% of an 9 eight-hour workday. Id. 10 Dr. Ochoa estimated Plaintiff was likely to be off task 25% of the time during a typical 11 workday. Id. Dr. Ochoa reported Plaintiff was incapable of even “low stress” work due to her 12 “bipolar condition.” Id. Dr. Ochoa found Plaintiff’s impairments produced mostly bad days. Id. 13 Dr. Ochoa determined Plaintiff was likely to be absent from work more than four days per month. 14 Id. at 898. Dr. Ochoa estimated the earliest date the functional limitations noted above applied to 15 Plaintiff in 2015. Id. 16 As discussed above, the ALJ assigned little weight to the opinion of Dr. Ochoa because it 17 was inconsistent with the totality of the evidence received at the hearing level. Id. at 46-47. 18 Plaintiff asserts the ALJ failed to provide specific and legitimate reasons to discount Dr. Ochoa’s 19 opinion. (Doc. 18 at 29-33). Plaintiff claims the ALJ “harmfully and erroneously cherry-picks 20 citations findings in the one-time physical CE examination” performed by Dr. Sachdeva. Id. at 21 31. Plaintiff contends the ALJ mischaracterized “citations to ‘Exhibit 4F’” because it is a 22 gynecological examination and not an applicable orthopedic evaluation. Id. at 32. 23 Plaintiff asserts the ALJ’s physical RFC is not supported by substantial evidence as it is not based 24 on any treating, examining, or reviewing physician. Id. at 32. Plaintiff claims the ALJ 25 improperly interpreted medical data to develop the RFC at issue. Id. at 32-33. 26 In response, Defendant argues the ALJ reasonably gave little weight to Dr. Ochoa’s 27 opinion of disabling physical limitations. (Doc. 19 at 10). Defendant claims Dr. Ochoa’s 28 opinions were inconsistent with the totality of the evidence. Id. Defendant argues the ALJ 1 provided objective findings that did not support Dr. Ochoa’s restrictive limitations in areas such 2 as lifting, standing, and walking. Id. at 10-11. Defendant avers the ALJ is not required to base 3 the RFC finding on a physician’s opinion and it was the responsibility of the ALJ to determine the 4 RFC. Id. 5 The Court finds the ALJ has failed to provide specific and legitimate reasons to discount 6 the opinion of examining physician Dr. Ochoa. Like Dr. Yadegar, the ALJ provided a 7 “boilerplate” explanation in assessing the opinions of Drs. Ochoa, Sachdeva, and Lebeau. AR at 8 46-48. For the same reasons articulated above in connection with finding the ALJ’s treatment of 9 Dr. Yadegar’s opinion was erroneous, his use of boilerplate language as to Dr. Ochoa is not 10 sufficiently specific. Supra 19. 11 The ALJ assigned Drs. Ochoa and Sachdeva’s opinions little weight and, with verbatim 12 supporting language, assigned Dr. Lebeau’s opinion partial weight. Id. at 46-47. The ALJ’s 13 opinion does not indicate why Dr. Ochoa was assigned less weight than Dr Lebeau, beyond the 14 conclusory statements that Dr. Ochoa’s “opinions are inconsistent with the totality of the 15 evidence received at the hearing level[,]” and Dr. Lebeau’s opinion, “to the extent [] is consistent 16 with the totality of the evidence received at the hearing level. Id. It was the ALJ’s burden to 17 identify and resolve this discrepancy. Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984); see 18 Gray v. Comm’r of SSA, 365 Fed. App’x 60, 62 (9th Cir. 2010) (“When medical records are at 19 odds with each other or in any way conflict, it is the ALJ’s role to assess and resolve conflicting 20 medical evidence”). Although the ALJ “summarizes” the physical evidence of record (AR at 43- 21 44), the ALJ fails to identify why these findings do support Dr. Ochoa’s opinion. The Court 22 cannot speculate as to what evidence received at the hearing level that the ALJ used to assign Dr. 23 Ochoa’s little weight and Dr. Lebeau more. Accordingly, the Court cannot find that the ALJ 24 provided specific and legitimate reasons supported by substantial evidence to discount Dr. 25 Ochoa’s opinion. 26 3. NP Desai 27 As a threshold matter, the Court must determine whether NP Desai qualifies as an 28 accepted medical source opinion. Under the regulations, applicable to this case, only “licensed 1 physicians and certain qualified specialists” are considered acceptable medical sources. 20 2 C.F.R. § 404.1513(a); see Molina, 674 F.3d at 1111. Nurse practitioners and physician assistants 3 are “other sources” for claims filed before March 27, 2017. Dale v. Colvin, 823 F.3d 941, 943 4 (9th Cir. 2016). “Other sources cannot establish the existence of a medically determinable 5 impairment” but can provide “special knowledge of the individual and…insight into the severity 6 of the impairment(s) and how it affects the individual’s ability to function.” SSR 06-03P, 2006 7 WL 2329939, at *2 (2006). Opinions from “other sources” may be discounted provided the ALJ 8 identifies reasons germane to each source for doing so. See Popa v. Berryhill, 872 F.3d 901, 906 9 (9th Cir. 2017). 10 Plaintiff argues NP Desai should be treated as an accepted medical source opinion. (Doc. 11 18 at 20, n. 5). Plaintiff cites to Benton v. Barnhart, and Gomez v. Chater, for the proposition 12 that, as a member of a treatment team under the supervision of Dr. Dawn Risely, she should be 13 afforded deference under the treating physician rule. Id. (citing Gomez v. Chater, 74 F.3d 967, 14 971 (9th Cir. 1996), Benton v. Barnhart, 331 F.3d 1030 (9th Cir. 2003)). 15 The Court finds Gomez is distinguishable from this case. In Gomez, the Ninth Circuit 16 held that “other” sources constitute an acceptable medical source where they work in conjunction 17 with a physician as part of an interdisciplinary team. 74 F.3d at 971.6 To trigger this exception 18 there must be evidence of close supervision that the “other source” on the team in essence 19 becomes the agent of the acceptable medical source. E.g., Ramierz v. Astrue, 803 F. Supp. 2d 20 1075, 1081 (C.D. Cal. 2011). 21 On January 27, 2017, Dr. Risely saw Plaintiff for treatment at Fresno County Mental 22 Health. AR at 631-32. Dr. Risely noted Plaintiff had difficulty communicating, completing 23 sentences, was disorganized, and claimed she was hearing voices. Id. at 631. Dr. Risely found 24 Plaintiff’s orientation, intelligence, insight, and judgment were normal, but she was also 25 6 The subsection of the regulation providing the basis for the Gomez holding was deleted by an amendment in 2000, and an “interdisciplinary team” was removed from the definition of 26 “acceptable medical sources.” Vasquez v. Kijakazi, No. 1:20-cv-00680-SKO, 2022 WL 827002, 27 at *9 (E.D. Cal. Mar. 18, 2022) (collecting cases). The Ninth Circuit has not directly addressed whether Gomez remains good law. Id. The Court finds it unnecessary to address the question of 28 Gomez’s applicability because the case is distinguishable from this matter. 1 suspicious, alert, depressed, anxious, and blunted. Id. Dr. Risely was unable to diagnose Plaintiff 2 and expressed concern about “methamphetamine intoxication.” Id. at 632. Dr. Risely prescribed 3 Plaintiff Zyprexa. Id. 4 Plaintiff saw Dr. Risely for a second time on March 27, 2017. Id. at 685-86. Dr. Risely 5 noted Plaintiff had been provided Prozac by her primary care physician. Id. at 685. Dr. Risely 6 reported Plaintiff felt better on the Prozac, but she was not compliant with her administration of 7 medications on a regular basis. Id. Dr. Risely found Plaintiff was disorganized and “her voices 8 are exacerbating” after taking Prozac. Id. Dr. Risely noted Plaintiff was cooperative, alert, with 9 normal speech, orientation, insight, judgment, but also malodorous, anxious, and blunted. Id. Dr. 10 Risely expressed concerns that Plaintiff was using illicit substances. Id. at 686. Dr. Risely 11 continued Plaintiff’s prescription for Zyprexa and advised against continuing the Prozac provided 12 by her primary care physician. Id. 13 Apart from these two sessions with Dr, Risely, Plaintiff primarily was treated by NP Desai 14 at Fresno County Mental Health. NP Desai’s treatment notes and opinions do not demonstrate 15 that Dr. Risely closely supervised NP Desai, consulted with NP Desai, or otherwise had an 16 agency relationship with NP Desai. Id. at 672-75, 679-82, 885-86, 890-95, 904-08, 952-57. 17 Moreover, the mental impairment questionaries submitted by NP Desai setting forth her opinion 18 regarding Plaintiff’s limitations were not signed by Dr. Risely. Id. at 672-75, 679-82, 885-86, 19 890-95, 904-08; see Mack v. Astrue, 918 F. Supp. 2d 975, 983 (N.D. Cal. 2013) (finding that a 20 social worker was not an acceptable medical source where the mental impairment questionnaire at 21 issue was prepared and signed by only the social worker); cf. Swanson v. Comm'r of Soc. Sec. 22 Admin., 274 F. Supp. 3d 932, 936-37 (D. Ariz. 2017) (finding nurse practitioner to be an 23 acceptable medical source where the supervising physician co-signed the medical source 24 statement prepared by the nurse practitioner). Accordingly, Gomez does not support Plaintiff’s 25 position. 26 Similarly, Benton does not apply to this case. In Benton, the Court held in determining 27 whether a physician or other acceptable medical source should be considered a treating physician 28 with the associated presumption of controlling weight, “[i]t is not necessary, or even practical, to 1 draw a bright line distinguishing a treating physician from a non-treating physician.” 331 F.3d at 2 1038 (quoting Ratto v. Sec’y of Health and Human Servs., 839 F. Supp. 1415, 1425 (D. Or. 3 1993)). “Rather, the relationship is better viewed as a series of points on a continuum reflecting 4 the duration of the treatment relationship and the frequency and nature of the contact.” Id. Thus, 5 under Benton, to even be considered a treating physician, the source has to be a physician or other 6 acceptable medical source. (emphasis added). A nurse practitioner does not fall within the ambit 7 of “acceptable medical sources.” Cf. Braggs v. Comm’r of Soc. Sec., No. 1:19-cv-1135-HBK 8 (SS), 2021 WL 4129657, at *3 (E.D. Cal. Sep. 10, 2021) (finding Benton inapplicable to a 9 chiropractor). Accordingly, the Court concludes that the ALJ needed to give only a germane 10 reason for rejecting NP Desai’s opinion, given she is not an “accepted medical source.” 11 As discussed above, the ALJ assigned “little weight” to the opinion of NP Desai because 12 the opinion was “inconsistent with the totality of the evidence received at the hearing level.” AR 13 at 47. Then, the ALJ repeated word for word the same reasoning and cited the same exhibits he 14 provided in evaluating five other opinions. Id. at 45-49. While the Court has already addressed 15 that this reasoning was neither specific nor legitimate in discounting Dr. Yadegar’s opinion, supra 16 19-20, the Court finds that the ALJ’s reasoning is adequate to reject NP Desai’s opinion. 17 A conflict with treatment notes or inconsistency with the medical record as a whole are 18 germane reasons to reject an “other source” opinion. Ghanim v. Colvin, 763 F.3d 1154, 1161 (9th 19 Cir. 2014). Here, the ALJ presented evidence that Plaintiff was oriented (AR at 559, 666, 952), 20 had organized thought processes (id. at 952, 954, 956), normal cognition (id. at 954, 956), normal 21 insight and judgment (id. 677, 679, 952, 954, 956), intact memory (id. 560, 666, 986), that she 22 was cooperative (id. at 559, 666, 667, 679), made good eye contact (id. at 679, 952, 956), and was 23 friendly (id. at 954). The Court finds this evidence was a germane reason supported by 24 substantial evidence to discount NP Desai’s opinion. 25 Plaintiff argues when rejecting NP Desai’s multiple mental RFC findings, the ALJ failed 26 to discuss “additional significant objective [mental state examination] findings” in treatment 27 records from Fresno Behavioral Health, records from Plaintiff’s involuntary psychiatric holds, or 28 how the findings from Dr. Portnoff comport with NP Desai’s findings. (Doc. 18 at 25-27). 1 However, since the ALJ has provided a germane reason for discounting NP Desai’s opinion, the 2 ALJ did not err in failing to address Plaintiff’s alternative evidence. Therefore, the Court finds 3 that the ALJ properly evaluated NP Desai’s opinion. 4 * * * * * 5 Given the limitations and diagnoses of Drs. Yadegar and Ochoa that were to be given 6 “controlling” weight by the ALJ, the Court cannot find the above errors harmless and, instead, 7 concludes that a different disability determination could have been reached had the opinions been 8 afforded the appropriate weight. See Tommasetti, 533 F.3d at1038 (error may be harmless only if 9 “inconsequential” to disability determination). 10 B. Whether the ALJ Erred by Failing to Provide “Clear and Convincing 11 Reasons for Rejecting Plaintiff’s Symptomology Evidence. 12 Because the Court finds reversal is warranted, the undersigned declines to adjudicate 13 Plaintiff’s separate claim of error regarding the ALJ’s evaluation of Plaintiff’s subjective 14 complaints. See Marcia v. Sullivan, 900 F.2d 172, 177 n.6 (9th Cir. 1990) (“Because we reverse, 15 we do not reach the other arguments raised.”); see also Hiler v. Astrue, 687 F.3d 1208, 1212 (9th 16 Cir. 2012) (same); Augustine ex rel. Ramirez v. Astrue, 536 F. Supp. 2d 1147, 1153 n.7 (C.D. Cal. 17 2008) (“[The] Court need not address the other claims plaintiff raises, none of which would 18 provide plaintiff with any further relief than granted, and all of which can be addressed on 19 remand.”); Pendley v. Heckler, 767 F.2d 1561, 1563 (11th Cir. 1985) (per curiam) (“Because the 20 ‘misuse of the expert’s testimony alone warrants reversal,’ we do not consider the appellant's 21 other claims.”). 22 V. REMEDY 23 The decision whether to remand a matter pursuant to sentence four of 42 U.S.C. § 405(g) 24 or to order immediate payment of benefits is within the discretion of the district court. Harman v. 25 Apfel, 211 F.3d 1172, 1178 (9th Cir. 2000). Plaintiff requests the Court remand this case for 26 payment of benefits based on the credit-as-true rule. (Doc. 18 at 37). Generally, an award of 27 benefits is directed when: 28 / / / 1 (1) the ALJ has failed to provide legally sufficient reasons for rejecting such evidence, (2) there are no outstanding issues that must be resolved before a determination of 2 disability can be made, and (3) it is clear from the record that the ALJ would be required to find the claimant disabled were such evidence credited. 3 4 Smolen, 80 F.3d at 1292. In addition, an award of benefits is directed where no useful purpose 5 would be served by further administrative proceedings, or where the record is fully developed. 6 Varney v. Sec’y of Health & Human Serv., 859 F.2d 1396, 1399 (9th Cir. 1998). Even if all the 7 conditions for an award of benefits are met, the Court nevertheless retains “flexibility to remand 8 for further proceedings when the record as a whole creates serious doubt as to whether the 9 claimant is, in fact, disabled within the meaning of the Social Security Act.” Garrison, 759 F.3d 10 at 1021; see Dominguez v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015). 11 Defendant argues “there are outstanding issues that would need to be addressed and there 12 is serious doubt as to Plaintiff’s disability, precluding an award of benefits.” (Doc. 19 at 15). 13 Defendant contends there are significant inconsistencies in the medical record that require further 14 administrative proceedings. Id. 15 The Court finds that based on the ALJ’s opinion and the Court’s review of the record, 16 serious doubts exist as to whether Plaintiff is in fact disabled due to her mental and physical 17 impairments. The Court orders this action remanded for further administrative proceedings 18 consistent with this opinion, and to further develop the record as deemed necessary. 19 VI. CONCLUSION AND ORDER 20 Based on the foregoing, the Court finds that the ALJ erred in failing to provide specific 21 and legitimate reasons supported by substantial evidence in the record to discount Drs. Yadegar 22 and Ochoa’s opinions. Accordingly, IT IS HEREBY ORDERED: 23 1. Plaintiff’s motion for summary judgment (Doc. 18) is GRANTED; 24 2. That the decision of the Commissioner is reversed, and this matter is remanded 25 back to the Commissioner of Social Security for further proceedings consistent 26 with this order; and 27 3. The Clerk of Court is DIRECTED to enter judgment in favor of Plaintiff Maxine 28 1 Martinez and against Defendant Martin O’Malley, Commissioner of the Social 2 Security Administration. 3 | IT IS SO ORDERED. “| Dated: _May 29, 2024 | hr 5 UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 30