Bunting v. Berryhill ( 2020 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 SUZAN LYNN BUNTING, Case No. 18-cv-05402-KAW 8 Plaintiff, ORDER GRANTING PLAINTIFF'S 9 v. MOTION FOR SUMMARY JUDGMENT; DENYING 10 NANCY A. BERRYHILL, DEFENDANT'S CROSS-MOTION FOR SUMMARY JUDGMENT 11 Defendant. Re: Dkt. Nos. 15, 18 12 13 Plaintiff Suzan Lynn Bunting seeks judicial review, pursuant to 42 U.S.C. § 405(g), of the 14 Commissioner’s final decision, and the remand of this case for payment of benefits, or, in the 15 alternative, for further proceedings. 16 Pending before the Court is Plaintiff’s motion for summary judgment and Defendant’s 17 cross-motion for summary judgment. Having considered the papers filed by the parties, and for 18 the reasons set forth below, the Court GRANTS Plaintiff’s motion for summary judgment, and 19 DENIES Defendant’s cross-motion for summary judgment. 20 I. BACKGROUND 21 Plaintiff filed for Title II and Title XVI benefits on September 26, 2014. (Administrative 22 Record (“AR”) 233, 235.) Plaintiff asserted disability beginning April 25, 2011. (AR 45.) The 23 Social Security Administration (“SSA”) denied Plaintiff’s application initially and on 24 reconsideration (AR 92, 125.) Plaintiff then requested a hearing before an Administrative Law 25 Judge (“ALJ”); the hearing was held on April 26, 2017. (AR 30.) 26 Following the hearing, the ALJ denied Plaintiff’s application on August 30, 2017. (AR 13- 27 24.) A request for review of the ALJ’s decision was filed with the Appeals Council on October 1 2018. (AR 1.) On September 3, 2018, Plaintiff commenced this action for judicial review 2 pursuant to 42 U.S.C. § 405(g). (Compl., Dkt. No. 1.) 3 Plaintiff filed her motion for summary judgment on January 24, 2019. (Pl.’s Mot., Dkt. 4 No. 15.) Defendant filed an opposition and cross-motion for summary judgment on March 25, 5 2019. (Def.’s Opp’n, Dkt. No. 18.) Plaintiff filed her reply on April 22, 2019. (Pl.’s Reply, Dkt. 6 No. 21.) 7 II. LEGAL STANDARD 8 A court may reverse the Commissioner’s denial of disability benefits only when the 9 Commissioner's findings are 1) based on legal error or 2) are not supported by substantial 10 evidence in the record as a whole. 42 U.S.C. § 405(g); Tackett v. Apfel, 180 F.3d 1094, 1097 11 (9th Cir. 1999). Substantial evidence is “more than a mere scintilla but less than a 12 preponderance”; it is “such relevant evidence as a reasonable mind might accept as adequate to 13 support a conclusion.” Id. at 1098; Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996). In 14 determining whether the Commissioner's findings are supported by substantial evidence, the 15 Court must consider the evidence as a whole, weighing both the evidence that supports and the 16 evidence that detracts from the Commissioner's conclusion. Id. “Where evidence is susceptible 17 to more than one rational interpretation, the ALJ's decision should be upheld.” Ryan v. Comm'r 18 of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008). 19 Under Social Security Administration (“SSA”) regulations, disability claims are evaluated 20 according to a five-step sequential evaluation. Reddick v. Chater, 157 F.3d 715, 721 (9th Cir. 21 1998). At step one, the Commissioner determines whether a claimant is currently engaged in 22 substantial gainful activity. Id. If so, the claimant is not disabled. 20 C.F.R. § 404.1520(b). At 23 step two, the Commissioner determines whether the claimant has a “medically severe impairment 24 or combination of impairments,” as defined in 20 C.F.R. § 404.1520(c). Reddick, 157 F.3d 715 at 25 721. If the answer is no, the claimant is not disabled. Id. If the answer is yes, the Commissioner 26 proceeds to step three, and determines whether the impairment meets or equals a listed impairment 27 under 20 C.F.R. § 404, Subpart P, Appendix 1. 20 C.F.R. § 404.1520(d). If this requirement is 1 If a claimant does not have a condition which meets or equals a listed impairment, the 2 fourth step in the sequential evaluation process is to determine the claimant’s residual functional 3 capacity (“RFC”) or what work, if any, the claimant is capable of performing on a sustained basis, 4 despite the claimant’s impairment or impairments. 20 C.F.R. § 404.1520(e). If the claimant can 5 perform such work, he is not disabled. 20 C.F.R. § 404.1520(f). RFC is the application of a legal 6 standard to the medical facts concerning the claimant's physical capacity. 20 C.F.R. § 404.1545(a). 7 If the claimant meets the burden of establishing an inability to perform prior work, the 8 Commissioner must show, at step five, that the claimant can perform other substantial gainful 9 work that exists in the national economy. Reddick, 157 F.3d 715 at 721. The claimant bears the 10 burden of proof at steps one through four. Bustamante v. Massanari, 262 F.3d 949, 953-954 (9th 11 Cir. 2001). The burden shifts to the Commissioner at step five. Id. at 954. 12 III. DISCUSSION 13 Plaintiff challenges the ALJ’s decision on five grounds: (1) the ALJ improperly rejected 14 Plaintiff’s testimony, (2) the ALJ improperly rejected lay witness testimony, (3) the ALJ 15 improperly rejected the opinions of Plaintiff’s treating doctors, (4) the ALJ improperly rejected the 16 opinion of Plaintiff’s therapist, and (5) the ALJ failed to include limitations on Plaintiff’s ability to 17 concentrate, persist, and maintain pace in the RFC.1 18 A. Plaintiff’s Testimony 19 In the absence of affirmative evidence of malingering, the ALJ may reject a claimant’s 20 testimony by offering clear and convincing reasons for doing so. Tommasetti v. Astrue, 533 F.3d 21 1035, 1039 (9th Cir. 2008). In weighing a claimant’s credibility, an ALJ may consider “the 22 claimant’s daily activities.” Id. (internal quotation omitted). “Daily activities can form the basis 23 of an adverse credibility finding where the claimant’s activities (1) contradict her other testimony 24 25 1 Plaintiff also argues that because the ALJ’s decision is based on a defective RFC and vocational hypothetical, it is not supported by substantial evidence. (Pl.’s Mot. at 24-25.) This argument is 26 dependent on Plaintiff succeeding on her other arguments, and therefore will not be discussed separately. (See id. at 25 (Here, the ALJ’s RFC findings and vocational hypotheticals failed o 27 include limitations established by Ms. Bunting’s improperly rejected testimony, the improperly 1 or (2) meet the threshold for transferable work skills.” Sabin v. Astrue, 337 Fed. Appx. 617, 620 2 (9th Cir. 2009) (citing Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007). 3 First, Plaintiff argues that the ALJ erred in rejecting her testimony because the ALJ failed 4 to identify the specific testimony he found not credible. (Pl.’s Mot. at 12-13.) The Court 5 disagrees. Contrary to Plaintiff’s assertion that the ALJ simply provided a “seriatim list of [her] 6 activities and declare[d] them to be inconsistent with disability,” the ALJ cited to Plaintiff’s 7 testimony in explaining the inconsistencies. For example, the ALJ contrasted Plaintiff’s testimony 8 regarding her fatigue with the fact that she exercises regularly, including walking and bicycling. 9 (AR 19.) The ALJ also noted that Plaintiff was able to babysit her nieces and nephews. Likewise, 10 with respect to her assertions that she had a significant social impairment, the ALJ pointed to 11 Plaintiff’s activities including babysitting her nieces and nephews, volunteering for a senior 12 woman, socializing with friends and family, regular exercise, and her plans to attend a Norwegian 13 Folk Art conference. (AR 19.) 14 Plaintiff contends that the Ninth Circuit “has repeatedly asserted the mere fact that a 15 plaintiff has carried on certain daily activities . . . does not in any way detract from her credibility 16 as to her overall disability. One does not need to be ‘utterly incapacitated’ in order to be 17 disabled.” Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001). Plaintiff, however, alleged 18 significant limitations that were contradicted by these activities. For example, Plaintiff testified 19 that she “had no energy to do anything,” yet was walking thirty to sixty minutes every day.2 (AR 20 52, 507.) While walking for this amount of time may not by itself be sufficient for an adverse 21 credibility finding, when contrasted with testimony that Plaintiff could not do anything, the ALJ 22 could reasonably find an inconsistency. Likewise, Plaintiff testified that she had social anxiety 23 and no friends, which is contradicted by her testimony that she babysat, volunteered for an older 24 woman, socialized with her friends and family, and planned on going to a folk art conference that 25 2 Plaintiff correctly observes that the ALJ erroneously stated that Plaintiff “reported aerobic 26 exercise more than 20 minutes three times a day,” when Plaintiff actually reported aerobic exercises of “[m]ore than 20 minutes 3x/week.” (Pl.’s Mot. at 14; AR 20, 527.) This error, 27 however, is harmless, as the ALJ could still find that Plaintiff was not credible based on Plaintiff’s 1 would, presumably, require significant social interaction. (See AR 56.) Again, while Plaintiff 2 argues that these are not social interactions that would be sufficient in a workplace, the issue is 3 that Plaintiff’s actual activities were inconsistent with her testimony regarding her social anxiety, 4 and therefore the ALJ could find her not credible. 5 Plaintiff also challenges the ALJ’s finding that Plaintiff was not credible because her 6 “treatment has been essentially routine and/or conservative . . . . [Plaintiff] uses over the counter 7 pain medication, a TENS unit for back pain, and gabapentin for neuropathic pain.” (Pl.’s Mot. at 8 15; AR 19.) Citing to Tenth Circuit precedent, Plaintiff contends that this was improper because 9 there was no evidence that other treatments could have been prescribed. (Id.) In general, 10 however, “evidence of ‘conservative treatment’ is sufficient to discount a claimant’s testimony 11 regarding severity of an impairment.” Parra v. Astrue, 481 F.3d 742, 751 (9th Cir. 2007). Courts 12 in this Circuit have found over the counter pain medication, a TENS unit, and gabapentin to be 13 conservative treatment. See Findley v. Saul, 2019 U.S. Dist. LEXIS 147761, at *26 (E.D. Cal. 14 Aug. 28, 2019) (finding a TENS unit to be conservative treatment); Hesketh v. Berryhill, Case No. 15 15-cv-2396-SB, 2017 U.S. Dist. LEXIS 78167, at *18 (D. Ore. May 23, 2017) (finding 16 Gabapentin to be conservative treatment); Cardenas v. Berryhill, Case No. EDCV17-1525-AFM, 17 2018 U.S. Dist. LEXIS 63816, at *7 (C.D. Cal. Apr. 16, 2018) (finding that treatment with over- 18 the-counter medication and gabapentin was conservative). Thus, the ALJ could use evidence of 19 Plaintiff’s conservative treatment to discount her testimony. 20 Finally, Plaintiff argues that the ALJ should not have discounted Plaintiff’s testimony 21 based on her “reported improvement with ADHD and depression with medications.” (Pl.’s Mot. 22 at 15; AR 19.) The Court agrees that the ALJ erred, as the Ninth Circuit has “emphasized [that] 23 while discussing mental health issues, it is error to reject a claimant’s testimony merely because 24 symptoms wax and wane in the curse of treatment. Cycles of improvement and debilitating 25 symptoms are a common occurrence, and in such circumstances it is error for an ALJ to pick out a 26 few isolated instances of improvement over a period of months or years and to treat them as a 27 basis for concluding a claimant is capable of working.” Garrison v. Colvin, 759 F.3d 995, 1017 1 and bouts of remission, and thereby chart a course of improvement . . . .” Id. at 1018. Here, the 2 ALJ only identified records, without specific pin cites to where Plaintiff showed improvement, 3 and did not discuss her progress or her general course of treatment. The Court, however, finds this 4 error harmless, as the ALJ already identified other clear and convincing reasons for discounting 5 Plaintiff’s testimony. 6 B. Lay Testimony 7 “Lay testimony as to a claimant’s symptoms on how an impairment affects the claimant’s 8 ability to work is competent evidence that the ALJ must take into account.” Molina v. Astrue, 674 9 F.3d 1104, 1114 (9th Cir. 2012). “[T]o discount competent lay witness testimony, the ALJ must 10 give reasons that are germane to each witness,” although the ALJ is not required to “discuss every 11 witness’s testimony on a individualized, witness-by-witness basis. Rather, if the ALJ gives 12 germane reasons for rejecting testimony by one witness, the ALJ need only point to those reasons 13 when rejecting similar testimony by a different witness.” Id. (internal quotation omitted). Further, 14 “[w]here lay witness testimony does not support any limitations not already described by the 15 claimant, and the ALJ’s well-supported reasons for rejecting the claimant’s testimony apply 16 equally well to the lay witness testimony, it would be inconsistent with our prior harmless error 17 precedent to deem the ALJ’s failure to discuss the lay witness testimony to be prejudicial per se.” 18 Id. at 117. 19 Plaintiff argues that the ALJ erred in rejecting the third-party statements of Joanne Cooper, 20 Plaintiff’s sister, and Alexandra Brown, Plaintiff’s friend. (Pl.’s Mot. at 17-18.) Plaintiff does not 21 contend that either lay witness testimony supports limitations not already described by Plaintiff. 22 Rather, Plaintiff argues that the ALJ did not provide valid reasons to reject their testimony, 23 pointing to the ALJ’s failure to validly reject Plaintiff’s testimony. 24 As discussed above, however, the ALJ did provide valid reasons for rejecting Plaintiff’s 25 testimony. Those reasons apply equally well to the lay witness testimony. For example, Ms. 26 Cooper stated that Plaintiff appeared to have no “social contacts for the past several years except 27 for a close friend whom she only sees occasionally.” (AR 374.) Such testimony is contradicted 1 walking with her friend in the evenings. (AR 19; see also AR 552.) Indeed, Ms. Brown herself 2 testified that she saw Plaintiff weekly. (AR 283.) Likewise, Ms. Brown stated that Plaintiff was 3 too ill to leave her house on most days, and would only go outside twice a week to walk her dogs. 4 (AR 283, 286.) This was contradicted by Plaintiff’s daily activities, which include walking thirty 5 to sixty minutes a day. (AR 19.) Accordingly, the Court finds no error because “the ALJ’s well- 6 supported reasons for rejecting the claimant’s testimony apply equally well to the lay witness 7 testimony.” Molina, 674 F.3d at 1117. 8 C. Improper Rejection of Medical Opinions 9 The court “distinguish[es] among the opinions of three types of physicians: (1) those who 10 treat the claimant (treating physicians); (2) those who examine but do not treat the claimant 11 (examining physicians); and (3) those who neither examine nor treat the claimant (nonexamining 12 physicians).” Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). “As a general rule, more weight 13 should be given to the opinion of a treating source than to the opinion of doctors who do not treat 14 the claimant.” Id. (citing Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1987). “At least where 15 the treating doctor’s opinion is not contradicted by another doctor, it may be rejected only for 16 ‘clear and convincing reasons.’” Id. (quoting Baxter v. Sullivan, 923 F.2d 1391, 1396 (9th Cir. 17 1991)). If a treating physician’s medical opinion is contradicted by another doctor, the ALJ must 18 identify specific legitimate reasons supported by substantial evidence to give more weight to the 19 non-treating doctor’s opinion. Id. 20 i. Dr. Wilson 21 Jennifer Wilson, M.D., is Plaintiff’s treating physician, and had treated Plaintiff since 22 January 7, 2016. (AR 475.) On April 3, 2017, Dr. Wilson filled out a Medical Source Statement, 23 in which she opined that Plaintiff was not capable of performing sustained sedentary work or light 24 work on a regular and continuing basis. (AR 472-473.) Dr. Wilson also stated that her opinion 25 would not change even if Plaintiff had the freedom to alternate sitting and standing during the 26 workday. (AR 473.) Dr. Wilson further opined that Plaintiff had moderately severe limitations on 27 her ability to maintain attention and concentration for extended periods, to perform activities 1 workweek without interruptions from medically based symptoms. (AR 474.) At the end of the 2 Medical Source Statement, Dr. Wilson explained that Plaintiff not only suffered from chronic 3 Lyme disease, pain, fatigue, and poor concentration, but that she also had significant depression 4 and attention deficit disorder. (AR 475.) Dr. Wilson noted that Plaintiff was working with a 5 psychiatric nurse practitioner for medical management and coping skills, but that she still suffered 6 from chronic daily pain and debilitating fatigue that prevented her from seeking or sustaining 7 gainful employment. (AR 475.) 8 The ALJ gave little weight to Dr. Wilson’s opinion “because the limitations are too 9 extreme, and the opinions is not consistent with or supported by the unremarkable treatment notes 10 from Dr. Wilson at Exhibit 10F. She has also had a limited treating relationship.” (AR 20.) 11 Plaintiff argues that the ALJ erred by only considering the records at Exhibit 10F, which 12 covered only two of Plaintiff’s visits with Dr. Wilson on January 6, 2016 and January 28, 2016. 13 (Pl.’s Mot. at 19.) The Court agrees. As an initial matter, the Court observes that it is unclear how 14 Dr. Wilson’s notes from these visits were “unremarkable.” Dr. Wilson’s January 6, 2016 15 treatment notes observed that Plaintiff reported spine and joint pain, causing her to wake up ten 16 times a night in order to move her legs. (AR 482.) Plaintiff also reported itchy red eruptions on 17 her scalp, fatigue, memory loss, insomnia, muscle cramps, joint pain, and anxiety. (AR 482-83.) 18 Likewise, Dr. Wilson’s January 28, 2016 treatment notes stated that Plaintiff felt sick after 19 showering or bathing, felt like she had no memory or recall after contracting Lyme disease, and 20 struggled to keep track of time. (AR 477.) 21 Even if the treatment notes from these first two visits were unremarkable, the ALJ ignored 22 the treatment notes from Plaintiff’s later visits with Dr. Wilson, which were closer in time to Dr. 23 Wilson’s April 3, 2017 Medical Source Statement. For example, during a May 16, 2016 visit, 24 Plaintiff reported she had pain in her back to the point that she could not stand. (AR 519.) Dr. 25 Wilson assessed major depression, chronic pain syndrome, migraines, post-Lyme disease 26 syndrome, and ADHD. (AR 520.) During the July 19, 2016 visit, Dr. Wilson stated that Plaintiff 27 “feels like her body is fighting everything she is trying to do” and that she “has horrible back 1 little interest or pleasure in doing things, feeling depressed or hopeless, having sudden feelings of 2 fear or panic, having trouble sleeping in the past two weeks, and having felt like she would be 3 better off dead more than half the days. (AR 515-16.) Dr. Wilson assessed chronic pain 4 syndrome, low back pain, major depression, migraine, ADHD, memory change, and dysuria. (AR 5 516.) Such treatment notes are not “unremarkable,” and would support Dr. Wilson’s April 3, 2017 6 opinion. 7 Plaintiff also challenges the ALJ’s characterization of Dr. Wilson’s treating relationship as 8 “limited,” given that Dr. Wilson was Plaintiff’s primary care physician and had treated her for 9 over a year. (Pl.’s Mot. at 19.) Defendant responds that Dr. Wilson’s treating relationship had 10 been approximately fifteen months, but cites no authority that a fifteen-month treating relationship 11 is so “limited” that it alone can be a specific legitimate reason to give a treating physician’s 12 opinion little weight. 13 Defendant further argues that the ALJ could properly reject Dr. Wilson’s opinions as 14 lacking sufficient objective support, pointing to Plaintiff’s normal examination results and the 15 ALJ’s reliance on the state agency reviewing psychologists’ opinions. (Defs.’ Opp’n at 11-13.) 16 The ALJ, however, did not rely on these reasons for rejecting Dr. Wilson’s opinion. Defendant 17 cannot use post hoc rationales to justify the ALJ’s conclusion. See Bray v. Comm’r of Soc. Sec. 18 Admin., 554 F.3d 1219, 1225 (9th Cir. 2009) (“Long-standing principles of administrative law 19 require us to review the ALJ’s decision based on the reasoning and factual findings offered by the 20 ALJ -- not post hoc rationalizations that attempt to intuit what the adjudicator may have been 21 thinking”). 22 Accordingly, the Court finds that the ALJ failed to identify a specific legitimate reason for 23 giving Dr. Wilson’s opinion little weight. 24 ii. Dr. Cain 25 Janet Cain, PhD, examined Plaintiff for a psychological consultative evaluation in 26 December 2014. (AR 21, 449.) Dr. Cain found that Plaintiff was moderately depressed and had 27 high anxiety, and that she appeared to have significant attentional issues during the assessment. 1 moderately to significantly impaired in daily living and independent living. (AR 450.) Dr. Cain 2 opined that Plaintiff’s intellect was sufficiently intact to understand, carry out, and remember very 3 simple instructions, but that she would have difficulty with more complicated instructions and 4 changes in the routine work setting. (AR 451.) Plaintiff would also have difficulty with 5 attendance given her significant health issues, and would have difficulty responding appropriately 6 to coworkers, supervisors, and the general public secondary to mental health issues that could be 7 related to Plaintiff’s Lyme disease. (AR 451.) 8 In reviewing Dr. Cain’s opinion, the ALJ observed that “[a]lthough the examiner noted the 9 claimant’s daily living and independent living skills were moderately to significantly impaired 10 from prior level of functioning, she also wrote that the claimant did basic chores around the 11 house.” (AR 21.) The ALJ ultimately gave Dr. Cain’s opinion partial weight because it was “not 12 fully consistent with the record.” (AR 21.) While he gave weight to the finding of severe mental 13 impairments, he found that assessed limitations beyond the RFC were “not supported or consistent 14 with the normal mental status examinations in the treatment record or the mental functioning 15 activities necessary to perform claimant’s volunteer work or other reported activities as discussed 16 above.” (AR 21.) 17 Plaintiff argues that the ALJ erred because not all of the mental status examinations 18 referred to by the ALJ were normal. (Pl.’s Mot. at 21.) The Court finds no error. The ALJ did 19 not state that every mental status examination was normal, although the majority were, including 20 the four most recent exams between October 31, 2016 and April 5, 2017. (AR 543, 546, 550, 21 552.) While there were several mental status examinations prior to October 31, 2016 that 22 indicated depressed mood or sad affect, the ALJ could reasonably find an inconsistency given the 23 many normal mental status examinations during that same period. (See AR 556, 561, 565, 570, 24 575, 577; see Hansen v. Berryhill, Case No. C17-5379-MAT, 2018 U.S. Dist. LEXIS 19489, at 25 *17 (W.D. Wash. Feb. 6, 2018) (finding no error in giving less weight to an examining physician 26 where “most of the mental status examination findings were normal”); Rebecca Louise Q. v. 27 Comm’r of Soc. Sec., No: 2:17-CV-380-FVS, 2019 U.S. Dist. LEXIS 51875, at *15-16 (E.D. 1 most mental status exam findings were essentially normal”).) 2 Plaintiff also challenges the ALJ’s finding that Plaintiff’s volunteer and other daily 3 activities were inconsistent with Dr. Cain’s opinions. The Court disagrees. A conflict between a 4 doctor’s opinion and a claimant’s daily activities “may justify rejecting a . . . provider’s opinion.” 5 Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014). Here, for example, Dr. Cain found that 6 Plaintiff was moderately to significantly impaired in her daily living and independent living skills, 7 which the ALJ found inconsistent with Plaintiff’s activities previously described in the ALJ’s 8 opinion, including that Plaintiff lived on her own, took care of her dogs, handled her personal care, 9 prepared her own meals, and did laundry and other household chores. (AR 18-19, 21, 450.) 10 Accordingly, the Court finds that the ALJ identified specific and legitimate reasons for 11 discounting Dr. Cain’s opinions. 12 D. Ms. Voska 13 Michele Voska, MFT, is Plaintiff’s treating therapist. (AR 470.) On April 5, 2017, Ms. 14 Voska wrote an evaluation, stating that Plaintiff’s social functioning had diminished over the past 15 six months and that her depression made it difficult to interact with people. (AR 470.) Plaintiff 16 reported debilitating depression and anxiety, which made it extremely difficult to leave her house 17 and interact with people. (AR 470.) Ms. Voska opined that Plaintiff could not hold a job, and that 18 Plaintiff’s ability to understand and remember detailed and complex instructions was very poor. 19 (AR 471.) Plaintiff also could not maintain attention and concentration, and would not be capable 20 of accepting instructions from and responding appropriately to a supervisor. (AR 471.) Plaintiff 21 would also not be capable of interacting with co-workers or the public, and would suffer emotional 22 deterioration in a work environment. (AR 471.) Ms. Voska further opined that Plaintiff’s pain 23 from Lyme Disease would prevent Plaintiff from sitting more than ten minutes at a time, and 24 could not lift anything remotely heavy. (AR 471.) 25 The ALJ gave little weight to Ms. Voska’s opinion because it “is not consistent with the 26 record as a whole.” (AR 20.) The ALJ also noted that Ms. Voska was not a physician, and that 27 therefore her “opinion regarding the claimant’s functioning related to her Lyme disease . . . is 1 claimant cannot lift items that are remotely heavy suggests that she can lift at the light or medium 2 levels.” (AR 20.) 3 The Court finds that the ALJ erred in rejecting Ms. Voska’s opinion. Ms. Voska is a 4 therapist, which is not an acceptable medical source. See Quezada v. Berryhill, No. EDCV 16- 5 1013-KS, 2017 U.S. Dist. LEXIS 81477, at *13 (C.D. Cal. May 25, 2017). The ALJ may only 6 disregard her testimony if he “gives reasons germane to each witness for doing so.” Turner v. 7 Comm’r of Soc. Sec., 613 F.3d 1217, 1223-24 (9th Cir. 2010). SSR 06-03p provides that non- 8 acceptable medical sources should still be evaluated under the same factors as all other medical 9 opinions, such as the length of the treating relationship, the extensiveness of the examinations, the 10 extent to which the examiner’s conclusions are supported by the record, the consistency of the 11 opinion with the overall record, and the specialization of the examiner. The ALJ, however, did not 12 review any of these factors, except a conclusory statement that Ms. Voska’s opinion was not 13 consistent with the record as a whole. The ALJ did not meaningfully consider Ms. Voska’s 14 treating relationship with Plaintiff, which had lasted for approximately a year and a half by the 15 time of her evaluation, and his review of the consistency of the opinion was incomplete and lacked 16 any explanation. Accordingly, the Court finds that the ALJ’s rejection of Ms. Voska’s opinion is 17 not supported by substantial evidence. See Brickman v. Berryhill, Case No. 17-cv-6487-RMI, 18 2019 U.S. Dist. LEXIS 34217, at *13-19 (N.D. Cal. Mar. 4, 2019) (finding the ALJ erred in 19 rejecting a therapist’s opinion when the ALJ failed to consider the significance of the treatment 20 relationship and dismissed the therapist’s opinion as “not consistent with the evidence as a whole” 21 without discussing the evidence further). 22 E. Failure to Include Moderate Limitations Regarding Concentration, Persistence, and Maintaining Pace 23 24 Plaintiff argues that the ALJ erred because the RFC did not take into account the ALJ’s 25 finding that Plaintiff had moderate limitations regarding concentration, persistence, and 26 maintaining pace. (Pl.’s Mot. at 23-24; see also AR 17.) The ALJ found that Plaintiff had the 27 RFC to perform medium work, except that she could carry out simple and detailed, but not 1 Plaintiff relies solely in Brink v. Commissioner of Social Security, 343 Fed. Appx. 211, 212 2 || (9th Cir. 2009). (PL.’s Mot. at 23-24.) There, the Ninth Circuit found that the ALJ had erred 3 || where he accepted medical evidence that the claimant had moderate difficulty maintaining 4 || concentration, persistence, or pace, but asked a hypothetical of the vocational expert that 5 || referenced only “simple, repetitive work” with no limitations on concentration, persistence, or 6 || pace. 343 Fed. Appx. 211, 212 (9th Cir. 2009). The Ninth Circuit found that “simple, repetitive 7 work” did not sufficiently encompass difficulties with concentration, persistence, or pace, as 8 “repetitive, assembly-line work of the type described by the expert might well require extensive 9 || focus or speed.” Id.; see also Lubin v. Comm’r of Soc. Sec. Admin., 507 Fed. Appx. 709, 712 (9th 10 || Cir. 2013) (finding that a hypothetical of an individual limited to one to three-step tasks did not 11 adequately consider the ALJ’s prior finding of moderate limitations in concentration, persistence, 12 || or pace). 5 13 Courts in this district, however, have found that Brink “only opines on the completeness of 14 || vocational hypotheticals; it does not stand for any similar proposition with regard to RFC 3 15 determinations.” Stephens v. Colvin, Case No. 13-cv-5156-RS, 2014 U.S. Dist. LEXIS 170423, at 16 *14 (N.D. Cal. Dec. 9, 2014); see also Markell v. Berryhill, Case No. 17-cv-792-MEJ, 2017 U.S. 3 17 || Dist. LEXIS 203447, at *21 n.2 (N.D. Cal. Dec. 11, 2017). Accordingly, Brink is inapposite and 18 does not apply. 19 IV. CONCLUSION 20 For the reasons set forth above, the Court GRANTS Plaintiff's motion for summary 21 || judgment and DENIES Defendant’s cross-motion for summary judgment. Because it is not clear 22 || from the record that the ALJ would be required to find Plaintiff disabled if all the evidence was 23 properly evaluated, remand is appropriate. On remand, the ALJ must properly evaluate the 24 || medical evidence based on applicable law and consistent with this opinion. 25 IT IS SO ORDERED. 26 Dated: March 26, 2020 ‘ 28 United States Magistrate Judge