Richardson v. Berryhill ( 2020 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 EUREKA DIVISION 7 8 EUGENE RICHARDSON, Case No. 19-cv-01489-RMI 9 Plaintiff, ORDER ON CROSS MOTIONS FOR 10 v. SUMMARY JUDGMENT 11 NANCY A. BERRYHILL, Re: Dkt. Nos. 18, 24 12 Defendant. 13 14 Plaintiff, Eugene Richardson, seeks judicial review of an administrative law judge (“ALJ”) 15 decision denying his application for supplemental security income under Title XVI of the Social 16 Security Act. Plaintiff’s request for review of the ALJ’s unfavorable decision was denied by the 17 Appeals Council, thus, the ALJ’s decision is the “final decision” of the Commissioner of Social 18 Security which this court may review. See 42 U.S.C. §§ 405(g), 1383(c)(3). Both parties have 19 consented to the jurisdiction of a magistrate judge (dkts. 11 & 13), and both parties have moved 20 for summary judgment (dkts. 18 & 24). For the reasons stated below, the court will grant 21 Plaintiff’s motion for summary judgment, and will deny Defendant’s motion for summary 22 judgment. 23 LEGAL STANDARDS 24 The Commissioner’s findings “as to any fact, if supported by substantial evidence, shall be 25 conclusive.” 42 U.S.C. § 405(g). A district court has a limited scope of review and can only set 26 aside a denial of benefits if it is not supported by substantial evidence or if it is based on legal 27 error. Flaten v. Sec’y of Health & Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995). The phrase 1 factual findings at the agency level. See Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019). 2 Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as 3 adequate to support a conclusion.” Id. at 1154 (quoting Consol. Edison Co. v. NLRB, 305 U.S. 4 197, 229 (1938)); see also Sandgathe v. Chater, 108 F.3d 978, 979 (9th Cir. 1997). “In 5 determining whether the Commissioner’s findings are supported by substantial evidence,” a 6 district court must review the administrative record as a whole, considering “both the evidence 7 that supports and the evidence that detracts from the Commissioner’s conclusion.” Reddick v. 8 Chater, 157 F.3d 715, 720 (9th Cir. 1998). The Commissioner’s conclusion is upheld where 9 evidence is susceptible to more than one rational interpretation. Burch v. Barnhart, 400 F.3d 676, 10 679 (9th Cir. 2005). 11 PROCEDURAL HISTORY 12 On January 20, 2015, Plaintiff filed an application for supplemental security income, 13 alleging an onset date of December 9, 2014. See Administrative Record “AR” at 17.1 The ALJ 14 denied the application on February 14, 2018. Id. at 27. The Appeals Council denied Plaintiff’s 15 request for review on January 15, 2019. Id. at 1-3. 16 SUMMARY OF THE RELEVANT EVIDENCE 17 Plaintiff – who is now 24 years old – has already had a difficult life by any standard of 18 measure. He was diagnosed with a learning disability in his early school years and was always on 19 an individualized education plan; and, due to a number of early interactions with the juvenile 20 justice system, in lieu of high school, Plaintiff graduated from Camp Sweeny Juvenile Hall with a 21 GED. Id. at 526, 662. Shortly thereafter, when he was 19 years old, Plaintiff was involved in a 22 major automobile accident and suffered traumatic brain injuries that caused him to spend the 23 following a 10-day period in a coma while his best friend, who was also an occupant of that 24 vehicle, succumbed to his injuries and lost his life. Id. at 525. In addition to the severe brain 25 trauma, the accident also caused Plaintiff to suffer numerous facial fractures, the tearing away (or 26 avulsion) of his right ear, as well as the dislocation of his left shoulder. Id. at 676. As if all of this 27 1 was not enough of a burden for such a young person to bear, Plaintiff has also been diagnosed 2 with a viral immunodeficiency infection. See id. at 19. 3 Medical Evidence From Treating Physicians 4 Shortly after the automobile accident, radiologists performed a CT scan of Plaintiff’s head 5 at the Santa Clara Valley Medical Center, the results of which showed a number of fractures to the 6 orbital bones surrounding his eyes, as well as the following intracranial hemorrhages: a small left 7 basal ganglion hemorrhagic contusion / axonal injury, a tiny punctuate hemorrhage of the right 8 temporal lobe, and bi-frontal contusions. Id. at 662. Following his discharge from the hospital, 9 Plaintiff’s treating physician, Peter Gerritz, M.D., noted in February of 2015, that Plaintiff’s pain 10 was still so intense that it interfered with his ability to concentrate, to accomplish any of the 11 activities of daily living, as well as with his ability to sleep. Id. 12 Two months later, in April of 2015, his treating speech language pathologist, Kyle Renke, 13 M.S., noted that Plaintiff’s cognitive difficulties were consistent with what one would expect from 14 a traumatic brain injury. Id. Therapist Renke’s evaluation of Plaintiff’s language abilities, and the 15 administration of the Woodcock-Johnson Revised Test of Cognitive Ability (WJ-R COG), 16 resulted in the conclusion that Plaintiff “is presenting with deficits in the areas of memory, visual 17 matching, visual closure, vocabulary, and analysis-synthesis.” Id. When Plaintiff first came home 18 from the hospital, he was unable to remember how to use the remote control for the television; he 19 experienced difficulties with basic household activities, such as matching clothing items; and, he 20 would often get overwhelmed to the point where he would have to retreat to his room to seek the 21 relative quietude of being alone. Id. 22 In late May of 2015, nearly six months after the accident, Dr. Gerritz noted that Plaintiff 23 continued to be mired in confusion; that he still did not recall the accident; that he was unable to 24 properly recall events from even the previous day; that his failing memory, in conjunction with his 25 awareness of the death of his friend, was causing irritability, anger, and increased symptoms of 26 depression; that the extent of his continued memory impairment required him to be supervised 27 around the clock; and, that as a result of these difficulties, Plaintiff continued to be unready for 1 treating physicians, Chris Shin, M.D., that while Plaintiff denied experiencing difficulties with 2 comprehension, nevertheless “he has troubles expressing higher level wants (such as going to a 3 work-place and asking for a job application or scheduling a doctor visit).” Id. at 661. Shortly 4 thereafter, given that Plaintiff was diagnosed with “[t]raumatic brain injury with cognitive 5 impairment,” he was referred by his treating physicians for “neuropsychologic[al] testing as this 6 would help delineate [his] cognitive deficits and [establish the] necessary accommodations for 7 work/school.” Id. at 675-78. For this purpose, Drs. O’Connor and Shin referred Plaintiff to their 8 colleague, Richard Wanlass, Ph.D., a clinical professor in the department of physical medicine and 9 rehabilitation, and chief psychologist, at the U.C. Davis Medical Center. See id. at 661-664. 10 At the outset, Dr. Wanlass noted that “this evaluation was being performed for clinical (as 11 opposed to forensic or medical-legal) reasons and [] that its purpose was to assist medical doctors 12 with understanding Mr. Richardson’s cognitive strengths and weaknesses, emotional state, and 13 treatment needs.” Id. at 661. Initially, Dr. Wanlass administered three diagnostic instruments 14 geared to evaluating Plaintiff’s effort and cooperation, such as to determine the validity of the 15 results garnered from the other 26 diagnostic testing instruments to be administered – in this 16 regard, it was noted that Plaintiff “passed most measures designed to detect insufficient effort . . . 17 [and] [h]is one below-passing score appears to be due to genuine difficulty with attention and 18 concentration.” Id. at 664. Accordingly, Dr. Wanlass noted that the entirety of the testing results to 19 be discussed below “appear to be a reasonably valid reflection of his current cognitive functioning 20 [as Plaintiff] appeared generally cooperative and invested in doing a good job during testing.” Id. 21 In what has to be one of the – if not the – most thorough psychological evaluations that the court 22 has encountered in the Social Security context, Dr. Wanlass administered a large number of testing 23 instruments geared towards evaluating Plaintiff’s abilities and limitations in a broad array of 24 functional categories including: intellectual and problem solving abilities; adaptive behavioral 25 assessments; processing speed; mental control; evidence of adult attention deficit hyperactivity 26 disorder (“ADHD”); childhood ADHD rating scales; learning and memory; communication; 27 motor functions; visual-spatial functions; and, mental status and psychological adjustment. Id. at 1 As to intellectual and problem solving ability, Dr. Wanlass administered the Wechsler 2 Adult Intelligence Scale – Fourth Edition (“WAIS-IV”), the Wide Ranging Achievement Test – 3 Fourth Edition (“WRAT-4”), and the Neuropsychological Assessment Battery (“NAB”). Id. at 4 664. In this regard, Dr. Wanlass measured Plaintiff’s full scale IQ at 74 (placing him in the bottom 5 four percent of all individuals his age) and opined that “[c]onsistent with reported difficulties, Mr. 6 Richardson’s intellectual and problem-solving ability mostly tested in the mild-deficit range.” Id. 7 Regarding his adaptive behavioral skills, Dr. Wanlass administered the Adaptive Behavioral 8 Assessment System – Third Edition (“ABAS-3”), on which Plaintiff’s abilities were in the bottom 9 two percent as to health and safety, and self-direction; the bottom five percent as to self-care and 10 functional academics; and the bottom four percent as to practical adaptive skills – rendering a 11 general adaptive composite score in the bottom six percent of all people. Id. at 665. In the domain 12 of processing speed, Dr. Wanlass administered five diagnostic instruments (in addition to the 13 portions of the WAIS-IV that measure visual-motor speed) and ultimately concluded that 14 “[c]onsistent with self-reported reduced thinking speed, Mr. Richardson tested mostly in the 15 impaired range on thinking speed tasks . . . [and] that he will generally require additional time to 16 process information.” Id. at 666. More specifically, Plaintiff’s scores on word-reading and color- 17 naming tests indicated deficits in his visual processing speed so severe that the scores placed him 18 in the bottom 0.1% of all individuals. Id. In most of the other categories of processing speed, Dr. 19 Wanlass found that Plaintiff had moderate and mild deficits. Id. 20 In the area of mental control, Dr. Wanlass administered three diagnostic instruments (in 21 addition to the portions of the WAIS-IV that gauge auditory attention span and working memory) 22 and concluded that Plaintiff “tested mostly in the impaired range on measures of working memory, 23 attention, and mental flexibility . . . [which] indicates that he will have difficulty screening out 24 distractions, holding information in working memory, and shifting his attention when he has to 25 keep more than one thing in mind at the same time.” Id. at 666-67. Specifically, Plaintiff’s score 26 on the Delis-Kaplan Executive Function (“D-KEFS”) Color-Word Inference Test (“CWIT”) was 27 indicative of severe deficits in his abilities regarding selective attention such that his performance 1 working memory, Plaintiff’s performance on a portion of the WAIS-IV placed him in the bottom 2 2% of all individuals. Id. As it pertains to ADHD – Dr. Wanlass administered two diagnostic 3 instruments, the results of which indicated that Plaintiff struggled with symptoms of ADHD as to 4 inattention, impulsivity, and sluggish cognitive tempo, such that his self-reported ADHD- 5 symptom-count was assessed as spanning between the borderline and somewhat symptomatic 6 range, and his childhood ADHD-symptom-count was measured as falling in the marginally- 7 symptomatic range. Id. at 667-68. 8 In assessing Plaintiff’s abilities as to learning and memory, Dr. Wanlass administered four 9 diagnostic instruments (in addition to the portions of the WAIS-IV that gauge remote memory). 10 Id. at 668. In this regard, Dr. Wanlass first noted that both Plaintiff and his mother reported that 11 Plaintiff had been experiencing increased difficulties since the accident – “[h]e reported that he 12 occasionally forgets to eat and his mother reported that he requires reminders to take his 13 medication, brush his teeth, and shower . . . [and] that he has forgotten things on the stove in the 14 past.” Id. As to visual learning and memory, Plaintiff’s performance on the various components of 15 the Rey Complex Figure Test (measuring design recall and design recognition) resulted in scores 16 that all placed him below the bottom 1% of all individuals. Id. Plaintiff’s performance on the 17 logical memory portions of the Wechsler Memory Scale - Fourth Edition (“WMS-IV”), and the 18 Rey Auditory Verbal Learning Test (“RAVLT”) were mostly indicative of severe deficits in the 19 areas of word list learning, post-distraction recall, and immediate story recall – placing him in the 20 bottom 0.1% of all individuals. Id. Thus, Dr. Wanlass concluded that Plaintiff’s “ability to learn, 21 retain, recall, and recognize new verbal and nonverbal (visual) information tested in the impaired 22 range, with all scores falling at or below the 2nd percentile . . . [meaning that] those who 23 communicate with Mr. Richardson should not assume that he is retaining what they tell him.” Id. 24 Regarding Plaintiff’s abilities in the realm of communication, Dr. Wanlass administered 25 five diagnostic instruments (in addition to the portions of the WAIS-IV that assess a person’s 26 vocabulary). Id. at 668-69. As to listening comprehension and vocabulary, Plaintiff scored in the 27 bottom 1st and 2nd percentiles respectively; as a result of which, Dr. Wanlass concluded that 1 three-step commands and repeat phrases immediately after hearing them, he tested in the 2 moderate-deficit range on a listening comprehension task that required him to remember short 3 stories and draw inferences from what he heard.” Id. at 669. 4 In assessing motor functions, Dr. Wanlass administered two tests that measured manual 5 dexterity and hand strength – the results of which established that Plaintiff occupies the impaired 6 range in both categories as to both hands. Id. To gauge Plaintiff’s visual-spatial abilities, Dr. 7 Wanlass administered a vision screen (which determined Plaintiff’s vision was 20/20), and the 8 Rey Complex Figure Test (in addition to the two components of the WAIS-IV that gauge abilities 9 in the areas of spatial relations and block construction). Id. at 669-70. Regarding the ability to 10 copy complex figures, Plaintiff scored in the bottom 1st percentile, while also manifesting mild 11 deficits in his abilities regarding spatial relations and block construction – consequently, Dr. 12 Wanlass found that Plaintiff’s scores in this area “reflect[] impaired planning and insufficient 13 attention to detail.” Id. at 670. 14 In gauging mental status and his psychological adjustment, Dr. Wanlass conducted a 15 clinical interview geared towards evaluating Plaintiff’s life stressors; his behavioral control; his 16 thought process, judgment, and insight; as well as searching for any evidence of suicidal or 17 homicidal ideations; additionally, he administered a pair of diagnostic instruments geared towards 18 determining evidence of depression and anxiety. Id. at 670-71. In these areas, Dr. Wanlass found 19 that Plaintiff exhibited evidence of depressed mood “in the clinically elevated range,” as a result of 20 feeling frustrated about his cognitive challenges due to difficulty expressing his thoughts and 21 desires, difficulty with listening comprehension and slower thinking speed, as well as frustration 22 with the inability of other people to understand what he tries to explain. Id. at 670. Consequently, 23 Plaintiff has been emotionally flat since the accident, his appetite has decreased, he has 24 experienced difficulty with sleep maintenance, and has sometimes become so overwhelmed with 25 these frustrations and difficulties that “he thinks he would be better off dead.” Id. As to anxiety, 26 Dr. Wanlass found evidence to indicate that Plaintiff experiences a moderate anxiety range 27 because of persistent worries about his future in light of his awareness of his cognitive challenges 1 one day attend college and become independent. Id. at 671. Further, Plaintiff’s anxiety is also 2 fueled by the fact that “since the accident[,] he has had a fear of death . . . [and] that sometimes he 3 wakes up in the middle of the night and [is] unable to fall back asleep due to his worries about the 4 future.” Id. In the domain of behavioral control, Dr. Wanlass noted that Plaintiff’s above-described 5 difficulties and frustrations have resulted in his becoming more easily irritable since the accident. 6 Id. Importantly, regarding judgment and insight, Dr. Wanlass noted that Plaintiff “needs some 7 supervision and assistance [in] making safe and appropriate decisions in real life situations, 8 according to his mother, and this makes sense given his memory, attention, and problem-solving 9 difficulty.” Id. 10 In the end, as a result of this exhaustive battery of testing and evaluation, consisting of no 11 less than twenty-nine separate diagnostic tests, Dr. Wanlass rendered four diagnostic impressions: 12 (1) major neurocognitive disorder due to traumatic brain injury, without behavioral disturbance 13 (“he still requires some supervision and assistance with making safe and appropriate decisions in 14 regards to health and safety, self-care, and self-direction”); (2) ADHD with a predominantly 15 inattentive presentation (due to his demonstrated difficulty with shifting focus, sustaining attention 16 over time, and screening out distractions); (3) specific learning disorder, with impairment in 17 mathematics (given that his mathematical and arithmetic reasoning tested at the bottom 1st 18 percentile); and, (4) adjustment disorder, with mixed anxiety and depressed mood (because of 19 continued frustration associated with decreased cognitive functioning and diminished levels of 20 independence after his severe brain injury). Id. at 671-72. As to limitations with respect to specific 21 domains of functioning due to these diagnoses, Dr. Wanlass found that Plaintiff’s abilities in the 22 following areas were in the mild to moderate deficit range: his nonverbal (visual-spatial) reasoning 23 ability; his ability to read and spell; his vocabulary knowledge; his immediate ability to follow 24 three-step commands; and his abilities regarding block construction and rotating objects in his 25 mind. Id. at 672-73. However, with regard to the following domains of functioning, Dr. Wanlass 26 found that Plaintiff’s abilities were fully impaired: his processing speed (meaning that Plaintiff 27 will generally require additional time to process information); his working memory, attention, and 1 information in his working memory or shifting attention); his ability to learn, retain, and recall 2 new verbal and nonverbal information (test results indicated he operates at or below the bottom 3 2nd percentile); and, his manual dexterity and grip strength in both hands. Id. 4 Lastly, Dr. Wanlass rendered a series of recommendations. Id. at 673-74. Specifically, as 5 to Plaintiff’s desire to continue his education, Dr. Wanlass noted that “test results raise serious 6 questions about his ability” to do so. Id. at 673. As to Plaintiff’s ability to seek and maintain 7 employment, Dr. Wanlass opined that, “[i]n our judgment, his significant cognitive limitations 8 will preclude him from competitive employment at this time, and we encourage him to pursue 9 disability.” Id. at 674. As to activities of daily life, Dr. Wanlass noted that Plaintiff “will continue 10 to require family supervision and assistance with health care, including medication management 11 and doctor appointments, meal preparation, transportation, and finances . . . [and] [p]recautions 12 should be taken so that inattention does not pose [a] danger (e.g., leaving the stove on).” Id. 13 Lastly, in addition to “discouraging him from attempting to drive at this time due to the difficulties 14 noted above (e.g., processing speed, attention),” Dr. Wanlass also noted that Plaintiff would 15 benefit from a continued psychotherapeutic regime “that takes into account the presence of 16 attention and problem-solving limitations . . . focus[ed] on improving [his] management of 17 depressed mood, stress, anxiety, irritability and sleep-problems.” Id. 18 Medical Evidence from Non-Treating Consultants 19 Shortly before Plaintiff’s evaluation by Dr. Wanlass, he was referred for a one-time 20 consultative examination by the state disability evaluation agency to Paul Martin, Ph.D., who 21 performed a mental status examination and a clinical interview of Plaintiff, reviewed some 22 records, and administered an IQ test and a memory test. Id. at 524-530. Dr. Martin measured 23 Plaintiff’s full-scale IQ score at 77, and evaluated his memory to operate in “the borderline to low 24 average range, indicating mile (sic) difficulties with new learning and memory, although memory 25 skills appear to be grossly intact.” Id. at 528-29. Dr. Martin’s diagnostic impressions were limited 26 to cognitive disorder, not otherwise specified (“NOS”); depressive disorder NOS; and cannabis 27 abuse. Id. at 529. Additionally, he completed a functional assessment and opined that Plaintiff was 1 ability to manage funds independently. Id. at 529-30. 2 At the October 11, 2017, hearing before the ALJ, testimony was taken from a medical 3 expert, Carlos, Kronberger, Ph.D., a Louisiana-licensed clinical psychologist and disability 4 consultant for the Social Security Administration. Id. at 50-73, 897-99. Under examination by the 5 ALJ, Dr. Kronberger noted the source of his disagreement with Dr. Wanlass’s assessments by 6 opining that Dr. Wanless may have placed too much emphasis on reports from Plaintiff’s mother 7 regarding Plaintiff’s functional abilities. Id. at 52. Additionally, Dr. Kronberger opined that many 8 of Plaintiff’s memory and learning problems could be due to his cannabis use, rather than the brain 9 injuries he suffered in his accident or his preexisting learning disability. Id. at 52-54. Thus, basing 10 his analysis only on Dr. Martin’s report, Dr. Kronberger opined that Plaintiff’s conditions do not 11 meet or equal any listings because Dr. Martin’s report gave “a lot of weight to the use of 12 marijuana, as contributing to the memory impairment.” Id. at 54. As to interpreting Dr. Wanlass’s 13 report, Dr. Kronberger maintained that “I can’t make an inference . . . if the Claimant were limited 14 to simple, repetitive tasks, and simple jobs, whether he would have significant limitations . . . 15 [because Dr. Wanlass was only] considering what he would need if he were to go to college.” Id. 16 at 55. Musing further about Dr. Wanlass’s report, Dr. Kronberger then added that “it’s a very 17 comprehensive assessment, but there are a few little areas that I’m not, you know, totally 18 completely comfortable. For example, he gives us tests I’m not even familiar with . . . [t]here’s a, I 19 think, a discrepancy in having such a low score on the arithmetic substance of the wide range 20 achievement test, in the first percentile, which is very, very low. I don’t know how anybody who 21 graduated high school, even if they [later] had an injury, would have such a huge deficit.” Id. at 22 56. 23 When asked if he gave greater weight to the assessment performed by Dr. Martin than to 24 the one performed by Dr. Wanlass, Dr. Kronberger stated, “I think I am. I’m giving a little bit 25 more weight to that. I mean, he did a lot fewer tests, Dr. Martin, but this - - the profile that 26 emerges from Dr. Martin suggests that if there has been some sort of pattern of deficit, it’s 27 relatively minor.” Id. at 57. Dr. Kronberger then suggested bridging the gap between the 1 moderate difficulties from (sic) understanding, remembering, or applying information,” as well as 2 in the domains of concentration, persistence, and pace, and with regard to adapting and managing 3 himself. Id. at 58-59, 60, 65. As to limitations related to interacting with others, Dr. Kronberger 4 suggested that Plaintiff “kind of appears to have a fair amount of social activities going on in his 5 life, as described by all the doctors, not in these two reports.” Id. at 59. 6 Lay Witness Testimony 7 In addition to submitting third party function reports on his behalf, Plaintiff’s mother, Ms. 8 Angela Jackson, also testified at the hearing before the ALJ. Id. at 42-45, 79-84. When asked to 9 explain why her son would be unable to function in the workplace, Ms. Jackson testified that her 10 son’s difficulties with comprehension, information processing, and memory require her to 11 “constantly [need to] remind him about his daily hygiene, as far as like taking his medication that 12 he’s supposed to take daily, dressing the appropriate way, [and] like eating [] he’ll go all day 13 without eating. I have to constantly - - like are you hungry? I have to ask him like if I’m talking to 14 my eight or twelve-year-old at home.” Id. at 43. Ms. Jackson then offered an example of how 15 Plaintiff had recently been hired at Goodwill through a program where “you know, they hire 16 people with disability problems,” but that he was nevertheless terminated due to the fact that “he 17 kept forgetting . . . the manager [would] get irritated with him because, you know, the things he 18 forgot. So they end[ed] up letting him go.” Id. at 43. As to Plaintiff’s inability to manage the 19 activities of daily living, his mother testified that she has to give him constant reminders to do 20 everything from showering to brushing his teeth, and that Plaintiff’s memory function is so 21 impaired that due to the associated fire hazards, Plaintiff is not allowed to use the stove or the 22 oven. Id. at 80-81. When Ms. Jackson had tried to rely on Plaintiff to walk to her younger child’s 23 school in order to escort his little brother home, the experiment failed when she received calls 24 from the school informing her that her child had not been picked up. Id. at 81. As to the need for 25 reminders to take his HIV medication, Ms. Jackson testified that “[a] few months ago he ended up 26 in the hospital, because he [hadn’t] taken his medicine. So, I constantly have to remind him of that 27 daily.” Id. When asked to what extent Plaintiff has improved since the accident, Ms. Jackson 1 [a]nd I had to teach him everything all over again.” Id. Lastly, Ms. Jackson related that even 2 before the accident, when Plaintiff was still in high school, that due to his learning disability, he 3 was part of a special education program where he would attend regular classes but such that “they 4 gave him more time to do his work . . . [because of] his attention span, it was hard for him to 5 focus.” Id. at 82. 6 Through the third-party function report that Ms. Jackson submitted on her son’s behalf, she 7 reiterated that due to his condition, Plaintiff requires assistance in nearly all of the activities of 8 daily living. Id. at 308-14. She noted that he generally does not go out alone because he “will 9 easily get lost.” Id. at 311. She added that Plaintiff is unable to pay bills, correctly count change, 10 handle money, or to manage a bank account. Id. at 311-12. She also noted that Plaintiff’s social 11 activities are limited to playing video games with his younger siblings, and talking to his older 12 brother on the telephone. Id. at 312. Ms. Jackson added that, since the accident, Plaintiff’s speech 13 is “off,” and that as a result of his “memory issues” he is unable to follow either written or spoken 14 instructions without significant assistance. Id. at 313. She also noted that since the accident, 15 Plaintiff experiences heightened paranoia in that “[h]e thinks we’re being followed by others if 16 they’re driving behind us too long,” as well as thinking that people are staring at him which makes 17 him upset. Id. at 314. 18 THE FIVE STEP SEQUENTIAL ANALYSIS FOR DETERMINING DISABILITY 19 A person filing a claim for social security disability benefits (“the claimant”) must show 20 that he has the “inability to do any substantial gainful activity by reason of any medically 21 determinable physical or mental impairment” which has lasted or is expected to last for twelve or 22 more months. See 20 C.F.R. §§ 416.920(a)(4)(ii), 416.909. The ALJ must consider all evidence in 23 the claimant’s case record to determine disability (see id. § 416.920(a)(3)), and must use a five- 24 step sequential evaluation process to determine whether the claimant is disabled (see id. § 25 416.920). “[T]he ALJ has a special duty to fully and fairly develop the record and to assure that 26 the claimant’s interests are considered.” Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983). 27 Here, the ALJ set forth the applicable law under the required five-step sequential 1 been engaged in “substantial gainful activity” since the alleged date the claimant became disabled. 2 See 20 C.F.R. § 416.920(b). If the claimant has worked and the work is found to be substantial 3 gainful activity, the claimant will be found not disabled. See id. The ALJ found that Plaintiff had 4 not engaged in substantial gainful activity since the alleged onset date. AR at 19. At Step Two, the 5 claimant bears the burden of showing that he has a medically severe impairment or combination of 6 impairments. See 20 C.F.R. § 416.920(a)(4)(ii), (c). “An impairment is not severe if it is merely ‘a 7 slight abnormality (or combination of slight abnormalities) that has no more than a minimal effect 8 on the ability to do basic work activities.’” Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005) 9 (quoting S.S.R. No. 96–3(p) (1996)). The ALJ found that Plaintiff suffered from the following 10 severe impairments: status post traumatic brain injury (TBI), with residual neurocognitive 11 disorder; a depressive disorder vs. an adjustment disorder; and ongoing cannabis abuse. AR at 19. 12 Additionally, the ALJ found that Plaintiff’s HIV is non-severe because “thus far he has no related 13 physical effects,” and that his ADHD is not “not a medically determinable impairment,” because 14 Dr. Wanlass’s “diagnosis is unsupported by any other evidence.” Id. 15 At Step Three, the ALJ compares the claimant’s impairments to the impairments listed in 16 appendix 1 to subpart P of part 404. See 20 C.F.R. § 416.920(a)(4)(iii), (d). The claimant bears the 17 burden of showing his impairments meet or equal an impairment in the listing. Id. If the claimant 18 is successful, a disability is presumed and benefits are awarded. Id. If the claimant is unsuccessful, 19 the ALJ assesses the claimant’s residual functional capacity (“RFC”) and proceeds to Step Four. 20 See id. § 416.920(a)(4)(iv), (e). Here, the ALJ found that Plaintiff did not have an impairment or 21 combination of impairments that met or medically equaled the severity of any of the listed 22 impairments. AR at 20-21. Next, the ALJ determined that Plaintiff retained the RFC to perform the 23 full range of work at all exertional levels but with the following non-exertional limitations: that 24 Plaintiff can understand and follow only simple one and two-step instructions and complete 25 related tasks, with no required public interaction. Id. at 21-26. 26 At Step Four, the ALJ determined that Plaintiff is unable to perform his past relevant work 27 because he has no past relevant work. Id. at 26. Lastly, at Step Five, the ALJ concluded that based 1 (“VE”), that there are jobs that exist in significant numbers in which Plaintiff can still perform – 2 namely, the ALJ found that Plaintiff could perform the functions of a laborer, a transportation 3 cleaner, and a housekeeping cleaner. Id. at 26-27. Accordingly, the ALJ concluded that Plaintiff 4 had not been under a disability, as defined in the Social Security Act, from January 20, 2015, 5 through the date of the issuance of the ALJ’s decision, February 14, 2018. Id. at 27. 6 DISCUSSION 7 Plaintiff raises four issues and maintains that the ALJ erred: (1) by improperly weighing 8 the medical opinion evidence; (2) by improperly rejecting Plaintiff’s testimony; (3) by improperly 9 rejecting lay witness testimony; and (4) by rendering a Step Five determination that was not 10 supported by substantial evidence. See Pl.’s Mot. (dkt. 18) at 6, 11-22. Defendant submits that the 11 ALJ “reasonably resolved the conflict” between the opinions of Drs. Wanlass and Martin by 12 relying on the opinion of Dr. Kronberger. See Def.’s Mot. (dkt. 24) at 3-5. As for the rejecting of 13 Ms. Jackson’s testimony, Defendant concedes that “[e]ven though the ALJ did not reject Ms. 14 Jackson’s testimony separately, it is clearly (sic) that he considered her statement[s] and rejected 15 [them] because of the same inconsistencies with the record evidence.” Id. at 8-9. Further, 16 Defendant contends that substantial evidence supports the ALJ’s decision, that any errors that may 17 have been committed were harmless, and, that if the court were to identify an error, the proper 18 remedy would be a remand for further proceedings. Id. at 9-11. For the reasons stated below, the 19 court disagrees with each of Defendant’s contentions. 20 The court will begin by noting that medical opinions are “distinguished by three types of 21 physicians: (1) those who treat the claimant (treating physicians); (2) those who examine but do 22 not treat the claimant (examining physicians); and (3) those who neither examine nor treat the 23 claimant (nonexamining physicians).” Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). The 24 medical opinion of a claimant’s treating provider is given “controlling weight” so long as it “is 25 well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not 26 inconsistent with the other substantial evidence in [the claimant’s] case record.” 20 C.F.R. § 27 404.1527(c)(2); see also Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017). In cases where a 1 the nature and extent of the treatment relationship, as well as the consistency of the opinion with 2 the record. 20 C.F.R. § 404.1527(c)(2)-(6); Revels, 874 F.3d at 654. 3 “To reject [the] uncontradicted opinion of a treating or examining doctor, an ALJ must 4 state clear and convincing reasons that are supported by substantial evidence.” Ryan v. Comm’r of 5 Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) (alteration in original) (quoting Bayliss v. Barnhart, 6 427 F.3d 1211, 1216 (9th Cir. 2005)). “If a treating or examining doctor’s opinion is contradicted 7 by another doctor’s opinion, an ALJ may only reject it by providing specific and legitimate 8 reasons that are supported by substantial evidence.” Id. (quoting Bayliss, 427 F.3d at 1216); see 9 also Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (“[The] reasons for rejecting a treating 10 doctor’s credible opinion on disability are comparable to those required for rejecting a treating 11 doctor’s medical opinion.”). “The ALJ can meet this burden by setting out a detailed and thorough 12 summary of the facts and conflicting clinical evidence, stating his [or her] interpretation thereof, 13 and making findings.” Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (quoting Cotton v. 14 Bowen, 799 F.2d 1403, 1408 (9th Cir. 1986)). Further, “[t]he opinion of a nonexamining physician 15 cannot by itself constitute substantial evidence that justifies the rejection of the opinion of either 16 an examining physician or a treating physician.” Lester, 81 F.3d at 831 (9th Cir. 1995); see also 17 Revels, 874 F.3d at 654-55; Widmark v. Barnhart, 454 F.3d 1063, 1066-67 n.2 (9th Cir. 2006); 18 Morgan v. Comm’r, 169 F.3d 595, 602 (9th Cir. 1999); see also Erickson v. Shalala, 9 F.3d 813, 19 818 n.7 (9th Cir. 1993). It should also be noted that greater weight is due to the “opinion of a 20 specialist about medical issues related to his or her area of specialty.” 20 C.F.R. § 404.1527(c)(5); 21 Revels, 874 F.3d at 654. In situations where a Plaintiff’s condition progressively deteriorates, the 22 most recent medical report is the most probative. See Young v. Heckler, 803 F.2d 963, 968 (9th 23 Cir. 1986). 24 In this case, the ALJ wholly rejected the opinions of Plaintiff’s treating psychologist, Dr. 25 Wanlass, in favor of the opinion of a one-time examining consultant (Dr. Martin) as modified by a 26 non-examining medical adviser (Dr. Kronberger). AR at 20. In essence, the ALJ gave controlling 27 weight to a non-examining medical adviser; and, in doing so, the ALJ erred at Step Three by 1 criteria described in Listing 12.02 (Neurocognitive Disorders) or Listing 12.04 (Depressive and 2 Bipolar Disorders), and then the ALJ erred again in formulating a RFC that was not based on 3 substantial evidence. See AR at 20-26. Initially, the court will note that the ALJ concluded – 4 correctly – that Plaintiff’s “marijuana use is not material to a finding of disability.” Id. at 25. 5 However, the ALJ’s reasoning for giving controlling weight to Dr. Kronberger’s opinion was 6 neither specific nor legitimate, and the court finds that the ALJ erred by not giving Dr. Wanlass’s 7 opinion controlling weight because it was “well-supported by medically acceptable clinical and 8 laboratory diagnostic techniques and [was] not inconsistent with the other substantial evidence in 9 [the claimant’s] case record.” 20 C.F.R. § 404.1527(c)(2); see also Revels, 874 F.3d at 654. For 10 starters, the ALJ misapprehended the record when he based his decision on the notion that “Dr. 11 Kronberger observed that Dr. Wanlass did not address the issue of whether the claimant would be 12 able to sustain simple work with simple instructions . . . [and that] Dr. Wanlass focused on the 13 claimant’s ability to handle college level courses.” Id. at 25. It appears that neither the ALJ, nor 14 Dr. Kronberger, read Dr. Wanlass’s report carefully because it was clearly “not focused [only] on 15 the claimant’s ability to handle college level courses,” given that it plainly and unequivocally 16 noted that “[i]n our judgment, his significant cognitive limitations will preclude him from 17 competitive employment at this time and we encourage him to pursue disability.” See AR at 674. 18 As to the ALJ’s reasoning that Dr. Kronberger believed that Dr. Martin’s conclusions were 19 deserving of more weight than those of Dr. Wanlass because Dr. Wanlass measured Plaintiff’s full 20 scale IQ at 74, where Dr. Martin had measured it at 77 – the court finds this to be a non-legitimate 21 basis for either Dr. Kronberger or the ALJ to credit Dr. Martin’s opinions over those of Dr. 22 Wanlass. The court will note that neither Dr. Kronberger nor the ALJ rendered any explanation as 23 to why a small measure of variation in the measurement of Plaintiff’s IQ score over the 24 administering of the WAIS-IV on two separate occasions would necessitate the rejection of Dr. 25 Wanlass’s opinions. A second indication that neither the ALJ, nor Dr. Kronberger, exercised due 26 care when reading Dr. Wanlass’s report is manifest in the ALJ’s incorrect assertion that Dr. 27 Wanlass failed to consider Plaintiff’s cannabis use. See id. at 25. In the section of Dr. Wanlass’s 1 current use of alcohol or tobacco. He reported that he uses marijuana daily.” See AR at 663. 2 Furthermore, even if this were not the case, it is difficult to conceive how the ALJ can, on one 3 hand, determine that cannabis use is not material to the disability determination, while at the same 4 time (incorrectly, as it were) using that as a basis to reject Dr. Wanlass’s opinions. See id. at 25. 5 Thus, the ALJ erred when he concluded – for the above stated reasons – that “Dr. Kronberger’s 6 evaluation of the record should be accorded the greatest weight because he is the only professional 7 who had the advantage of a review of the entire record . . . [and] was in the unique position of 8 being able to assess the relative value of the reports by Drs. Martin and Wanlass, along with the 9 other medical evidence and the likely effects of the marijuana use.” Id. On this basis, the ALJ 10 concluded that “[a]ll of the other opinions are assigned less weight, relative to the degree to which 11 they are consistent with Dr. Kronberger’s conclusions.” Id. 12 As mentioned, Dr. Kronberger had not even carefully read Dr. Wanlass’s report because 13 his two principal reasons for finding it disagreeable were either based on factual error (e.g., Dr. 14 Wanlass only opined about Plaitniff’s ability to go to college, or Dr. Wanlass was unaware of 15 Plaintiff’s cannabis use), or were unexplained and appeared to be nothing more than baseless 16 speculation (e.g., that Plaintiff scored 3 points lower on a later IQ test means that all of Dr. 17 Wanlass’s opinions are due to be rejected). Thus, the ALJ’s explanations for rejecting Dr. 18 Wanlass’s opinions were not even factually accurate, let alone being specific and legitimate 19 reasons based on substantial evidence in the record. Instead, given that Dr. Wanlass’s evaluation 20 was undertaken for treatment purposes, rather than forensic or legal purposes (see id. at 661), and 21 because his opinions were eminently supported by medically acceptable clinical and laboratory 22 diagnostic techniques, and were otherwise not inconsistent with the other substantial evidence in 23 the case record, Dr. Wanlass’s opinions were entitled to controlling weight. See Revels, 874 F.3d 24 at 654. Accordingly, because the court has found that the ALJ improperly rejected the above- 25 described opinions from Plaintiff’s treating source, those opinions will now be credited as true as a 26 matter of law. See generally Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014); Benecke v. 27 Barnhart, 379 F.3d 587, 593 (9th Cir. 2004); Smolen v. Chater, 80 F.3d 1273, 1291-92 (9th Cir. 1 Bowen, 879 F.2d 498, 502 (9th Cir. 1989). 2 As to the lay-witness testimony rendered by Ms. Jackson, the court will note that such 3 evidence about a claimant’s symptoms is competent evidence that must be considered unless the 4 ALJ “expressly determines to disregard such testimony and gives reasons germane to each witness 5 for doing so.” Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001). The reasons advanced for 6 rejecting lay-witness testimony must also be “specific.” Stout v. Comm’r, SSA, 454 F.3d 1050, 7 1054 (9th Cir. 2006). Germane reasons for discrediting such testimony could include 8 inconsistency with the medical evidence, or the fact that the testimony “generally repeat[s]” the 9 properly discredited testimony of a claimant. Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 10 2005). Also, it is important to note that the mere lack of support from medical records is not a 11 germane reason to discount lay-witness testimony. Diedrich v. Berryhill, 874 F.3d 634, 640 (9th 12 Cir. 2017). 13 As Defendant has conceded, not only did the ALJ fail to expressly reject Ms. Jackson’s 14 testimony at all, but the ALJ did not even discuss or mention the pertinent portions of that 15 testimony – as recited above. Instead, the ALJ merely engaged in a discussion of certain mundane 16 aspects of her testimony that were of no real import, and then proceeded to only reject Plaintiff’s 17 own testimony using the meaningless boilerplate phrase that appears in nearly every ALJ decision 18 to the effect that “the claimant’s statements concerning the intensity, persistence and limiting 19 effects of these symptoms is not entirely consistent with the medical evidence and other evidence 20 in the record, for the reasons explained in this decision.” AR at 22. As mentioned above, Ms. 21 Jackson testified, inter alia, that she has to even remind Plaintiff to eat – one would think that 22 testimony from a mother about her 24-year-old son that is so remarkable and so striking would not 23 be so easily overlooked. In any event, the ALJ erred in failing to expressly reject Ms. Jackson’s 24 testimony, and so it goes without saying that the ALJ failed to provide “specific” or “germane” 25 reasoning for disregarding the testimony. See Lewis, 236 F.3d at 511. Thus, because Ms. Jackson’s 26 testimony was improperly rejected, largely by implication and without discussion, that testimony 27 will now be credited as true as a matter of law. See Schneider v. Commissioner of Social Sec. 1 remanding case for payment of benefits). 2 Nature of Remand 3 The decision whether to remand for further proceedings or for payment of benefits 4 generally turns on the likely utility of further proceedings. Carmickle v. Comm’r, SSA, 533 F.3d 5 1155, 1169 (9th Cir. 2008). A district court may “direct an award of benefits where the record has 6 been fully developed and where further administrative proceedings would serve no useful 7 purpose.” Smolen, 80 F.3d at 1292. 8 The Court of Appeals for the Ninth Circuit has established a three-part test “for 9 determining when evidence should be credited and an immediate award of benefits directed.” 10 Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir. 2000). Remand for an immediate award of 11 benefits is appropriate when: (1) the ALJ has failed to provide legally sufficient reasons for 12 rejecting such evidence; (2) there are no outstanding issues that must be resolved before a 13 determination of disability can be made; and, (3) it is clear from the record that the ALJ would be 14 required to find the claimant disabled were such evidence credited. Id. The second and third 15 prongs of the test often merge into a single question; that is, whether the ALJ would have to award 16 benefits if the case were remanded for further proceedings. Id. at 1178 n.2; see also Garrison v. 17 Colvin, 759 F.3d 995, 1021-23 (9th Cir. 2014) (when all three conditions of the credit-as-true rule 18 are satisfied, and a careful review of the record discloses no reason to seriously doubt that a 19 claimant is, in fact, disabled, a remand for a calculation and award of benefits is required). 20 Here, in light of the above-discussed and improperly discredited medical opinion evidence 21 and lay witness testimony – it is clear that the ALJ would be required to find Plaintiff disabled on 22 remand. First, even putting aside Plaintiff’s ADHD, HIV, and Adjustment Disorder (all of which 23 the ALJ erroneously discounted at Step Two), as described by Dr. Wanlass, Plaintiff’s 24 neurocognitive disorder due to traumatic brain injury clearly meets the criteria of Listing 12.02. 25 See 20 C.F.R. Pt. 404, Subpt. P, app. 1 § 12.02. The court notes that the pertinent definitions 26 section (§ 12.00(B)(1)(b)) includes traumatic brain injury in the list of disorders that can cause 27 what would be considered a “major neurocognitive disorder.” To satisfy the criteria of Listing 1 Subpart (A) requires: medical documentation of a significant cognitive decline from a prior level 2 of functioning in one or more of the cognitive areas: complex attention; executive function; 3 learning and memory; language; perceptual-motor; or social cognition. § 12.02(A). Based on Dr. 4 Wanlass’s report, Plaintiff clearly meets all of these criteria – let alone “one or more.” Subpart (B) 5 requires: extreme limitation of one, or marked limitation of two, of the following areas of mental 6 functioning: understanding, remembering, or applying information; interacting with others; 7 concentrating, persisting, or maintaining pace; adapting or managing oneself. § 12.02(B). Based 8 on the combination of the above-discussed medical evidence from Dr. Wanlass and the lay 9 testimony of Plaintiff’s mother, Plaintiff clearly meets or exceeds the criteria of Subpart (B). The 10 alternate provision from Subpart(C) requires: Plaintiff’s mental disorder to be “serious and 11 persistent,” such that there is a medically documented history of the existence of the disorder over 12 a period of at least 2 years, and there is evidence of both: (1) medical treatment, mental health 13 therapy, psychosocial support(s), or a highly structured setting(s) that is ongoing and that 14 diminishes the symptoms and signs of the mental disorder; and marginal adjustment, that is, a 15 minimal capacity to adapt to changes in the claimant’s environment or to demands that are not 16 already part of his daily life. § 12.02(C). Although it would not even be necessary, given that 17 Plaintiff’s condition matches more than the required components of the criteria in Subparts (A) 18 and (B), the court will note that the combination of the evidence from Dr. Wanlass’s evaluation 19 and Mr. Jackson’s lay witness testimony clearly establish that Plaintiff’s condition also satisfies 20 all of the components of Subpart (C) as well. 21 Furthermore, given that Dr. Martin also diagnosed Plaintiff with a depressive disorder (and 22 Dr. Wanlass diagnosed Plaintiff with a chronic adjustment disorder with mixed anxiety and 23 depressed mood), it is highly likely that on remand, Plaintiff’s condition would also meet or equal 24 the criteria of Listing 12.04 (Depressive, Bipolar and related disorders). To satisfy the criteria of 25 Listing 12.04 – it is necessary to satisfy the criteria listed in subparts (A) and (B), or (A) and (C). 26 See id. Subpart (A) requires medical documentation of a depressive disorder, characterized by five 27 or more of the following: depressed mood; diminished interest in almost all activities; appetite 1 retardation; decreased energy; feelings of guilt or worthlessness; difficulty concentrating or 2 thinking; or thoughts of death or suicide. § 12.04(A). Based on Dr. Wanlass’s report, Plaintiff 3 clearly meets seven of these criteria, which is nearly all of them with the exception of observable 4 psychomotor agitation or retardation, and possibly weight loss. Subpart (B) has the same 5 requirements as in Listing 12.02(B); and, as was the case above, based on the combination of the 6 above-discussed medical evidence from Dr. Wanlass and the lay testimony of Plaintiff’s mother, 7 Plaintiff clearly meets or exceeds the criteria of Subpart (B). See § 12.04(B). Likewise, Subpart(C) 8 has the same requirements as in Listing 12.02(C), and, once again, as was the case above, the 9 combination of the evidence from Dr. Wanlass’s evaluation and Ms. Jackson’s lay witness 10 testimony clearly establish that Plaintiff’s condition also satisfies all of the components of Subpart 11 (C) as well. See § 12.04(C). 12 Additionally, even if Plaintiff’s condition did not clearly meet, or equal the severity of the 13 criteria of one or both of these listings; on the basis of the above-discussed evidence that was 14 improperly rejected, the ALJ would be required to find Plaintiff disabled during the formulation of 15 the RFC, as the combination of Dr. Wanlass’s opinions and Ms. Jackson’s testimony clearly 16 establish that Plaintiff has no residual functional capacity. Finally, in the course of the hearing 17 before the ALJ, the VE testified that “[i]f the person is unable to complete job tasks 16 to 20% of 18 every day, a person is not competitively employable.” AR at 88. Therefore, on remand, even if one 19 were to overlook the fact that Plaintiff’s condition clearly meets or equals two separate listings, 20 and that the improperly rejected evidence would clearly result in a work-preclusive RFC, it is 21 equally clear that the ALJ would also be required to find Plaintiff disabled at Step Five based on 22 the VE’s testimony because the rejected evidence established that Plaintiff is simply unable to 23 function in the workplace at all – let alone during a small fraction of each day. 24 At this juncture it should be noted that in cases where each of the credit-as-true factors is 25 met, it is generally only in “rare instances” where a review of the record as a whole gives rise to a 26 “serious doubt as to whether the claimant is actually disabled.” Revels, 874 F.3d at 668 n.8 (citing 27 Garrison, 759 F.3d at 1021). This is not one of those “rare instances.” 1 generalized disagreement with the credit-as-true doctrine (see Def.’s Mot. (dkt. 24) at 10) (“As a 2 || matter of record, the Commissioner disagrees with the credit-as-true rule.”), the court notes that 3 || the Commissioner’s personal opinion notwithstanding, this doctrine constitutes binding authority 4 || in this Circuit — such that it would be an abuse of discretion for this court to remand a case for 5 || further proceedings where the credit-as-true rule is satisfied and the record affords no reason to 6 believe that a Plaintiff is not, in fact, disabled. See Garrison, 759 F.3d at 1021. Needlessly 7 remanding a disability claim for further proceedings would only delay much needed income for 8 claimants who are unable to work and are entitled to benefits, which would in turn subject them to 9 “tremendous financial difficulties while awaiting the outcome of their appeals and proceedings on 10 || remand.” Varney v. Sec’y of Health & Human Servs., 859 F.2d 1396, 1398 (9th Cir. 1988). 11 CONCLUSION 12 Accordingly, for the reasons stated above, Plaintiffs Motion for Summary Judgment (dkt. 13 18) is GRANTED, and Defendant’s Motion for Summary Judgment (dkt. 24) is DENIED. The 14 || ALJ’s finding of non-disability is REVERSED and the case REMANDED for the immediate 3 15 calculation and payment of benefits. A 16 IT IS SO ORDERED. 2 17 Dated: June 16, 2020 Mt Z 19 RQBERT M. ILLMAN 20 United States Magistrate Judge 21 22 23 24 25 26 27 28