Lee v. Saul ( 2021 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 8 A.L., Case No. 20-cv-02245-VKD 9 Plaintiff, ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY 10 v. JUDGMENT AND DENYING DEFENDANT’S CROSS-MOTION FOR 11 KILOLO KIJAKAZI, SUMMARY JUDGMENT Defendant. Re: Dkt. Nos. 20, 22 12 13 14 Plaintiff A.L.1 appeals from a final decision of the Commissioner of Social Security (“the 15 Commissioner”)2 denying her applications for disability insurance benefits and supplemental 16 security income under Titles II and XVI of the Social Security Act (“the Act”), 42 U.S.C. §§ 423, 17 1381, et seq. A.L. contends that the administrative law judge (“ALJ”) erred in four respects. 18 First, A.L. contends that the ALJ improperly weighed the medical opinions of her treating 19 psychiatrist Dr. Haycraft. Second, she contends that the ALJ improperly evaluated her own 20 testimony. Third, she contends that the ALJ failed to consider statements submitted by A.L.’s 21 mother. Fourth, she contends that the ALJ erred in assessing her residual functional capacity 22 (“RFC”) and in finding that she can perform the occupations of small product assembler, packing 23 24 1 Because opinions by the Court are more widely available than other filings, and this order contains potentially sensitive medical information, this order refers to the plaintiff only by her 25 initials. This order does not alter the degree of public access to other filings in this action provided by Rule 5.2(c) of the Federal Rules of Civil Procedure and Civil Local Rule 5- 26 1(c)(5)(B)(i). 27 2 Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Kilolo Kijakazi, Acting 1 line worker, and laundry folder. 2 The parties have filed cross-motions for summary judgment. The matter was submitted 3 without oral argument. Upon consideration of the moving and responding papers and the relevant 4 evidence of record, for the reasons set forth below, the Court grants A.L.’s motion for summary 5 judgment and denies the Commissioner’s cross-motion for summary judgment.3 6 I. BACKGROUND 7 On February 19, 2016, A.L. applied for disability insurance benefits and supplemental 8 security income, when she was 36 years old, alleging that she has been disabled since November 9 23, 2014 due to bipolar disorder, anxiety, depression, left leg tightness, and numbness in part of 10 left foot. AR4 96, 111. 11 A.L. has a high school education and attended some college. AR 51. Her prior work 12 includes jobs as a restaurant hostess, an on-site coordinator for a youth social services agency, and 13 a sales representative at a bike shop. AR 53–59. Since November 2014, she has worked only 14 part-time or approximately no more than 20 hours per week. AR 51–52. 15 A.L.’s applications were denied initially and on reconsideration. AR 108, 123, 142, 160. 16 The ALJ held a hearing and subsequently issued an unfavorable decision on September 26, 2018. 17 AR 35, 94. The ALJ found that A.L. met the insured status requirements of the Act through 18 March 30, 2020 and had not engaged in substantial gainful activity since November 23, 2014. AR 19 27. The ALJ further found that A.L. has the following severe impairments: “mild cervical 20 degenerative disc disease, headaches, and bipolar disorder.” AR 27. However, the ALJ concluded 21 that A.L does not have an impairment or combination of impairments that meets or medically 22 equals the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. 23 AR 27–29. 24 The ALJ determined that A.L. has the RFC to perform light work, as defined in 20 C.F.R. 25 26 3 All parties have expressly consented that all proceedings in this matter may be heard and finally 27 adjudicated by a magistrate judge. 28 U.S.C. § 636(c); Fed. R. Civ. P. 73; Dkt. Nos. 7, 13. 1 §§ 404.1567(b) and 416.967(b), except as follows: 2 [A.L.] can occasionally climb ladders, ropes, or scaffolds and 3 frequently perform other postural maneuvers such as stooping, crouching, and crawling. She can occasionally reach overhead. She 4 must avoid concentrated exposure to hazards. She could do simple routine tasks with only occasional public contact. She could do work 5 that is task-oriented and not production pace. 6 AR 29. The ALJ concluded that although A.L. could not perform any past relevant work, she was 7 able to perform other jobs existing in significant numbers in the national economy, including small 8 product assembler, packing line worker, and laundry folder. AR 33-35. Accordingly, the ALJ 9 concluded that A.L. was not disabled. 10 On February 10, 2020, the Appeals Council denied A.L.’s request for review of the ALJ’s 11 decision. AR 1–4. A.L. then filed this action seeking judicial review of the decision denying her 12 applications for benefits. Dkt. No. 1. 13 II. STANDARD OF REVIEW 14 Pursuant to 42 U.S.C. § 405(g), this Court has the authority to review the Commissioner’s 15 decision to deny benefits. The Commissioner’s decision will be disturbed only if it is not 16 supported by substantial evidence or if it is based upon the application of improper legal 17 standards. Ahearn v. Saul, 988 F.3d 1111, 1115 (9th Cir. 2021) (citation omitted); Morgan v. 18 Comm’r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999) (citation omitted). In this context, 19 the term “substantial evidence” means “more than a mere scintilla” but “less than a 20 preponderance” and is “such relevant evidence as a reasonable mind might accept as adequate to 21 support a conclusion.” Ahearn, 988 F.3d at 1115 (internal quotation marks omitted) (first quoting 22 Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019); and then quoting Molina v. Astrue, 674 F.3d 23 1104, 1110-11 (9th Cir. 2012), superseded by regulation on other grounds); see also Morgan, 169 24 F.3d at 599 (citation omitted). When determining whether substantial evidence exists to support 25 the Commissioner’s decision, the Court examines the administrative record as a whole, 26 considering adverse as well as supporting evidence. Ahearn, 988 F.3d at 1115 (citation omitted); 27 Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). Where evidence exists to support more 1 Ahearn, 988 F.3d at 1115-16 (citation omitted); Morgan, 169 F.3d at 599 (citation omitted). 2 III. DISCUSSION 3 A.L. raises four challenges to the ALJ’s decision. First, A.L. argues that the ALJ erred in 4 assigning only “partial weight” to the medical opinions of treating psychiatrist Daniel Haycraft, 5 M.D., and that the ALJ was required to credit his opinion as a matter of law. Second, A.L argues 6 that the ALJ erred in discounting A.L.’s statements concerning her symptoms as “not entirely 7 consistent” with the medical evidence and other evidence in the record. Third, A.L. argues that 8 the ALJ did not consider the lay witness statement of A.L.’s mother regarding A.L.’s symptoms 9 and limitations. Fourth, A.L. argues that the ALJ erred in assessing her RFC by failing to account 10 for the ALJ’s limitation of production-paced work as defined by the ALJ, and by failing to give 11 adequate weight to Dr. Haycraft’s opinions. 12 A. Assessment of Treating Physician Dr. Haycraft’s Opinions 13 The ALJ appears to have considered only Dr. Haycraft’s opinions as expressed in his April 14 27, 2016 short-form evaluation (AR 644–48) and June 7, 2016 medical source statement (AR 15 686–90). AR 32–33. In his short-form evaluation, Dr. Haycraft wrote that A.L.’s principal 16 diagnosis was “bipolar disorder.” AR 644–48. He found that although A.L. was “well-groomed” 17 and “cooperative,” she had “agitated” motor activity, “rapid” and “pressured” speech, and “poor 18 impulse control.” AR 644. Similarly, Dr. Haycraft found that A.L.’s concentration and judgment 19 were “impaired” to a “moderate” or “mild” degree, and that she experienced auditory 20 hallucinations. AR 645–46. Using checkboxes to rate A.L.’s ability to perform various activities, 21 Dr. Haycraft found that A.L had a “good” ability to understand, remember, and carry out both 22 simple and complex instructions. AR 647. He found that she had a “fair” ability to maintain 23 concentration, attention, and persistence; perform activities within a schedule and maintain regular 24 attendance; interact appropriately with the public; and interact appropriately with coworkers. AR 25 647. Finally, Dr. Haycraft found that A.L. had a “poor”5 ability to complete a normal workday 26 27 5 The form defined the word “poor” as “[t]he evidence supports the conclusion that the individual 1 and workweek without interruptions from psychologically based symptoms; interact appropriately 2 with supervisors; and respond appropriately to changes in a work setting. AR 647. 3 In his medical source statement, Dr. Haycraft found that A.L. was limited to a “moderately 4 severe”6 degree in her ability to remember locations and work-like procedures; perform activities 5 within a schedule; maintain regular attendance and be punctual within customary tolerances; 6 sustain an ordinary routine without special supervision; work in coordination with or proximity to 7 others without being unduly distracted by them; complete a normal workday and workweek 8 without interruptions from psychologically based symptoms and to perform at a consistent pace 9 without an unreasonable number and length of rest periods; accept instructions and to respond 10 appropriately to criticism from supervisors; and respond appropriately to changes in the work 11 setting. AR 687–88. Dr. Haycraft also found that A.L. was limited to a “moderate”7 degree in her 12 ability to understand and remember detailed instructions; carry out detailed instructions; maintain 13 attention and concentration for extended periods (the approximately 2-hour segments between 14 arrival and first break, lunch, second break, and departure); complete a normal workday and 15 workweek without interruptions from psychologically based symptoms and to perform at a 16 consistent pace without an unreasonable number and length of rest periods [Dr. Haycraft checked 17 this statement in two categories: moderate and moderately severe]; and be aware of normal 18 hazards and take appropriate precautions. AR 687–88. In addition, the form specifically instructs 19 medical sources: “[D]o not include limitations which would go away if the individual stopped 20 using drugs or alcohol.” AR 686 (emphasis in original). 21 The ALJ gave only “partial weight” to Dr. Haycraft’s opinions, which she explained as 22 follows: 23 24 6 The form defined a “moderately severe” limitation as “[a] limitation which seriously interferes 25 with the individual’s ability to perform the designated activity, and precludes the ability to perform the designated activity on a regular and sustained basis, i.e., 8 hours a day, 5 days a 26 week, or an equivalent work schedule.” AR 686 (emphasis in original). 27 7 The form defined a “moderate” limitation as “[a] limitation which seriously interferes with the [T]here is no evidence [A.L.] would have a poor ability to interact 1 with supervisors or respond to changes in the work setting. The medical evidence of record shows the claimant did not usually 2 complain about serious problems with adaptation and managing herself. Observations of treating practitioners generally show the 3 claimant had no deficiencies in hygiene and wore appropriate attire. She was the primary caregiver for her 11-year-old son and she lived 4 independently. 5 AR 33. 6 A.L. contends that the ALJ erred in giving only “partial weight” to Dr. Haycraft’s opinions 7 because she did not provide sufficient reasons for discounting his opinions. Dkt. No. 20-1 at 8– 8 12; Dkt. No. 23 at 2. A.L. also takes issue with the ALJ’s reasoning, arguing that “[A.L.’s] ability 9 to maintain her personal hygiene or wear appropriate attire to a medical appointment with a 10 familiar and trusted doctor does not translate to an ability to respond appropriate to supervisors in 11 a work setting or to manage unexpected changes in the work setting without serious worsening of 12 her symptoms.” Id. at 4. The Commissioner argues that (1) the ALJ properly assigned greater 13 weight to the opinions of non-examining sources Harvey Balik, Psy.D., and Thomas Stern, Ph.D., 14 who reviewed A.L.’s disability benefits applications at the initial and reconsideration levels, 15 respectively; and (2) the ALJ did provide specific and legitimate reasons for assigning Dr. 16 Haycraft’s opinions only partial weight. Dkt. No. 22 at 5–9. The Court agrees with A.L. 17 For Social Security applications filed before March 27, 2017, under the “treating physician 18 rule,” “[t]he medical opinion of a claimant’s treating doctor is given ‘controlling weight’ so long 19 as it ‘is well-supported by medically acceptable clinical and laboratory diagnostic techniques and 20 is not inconsistent with the other substantial evidence in [the claimant’s] case record.’” Revels v. 21 Berryhill, 874 F.3d 648, 654 (9th Cir. 2017) (quoting 20 C.F.R. § 404.1527(c)(2)); see also 20 22 C.F.R. § 416.927(c)(2) (2016) (same). “When a treating doctor’s opinion is not controlling, it is 23 weighted according to factors such as the length of the treatment relationship and the frequency of 24 examination, the nature and extent of the treatment relationship, supportability, and consistency 25 with the record.” Revels, 874 F.3d at 654 (citing 20 C.F.R. § 404.1527(c)(2)–(6)); see also 20 26 C.F.R. § 416.927(c)(2)–(6) (same). 27 When an ALJ gives a treating physician’s opinion less than controlling weight, the ALJ 1 treatment relationship and the frequency of examination, the nature and extent of the treatment 2 relationship, supportability, consistency with the record, and specialization of the physician. 20 3 C.F.R. § 416.927(c)(2)–(6); Trevizo v. Berryhill, 871 F.3d 664, 675 (9th Cir. 2017) (citing 20 4 C.F.R. § 404.1527(c)(2)–(6)). Consideration must also be given to other factors, whether raised 5 by the claimant or by others, or if known to the ALJ, including the amount of relevant evidence 6 supporting the opinion and the quality of the explanation provided; the degree of understanding a 7 physician has of the Commissioner’s disability programs and their evidentiary requirements; and 8 the degree of his or her familiarity with other information in the case record. 20 C.F.R. 9 §§ 416.927(c)(6), 404.1527(c)(6) (2016); Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007). The 10 failure to consider these factors, by itself, constitutes reversible error. Trevizo, 871 F.3d at 676. 11 Second, the ALJ must provide reasons for rejecting or discounting the treating physician’s 12 opinion. Here, because Dr. Haycraft’s opinions are contradicted by the opinions of Drs. Balik and 13 Stern, the ALJ was required to provide “specific and legitimate reasons” for rejecting or 14 discounting the treating physician’s opinion, supported by substantial evidence. Id. at 675. “The 15 ALJ can meet this burden by setting out a detailed and thorough summary of the facts and 16 conflicting clinical evidence, stating his interpretation thereof, and making findings.” Magallanes 17 v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (quotations and citation omitted). 18 With respect to the ALJ’s first responsibility—consideration of other factors—the ALJ did 19 not address any of the factors listed under 20 C.F.R. § 404.1527(c)(2)–(6), which provides: 20 When we do not give the treating source’s medical opinion controlling weight, we apply the factors listed in paragraphs (c)(2)(i) 21 and (c)(2)(ii) of this section, as well as the factors in paragraphs (c)(3) through (c)(6) of this section in determining the weight to give the 22 medical opinion. We will always give good reasons in our notice of determination or decision for the weight we give your treating 23 source’s medical opinion. 20 C.F.R. § 404.1527(c)(2). In the Ninth Circuit, “[t]he ALJ is required to consider the factors set 24 out in 20 C.F.R. § 404.1527(c)(2)–(6) in determining how much weigh to afford the treating 25 physician’s medical opinion.”). Ghanim v. Golvin, 763 F.3d 1154, 1161 (9th Cir. 2014) (emphasis 26 added). The ALJ did not discuss any of the factors as relevant to Dr. Haycraft. See AR 32–33. 27 1 With respect to the ALJ’s second responsibility—providing reasons for rejecting or 2 discounting the treating physician’s opinion—the ALJ did not provide specific and legitimate 3 reasons for discounting Dr. Haycraft’s opinions. First, the ALJ found that “there is no evidence 4 [A.L.] would have a poor ability to interact with supervisors or respond to changes in the work 5 setting. The medical evidence of record shows the claimant did not usually complain about 6 serious problems with adaptation and managing herself.” AR 33. However, the ALJ’s assessment 7 is not supported by substantial evidence. Dr. Haycraft’s treatment notes document A.L.’s 8 hospitalization for mental health treatment on July 15, 2015 after she expressed thoughts of 9 driving her car into a tree, AR 511, her resignation from a job (recorded by Dr. Haycraft on 10 October 20, 2015) due to her absenteeism and inability to motivate herself to go to work, AR 609, 11 and her continuously feeling “anxious [and] jittery,” AR 609. From January 2016 through March 12 2016, A.L. continued to experience occasional auditory hallucinations and thoughts of self-harm, 13 along with “a lot of mood volatility”; she was “anxious, tearful, easily triggered by authority 14 figures which interferes with her ability to function in her job role.” AR 630. Dr. Haycraft’s 15 treatment notes regarding A.L.’s ability to adapt and manage herself are consistent with another 16 treating physician’s notes in the record. Shortly before A.L.’s onset date of November 23, 2014, 17 Charles Hudson, M.D., wrote on October 13, 2014 that A.L.’s symptoms “intrude in her work 18 which is otherwise going well,” AR 566. On February 18, 2015, Dr. Hudson also observed that 19 A.L.’s voices in her head were “intensifying” and that she had been unable to work as a result of 20 her symptoms; further, A.L. had found it “more difficult to be engaged with her son.” AR 578. 21 The ALJ appears to have overlooked this evidence in the record. 22 Second, the Court is not persuaded that the ALJ’s second reason that A.L. generally “had 23 no deficiencies in hygiene and wore appropriate attire” at her medical appointments supports the 24 ALJ’s conclusion that Dr. Haycraft’s opinions about A.L.’s ability to adapt and manage herself in 25 the workplace should be discounted. As A.L. argues, “[her] ability to maintain her personal 26 hygiene or wear appropriate attire to a medical appointment with a familiar and trusted doctor 27 does not translate to an ability to respond appropriately to supervisors in a work setting or to 1 No. 23 at 4, and the ALJ has not explained why it should so translate. 2 Third, the ALJ found that A.L. “was the primary caregiver for her 11-year-old son8 and she 3 lived independently,” AR 33, but this was not a specific and legitimate reason to discount Dr. 4 Haycraft’s opinions because the ALJ did not develop the record regarding the extent of A.L.’s 5 responsibilities in caring for her son from the onset of her disability on November 23, 2014 to the 6 date of the hearing. At the hearing, the ALJ asked: “What kinds of things do you do with your 14- 7 year-old?” AR 80. A.L. responded: “We sit at home a lot, and he plays on his phone. I don’t go 8 out very much because I have a lot of paranoia.” AR 80. A.L. went on to describe activities such 9 as “toss[ing] the football around, but not very often,” and “spend[ing] time at the pool,” during 10 which A.L. would “sit on the sidelines.” AR 80. Sometimes A.L. would go to the beach or go 11 fishing with her son, but she added that “that’s kind of difficult for me.” AR 81. A.L.’s 12 participation in these occasional recreational activities is not substantial evidence of an ability to 13 interact with supervisors appropriately or to respond to changes in the work setting. Furthermore, 14 the ALJ’s characterization of A.L.’s caregiving relationship to her son during her period of 15 disability is not supported by substantial evidence, as Dr. Hudson’s October 3, 2016 notes reflect 16 that A.L.’s son moved to Colorado “permanently” to be with his father there, and that A.L. would 17 “no longer have primary custody.” AR 797. Even in the year prior, Dr. Hudson’s February 18, 18 2015 notes reflected A.L.’s concern that she found “it is more difficult to be engaged with her son 19 which had been a symptom she had had when [Dr. Hudson] initially began seeing her.” AR 578. 20 Accordingly, the Court finds that the ALJ did not follow the required methodology for 21 evaluating a treating physician’s medical opinion, and did not provide specific and legitimate 22 reasons, supported by substantial evidence, for discounting Dr. Haycraft’s opinions. 23 B. Assessment of A.L.’s Subjective Testimony 24 A.L. argues that the ALJ improperly discounted her subjective testimony that she cannot 25 work full-time because she finds it hard to cope with everyday interactions with people due to the 26 severity of her symptoms, which include auditory hallucinations and anxiety. Dkt. No. 20-1 at 27 1 16–19. The Commissioner responds that the ALJ properly found A.L.’s testimony not entirely 2 consistent with the record. Dkt. No. 22 at 14–18. The Court agrees with A.L. 3 In assessing a claimant’s subjective testimony, an ALJ conducts a two-step analysis. First, 4 “the claimant ‘must produce objective medical evidence of an underlying impairment’ or 5 impairments that could reasonably be expected to produce some degree of symptom.” Tommasetti 6 v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) (quoting Smolen v. Chater, 80 F.3d 1273, 1281-82 7 (9th Cir. 1996)). If the claimant does so, and there is no affirmative evidence of malingering, then 8 the ALJ can reject the claimant’s testimony as to the severity of the symptoms “‘only by offering 9 specific, clear and convincing reasons for doing so.’” Id. (quoting Smolen, 80 F.3d at 1281); see 10 also Burrell v. Colvin, 775 F.3d 1133, 1137 (9th Cir. 2014) (“We therefore review the ALJ’s 11 discrediting of Claimant’s testimony for specific, clear, and convincing reasons.”). 12 Here, A.L. testified that as to the severity of her symptoms dating back to 2003 through the 13 hearing date. AR 60–81. She testifies that she “suffer[s] from bipolar disorder. [She] also [has] 14 anxiety and depression, but the anxiety and the, the manic state of the bipolar cause [her] to hear 15 voices and it makes it difficult for [her] to function. Whether it be at work, at meetings that [she] 16 go[es] to, out in society, just visiting with friends, recreational activities.” AR 59. According to 17 A.L., her “mania [had] increased, and the anxiety [had] increased.” AR 70. She also had 18 “nightmares almost every night.” AR 70. Since 2014, the voices in A.L.’s head have “been more 19 intrusive.” AR 72. These symptoms of mania made “it hard for [A.L.] to cope,” whether with 20 “interactions with her son, with the teller at the grocery, at the bank, or the cashier at the grocery 21 store, when [] taking [her] clients out to go [] grocery shopping.” AR 73. She described having to 22 cancel shifts or leave early at least one to three days a month. AR 73. Further, when asked by her 23 attorney if her depression ever prevented her from leaving her home, she replied, “One day a 24 month, maybe.” AR 76. 25 The ALJ found that A.L.’s medically determinable impairments could reasonably be 26 expected to cause her alleged symptoms; however, she also found that A.L.’s statements 27 concerning the intensity, persistence, and limiting effects of her symptoms are not entirely 1 not identify any affirmative evidence of malingering, she was required to provide “specific, clear 2 and convincing reasons” for this determination. Tommasetti, 533 F.3d at 1039 (citation and 3 internal quotation marks omitted). The Court finds the ALJ failed to do so. 4 The ALJ discounted A.L.’s testimony about her symptoms because “[t]he medical records 5 reveal that the medications have been relatively effective in controlling the claimant’s symptoms. 6 When she is on medications, she is able to function despite auditory hallucinations.” AR 30. The 7 ALJ cited no basis for these assertions, nor did she clarify what degree of “functioning” A.L. 8 demonstrated despite her auditory hallucinations. See AR 30. Citing “Exhibit 15F/34,” the ALJ 9 wrote: “Notes stated that she was not taking medications as prescribed which may be contributing 10 to auditory hallucinations.” The cited exhibit contains A.L.’s medical records and treating 11 providers’ notes between August 29, 2017 and November 16, 2017. AR 871–905. It reflects that 12 on one occasion (August 29, 2017), A.L. expressed a desire for a higher dose of Oxcarbazepine, as 13 she realized that she had only been taking one-half the prescribed dosage. AR 903. According to 14 the treating provider’s notes, A.L. herself thought “this may be contributing to the increase in 15 auditory hallucinations over the past month.” AR 903. The provider, Paula Pelavin, P.A., did not 16 express an opinion on the effect of this dosage on A.L.’s auditory hallucinations. AR 903–904. 17 Moreover, the cited exhibit reflects that on September 21, 2017, when A.L. was taking a higher 18 dosage of Oxcarbazepine, the treating provider, Michael Bartos, M.D., noted that “[a]uditory 19 hallucinations have been prominent, even today.” AR 894–96. One month later, the same doctor 20 noted on October 31, 2017, A.L. “recently had acute worsening of auditory hallucinations and 21 anxiety,” even though she “enjoy[s] her work at the cat adoption agency.” AR 879. These 22 treatment records, viewed together, do not provide substantial evidence to support the ALJ’s 23 conclusion that A.L.’s auditory hallucinations do not seriously impair her functioning when she 24 takes her medications. 25 The ALJ also discounted A.L.’s testimony because she found that, in 2018, treatment notes 26 reflect that A.L. “was better overall, playing softball most Saturdays, and she was able to continue 27 to work and was increasing her hours (Exhibit 17F/5, 9, 11). The claimant was able to learn 1 attaining a second job, attending narcotics anonymous, and her programs (Exhibit 13F).” AR 30. 2 However, these reasons for discrediting A.L.’s testimony are not specific, clear, and convincing. 3 As the Ninth Circuit has emphasized, “it is error to reject a claimant’s testimony merely because 4 symptoms wax and wane in the course of treatment. Cycles of improvement and debilitating 5 symptoms are a common occurrence, and in such circumstances it is error for an ALJ to pick out a 6 few isolated instances of improvement over a period of months or years and to treat them as a 7 basis for concluding a claimant is capable of working.” Garrison, 759 F.3d at 1017. 8 In support of her reasoning, the ALJ cited notes from March 27, 2018 (“She reports doing 9 better overall, less depressed, not having self-deprecating thoughts, voices are much less.”) (AR 10 938), April 3, 2018 (“Has been playing softball most Saturdays which seems to help [A.L.’s neck 11 pain] but then worsening the pain overall.”) (AR 936), and April 12, 2018 (“She is able to 12 continue working and is increasing her hours.”) (AR 932). To support the assertion that A.L. “was 13 able to learn coping tools for auditory hallucinations” and that she “was functioning through 14 working, even attaining a second job, attending narcotics anonymous, and her programs,” the ALJ 15 also cited a letter from Catherina Forsythe, L.M.F.T., who summarized in a single paragraph her 16 sixteen therapy sessions with A.L., held between August 23, 2017 and January 16, 2018. AR 823. 17 However, Ms. Forsythe’s notes do not state that the “mindfulness and grounding tools” she taught 18 A.L. were effective in treating A.L.’s auditory hallucinations, and indeed, Ms. Forsythe wrote that 19 “Ct [client] was continuously unstable stating new medications as the cause” and that A.L. “was 20 struggling to get regulated on her meds.” AR 823. Nor do Ms. Forsythe’s notes explain how 21 many hours A.L. worked during the week with the addition of a second job, and whether this 22 amounted to full-time work. AR 823. 23 In sum, the records cited by the ALJ do not provide substantial evidence for her 24 conclusion that A.L. was “functioning” adequately despite her auditory hallucinations and anxiety. 25 The ALJ’s discussion of the evidence ignores other evidence in the record that contradicts the 26 ALJ’s conclusions. See Ahearn, 988 F.3d at 1115 (“To determine whether substantial evidence 27 supports the ALJ’s determination, we must assess the entire record, weighing the evidence both 1 Colvin, No. ED CV 14-2146-PLA, 2015 WL 4507174, at *6 (C.D. Cal. July 23, 2015) (“An ALJ 2 may not cherry-pick evidence to support the conclusion that a claimant is not disabled, but must 3 consider the evidence as a whole in making a reasoned disability determination.”) (citing Holohan 4 v. Massanari, 246 F.3d 1195, 1207 (9th Cir. 2001)). 5 Accordingly, the Court finds that the ALJ did not provide clear and convincing reasons for 6 discounting A.L.’s testimony about her auditory hallucinations and anxiety and their impact on her 7 ability to work. 8 C. Assessment of Lay Witness Statements 9 A.L. argues that the ALJ improperly rejected her mother’s statements about A.L.’s 10 inability to stay with one job due to her emotions. Dkt. No. 20-1 at 19–20. The Commissioner 11 concedes that the ALJ did not provide any reasons for failing to discuss A.L.’s mother’s 12 statements but argues that this was harmless error. Dkt. No. 22 at 19–20. The Court agrees with 13 A.L. 14 A.L.’s mother, Cynthia Aultman, completed a third-party function report on April 25, 15 2016 in connection with A.L.’s disability applications. AR 368–75. Ms. Aultman reported that 16 A.L.’s “emotions . . . make it very hard to stay with one job. She will often have to just leave a 17 situation to keep from losing control. Most jobs can’t accept that. Just the drive alone is hard.” 18 AR 368. Ms. Aultman also stated that “[A.L.’s] 12 year old son is able to do a lot for himself but 19 she makes his meals, laundry and housework.” AR 369. Ms. Aultman also confirmed A.L.’s 20 symptom of “hearing voices causing paranoia.” AR 373. The ALJ did not refer to this evidence 21 in her decision. 22 “In determining whether a claimant is disabled, an ALJ must consider lay witness 23 testimony concerning a claimant’s ability to work.” Stout v. Commissioner of Social Security 24 Admin., 454 F.3d 1050, 1053 (9th Cir. 2006). “Indeed, lay testimony as to a claimant’s symptoms 25 or how an impairment affects ability to work is competent evidence … and therefore cannot be 26 disregarded without comment.” Id. (citations and internal quotation marks omitted). 27 “Consequently, if the ALJ wishes to discount the testimony of lay witnesses, he must give reasons 1 an ALJ is not required to “discuss every witness’s testimony on a[n] individualized, witness-by- 2 witness basis. Rather, if the ALJ gives germane reasons for rejecting testimony by one witness, 3 the ALJ need only point to those reasons when rejecting similar testimony by a different witness.” 4 Molina, 674 F.3d at 1114. “Where lay witness testimony does not describe any limitations not 5 already described by the claimant, and the ALJ’s well-supported reasons for rejecting the 6 claimant’s testimony apply equally well to the lay witness testimony, it would be inconsistent with 7 our prior harmless error precedent to deem the ALJ’s failure to discuss the lay witness testimony 8 to be prejudicial per se.” Id. at 1117. 9 Here, the Commissioner argues that “the ALJ’s failure to discuss Plaintiff’s mother’s 10 testimony was harmless because it was nearly identical to Plaintiff’s testimony, for which the ALJ 11 provided ample evidence to find inconsistences with the record.” As the ALJ did not provide 12 adequate reasons for discounting A.L.’s testimony, and did not otherwise give a germane reason 13 for ignoring Ms. Aultman’s statements, her failure to consider this lay witness evidence is not 14 harmless. 15 D. Assessment of Vocational Expert Testimony 16 A.L. argues that the ALJ’s step-five finding was not supported by substantial evidence, 17 because an apparent conflict existed between the vocational expert’s testimony and the Dictionary 18 of Occupational Titles (“DOT”) that the ALJ should have recognized and asked the vocational 19 expert to explain. Dkt. No. 20-1 at 24–26. A.L. also contends that the ALJ improperly omitted 20 from the hypothetical posed to the vocational expert certain critical limitations on A.L.’s ability to 21 perform work. Dkt. No. 20-1 at 22; Dkt. No. 23 at 10. The Commissioner responds that the ALJ 22 properly evaluated the vocational expert testimony in conjunction with the DOT, as well as all the 23 evidence to determine RFC best supported by substantial evidence. Dkt. No. 22 at 20–22. The 24 Court agrees with A.L. 25 1. Production-paced work 26 At step 5, “the Commissioner has the burden to identify specific jobs existing in substantial 27 numbers in the national economy that [a] claimant can perform despite [his] identified 1 § 416.920(g). After assessing the claimant’s RFC, the ALJ must consider potential occupations 2 that the claimant may be able to perform. Id.; 20 C.F.R. § 416.966. In making this determination, 3 the ALJ relies on the DOT, which is the Social Security Administration’s “primary source of 4 reliable job information” regarding jobs that exist in the national economy. Zavalin, 778 F.3d at 5 846 (citation omitted). The DOT describes the requirements for each listed occupation. See, e.g., 6 Code 753.687-038, “Packing-Line Worker (rubber goods),” Dictionary of Occupational Titles (4th 7 ed., rev. 1991). 8 In addition to the DOT, the ALJ relies on the testimony of vocational experts who testify 9 about specific occupations that a claimant can perform in light of her residual functional capacity. 10 Zavalin, 778 F.3d at 846; 20 C.F.R. § 416.966(e). To conclude the step 5 analysis, the ALJ 11 determines “whether, given the claimant’s [residual functional capacity], age, education, and work 12 experience, he actually can find some work in the national economy.” Zavalin, 778 F.3d at 846 13 (citation omitted); see also 20 C.F.R. § 416.920(g). 14 “When there is an apparent conflict between the vocational expert’s testimony and the 15 DOT—for example, expert testimony that a claimant can perform an occupation involving DOT 16 requirements that appear more than the claimant can handle—the ALJ is required to reconcile the 17 inconsistency.” Zavalin, 778 F.3d at 846 (quoting Massachi v. Astrue, 486 F.3d 1149, 1153–54 18 (9th Cir. 2007)). Before relying on the expert’s testimony to reach a disability determination, the 19 ALJ must ask the expert to explain the conflict and “then determine whether the vocational 20 expert’s explanation for the conflict is reasonable.” Id.; see also Social Security Ruling 00-4P, 21 2000 WL 1898704, at *2 (Dec. 4, 2000). The ALJ’s failure to resolve an apparent inconsistency 22 may preclude this Court from determining that the ALJ’s decision is indeed supported by 23 substantial evidence. Zavalin, 778 F.3d at 846 (quoting Massachi, 486 F.3d at 1154). 24 As an initial matter, the vocational expert’s testimony did not account for the limitation 25 the ALJ identified with respect to limiting the claimant to task-oriented, as opposed to production- 26 paced, work. In response to the third hypothetical posed by the ALJ, which added the limitation 27 of “work[ing] best in an environment that was task oriented, as opposed to production pace,” AR 1 positions available by 20%, the number of packing line worker positions available by 75%, and 2 the number of assembler of small products positions available by 50%. AR 88–89. But the 3 vocational expert did so in reliance on her own interpretation of “production pace[d]” work as 4 distinguished from “task oriented work.” See AR 90 (vocational expert testified that work at a 5 “production pace has to deal more with having more strict numbers,” while “task-oriented work” 6 involves “completing tasks that the employer wants you [to] complete during a certain [] period of 7 a day”). The vocational expert’s definition of production-paced work is inconsistent with ALJ’s 8 explanation that production-paced work is work at a set pace, such as on an assembly line. See 9 AR 91 (ALJ explained that production-paced work is “set independent of the worker” “because 10 it’s an assembly line” or because “there’s somebody else relying on that worker to get their work 11 done at[] a certain pace”). The vocational expert appears to have based her opinion of the number 12 of jobs available on a somewhat different understanding. 13 Given the ALJ’s definition of production-paced work, an apparent conflict exists between 14 the vocational expert’s testimony and the DOT that the ALJ should have recognized and asked the 15 vocational expert to explain. See Zavalin, 778 F.3d at 846. The DOT description of assembler of 16 small products, provides, in relevant part: “Performs any combination of following repetitive tasks 17 on assembly line to mass produce small products … Frequently works at bench as member of 18 assembly group assembling one or two specific parts and passing unit to another worker.” Code 19 706.684-022, “Assembler, Small Products I (any industry) alternate titles: bench assembler,” 20 Dictionary of Occupational Titles (4th ed., rev. 1991) (emphases added). Similarly, the DOT 21 description of packing-line worker provides, in relevant part: “Performs any combination of 22 following tasks as member of conveyor line crew to finish and pack plastic or rubber footwear.” 23 Code 753.687-038, “Packing-Line Worker (rubber goods),” Dictionary of Occupational Titles (4th 24 ed., rev. 1991) (emphasis added). Such work is the sort of activity the ALJ described as 25 “production-paced work” that A.L. could not perform. 26 Such error was not harmless. While the laundry folder job does not have a production pace 27 requirement, there are only 2,400 “folder (laundry & rel.)” jobs nationwide. AR 88. It is not clear 1 the national economy. See 20 C.F.R. § 404.1566(b) (“Isolated jobs that exist only in very limited 2 numbers in relatively few locations outside of the region where you live are not considered “work 3 which exists in the national economy”); Randazzo v. Berryhill, 725 F. App’x 446, 448 (9th Cir. 4 2017) (10,000 electrical accessories assembler jobs “may not amount to a significant number of 5 jobs in the national economy”); Gutierrez v. Comm’r of Soc. Sec., 740 F.3d 519, 528–29 (9th Cir. 6 2014) (25,000 jobs in the national economy presented a close call but was a sufficiently significant 7 number); Beltran v. Astrue, 700 F.3d 386, 390 (9th Cir. 2012) (given claimant’s limitations, “it 8 would be unconscionable” to expect her to find even one of the “1,680 [surveillance system 9 monitor] jobs scattered across several regions”). 10 2. Additional limitations 11 A.L. argues that the ALJ’s hypothetical improperly omitted limitations based on Dr. 12 Haycraft’s opinions, A.L.’s own testimony, and her mother’s statement. Dkt. No. 20-1 at 22; Dkt. 13 No. 23 at 10. A.L.’s argument on this point is not well-developed, and she does not say precisely 14 what limitations she believes should have been included in the ALJ’s RFC. However, as 15 discussed above, because the ALJ improperly discounted Dr. Haycraft’s medical opinions and 16 A.L.’s own testimony concerning her symptoms, and failed to consider A.L.’s mother’s 17 statements, it will be necessary for the ALJ to reconsider the limitations on A.L.’s ability to 18 perform work on remand. 19 IV. DISPOSITION 20 “When the ALJ denies benefits and the court finds error, the court ordinarily must remand 21 to the agency for further proceedings before directing an award of benefits.” Leon v. Berryhill, 22 880 F.3d 1041, 1045 (9th Cir. 2017) (citing Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 23 1090, 1099 (9th Cir. 2014)). Because it is not clear from the record that the ALJ would be 24 required to find A.L. disabled if all the evidence were properly evaluated, remand is appropriate. 25 On remand, the ALJ must reassess Dr. Haycraft’s opinions in view of the record as a whole and 26 provide legally adequate reasons for any portion of that opinion or statement that the ALJ 27 discounts or rejects. The ALJ must provide clear and convincing reasons for discounting A.L.’s 1 Further, the ALJ should reconsider A.L.’s RFC and reassess whether specific jobs exist in 2 substantial numbers in the national economy that A.L. can perform despite her limitations. 3 || V.. CONCLUSION 4 Based on the foregoing, A.L.’s motion for summary judgment is granted on the grounds 5 explained above, the Commissioner’s cross-motion for summary judgment is denied, and this 6 || matter is remanded for further proceedings consistent with this order. The Clerk of the Court shall 7 enter judgment accordingly and close the file. 8 IT IS SO ORDERED. 9 Dated: December 6, 2021 10 2 □ 11 VIRGINIA K. DEMARCHI 12 United States Magistrate Judge 15 16 = 17 Z 18 19 20 21 22 23 24 25 26 27 28