Vader v. Social Security Administration ( 2020 )

2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 ROSE V., Case No.: 3:19-cv-703-AHG 11 Plaintiff, ORDER RESOLVING PLAINTIFF’S 12 v. MOTION FOR JUDICIAL REVIEW, 13 REVERSING DENIAL OF ANDREW SAUL, Commissioner of BENEFITS, AND REMANDING FOR 14 Social Security , PAYMENT OF BENEFITS Defendant. 15 [ECF No. 20] 16 17 Plaintiff Rose V. (“Plaintiff”) filed this action on April 17, 2019, seeking review of 18 the Commissioner of Social Security’s (“Commissioner”) denial of her application for 19 social security disability and supplemental security income benefits. ECF No. 1. The 20 parties consented to proceed before a Magistrate Judge on April 29, 2019. ECF No. 5. 21 Pursuant to the Court’s Order (ECF No. 17), Plaintiff filed her merits brief on 22 February 5, 2020. ECF No. 20. The Commissioner timely filed his opposition brief on 23 March 11, 2020. ECF No. 23. Plaintiff did not file a reply brief. The Court found this 24 motion suitable for determination on the papers and, in accordance with Civil Local Rule 25 7.1(d)(1), it has taken the briefing under submission without oral argument. 26 After a thorough review of the motion, the administrative record, and applicable law, for the reasons set forth below, the Court GRANTS Plaintiff’s motion, REVERSES the 27 2 Plaintiff was born in 1969. Administrative Record (“AR”) at 28. The record 3 demonstrates that she has not been employed for the past 15 years,1 so she is considered to have no relevant past work. AR 27–28. 4 On June 3, 2015, Plaintiff filed an application for Social Security Disability 5 Insurance, alleging a disability onset date of January 1, 2000.2 AR 20, 150. The 6 Commissioner denied Plaintiff’s claim on October 27, 2015, and denied Plaintiff’s request 7 for reconsideration of the denial on March 18, 2015. AR 83, 89. Plaintiff requested a 8 hearing before an Administrative Law Judge (“ALJ”), which was held on March 12, 2018. 9 AR 35, 43. Plaintiff was represented by counsel at the hearing, and provided testimony. 10 AR 43–57, 112. A vocational expert also testified. AR 53–54. 11 On May 11, 2018, the ALJ issued a decision denying Plaintiff’s request for benefits, 12 finding that Plaintiff had not been under a disability within the meaning of the Social 13 Security Act from January 1, 2015, through the date of his decision. AR 20–29. Plaintiff 14 requested review of the ALJ’s decision by the Appeals Council. AR 250–53. When the 15 Appeals Council denied Plaintiff’s request for review on November 30, 2018 (AR 6–8), 16 the ALJ’s decision became the final decision of the Commissioner. See Sam v. Astrue, 550 17 F.3d 808, 810 (9th Cir. 2008). 18 II. THRESHOLD ISSUE OF TIMELINESS 19 Claimants appealing from adverse decisions by the Commissioner of Social Security 20 “may obtain a review of such decision by a civil action commenced within sixty days after 21 22 1 Plaintiff does, however, have a few weeks of work experience during high school. 23 In 1984, Plaintiff briefly worked at Pizza Inn; in 1985, she briefly worked at Jack in the 24 Box and Wendy’s; in 1986, she briefly worked at Sutherland Management Company; in 1987, she briefly worked at another Jack in the Box; and in 1989, she worked at Lerner 25 New York. AR 169–70. The lengths of her employment at each were from one day to one week. AR 246. 26 27 2 Even if a claimant is ultimately found disabled and entitled to supplemental security 2 file a civil action within the prescribed 60-day time frame, she loses the right to judicial 3 review. 20 C.F.R. § 404.900(b). Here, the Appeals Council Letter explained these rules and regulations to Plaintiff, in plain and clear language. See ECF No. 14-2 at 7–11 (Appeals 4 Council Letter, stating “[i]f you disagree with our action, you may ask for court review of 5 the Administrative Law Judge’s decision by filing a civil action. … You have 60 days to 6 file a civil action []. The 60 days starts the date after you receive this letter. We assume you 7 received this letter 5 days after the date on it unless you show us that you did not receive it 8 within the 5-day period.”). Courts have dismissed cases filed only days after the expiration 9 of the statute of limitations. See, e.g., Del Rosario v. Berryhill, No. 18cv7191-DMR, 2019 10 WL 5067011, at *16 (N.D. Cal. Oct. 9, 2019) (dismissing complaint filed two days late); 11 Atherton v. Colvin, No. CV13-4870-AS, 2014 WL 580167, at *4 (C.D. Cal. Feb. 12, 2014) 12 (dismissing complaint filed four days late). 13 Plaintiff had sixty-five days from the date the Appeals Council Letter was mailed, 14 i.e., until February 3, 2019, to file a civil action seeking judicial review of the 15 Commissioner’s final decision. See AR 6–8 (Appeals Council Letter, mailed on November 16 30, 2020). On January 23, 2019, Plaintiff requested an extension of the filing deadline. AR 17 4. On March 15, 2019, the Administrative Appeals Judge granted Plaintiff’s request and 18 gave Plaintiff a 30-day extension. AR 1. Thus, Plaintiff had 35 days from the date the letter 19 was mailed to file a civil action. AR 1; see 20 C.F.R. § 422.210(c) (date of receipt is 20 presumed to be 5 days after letter date). Plaintiff initiated the current action on April 17, 2019—33 days after the letter was mailed. See ECF No. 1. Thus, Plaintiff’s 21 complaint is timely. 22 23 24 25 3 Although § 405(g) uses the word “mailing,” the regulation provides that a civil action 26 “must be instituted within 60 days after the Appeals Council’s notice . . . is received by the 27 individual” and that “the date of receipt . . . shall be presumed to be 5 days after the date 2 Persons are “disabled” for purposes of receiving Social Security benefits if they are 3 unable “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or 4 which has lasted or can be expected to last for a continuous period of not less than twelve 5 months.” Garcia v. Comm’r of Soc. Sec., 768 F.3d 925, 930 (9th Cir. 2014) (quoting 42 6 U.S.C. § 423(d)(1)(A)). 7 A. The Five-Step Evaluation Process 8 The ALJ follows a five-step sequential evaluation process in assessing whether a 9 claimant is disabled. 20 C.F.R. § 416.920; Tackett v. Apfel, 180 F.3d 1094, 1098–99 (9th 10 Cir. 1999). In the first step, the ALJ must determine whether the claimant is currently 11 engaged in substantial gainful activity; if so, the claimant is not disabled and the claim is 12 denied. Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006). Substantial gainful 13 activity is defined as work activity that is both substantial and gainful. 20 C.F.R. § 416.972. 14 “Substantial work activity is work activity that involves doing significant physical or 15 mental activities.” C.F.R. § 416.972(a). “Gainful work activity is work activity that you do 16 for pay or profit.” C.F.R. § 416.972(b). 17 If the claimant is not currently engaged in substantial gainful activity, the second 18 step requires the ALJ to determine whether the claimant has a “severe” impairment or 19 combination of impairments significantly limiting her ability to do basic work activities; if 20 not, a finding of nondisability is made and the claim is denied. 20 C.F.R. § 416.920(c). If the claimant has a “severe” impairment or combination of impairments, the third step 21 requires the ALJ to determine whether the impairment or combination of impairments 22 meets or equals an impairment in the Listing of Impairments (“Listing”) set forth at 23 20 C.F.R. § 404, Subpart P, Appendix 1. The Listing describes impairments that the Social 24 Security Agency considers “severe enough to prevent an individual from doing any gainful 25 activity, regardless of his or her age, education, or work experience.” 20 C.F.R. § 26 416.925(a). A claimant’s impairment may also be considered “medically equivalent” to a 27 listed impairment if it is at least equal in severity and duration to the criteria of any listed 2 any of the listings, disability is conclusively presumed and benefits are awarded. See 20 3 C.F.R. § 416.920(d); Lounsberry, 468 F.3d at 1114. If the claimant’s impairment or combination of impairments does not meet or equal 4 an impairment in the Listing, the fourth step requires the ALJ to determine whether the 5 claimant has sufficient residual functional capacity (“RFC”) to perform her past work. Id. 6 An RFC is “an assessment of an individual’s ability to do sustained work-related physical 7 and mental activities in a work setting on a regular and continuing basis.” Soc. Sec. Ruling 8 (“SSR”)4 96-9p, 1996 WL 374184, at *1 (1996). It reflects the most a claimant can do 9 despite her limitations. See Smolen v. Chater, 80 F.3d 1273, 1291 (9th Cir. 1996); see also 10 20 C.F.R. § 416.945(a)(1); Laborin v. Berryhill, 867 F.3d 1151, 1153 (9th Cir. 2017). An 11 RFC must include an individual’s functional limitations or restrictions as a result of all of 12 her impairments—even those that are not severe (see 20 C.F.R. § 404.1545(a)(1)-(2), 13 (e))—and must assess her “work-related abilities on a function-by-function basis.” SSR 14 96-9p, 1996 WL 374184, at *1; see also Valentine v. Comm’r of Soc. Sec. Admin., 574 15 F.3d 685, 690 (9th Cir. 2009) (“an RFC that fails to take into account a claimant’s 16 limitations is defective”). An ALJ errs when he provides an incomplete RFC ignoring 17 “significant and probative evidence.” Hill v. Astrue, 698 F.3d 1153, 1161–62 (9th Cir. 18 2012) (further noting that the error is not harmless when an ALJ fails to discuss significant 19 and probative evidence favorable to a claimant’s position because when the RFC is 20 incomplete, the hypothetical question presented to the vocational expert is incomplete and, therefore, the ALJ’s reliance on the vocational expert’s answers is improper)). 21 An RFC assessment is ultimately an administrative finding reserved to the ALJ. 20 22 C.F.R. § 404.1527(d)(2). However, an RFC determination must be based on all of the 23 relevant evidence, including the diagnoses, treatment, observations, and opinions of 24 25 26 4 “SSRs do not have the force of law. However, because they represent the Commissioner’s 27 interpretation of the agency’s regulations, we give them some deference. We will not defer 2 must uphold an ALJ’s RFC assessment when the ALJ has applied the proper legal standard 3 and substantial evidence in the record as a whole supports the decision. See Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005). If the ALJ determines a claimant has 4 sufficient RFC to perform past relevant work, the claimant is not disabled and the claim is 5 denied. Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). The claimant has the 6 burden of proving that she is unable to perform past relevant work. Id. If the claimant meets 7 this burden, a prima facie case of disability is established. Id. 8 The ALJ then bears the burden of establishing that the claimant is not disabled 9 because there is other work existing in “significant numbers” in the national or regional 10 economy the claimant can do, taking into account the claimant’s RFC, age, education, and 11 work experience. 20 C.F.R. § 416.920(g); 20 C.F.R. § 404.1560(c)(1)–(2); see also 12 20 C.F.R. § 404.1520(g)(1). The ALJ usually meets this burden either (1) by the testimony 13 of a vocational expert who assesses the employment potential of a hypothetical individual 14 with all of the claimant’s physical and mental limitations that are supported by the record, 15 or (2) by reference to the Medical-Vocational Guidelines at 20 C.F.R. part 404, Subpart P, 16 Appendix 2. Lounsburry, 468 F.3d at 1114–15; Hill, 698 F.3d at 1162. The determination 17 of this issue comprises the fifth and final step in the sequential analysis. 20 C.F.R. 18 §§ 404.1520, 416.920; Tackett, 180 F.3d at 1099. 19 B. The ALJ’s Application of the Five-Step Process in This Case 20 At step one, the ALJ determined that Plaintiff has not engaged in substantial gainful activity since 1989. AR 22. At step two, the ALJ determined that the claimant has a severe 21 impairment—adjustment disorder with depressed mood and anxiety. AR 22. The ALJ 22 determined that Plaintiff’s hypertension, irregular periods, dissociative identity disorder, 23 post-traumatic stress disorder, and obesity are non-severe and do not pose more than a 24 minimal limitation on her ability to perform basic work activities. AR 23. 25 At step three, the ALJ determined that Plaintiff does not have an impairment or a 26 combination of impairments that meets or medically equals any of the impairments in the 27 Listing. AR 23. The ALJ determined that neither Paragraph B’s nor Paragraph C’s criteria 2 impairments did not result in one “extreme” or two “marked” limitations: “In 3 understanding, remembering, or applying information, the claimant has no limitation. In interacting with others, the claimant has a moderate limitation. As for adapting or managing 4 oneself, the claimant has experienced a mild limitation.” AR 23. As for Paragraph C, the 5 ALJ determined that Plaintiff’s mental disorders were not “serious and persistent.” AR 24. 6 The ALJ further determined that Plaintiff has the RFC “to perform a full range of 7 work at all exertional levels but with the following nonexertional limitations: she is able to 8 understand, remember, and carry out simple instructions and tasks and she should not work 9 in a setting which includes constant/regular interaction with the general public or more than 10 infrequent handling of customer complaints.” AR 24. Though Plaintiff’s treating therapist, 11 Rhonda Smallwood, stated that Plaintiff had limited ability to follow multiple directions 12 and did not possess work-related skills, the ALJ found these statements inconsistent with 13 her own treating assessments, “which indicated the claimant’s mental conditions do not 14 result in a functional impairments on the claimant’s work.” AR 26–27. Though Plaintiff’s 15 treating nurse practitioner, Debra Graham, stated that Plaintiff had marked to extreme 16 functional limitations for work-related activities, the ALJ found this statement inconsistent 17 with the record as a whole. AR 27. For example, the ALJ noted that “[t]he records show 18 the claimant’s mental health conditions were generally stabilized and improved through 19 therapy and medication.” AR 26; see also AR 25 (“[t]hrough treatment, the record 20 indicated the claimant’s mental conditions steadily improved. . . the claimant worried less and her anxiety improved. . . discussing the past and journaling had been helpful and her 21 therapist noted the claimant was more animated and engaged . . .[and] the claimant stated 22 feeling better”). 23 At step four, the ALJ reiterated that Plaintiff did not have any relevant past work. 24 AR 28. At step five, based on Plaintiff’s RFC and the testimony of the vocational expert, 25 the ALJ concluded that Plaintiff could perform jobs existing in the national economy, 26 including representative occupations of dishwasher, cleaner, and floorwaxer. AR 28. 27 Accordingly, the ALJ found that Plaintiff has not been disabled since June 3, 2015, the date 2 IV. STANDARD OF REVIEW 3 Pursuant to 42 U.S.C. § 405(g), this Court has authority to review the Commissioner’s decision to deny benefits. The Commissioner’s decision will be disturbed 4 only if it is not supported by substantial evidence or if it is based upon the application of 5 improper legal standards. Berry v. Astrue, 622 F.3d 1228, 1231 (9th Cir. 2010). 6 Substantial evidence means “‘such relevant evidence as a reasonable mind might 7 accept as adequate to support a conclusion.’” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 8 (2019) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). “‘Where 9 evidence is susceptible to more than one rational interpretation,’ the ALJ’s decision should 10 be upheld.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (quoting Burch v. Barnhart, 11 400 F.3d 676. 679 (9th Cir. 2005)). However, the Court “must consider the entire record 12 as a whole, weighing both the evidence that supports and the evidence that detracts from 13 the Commissioner’s conclusion, and may not affirm simply by isolating a specific quantum 14 of supporting evidence.” Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014) (internal 15 quotation marks omitted)). The Court will “review only the reasons provided by the ALJ 16 in the disability determination and may not affirm the ALJ on a ground upon which he did 17 not rely.” Id.; see also SEC v. Chenery Corp., 318 U.S. 80, 87 (1943) (“The grounds upon 18 which an administrative order must be judged are those upon which the record discloses 19 that its action was based.”). 20 V. PARTIES’ POSITIONS In her merits brief, Plaintiff seeks judicial review of the Commissioner’s denial of 21 her application for social security disability and supplemental security income benefits. 22 ECF No. 20. She contends that the ALJ incorrectly “dismissed all of my treatments of 2.5 23 years I was getting from my psychiatrist and therapist, and [instead] listen[ed] to a state 24 mental exam evaluator who saw me for 5 minutes.” Id. She notes that the ALJ did not 25 consider the opinion of Christine Johnson, who has treated her for one and one-half years. 26 Id. Plaintiff also notes that Rhonda Smallwood diagnosed her with, among other things, 27 post-traumatic stress disorder. Id. Plaintiff further contends that, contrary to the ALJ’s 2 Id. 3 In its opposition brief, the Commissioner contends that the decision of the ALJ should be affirmed, or, in the alternative, remanded for further administrative development. 4 ECF No. 23 at 8. The Commissioner contends that the ALJ properly assessed and 5 considered Plaintiff’s subjective statements, as well as the opinions of Plaintiff’s therapist 6 (Rhonda Smallwood), Plaintiff’s nurse practitioner (Debra Graham), and the state agency 7 medical consultants (Doctors Leonard Naiman, Camellia Clark, and R. Weeks; 8 psychologists Brady Dalton and Mark Gibson). Id. at 4–6. The Commissioner noted that 9 the ALJ afforded Dr. Dalton’s opinion greater weight than the other state agency opinions, 10 because it was more consistent with the record. Id. at 6–7. The Commissioner also noted 11 that Ms. Smallwood’s opinion was inconsistent with her treatment assessments, and Ms. 12 Graham’s opinion was inconsistent with the record as a whole; hence their opinions were 13 considered but not given great weight. Id. at 6. The Commissioner further contends that 14 Plaintiff’s disagreement with the ALJ’s determination that her symptoms were improving 15 with treatment is not enough to demonstrate error, given the evidence in the record. Id. 16 VI. DISCUSSION 17 After briefly summarizing its review of the record, the Court will address each of 18 Plaintiff’s contentions in turn. 19 A. Evidence in the Record 20 1. Leonard Naiman, M.D. - Non-Examining State Agency Consultant On August 31, 2015, Dr. Naiman reviewed Plaintiff’s record and opined that 21 Plaintiff’s “concentration [was] good. Memory vague about autobiographical info, and 22 unable to id[entify] 0 of 3 items after five min[utes].” AR 61. He further stated the 23 Plaintiff’s “allegations are credible.” AR 62. 24 2. Mark Gilson, Ph.D. – Non-Examining State Agency Psychologist 25 On October 21, 2015, Dr. Gilson reviewed Plaintiff’s record and noted mild 26 restriction of activities of daily living, mild difficulties in maintaining concentration, mild 27 difficulties maintaining social functioning. AR 63. However, he determined that Plaintiff’s 2 stating that Plaintiff’s allegations were credible). 3 3. Brady Dalton, Psy.D. – Non-Examining State Agency Psychologist On February 26, 2016, Dr. Dalton opined that “findings reflect evidence of 4 depression/mood instability. Although c[laiman]t reported multiple personalities, … 5 c[laimain]t presents with no periods of lost time or symptoms suggestive of dissociation.” 6 AR 76. He agreed with Dr. Bhatia in her listing of dissociative identity disorder, noting 7 that Plaintiff’s “reported pathology appears to be more in line with anxiety and periods of 8 zoning out when anxious. …Thus, an anxiety related disorder is likely.” AR 76. Dr. Dalton 9 determined that Plaintiff “is best suited for simple, low stress tasks/work in settings with 10 limited social and public demands.” AR 76. He explained that her ability to interact 11 appropriately with the general public is moderately limited; her ability to accept 12 instructions and respond appropriately to criticism from supervisors is moderately limited; 13 her ability to get along with coworkers without distracting them or exhibiting behavior 14 extremes is moderately limited; her ability to respond appropriately to changes in a work 15 setting is moderately limited; and her appropriate social behavior is not significantly 16 limited. AR 78–79. Dr. Dalton concluded that Plaintiff “can sustain work that does not 17 require more than occasional public contact or collaborative effort… c[laimain]t would 18 work best in low-stress, structured environments with predictable work tasks and with 19 minimal social contacts with others.” AR 78–79. 20 4. Camilla Clark, M.D. – Examining State Agency Physician Dr. Camilla Clark is a state agency psychiatrist who conducted a psychiatric 21 evaluation of Plaintiff for the social services disability department on September 23, 2015. 22 AR 288. She observed that Plaintiff’s “mannerisms were rambling, but social interaction 23 with this evaluator was within normal limits…. This did not appear to be a genuine thought 24 disorder.” AR 289. Plaintiff “was not easily distracted and needed no structure from this 25 evaluator during the evaluation.” AR 289. Plaintiff “was not exhibiting florid, nor subtle 26 psychotic behavior during [the] interview.” AR 289. However, in testing Plaintiff’s 27 memory, she “was able to recall zero out of three items after five minutes.” AR 289. 2 of mild depression, thus diagnosing Plaintiff with a mood disorder.” AR 289–90. 3 5. Cynthia Mangene, FNP – Minor Treating Nurse Practitioner On August 13, 2015, Ms. Mangene made a finding of depression, and referred 4 Plaintiff to the psychiatry department. AR 279–80, 351. At the appointment, Plaintiff 5 “state[d] she has had ‘multiple personalities’ for many years.” AR 350. 6 6. Carol Hastanan, M.D. – Minor Treating Physician 7 Dr. Carol Hastanan is Plaintiff’s gynecologist. On June 13, 2015, during a well 8 woman exam, Dr. Hastanan made a finding of depressive disorder. AR 354. She then 9 prescribed Citalopram. AR 355. On September 21, 2015, during another well woman exam, 10 she noted that Plaintiff suffered from chronic depression. AR 373. On September 22, 2015, 11 Dr. Hastanan put in refills for Citalopram and Hydrocholorthiazide. AR 282. 12 7. Kaili Shumilak, D.O. – Minor Treating Physician 13 On February 3, 2015, Dr. Shumilak made a finding of depression and noted 14 Plaintiff’s “lack of focus, easily distracted… fatigue, mild hopelessness.” AR 356–57. 15 8. Debra Graham, DNP – Treating Nurse Practitioner 16 Debra Graham, DNP, is one of Plaintiff’s treating nurse practitioners who examined 17 Plaintiff at least twice. On December 7, 2017, Ms. Graham diagnosed Plaintiff with 18 “PTSD, multiple personality disorder, major depressive disorder with psychosis.” AR 375. 19 She noted clinical findings of “depression, anxiety…[and] poor concentration.” AR 375. 20 She noted marked or extreme functional limitations for Plaintiff’s ability to: understand, remember, or apply information; understand and learn terms, instructions, and procedures; 21 follow one or two step oral instructions to carry out a task; describe work activities to 22 someone else; interact with others; and cooperate with others. AR 376–77. Ms. Graham 23 noted extreme functional limitations for Plaintiff’s ability to: sequence multi-step 24 activities; respond to requests or suggestions; keep social interactions free of excessive 25 irritability; initiate or perform a known task; work at an appropriate and consistent pace; 26 complete tasks in a timely manner; sustain an ordinary routine and regular attendance at 27 work; work without extra or longer rest periods; manage oneself; respond to demands; and 2 workplace due to mental health conditions for more than 20% of an 8-hour workday. AR 3 378. On March 29, 2018, Ms. Graham diagnosed Plaintiff with “schizoaffective disorder, 4 depressive type [and] PTSD delayed onset.” AR 478. She noted that Plaintiff’s “[p]sychotic 5 symptoms included persecution delusions. There were auditory hallucinations on exam.” 6 AR 474. Further, “there was mildly impaired attention/concentration seen on exam. The 7 patient had mildly impaired verbal short-term memory and low normal remote memory.” 8 AR 472. 9 9. Rhonda Smallwood, LMFT – Treating Therapist 10 Rhonda Smallwood, LMFT, is one of Plaintiff’s treating therapists, with whom 11 Plaintiff had at least 64 consultations from January 8, 2016 to January 18, 2018. AR 381– 12 82. On January 8, 2016, Plaintiff’s symptoms during the visit included: poor concentration, 13 anxiety, depressed mood, irritability, fair (75%) attention, tangential thought process, 14 constructed/blunted affect. AR 423–24. Her immediate, recent, and remote memory were 15 impaired. AR 424. Plaintiff explained that she “would zone out and stare at the walls.” AR 16 427. On January 15, 2016, Plaintiff stated that she cut her hair but did not know why, felt 17 different, and would stare and forget things. AR 391. She also complained that she “can’t 18 remember.” AR 391. 19 On January 25, 2016, Plaintiff “discussed her belief that she has multiple 20 personalities because her son and husband tell her that her personality changes.” AR 420. Ms. Smallwood concluded that “her family mislabeled her to take on this disorder.” AR 21 420. Ms. Smallwood also noted that Plaintiff did light chores, cooked, and cleaned. AR 22 420. On February 25, 2016, Plaintiff’s motor activity was agitated, she was anxious, and 23 she moved around, shifting in her seat. AR 416. 24 On March 2, 2016, in her letter to the Department of Social Services, Ms. Smallwood 25 explained that “[p]erhaps the most important deterrents for her to maintain any type of job 26 is her inability to attend, follow multiple directions and possession of any work related 27 skills.” AR 302. On March 3, 2016, Plaintiff’s “present[ed] problems [we]re multiple 2 depressed mood, fair attention (on task 75%), constructed affect, tangential thought 3 process, and poor coping skills. 306–08. Plaintiff’s immediate, recent, and remote memory was impaired. AR 304. 4 On March 17, 2016, Plaintiff’s attitude and mood improved, because she had 5 reconnected with a friend from school who lives near her. AR 413. On March 20, 2016, 6 Plaintiff appeared “depressed [and] withdrawn.” AR 408. However, later Plaintiff 7 “reported that discussing past and journaling have been helpful,” and Ms. Smallwood noted 8 that Plaintiff “appear[ed] more animated and engaged.” AR 408. On March 31, 2016, 9 Plaintiff had a positive interaction with estranged husband and “her affect lifted as she 10 discussed this event.” AR 411 11 On April 7, 2016, Ms. Smallwood noted that Plaintiff experienced feelings of 12 sadness, anger, anxiety, and confusion. AR 410. On April 28, 2016, Ms. Smallwood noted 13 that Plaintiff’s “mood is depressed, anxious, confused.” AR 405. She also remarked that 14 Plaintiff had “been socializing with friend [and] drawing.” AR 405. On May 8, 2016, 15 Plaintiff complained that she “fe[lt] depressed, confused, anxious.” AR 402. On 16 June 9, 2016, Ms. Smallwood noted that Plaintiff “feels good about doing things with 17 Linda.” AR 397. On May 5, 2017, she noted that Plaintiff “[r]arely leaves her home [and] 18 feels like she’s not normal.” AR 386. On October 25, 2017, Ms. Smallwood noted that 19 Plaintiff “has regular visits with an old friend.” AR 383. 20 In Ms. Smallwood’s observations, she noted during at least5 seven appointments that there was no change in Plaintiff’s condition or reported behaviors. AR 420 (Jan 25, 2016); 21 AR 419 (Feb. 4, 2016); AR 413 (Mar. 17, 2016); AR 412 (Mar. 24, 2016); AR 405 (Apr. 22 28, 2016); AR 404 (May 5, 2016); AR 396 (June 16, 2016). In diagnosing Plaintiff, Ms. 23 Smallwood cited “major depression recurrent severe” during one visit; “major depression 24 severe” during four visits; dependent personality disorder during three visits; post- 25 traumatic stress disorder during three visits, which she later ruled out (see AR 302); and 26 27 2 10. Prakash Bhatia, M.D. – Treating Physician 3 Prakash Bhatia, MD, is one of Plaintiff’s treating physicians, with whom Plaintiff had at least 13 consultations. On January 12, 2016, Plaintiff complained of “having ‘4 4 personalities,’ severe nightmares, difficulty concentrating, ‘zoning out,’ not being able to 5 follow conversations, crying spells, mood swings… [] loses blocks of time, has no memory 6 of things that have happened.” AR 346. For example, Plaintiff “cut her hair without 7 remembering why.” AR 346. As for her personalities, Plaintiff stated “she has an alter 8 ‘tough guy,’ an alter that can’t think or hear, [and] an alter that is childlike.” AR 346. 9 Plaintiff “has been on Prozac in the past which caused her to ‘lose control’ and Celexa [] 10 makes her feel angry.” AR 346. On February 2, 2016, Plaintiff complained that “she has 11 been irritable, ‘zoning out,’ feels her ‘personality changing,’ feels she has been walking 12 with more aggressive stance.” AR 344. Though she noted that Plaintiff sees a therapist 13 weekly, Plaintiff “[c]ontinues to have nightmares, anxiety.” AR 343. 14 On February 23, 2016, Dr. Bhatia noted that Plaintiff “feels she has been irritable… 15 and [c]ontinues to get angry easily.” AR 341. However, Vistaril was effective for her 16 anxiety, and her sleep had improved. AR 341. On March 22, 2016, Plaintiff explained that 17 she “feels she worries less, [and her] anxiety improved.” AR 338. On April 19, 2016, 18 Plaintiff stated that, though she “feels she worries less, [and her] anxiety improved[, she] 19 continues to dissociate at times [and has] poor attention.” AR 335. On May 17, 2016, Dr. 20 Bhatia notated that “p[atien]t feels better.” AR 332. On June 28, 2016, Plaintiff “continue[d] to have ‘personality changes,’ fatigue, poor 21 concentration.” AR 329. Dr. Bhatia noted that Plaintiff was “unable to follow 22 conversation” and the doctor “had to repeat [her]self multiple times.” AR 329. On 23 July 26, 2016, Dr. Bhatia noted that Plaintiff “went back to 120 mg Latuda and [was] doing 24 well.” AR 326. However, Plaintiff “continue[d] to have ‘personality changes,’ fatigue, poor 25 concentration, … continues to ‘change’ personality[, and] feels like she is someone else.” 26 AR 326. One personality “is ‘angry’, one is a child, and one is like a black cloud and blocks 27 everything out.” AR 326. On August 30, 2016, Plaintiff “state[d] she can ‘feel when she 2 AR 323. On November 1, 2016, Plaintiff “continue[d] to ‘change personalities,’ [and] 3 draws at times when she ‘changes’” AR 320. On January 10, 2017, Plaintiff “feels her personality continues to change” and noted that it “happens when she is in therapy at 4 times.” AR 317. On June 7, 2017, Dr. Bhatia noted that Plaintiff was “stable on meds.” 5 AR 311. 6 In Dr. Bhatia’s observations, she noted during twelve appointments that Plaintiff had 7 “impaired immediate recall [memory] and impaired recall memory.” AR 347 (Jan. 12, 8 2016); AR 344 (Feb. 2, 2016); AR 339 (Mar. 22, 2016); AR 336 (Apr. 19, 2016); AR 333 9 (May 17, 2016); AR 330 (June 28, 2016); AR 327 (July 26, 2016); AR 324 (Aug. 30, 10 2016); AR 321 (Nov. 1, 2016); AR 318 (Jan. 10, 2017); AR 315 (Apr. 12, 2017); AR 312 11 (June 7, 2017). Dr. Bhatia noted twelve times that Plaintiff had “difficulty concentrating, 12 memory problems (immediate, recent, remote), distractable, but easily redirected, oriented 13 x3.” AR 347 (Jan. 12, 2016); AR 344 (Feb. 2, 2016); AR 339 (Mar. 22, 2016); AR 336 14 (Apr. 19, 2016); AR 333 (May 17, 2016); AR 330 (June 28, 2016); AR 327 (July 26, 2016); 15 AR 324 (Aug. 30, 2016); AR 321 (Nov. 1, 2016); AR 318 (Jan. 10, 2017); AR 315 (Apr. 16 12, 2017); AR 312 (June 7, 2017). She noted during twelve appointments that Plaintiff had 17 “impaired ability to manage daily activities” and had “serious symptoms or serious 18 impair[ment] in social, occupational, or school functioning” (i.e., a GAF of 50). AR 347 19 (Jan. 12, 2016); AR 344 (Feb. 2, 2016); AR 339 (Mar. 22, 2016); AR 336 (Apr. 19, 2016); 20 AR 333 (May 17, 2016); AR 330 (June 28, 2016); AR 327 (July 26, 2016); AR 324 (Aug. 30, 2016); AR 321 (Nov. 1, 2016); AR 318 (Jan. 10, 2017); AR 315 (Apr. 12, 2017); AR 21 312 (June 7, 2017). In diagnosing Plaintiff, Dr. Bhatia cited post-traumatic stress disorder 22 during twelve visits, adjustment disorder with depressed mood during one visit, adjustment 23 disorder during eleven visits, dissociative identity disorder during ten visits, and “other 24 dissociative and conversion disorders” during two visits. AR 312, 315, 318, 321, 324, 327, 25 330, 336, 339, 344, 347. 26 B. ALJ’s Failure to Consider the Opinion of Dr. Christine Johnson 27 First, Plaintiff argues that the ALJ did not consider the opinion of her treating 2 record, there are no medical records from Dr. Johnson. 3 It is evident from the record that Dr. Johnson exists and treated Plaintiff. For example, on her “recent medical treatment” form, Plaintiff lists Christine Johnson as the 4 psychiatrist she sees once a month. AR 244. Further, on January 8, 2016, Ms. Smallwood 5 noted that Dr. Johnson prescribed medication for Plaintiff. AR 425. On April 21, 2016, Ms. 6 Smallwood noted that “client continues to forget Dr. Johnson’s number.” AR 407. On May 7 8, 2016, Ms. Smallwood noted that Plaintiff’s psychiatrist is Dr. Johnson, but was unable 8 to get her phone number. AR 402. On October 30, 2016, Ms. Smallwood noted again that 9 Plaintiff’s psychiatrist was Dr. Johnson. AR 389. 10 The court “may at any time order additional evidence to be taken before the 11 Commissioner of Social Security, but only upon a showing that there is new evidence 12 which is material and that there is good cause for the failure to incorporate such evidence 13 into the record in a prior proceeding . . . .” 42 U.S.C. § 405(g). Here, Plaintiff has made no 14 request to supplement the record with Dr. Johnson’s medical records, nor made the 15 requisite showing of good cause. See Medina v. Colvin, No. 16cv215-GPC-KSC, 2016 WL 16 4705571, at *1–*2 (S.D. Cal. Sept. 8, 2016) (denying plaintiff’s letter requesting the court 17 remand so the ALJ could consider x-rays that were not in the administrative record, because 18 he did not give any reasoning that they would change the outcome of the proceedings or 19 that there is a reasonable explanation why the evidence was unavailable earlier) (citing 20 Mayes v. Massanari, 276 F.3d 453, 463 (9th Cir. 2001) and Booz v. Sec’y of Health & Human Servs., 734 F.2d 1378, 1380–81 (9th Cir. 1984)). Further, it is clear from the record 21 that Plaintiff did not seek to give Dr. Johnson’s information to her therapist, despite 22 multiple requests, and these records were not included in the additional records given to 23 the ALJ by Plaintiff’s counsel after the hearing. AR 20, 402, 407. 24 C. Weight Given to Medical Professionals Who Treated Plaintiff 25 Second, Plaintiff argues that the ALJ improperly relied on the state agency medical 26 27 2 the Court agrees. 3 A treating physician’s opinion is entitled to special weight because a treating physician “is employed to cure and has a greater opportunity to know and observe the 4 patient as an individual.” McAllister v. Sullivan, 888 F.2d 599, 602 (9th Cir. 1989). The 5 medical opinion of a claimant’s treating physician is given “controlling weight” so long as 6 it “is well-supported by medically acceptable clinical and laboratory diagnostic techniques 7 and is not inconsistent with the other substantial evidence in [the plaintiff’s] case record.” 8 20 C.F.R. § 404.1527(c)(2). “The treating physician’s opinion is not, however, necessarily 9 conclusive as to either a physical condition or the ultimate issue of disability.” Magallanes 10 v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). 11 12 13 6 As for the ALJ’s determination regarding Ms. Smallwood, a licensed marriage and family therapist, the Court agrees with the Commissioner that the ALJ afforded her opinion 14 acceptable weight in light of her status as a non-acceptable medical source. See 20 C.F.R. 15 § 416.902 (listing acceptable medical sources as licensed physicians, licensed psychologists, …). Opinions from non-acceptable medical sources may be evaluated based 16 on the same factors as applied to medical opinions, but the level of articulation is lower 17 with such opinions. See 20 C.F.R. § 416.927(f)(1)–(2). But see 20 C.F.R. § 416.927(f)(1) (“it may be appropriate to give more weight to the opinion of a medical source who is not 18 an acceptable medical source if he or she has seen the individual more often than the treating source, has provided better supporting evidence and a better explanation for the 19 opinion, and the opinion is more consistent with the evidence as a whole.”); SSR 06-03p, 20 2006 SSR LEXIS 5, at *8 (2006) (recognizing that with “the growth of managed health care in recent years and the emphasis on containing medical costs, medical sources who 21 are not ‘acceptable medical sources,’ . . . have increasingly assumed a greater percentage 22 of the treatment and evaluation functions previously handled primarily by physicians and psychologists” and, therefore, opinions from other medical sources “are important and 23 should be evaluated on key issues such as impairment severity and functional effects.”). As for the ALJ’s determination regarding Ms. Graham, a doctor of nursing practice (i.e., 24 nurse practitioner), the Court notes that licensed advanced practice registered nurses 25 (“APNs”) are considered acceptable medical sources. See 20 C.F.R. § 416.902(a)(7). A nurse practitioner is a type of APN. See Beth Greenwood, Advance Practice Nurses vs. 26 Nurse Practitioners, CHRON https://work.chron.com/advanced-practice-nurses-vs-nurse- 27 practitioners-13968.html (last visited Nov. 25, 2020). However, since Ms. Graham only 2 rejected only for “clear and convincing” reasons. Lester v. Chater, 81 F.3d 821, 830 (9th 3 Cir. 1995) (citing Baxter v. Sullivan, 923 F.3d 1391, 1396 (9th Cir. 1991)). Where the treating physician’s opinion is controverted by another physician, it may be rejected only 4 if the ALJ makes findings setting forth specific and legitimate reasons that are based on 5 substantial evidence in the record. See Magallanes, 881 F.2d at 751; Reddick v. Chater, 6 157 F.3d 715, 725 (9th Cir. 1998). To meet this burden, an ALJ must provide “a detailed 7 and thorough summary of the facts and conflicting clinical evidence, stating his 8 interpretation thereof, and making findings.” Tommasetti v. Astrue, 533 F.3d 1035, 1041 9 (9th Cir. 2008) (quoting Magallanes, 881 F.2d at 751). 10 In evaluating the record, a court makes a distinction based on a physician’s 11 relationship with a claimant. Under the regulations, the opinion of an examining, but non- 12 treating physician is generally given deference over the opinion of a non-examining, non- 13 treating physician. See 20 C.F.R. § 416.927(c)(1) (“Generally, we give more weight to the 14 medical opinion of a source who has examined you than to the medical opinion of a medical 15 source who has not examined you.”); Garrison, 759 F.3d at 1012 (“As a general rule, more 16 weight should be given to the opinion of a treating source than to the opinion of doctors 17 who do not treat the claimant. . . [i.e.,] the opinion of an examining physician is entitled to 18 greater weight than that of a non-examining physician.”). 19 “An ALJ may reject the testimony of an examining, but non-treating physician, in 20 favor of a nonexamining, nontreating physician when he gives specific, legitimate reasons for doing so, and those reasons are supported by substantial record evidence.” Roberts v. 21 Shalala, 66 F.3d 179, 184 (9th Cir. 1995), as amended (Oct. 23, 1995) (citing Andrews v. 22 Shalala, 53 F.3d 1035, 1043 (9th Cir. 1995)). However, “[t]he opinion of a nonexamining 23 physician cannot by itself constitute substantial evidence that justifies the rejection of the 24 opinion of either an examining physician or a treating physician.” Lester, 81 F.3d at 831. 25 Rather, opinions of non-examining physicians may only serve as substantial evidence 26 “when the opinions are consistent with independent clinical findings or other evidence in 27 the record.” Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). 2 and detailed the amount of weight given to their opinions, but did not do the same for 3 Dr. Bhatia, Plaintiff’s main treating physician who saw her more than thirteen times. By not fully considering Dr. Bhatia’s opinions, the ALJ erred. See, e.g, Cotton v. Bowen, 799 4 F.2d 1403, 1408 (9th Cir. 1986) (The ALJ can “meet this burden by setting out a detailed 5 and thorough summary of the facts and conflicting clinical evidence, stating his 6 interpretation thereof, and making findings”). “An ALJ must give a reviewing court the 7 basis and amount of weight accorded—the Court is not to guess.” Nguyen v. Berryhill, No. 8 17cv1406-MMA-NLS, 2018 WL 3706860, at *16–*17 (SD Cal Aug. 3, 2018) (concluding 9 that the ALJ erred in providing a summary of a treating physician’s findings but not 10 including specific reasons why he accorded the opinion lesser weight); see Garrison, 759 11 F.3d at 1012–13 (concluding that “an ALJ errs when he rejects a medical opinion or assigns 12 it little weight while doing nothing more than … asserting without explanation that another 13 medical opinion is more persuasive...); Van Nguyen v. Chater, 100 F.3d 1462, 1464 (9th 14 Cir. 1996) (concluding that “the ALJ erred because he neither explicitly rejected the 15 opinion of [the examining physician], nor set forth specific legitimate reasons for crediting 16 [the non-examining physician] over [the examining physician]”). 17 Furthermore, Dr. Bhatia’s opinions are consistent with the record as a whole and are 18 uncontradicted. An ALJ may only disregard an uncontradicted treating physician’s opinion 19 for “clear and convincing reasons . . . supported by substantial evidence.” Bayliss, 427 F.3d 20 at 1216. For example, during twelve of Dr. Bhatia’s appointments with Plaintiff, she noted that Plaintiff had “impaired immediate recall [memory] and impaired recall memory” and 21 “difficulty concentrating, memory problems (immediate, recent, remote).” AR 347 (Jan. 22 12, 2016); AR 344 (Feb. 2, 2016); AR 339 (Mar. 22, 2016); AR 336 (Apr. 19, 2016); AR 23 333 (May 17, 2016); AR 330 (June 28, 2016); AR 327 (July 26, 2016); AR 324 (Aug. 30, 24 2016); AR 321 (Nov. 1, 2016); AR 318 (Jan. 10, 2017); AR 315 (Apr. 12, 2017); AR 312 25 (June 7, 2017). Similarly, State Agency Dr. Naiman opined that Plaintiff’s “[m]emory 26 vague about autobiographical info, and unable to id[entify] 0 of 3 items after five 27 min[utes].” AR 61. Also, in testing Plaintiff’s memory, State Agency Dr. Clark noted 2 Ms. Graham noted that Plaintiff “had mildly impaired verbal short-term memory and low 3 normal remote memory.” AR 472; AR 377 (Ms. Graham also noted extreme functional limitations for Plaintiff’s ability to sequence multi-step activities). Ms. Smallwood also 4 noted multiple times that Plaintiff’s immediate, recent, and remote memory were impaired. 5 AR 304, 424. By not fully considering Dr. Bhatia’s opinion, at step three, the ALJ 6 concluded erroneously that “[i]n understanding, remembering, or applying information, the 7 claimant has no limitation.” AR 23 (emphasis added); see, e.g., Jarrett v. Colvin, No. C15- 8 5176-BHS-JPD, 2015 WL 9647627, at *4 (W.D. Wash. Nov. 30, 2015) (“An ALJ may not 9 ‘cherry pick’ from the record to support a conclusion, but must account for the context of 10 the record as a whole. . . . Impermissible cherry-picking is therefore an issue of evidentiary 11 support: an ALJ may not simply cite isolated pieces of evidence as support for a conclusion, 12 without taking into account the record as a whole.”); see generally Reddick, 157 F.3d at 13 723 (finding that the ALJ’s determination was not supported by substantial evidence in part 14 because “the ALJ developed his evidentiary basis by not fully accounting for the context 15 of materials or all parts of the testimony and reports”). 16 Therefore, in not fully considering treating physician Dr. Bhatia’s opinion, and not 17 providing specific and legitimate reasons for giving her opinion less weight than the non- 18 treating state agency physicians, the ALJ erred. 19 D. Whether Plaintiff’s Symptoms Improved 20 Third, Plaintiff argues that the ALJ improperly concluded that her symptoms had improved with medication and therapy. The ALJ specifically found that “the record 21 indicates the claimant’s mental conditions steadily improved.” AR 25. This finding is not 22 supported by substantial evidence. 23 “‘Where evidence is susceptible to more than one rational interpretation,’ the ALJ’s 24 decision should be upheld.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (quoting 25 Burch v. Barnhart, 400 F.3d 676. 679 (9th Cir. 2005)); Batson v. Comm’r Soc. Sec. Admin., 26 359 F.3d 1190, 1193 (9th Cir. 2004); see also Ryan v. Comm’r Soc. Sec., 528 F.3d 1194, 27 1198 (9th Cir. 2008). When the evidence “can reasonably support either affirming or 2 rather, the Court only reviews “the reasons provided by the ALJ in the disability 3 determination and may not affirm the ALJ on a ground upon which he did not rely.” Garrison, 759 F.3d at 1010 (quoting Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 4 2003)). 5 Although the record indicates that Plaintiff may have shown some improvement in 6 her mental condition,7 there is no evidence in the record that her condition had improved 7 with respect to the deficits in Plaintiff’s memory or her ability to work.8 “The Ninth Circuit 8 9 10 7 See, e.g., AR 420 (In January 2016, Ms. Smallwood noted that Plaintiff did light chores, 11 cooked, and cleaned); AR 341 (In February 2016, Dr. Bhatia noted that Vistaril was 12 effective for Plaintiff’s anxiety and her sleep had improved); AR 408 (In March 2016, Ms. Smallwood noted that Plaintiff’s attitude and mood improved); AR 338 (In March 2016, 13 Dr. Bhatia noted that Plaintiff worried less and her anxiety was improved); AR 408 (In late 14 March 2016, Ms. Smallwood noted that Plaintiff appeared more animated and engaged); AR 332 (In May 2016, Dr. Bhatia noted that “patient feels better”); AR 397 (In June 2016, 15 Ms. Smallwood noted that Plaintiff felt good about doing things with Linda); AR 326 (In July 2016, Dr. Bhatia noted that Plaintiff “went back to 120 mg Latuda and [was] doing 16 well”); AR 311 (In June 2017, Dr. Bhatia noted that Plaintiff was “stable on meds”). 17 However, the record also includes many instances where Plaintiff’s symptoms resurface shortly thereafter showing an improvement. See, e.g., AR 410 (In April 2016, after 18 improvement in March, Plaintiff experienced feelings of sadness, anger, anxiety, and 19 confusion); AR 335 (In April 2016, though Plaintiff worried less and controlled her anxiety, she continued to dissociate and have poor attention); AR 329 (In June 2016, after 20 improvement in May, Plaintiff continued to have personality changes, fatigue, and poor 21 concentration); AR 386 (In May 2017, after improvement in June 2016 including socializing with Linda, Plaintiff rarely left her home and does not feel normal). 22 8 Findings regarding Plaintiff’s impaired memory include: AR 61 (Dr. Naiman, Aug. 31, 23 2015); AR 289 (Dr. Clark, Sept. 23, 2015); AR 424 (Ms. Smallwood, Jan. 8, 2016); AR 347 (Dr. Bhatia, Jan. 12, 2016); AR 344 (Dr. Bhatia, Feb. 2, 2016); AR 304 (Ms. 24 Smallwood, Mar. 3, 2016); AR 339 (Dr. Bhatia, Mar. 22, 2016); AR 336 (Dr. Bhatia, Apr. 25 19, 2016); AR 333 (Dr. Bhatia, May 17, 2016); AR 330 (Dr. Bhatia, June 28, 2016); AR 327 (Dr. Bhatia, July 26, 2016); AR 324 (Dr. Bhatia, Aug. 30, 2016); AR 321 (Dr. Bhatia, 26 Nov. 1, 2016); AR 318 (Dr. Bhatia, Jan. 10, 2017); AR 315 (Dr. Bhatia, Apr. 12, 2017); 27 AR 312 (Dr. Bhatia, June 7, 2017); AR 377 (Ms. Graham, Dec. 7, 2017) AR 472 (Ms. 2 not mean that the claimant’s impairments no longer affect his workplace functioning.” 3 Bisson v. Colvin, No. C16-05704BHS, 2017 WL 765386, *3 (W.D. Wash. Feb. 28, 2017) (citing Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014)). For example, the Ninth 4 Circuit has “emphasized while discussing mental health issues, it is error to reject a 5 claimant’s testimony merely because symptoms wax and wane in the course of treatment. 6 Cycles of improvement and debilitating symptoms are a common occurrence, and in such 7 circumstances it is error for an ALJ to pick out a few isolated instances of improvement 8 over a period of months or years and to treat them as a basis for concluding a claimant is 9 capable of working.” Garrison, 759 F.3d at 1017–18; see Ryan v. Comm’r of Soc. Sec., 528 10 F.3d 1194, 1200–01 (9th Cir. 2008) (“Nor are the references in [a doctor’s] notes that [the 11 plaintiff]’s anxiety and depression were ‘improving’ sufficient to undermine the repeated 12 diagnosis of those conditions, or [another doctor’s] more detailed report.”); Holohan v. 13 Massanari, 246 F.3d 1195, 1205 (9th Cir. 2001) (“[The treating physician’s] statements 14 must be read in context of the overall diagnostic picture he draws. That a person who 15 suffers from severe panic attacks, anxiety, and depression makes some improvement does 16 not mean that the person’s impairments no longer seriously affect her ability to function in 17 a workplace.”). 18 Although a Global Assessment of Function (“GAF”) score can be discounted 19 because it is only a snapshot of a person’s condition at a moment in time, see, e.g., Veronica 20 H. v. Saul, No. 18 C 7447, 2019 WL 3935039, at *2 (N.D. Ill. Aug. 20, 2019), Dr. Bhatia’s GAF score for Plaintiff was consistently “50” from January 2016 through June 2017. AR 21 312, 315, 318, 321, 324, 327, 330, 333, 336, 339, 344, 347. This indicates that Plaintiff had 22 “serious symptoms or serious impair in social, occupational, or school functioning” for a 23 prolonged period of time, even though as the ALJ notes, Dr. Bhatia found in June 2017 24 that Plaintiff had achieved some stability on medications. AR 23, 311. Dr. Bhatia also 25 consistently found throughout this period that Plaintiff showed “impaired immediate recall 26 and impaired recall memory;” “difficulty concentrating, memory problems (immediate, 27 recent, remote);” and “Deficit in abstract thinking and judgment (impulsive, violent, 2 The ALJ does not explain how he found Plaintiff’s mental conditions “steadily 3 improved” given Dr. Bhatia’s multiple findings that Plaintiff’s functioning in areas of memory, concentration, and judgment remained poor despite the one notation by 4 Dr. Bhatia describing her as “stable on meds.” Dr. Bhatia’s treatment records also 5 demonstrate that the ALJ’s conclusion that “[i]n understanding, remembering, or applying 6 information, [Plaintiff] has no limitation,” AR 23, is not supported by substantial 7 evidence.9 8 Therefore, the ALJ’s conclusion that Plaintiff’s mental conditions “steadily 9 improved” is not supported by substantial evidence in the record, and was error. 10 VII. THE APPROPRIATE REMEDY 11 Having found that the ALJ’s decision was in error and must be reversed, the next 12 issue for determination is whether a remand for further proceedings, or a remand for 13 payment of benefits, is appropriate. “The decision whether to remand for further 14 proceedings or simply to award benefits is within the discretion of this court.” McAllister 15 v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989). “‘If additional proceedings can remedy 16 defects in the original administrative proceedings, a social security case should be 17 remanded. Where, however, a rehearing would simply delay receipt of benefits, reversal 18 [and an award of benefits] is appropriate.’” Id. (brackets in original) (quoting Lewin v. 19 Schweiker, 654 F.2d 631, 635 (9th Cir. 1981)). 20 The decision whether to remand for further proceedings turns upon the likely utility of such proceedings. Harman v. Apfel, 211 F.3d 1172, 1179 (9th Cir. 2000). The court 21 “should credit evidence that was rejected during the administrative process and remand for 22 23 24 9 The ALJ’s reliance on Plaintiff’s ability to perform limited household tasks also does not 25 provide substantial evidence for his conclusions. There is no evidence that these activities are in any way comparable to working for a sustained period of time. And, consistent with 26 Dr. Bhatia’s treatment records, Plaintiff’s son described her limitations as “can’t pay 27 attention,” and “can’t stay on task;” she needs “daily” reminders for personal grooming 2 for rejecting the evidence; (2) there are no outstanding issues that must be resolved before 3 a determination of disability can be made; and (3) it is clear from the record that the ALJ would be required to find the claimant disabled were such evidence credited.” Benecke v. 4 Barnhart, 379 F.3d 587, 593 (9th Cir. 2004). 5 Crediting the evidence that was rejected, the ALJ should have formulated a correct 6 RFC that properly accounted for Plaintiff’s documented issues with concentration and 7 memory. The ALJ’s hypothetical question to the vocational expert expressly assumed that 8 Plaintiff was “able to understand and remember and carry out simple instructions and 9 tasks,” but that is not supported by substantial evidence in the record. AR 54. When the 10 vocational expert was asked about Plaintiff’s ability to find work with restrictions that are 11 supported by substantial evidence, the vocational expert testified that there were no jobs 12 available: 13 Q. [A]re there any jobs available for a hypothetical person with an excessive 14 amount of time off-task, meaning 10 to 15 percent of the workday? A. No. 15 Q. Any work available for a hypothetical person with two or more absences per month due to symptoms of their mental health conditions? 16 A. No. 17 AR 54–55. When the proper restrictions were applied, the vocational expert testified that 18 they would prohibit Plaintiff from finding work. 19 The key issue, then, is whether the Court should remand for further administrative 20 proceedings as to step five, where the Commissioner bears the burden of proving that 21 Plaintiff can perform other work that exists in significant numbers in the national economy, 22 taking into account Plaintiff’s RFC, age, education, and work experience. See 20 C.F.R. 23 § 404.1560(c)(1)-(2); 20 C.F.R. § 404.1520(g)(1). Here, a review of the record 24 demonstrates that this remaining issue has already been addressed by the testimony of the 25 vocational expert, rendering further proceedings unnecessary. 26 “Where the record has been developed fully and further administrative proceedings 27 would serve no useful purpose, the district court should remand for an immediate award of 1 ||benefits is appropriate where “a careful review of the record discloses no reason to 2 ||seriously doubt” that the claimant is disabled). When Dr. Bhatia’s opinion is given 3 ||appropriate weight, the vocational expert’s testimony confirms that Plaintiff cannot 4 || perform work in the general economy. The record here is fully developed, and there is no 5 to further delay payment of benefits to Plaintiff. Remand for an award of benefits is 6 appropriate. 5 VII. CONCLUSION 3 The ALJ erred by rejecting the opinion of Dr. Bhatia and basing his RFC determination on an erroneous finding that Plaintiff's mental conditions had steadily ° improved. The ALJ’s opinion is not supported by substantial evidence in the record. The 10 appropriate remedy here, given the fully developed record, is to avoid any further 1 unnecessary delay and remand for an award of benefits. 12 The Court therefore REVERSES the Commissioner’s denial of disability insurance 13 |! benefits and REMANDS to the ALJ for the calculation and award of benefits. 14 15 IT IS SO ORDERED. 16 || Dated: November 30, 2020 17 _ Aion H. Xolar Honorable Allison H. Goddard 18 United States Magistrate Judge 19 20 21 22 23 24 25 26 27 28