Bateman v. Saul ( 2020 )

| . 2 3 4 . 5 | □ 6 a 8 UNITED STATES DISTRICT COURT | 9 SOUTHERN DISTRICT OF CALIFORNIA 10 || BONNIE B., _ Case No.: 3:20-cv-00653-RBM 12 Plame) ORDER REMANDING DECISION 13 || . OF COMMISSIONER OF SOCIAL 14 || ANDREW SAUL, COMMISSIONER OF SECURITY 15 SOCIAL SECURITY, [Does. 11, 12] 16 Defendant. 18 □ 19 L INTRODUCTION | 20 Plaintiff Bonnie B. (“Plaintiff”) filed a complaint under 42 U.S.C. § 405(g) seeking 21 judicial review of the Commissioner of the Social Security Administration’s (“Defendant” 22 “Commissioner” or “SSA”) final decision denying Plaintiffs application for Social 23 ||Security disability benefits and disabled widow’s benefits under Title II of the Social 24 Security Act (“the Act”). (Doc. 1.) 25 Before the Court are Plaintiff's Merits Brief (“Merits Brief”) (Doc. 11), Defendant’s 26 || combined Cross-Motion for Summary Judgment and Opposition to Plaintiffs Merits Brief a7 jf 28 As set forth in the briefing schedule (Doc. 1 0), the undersigned ordered Plaintiff to file a merits brief pursuant to Civil Local Rule 7.1(e)(6)(e). Plaintiff, however, titled the brief “Memorandum of Points and ] 1 ||(“Cross-MSJ”) (Doc. 12), and Plaintiffs combined Reply and Opposition to Defendant’s 2. || Cross-MSJ (Doc. 13). . . 3 |} The parties consented to the undersigned’s jurisdiction. (Doc. 6; Gen. Or. 707.) 4 ||Considering the papers, the Administrative Record (“AR”), the facts, and the applicable ‘5 Plaintiff’s Merits Brief is GRANTED, Defendant’s Cross-MSJ is DENIED, and the 6 || Administrative Law Judge’s (“ALJ”) decision is REMANDED for further proceedings. 7 Il. BACKGROUND & PROCEDURAL HISTORY 8 On November 27, 2018, Plaintiff filed an application for a period of disability and 9 || disability insurance benefits under Title II of the Act. (AR at 27; see Doc. 11-1 at 10 || Plaintiff alleged an onset of disability as of June 30, 2015. (AR at 27.) 11 Plaintiff chiefly complains of disabling impairments due to right sacroiliac joint 12 |\strain, arthralgia, osteoporosis, irritable bowel syndrome (“IBS”), post-traumatic stress 13 disorder (“PTSD”), major depressive disorder, adjustment disorder with anxiety, and 14 || bipolar disorder not otherwise specified. (See id. at 30, 34, 55-57.) Plaintiff has prior work 15 || experience as an interior designer, residence leasing agent, and real estate sales agent. (/d. 16 38.) Upon applying for disability benefits, Plaintiff alleged that her impairments render 17 incapable of performing work. (See id. at 34, 264.) 18 || The SSA denied Plaintiff's claim initially and on reconsideration. (/d. at 27.) Next, 19 |) Plaintiff requested a hearing before an ALJ, which occurred on December 6, 2018. (dd.) 20 || At the hearing, the ALJ elicited testimony from Plaintiff and a vocational expert (“VE”). 21 || Ud. at 27, 85-91.) 22 On December 27, 2018, the ALJ’s written decision found Plaintiff not disabled under 23 ||the Act. Ud. at 27-40.) On January 29, 2020, after the Appeals Council denied review of 24 || the ALJ’s decision, the decision became final under 42 U.S.C. § 405(h). (Ud. at 1-7.) 25 |) 26 || Authorities in Support of a Motion for Summary Judgment” and inappropriately cited Federal Rule of Civil Procedure 56 (i.e., summary judgment). (Doc. 11-1.) Hereafter, Plaintiffs brief will be referred to 27 |! as a Merits Brief. 228 2 All AR citations refer to the number on the bottom right-hand corner of the page, rather than page numbers assigned by the CM/ECF system. . 1 Il. SUMMARY OF ALJ’S FINDINGS 2 The ALJ held Plaintiff met the insured status requirements of the Act through 3 September 20, 2021. (AR at 29.) The ALJ followed the five-step sequential evaluation 4 || process to determine Plaintiff's disability status. See 20 C.F.R. § 404.1520(a). 5 At step one, the ALJ found Plaintiff had not engaged in substantial gainful activity 6 || since June 30, 2015, the alleged onset date. (AR at 30.) Plaintiff worked after the alleged 7 disability onset date, but it was deemed an unsuccessful work attempt. Ud.) Plaintiff 8 earned $28,262.36 between April 2017 to October 2017. (See id. at 30, 258-62.) At the 9 ||hearing, Plaintiff testified that she could not maintain her level of performance due to her 10 || impairments, so she stopped working by October 4, 2017. Ud. at 30, 54-55, 192.) Because 11 || the period of work was less than six months and ended because of Plaintiff's impairments, 12 ||the ALJ determined the work was an unsuccessful work attempt and not substantial gainful 13 activity. (AR at 30); see 20 C.F.R. § 404.1574(c); see also SSR 84-25. 14 At step two, the ALJ found Plaintiff suffers from the following severe impairments: 15 right sacroiliac joint strain; (2) arthralgia; (3) osteoporosis; (4) IBS; (5) PTSD; (6) major 16 depressive disorder; (7) adjustment disorder with anxiety; and (8) bipolar disorder, not 17 otherwise specified. (AR at 30); see 20 CF.R. § 404.1520(c). The ALJ found □□□□□□□□□□□ 18 || hyperlipidemia, hypothyroidism, skin cancer, eating disorder, hearing impairments, and 19 || chest pains were not severe impairments. (AR at 30-31.) 20 At step three, the ALJ found Plaintiff did not have an impairment or combination of 21 impairments that met or medically equaled one of the listed impairments. (/d. at 31-33.) 22 || Specifically, the ALJ determined that Plaintiff did not meet or equal Listings 1.02A, 1.02B, 23 || 1.04, 5.06, 12.04, 12.06, or 12.15. Ud.) 24 Next, the ALJ determined Plaintiff has the residual functional capacity (“RFC”) to 25 perform medium work as defined in 20 C.E.R. § 404.1567(c). (AR at 33.) The RFC 26 || included the following limitations: 27 [f]requent climbing of ramps or stairs; frequent climbing of ladders, ropes, and 28 scaffolds; and frequent balancing, stooping, kneeling, crouching, and crawling. In 2 1 addition, the [Plaintiff] is limited to occasional interaction with the general public; occasional work-related, non-personal, non-social interaction with workers and supervisors; and can only perform work that does not require satisfaction of 3 production quotas. 4 || Ud) 5 In determining the RFC, the ALJ considered all symptoms and the extent to which 6 ||these symptoms can reasonably be accepted as consistent with the objective medical |levidence and other evidence, as required by 20 C.F.R. § 404.1529 and SSR 16-3p. (d.) 8 |The ALJ also considered medical opinion evidence under 20 C.F.R. § 404.1527. (/d.) 9 In analyzing the same, the ALJ assigned “great weight” to the opinions of 10 |/consultative examiner J. Altman, M.D. (“Dr. Altman”) and P. Ombres, M.D. (‘Dr. 11 ||}Ombres”), finding the opinions consistent with the medical evidence. (Id. at 36.) The ALJ 12 || only assigned “little weight” to the opinion of state agency medical consultant J. Hartman, 13 ||M.D. (“Dr. Hartman”), finding the opinion inconsistent with the medical record. (/d.) 14 As to opinions evaluating Plaintiff’s mental impairments, the ALJ reviewed but did 15 ||not assign weight to the opinion of state agency mental consultant Janet Anguas-Keiter, 16 || Psy.D. (“Dr. Anguas-Keiter”). (/d.) The ALJ also reviewed but did not assign weight to 17 Hillary Wiess, Ph.D. “Dr. Wiess”), who agreed with Dr. Anguas-Keiter’s mental RFC 18 ||assessment. (See id. at 36-37, 117.) The ALJ assigned “some weight” to the opinion of 19 ||treating doctor Dan Metevier, Psy.D. (Dr. Metevier’”), finding it somewhat inconsistent 20 || with the medical record. (See id. at 37, 575-611.) Specifically, the ALJ contrasted Dr. 21 ||Metevier’s finding that Plaintiff is completely unable to manage stress with her ability to 22 || work for several months in 2017. (See id. at 37, 702.) The ALJ reviewed Plaintiffs Global 23 || Assessment of Functioning (“GAF”) scores but gave them “no weight” and determined 24 they are of no evidentiary value. (/d. at 37.). Instead, the ALJ gave “great weight to the 25 ||narrative statements in the psychiatric evaluations, treatment history, and objective details 26 ||and chronology” of record. (/d.) The ALJ assigned “little weight” to the opinion of Amad 27 ||Kadry, M.D. (“Dr. Kadry”) finding it remote in time and not reflected in current mental 28 ||treatment. (See id. at 37, 380.) Likewise, the ALJ gave the opinion of Vickie Woods, 1 ||Licensed Marriage and Family Therapist (“LMFT”) “little weight” for failing to assign 2 || functional limitations and because an LMFT is not an acceptable medical source. (See AR 3 || at 37; see also 20 C.F.R. § 404.1513.) 4 Lastly, the ALJ reviewed the opinion of Plaintiff's former roommate, Jaime Kallweit 5 ||(“Ms. Kallweit”), who submitted a third-party function report. (AR at 37, 300-09.) The 6 || ALJ gave Ms. Kallweit’s report “little weight,” finding it “based on casual observation and 7 ||not clinical testing.” (Id.) 8 Ultimately, the ALJ found Plaintiff's medically determinable impairments could 9 ||reasonably be expected to cause the alleged symptoms. (/d. at 34.) But the ALJ found her 10 || statements concerning the intensity, persistence and limiting effects of these symptoms as 11 |/not entirely consistent with the medical evidence. (/d.) The ALJ so held because “the 12 ||medical evidence does not support the alleged loss of functioning.” (/d.) 13 At step four, the ALJ found Plaintiff unable to perform any past relevant work as an 14 ||interior designer or as a residence leasing agent, which: are skilled light exertion jobs 15 actually performed at medium exertion. (Ud. at 38.) The ALJ also found Plaintiff unable 16 || to perform past relevant work as a real estate sales agent, a skilled light exertional job. □□□□□ 17 At step five, after considering Plaintiff's age, education, work experience and RFC, 18 ||the ALJ found there are jobs existing in significant numbers in the national economy that 19 || Plaintiff can perform. (Id.) Specifically, the ALJ found Plaintiff able to perform jobs at 20 ||the unskilled medium exertional level such as a laundry worker II, hospital cleaner, and 21 |{industrial sweeper-cleaner. (Ud. at 39.) Because the ALJ found Plaintiff capable of 22 ||performing jobs existing in significant numbers in the national economy, the ALJ 23 || determined Plaintiff is not disabled under the Act. (AR at 39); 20 C.F.R. § 404.1520(g). IV. ISSUES IN DISPUTE 25 This Court’s review is limited to five issues: 26 1. Did the ALJ properly evaluate Dr. Metevier’s opinion and provide clear and _ 27 convincing reasons to reject it? (Doc. 11-1 at 10-13; Doc. 12 at 3-4, 6-8; Doc. 13 at 2-4.) 28 1 2. Did the ALJ properly evaluate Dr. Anguas-Keiter’s opinion? (Doc. □□□□ at 16- 2 || 18; Doc. 12 at 5-6; Doc. 13 at 7-8.) 3. Did the ALJ give germane reasons for rejecting the third-party opinion of Ms. 4 Kallweit? (Doc. 11-1 at 13-14; Doc. 12 at 12-13; Doc. 13 at 4-6.) 5 4. Did the ALJ provide specific, clear and convincing reasons to reject Plaintiff's 6 || mental impairment allegations? (Doc. 11-1 at 18-21; Doc. 12 at 10-12; Doc. 13 at 8-10.) 7 5. Did the ALJ properly consider Plaintiff's mental impairments and limitations in 8 ||making an RFC determination? (Doc. 11-1 at 14-16; Doc. 12 at 7-8; Doc. 13 at 6-7.) □□ 9 V. STANDARD OF REVIEW 10 The Act provides for judicial review of a final agency decision denying a claim for 11 disability benefits in federal district court. 42 U.S.C. § 405(g). “[F]ederal court review of 12 || social security determinations is limited.” Treichler v. Comm’r Soc. Sec. Admin., 775 F.3d 13 |} 1090, 1098 (9th Cir. 2014). A federal court will uphold an ALJ ’s disability determination 14 it is free of legal error and is supported by substantial evidence. Garrison v. Colvin, 759 15 |} F.3d 995, 1009 (9th Cir. 2014). Substantial evidence is “more than a mere scintilla, but 16 || less than a preponderance; it is such relevant evidence as a reasonable person might accept 17 |/as adequate to support a conclusion.” Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 18 2007). In reviewing whether the ALJ’s decision is supported by substantial evidence, the 19 |}Court must consider the record as a whole, “weighing both the evidence that supports and 20 || the evidence that detracts” from the ALJ’s conclusion. Id. (quoting Reddick v. Chater, 157 21 || F.3d 715, 720 (9th Cir. 1998)). 22 The ALJ is responsible for “determining credibility, resolving conflicts in medical 23 |\testimony, and for resolving ambiguities.” E.g., Garrison, 759 F.3d at 1010 (internal 24 || citation omitted). When evidence supports more than one rational interpretation, the ALJ’s 25 conclusion must be upheld. Batson v. Comm’r Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th 26 || Cir. 2004). Stated differently, when “the evidence can reasonably support either affirming 27 || or reversing a decision, [the Court] may not substitute [its] judgment for that of the [ALJ].” 6 . 1 || Garrison, 759 F.3d at 1010 (internal citation omitted). Rather, the Court only reviews the 2 reasons provided by the ALJ and may not affirm the ALJ on other grounds. Id. 3 VI. DISCUSSION 4 Plaintiff contends that the ALJ erred on five grounds: (1) the ALJ improperly 5 || paraphrased Dr. Metevier’s opinion and did not to give specific and legitimate reasons to 6 ||reject the opinion (Doc. 11-1 at 10-13); (2) the ALJ improperly rejected Ms. Kallweit’s 7 || opinion without providing germane reasons to reject it (Doc. 11-1 at 16-18); (3) the ALJ 8 erred in omitting Plaintiff's mental functioning limitations from the RFC analysis (Doc. 9 || 11-1 at 13-14); (4) the ALJ failed to include Dr. Anguas-Keiter’s complete opinion nor 10 j/assign it any weight (Doc. 11-1 at 18-21); and (5) the ALJ’s credibility finding is flawed, 11 || because it translates Plaintiff's daily activities into the ability to work a full-time job (Doc. 12 at 14-16). Defendant counters that the ALJ properly considered and weighed all of 13 ||the evidence, including Plaintiff's mental functioning in the RFC analysis, Plaintiff's 14 || subjective allegations, and Ms. Kallweit’s opinion. (Doc. 12 at 3-13.) 15 A. The ALJ Did Not Properly Evaluate Dr. Metevier’s Opinion 16° The ALJ improperly paraphrased Dr. Metevier’s opinion by inserting findings the 17 ||doctor did not make, and he did not provide clear and convincing reasons to reject that |lopinion. (See AR at 37, 580-81.) _ 19 i, Duty to Evaluate a Treating Doctor’s Opinion 20 A treating doctor’s opinion is given controlling weight when it is “well supported by 21 |{clinical and laboratory diagnostic techniques and is [consistent] with other substantial 22 ||evidence” in the record. Trevizo v. Berryhill, 871 F.3d 664, 675 (9th Cir. 2017). But when 23 treating doctor’s opinion is contradicted by another doctor, the ALJ may only discount 24 treating opinion by providing specific and legitimate reasons supported by substantial 25 |}evidence. Jd. To reject an uncontradicted treating or examining doctor’s opinion, the “ALJ 26 |;must state clear and convincing reasons” supported by substantial evidence. Id. at 676. 27 ||The ALJ fails to provide specific and legitimate reasons for rejecting a medical opinion 28 1 || where he misstates the opinion and fails to provide sufficient analysis. See Godlinez v. 2 || Berryhill, SACV 17-0194 SS, 2017 WL 6349720, at *7 (C.D. Cal. Dec. 11, 2017). 3 ii. Analysis — 4 An ALJ may paraphrase medical evidence but cannot do so in a manner “not entirely 5 |} accurate regarding the content or tone of the record.” Reddick, 157 F.3d at 721-22. 6 Considering Dr. Metevier’s opinion and the ALJ’s analysis of the same, the ALJ 7 |l erred in paraphrasing portions of Dr. Metevier’s findings. (AR at 37, 580-81.) Here, the 8 || findings mentioned by the ALJ are largely accurate and consistent with tone of the cited 9 ||opinion. (/d.) But the ALJ made one significant change: the ALJ cited Dr. Metevier’s 10 opinion as finding Plaintiff “unable to adapt to stress.” (Ud. at 37.) Dr. Metevier does not 11 ||make such a finding explicitly nor can this finding be reasonably inferred from Dr. 12 || Metevier’s opinion. (Ud. at 575-611.) And Defendant agrees. (Doc. 12 at 8 (“Plaintiff also 13 |/asserts that Dr. Metevier found Plaintiff was ‘unable to adapt to stress’ . . . however, the 14 || pages of the record . . . do not appear to reflect any such finding by Dr. Metevier.”).) 15 This change is significant, because the ALJ rejected Dr. Metevier’s opinion based 16 on Plaintiff's work history being inconsistent with the “complete inability to manage 17 stress.” (AR at 37.) The ALJ cannot, without sufficient analysis, draw a conclusion from 18 || Dr. Metevier’s opinion it did not state and then proceed to reject that opinion on that basis. 19 || Godlinez, 2017 WL 6349720, at *7; see Reddick, 157 F.3d at 721-22. As such, the ALJ 20 erred in his paraphrasing of Dr. Metevier’s decision. 21 The ALJ also failed to provide clear and convincing reasons to reject Dr. Metevier’s 22 || opinion. It is undisputed that Dr. Metevier’s opinion is that of a treating physician. (Doc. 23 at 11; Doc. 12 at 5.) Because Dr. Metevier’s opinion is uncontradicted by another 24 || doctor’s opinion, the ALJ must state clear and convincing reasons supported by substantial 25 || evidence to reject that opinion. Trevizo, 871 F.3d at 675. 26 Here, the ALJ failed to offer a clear and convincing reason to reject Dr. Metevier’s |) opinion by relying solely upon Plaintiff's failed work attempt. (See AR at 37.) A failed 28 “work attempt alone is not a clear and convincing reason” to reject a treating doctor’s 1 |}opinion. See Jalexis O. v. Berryhill, 17-cv-00172-MC, 2018 WL 4931996, at *8 (D. Or. 2 ||Oct. 10, 2018) (“the ALJ .. . cannot use an unsuccessful work attempt to discredit the 3 |lopinion of an examining physician who assesses limitations that would not allow 2 4 successful return to work.”); cf. Lingenfelter, 504 F.3d at 1040 (“the work attempt alone ‘is 5 a clear and convincing reason” to discredit “[plaintiff’s] testimony about his pain and 6 || physical” limitations.). In fact, a failed attempt to return to work, rendered unsuccessful 7 |\solely by Plaintiff's symptoms and limitations, strengthens findings consistent with 8 || disability. See Jalexis O., 2018 WL 4931996, at *8 (citing Lingenfelter, 504 F.3d at 1038). 9 In sum, the ALJ erred in paraphrasing Dr. Metevier’s opinion without sufficient 10 analysis and for failing to cite clear and convincing reasons to reject Dr. Metevier’s 11 |}opinion. See Reddick, 157 F.3d at 721-22; see also Trevizo, 871 F.3d at 675. 12 B. The ALJ Erred in Failing to Assign Weight to Dr. Anguas-Keiter’s Bll Opinion 14 The ALJ did not assign any weight to Dr. Anguas-Keiter’s opinion. (See AR at 36- 15 99-101, 115-17.) This is error. . 16 i. Duty to Evaluate Medical Opinions 17 The ALJ must consider medical opinions of record together with the rest of the 18 |/relevant evidence. 20 C.F.R. § 404.1527(b). The ALJ must also evaluate every medical 19 || opinion received and consider the factors in 20 C.F.R. § 404.1527(c)(1)-(6) in deciding the 20 || weight to give to such opinions. 20 C.F.R. § 404.1527(c). 21 An ALJ must assign weight to every medical opinion received. See Garrison, 759 22 ||F.3d at1012-13 (“an ALJ errs when he rejects a medical opinion or assigns it little weight 23 || while doing nothing more than ignoring it, asserting without explanation that another _ 24 ||medical opinion is more persuasive, or criticizing it with boilerplate language that fails tc 25 || offer a substantive basis for his conclusion.”); see also 20 C.F.R. § 404.1527(c) (“we will 26 ||evaluate every medical opinion we receive” and “will always give good reasons... fot 27 || the weight we give your treating source’s medical opinion.”)). But the ALJ need not assigr 28 |la specific evidentiary weight to a medical opinion. See 20 C.F.R. § 404.1527(c). □ I Generally, more weight should be given to a treating source’s opinion than the 2 opinion of a non-treating source. Garrison, 759 F.3d at 1012. The weight given to a 3 ||treating physician is greater than that of an examining physician, and an examining 4 || physician is given more weight than that of a non-examining physician. Id. The ALJ errs 5 ||where he does not explicitly reject a medical opinion or set forth specific, legitimate 6 reasons for crediting one medical opinion over another. Jd. 7 ii. Analysis 8 It is clear the ALJ considered the opinions of state agency mental consultants Drs. 9 || Anguas-Keiter and Weiss from the ALJ’s summary of their findings. (AR at 36-37.) But 10 || what is unclear from the decision is the degree to which the ALJ agreed, disagreed, or relied 11 |/upon these opinions. (/d.) 12 Although the ALJ is not required to assign a medical opinion a specific weight, the 13 || ALJ must assign medical opinions some weight. See Hill v. Astrue, 698 F.3d 1153, 1160 14 || (9th Cir. 2012); see also 20 C.F.R. § 404.1527(c). The ALJ weighs medical opinions to 15 || help express the persuasiveness of the opinion to the ALJ. See 20 C.F.R. § 404.1520(c)(1)- In the absence of any weight accorded to a medical opinion, Plaintiff has little recourse 17 ||to rebut the ALJ’s rejection or omission of the opinion. Therefore, the ALJ erred in not 18 || explicitly rejecting Dr. Anguas-Keiter’s medical opinion. Garrison, 759 F.3d at 1012-13. 19 C. The ALJ Failed_to Provide Germane Reasons for Rejecting Ms. 20 Kallweit’s Opinion 21 The ALJ assigned “little weight” to Ms. Kallweit’s third-party lay opinion, because 22 ||it was based “on casual observation and not clinical testing[.]”. (AR at 37.) This is not a 23 || germane reason to reject this opinion. 24 i. Duty to Evaluate Lay Opinions 25 “Lay testimony as to a [plaintiff]’s symptoms is competent evidence that an ALJ 26 must take into account, unless he or she expressly . . . disregard[s] such testimony and gives 27 ||reasons germane to each witness for doing so.” Diedrich v. Berryhill, 874 F.3d 634, 640 28 Cir. 2017) (quoting Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001)). Friends in a 10 1 || position to observe a plaintiff's symptoms and daily activities are competent to testify as 2 || to that person’s condition. Jd. 3 The ALJ may not discredit lay opinion for a “lack of support from the ‘overall 4 ||medical evidence... .’” Id. (citing Bruce v. Astrue, 557 F.3d 1113, 1116 (9th Cir. 2009) 5 || (“[nJor under our law could the ALJ discredit [the witness’s] lay testimony as not supported 6 ||by medical evidence in the record.”)). Nor is lack of support from medical records a 7 || germane reason to give “little weight” to that opinion. /d. But the ALJ may reject portions 8 || of lay opinion beyond the witness’ competence, such as medical conclusions or diagnoses. 9 Gump v. Comm’r of Soc. Sec., 222 F. App’x 553, 554-55 (9th Cir. 2007); Nguyen v. Chater, 10 F.3d 1462, 1467 (9th Cir. 1996) (“medical diagnoses are beyond the competence of 11 || lay witnesses and [are not] competent evidence.”). 12 ii. Analysis 13 Here, the ALJ erred by failing to give germane reasons for rejecting the lay opinion |/of Ms. Kallweit. (AR at 37, 300-09.) Ms. Kallweit’s lay opinion, as that of a friend who 15 || has observed Plaintiff's symptoms and daily activities, is competent evidence the ALJ must 16 ||consider. Diedrich, 874 F.3d at 640. As Plaintiff argued, Ms. Kallweit’s report is precisely 17 || the type of opinion evidence valuable to an ALJ’s disability determination. Diedrich, 874 18 || F.3d at 640; (see Doc. 11-1 at 14.) Lay opinion testimony need not rely on clinical testing, 19 || and it is error to discredit or otherwise reject “lay testimony as not supported by medical 20 || evidence in the record.” See Diedrich, 874 F.3d at 640. Although the ALJ may reject Ms. 21 || Kallweit’s opinion, rejecting a lay opinion as based on causal observation and not clinical 22 ||testing are not germane reasons. See id. 23 Defendant contends that Ms. Kallweit’s opinion is outside her competency and is 24 || duplicative of Plaintiff's arguments and thus should be rejected. (Doc. 12 at 12-13.) But 25 ||the ALJ did not cite any portions of Ms. Kallweit’s opinion akin to medical conclusions or 26 || diagnoses outside her competence. (See AR at 37.) Even assuming arguendo Ms. Kallweit 27 || offered opinion outside her competency and the ALJ cited this reason, the ALJ could only 28 reject the incompetent portions and not blanket reject the entire opinion. Gump, 222 F. 1 . 1 || App’x at 554-55. As to Ms. Kallweit’s opinion being duplicative of Plaintiffs allegations, 2 ||the ALJ did not cite this reason for rejecting the opinion. (See AR at 37.) The Court only 3 reviews the reasons provided by the ALJ and may not affirm on other grounds. Garrison, 4 ||759 F.3d at 1010. Thus, it is error to reject Ms. Kallweit’s opinion on this ground. See 5 || Diedrich, 874 F.3d at 640. To reject competent lay testimony, the ALJ must give germane 6 reasons as “to each witness for doing so” and cannot apply the reasons to reject one witness 7 |\to all witnesses. Id. 8 In sum, the ALJ erred by failing to give a germane reason to reject Ms. Kallweit’s 9 opinion. Id. 10 D. The ALJ Failed to Provide Specific, Clear and Convincing Reasons to 11 Reject Plaintiff's Mental Impairment Allegations 12 The ALJ found that Plaintiff's medically determinable impairments could 13 ||reasonably be expected to cause the alleged symptoms, but her statements regarding these 14 ||symptoms were not entirely consistent with the medical evidence and other evidence of 15 ||record. (See AR at 35-36.) In rejecting Plaintiff's subjective allegations of impairment, 16 ||the ALJ cited to Plaintiff's improvement with treatment and refusal of treatment, her 17 ||minimal daily activities, and her failed work attempt. (See id.) However, for the reasons 18 || outlined below, these are not specific, clear and convincing reasons. 19 | i. Duty to Evaluate Subjective Claims of Impairments 20 The ALJ engages in a two-step analysis to assess the credibility of a plaintiffs 21 testimony regarding subjective pain or the intensity of symptoms. Vasquez v. Astrue, 572 22 || F.3d 586, 591 (9th Cir. 2009). First, the ALJ determines whether there is objective medical 23 ||/evidence of an underlying impairment which could reasonably be expected to produce the 24 || pain or other symptoms alleged. /d. Ifthe plaintiff satisfies the first step, an ALJ can reject 25 ||the plaintiffs subjective allegations of impairment only upon (1) finding evidence of 26 || malingering, or (2) expressing specific, clear and convincing reasons for doing so. Burrell 27 || v. Colvin, 775 F.3d 1133, 1136 (9th Cir. 2014). In addition to objective medical evidence, ALJ must consider the factors in 20 C.F.R. § 404.1529 to assess the credibility of 12 1 ||symptoms. In assessing credibility, the ALJ may consider the consistency between 2 || plaintiff's allegations of disabling impairments with the objective medical evidence, 3 || plaintiffs daily activities, and plaintiffs ability to treat symptoms with medication. E.g., 4 || Lingenfelter, 504 F.3d at 1040. 5 Generally, questions of credibility and resolution of conflicts in the testimony are 6 duties left to the ALJ. Parra v. Astrue, 481 F.3d 742, 750 (9th Cir. 2007). An ALJ may 7 || discredit a plaintiffs subjective statements of impairment, but the ALJ must “identify what 8 || testimony is not credible and what evidence undermines [that testimony].” See, e. g., Berry 9 || v. Astrue, 622 F.3d 1228, 1234 (9th Cir. 2010). 10 ii. Improvement with Treatment and Refusal of Treatment 11 The ALJ did not provide specific, clear and convincing reasons to reject □□□□□□□□□□□ 12 ||symptom statements, when he cited Plaintiffs refusal of treatment and improvement with 13 ||treatment. 14 ‘Impairments that can be controlled effectively with medication are not disabling. 15 || Warre v. Comm'r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006); see 20 C.F.R. 16 404.1529(c)(3)(iv) (medications may be considered in assessing plaintiff's subjective 17 ||symptoms). Declining further treatment is inconsistent with disabling mental impairments, 18 the ALJ may consider this in his credibility finding. Tommasetti v. Astrue, 533 F.3d 19 1035, 1039 (9th Cir. 2008) (“the ALJ may consider many factors in weighing a [plaintiff s] 20 || credibility, including . . . unexplained or inadequately explained failure to seek treatment 21 to follow a prescribed course of treatment . . . .”) (internal quotations omitted). 22 But “it is a questionable practice to chastise one with a mental impairment for the 23 exercise of poor judgment in seeking rehabilitation.” Garrison, 759 F.3d at 1018 n.24 24 ||(quoting Nguyen, 100 F.3d at 1465). The Court does “not punish the mentally ill for 25 || occasionally going off their medication when the record affords [a] compelling reason to 26 || view such departures” as part of Plaintiff's impairments. Id. 27 The ALJ cited records that Plaintiff was prescribed an emotional support dog in 28 ||2017. (AR at 35, 696.) The ALJ also cited progress notes where Plaintiff reported that 13 1 || Adderall helped her cry less and that Wellbutrin was helpful. (/d. at 35, 506, 519.) But in 2 ||2017, Plaintiff declined further psychotropic medications or mental health treatment. (Id. 3 35, 693.) Plaintiff states she stopped taking medications in December 2017, because 4 they “contributed to me feeling suicidal ....” (AR at 74.) Plaintiff also explains that she 5 ||stopped regular mental health treatment because she lost her insurance. (Jd. at 73-74.) 6 || Plaintiff adequately explained her sporadic departure from recommended treatment. See 7 || Garrison, 759 F.3d at 1018 n.24. 8 The ALJ also noted that her “mental impairments show improvement with 9 ||treatment.” (AR at 35.) The ALJ stated that Plaintiff's most recent mental status 10 ||examinations were normal, citing to June 25, 2018 progress notes. (/d. at 35, 682.) The 11 |} ALJ stated these notes revealed normal behavior, mood, memory, thought process and 12 || content, good insight and judgement, and no suicidal ideation. (See id. at 35, 682-83.) The 13 ||ALJ opined this “contravenes [Plaintiffs] alleged loss of functioning.” (Jd. at 35.) An 14 || ALJ may consider a lack of medical findings or largely normal findings as a basis to 15 || discredit Plaintiff's allegations. See Burch v. Barnhart, 400 F.3d 676, 681. Although it is 16 |/error to reject mental health issues based on isolated instances of improvement, the ALJ 17 use evidence of improvement with treatment to interpret Plaintiff's testimony || regarding the severity of an impairment. See Garrison, 759 F.3d at 1017 (“[t]hey must 19 |/also be interpreted [knowing] that improved functioning while being treated and while 20 || limiting environmental stressors does not always mean that a [plaintiff] can function 21 effectively in a workplace.”). . 22 The Court takes note, however, that improvement or normal findings over time are 23 || useful but the data points chosen “must in fact constitute examples of broader development 24 || to satisfy the applicable [specific,] ‘clear and convincing’ standard.” Jd. at 1018. The ALJ 25 fails to meet this demanding standard. Jd. Rather than “describe [Plaintiffs] symptoms, 26 course of treatment, and bouts of remission, and thereby chart a course of improvement, 27 ||the ALJ improperly singled out a few periods of temporary well-being from a sustained 28 || period of impairment and relied on these to discredit [Plaintiff].” Jd. The ALJ cites a 2016 14 1 || record where Plaintiff reports medication helping with symptoms and a 201 8 examination 2 reflecting largely normal findings. (AR at 35, 506, 519, 682.) Two examples of temporary 3 periods of wellbeing in four years of alleged disability (2015-2018) hardly constitutes the 4 || broader development of improvement necessary to meet the standard. Garrison, 759 F.3d 5 1018. Further, the ALJ’s citation to the 2018 examination record appears misleading. 6 ||(See AR at 35, 682.) The ALJ states that Plaintiff reflected no suicidal ideation. (/d.) But 7 |/in the next page of the report, the doctor notes Plaintiff has “[c]hronic thoughts of suicide” 8 || and is at “Im]oderate risk.” (/d. at 683.) The report also details the extent of □□□□□□□□□□□ 9 || suicidal ideation: “[p]lan, thinks about it. Patient has researched best way to suicide and 10 stated that it is about “being prepared’ if she gets to the ‘point of no return.’” (/d.) This 11 |/casts serious doubt on the use of the 2018 report to. support a broader development of 12 ||improvement. (See id. at 35, 682.) Two singled out days of temporary well-being over 13 || years of impairment do not constitute the broader development of improvement necessary 14 be a specific, clear and convincing reason to reject Plaintiff's subjective allegations of 15 |/impairment. Garrison, 759 F.3d at 1018. This is especially true where the veracity of one 16 || of the two reports is seriously cast into doubt. See id. 17 iii. Daily Activities 18 The ALJ did not provide a specific, clear and convincing reason to reject Plaintiff s 19 impairment allegations when he cited Plaintiff's minimal daily activities. 20 ||. In the ALJ’s decision, the ALJ cited Plaintiff's function reports where she reports 21 || difficulty with activities of daily living or care. (AR at 36, 276-85, 312-20.) The ALJ then 22 cited testimony that Plaintiff can dress and bathe herself and prepare her own meals to 23 contradict those statements. (Id. at 36.) Although an ALJ may consider a plaintiffs daily 24 |\activities to disregard symptom testimony, courts should not penalize plaintiffs “for 25 attempting to lead normal lives in the face of their limitations.” Contreras v. Saul, 19-cv- 26 ||00482-GPC-NLS, 2020 WL 1650594, at *11 (S.D. Cal. Apr. 3, 2020) (quoting Reddick. 27 \|157 F.3d at 722). The Court is hard pressed to find the cited daily activities—that Plaintifi 28 ||can dress, bathe, and cook for herself—are inconsistent with her symptom testimony anc 15 1 |}involve functions transferable to a work setting. Contreras, 2020 WL 1650594, at *11; see 2 || Vertigan v. Halter, 260 F.3d 1044, 1049 (9th Cir. 2001) (“if a [plaintiff] is able to spend a || substantial part of [her] day engaged in pursuits involving the performance of physical _ 4 functions that are transferable to a work setting, the ALJ may be justified in disregarding 5 || the [plaintif? s] symptom testimony.”) (internal quotations and citation omitted). 6 By Plaintiff's own testimony, it takes her several hours to get ready each day: “I 7 dress myself. It takes me a couple of hours to get ready. I take two showers a day to... 8 ||calm me down... (AR at 77.) Many activities of daily living, such as the activities 9 cited by the ALJ, are not easily transferred to the more grueling workplace environment, 10 where it may be impossible to regularly rest or take medication. Fair v. Bowen, 885 F.2d 11 ||597, 603 (9th Cir. 1989). The fact that Plaintiff “regularly engages in some activity does 12 disprove a disability.” Contreras, 2020 WL 1650594, at *11 (citing Smolen v. Chater, 13 F.3d 1273, 1287 n.7 (9th Cir. 1996) (“[t]he Social Security Act does not require that the 14 || [plaintiff] be utterly incapacitated to be eligible for benefits . . . .”).). 15 The ALJ further cited Plaintiffs testimony that she finds it difficult to be around 16 others. (AR at 36.) To rebut this claim, the ALJ cites Plaintiff's statements that she does 17 own shopping when there are not too many people in the store. U/d.) But Plaintiffs 18 ability to go shopping with limited interactions is consistent with her allegations. It is 19 || inappropriate to discredit Plaintiff on this ground, because the activity is not one Plaintiff 20 “spend a substantial part of [her] day engaged in” to be transferrable to a work setting. 21 || Contreras, 2020 WL 1650594, at *11 (quoting Fair, 885 F.2d 597, 603); Vertigan, 260 22 ||F.3d at 1049. Plaintiff s hearing testimony explained the therapeutic purpose of her 23 shopping: “I don’t go out. So I don’t socialize with—interact with anybody. Every once 24 in a while, Vl go out with a girlfriend to do a little shopping just to get me out, like to, to 25 || live.” (AR at 76 (emphasis added).) Again, courts should not penalize Plaintiffs attempting 26 ||to lead normal lives, and this is especially true where the activity is done for therapeutic 27 ||reasons. Contreras, 2020 WL 1650594, at *11 (citing Vertigan, 260 F.3d at 1050). In any 28 |jevent, Plaintiff's shopping trips are not performed consistently enough to “mirror the 16 , 1 ||demands of a full-time job.” Jd. (quoting Meier v. Astrue, 404 F. App’x 150, 152 (9th Cir. 2 2010) (finding ALJ’s rejection of plaintiffs testimony erroneous even where plaintiff 3 ||“occasionally engage[d] in more strenuous activities such as lifting bags of salt and garbage 4 || and shoveling snow” because those activities were intermittent)). 5 iv. Unsuccessful Work Attempt 6 The ALJ failed to provide specific, clear and convincing reasons to reject □□□□□□□□□□ 7 |\allegations of disabling mental impairments in relying upon Plaintiffs 2017 unsuccessful 8 || work attempt. Plaintiff worked after her alleged onset date of disability for four months in 9 |/2017. (AR at 30.) Although Plaintiff stopped working because of her impairments, the 10 || ALJ cited this work attempt to discredit Plaintiffs impairment allegations. (Id. at 36, 702.) 11 The ALJ concluded that Plaintiff's unsuccessful work attempt tends to show her 12 || ability to maintain at least some kind of employment. (/d.) But this finding contradicts 13 || both regulation and caselaw. See Lingenfelter, 504 F.3d at 1038 (“[i]t does not follow from 14 ||the fact that a [plaintiff] tried to work for a short period of time and, because of his 15 || impairments, failed, that he did not then experience pain and limitations severe enough to 16 preclude him from maintaining substantial gainful employment. Indeed, . . . evidence that 17 [plaintiff] tried to work.and failed actually supported his allegations of” disability.); SSR 18 |} 84-25; 20 CFR § 404.1574(a)(1). Rather, an attempt to return to substantial gainful 19 activity, such as Plaintiffs four-month stint here, rendered unsuccessful solely by 20 || Plaintiffs symptoms and limitations, strengthens Plaintiff's credibility. See Lingenfelter, 21 F.3d at 1038. 22 In sum, the ALJ failed to adequately reject Plaintiff's subjective mental impairment 23 |/allegations by solely relying upon Plaintiffs improvement with treatment, refusal of 24 || treatment, minimal daily activities, and unsuccessful work attempt. Vertigan, 260 F.3d at 25 1049; see Garrison, 759 F.3d at 1017-18; see also Lingenfelter, 504 F.3d at 1040. 27 28 17 l E. The ALJ Erred in Failing to Incorporate Plaintiff's Mental Functional Limitation into the RFC Determination . 3 The ALJ’s Step two analysis included a mental functional limitation. (AR at 32-33.) 4 || Failing to incorporate this finding into the RFC analysis is error. (See id.) 5 i. Duty to Consider Mild Impairments 6 The ALJ must consider all medically determinable impairments, including non- 7 ||severe impairments. 20 C.F.R. § 404.1545(a)(2); Hutton v. Astrue, 491 F. App’x 850, 850 8 || (9th Cir. 2012). The ALJ errs where he finds that plaintiff has mental limitations but omits 9 them from the RFC without explanation. See Michele M. v. Saul, 19-cv-00272-JLB, 2020 10 ||} WL 1450442, at *8-9 (S.D. Cal. Mar. 25, 2020); see also Hutton, 491 F. App’x at 851 11 |) @[fJurther, while the ALJ was free to reject [plaintiff's] testimony as not credible, there 12 || was no reason for the ALJ to disregard his own finding that [plaintiffs] non[-]severe PTSD 13 ||}caused some ‘mild’ limitations in . . . concentration, persistence, or pace.”). 14 ii. Analysis 15 The ALJ determined Plaintiff has a mild limitation yet omitted this finding from his 16 ||RFC determination. (AR at 32.) This is error. Michele M., 2020 WL 1450442, at *8-9; 17 || see Hutton, 491 F. App’x at 851. The ALJ cited to a mental status examination showing 18. || Plaintiff had intact long and short-term memory to undermine the mild limitation finding. 19 at 32, 672.) Although “the ALJ was free to reject [Plaintiff's] testimony as not 20 ||credible, there was no reason . . . to disregard his own finding that [Plaintiff] . . . [had] 21 some ‘mild’ limitations in” understanding, remembering, or applying information. Hutton, 22 ||491 F. App’x at 851; (see AR at 32, 536). 23 When the ALJ determined Plaintiff had a limitation, that limitation should have been 24 || included in his RFC analysis. Hutton, 491 F. App’x at 851. To omit it was error. See id 25 |} F. The ALJ’s Errors Were Not Harmless 26 An ALJ’s error is harmless when it is inconsequential to the ultimate nondisability 27 ||determination. Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 28 ||2008). The Court looks at the record as a whole to determine whether the error alters the . 18 [loutcome of the case. See id. “[T]he more serious the ALJ’s error, the more difficult it 2 ||should be to show the error was harmless.” Marsh v. Colvin, 792 F.3d 1170, 1173 (9th 3 2015). The Court should be cautious to find an error harmless. Id. 4 The ALJ committed several errors that may have altered the ALJ’s ultimate decision. 5 || Supra Part VI.A-E., pp. 7-19; (see AR at 29-39.) A single error alone, if harmful, is 6 ||sufficient to remand. See Marsh, 792 F.3d at 1173. Here, one such error is the ALJ’s 7 failure to assign weight to Dr. Anguas-Keiter’s opinion. Supra Part VI.B., pp. 9-11;(see 8 ||AR at 36-37.) As stated, the failure to assign a medical opinion weight is error. See 9 || Garrison, 759 F.3d at 1012-13. Defendant argues this error was harmless, but the Court 10 disagrees. (See Doc. 12 at 5-6.) Dr. Anguas-Keiter’s opinion directly contradicts the ALJ’s 11 findings. (See AR at 34, 101.) Dr. Anguas-Keiter found Plaintiff's allegations consistent 12 || with the objective findings and medical evidence of record, but the ALJ found Plaintiffs 13 {|symptom statements not entirely consistent with the medical evidence. (/d.) Further, Dr. 14 || Anguas-Keiter found Plaintiff has memory impairment issues. (/d. at 100 (“[m]Jemory 15 impairment—cannot remember unless written down.”).) If the ALJ had properly 16 ||considered Dr. Anguas-Keiter’s opinion, the RFC determination likely would have 17 || changed as would the step five determination. As such, the ALJ’s error was not harmless. 18 || See McClurkin v. Saul, 19-00234 JMS-RT, 2020 WL 292187, at *7 (D. Haw. Jan. 21, 2020) 19 ||(holding ALJ’s failure to consider or assign weight to a medical opinion was not harmless 20 |Jerror) (citing Embrey v. Bowen, 849 F.2d 418, 423 (9th Cir. 1988)). This error alone is 21 |\sufficient to remand. See Marsh, 792 F.3d at 1173. 22 G. Remand is Appropriate 23 The ALJ’s error was not harmless, thus, the appropriate remedy is to remand for 24 || further proceedings. See Marsh, 792 F.3d at 1173. 25 Court may remand for benefits “where no useful purpose [is] served by further 26 |; administrative proceedings and the record [is] thoroughly developed.” Vertigan, 260 F.3d 27 1053 (internal quotations omitted). In deciding whether to remand for benefits or for 28 || further proceedings, the Court follows the three-step credit-as-true rule. See Treichler, 775 19 1 ||F.3d at 1100-02. First, the Court determines if the ALJ failed to offer “legally sufficient 2 ||reasons for rejecting evidence.” Jd. at 1100. Next, the Court determines whether the record 3 fully developed, whether there are outstanding issues to be resolved before determining 4 disability, and whether further administrative proceedings would be useful. /d. Finally, if 5 ||there are no outstanding issues, the Court may find “the relevant testimony credible as a 6 || matter of law” and award benefits, so long as the record “leaves not the slightest uncertainty 7 ||as to the outcome of the proceeding.” Jd. at 1101. □ 8 Here,. further administrative proceedings would prove useful, so the appropriate 9 ||remedy is remand. First, the ALJ failed to offer legally sufficient reasons for rejecting 10 ||evidence on several occasions. Supra Part VI.A-E., pp. 7-19. Second, Defendant’s. 11 |}argument that VE testimony would be necessary to evaluate Plaintiff's ability to work at 12 ||step five of the sequential evaluation. (See Doc. 12 at 15.) Additional VE testimony, 13 ||together with the evidence to be reconsidered, will be useful to the ALJ’s ultimate 14 || determination. And further administrative proceedings would be useful to properly 15 ||consider the supplemental record from Dr. Metevier, which the ALJ did not have the 16 || opportunity to consider. (Doc. 11-1 at 8-9; AR at 17.) Even assuming the first two steps 17 || of the credit-as-true rule were met, the record has not shown that “entitlement to benefits 18 |/isclear....” See Treichler, 775 F.3d at 1103-04. As such, remand for further proceedings 19 ||is appropriate. 20 In sum, the ALJ’s decision contained several errors, at least one of the errors was 21 |/not harmless, and further administrative proceedings would be helpful. As such, □□□□□□□□□□□ 22 Merits Brief is GRANTED, Defendant’s Cross-MSJ is DENIED, and the ALJ’s decision 23 REMANDED. 24 25 26 28 □ 30 . 1 VII. CONCLUSION — 2 For the reasons given, the Court finds the ALJ’s decision is not free of legal error. 3 || Accordingly, IT IS HEREBY ORDERED: (1) Plaintiff’s Merits Brief is GRANTED; (2) 4 ||Defendant’s Cross-MSJ is DENIED; and (3) the ALJ’s decision is REMANDED for 5 || further proceedings before the SSA. The Clerk of Court shall enter Judgment accordingly. 6 IT IS SO ORDERED. 7 ||Dated: December AS, 2020 9 ON. RUTH BERMUDEZ MONTENEGRO. 10 UNITED STATES MAGISTRATE JUDGE 11 12 13 | 14 . 15 □ 16 □ 17 18 19 20 21 □ 22 23 24 25 . 26 27 □□ 28 21