Fischer v. Kijakazi ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MICHAEL F., Case No.: 3:20-cv-00524-AHG 12 Plaintiff, ORDER 13 v. (1) RESOLVING JOINT MOTION 14 KILOLO KIJAKAZI, Commissioner of FOR JUDICIAL REVIEW IN PLAINTIFF’S FAVOR; and 15 Social Security,1 16 (2) REMANDING CASE 17 [ECF No. 17] 18 Defendant. 19 20 21 22 23 24 25 26 1 Kilolo Kijakazi became the Acting Commissioner of the Social Security Administration 27 on July 9, 2021. Although Plaintiff originally brought this action against Former Commissioner Andrew Saul, this case may properly proceed against Kilolo Kijakazi 28 1 Plaintiff Michael F. (“Plaintiff”) filed this action on March 20, 2020, seeking review 2 of the Commissioner of Social Security’s (“Commissioner”) denial of his application for 3 social security disability insurance benefits. ECF No. 1. The parties consented to proceed 4 before a Magistrate Judge on April 9, 2020. ECF No. 6. Pursuant to the Court’s Order, the 5 parties filed a Joint Motion for Judicial Review on March 2, 2021, stating their positions 6 on the disputed issues in the case. ECF No. 25. The Court has taken the Joint Motion under 7 submission without oral argument. 8 For the reasons set forth below, the Court REVERSES the Commissioner’s denial 9 of benefits to Plaintiff, and REMANDS for further proceedings. 10 I. BACKGROUND 11 Plaintiff was born in 1967, making him an individual “closely approaching advanced 12 age” at the time the decision was rendered. Administrative Record (“AR”) at 82. His past 13 relevant work experience is as a Heating and Air Conditioning Installer/Servicer, 14 Electrician Helper, Microcomputer Support Specialist, Automobile Salesperson, and 15 Teacher Aide II. AR 27, 68-71. 16 On May 26, 2016, Plaintiff protectively filed an application for Social Security 17 Disability Insurance, alleging a disability onset date of June 13, 2014. AR 174-75. The 18 Commissioner denied Plaintiff’s claim upon initial review on October 5, 2016, and denied 19 Plaintiff’s request for reconsideration of the denial on January 30, 2017. AR 82-105. 20 Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”), which was held 21 on October 3, 2018. AR 35-81. Plaintiff was represented by counsel at the hearing and 22 provided testimony. Id. A vocational expert also testified. AR 67-78. 23 On December 13, 2018, the ALJ issued a decision denying Plaintiff’s request for 24 benefits, finding he had not been under a disability from his alleged onset date of 25 June 13, 2014 through the date of the decision. AR 15-29. Plaintiff requested review of the 26 ALJ’s decision by the Appeals Council. AR 1-3. When the Appeals Council denied 27 Plaintiff’s request for review on January 17, 2020, the ALJ’s decision became the final 28 1 decision of the Commissioner. See Sam v. Astrue, 550 F.3d 808, 810 (9th Cir. 2008). 2 Plaintiff timely appealed the denial to this Court. See ECF No. 1; AR 2; 42 U.S.C. § 405(g). 3 II. STANDARD OF REVIEW 4 Pursuant to 42 U.S.C. § 405(g), this Court has authority to review the 5 Commissioner’s decision to deny benefits. The Commissioner’s decision will be disturbed 6 only if it is not supported by substantial evidence or if it is based upon the application of 7 improper legal standards. Berry v. Astrue, 622 F.3d 1228, 1231 (9th Cir. 2010). 8 Substantial evidence means “‘such relevant evidence as a reasonable mind might 9 accept as adequate to support a conclusion.’” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 10 (2019) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). The 11 standard requires “more than a mere scintilla” of evidence, “but less than a preponderance.” 12 Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017) (citation omitted). The standard is 13 “highly deferential.” Valentine v. Comm'r Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 14 2009). Thus, “‘[w]here evidence is susceptible to more than one rational interpretation,’ 15 the ALJ’s decision should be upheld.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) 16 (quoting Burch v. Barnhart, 400 F.3d 676. 679 (9th Cir. 2005)). However, the Court “must 17 consider the entire record as a whole, weighing both the evidence that supports and the 18 evidence that detracts from the Commissioner’s conclusion, and may not affirm simply by 19 isolating a specific quantum of supporting evidence.” Garrison v. Colvin, 759 F.3d 995, 20 1009 (9th Cir. 2014) (internal quotation marks omitted)). The ALJ is responsible for 21 determining credibility and resolving conflicts in medical testimony, and is also 22 responsible for resolving any ambiguities in the record. Magallanes v. Bowen, 881 F.2d 23 747, 750 (9th Cir. 1989). The Court will “review only the reasons provided by the ALJ in 24 the disability determination and may not affirm the ALJ on a ground upon which he did 25 not rely.” Id.; see also SEC v. Chenery Corp., 318 U.S. 80, 87 (1943) (“The grounds upon 26 which an administrative order must be judged are those upon which the record discloses 27 that its action was based.”). 28 1 The Court may also overturn the Commissioner’s denial of benefits if the denial is 2 based on legal error. Garcia v. Comm’r of Soc. Sec., 768 F.3d 925, 929 (9th Cir. 2014). 3 However, even if the Court finds the decision was based on legal error, a court may not 4 reverse an ALJ’s decision if the error is harmless, “which exists when it is clear from the 5 record that the ALJ’s error was inconsequential to the ultimate nondisability 6 determination.” Id. at 932 (internal quotations and citation omitted); see also Burch v. 7 Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (citation omitted). 8 III. SUMMARY OF ALJ’S FINDINGS 9 A. The Five-Step Evaluation Process 10 The ALJ follows a five-step sequential evaluation process in assessing whether a 11 claimant is disabled. 20 C.F.R. § 404.1520;2 Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th 12 Cir. 1999). In the first step, the Commissioner must determine whether the claimant is 13 currently engaged in substantial gainful activity; if so, the claimant is not disabled and the 14 claim is denied. Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006). 15 16 17 2 Unless otherwise noted, all references to the agency regulations herein are to the regulations in effect at the time of the ALJ’s decision. See, e.g., SSR 16-3, 2016 SSR 18 LEXIS 4 n.27 (S.S.A. 2016) (“When a Federal court reviews our final decision in a claim, 19 we expect the court will review the final decision using the rules that were in effect at the time we issued the decision under review.”); Anne B. v. Comm’r, Soc. Sec. Admin., No. 20 1:18-CV-02146-HZ, 2019 WL 6976034, at *8 (D. Or. Dec. 20, 2019) (collecting cases for 21 the proposition that “[t]he applicable regulations are those in effect at the time the ALJ issued his decision”). However, when the Social Security Administration revised its rules 22 regarding the evaluation of medical evidence effective March 27, 2017, the agency made 23 clear that certain revisions would apply only to claims filed on or after that date. See generally Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 Fed. Reg. 24 5844-01 (Jan. 18, 2017); see also, e.g., 20 C.F.R. §§ 404.1502(a)(6)-(8); 404.1504; 25 404.1520c; 404.1527. Here, Plaintiff’s claim was filed before March 27, 2017, but the ALJ’s decision was issued after that date. Therefore, where appropriate, the Court may at 26 times apply an earlier version of a regulation than the one in effect at the time of the ALJ’s 27 decision. 28 1 If the claimant is not currently engaged in substantial gainful activity, the second 2 step requires the ALJ to determine whether the claimant has a “severe” impairment or 3 combination of impairments significantly limiting her ability to do basic work activities, 4 and which has lasted or is expected to last for a continuous period of at least 12 months; if 5 not, a finding of nondisability is made and the claim is denied. Id. See also 20 C.F.R. 6 § 404.1509 (setting forth the 12-month duration requirement). If the claimant has a 7 “severe” impairment or combination of impairments, the third step requires the ALJ to 8 determine whether the impairment or combination of impairments meets or equals an 9 impairment in the Listing of Impairments (“Listing”) set forth at 20 C.F.R. § 404, subpart 10 P, appendix 1; if so, disability is conclusively presumed and benefits are awarded. 11 Lounsberry, 468 F.3d at 1114. 12 If the claimant’s impairment or combination of impairments does not meet or equal 13 an impairment in the Listing, the ALJ proceeds to the fourth step of the disability evaluation 14 process. The fourth step requires the ALJ to determine whether the claimant has sufficient 15 residual functional capacity (“RFC”) to perform his past work. Id. Therefore, the ALJ must 16 determine the claimant’s RFC before moving to step four. 17 An RFC is “an assessment of an individual’s ability to do sustained work-related 18 physical and mental activities in a work setting on a regular and continuing basis.” Soc. 19 Sec. Ruling (“SSR”)3 96-9p, 1996 WL 374184, at *1 (S.S.A. 1996). It reflects the most a 20 claimant can do despite his limitations. 20 C.F.R. § 404.1545(a)(1); Smolen v. Chater, 80 21 F.3d 1273, 1291 (9th Cir. 1996). An RFC assessment must include an individual’s 22 functional limitations or restrictions as a result of all of his impairments – even those that 23 are not severe (see 20 C.F.R. § 404.1545(a)(1)-(2), (e)) – and must assess his “work-related 24 25 26 3 “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 to SSRs if they are inconsistent with the statute or regulations.” Holohan v. Massanari, 246 28 1 abilities on a function-by-function basis.” SSR 96-9p, 1996 WL 374184, at *1; see also 2 Valentine, 574 F.3d at 690 (“an RFC that fails to take into account a claimant’s limitations 3 is defective”). An ALJ errs when he provides an incomplete RFC that ignores or discounts 4 “significant and probative evidence” favorable to a claimant’s position. Hill v. Astrue, 698 5 F.3d 1153, 1161-62 (9th Cir. 2012). 6 An RFC assessment is ultimately an administrative finding reserved to the ALJ. 7 20 C.F.R. § 404.1527(d)(2). However, an RFC determination must be based on all of the 8 relevant evidence, including the diagnoses, treatment, observations, and opinions of 9 medical sources, such as treating and examining physicians. 20 C.F.R. § 404.1545. A court 10 must uphold an ALJ’s RFC assessment when the ALJ has applied the proper legal 11 standards and substantial evidence in the record as a whole supports the decision. See 12 Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005). At step four of the disability 13 analysis, if the ALJ determines a claimant has sufficient RFC to perform past relevant 14 work, the claimant is not disabled and the claim is denied. Drouin v. Sullivan, 966 F.2d 15 1255, 1257 (9th Cir. 1992). The claimant has the burden of proving that he is unable to 16 perform past relevant work at step four. Id. If the claimant meets this burden, a prima facie 17 case of disability is established. Id. 18 At step five, the burden then shifts to the ALJ to establish that the claimant is not 19 disabled because there is other work existing in “significant numbers” in the national or 20 regional economy the claimant can do, taking into account the claimant’s RFC, age, 21 education, and work experience. 20 C.F.R. § 404.1560(c)(1), (c)(2); see also 20 C.F.R. 22 § 404.1520(g)(1). The ALJ usually meets this burden either (1) by the testimony of a 23 vocational expert who assesses the employment potential of a hypothetical individual with 24 all of the claimant’s physical and mental limitations that are supported by the record, or 25 (2) by reference to the Medical-Vocational Guidelines at 20 C.F.R. part 404, subpart P, 26 appendix 2. Lounsburry, 468 F.3d at 1114-15; Hill, 698 F.3d at 1162. The determination 27 of this issue comprises the fifth and final step in the sequential analysis. 20 C.F.R. 28 §§ 404.1520, 416.920; Tackett, 180 F.3d at 1099. 1 B. The ALJ’s Application of the Five-Step Process in This Case 2 At step one, the ALJ determined that Plaintiff did not engage in substantial gainful 3 activity from the alleged onset date of June 30, 2014. AR 17. At step two, the ALJ 4 determined that Plaintiff had the following severe impairments: vertigo, degenerative disc 5 disease of the cervical and thoracic spine, and obesity. AR 17. The ALJ also found that the 6 claimant’s mental impairments of “post-traumatic stress disorder (PTSD), depressive 7 disorder, and mood disorder” were non-severe. AR 19. 8 At step three, the ALJ determined that Plaintiff did not have an impairment or 9 combination of impairments that met or medically equaled any of the impairments in the 10 Listing. AR 22. The ALJ further determined that Plaintiff has the RFC to do medium work 11 as defined in 20 CFR § 404.1567(c) “with the following exceptions: the claimant is able to 12 stand and walk for four hours in an eight-hour day; he is frequently able to climb ramps 13 and stairs; he is never able to climb ladders, ropes, or scaffolds; he must avoid concentrated 14 exposure to hazards such as operational control of moving machinery and unprotected 15 heights; and he must use a single point cane for balance when walking distances greater 16 than one block (approximately 100 yards).” AR 22. 17 At step four, based on Plaintiff’s RFC and the testimony of the vocational expert, 18 the ALJ concluded that Plaintiff is unable to perform any past relevant work as a Heating 19 and Air Conditioning Installer/Servicer (DOT 637.261-014), Electrician Helper 20 (DOT 829.684-022), Microcomputer Support Specialist (DOT 039-264.010), Automobile 21 Salesperson (DOT 273.353-101), or Teacher Aide II (DOT 249.367-074). AR 27. 22 At step five, the ALJ found that there are jobs that exist in significant numbers in the 23 national economy that Plaintiff could perform, considering his age, education, work 24 experience, and RFC. AR 28. Specifically, the ALJ found that Plaintiff could perform the 25 requirements of occupations such as Counter Clerk (DOT 249.366-010), Office Helper 26 (DOT 239.567-010), and Furniture Rental Clerk (DOT 295.357-018). AR 28-29. The ALJ 27 therefore found that Plaintiff was not under a disability from June 13, 2014, through the 28 date of his decision, December 13, 2018. AR 29. 1 IV. ISSUE 1: ALLEGED ERROR AT STEP TWO 2 Plaintiff’s first claim of error is that the ALJ erred at step two of the disability 3 evaluation by finding that Plaintiff’s post-traumatic stress disorder (“PTSD”) and major 4 depressive disorder (“MDD”) are not severe impairments. ECF No. 25 at 8-16. 5 A. Legal Standard 6 As discussed above, the ALJ must consider the medical severity of a claimant’s 7 impairments at step two, and must determine whether the claimant has any “severe 8 impairments,” which are defined as impairments or a combination of impairments that 9 significantly limit the claimant’s physical or mental ability to do basic work activities, and 10 which have lasted or are expected to last for a continuous period of 12 months. 20 C.F.R. 11 §§ 404.1520(a)(4)(ii), (c); 404.1509. “Basic work activities” are defined as “the abilities 12 and aptitudes necessary to do most jobs,” which include but are not limited to physical 13 functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying or 14 handling; capacities for seeing, hearing, and speaking; understanding, carrying out, and 15 remembering simple instructions; use of judgment; responding appropriately to 16 supervision, co-workers, and usual work situations; and dealing with changes in a routine 17 work setting. 20 C.F.R. § 404.1522(b)(1)-(6). 18 To evaluate mental impairments specifically at step two, the ALJ applies a “special 19 technique[.]” See 20 C.F.R. § 1520a(a)-(c). At the first step of the technique, the ALJ 20 evaluates the claimant’s “pertinent symptoms, signs, and laboratory findings to determine 21 whether [the claimant has] a medically determinable impairment [or impairments].” 20 22 C.F.R. § 1520a(b). If the ALJ identifies any medically determinable mental impairments, 23 the ALJ must “specify the symptoms, signs, and laboratory findings that substantiate the 24 presence of the impairment(s) and document [the] findings” in the written decision. Id. 25 At the second step of the technique, the ALJ must then “rate the degree of functional 26 limitation resulting from the impairment(s)” in accordance with 20 C.F.R. § 1520a(c), 27 which sets forth four “broad functional areas” in which the ALJ must rate the degree of the 28 claimant’s functional limitation. These four broad areas of mental functioning include: (1) 1 understanding, remembering, or applying information; (2) interacting with others; (3) 2 concentration, persistence, and maintaining pace; and (4) adapting and managing oneself. 3 Id. Degrees of limitations in each of these four areas are mapped onto a five-point scale: 4 none, mild, moderate, marked, and extreme. Id. The ALJ must also document his findings 5 about the degree of the claimant’s functional limitations in his written decision. 20 C.F.R. 6 § 1520a(b); see also id. § 1520a(e)(4) (“[T]he written decision must incorporate the 7 pertinent findings and conclusions based on the technique. The decision must show the 8 significant history, including examination and laboratory findings, and the functional 9 limitations that were considered in reaching a conclusion about the severity of the mental 10 impairment(s). The decision must include a specific finding as to the degree of limitation 11 in each of the [four] functional areas.”). 12 If the ALJ finds that the claimant’s limitations in all four areas of mental functioning 13 are “none” or “mild,” the ALJ “will generally conclude” that the claimant’s mental 14 impairment or impairments are not severe, “unless the evidence otherwise indicates that 15 there is more than a minimal limitation in [the claimant’s] ability to do basic work 16 activities.” 20 C.F.R. § 1520a(d)(1). 17 The step two inquiry is a “de minimis screening device” used to screen for 18 groundless claims. Edlund v. Massanari, 253 F.3d 1152, 1159 (9th Cir. 2001). At step two, 19 the ALJ must consider the “combined effect of all of the claimant’s impairments, without 20 regard to whether each alone was sufficiently severe.” Id. at 1159. The claimant’s illnesses 21 “must be considered in combination and must not be fragmentized in evaluating their 22 effects.” Lester v. Chater, 81 F.3d 821, 829 (9th Cir. 1995) (quoting Beecher v. Heckler, 23 756 F.2d 693, 694–95 (9th Cir. 1985)). “An impairment or combination of impairments 24 can be found not severe only if the evidence establishes a slight abnormality that ‘has no 25 more than a minimal effect on an individual’s ability to work.’” Smolen, 80 F.3d at 1290; 26 (quoting SSR 85-28, 1985 WL 56856, at *3 (S.S.A. Jan. 1, 1985)). “[A]n ALJ may find 27 that a claimant lacks a medically severe impairment or combination of impairments only 28 1 when his conclusion is ‘clearly established by medical evidence.’” Webb v. Barnhart, 433 2 F.3d 683, 687 (9th Cir. 2005) (quoting SSR 85-28, 1985 WL 56856, at *3). 3 Even if the Court finds it was error for the ALJ to find a claimant’s mental 4 impairments non-severe at step two, such an error may be harmless where the ALJ proceeds 5 to step five of the disability analysis and considers the claimant’s mental impairments as 6 part of that analysis. Davenport v. Colvin, 608 F. App’x 480, 481 (9th Cir. 2015) 7 (upholding the ALJ’s determination that the plaintiff’s mental impairments were non- 8 severe at step two, but noting that “any error regarding the step-two determination is 9 harmless” in any event, “because the ALJ proceeded to step five and considered [the 10 plaintiff’s] mental impairments as part of the analysis”). However, for such an error to be 11 harmless, the ALJ must have considered how the combination of the claimant’s 12 impairments affect his or her ability to perform basic work activities, and must incorporate 13 that consideration into the RFC determination. See Smolen, 80 F.3d at 1290-92 (finding 14 reversible error where the ALJ found a severe impairment of scoliosis at step two and 15 proceeded through the full five-step sequential evaluation, but, because the ALJ found the 16 claimant “suffer[ed] from only one ‘severe’ impairment at step two, the ALJ necessarily 17 failed to consider at step five how the combination of her other impairments . . . affected 18 her [RFC].”). See also SSR 85-28, 1985 WL 56856, at *3 (“Although an impairment is 19 not severe if it has no more than a minimal effect on an individual's physical or mental 20 ability(ies) to do basic work activities, the possibility of several such impairments 21 combining to produce a severe impairment must be considered.”). 22 B. Summary of the Parties’ Arguments 23 At step two, the ALJ determined that Plaintiff’s medically determinable mental 24 impairments of PTSD and MDD “do not cause more than minimal limitation in Plaintiff’s 25 ability to perform basic mental work activities and are therefore nonsevere.” AR 19. 26 Plaintiff argues that the medical evidence demonstrates that Plaintiff’s PTSD and MDD 27 are severe mental impairments. Plaintiff’s diagnoses of PTSD and MDD stem from 28 experiencing sexual and physical abuse at the hands of a superior officer when Plaintiff 1 served in the Navy. ECF No. 25 at 8-12. See also AR 514, 621 (noting Plaintiff’s military 2 sexual trauma). Plaintiff began mental health treatment after his symptoms of vertigo 3 reminded him of the rocking sensation of being on a ship during his time in the Navy, 4 triggering traumatic memories of the abuse. ECF No. 25 at 10 (citing AR 53, 621). See also 5 AR 497 (medical source statement from Nurse Practitioner Christina Hom explaining that 6 Plaintiff’s depressive symptoms and PTSD symptoms began when he was diagnosed with 7 vertigo in March 2015, but that he had no psychiatric history prior to the vertigo diagnosis). 8 Plaintiff argues that the medical record establishes that his mental health symptoms 9 as a result of his PTSD and MDD are severe and have lasted over a year, pointing to record 10 evidence that he experiences nightmares three to four times per week, experienced a 60- 11 pound weight fluctuation, is described as feeling “jumpy,” only feels comfortable with 12 female providers, avoids interactions with men, has a PHQ-9 depression screening score 13 of 22, equating to “severe” depression, has intrusive memories, feels disconnected from 14 others, has poor concentration, and has frequent confrontational conflicts with men that 15 have led him to losing several jobs. ECF No. 25 at 10-11. 16 Plaintiff also argues that the ALJ erred when he attributed little weight to the 17 opinions of Plaintiff’s treating Nurse Practitioner Christina Hom, and Dr. Jaga Nath 18 Glassman, the agency consultative psychiatric examiner. Id. at 12-14. Plaintiff explains 19 that Ms. Hom and Dr. Glassman’s opinions support a finding that Plaintiff has a moderate 20 impairment in interacting with others (one of the four broad areas of mental functioning), 21 and thus Plaintiff’s mental impairments should have been deemed “severe” under the 22 regulations. 20 C.F.R. § 404.1520a(d)(1). 23 Plaintiff further contends that had the ALJ adopted an RFC finding that properly 24 incorporated Plaintiff’s mental limitations, the Medical-Vocational Guidelines would 25 automatically direct a disability finding under Rule 201.14. Id. at 14-15. Related to this 26 claim of error, Plaintiff argues the ALJ erred by failing to consider whether Plaintiff’s 27 PTSD and MDD met or medically equaled Listings 12.15 or 12.04 at step three of the 28 sequential evaluation process. Id. at 15-16. 1 In response, Defendant argues that the ALJ’s finding that Plaintiff’s mental 2 impairments are non-severe and do not affect his ability to perform basic work activities is 3 supported by substantial evidence. Defendant contends that although Plaintiff claims 4 disabling mental limitations, particularly with respect to social interaction, the record 5 shows that Plaintiff was cooperative and respectful during medical appointments. Id. at 17, 6 20. Defendant notes that Plaintiff identified physical, not mental, problems as his chief 7 complaint during the psychiatric consultative examination. Id. at 17-18 (citing AR 345). 8 Defendant argues Plaintiff’s mental examinations showed normal findings regarding 9 attention, judgment, and insight, and that these “normal objective findings supported the 10 ALJ’s step two finding.” Id. at 19. Defendant notes that medications were helpful for 11 managing Plaintiff’s mental health symptoms. Id. As for the record evidence on which 12 Plaintiff relies showing that various sources deemed Plaintiff’s mental illness symptoms to 13 be “severe” or “moderately severe,” Defendant contends that the ratings of severity in the 14 medical record do not correspond to the standards of severity applicable under the Social 15 Security regulations. Id. at 20. 16 Defendant also argues that the ALJ properly weighed the opinions of Ms. Hom and 17 Dr. Glassman, giving them little weight because they were inconsistent with the medical 18 record as a whole. For example, Defendant again relies on record evidence that Plaintiff 19 was generally pleasant and/or cooperative to show that Dr. Glassman’s opinion that 20 Plaintiff had more than mild limitations in social interaction is not supported by the records. 21 Although the ALJ did not specifically mention it in his decision, Defendant argues that the 22 ALJ’s decision is further supported by the record because it is consistent with the 23 assessment of State agency psychologist David Tessler, Psy.D. 24 As for Plaintiff’s argument regarding the Medical-Vocational Guidelines (the 25 “Grids”), Defendant characterizes it as a “red herring,” explaining that, had the ALJ 26 included mental limitations in his RFC determination (as Plaintiff argues he should have), 27 the Grids would not apply except as a framework, because the Grids can only direct a 28 finding of disability or non-disability where a claimant has only exertional limitations. 1 Defendant also argues that any step three error in not considering whether Plaintiff’s mental 2 impairments of PTSD and MDD meet a Listing would be harmless, because Plaintiff would 3 have to establish one extreme limitation or two marked limitations in the four broad 4 functional areas to satisfy Listing 12.04 or 12.15, and the evidence does not support such 5 a finding. 6 In reply, Plaintiff argues that the fact that Plaintiff identified vertigo as his chief 7 complaint during his psychiatric consultative examination is not relevant. At that 8 examination, Plaintiff also stated that his depression and anxiety lasted more than 18 9 months and were not going away. Plaintiff points out that Dr. Glassman opined that 10 Plaintiff may not be able to benefit from therapy because of his character dysfunction. 11 Plaintiff also notes his mental health impairments have more than a minimal effect on his 12 ability to work because Plaintiff has lost jobs due to confrontations with men. With respect 13 to the opinion evidence, Plaintiff argues that Dr. Tessler, the State agency consultant, only 14 reviewed a partial set of Plaintiff’s medical records because Dr. Tessler did not review 15 Plaintiff’s records from mental health treatment at the Veterans Administration. 16 C. Analysis 17 i. The ALJ’s finding that Plaintiff’s mental impairments are non-severe is not supported by substantial evidence 18 19 The Court finds that the ALJ erred in his determination that Plaintiff’s mental 20 impairments were non-severe. An impairment may be found “not severe only if the 21 evidence establishes a slight abnormality that has no more than a minimal effect on an 22 individual’s ability to work.” Smolen, 80 F.3d at 1290. An ALJ’s determination that an 23 impairment is non-severe must be supported by substantial evidence that the medical 24 evidence clearly establishes no severe impairment or combination of impairments. Webb, 25 433 F.3d at 686. 26 The ALJ’s finding that Plaintiff had no severe mental impairments is not supported 27 by substantial evidence. Plaintiff was treated for PTSD and MDD at Artemis Medical 28 Group and the Veteran’s Administration between 2016 and 2018. AR Exs. 6F, 16F, 21F, 1 24F. Plaintiff’s treatment notes from Artemis discuss his PTSD and MDD, noting these 2 symptoms: depressed mood, anhedonia, decreased sleep, low self-esteem, poor energy, 3 poor concentration. AR Ex. 6F, 21F. The treatment notes indicate that Plaintiff was 4 functional in orientation, memory, and attention. AR Ex. 6F, 21F. Plaintiff was prescribed 5 medication for his depression and for his problems sleeping due to recurring nightmares 6 related to PTSD. AR Ex. 6F, 21F. 7 Plaintiff’s treatment notes from the Veterans Administration discuss his PTSD and 8 MDD. AR Ex. 16F. The treatment notes indicate that Plaintiff was generally pleasant and 9 cooperative, with a coherent and logical thought process and intact judgment and insight. 10 AR Ex. 16F. Despite those general observations, Plaintiff’s assessments for PTSD and 11 depression indicated that both conditions were moderately severe to severe. Plaintiff had 12 PCL-5 scores for PTSD ranging from 53 to 75 out of 80, with higher scores indicating 13 greater severity. AR 616, 657, 894, 962. Plaintiff had PHQ-9 scores ranging from 15 to 22, 14 which indicates moderately severe to severe depression. AR 616, 658, 896, 918, 962, 965. 15 Dr. Glassman, a psychiatrist, performed a consultative examination of Plaintiff on 16 September 24, 2016, at the request of the Social Security Administration. AR 344. 17 Dr. Glassman diagnosed Plaintiff with mood disorder and probable dysfunctional 18 personality features. AR 349. The ALJ’s weighting of Dr. Glassman’s opinion exemplifies 19 the problems inherent in the ALJ’s review of the medical record. Dr. Glassman, an 20 examining psychiatrist, opined that Plaintiff “has moderate impairment in his capacity to 21 get along with others, due to his irritable and dysphoric moods.” AR 349. Dr. Glassman 22 also noted that Plaintiff’s “character dysfunction may make it difficult for him to benefit 23 from therapy.” AR 349. The ALJ rejected Dr. Glassman’s opinion as “inconsistent with 24 the medical evidence as a whole” because Dr. Glassman also noted that Plaintiff was seen 25 as “pleasant and/or cooperative” throughout the medical record. AR 22. Plaintiff’s ability 26 to be pleasant or cooperative with medical personnel who are providing him with treatment 27 does not mean, however, that Plaintiff would have the same ability to be pleasant or 28 cooperative with supervisors, co-workers, or customers in the workplace. The ALJ’s 1 “selective focus” on comments that suggest non-disability does not amount to substantial 2 evidence for the ALJ’s determination at step two that Plaintiff’s mental impairments are 3 non-severe. Edlund, 253 F.3d at 1159.4 4 Significantly, a claimant’s impairments “must be considered in combination and 5 must not be fragmentized in evaluating their effects.” Lester, 81 F.3d at 829. The ALJ 6 failed to consider the effects of all of Plaintiff’s medically determinable impairments in 7 combination, particularly Plaintiff’s vertigo, PTSD, and depressive disorder. Defendant 8 argues the ALJ properly gave little weight to Dr. Glassman’s opinion because Plaintiff told 9 Dr. Glassman during the examination that vertigo was “his biggest problem.” AR 346. But 10 Plaintiff also told Dr. Glassman that the vertigo and his depression were linked together. 11 AR 346 (“[Plaintiff] stated that having the vertigo and being unable to work in his usual 12 job has made him depressed and anxious.”). By focusing on the first comment without 13 considering it in the overall context, the ALJ failed to consider “the combined effect of all 14 of the claimant’s impairments, without regard to whether each alone was sufficiently 15 severe.” Edlund, 253 F.3d at 1158 (quoting Smolen, 80 F.3d at 1280). 16 The close relationship among Plaintiff’s vertigo, depression, and PTSD is 17 consistently documented throughout the medical record. See. e.g., AR 52-53 (Plaintiff’s 18 hearing testimony in response to the ALJ’s inquiry why he is “only seeking PTSD 19 20 21 4 Defendant argues that the ALJ’s rejection of Dr. Glassman’s opinion is supported by the opinion of Dr. David Tessler, the non-examining state agency consulting physician. 22 Dr. Tessler opined on October 3, 2016 in the initial disability determination that Plaintiff 23 did not have severe mental limitations. AR 88. Dr. Tessler’s opinion was based on a partial review of the medical records, including Dr. Glassman’s opinion and the treatment records 24 of Artemis Medical Group. AR 84. Dr. Tessler did not review Plaintiff’s records from the 25 Veterans Administration or conduct an examination of Plaintiff. Aside from the fact that the ALJ did not cite to Dr. Tessler’s opinion in his decision, reliance on Dr. Tessler would 26 not suffice to support rejecting Dr. Glassman’s opinion because “[t]he opinion of a 27 nonexamining physician cannot by itself constitute substantial evidence that justifies the rejection of the opinion of either an examining physician or a treating physician.” Lester, 28 1 treatment now” despite his service ending in 1992, that “my vertigo and the motion [have] 2 triggered more frequent problems; almost nightly” and that “the vertigo just set [the 3 depression] in spiral”); AR 313 (Plaintiff’s depression and anxiety occur in the context of 4 his vertigo); AR 346 (Plaintiff’s vertigo makes him depressed and anxious); AR 347 (never 5 had any psychiatric treatment prior to the onset of the vertigo); AR 497 (depression began 6 in 2015 with vertigo symptoms; vertigo triggers PTSD because the symptoms mimic a boat 7 rocking at sea); AR 621 (Plaintiff experienced more than one military sexual trauma when 8 “on the boat” between July 1988 and November 1991, and nightmares 1-2 times a week 9 began once he began having vertigo symptoms in March 2015); AR 625 (noting Plaintiff’s 10 comment that his mood is “getting slightly better, as long as my vertigo and migraines are 11 under control” and that his depressive and PTSD symptoms began when he was diagnosed 12 with vertigo in March 2015). 13 Indeed, the ALJ acknowledged the close relationship among Plaintiff’s PTSD and 14 depressive symptoms and his vertigo in the ALJ’s written opinion. AR 19 (discussing 15 Plaintiff’s testimony that his vertigo triggered nightmares occurring three to four times a 16 week, and that Plaintiff’s depression was triggered by being out of work and was increased 17 by having vertigo). The ALJ further discussed the medical evidence of record that 18 “indicates that claimant has reported symptoms from his mental impairments, including 19 depressed mood, anhedonia/loss of interest, sleep changes, low self-worth/self-esteem, 20 poor energy, poor concentration, increase in weight, intrusive memories, and irritability.” 21 AR 20 (citing to various exhibits in the record). 22 Nonetheless, the ALJ found that “other than notes of abnormal mood and affect, 23 mental status examinations generally revealed normal findings, including normal attention, 24 logical, relevant, organized, and coherent thought process, normal thought content, good 25 judgment, and appropriate insight.” AR 20 (emphasis added) (citing Exhibits 3F, p. 3; 6F, 26 p. 3; 16F, p.113; 16F, p. 160; and 24F, p. 21). Additionally, the ALJ pointed to Plaintiff’s 27 report that trazadone was effective for sleep and cited to the record for the assertion that 28 1 medications were helpful for managing Plaintiff’s depressive and PTSD symptoms. AR 20 2 (citing Ex. 16F at page 126). 3 The Court finds this reasoning does not constitute substantial evidence to find 4 Plaintiff’s mental impairments to be non-severe at step two. First, the ALJ mischaracterizes 5 the record evidence here. The ALJ’s citation to Exhibit 16F at page 126 corresponds with 6 treatment notes from Nurse Practitioner Hom from July 24, 2018. AR 627. Although that 7 particular page does not mention anything regarding medication, Ms. Hom’s assessment 8 notes one page earlier state that Plaintiff reported his current medication regimen was 9 “helpful for managing depressive and PTSD symptoms of recurring nightmares.” AR 626. 10 However, the same assessment notes state that Plaintiff “denies therapeutic benefit” of his 11 medication, “other than reduction in frequency of nightmares from 3 to 5 times/week to 1- 12 2 times/week.” AR 625. This evidence does not support a finding that Plaintiff’s 13 medications were sufficiently helpful in managing his PTSD and MDD symptoms so as to 14 render them non-severe impairments. 15 Further, although the ALJ properly identifies that the record consistently establishes 16 that Plaintiff has “abnormal mood and affect,” the ALJ skips over that observation to note 17 that Plaintiff’s mental status examinations generally reveal “normal findings.” AR 20. But 18 the ALJ never explains why the abnormal findings with respect to Plaintiff’s mood and 19 affect are insufficient to find that Plaintiff’s mental impairments are not severe at step two, 20 i.e., that these abnormalities are only “slight” and have “no more than a minimal effect on 21 an individual’s ability to work.” Smolen, 80 F.3d at 1290. Important here, Plaintiff’s mental 22 impairments of PTSD and MDD are repeatedly noted as being related to the sexual abuse 23 he experienced in the military, which has led to difficulty dealing with men in particular. 24 See AR 21 (citing to Ex. 5F, p. 4 and 16F, p. 20). However, when citing to evidence that 25 Plaintiff’s “mental status examinations generally revealed normal findings,” including, 26 e.g., a cooperative and pleasant demeanor, the ALJ cites to treatment notes from only 27 female providers. See AR 315, 350-353, 615-618, 660, 902-906. Therefore, these treatment 28 notes are not reflective of Plaintiff’s limitations in the area of interacting with others that 1 stem from his fear of and avoidance of men, which the ALJ notes have led to Plaintiff 2 losing jobs due to conflicts with male coworkers in the past. AR 21. 3 Moreover, even if the ALJ could rely on Plaintiff’s positive mental status 4 examinations when interacting with female providers to serve as substantial evidence that 5 Plaintiff’s mental impairments are not severe, the ALJ improperly cherry-picked these 6 records to indicate that the mental status examinations were more positive overall than they 7 are. This is error. See Garrison v. Colvin, 759 F.3d 995, 1017 (9th Cir. 2014) (“As we have 8 emphasized while discussing mental health issues, it is error to reject a claimant’s 9 testimony merely because symptoms wax and wane in the course of treatment. Cycles of 10 improvement and debilitating symptoms are a common occurrence, and in such 11 circumstances it is error for an ALJ to pick out a few isolated instances of improvement 12 over a period of months or years and to treat them as a basis for concluding a claimant is 13 capable of working.”); Scott v. Astrue, 647 F.3d 734, 739–40 (7th Cir. 2011) (“There can 14 be a great distance between a patient who responds to treatment and one who is able to 15 enter the workforce, and that difference is borne out in Dr. Tate’s treatment notes. Those 16 notes show that although [the plaintiff] had improved with treatment, she nevertheless 17 continued to frequently experience bouts of crying and feelings of paranoia. The ALJ was 18 not permitted to ‘cherry-pick’ from those mixed results to support a denial of benefits.”). 19 To illustrate, Exhibit 3F at page 3 and Exhibit 6F at page 3 are both progress notes 20 from Nurse Practitioner Emily Rabinowitz at the Artemis Medical Group, both from 21 August 2016. AR 315, 350-53. During the August 16, 2016 appointment, although the ALJ 22 accurately notes that Ms. Rabinowitz found Plaintiff had normal attention, and logical, 23 relevant, organized, and coherent thought processes, with good judgment and appropriate 24 insight, she also described his mood as “depressed” and included a diagnosis of “moderate” 25 major depressive disorder. AR 315. Similarly, during the August 4, 2016 meeting, the ALJ 26 accurately noted that the mental status examination showed Plaintiff’s attention was within 27 normal limits, his thought processes are logical, relevant, organized, and coherent, and that 28 he has good judgment and appropriate insight into his condition. But again, his mood is 1 described as depressed, and Ms. Rabinowitz deemed him to have moderate MDD. AR 352- 2 353. In these same notes, she also describes Plaintiff’s reports of depression symptoms, 3 including depressed mood, anhedonia, decreased sleep, low self-esteem, poor energy, and 4 poor concentration, interfering with his ability to perform all activities of daily living, 5 work, or school. AR 350. 6 The next record cited by the ALJ is Exhibit 16F at page 113. These are progress 7 notes from VA social worker Lauren Witte dated July 31, 2018, who said Plaintiff was 8 “[p]leasant and cooperative.” Despite these general observations of Plaintiff’s demeanor, 9 Ms. Witte also administered a PHQ-9 depression screening on the same day, and noted that 10 Plaintiff’s score of 16 is “suggestive of moderately severe depression.” AR 616. Ms. Witte 11 also administered a PCL-5 that day, a 20-item self-report measure assessing the 20 DSM- 12 5 symptoms of PTSD, with a total score range of 0-80. Plaintiff scored a 63, placing him 13 in the highest category of “very severe symptoms” reported. AR 616-618, 657. 14 The ALJ also cites to Exhibit 16F at page 160. These are progress notes from VA 15 licensed clinical psychologist Victoria Farrow dated May 16, 2018. Dr. Farrow’s notes 16 show that her review of the PCL-5 and PHQ-9 screening tests for PTSD and depression, 17 respectively, indicate that Plaintiff has PTSD symptoms in all clusters, including but not 18 limited to, “nightmares and frequent intrusive memories of [military sexual trauma], 19 avoidance of trauma memories and external reminders (Veteran reports that he has difficult 20 being around men, all his providers are females, no longer has male friends, chooses which 21 checkout line in stores to go to based on whether cashier is male/female); self-blame (states 22 that others on ship were also sexually assaulted, and blames himself for not reporting his 23 own assault), feels disconnected from others; and irritable behavior, hypervigilance, startle 24 response, etc.” AR 660. Although the ALJ accurately notes that Dr. Farrow’s objective 25 findings show that Plaintiff was “cooperative” with good eye contact, coherent and logical 26 thinking, and good insight and judgment, she also notes his mood is “dysthymic” and his 27 affect “appeared mildly irritable.” Further, Dr. Farrow noted that Plaintiff was unwilling to 28 1 work with a male provider because he did not feel “ready” to do so, and requested a female 2 provider in the clinic. AR 660-61. 3 Finally, the ALJ cites to Exhibit 24F at page 21, which are progress notes dated 4 February 13, 2018 from Psychiatric Nurse Practitioner Kendra Bartels at the VA. AR 902- 5 906. The ALJ accurately reported that Ms. Bartels’s mental status examination found that 6 Plaintiff has a pleasant demeanor, is cooperative and engaged in the evaluation, has good 7 eye contact, linear and goal-directed thought process, and good judgment and insight. 8 However, these notes again confirm that Plaintiff may have difficulty interacting with men 9 specifically, even if pleasant and cooperative with women. Ms. Bartels notes that Plaintiff’s 10 PTSD causes nightmares 1-2 times per week, and that he avoids men and decided to obtain 11 PTSD therapy in Mission Valley due to no female providers available in La Jolla. AR 902. 12 In finding that Plaintiff nonetheless has only mild limitations in the area of 13 interacting with others (thus supporting his ultimate finding that Plaintiff’s mental 14 impairments are non-severe), the ALJ points to treatment notes from Dr. Jaga Glassman, a 15 male doctor, who reported Plaintiff “was well-engaged with him, as evidenced by the 16 claimant making and maintaining good eye contact, and he was cooperative, polite, and 17 respectful in his attitude and demeanor, although the claimant had a slightly irritable tone 18 with a hostile, entitled demeanor and undertone.” AR 21. See also AR 348 (Dr. Glassman 19 noting “There was a ‘bristly,’ slightly irritable tone, with a hostile, entitled demeanor and 20 undertone.”). 21 The Court finds that Plaintiff’s ability to be cooperative, polite, and respectful to Dr. 22 Glassman during a single consultative examination, while also being bristly, irritable, 23 hostile, and entitled, does not amount to substantial evidence that Plaintiff has only mild 24 limitations in the area of interacting with others and has non-severe mental impairments. 25 “[T]he Ninth Circuit has repeatedly cautioned that reports of improvement in the mental 26 health context must be ‘interpreted with an awareness that improved functioning while 27 being treated and while limiting environmental stressors does not always mean that a 28 claimant can function effectively in a workplace.’” Cyprain, 2017 WL 908757, at *7 1 (quoting Garrison, 759 F.3d at 1017). Therefore, when faced with a similar rationale, the 2 Cyprain court concluded that the plaintiff’s “positive performance on some of her many 3 mental status examinations does not substantiate the conclusion that the medical evidence 4 ‘clearly establishe[s]’ that [the p]laintiff’s mental impairments only amount to a ‘slight 5 abnormality that has no more than a minimal effect on [her] ability to work.’” 2017 WL 6 908757, at *7 (quoting Webb, 433 F.3d at 686–87). The same reasoning holds true here. 7 This is not a case where the evidence is “susceptible to more than one rational 8 interpretation,” requiring the Court to defer to uphold the ALJ’s interpretation. Orn, 495 9 F.3d at 630. All of the relevant medical evidence of record reflecting treatment providers’ 10 diagnoses and characterizations of Plaintiff’s mental health symptoms supports a finding 11 that Plaintiff’s mental impairments were moderate to moderately severe. See generally 12 AR Ex. 6F, 16F, 21F, 24F. See also, e.g., AR 656-660 (noting a PCL-5 Score of 63 on a 0- 13 80 point scale, indicating “very severe [PTSD] symptoms reported,” and a PHQ-9 14 Depression Scale Score of 17 on a 0-27 point scale, indicating “moderately severe 15 depression”); AR 806 (explaining that Plaintiff’s depressive symptoms of “depressed 16 mood, anhedonia/loss of interest, low self-worth/self-esteem, poor energy, [and] 17 irritability” are “affecting daily activities” and “affecting relationships with others”); AR 18 808 (diagnosing Plaintiff with “Major Depressive Disorder, Recurrent, Moderate”); AR 19 905 (noting Plaintiff’s “low mood nearly half the days, and anxiety and avoidance 20 behaviors impacting his quality of life”). Even if those descriptions used in the psychiatric 21 tests at the Veterans Administration do not perfectly correspond to the “severe/non-severe” 22 dichotomy of step two, the evidence in the treatment records uniformly shows that they 23 would have more than a minimal impact on Plaintiff’s ability to work, and the ALJ does 24 not point to conflicting medical evidence showing otherwise. Therefore, the Court finds 25 that the ALJ’s determination at step two that Plaintiff’s mental impairments are non-severe 26 was in error. 27 \\ 28 1 ii. The ALJ committed legal error by improperly weighing the opinion of Nurse Practitioner Christina Hom 2 3 Moreover, the Court agrees with Plaintiff that ALJ erred by using the wrong standard 4 to weigh the opinion of Nurse Practitioner Christina Hom. Ms. Hom submitted a medical 5 source statement dated September 15, 2018, that notes diagnoses of PTSD and depressive 6 disorder related to Plaintiff’s medical condition. AR 497. Ms. Hom stated that Plaintiff’s 7 PTSD symptoms began in 2015 when he was diagnosed with vertigo. AR 497. Ms. Hom 8 noted moderate and marked limitations in Plaintiff’s ability to interact with others and 9 concentrate, persist or maintain pace. AR 498-99. Ms. Hom opined that Plaintiff’s social 10 anxiety, in conjunction with his vertigo, would cause him to be absent from work more 11 than three times per month, and that Plaintiff would be off-task in the workplace more than 12 20% in an 8 hour workday. AR 500. 13 The ALJ gave “little weight” to Ms. Hom’s opinion because it was not from an 14 “acceptable medical source,” and he therefore gave it “less weight than other qualifying 15 medical source opinions.” AR 22. In support, the ALJ cites to “20 CFR 404.1513(a)(e),” 16 which is a regulation that does not exist. It is unclear which regulation the ALJ meant to 17 cite, but 20 C.F.R. § 404.1513(a) states that the agency considers evidence under 20 C.F.R. 18 § 404.1527 for claims (like Plaintiff’s) filed before March 27, 2017. Although a nurse 19 practitioner is not an “acceptable medical source” under section 404.1527(a), a nurse 20 practitioner’s opinion should be evaluated as set forth in section 404.1527(f) as an “other 21 medical source.” See Britton v. Colvin, 787 F.3d 1011, 1013 (9th Cir. 2015) (nurse 22 practitioners are defined as “other sources”); Garrison v. Colvin, 759 F.3d 995, 1013 (9th 23 Cir. 2014). Section 404.1527(f) requires an ALJ to consider “other medical sources” using 24 the factors listed in section 404.1527(c)(1)-(6), which are the same factors applied to 25 medical opinions from acceptable medical sources, although “not every factor for weighing 26 opinion evidence will apply in every case[.]” 20 C.F.R. § 1527(f)(1). Importantly, this 27 subprovision of the regulation makes clear that “an opinion from a medical source who is 28 not an acceptable medical source . . . may outweigh the medical opinion of an acceptable 1 medical source, including the medical opinion of a treating source.” Id. The provision 2 draws on the factors set forth in 404.1527(c)(1)-(6) to explain circumstances under which 3 it might be appropriate to give greater weight to the opinion of a non-acceptable medical 4 source than to an acceptable medical source: “For example, it may be appropriate to give 5 more weight to the opinion of a medical source who is not an acceptable medical source if 6 he or she has seen the individual more often than the treating source, has provided better 7 supporting evidence and a better explanation for the opinion, and the opinion is more 8 consistent with the evidence as a whole.” Id. (emphasis added). Accordingly, there is no 9 regulatory support for the ALJ’s first reason for discounting Ms. Hom’s opinion. Her status 10 as a non-acceptable medical source, alone, is not a valid reason for assigning her opinion 11 less weight than qualifying medical source opinions. Additionally, there is no indication 12 that the ALJ considered the factors set forth in 20 C.F.R. § 404.1527(c) in analyzing 13 Ms. Hom’s opinion. As a result, the Court finds the ALJ committed legal error with respect 14 to his first reason for discounting the opinion. 15 The ALJ’s second reason for discounting Ms. Hom’s opinion is that it is 16 “inconsistent with the medical evidence of record as a whole.” AR 22. In support, the ALJ 17 states that the medical record “indicates that the claimant’s attention was generally noted 18 as being normal, which does not support a finding of marked limitation in activities related 19 to attention and concentration.” AR 22. However, Nurse Practitioner Hom’s opinion does 20 not conflict with medical record evidence generally noting that Plaintiff’s attention is 21 “normal.” In her opinion, the four broad areas of functioning are broken down further into 22 a number of sub-categories, many of which relate to attention and concentration. In most 23 of these sub-categories, Ms. Hom marked that Plaintiff had “none/mild” limitations, 24 including every single sub-category of the understanding, remembering, and applying 25 information category. AR 498-499. These sub-categories include attention-related abilities 26 such as understanding and learning terms, instructions, and procedures; following one or 27 two step oral instructions to carry out a task; describing work activities for someone else; 28 asking and answering questions and providing explanations; and sequencing multi-step 1 activities. Thus, Ms. Hom’s evaluation of Plaintiff’s limitations in the category of 2 understanding, remembering, and applying information is consistent with other medical 3 evidence showing that Plaintiff’s attention is generally noted as being normal. 4 In the category of concentration, persistence, and maintaining pace, Nurse 5 Practitioner Hom found “moderate” limitations overall, and only opined that Plaintiff had 6 ‘marked” limitations in the sub-categories of completing tasks in a timely manner, working 7 close to or with others without interrupting or distracting them, and working without extra 8 or longer rest periods. Finding marked limitations in these sub-categories of functioning 9 does not necessarily conflict with other evidence “generally not[ing] Plaintiff’s attention 10 as being normal,” particularly since, when read in context, Ms. Hom’s recommended 11 limitations seem to relate more to Plaintiff’s vertigo symptoms than to his ability to pay 12 attention or to concentrate, since Ms. Hom opined the vertigo symptoms were “not well 13 controlled” and still affect Plaintiff’s activities of daily living such as driving and 14 showering. AR 497. Therefore, the ALJ’s conclusion that Ms. Hom’s opinion is 15 “inconsistent with the medical evidence of record as a whole” is not supported by 16 substantial evidence. 17 As a final reason for discounting Ms. Hom’s opinion, the ALJ explains that “there 18 is scant evidence in the record” that Plaintiff cannot manage his psychologically-based 19 symptoms, “as there is no evidence of psychiatric hospitalizations or documents incidents 20 of episodes of decompensation.” AR 22. However, “[i]npatient psychiatric treatment is not 21 a prerequisite to a finding of severity at step two.” Cyprain v. Colvin, No. 15-CV-02413- 22 BAS-BGS, 2017 WL 908757, at *6 (S.D. Cal. Mar. 7, 2017) (citations omitted). Therefore, 23 the fact that Plaintiff has never been hospitalized for psychiatric symptoms or had episodes 24 of decompensation is not substantial evidence to find his mental impairments nonsevere. 25 Id. 26 As for whether Plaintiff has had episodes of decompensation, the ALJ appears to 27 conflate the step two and step three inquiries. Whether Plaintiff has had “episodes of 28 decompensation” is a consideration traditionally seen at the step-three analysis of whether 1 an impairment meets a Listing, not the step-two analysis of whether an impairment is 2 severe. See 20 C.F.R. § Pt. 404, Subpt. P, App. 1, § 12.04(C)(1) (effective Sep. 29, 2016 – 3 Jan. 16, 2017) (previous version of the Listings providing that a mood disorder meets 4 listing 12.04 if the claimant has a “[m]edically documented history of a chronic affective 5 disorder of at least 2 years’ duration that has caused more than a minimal limitation of 6 ability to do basic work activities,” and “repeated episodes of decompensation, each of 7 extended duration”). Indeed, the agency explained that it revised its regulations to remove 8 reference to “periods of decompensation” in the Listings specifically because 9 “decompensation . . . refers to a state of extreme deterioration, often leading to 10 hospitalization. It also suggests that the person is a danger to him- or herself or others. That 11 degree of impairment exceeds what we generally intend in the paragraph C criteria [of the 12 Listings] when we refer to the ‘marginal adjustment’ that makes a person vulnerable to 13 deterioration in functioning.” Revised Medical Criteria for Evaluating Mental Disorders, 14 81 Fed. Reg. 66138-01, 66147 (Sep. 26, 2016) (internal quotations and citation omitted). 15 Again, the step two inquiry is a “de minimis screening device” used to screen for 16 groundless claims. Edlund, 253 F.3d at 1159. The fact that an impairment has not required 17 inpatient treatment or caused episodes of decompensation improperly heightens the proper 18 applicable standard of whether an impairment is severe, i.e., whether it is only a “slight 19 abnormality that has no more than a minimal effect on an individual’s ability to work.” 20 Smolen, 80 F.3d at 1290. 21 Accordingly, the ALJ committed legal error by discounting Ms. Hom’s opinion 22 without giving germane reasons for doing so. See Ghanim v. Colvin, 763 F.3d 1154, 1161 23 (9th Cir. 2014) (explaining that while a nurse practitioner’s opinion “must [] be evaluated 24 [under] 20 C.F.R. § 404.1527(c), the ALJ may discount testimony from these ‘other 25 sources’ if the ALJ ‘gives reasons germane to each witness for doing so.’”) (citations 26 omitted). 27 \\ 28 \\ 1 D. Impact of Court’s Error at Step Two 2 Having determined that the ALJ erred at step two by failing to find Plaintiff’s mental 3 impairments were severe, the Court must still consider whether the error was harmless. As 4 already discussed, such an error may be harmless if the ALJ took Plaintiff’s mental 5 impairments into account as he proceeded through the rest of the disability evaluation. 6 Davenport, 608 F. App’x at 481. Here, after the ALJ determined Plaintiff’s mental 7 impairments were non-severe at step two, he proceeded through the remainder of the 8 disability evaluation process to step five. AR 22-29. However, unlike in Davenport, the 9 entirety of the remaining evaluation focuses on Plaintiff’s exertional limitations, without 10 consideration of the effects of Plaintiff’s mental impairments on his RFC. For example, 11 despite extensive discussion of Plaintiff’s vertigo symptoms in determining their effect on 12 Plaintiff’s ability to stand, walk, climb, use machinery, and be exposed to unprotected 13 heights, the ALJ never again mentions how the vertigo symptoms might trigger symptoms 14 of Plaintiff’s PTSD or MDD, and how the combined effect of these impairments could thus 15 have an impact on Plaintiff’s RFC. See AR 23-24. The ALJ’s RFC determination does not 16 include any nonexertional limitations whatsoever. AR 22. Therefore, the Court cannot say 17 that the ALJ’s error at step two was harmless. 18 The parties disagree regarding what would have occurred if the ALJ had determined 19 that Plaintiff’s mental impairments were severe at step two. Plaintiff contends that if the 20 ALJ had adopted an RFC that included Plaintiff’s mental health limitations, the Medical 21 Vocational Guidelines would have directed a finding of disability. See ECF No. 25 at 14- 22 16; 20 C.F.R. Pt. 404, Subpt. P, App. 2, § 201.14. Specifically, Plaintiff explains that the 23 ALJ posed a hypothetical question to the vocational expert (“VE”) at the hearing that 24 reflects Plaintiff’s existing RFC, plus the additional mental limitation of “only occasional 25 interaction with the general public.” AR 73. In response to the hypothetical, the VE found 26 that Plaintiff would not be able to return to his past relevant work, and that only sedentary 27 jobs would be available. AR 73. Thus, under Section 201.14 of Table 2 of the Grids, 28 because Plaintiff is a person of closely approaching advanced age, with a high school 1 degree, skilled past work, and no transferable skills to sedentary work, Plaintiff contends 2 he must be found disabled. ECF No. 14-15; 20 C.F.R. Pt. 404, Subpt. P, App. 2, § 201.14. 3 Plaintiff also contends that the ALJ erred at step three by failing to evaluate whether 4 Plaintiff met Listings 12.04 and 12.15 at step three, and that the ALJ erred by adopting a 5 modified RFC for medium work. 6 Defendant argues that a finding of disability would not be compelled if the ALJ 7 included mental limitations in Plaintiff’s RFC because the ALJ could not have used the 8 Grids as more than a framework if that were the case. See Moore v. Apfel, 216 F.3d 864, 9 870 (9th Cir. 2000) (“When a claimant suffers from both exertional and nonexertional 10 limitations, the grids are only a framework and a VE must be consulted.”). Instead, the ALJ 11 would have had to consult a VE, which he did. The VE identified sedentary jobs that 12 Plaintiff could perform, even with mental limitations. AR 73-74. Since all of these jobs are 13 unskilled, the question of whether Plaintiff has transferable skills to sedentary work is 14 irrelevant, and a finding of disability is not necessarily directed by the Grids. Defendant 15 also contends that the ALJ did not err by failing to evaluate Listings 12.04 and 12.15 at 16 step three because the ALJ evaluated the relevant criteria in his decision when he 17 considered the four areas of mental functioning, and that the ALJ’s modified RFC for 18 medium work is supported by substantial evidence. 19 The Court agrees with Defendant that the record evidence is insufficient to establish 20 that a finding of disability would be directed under the Grids. As noted by the ALJ in his 21 opinion, transferability of job skills is not material to the determination of disability if the 22 jobs identified at step five are unskilled. See SSR 82-41, 1982 WL 31389, at *2 (S.S.A. 23 1982) (explaining that “[t]ransferability means applying work skills which a person has 24 demonstrated in vocationally relevant past jobs to meet the requirements of other skilled 25 or semiskilled jobs.”); AR 28 (the ALJ noting in his opinion that transferability of job skills 26 is not material to his determination of disability, because using the Grids as a framework 27 would support a finding of non-disability whether or not Plaintiff has transferable job 28 skills). 1 Nonetheless, the record below raises questions regarding the proper weight of the 2 Nurse Practitioner’s opinion, whether the Listings would apply, and what an appropriate 3 RFC would be with a correct determination at step two regarding the severity of Plaintiff’s 4 mental impairments. For those reasons, the Court will REVERSE the Commissioner’s 5 decision as to step two. The ALJ is directed to reassess the severity of Plaintiff’s mental 6 impairments – PTSD, MDD, and mood disorder – at step two. The ALJ is further directed 7 to reassess Plaintiff’s RFC, including all of his relevant limitations, application of the 8 Listings, and proceed thereafter as warranted to steps four and five. 9 V. SECOND ALLEGED ERROR: RESIDUAL FUNCTIONAL CAPACITY 10 The Court will briefly address Plaintiff’s second claim of error to provide further 11 guidance to the administrative agency on remand. In short, the Court finds no error. 12 As already discussed, the ALJ determined that Plaintiff has the RFC to perform less 13 than the full range of medium work, although all the jobs identified as jobs that Plaintiff 14 can perform at step five are classified as light work. AR 22, 27. Medium work generally 15 involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects 16 weighing up to 25 pounds, while light work involves lifting no more than 20 pounds at a 17 time with frequent lifting or carrying of objects weighing up to 10 pounds. 20 C.F.R. § 18 404.1567(b)-(c). Both medium work and light work generally require standing or walking, 19 off and on, for a total of approximately six hours of an eight-hour workday. SSR 83-10, 20 1983 WL 31251, at *6 (S.S.A. 1983); Bailey v. Astrue, No. EDCV09-1452-OP, 2010 WL 21 1233459, at *4 (C.D. Cal. Mar. 22, 2010). 5 22 23 5 Because both light and medium work generally require standing or walking for six hours 24 out of an eight-hour day, at first blush, the ALJ’s determination at step five appears to 25 conflict with the RFC limitation to standing and walking for only four hours in an eight- hour day. However, the VE testified during the hearing in front of the ALJ that the three 26 “light” jobs the ALJ ultimately identified at step five—counter clerk, office helper, and 27 furniture rental clerk—do not require standing or walking for six hours of an eight-hour workday, and could be performed by a person with an RFC limiting him to standing and 28 1 Plaintiff argues the ALJ erred by adopting a modified RFC for medium work, 2 because the medical evidence shows that Plaintiff is not capable of medium work due to 3 severe degenerative disc disease in his cervical spine and shoulder pain, limiting his ability 4 to lift, walk, and stand. In support, Plaintiff contends that the ALJ improperly weighed the 5 medical opinions and failed to provide specific and legitimate reasons for rejecting the 6 opinion of Plaintiff’s treating physician, Dr. Nicole Gullick, who opined that Plaintiff is 7 able to lift and carry only 10 pounds occasionally and frequently, is able to stand and/or 8 walk for less than two hours in an eight-hour workday, and requires the use of a cane to 9 walk any distance. See AR 440-443. Dr. Gullick’s opinion is controverted by the opinion 10 of one internal medical consultative examiner, Noli Cava, M.D. AR 26. Contrary to Dr. 11 Gullick’s findings, Dr. Cava found that the claimant is able to perform work at the medium 12 exertion level, subject to certain exceptions, which the ALJ incorporated into his RFC 13 determination. AR 26, 393-94. 14 Defendant denies that the ALJ committed any error in rejecting the opinion of 15 Plaintiff’s treating physician, Dr. Gullick, and gave specific and legitimate reasons for 16 affording her opinion little weight in favor of adopting the limitations proposed by Dr. 17 Cava. 18 A. Legal Standard 19 Under the regulations, for claims filed before March 27, 2017, the ALJ must 20 generally give more weight to medical opinions from treating sources, “since these sources 21 are likely to be the medical professionals most able to provide a detailed, longitudinal 22 picture of [the claimant’s] medical impairment(s) and may bring a unique perspective . . . 23 that cannot be obtained from the objective findings alone or from reports from . . . 24 consultative examinations.” 20 C.F.R. § 404.1527(c)(2). Moreover, if a treating source’s 25 opinion is well-supported by medically acceptable clinical and laboratory diagnostic 26 27 28 1 techniques and it is not inconsistent with other substantial evidence in record, it is entitled 2 to controlling weight. Id. 3 If the ALJ decides not to give a treating-source opinion controlling weight, the ALJ 4 must still determine what weight to give the opinion by balancing a host of factors: the 5 length, frequency, nature, and extent of the treatment relationship; the degree to which the 6 treating source’s opinion is supported by relevant evidence and consistent with the overall 7 record; the specialization of the treating source; and any other relevant factors. 20 C.F.R. 8 § 404.1527(c)(2)-(6). 9 Where, as here, the ALJ rejects a treating or examining physician’s opinion that is 10 controverted by another doctor, the ALJ must provide specific, legitimate reasons 11 supported by substantial evidence in the record for doing so. Murray v. Heckler, 722 F.2d 12 499, 502 (9th Cir. 1983). To meet this burden, and ALJ must provide a “detailed and 13 thorough summary of facts and conflicting clinical evidence, stating [his] interpretation 14 thereof, and making findings.” Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) 15 (quoting Magallanes, 881 F.2d at 751). 16 B. Analysis 17 In determining Plaintiff’s physical limitations, the ALJ gave “great” weight to the 18 opinion of internal medicine consultative examiner Dr. Cava. AR 26. Dr. Cava opined that 19 Plaintiff can perform medium-exertion work with additional restrictions, including only 20 standing and walking for four hours in an eight hour day; he is frequently able to climb 21 ramps and stairs; he is never able to climb ladders, ropes, or scaffolds; he must avoid 22 concentrated exposure to hazards such as operational control of moving machinery and 23 unprotected heights; and he must use a single point cane for balance when walking 24 distances greater than one block (approximately 100 yards). AR 22, 26, 393-94. 25 Dr. Gullick’s opinion regarding Plaintiff’s limitations is dated June 21, 2018. AR 26 439. At that time, Dr. Gullick had treated claimant for a little over a year. AR 440. In 27 contrast to Dr. Cava’s opinion, Dr. Gullick stated that claimant is able to lift and carry only 28 ten pounds occasionally and frequently, he is able to stand and/or walk less than two hours 1 in an eight-hour workday, he requires the use of a cane for ambulation, he is able to sit for 2 four hours in an eight-hour workday, he needs to alternate standing and sitting every half 3 hour, he is never able to climb, kneel, crouch, or crawl, he is occasionally able to balance 4 and reach, he has limitations with respect to working at heights or around moving 5 machinery or dust, he is likely to be absent from work more than three times a month due 6 to his physical impairments or treatment, and he would be off-task more than twenty 7 percent of an eight-hour workday due to pain or other symptoms. AR 439. 8 The ALJ gave Dr. Gullick’s opinion little weight, finding it was inconsistent with 9 the medical record as a whole. Specifically, as to the lifting restrictions proposed by Dr. 10 Gullick, the ALJ noted that the claimant testified that he is able to lift and carry at least 11 twenty-five pounds in one hand. AR 26, 56. This conflict constitutes a specific and 12 legitimate reason for discounting Dr. Gullick’s opinion that Plaintiff should be limited to 13 lifting no more than ten pounds. See, e.g., Santiago v. Saul, 777 F. App’x 237, 238 (9th 14 Cir. 2019) (finding the ALJ gave specific and legitimate reasons for assigning little weight 15 to a physician’s opinion, where the physician opined that the plaintiff could “never lift any 16 items, even including items less than ten pounds,” but the plaintiff testified that she could 17 lift between seven and ten pounds); Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 18 602 (9th Cir. 1999) (noting that the Ninth Circuit has “consistently upheld the 19 Commissioner’s rejection of the opinion of a treating or examining physician, based in part 20 on the testimony of a nontreating, nonexamining medical advisor[,]” and upholding the 21 ALJ’s rejection of two treating physicians’ opinions in favor of the opinion of a 22 nontreating, nonexamining medical advisor, where the ALJ “pointed to specific evidence” 23 to support the rejection, including testimony from the plaintiff that conflicted with their 24 opinions) (emphasis in original); Magallanes, 881 F.2d at 751–52 (upholding the ALJ’s 25 rejection of a treating physician opinion based on “the claimant’s own testimony” and the 26 conflicting opinions of other physicians). 27 The ALJ also noted that despite one instance in which Plaintiff reported pain and 28 spasms painful enough to put him in the fetal position (AR 675), he and Dr. Gullick have 1 ||reported that his back pain is improved with treatment. AR 25, 26, 473, 492. In fact, the 2 ||record evidence to which the ALJ cites indicates that Plaintiff's back pain decreased from 3 ||nine to five out of ten. AR 473. Thus, the ALJ gave specific and legitimate reasons for 4 || discounting Dr. Gullick’s opinion regarding Plaintiff's need to be absent from work more 5 three times per month. See Warren v. Comm’r of Soc. Sec., 439 F.3d 1001, 1006 (9th 6 || Cir. 2006) (citing Odle v. Heckler, 707 F.2d 439, 440 (9th Cir. 1983)) (Impairments that 7 be controlled effectively with medication are not disabling for the purpose of 8 || determining eligibility for social security benefits). 9 Because of these findings, the ALJ’s decision to limit the claimant to medium work 10 || with modifications, rather than adopting the treating physician’s assessment that Plaintiff 11 ||should be limited to sedentary work, was based on specific and legitimate reasons. The 12 || Court thus rejects Plaintiff's second claim of error. 13 VI. CONCLUSION 14 Based on the foregoing analysis, the Court GRANTS the Joint Motion for Judicial 15 Review (ECF No. 17) in Plaintiff's favor, REVERSES the Commissioner’s final decision 16 Plaintiff is not disabled, and REMANDS this action for further administrative 17 || proceedings, consistent with this opinion. 18 19 || Dated: September 30, 2021 00 _ArwiorwH. Xyolard Honorable Allison H. Goddard 21 United States Magistrate Judge 22 23 24 25 26 27 28