Romero v. Kijakazi

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JUANITA R., Case No.: 21cv1296-MDD 12 Plaintiff, ORDER: 13 v. 1) RESOLVING JOINT MOTION 14 KILOLO KIJAKAZI,1 Acting FOR JUDICIAL REVIEW; 15 Commissioner of Social Security, 2) VACATING THE COMMISSIONER’S FINAL 16 Defendant. DECISION; AND 17 3) REMANDING FOR FURTHER PROCEEDINGS 18 19 [ECF No. 14] 20 21 Juanita R. (“Plaintiff”) filed this action pursuant to 42 U.S.C. § 405(g) 22 for judicial review of the final administrative decision of the Commissioner of 23 the Social Security Administration (“Commissioner”) denying Plaintiff’s Title 24 XVI application for Social Security Disability Insurance (“SSDI”) benefits. 25 26 1 Kilolo Kijakazi became Acting Commissioner of Social Security on July 9, 2021. She is substituted for her predecessor as Defendant in this action. See 1 (ECF No. 1). The parties filed a Joint Motion for Judicial Review of the 2 Administrative Law Judge’s (“ALJ”) decision (“Joint Motion”). (ECF No. 14). 3 For the reasons expressed below, the Court VACATES the 4 Commissioner’s decision and REMANDS the case to the ALJ for further 5 proceedings consistent with this opinion. 6 BACKGROUND 7 SSDI generally entitles an insured to benefits when health impairments 8 preclude the insured from working for 12 months or more. See 42 U.S.C. 9 §§ 423(a)(1), (d)(1); 20 C.F.R. § 404.1509. Plaintiff alleges that, following a 10 car accident and other life stressors, she suffered a back injury, anxiety, 11 depression, and finger and toe immobility. (See AR at 192).2 Her 12 employment was terminated on April 23, 2018, and she alleges that she was 13 disabled and unable to work for at least 12 months following that date. (Id. at 14 170). After her application was denied initially and upon reconsideration, 15 Plaintiff requested an administrative hearing before an ALJ. An 16 administrative hearing was held on July 6, 2020. (Id. at 50–69). Plaintiff 17 appeared without being represented by counsel. (Id. at 53). The ALJ took 18 testimony from Plaintiff and from Alan Cummings, an impartial vocational 19 expert. (See id. at 50–69). On September 22, 2020, the ALJ issued a decision 20 denying Plaintiff’s claim. (Id. at 13–28). 21 Plaintiff filed this action seeking judicial review of the Commissioner’s 22 decision to deny her application for benefits. (ECF No. 1). She contends that 23 the ALJ erred in: 1) discrediting Plaintiff’s testimony as to the intensity, 24 persistence, and limiting effects of her symptoms; 2) failing to properly 25 26 2 “AR” refers to the Certified Administrative Record filed on January 21, 1 consider her mental limitations; and 3) concluding, based on the remaining 2 evidence, that her impairments were non-severe. Plaintiff is correct on each 3 point. 4 DISCUSSION 5 A. Standard of Review 6 Sections 405(g) and 1383(c)(3) of the Social Security Act allow 7 unsuccessful applicants to seek judicial review of a final agency decision. 8 42 U.S.C. §§ 405(g), 1383(c)(3). A court’s review is limited to assessing 9 whether the ALJ applied the correct legal standard and supported his 10 conclusions with substantial evidence. Buck v. Berryhill, 869 F.3d 1040, 1048 11 (9th Cir. 2017). 12 Substantial evidence “is a ‘term of art’ used throughout administrative 13 law to describe how courts are to review agency factfinding.” Biestek v. 14 Berryhill, 139 S. Ct. 1148, 1154 (2019). Courts look “to an existing 15 administrative record and ask[] whether it contains ‘sufficien[t] evidence’ to 16 support the agency’s factual determinations.” Id. (quoting Consolidated 17 Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). “[T]he threshold for such 18 evidentiary sufficiency is not high. . . It means—and means only—‘such 19 relevant evidence as a reasonable mind might accept as adequate to support 20 a conclusion.’” Id. (quoting Consolidated Edison, 305 U.S. at 229). 21 This standard does not permit a one-sided search for evidence that 22 would support the ALJ’s conclusion if viewed in isolation from the rest of the 23 record. Instead, it requires the ALJ and courts to “consider the entire record 24 as a whole, weighing both the evidence that supports and the evidence that 25 detracts from the Commissioner’s conclusion,” and a court “may not affirm by 26 isolating a specific quantum of supporting evidence.” Garrison v. Colvin, 759 1 (9th Cir. 2021) (substantial evidence standard requires court to “weigh[] the 2 evidence both supporting and detracting from the agency’s conclusion]”). 3 Where the agency’s denial of benefits is not supported by substantial 4 evidence or results from application of an incorrect legal standard, a 5 reviewing court may enter a judgment modifying or reversing the 6 Commissioner’s decision and it may remand the cause for a rehearing. 7 42 U.S.C. §§ 405(g), 1383(c)(3). 8 B. Summary of the ALJ’s Findings 9 In rendering his decision, the ALJ followed the Commissioner’s five-step 10 sequential evaluation process. See 20 C.F.R. § 404.1520. At step one, the 11 ALJ found that Plaintiff had not engaged in substantial gainful activity since 12 April 23, 2018. (AR at 18). 13 At step two, the ALJ found that Plaintiff had the following medically 14 determinable impairments: “lumbago status post motor vehicle accident, 15 sciatica, cervical degenerative disc disease, diabetes mellitus type II, obesity, 16 liver mass right lobe, hyperlipidemia, depressive disorder, and anxiety 17 disorder.” (Id. at 18–19). He then determined that these impairments, 18 individually and in combination, had not “significantly limited . . . [Plaintiff’s] 19 ability to perform basis work-related activities for 12 consecutive months.” 20 (Id. at 19). Because this finding was fatal to Plaintiff’s claim to eligibility for 21 benefits, the ALJ did not proceed to the third or subsequent steps. (Id. at 24). 22 As relevant to this Order, Plaintiff supported her application for SSDI 23 benefits with her own testimony as to the severity of her symptoms, records 24 of a psychiatric examination conducted by Dmitriy Sivtsov, M.D., and other 25 medical records spanning over two years of mental and physical health care. 26 (AR at 52–63, 275–334; see generally id. at 234–49, 335–914). The ALJ, in 1 [T]he claimant’s statements about the intensity, persistence, and limiting effects of her symptoms, they are inconsistent because the 2 objective medical evidence indicates that the claimant’s symptoms 3 improved and stabilized with treatment, including physical therapy, counseling, and medication. Her gait has been repeatedly 4 described as normal. While her mental symptoms have been 5 exacerbated by life stressors, she has not been hospitalized for a mental impairment during the relevant period and her symptoms 6 responded to treatment when she took her medication as 7 prescribed. Her reported daily activities suggest a greater level of functioning than alleged. For example, she can drive, she can shop 8 for groceries, she can prepare her own meals, she takes her 9 daughter to school, she can do household chores, and she has no problem with her personal care. 10 11 (Id. at 22). 12 As to Dr. Sivtsov’s opinion, the ALJ found: 13 [The] opinion is unpersuasive because it is inconsistent with and not supported by the objective medical evidence. His opinion was 14 provided for the claimant’s workers’ compensations claim and his 15 opinion appears to rely more on the claimant’s subjective reports rather than objective findings. Notably, Dr. Sivsov considered test 16 results from his mental status exam of the claimant to be invalid 17 because there was a very high likelihood of random responding (Ex. 1F at 9-11). The objective medical evidence indicates that the 18 claimant’s mental symptoms have been exacerbated by life 19 stressors, but her symptoms have generally improved and stabilized with counseling and taking her medication as prescribed. 20 She has not been hospitalized for a mental impairment during the 21 relevant period. In addition, her reported daily activities suggest a greater level of functioning than alleged. For example, she can 22 drive, she can shop for groceries, she can prepare her own meals, 23 she takes her daughter to school, she can do household chores, and she has no problem with her personal care. 24 25 (Id. at 23–24). 26 Because he concluded that Plaintiff’s impairments were non-severe, the 1 Social Security Appeals Council affirmed. (AR at 6–8). 2 C. Issues in Dispute 3 The issues in dispute are: 1) whether the ALJ erred in discrediting 4 Plaintiff’s testimony as to the intensity, persistence, and limiting effects of 5 her symptoms; 2) whether the ALJ erred by failing to properly consider 6 Plaintiff’s mental limitations; and 3) whether the ALJ erred in concluding 7 that Plaintiff did not have a severe impairment or combination of 8 impairments for 12 consecutive months after April 23, 2018. 9 1. The ALJ Failed to Give Specific, Clear and Convincing 10 Reasons for Discrediting Plaintiff’s Testimony 11 The ALJ first erred in finding Plaintiff’s statements about the intensity, 12 persistence, and limiting effects of her symptoms “inconsistent” and therefore 13 not credible. (AR at 22). An ALJ has limited discretion to disbelieve a 14 claimant’s testimony as to the severity of her symptoms. See Lingenfelter v. 15 Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007). Where there is objective medical 16 evidence of an impairment which could reasonably be expected to produce 17 “some degree” of the alleged symptoms, an ALJ can discredit such testimony 18 only by either: 1) identifying evidence of malingering; or 2) giving “specific, 19 clear and convincing reasons” for finding the testimony not credible. Id. 20 (quoting Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996)). To be 21 sufficiently specific, the ALJ must “identify which testimony she found not 22 credible” and “explain[] which evidence contradicted that testimony.” Brown- 23 Hunter v. Colvin, 806 F.3d 487, 494 (9th Cir. 2015); see also Rollins v. 24 Massanari, 261 F.3d 853, 856–57 (9th Cir. 2001) (ALJ’s findings must be 25 “sufficiently specific to allow a reviewing court to conclude the ALJ rejected 26 the claimant’s testimony on permissible grounds”) (cleaned up). To be “clear 1 supported by substantial evidence in the record. See Holohan v. Massanari, 2 246 F.3d 1195, 1208 (9th Cir. 2001). 3 Here, the ALJ found that the objective medical evidence supported the 4 conclusion that Plaintiff suffered impairments that could reasonably be 5 expected to produce some degree of her alleged symptoms. (AR at 22.) He 6 declined to credit Plaintiff’s unspecified “statements about the intensity, 7 persistence, and limiting effects of her symptoms,” though, for two reasons. 8 First, he found that those statements were “not entirely consistent with the 9 medical evidence and other evidence in the record.” (Id.). Second, he 10 indicated that her reported daily activities “suggest[ed] a greater level of 11 functioning than alleged.” (Id.). 12 Ninth Circuit precedent required the ALJ to identify specific statements 13 he found not credible; he did not do so. See Brown-Hunter, 806 F.3d at 494 14 (ALJ must “identif[y] which testimony she found not credible”). The same 15 precedent required the ALJ to identify specifically the medical evidence that 16 the ALJ claimed to contradict Plaintiff’s statements; he did not do so. See id. 17 (ALJ must “explain which evidence contradicted that testimony”). And it 18 required that the ALJ identify, in the reported daily activities evidence that 19 the he relied on, “such relevant evidence as a reasonable mind might accept 20 as adequate to support [his] conclusion” that she suffered from a severe 21 impairment for a twelve-month period after April 23, 2018; he did not do 22 that, either. Biestek, 139 S. Ct. at 1154. Due to these errors, the ALJ’s 23 proffered explanations are not “specific, clear and convincing reasons” 24 sufficient to warrant discrediting Plaintiff’s testimony. 25 a. The ALJ Omitted to Identify Specific Testimony He Did Not Find 26 Credible 1 not credible about the intensity, persistence, and limiting effects of Plaintiff’s 2 symptoms. He found only that “the claimant’s statements [regarding] her 3 symptoms . . . are not entirely consistent with the medical evidence and other 4 evidence in the record,” then proceeded to discuss those statements only as 5 an undifferentiated whole. (AR at 22). The Ninth Circuit has repeatedly 6 found that this language, when presented without further explanation, is 7 “generic . . . boilerplate” that does not rise to the level of a specific, clear and 8 convincing reason to discount a claimant’s symptom testimony. Lambert v. 9 Saul, 980 F.3d 1266, 1277 (9th Cir. 2020) (cleaned up); see also Treichler v. 10 Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1103 (9th Cir. 2014); Brown- 11 Hunter, 806 F.3d at 493. 12 The ALJ in this case did not identify any non-credible statements 13 beyond this general reference to “[Plaintiff’s] statements [regarding] her 14 symptoms.” (AR at 22). Accordingly, the Court “cannot review whether the 15 ALJ provided specific, clear, and convincing reasons for rejecting [Plaintiff’s] 16 pain testimony where, as here, the ALJ never identified which testimony [he] 17 found not credible.” Lambert, 980 F.3d at 1277 (quoting Brown-Hunter, 806 18 F.3d at 494); see also Eldridge v. Berryhill, No. 17cv497-JLS (BLM), 2018 WL 19 2357147, at *8 (S.D. Cal. May 23, 2018) (“[V]ague references” to “allegations 20 of disabling limitations” not sufficiently specific), adopted by Eldridge v. 21 Berryhill, No. 17cv497-JLS (BLM), 2018 WL 3343099 (S.D. Cal. July 9, 2018). 22 Because the ALJ failed to identify any specific testimony that he found 23 not credible, he did not offer specific, clear and convincing reasons to discredit 24 Plaintiff’s symptom testimony as a whole. 25 b. The ALJ Failed to Specify Medical Evidence Inconsistent with 26 Plaintiff’s Testimony 1 contradicted Plaintiff’s (unspecified) testimony. Before setting Plaintiff’s 2 symptom testimony aside, the ALJ must “explain[] which evidence 3 contradicted that testimony.” Brown-Hunter, 806 F.3d at 494. As with 4 general references to a claimant’s testimony as a whole, “[p]roviding a 5 summary of medical evidence is not the same as providing clear and 6 convincing reasons for finding the claimant’s symptom testimony not 7 credible.” Id. 8 Here, the ALJ found that Plaintiff’s statements were not “entirely 9 consistent with the medical evidence” and proceeded to summarize the 10 medical evidence: 11 As for the claimant’s statements about the intensity, persistence, and limiting effects of her symptoms, they are inconsistent 12 because the objective medical evidence indicates that the 13 claimant’s symptoms improved and stabilized with treatment, including physical therapy, counseling, and medication. Her gait 14 has been repeatedly described as normal. While her mental 15 symptoms have been exacerbated by life stressors, she has not been hospitalized for a mental impairment during the relevant 16 period and her symptoms responded to treatment when she took 17 her medication as prescribed. 18 (AR at 22). 19 As where the ALJ fails to identify specific contradicted testimony, the 20 Court “cannot review whether the ALJ provided specific, clear, and 21 convincing reasons for rejecting [Plaintiff’s] pain testimony where . . . the 22 ALJ . . . never explained which evidence contradicted that testimony.” 23 Lambert, 980 F.3d at 1277. The ALJ’s summary points to no specific 24 evidence that would enable the Court to review his reasoning. For example, 25 where the decision states that Plaintiff’s “gait has been repeatedly described 26 as normal,” (AR at 22), the Court cannot determine why the ALJ rejected 1 behavior.” (Id. at 20). Further medical evidence that Plaintiff’s gait was 2 “abnormal” resulting in “[l]imited functional capacity” does not appear to 3 have been considered at all. (Id. at 751–52). Nor can the Court evaluate, 4 lacking any specifically identified evidence, whether the “physical therapy, 5 counseling, and medication” successfully “improved and stabilized” Plaintiff’s 6 symptoms less than 12 months after the beginning of Plaintiff’s disability 7 period, as would be necessary to support a non-severity finding. (Id. at 22); 8 see 42 U.S.C. § 423(d)(1)(A) (defining “disability” as “inability to engage in 9 any substantial gainful activity . . . for a continuous period of not less than 12 10 months”). While it may be possible to fill in the blanks in the ALJ’s 11 reasoning, doing so would exceed the bounds of the Court’s limited review. 12 See Brown-Hunter, 806 F.3d at 494 (courts “are constrained to review the 13 reasons the ALJ asserts”). 14 Because the ALJ failed to identify specific medical evidence 15 contradicting any specific statement by Plaintiff, those purported 16 contradictions are not specific, clear and convincing reasons warranting his 17 determination that Plaintiff’s symptom testimony was not credible. 18 c. Plaintiff’s Reported Activities of Daily Living Are Not Specific, 19 Clear and Convincing Reasons to Reject Her Testimony 20 The ALJ’s second set of evidence purportedly contradicting Plaintiff’s 21 statements—Plaintiff’s reported activities of daily living—also fails to meet 22 the “specific, clear and convincing reasons” standard. In the context of daily 23 activities, that standard requires an ALJ either to: 1) specify the activities 24 and the statements they contradict; or 2) make “specific findings relating to 25 the daily activities’ transferability” to a work setting. Orn v. Astrue, 495 F.3d 26 625, 639 (9th Cir. 2007) (internal marks and citation omitted). 1 statements that Plaintiff’s reported daily activities contradict. He also failed 2 to: 1) provide substantial evidence for his characterization of Plaintiff’s daily 3 activities; 2) provide substantial evidence for imputing her daily activities in 4 the summer of 2020 to the entire 26-month period preceding her hearing; and 5 3) consider how her daily activities, accounting for the long periods of rest she 6 needed after performing those activities, could transfer to a work setting. 7 While the decision specifically identifies the activities that purportedly 8 undermine Plaintiff’s credibility, (see AR at 22), the record does not support 9 its characterization of those activities or the conclusion that the activities 10 demonstrate that Plaintiff has not had a severe impairment for a twelve- 11 month period after April 23, 2018. 12 First, the ALJ characterized Plaintiff’s testimony and submissions as 13 conceding that she “can do household chores.” (Id. at 22). But she indicated 14 in her August 14, 2019 Function Report that she could “[n]ot [do] much” in 15 the way of household chores due to “back pain + depression.” (Id. at 219). 16 Her July 6, 2020 testimony related to household chores was limited to a 17 statement that “[she] do[es] [the laundry], but [her] daughter . . . helps [her] 18 pull out the stuff and pick it up and --.” (Id. at 60).3 The ALJ’s 19 characterization of this evidence as demonstrating that Plaintiff can do 20 household chores is erroneous. 21 Second, his reasoning that Plaintiff’s ability to cook and shop for 22 groceries is inconsistent with her claim is flawed, too. Plaintiff’s evidence 23 indicates that she could “sometimes” prepare “salads or greens” in August 24 2019, (id. at 219), she “just started” cooking a month before her July 2020 25 26 3 At this point in the transcript, the ALJ's interruption appears to have prevented Plaintiff from offering further information on tasks she was unable 1 hearing, and, at the time of that hearing, she had “started [grocery shopping], 2 too.” See 42 U.S.C. §§ 423(a)(1), (d)(1); 20 C.F.R. § 404.1509; (AR at 60). 3 The ALJ properly characterized these statements as establishing that 4 Plaintiff “[could, in July 2020,] shop for groceries [and] prepare her own 5 meals.” (AR at 22). But without more, these facts do not establish his 6 conclusion that Plaintiff did not “have an impairment or combination of 7 impairments that has significantly limited . . . the ability to perform basic 8 work-related activities for 12 consecutive months.” (Id. at 19 (emphasis 9 added), citing 20 CFR 404.1521 et seq. and 20 CFR 416.921 et seq.). Plaintiff 10 claims that her period of disability began April 23, 2018, and so her claim 11 required only that she show disability through at least April 22, 2019. (Id. at 12 170.) Her July 2020 statements that she had “just started” cooking around 13 June 2020 and similarly had “started” grocery shopping indicate that she had 14 recently been unable to do those things. (Id. at 60.) In other words, this 15 testimony supports, rather than contradicts, her claim to disability through 16 at least April 22, 2019. (Id. at 16, 60). Moreover, as the ALJ acknowledges, 17 Plaintiff’s “symptoms improved and stabilized” over time. (Id. at 22). This 18 finding undermines any inference that, because Plaintiff could perform 19 certain activities in mid-2020, she could perform them in April 2019, too. The 20 ALJ erred in concluding that Plaintiff’s reported daily activities conflict with 21 her claim to a period of disability lasting 12 months or longer. 22 Third, the ALJ also failed to explain how Plaintiff’s reported daily 23 activities could transfer to a work setting. (Id. at 22). Absent any specific 24 contradiction between a claimant’s daily activities and the claimant’s 25 statements, the ALJ may use those activities to discredit the claimant’s 26 symptom testimony only upon findings that the activities “involv[e] the 1 Orn, 495 F.3d at 639 (internal marks and citation omitted). But the omission 2 to tie daily activities to the ability to work is particularly glaring here, where 3 Plaintiff testified that she needed to lie down for several hours after sitting or 4 standing for about 45 minutes. (Id. at 60–62; see also id. at 252 (“I can’t be 5 standing or sitting down for a long time, I have to be laying down. . . If I can 6 get a job laying down I could work.”). 7 Plaintiff’s testimony regarding her daily activities does not amount to a 8 specific, clear and convincing reason to discredit her other testimony for three 9 reasons. First, the decision failed to identify specific statements that the 10 testimony contradicted. Second, the decision misinterpreted and drew 11 improper conclusions from that testimony. And third, the ALJ omitted to 12 explain how her reported daily activities related to her ability to work. 13 d. The ALJ’s Errors in Setting Aside Plaintiff’s Symptom Testimony 14 Are Not Harmless 15 The Court must next consider whether the ALJ’s error in failing to 16 identify any specific, clear and convincing reason to discredit Plaintiff’s 17 testimony was harmless. “An error is harmless only if it is inconsequential to 18 the ultimate nondisability determination, or if despite the legal error, the 19 agency’s path may reasonably be discerned.” Brown-Hunter, 806 F.3d at 494 20 (citations and internal quotation marks omitted). The Ninth Circuit finds 21 errors based on failure to provide “specific, clear, and convincing reasons” for 22 rejecting Plaintiff’s subjective symptom testimony not harmless “because 23 [they] preclude [courts] from conducting a meaningful review of the ALJ’s 24 reasoning.” Id. at 489, 494–95; Lambert, 980 F.3d at 1278; Treichler v. 25 Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1103 (9th Cir. 2014). Here, the 26 ALJ’s errors in failing to provide specific, clear and convincing reasons for 1 ALJ’s reasoning, so they were not harmless. 2 2. The ALJ Improperly Set Aside Dr. Sivtsov’s Opinion in 3 Considering Plaintiff’s Mental Impairments 4 The ALJ also erred in considering Plaintiff’s mental health 5 impairments. In support of her claim to such impairments, Plaintiff 6 submitted the opinion of Dr. Dmitry Sivtsov, (see AR at 275–334), along with 7 her mental health treatment records. (See, e.g., id. at 87–91, 106–08, 237–49, 8 360, 365–66, 426–27, 530–32, 754–56, 797–802, 807–12, 823–24). Dr. Sivtsov 9 concluded that Plaintiff demonstrated “mild to moderate impairment” in 10 activities of daily living, “mild impairment” in social functioning and 11 concentration, and “moderate impairment” in adaptation. (Id. at 328). 12 The ALJ erroneously deemed this opinion “unpersuasive.” (AR at 23). 13 When evaluating the persuasiveness of a medical opinion, the agency must 14 consider several factors, giving the greatest weight to two: 1) how well the 15 opinion is supported by objective medical evidence and supporting 16 explanations; and 2) how consistent the opinion is with evidence from other 17 sources. 20 C.F.R. § 404.1520c(c) (identifying five factors for consideration); 18 20 C.F.R. § 404.1520c(b)(2) (placing greatest weight on supportability and 19 consistency). Under 20 C.F.R. § 404.1520c, “an ALJ cannot reject an 20 examining or treating doctor’s opinion as unsupported or inconsistent 21 without providing an explanation supported by substantial evidence.” Woods 22 v. Kijakazi, 32 F.4th 785, 792 (9th Cir. 2022). 23 The ALJ applied this standard here, finding that both dominant 24 factors—supportability and consistency—supported the conclusion that Dr. 25 Sivtsov’s opinion was not persuasive. (AR at 23). This finding was erroneous 26 as to both factors: the ALJ failed to identify substantial evidence that the 1 a. The ALJ Erroneously Deemed Dr. Sivtsov’s Opinion Unsupported 2 The ALJ determined that Dr. Sivtsov’s opinion was not well-supported 3 because it “appear[ed] to rely more on the claimant’s subjective reports rather 4 than objective findings,” in part because “Dr. Siv[t]sov considered test results 5 from his mental status exam of the claimant to be invalid.” (AR at 23). In 6 general, an ALJ may disregard a physician’s opinion of disability where: 7 1) the ALJ “properly discount[s]” the claimant’s “accounts of [her] symptoms 8 and limitations;” and 2) the physician’s opinion is “premised to a large extent” 9 on those accounts. Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 602 10 (9th Cir. 1999). The ALJ failed to satisfy either prong of this test. 11 First, as discussed above, the ALJ did not properly discount Plaintiff’s 12 symptom testimony because he failed to give specific, clear and convincing 13 reasons why that testimony was not credible. 14 Second, even had the ALJ properly discounted that testimony, the rule 15 permitting an ALJ to reject a physician’s opinion that is based on self-reports 16 “does not apply in the same manner to opinions regarding mental illness.” 17 Buck, 869 F.3d at 1049. Psychiatric diagnoses “will always depend in part on 18 the patient’s self-report, as well as on the clinician’s observations of the 19 patient." Id. Accordingly, “[c]linical interview[s] and . . . mental status 20 evaluation[s] . . . are objective measures and cannot be discounted as a ‘self- 21 report.’” Id. Here, Dr. Sivtsov’s opinion relates to Plaintiff’s psychiatric 22 impairments. And while Dr. Sivtsov set aside Plaintiff’s results from the 23 psychometric assessment instruments he administered due to a “very high 24 likelihood of random responding,”4 (AR at 283–84, 326–27), that did not mean 25 26 4 Dr. Sivtsov’s report emphasizes that “random responding,” without more, 1 that Dr. Sivtsov’s conclusions lacked any supporting evidence. Those 2 conclusions relied on a clinical interview of the Plaintiff, (see id. at 275 3 (stating that evaluation included “comprehensive face-to-face interview”)), 4 and a review of Plaintiff’s medical records. (Id. at 276, 288–312). The clinical 5 interview and review of medical records constitute objective evidence on 6 which Dr. Sivtsov could—and did—base his findings. See Buck, 869 F.3d at 7 1049 (“[A] clinical interview and a mental status evaluation . . . are objective 8 measures”); (AR at 324–26 (relying on clinical interview and medical records 9 in reaching diagnosis of Plaintiff)). The ALJ erred in finding that Dr. 10 Sivtsov’s opinion was not well-supported because it “rel[ies] more on the 11 claimant’s subjective reports rather than objective findings.” (AR at 23). 12 b. The ALJ Erroneously Deemed Dr. Sivtsov’s Opinion Inconsistent 13 The ALJ’s determination that Dr. Sivtsov’s opinion was inconsistent 14 with the objective medical evidence and other evidence also lacks support 15 from substantial evidence. Specifically, the ALJ characterized the other 16 evidence as indicating: 17 “[T]he claimant’s mental symptoms have been exacerbated by life stressors, but her symptoms have generally improved and 18 stabilized with counseling and taking her medication as 19 prescribed. She has not been hospitalized for a mental impairment during the relevant period. In addition, her reported daily 20 activities suggest a greater level of functioning than alleged. For 21 example, she can drive, she can shop for groceries, she can prepare her own meals, she takes her daughter to school, she can do 22 household chores, and she has no problem with her personal care.” 23 (Id. at 23–24). 24 These findings do not establish that Dr. Sivtsov’s opinion is inconsistent 25 with the other evidence in the record. They do not address the same subject 26 matter as many of Dr. Sivtsov’s conclusions—namely, his findings that 1 adaptation. (Id. at 328). But even where the ALJ’s reasons map to Dr. 2 Sivtsov’s opinion, those reasons are consistent. 3 First, Dr. Sivtsov’s opinion acknowledged and accounted for the 4 “improve[ment] and stabiliz[ation] in Plaintiff’s symptoms with counseling 5 and taking her medication as prescribed.” (AR at 24). Although he described 6 Plaintiff as “highly symptomatic with depressive and anxiety symptoms” 7 when unmedicated, (AR at 326), he noted that she had ceased taking 8 medications due to unwanted side effects and so ultimately deemed her 9 “depressed mood” “mild.” (Id. at 329). This characterization is consistent 10 with medical records indicating that, when taking her medication, Plaintiff’s 11 depressive symptoms were “[m]oderate.” (Id. at 247, 803, 807, 811). 12 Next, there is no apparent inconsistency between Dr. Sivtsov’s opinion 13 and the ALJ’s observation that Plaintiff “has not been hospitalized for a 14 mental impairment during the relevant period.” (AR at 24). Dr. Sivtsov 15 neither claimed to the contrary nor opined that any hospitalization was 16 necessary. (See AR at 275–334). 17 Nor is there any meaningful inconsistency between Plaintiff’s reported 18 daily activities and Dr. Sivtsov’s description of her impairment, either. In 19 support of his “mild to moderate impairment” assessment in this category, 20 Dr. Sivtsov explained in March 2019 that: 1) “[Plaintiff] reports that she has 21 stopped cooking due to lack of motivation”; 2) “She does minimal shopping, as 22 she is bothered by crowds”; 3) “She . . . is only able to do minimal 23 housekeeping”; 4) “She can occasionally drive for up to fifteen minutes, but 24 the freeway makes her anxious”; and 5) “She will nap during the day.” (AR 25 at 327–28). As discussed above, Plaintiff testified that she began cooking and 26 grocery shopping around June 2020, and that, in July 2020, she was unable 1 after short periods of standing or sitting. (Id. at 60–62). These statements 2 are consistent with Dr. Sivtsov’s opinion that Plaintiff suffered from “mild to 3 moderate” impairment in her activities of daily living. (AR at 328). 4 The ALJ’s stated reasons for finding Dr. Sivtsov’s opinion inconsistent 5 with the other evidence are incomplete, in that they do not address all of Dr. 6 Sivtsov’s relevant findings, and they are not supported by substantial 7 evidence. The AL erred in finding that opinion inconsistent with the other 8 evidence in the record. 9 c. The ALJ’s Error Was Not Harmless 10 “An error is harmless only if it is inconsequential to the ultimate 11 nondisability determination, or if despite the legal error, the agency’s path 12 may reasonably be discerned.” Brown-Hunter, 806 F.3d at 494 (citations and 13 internal quotation marks omitted). Here, the ALJ erred in evaluating each of 14 the two most important factors for determining the persuasiveness of a 15 medical opinion. The Court cannot find these errors inconsequential, nor can 16 the Court predict how the agency would proceed if the errors were corrected. 17 Those errors were not harmless. 18 3. The ALJ Erred in Finding Plaintiff’s Impairments Non-Severe 19 Plaintiff also contends that the ALJ erred in finding her impairments 20 non-severe. An impairment or combination of impairments may be 21 considered “non-severe” only if it causes no more than a “slight abnormality” 22 that has “no more than a minimal effect” on the claimant’s ability to do basic 23 work activities. Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005). A 24 finding of non-severity must be supported by substantial evidence “clearly 25 establish[ing] that [the claimant] did not have a medically severe impairment 26 or combination of impairments.” Id. at 687. The substantial evidence 1 || weighing both the evidence that supports and the evidence that detracts from 2 ||the Commissioner’s [ultimate] conclusion.” Garrison, 759 F.3d at 1009. 3 Here, the ALJ’s errors discussed above—discrediting Plaintiffs 4 ||testimony and Dr. Sivtsov’s opinion—were not harmless. In setting that 5 ||evidence aside improperly, the ALJ failed to consider the record as a whole, 6 ||and so his conclusion of non-severity rests on a faulty foundation. See 7 Garrison, 759 at 1009 (substantial evidence standard requires ALJ to g ||consider “entire record as a whole’). The ALJ erred in finding Plaintiffs 9 ||impairments non-severe based on an incomplete record. 10 This error was not harmless. “An error is harmless only if it is 11 ||inconsequential to the ultimate nondisability determination, or if despite the 12 ||legal error, the agency’s path may reasonably be discerned.” Brown-Hunter, 13 F.3d at 494 (citations and internal quotation marks omitted). Here, the 14 ||}erroneous finding ended the ALJ’s inquiry, and so it was not inconsequential 15 ||to the ultimate determination, and the Court cannot predict how the ALJ 16 || would have resolved the claim in the absence of error. 17 CONCLUSION 18 For the reasons discussed above, the Commissioner’s decision denying 19 || Plaintiffs SSDI benefit application is VACATED. The case is REMANDED 90 ||for further proceedings consistent with this opinion. 21 IT IS SO ORDERED. Dated: November 30, 2022 tl | [ Hon. Mitchell D. Dembin 24 United States Magistrate Judge 25 26 27