Devlin v. Kijakazi, No. 5:2022cv05574 - Document 19 (N.D. Cal. 2024)

Court Description: ORDER granting 15 Plaintiff's Motion for Summary Judgment and denying 17 Defendant's Cross Motion for Summary Judgment. Signed by Magistrate Judge Virginia K. DeMarchi on 1/3/2024. (vkdlc1, COURT STAFF) (Filed on 1/3/2024)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 C.D., 8 Case No. 22-cv-05574-VKD Plaintiff, 9 v. 10 KILOLO KIJAKAZI, United States District Court Northern District of California 11 Defendant. 12 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S CROSS-MOTION FOR SUMMARY JUDGMENT Re: Dkt. Nos. 15, 17 13 Plaintiff C.D.1 appeals from a final decision of the Commissioner of Social Security (“the 14 15 Commissioner”) denying his application for disability insurance benefits under Title II of the 16 Social Security Act (“Act”), 42 U.S.C. § 423, et seq. C.D. contends that the administrative law 17 judge (“ALJ”) erred in several ways when adjudicating his application. First, he contends that the 18 ALJ erred in evaluating the opinions of his medical sources. Second, he contends the that the ALJ 19 erred by failing to consider his Department of Veterans Affairs (“VA”) disability rating. Third, he 20 contends that the ALJ erred by improperly discounting his subjective testimony about his 21 symptoms. Fourth, he contends that the ALJ erred in finding that his impairments did not meet or 22 equal Listing 12.15. Fifth, he contends that the ALJ’s residual functional capacity (“RFC”) 23 finding is not supported by substantial evidence. The parties have filed cross-motions for summary judgment. Dkt. Nos. 15, 16. The matter 24 25 26 27 28 1 Because opinions by the Court are more widely available than other filings, and this order contains potentially sensitive medical information, this order refers to the plaintiff only by his initials. This order does not alter the degree of public access to other filings in this action provided by Rule 5.2(c) of the Federal Rules of Civil Procedure and Civil L.R. 5-1(c)(5)(B)(i). 1 was submitted without oral argument. See Civil L.R. 7-1(b). Upon consideration of the moving 2 and responding papers and the relevant evidence of record, the Court grants C.D.’s motion for 3 summary judgment and denies the Commissioner’s cross-motion for summary judgment.2 4 I. C.D. filed an application for disability insurance benefits on August 19, 2020 at age 43. 5 6 AR 15, 76.3 He alleged that he had been disabled since July 27, 2014 due to post traumatic stress 7 disorder (“PTSD”), major depressive disorder, a traumatic brain injury (“TBI”), hip pain, and a 8 finger facture. AR 18, 73, 83, 232. Prior to the alleged onset of his disability, C.D., who holds a 9 juris doctor degree, was a military attorney and officer in the U.S. Army JAG Corps from 2006 to 10 2014. AR 43, 257, 259. C.D. was deployed to Iraq as a combat advisor in 2007, where he provided 11 United States District Court Northern District of California BACKGROUND 12 recommendations and briefings on the legality of military operations. AR 44-46, 1073-74. In this 13 role, C.D. often had to make decisions about “‘whether a kill was within justification for an 14 incident.’” AR 1307. This responsibility made C.D. feel as if he was “‘holding all the nuclear 15 waste’” and was the “‘sin-bearer’” for his fellow soldiers. AR 864. He now feels “extreme guilt 16 and anguish over his role [in Iraq.]” AR 1307. During his service in Iraq, C.D. “witnessed 17 torture, military operations, [and] ‘collateral damage’” and began to experience symptoms of 18 PTSD. AR 44-46, 1073-74. In 2013, C.D. received inpatient treatment for PTSD. AR 1074, 1188, 1306. That same 19 20 year, he fell in the bathroom—potentially due to the side effects of a sleep medication prescribed 21 to treat his PTSD—and suffered a TBI, a temporal subdural hematoma, and a skull fracture. AR 22 1073-74, 1190-91, 1306. C.D. medically retired from the Army in May of 2014. AR 43, 344, 23 1074. The VA assigned C.D. a 100% disability rating and found him totally and permanently 24 disabled, effective July 27, 2020. AR 344. C.D.’s application for disability insurance benefits was denied initially and on 25 26 27 28 2 All parties have expressly consented that all proceedings in this matter may be heard and finally adjudicated by a magistrate judge. 28 U.S.C. § 636(c); Fed. R. Civ. P. 73; Dkt. Nos. 10, 11. 3 “AR” refers to the certified administrative record filed with the Court. Dkt. No. 13. 2 United States District Court Northern District of California 1 reconsideration. AR 15, 76, 88. An ALJ held a hearing and subsequently issued an unfavorable 2 decision on June 2, 2022, finding that C.D. was not disabled. AR 12, 15. The ALJ found that 3 C.D. met the insured status requirements of the Act through December 31, 2019 and that he had 4 not engaged in substantial gainful activity since the alleged onset of disability on July 27, 2014. 5 AR 15, 18. She further found that C.D. had the following severe impairments: “post-traumatic 6 stress disorder, major depressive disorder, and traumatic brain injury.” AR 18. She also found 7 that C.D.’s hip pain and finger fracture were non-severe impairments. AR 18. 8 The ALJ concluded that C.D. did not have an impairment or combination of impairments 9 that met or medically equaled the severity of one of the impairments listed in 20 C.F.R. Part 404, 10 Subpart P, Appendix 1. AR 18. She considered whether C.D. met two listings: 12.15 (Trauma- 11 and stressor-related disorders) and 12.04 (Depressive, bipolar and related disorders). AR 19. In 12 making her determination that C.D. did not meet either listing, the ALJ did not make any specific 13 findings regarding the paragraph A criteria (medical criteria), but concluded that C.D. had no more 14 than a moderate limitation in all four paragraph B criteria (broad areas of mental functioning) and 15 that he did not meet the paragraph C criteria (serious and persistent impairment). AR 19-20; see 16 also 20 C.F.R. Pt. 404, Subpt. P, App. 1 §§ 12.00.A.2.a-c. 17 The ALJ then determined that C.D. had the RFC to “perform a full range of work at all 18 exertional levels but with the following nonexertional limitations: the claimant is capable of 19 unskilled, simple, repetitive, and routine tasks, with no assembly line work. The claimant can 20 have no exposure to unprotected heights, hazardous machinery, or commercial driving. The 21 claimant can have no public interaction and only occasional co-worker interaction, but no tandem 22 tasks with co-workers.” AR 20. Based on this RFC, the ALJ concluded that C.D. was unable to 23 return to his past relevant work as an attorney (Dictionary of Occupational Titles (“DOT”) code 24 110.107-010). AR 26-27. However, the ALJ found that given C.D.’s “age, education, work 25 experience, and residual functional capacity, there were jobs that existed in significant numbers in 26 the national economy that the claimant could have performed,” including hand launderer (DOT 27 code 361.684-010), floor waxer (DOT code 381.687-034), and industrial cleaner (DOT code 28 381.687-018). AR 27-28. 3 C.D. appealed the ALJ’s decision to the Appeals Council, which denied his request for 1 2 review. AR 1-5. He then filed this action seeking judicial review of the decision denying his 3 application for benefits. See Dkt. No. 1. 4 II. This Court has the authority to review the Commissioner’s decision to deny benefits 5 United States District Court Northern District of California LEGAL STANDARD 6 pursuant to 42 U.S.C. § 405(g). The Commissioner’s decision will be disturbed only if it is not 7 supported by substantial evidence or if it is based upon the application of improper legal 8 standards. Ahearn v. Saul, 988 F.3d 1111, 1115 (9th Cir. 2021); Morgan v. Comm’r of Soc. Sec. 9 Admin., 169 F.3d 595, 599 (9th Cir. 1999). In this context, the term “substantial evidence” means 10 “more than a mere scintilla” but “less than a preponderance” and is “such relevant evidence as a 11 reasonable mind might accept as adequate to support a conclusion.” Ahearn, 988 F.3d at 1115 12 (quoting Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) and Molina v. Astrue, 674 F.3d 1104, 13 1110-11 (9th Cir. 2012), superseded by regulation on other grounds); see also Morgan, 169 F.3d 14 at 599. When determining whether substantial evidence exists to support the Commissioner’s 15 decision, the Court examines the administrative record as a whole, considering adverse as well as 16 supporting evidence. Ahearn, 988 F.3d at 1115; Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 17 1989). Where evidence exists to support more than one rational interpretation, the Court must 18 defer to the decision of the Commissioner. Ahearn, 988 F.3d at 1115-16; Morgan, 169 F.3d at 19 599. 20 III. 21 DISCUSSION C.D. argues that the ALJ erred by improperly evaluating the medical opinions in the 22 record, by failing to consider his VA disability rating, and by failing to provide sufficient reasons 23 for discounting his subjective testimony. He contends that, as a result of these errors, both the 24 ALJ’s determination that he did not meet or equal any listed impairments and the ALJ’s RFC 25 finding were not supported by substantial evidence. 26 A. 27 C.D. argues that the ALJ erred by discounting the opinions of two of his treating providers, 28 Medical Opinions therapist Robert Cleveland, LCSW and psychologist Jerry Boriskin, Ph.D., regarding his mental 4 1 impairments. Dkt. No. 15 at 3-5.4 The Court agrees. 2 1. Both Mr. Cleveland and Dr. Boriskin submitted letters in support of C.D.’s disability 3 4 benefits application opining that his PTSD imposed significant limitations on his ability to work. 5 See AR 1306-14. Mr. Cleveland opined that C.D. had “no useful ability to function” in numerous areas, 6 United States District Court Northern District of California Summary of Medical Opinion Evidence 7 including “remembering work-like procedures, maintaining attention for a 2-hour segment, 8 maintaining regular attendance and being punctual within customary usually strict tolerances, 9 sustaining and ordinary routine without special supervision, working in coordination with or 10 proximity to others without being distracted, making simple work-related decisions, completing a 11 normal workday and work week without interruptions from psychologically based symptoms, 12 performing at a consistent pace without an unreasonable number and length of rest periods, 13 accepting instructions and responding appropriately to criticisms from supervisors, getting along 14 with coworkers or peers without unduly distracting them or exhibiting behavioral extremes, 15 responding appropriately to changes in the work setting, dealing with work relate[d] stress, 16 understanding and remembering detailed instructions, carrying out detailed instructions, setting 17 realistic goals or making plans independently of others, and dealing with [the] stress of semiskilled 18 and skilled work.” AR 1309-10. He also opined that C.D. was “unable to meet competitive 19 standards” in “interacting appropriately with the public for short or extended periods of time, 20 traveling to unfamiliar places, and using public transportation.” AR 1310. Dr. Boriskin reviewed Mr. Cleveland’s letter and submitted his own, in which he stated 21 22 23 24 25 26 27 28 C.D. also contends that the ALJ erred in by discounting “all the opinions of record” with respect to his physical impairments. Dkt. No. 15 at 4. However, as the Commissioner points out, the only medical opinion in the record regarding C.D.’s physical impairments is that of S. Amon, M.D., a state agency consultant. Dkt. No. 17 at 11-12; see also AR 73. Dr. Amon opined that C.D.’s physical impairments were non-severe, but the ALJ found that opinion was “not consistent with the medical evidence in the file which shows the claimant experienced symptoms related to his traumatic brain injury.” AR 26. The ALJ concluded that Dr. Amon’s opinion was “not persuasive.” AR 26. This finding is supported by substantial evidence. The medical evidence confirms that C.D. suffered a TBI in July of 2013 and received treatment for TBI symptoms after the alleged onset of disability. AR 923, 1275. 4 5 United States District Court Northern District of California 1 that he was “in complete agreement with Mr. Cleveland's assessments regarding [C.D.’s] 2 functional limitations.” AR 1312. Dr. Boriskin also expressed his “complete agreement” with 3 Mr. Cleveland’s opinion that “[C.D.’s] impairments are significant and pervasive and will with 4 certainty last him the remainder of his life.” AR 1311. 5 The ALJ found Mr. Cleveland and Dr. Boriskin’s opinions “not persuasive.” AR 25. In 6 both cases, she acknowledged the providers had an “established treating relationship” with C.D. 7 AR 25-26. However, she concluded that Mr. Cleveland and Dr. Boriskin’s opinions were “not 8 supported by the claimant’s capabilities during his exams” and “inconsistent with the other 9 medical evidence in the file.” AR 25-26.5 The ALJ also reviewed the opinion of a state agency 10 consultant regarding C.D.’s mental impairments, but did not consider it because the consultant had 11 found “insufficient evidence to assess” C.D.’s mental impairments. AR 25. 12 2. Legal Standard Under the regulations that apply to C.D.’s application,6 the Commissioner no longer gives 13 14 specific evidentiary weight to medical opinions, including the deference formerly given to the 15 opinions of treating physicians. Instead, the Commissioner evaluates the “persuasiveness” of all 16 medical opinions in the record based on: (1) supportability; (2) consistency; (3) relationship with 17 the claimant; (4) specialization; and (5) other factors, such as “evidence showing a medical source 18 has familiarity with the other evidence in the claim or an understanding of our disability program’s 19 policies and evidentiary requirements.” 20 C.F.R. §§ 404.1520c; see also Woods v. Kijakazi, 32 20 F.4th 785, 787 (9th Cir. 2022) (“For claims subject to the new regulations, the former hierarchy of 21 medical opinions—in which we assign presumptive weight based on the extent of the doctor’s 22 relationship with the claimant—no longer applies.”). As with all other determinations made by 23 24 25 26 27 28 While the ALJ says that the providers’ opinions were “not supported by” the evidence, her findings appear to concern the opinions’ consistency with the evidence, rather than its supportability. See Woods v. Kijakazi, 32 F.4th 785, 793 n.4 (9th Cir. 2022). 5 6 On January 18, 2017, the Commissioner promulgated new regulations concerning the evaluation of medical opinions. See Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 Fed. Reg. 5844 (Jan. 18, 2017). These new regulations apply to all applications for benefits filed after March 27, 2017. Id.; 20 C.F.R. § 404.1520c. Since C.D.’s application was filed after March 27, 2017, these new regulations apply to his case. See AR 18. 6 1 the ALJ, the ALJ’s persuasiveness explanation must be supported by substantial evidence. 2 Woods, 32 F.4th at 792 (“[U]nder the new regulations, an ALJ cannot reject an examining or 3 treating doctor’s opinion as unsupported or inconsistent without providing an explanation 4 supported by substantial evidence.”). Supportability and consistency are considered the most important factors, and the ALJ is United States District Court Northern District of California 5 6 required to explicitly address them in his or her decision. 20 C.F.R. § 404.1520c(b)(2). 7 “Supportability means the extent to which a medical source supports the medical opinion by 8 explaining the ‘relevant . . . objective medical evidence.’” Woods, 32 F.4th at 791-92 (quoting 20 9 C.F.R. § 404.1520c(c)(1)). “Consistency means the extent to which a medical opinion is 10 ‘consistent . . . with the evidence from other medical sources and nonmedical sources in the 11 claim.’” Id. at 792 (quoting 20 C.F.R. § 404.1520c(c)(2)). The ALJ “may, but [is] not required 12 to,” explain how he or she considered the remaining three factors listed in the regulations. 13 20 C.F.R. § 404.1520c(b)(2). While there “is a presumption that ALJs are, at some level, capable of independently 14 15 reviewing and forming conclusions about medical evidence to discharge their statutory duty to 16 determine whether a claimant is disabled and cannot work,” Farlow v. Kijakazi, 53 F.4th 485, 488 17 (9th Cir. 2022), the evaluation of medical opinions must be based on a “holistic view of the 18 record.” Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014). 19 3. 20 Application a. Robert Cleveland, LCSW The ALJ found that Mr. Cleveland’s opinion was “not supported by the claimant’s 21 22 capabilities during his exams.”7 AR 25. The ALJ based this finding on Mr. Cleveland’s report 23 that during therapy sessions C.D. “was cooperative and had good eye contact,” “was fully alert & 24 oriented during his sessions and had organized thought processes,” and “[though C.D.] had poor 25 26 27 28 Mr. Cleveland, a social worker, is not an “acceptable medical source” under Social Security Administration regulations. 20 C.F.R. § 404.1502(a); 82 Fed. Reg. 5844, 5846-47. However, under the post-2017 regulations, the ALJ was required to consider his opinion using the same standard that applies to other medical sources. See 82 Fed. Reg. 5844, 5844-45; 20 C.F.R. § 404.1520c; Johnson v. Kijakazi, No. 21-15919, 2022 WL 2593516, at *1 (9th Cir. July 8, 2022). 7 7 United States District Court Northern District of California 1 short-term memory, his judgment was intact.” AR 25. This finding is not supported by the record 2 for two reasons. First, the observations that C.D. was “cooperative” and “oriented” during therapy 3 are not inconsistent with (or even relevant to) Mr. Cleveland’s assessment of C.D.’s impairments. 4 As Mr. Cleveland explained: “[C.D.’s] behaviors are not inappropriate, and he conducts himself 5 in a manner befitting and individual of his excellent character. It is the emotional (psychiatric) 6 symptoms related to his multiple conditions that make it extremely difficult for him to interact 7 with others especially when he experiences or reacts to a myriad of distressing cognitions which 8 occur without warning.” AR 1307. Second, Mr. Cleveland made other observations—not 9 discussed by the ALJ—that support his assessment that C.D.’s ability to work is severely limited 10 by his PTSD. For example, Mr. Cleveland reported: “His depression and anxiety are reported to 11 be and are observed as severe. Ongoing feelings of hopelessness and helplessness persist. Para- 12 suicidal thoughts are intermittent but currently do not rise to the level of inpatient psychiatric care, 13 however this will require ongoing monitoring. His speech is slow in rate and is monotone. 14 Psychomotor retardation is present. His foundational knowledge is intact however he is 15 challenged in the application of that knowledge in areas of employment and interactions in social 16 constructs. He has poor short-term memory, exacerbated by the introduction of minor stressors 17 into his daily circumstances. He is easily overwhelmed in making simple or complex decisions.” 18 AR 1307. 19 The ALJ also found that Mr. Cleveland’s opinion was “inconsistent with other medical 20 evidence in the file” because, C.D. “worked with a personal trainer in the gym” and “was the 21 primary caregiver of his children.” AR 25. The ALJ determined that these activities contradicted 22 Mr. Cleveland’s opinion that C.D.’s PTSD “caused [him] to isolate from others” and that he was 23 “often unmotivated to complete tasks.” AR 25. This finding also is not supported by the record. 24 Rather, the record reflects that C.D.’s work with a personal trainer at the gym was a recommended 25 and beneficial part of his treatment for TBI and not inconsistent with the objective medical 26 evidence of his mental impairments. The reference to a personal trainer appears in a February 17, 27 2015 “Polytrauma/TBI Physiatry Follow Up” report written by Dr. Hetal Lakhani, a VA physical 28 medicine and rehabilitation specialist. AR 1225-27. Dr. Lakhani reported that C.D. complained 8 1 of “cognitive dysfunction, balance changes, vision changes and PTSD [symptoms]” and 2 “problems with mood disturbance [and] anxiety.” AR 1227. In that report, Dr. Lahkani also 3 stated that C.D. was having marital problems and his wife had threatened divorce. AR 1225. 4 Treatment notes from Dr. Boriskin from the same time period suggest that C.D.’s PTSD was a 5 major factor in his relationship difficulties. AR 1243-44; see also AR 56. Dr. Lahkani’s treatment 6 plan for C.D. included, among other things, the suggestion that C.D. “continue exercise.” AR 7 1227. United States District Court Northern District of California 8 Likewise, while C.D. did spend time caring for his children, he also reported limitations in 9 his ability to do so. See, e.g., AR 50 (“I try to help them if I can. I spend a lot of time in my 10 room. I look at my phone a lot and try to—when my wife is at work I keep things from going 11 crazy at home with two boys who like to fight with each other.”); AR 53 (“I try to read to the boys 12 at night before bed, just to do something [] together, but I find it hard to stay focused to get 13 through books.”). 14 In sum, the ALJ’s stated reasons for discounting Mr. Cleveland’s opinions as “not 15 persuasive” are not supported by substantial evidence. Rather the ALJ appears to have “cherry- 16 picked” some of Mr. Cleveland’s statements and taken others out context, while ignoring other 17 statements that support Mr. Cleveland’s opinions. See Ghanim, 763 F.3d at 1164 (“[T]he ALJ 18 improperly cherry-picked some of [provider’s] characterizations of [claimant’s ] rapport and 19 demeanor instead of considering these factors in the context of [his] diagnoses and observations of 20 impairment.”); Diedrich v. Berryhill, 874 F.3d 634, 643 (9th Cir. 2017) (ALJ erred by 21 “ignore[ing] other evidence showing the difficulties [claimant] faced in everyday life.”). 22 23 b. Jerry Boriskin, Ph.D. The ALJ found that Dr. Boriskin’s opinion also was “not supported by the claimant’s 24 capabilities during his exams.” AR 25. In support, she cited Dr. Boriskin’s treatment notes 25 stating that “claimant was reading a great deal and generally doing well” and that “he [had] 26 recently returned to the gym[] and had rational thought processes.” AR 25. This finding is not 27 supported by the record. 28 The statements in Dr. Boriskin’s treatment notes “must be read in context of the overall 9 United States District Court Northern District of California 1 diagnostic picture he draws.” Holohan v. Massanari, 246 F.3d 1195, 1205 (9th Cir. 2001). A few 2 positive observations do not render a medical professional’s diagnosis unsupported or inconsistent 3 with the objective medical evidence. See Smith v. Kijakazi, 14 F.4th 1108, 1115 (9th Cir. 2021) 4 (“Physician reports of improvement are not sufficient to undermine the repeated diagnosis of the 5 alleged mental health conditions.”) (cleaned up). While Dr. Boriskin documented occasional 6 improvements in C.D.’s condition, his notes also contain evidence supporting his opinion that 7 C.D. continued to suffer significant mental impairments. For example, in the January 19, 2016 8 treatment note where Dr. Boriskin indicated that C.D. was “doing well,” Dr. Boriskin also 9 observed that C.D. appeared tired and sad, was in a depressed mood, had limited insight and 10 judgment, and was experiencing “ongoing vague suicidal ideation, no plan or imminent threat at 11 this time.” AR 1165-66. Dr. Boriskin made similar observations in a March 15, 2016 treatment 12 note also cited by the ALJ. AR 1163-65. In that note, Dr. Boriskin reported a negative trend in 13 C.D.’s symptoms and described C.D.’s return to the gym as “corrective measure.” AR 1164 14 (“[C.D.] noted a decline in mood; he is becoming a bit more depressed with some obsessional 15 thinking and hypervigil[a]nce. He is aware that some of this may be associated with anniversary 16 phenomena as well as a bit of neur[a]sthenia in terms of being stay at home dad. He is taking 17 corrective measures and recently returned to the gym.”). Instead of considering Dr. Boriskin’s 18 treatment notes as a whole, the ALJ appears to have “cherry-picked” statements that support a 19 denial of benefits, while overlooking those statements that support Dr. Boriskin’s opinions. 20 Garrison v. Colvin, 759 F.3d 995, 1018 (9th Cir. 2014) (quoting Scott v. Astrue, 647 F.3d 734, 740 21 (7th Cir. 2011)). 22 The ALJ’s conclusion that Dr. Boriskin’s opinions are inconsistent with the medical 23 evidence also is not supported by substantial evidence. The ALJ cited a March 2015 appointment 24 where C.D. reported “doing better and [] engaging with others more.” AR 26. While Dr. 25 Boriskin’s notes from that session do indeed describe a “remarkable improvement,” later records 26 describe him “regress[ing]” after a “rougher few months.” AR 1184, 1222. “[T]wo or three 27 reports of improvement . . . without reference to other treatment records or any other explanation” 28 are not enough to conclude that a medical professional’s “considered conclusions about [a 10 1 claimant’s] overall prognosis merit[] little weight.” Garrison, 759 F.3d at 1014. “[T]he examples 2 an ALJ chooses ‘must in fact constitute examples of a broader development.’” Attmore v. Colvin, 3 827 F.3d 872, 877 (9th Cir. 2016) (quoting Garrison, 759 F.3d at 1018). The ALJ also cited a 4 June 2015 exam where “[C.D.] reported his mood was up and down [and] described being irritable 5 and having no patience with his children.” AR 26. She did not note that this was a VA claim 6 exam and that the examining psychologist concluded that C.D. “continues to meet DSM IV and 7 DSM V criteria for PTSD [and his] symptoms continue to be in the severe range with deficiencies 8 in most area[s].” AR 1190, 1199-1200. Thus, while some treatment notes reflect improvements, 9 the medical evidence as a whole does not indicate that C.D. sustained these improvements over 10 United States District Court Northern District of California 11 time. Nevertheless, the ALJ appears to have concluded that C.D.’s symptoms had improved 12 significantly by December of 2017, citing a note indicating that he “enjoyed the weekends cooking 13 and spending time with his family.” AR 26. In support, the ALJ cited the record from C.D’s 14 December 20, 2017 telehealth appointment with a dietitian, who asked C.D. about his “meal 15 pattern.” See AR 1091-93. There is no indication in the record that this dietitian attempted to 16 assess C.D.’s mental health or that her report concerned C.D.’s mental functioning, as opposed to 17 his eating habits. This evidence does not support the ALJ’s assessment that Dr. Boriskin’s 18 opinions are inconsistent with other evidence in the record. See Diedrich, 874 F.3d at 641 19 (orthopedist’s failure to mention claimant’s mental health symptoms “says little about the extent to 20 which [claimant] may in fact have been suffering from such symptoms”); L.L. v. Kijakazi, No. 20- 21 cv-07438-JCS, 2022 WL 2833972, at *12 (N.D. Cal. July 20, 2022) (ALJ erred in relying on 22 “‘cherry-picked’ observations regarding [claimant]’s presentation that were unrelated to the issue 23 for which [claimant] was being seen and examined.”). 24 25 26 In sum, the ALJ’s stated reasons for discounting Dr. Boriskin’s opinions as “not persuasive” are not supported by substantial evidence. 4. ALJ’s Independent Assessment 27 Having rejected all of the medical opinions regarding C.D.’s mental impairments in the 28 record as “not persuasive,” the ALJ appears to have relied upon her own lay assessment of the 11 United States District Court Northern District of California 1 limiting impact of C.D.’s mental and other impairments. This was improper. See Cox v. Kijakazi, 2 No. C 21-09850 WHA, 2023 WL 4188214, at *8 (N.D. Cal. June 23, 2023) (“The ALJ thus 3 appears to have drawn her own conclusions of claimant’s abilities from claimant’s daily activities, 4 and discounted the medical opinions divergent from those conclusions. In other words, the ALJ 5 substituted her own lay interpretation of the medical evidence contained in treatment records 6 without deference to that of the treating and examining physicians.”); Corvelo v. Kijakazi, No. C 7 20-01059 WHA, 2022 WL 1189885, at *5 (N.D. Cal. Apr. 21, 2022) (“[B]ecause the ALJ rejected 8 every medical opinion regarding mental impairments he erroneously based his conclusion on 9 claimant’s mental limitations solely on his own lay interpretation of the raw medical evidence 10 contained in claimant’s treatment records.”). If the ALJ believed the record contained insufficient 11 evidence regarding the severity of C.D.’s mental impairments, she could have developed the 12 record further; she was not free to simply substitute her own lay opinions for those of C.D.’s 13 treating providers. See Celaya v. Halter, 332 F.3d 1177, 1183 (9th Cir. 2003) (“The ALJ always 14 has a special duty to fully and fairly develop the record and to assure that the claimant’s interests 15 are considered even when the claimant is represented by counsel.”) (cleaned up). 16 B. 17 C.D. contends that the ALJ erred by failing to consider his 100% disability rating from the 18 19 VA Disability Rating VA. Dkt. No. 15 at 8. The Court disagrees. While older Ninth Circuit precedent directed ALJs to give “great weight” to VA disability 20 determinations, in 2017 the Social Security Administration revised its regulations regarding 21 “decisions by other government agencies.” Kitchen v. Kijakazi, 82 F.4th 732, 738 (9th Cir. 2023) 22 (quoting McCartey v. Massanari, 298 F.3d 1072, 1076 (9th Cir. 2002)); 20 C.F.R. §§ 404.1504, 23 404.1520b(c)(1). The new regulations, which apply to claims filed after March 27, 2017, state that 24 the decisions of other agencies are “neither valuable nor persuasive” and that “we will not provide 25 any analysis in our determination or decision about a decision made by any other governmental 26 agency or a nongovernmental entity about whether you are disabled, blind, employable, or entitled 27 to any benefits.” 20 C.F.R. §§ 404.1520b(c)(1), 404.1504. Under the new regulations, it was not 28 error for the ALJ to exclude C.D.’s VA disability rating from her analysis. See Kitchen, 82 F.4th 12 1 C.D.’s Subjective Testimony 2 C. 3 C.D. argues that the ALJ erred by failing to provide specific, clear and convincing reasons 4 for discounting his testimony about the intensity, persistence and limiting effects of his symptoms. 5 Dkt. No. 15 at 10. The Court agrees. 6 United States District Court Northern District of California at 739. 1. Summary of C.D.’s Testimony 7 At the hearing, C.D. testified that he had significant issues with his short-term and long- 8 term memory. AR 55 (“Q: If you went to the store without a list could you remember the things 9 that you might need? A: No, I wouldn’t, I wouldn’t even try.”); AR 58 (“My short-term recall 10 is[,] compared to when I was practicing law and [] felt good[,] very bad now.”); AR 59 (“I’ve lost 11 large chunks of my memory . . . The first couple years of [] my son’s life, [] I have no recollection 12 of.”). He testified that he relied on reminders on his phone and from his wife to perform everyday 13 tasks like showering or taking out the trash. AR 50-51, 61-62. 14 C.D. reported that he had difficulty motivating himself to complete tasks and found it hard 15 to focus enough to “get through books.” AR 53, 62. He also said that he “get[s] angry a lot” and 16 “limit[s his] exposure to other people” because he has “a hard time relating to [] people [] who 17 haven’t experienced what I have.” AR 56; see also AR 61 (“I just am very uncomfortable around 18 other people, especially people I’m not familiar with.”). He testified “there’s been periods where 19 my wife and I were considering separation because of [] my anger issues” and “I yell at the kids or 20 [am] not [] able to control myself.” AR 56. 21 C.D. testified that he had taken “many medications” for his conditions, but “they didn’t 22 help [] to the extent I would [] expect them to and they added additional problems on top.” AR 23 57. He also testified that his wife, a pharmacist, “helped me a lot [in] monitoring the medications” 24 and “was instrumental in helping me get off some of these [medications] that had [] certain side 25 effects.” AR 57. 26 2. 27 28 Legal Standard An ALJ is not “required to believe every allegation” of impairment. Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1106 (9th Cir. 2014). In assessing a claimant’s subjective 13 1 testimony, an ALJ conducts a two-step analysis. First, “the claimant must produce objective 2 medical evidence of an underlying impairment or impairments that could reasonably be expected 3 to produce some degree of symptom.” Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) 4 (cleaned up). If the claimant does so, and there is no affirmative evidence of malingering, then the 5 ALJ can reject the claimant’s testimony as to the severity of the symptoms “only by offering 6 specific, clear and convincing reasons for doing so.” Id. That is, the ALJ must make an 7 assessment “with findings sufficiently specific to permit the court to conclude that the ALJ did not 8 arbitrarily discredit claimant’s testimony.” Id. A reviewing court is “constrained to review the 9 reasons the ALJ asserts.” Burrell v. Colvin, 775 F.3d 1133, 1138 (9th Cir. 2014) (quoting Connett 10 v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003)). United States District Court Northern District of California 11 12 3. Application The ALJ concluded that C.D.’s medically determinable impairments could reasonably be 13 expected to cause the symptoms he described, but his “statements concerning the intensity, 14 persistence and limiting effects of these symptoms [were] not entirely consistent with the medical 15 evidence and other evidence in the record.” AR 21. She supported this conclusion with citations 16 to several pieces or categories of evidence in the record. See AR 21-24. 17 As the Court will discuss below, the evidence cited by the ALJ does not amount to 18 specific, clear and convincing reasons, supported by substantial evidence, to discount C.D.’s 19 testimony. 20 21 a. Reported activities In discounting C.D.’s testimony, the ALJ pointed to instances where C.D. “considered 22 teaching some courses” and “had plans to start working on writing his novel” as evidence that “his 23 symptoms were not as severe as he initially alleged.” AR 23 (citing AR 1152, 1168). 24 Inconsistency between a claimant’s testimony and his reported activities is a valid reason to 25 discount his testimony. Burrell, 775 F.3d at 1137-38. But here, there is no inconsistency. The 26 fact that C.D. hoped or planned to become more active is not inconsistent with his reported 27 symptoms. See Attmore, 827 F.3d at 878 (fact that claimant “discussed going back to school . . . 28 was not itself a sign of improvement—especially because [the claimant did not] follow through 14 1 with her plans”). The ALJ also referred to an instance where C.D. stated that he was overseeing the 2 3 remodeling of his kitchen. AR 23 (citing AR 1171). However, there is no information in the 4 record about what this activity entailed, making it impossible for the ALJ to conclude that 5 overseeing a kitchen remodel conflicted with the limitations C.D. described. See Trevizo v. 6 Berryhill, 871 F.3d 664, 682 (9th Cir. 2017) (ALJ erred by discounting claimant’s testimony based 7 on alleged conflict with activities about which there was “almost no information in the record”). Finally, the ALJ cited C.D.’s role as the primary caregiver for his two sons as a stay-at- 8 United States District Court Northern District of California 9 home parent as evidence that his symptoms were not as severe as he claimed. AR 23 (citing AR 10 1164, 1171). But “the mere fact that [C.D.] care[d] for small children does not constitute an 11 adequately specific conflict with [his] reported limitations.” Trevizo, 871 F.3d at 682. “Many 12 home activities are not easily transferable to what may be the more grueling environment of the 13 workplace, where it might be impossible to periodically rest or take medication.” Id. (quoting 14 Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)). C.D.’s hearing testimony regarding his 15 childcare obligations does not suggest that it was comparable to full time work. He testified that 16 he cared for his children in some ways, like “try[ing]” to help them with schoolwork, preparing 17 them instant ramen and cereal, and participating in household chores with them. AR 50-52. 18 However, C.D. also said that he “spend[s] a lot of time in [his] room” and that “my boys are very 19 self-sufficient and very understanding and they know that—you know, [] leave dad alone.” AR 20 50, 60. 21 b. Improved symptoms 22 The ALJ cited several instances in C.D.’s medical records where he reported improvement 23 in his symptoms. AR 23 (citing AR 1165, 1177, 1221). However, these records “must be viewed 24 in light of the overall diagnostic record.” Trevizo, 871 F.3d at 680 (quoting Ghanim, 763 F.3d at 25 1164). “Reports of improvement in the context of mental health issues must be interpreted with an 26 understanding of the patient’s overall well-being and the nature of her symptoms.” Garrison, 759 27 F.3d at 1017 (cleaned up). While symptoms may “wax and wane” or “subside during treatment,” 28 Wellington v. Berryhill, 878 F.3d 867, 876 (9th Cir. 2017), “it is error for an ALJ to pick out a few 15 1 isolated instances of improvement over a period of months or years and to treat them as a basis for 2 concluding a claimant is capable of working.” Garrison, 759 F.3d at 1017. 3 4 records fit into the “overall diagnostic record.” Ghanim, 763 F.3d at 1164. For example, the ALJ 5 relied on notes from a March 5, 2015 therapy session in which Dr. Boriskin described C.D. as 6 engaging with others more and doing “dramatically better,” but also noted that he was still dealing 7 with a “marriage crisis” and had a “verbal outburst” at his son. AR 1221-22. As discussed above, 8 the ALJ “cherry-picked” Dr. Boriskin’s positive characterizations of C.D., while overlooking his 9 observations about C.D.’s impairments. Ghanim, 763 F.3d at 1164. 10 United States District Court Northern District of California Here, the ALJ failed to consider how the improvements referenced in C.D.’s medical The ALJ also did not consider how these reports of improvement fit into the overall picture 11 of C.D.’s health. See Garrison, 759 F.3d at 1017 (“[I]mproved functioning while being treated 12 and while limiting environmental stressors does not always mean that a claimant can function 13 effectively in a workplace.”); Holohan, 246 F.3d at 1205 (“That a person who suffers from severe 14 panic attacks, anxiety, and depression makes some improvement does not mean that the person’s 15 impairments no longer seriously affect her ability to function in a workplace.”). Moreover, it is 16 not clear from the record that C.D.’s improvements were sustained and significant, such that he 17 could engage in gainful employment. See Attmore, 827 F.3d at 878. 18 c. Mental status exams 19 The ALJ also described C.D.’s normal performance on mental status exams as weighing 20 against the credibility of his reported symptoms. AR 23-24 (citing AR 1083-84, 1152-53, 1158- 21 60). However, the results of C.D.’s mental status exams have little relevance to most of C.D.’s 22 symptoms of PTSD and depression. See Ghanim, 763 F.3d at 1164 (“observations of cognitive 23 functioning during therapy sessions do not contradict [a claimant’s] reported symptoms of 24 depression and social anxiety.”). Additionally, some of the treatment notes cited by the ALJ 25 confirm C.D.’s reports of his symptoms. E.g. AR 1159-60 (“Reports feeling more irritable and 26 down with decreased energy and motivation. No clear stressor but possibly anniversary reaction 27 to when he went inpatient. Sleep and nightmares at baseline. More hypervigilance. . . . 28 ASSESSMENT: Patient with PTSD is experiencing an exacerbation.”). 16 d. 1 2 The ALJ also discounted C.D.’s testimony regarding his symptoms because it appeared 3 “they were well controlled with regular medication and treatment.” AR 23. At the hearing, C.D. 4 testified that he had “been on many medications,” but “gave up on them” because “[t]hey didn’t 5 help . . . to the extent that I would expect them to and they added additional problems on top.” 6 AR 57. The ALJ believed that this testimony was undercut by the fact that “Dr. Leyba [C.D.’s 7 psychiatrist] noted that the claimant’s medication was very effective against the claimant’s mood 8 swings, despite the side effects from his medication.” AR 23 (citing AR 1135). 9 United States District Court Northern District of California Response to medications The ALJ has somewhat misconstrued the record here. The source she cited is a December 10 19, 2016 email that C.D. sent to Dr. Leyba, in which he asked to “talk to you at your first 11 availability about transitioning from carbamazepine [a mood stabilizer] to a drug with fewer side 12 effects.” AR 1135. C.D. added that “[m]y biggest concern is that aside from the side effects, it 13 has been very effective for me in controlling my racing thoughts, mood swings, despair, etc.” AR 14 1135. In another email sent a few days later, C.D. asked Dr. Leyba how quickly he could taper off 15 the medication, stating “How much and how fast is safe? I’m pretty nervous about it, but like I 16 said, I need to do something.” AR 1134. This evidence is not inconsistent with C.D.’s hearing 17 testimony that his medications had significant side effects, even if the record reflects that they also 18 provided benefits. 19 20 e. Activities of daily living The ALJ found that C.D’s reported symptoms were inconsistent with his activities of daily 21 living, which were “suggestive of an individual who is capable of a certain level of mental 22 prowess, physical capabilities, and overall motivation necessary for certain types of work.” AR 23 24. The only examples she provided were that “[i]n January 2016, the claimant reported he was 24 reading a great deal” and that “in December 2017, [he] noted he liked to cook for himself, his 25 family during the weekends, and attend jujitsu classes regularly.” AR 24. However, as discussed 26 above, these activities are not necessarily inconsistent with C.D.’s statements about his 27 impairments or inconsistent with an inability to function in a workplace environment. Garrison, 28 759 F.3d at 1016 (“[I]impairments that would unquestionably preclude work and all the pressures 17 1 of a workplace environment will often be consistent with doing more than merely resting in bed 2 all day.”). Because the evidence regarding C.D.’s daily activities “neither contradicts his 3 testimony nor meets the threshold for full-time work,” it was not an adequate basis for the ALJ to 4 discredit C.D.’s testimony. Smith, 14 F.4th at 1114. United States District Court Northern District of California 5 f. C.D.’s appearance at hearing 6 The ALJ noted that “[a]t the hearing, the claimant was able to sufficiently relay 7 information about his medical treatment, past relevant work, and activities of daily living.” AR 8 24. However, the hearing was conducted by telephone, so the ALJ was unable to see C.D. AR 38. 9 The hearing transcript also reflects that at one point C.D. paused while answering a question and 10 reported that he was “shaking.” AR 46-47. The ALJ does not comment on this in her assessment 11 of C.D.’s conduct during the hearing. *** 12 13 14 In sum, the ALJ’s bases for discounting C.D.’s subjective testimony are not supported by substantial evidence in the record. 15 D. 16 C.D. argues that the ALJ erred by determining that he did not meet or equal the criteria for Listing 12.15 17 any listed impairments, and particularly that he did not meet or equal the criteria for listing 12.15 18 (Trauma- and stressor-related disorders). Dkt. No. 15 at 9; Dkt. No. 18 at 1-3. The Court agrees. 19 In determining whether a claimant is disabled, the ALJ is required to consider whether the 20 claimant’s impairments meet or medically equal an impairment listed in 20 C.F.R. Part 404, 21 Subpart P, Appendix 1. 20 C.F.R. § 404.1520(a)(4)(iii). If the ALJ finds the claimant’s 22 impairments meet or medically equal a listed impairment, the claimant is conclusively presumed 23 disabled without consideration of the claimant’s age, education, or work experience. Id. 24 § 404.1520(d). 25 For mental impairments, in order to determine whether the claimant’s impairments meet or 26 equal a listed impairment, the ALJ must rate the severity of the claimant’s mental limitations in 27 four broad categories of work-related mental functioning known as the Paragraph B criteria: (1) 28 understanding, remembering, and applying information; (2) interacting with others; (3) 18 1 concentrating, persisting, and maintaining pace; and (4) adapting and managing oneself. Id. §§ 2 404.1520a(b)(2), (c)(3). The claimant’s impairments in these four categories must be rated on a 3 five-point scale: none, mild, moderate, marked, or extreme. Id. § 404.1520a(c)(4). In order to 4 meet or equal the severity of a listed impairment, the claimant must have an “extreme” limitation 5 in one of the four categories, or “marked” limitations in two of the four categories. 20 C.F.R. Pt. 6 404, Subpt. P, App. 1, § 12.00.A.2.b. Where the ALJ determines that a claimant fails to satisfy the Paragraph B criteria, some United States District Court Northern District of California 7 8 mental impairments also have alternative Paragraph C criteria that can be met instead of the 9 Paragraph B criteria. See id. § 12.00.A.2.c. To satisfy Paragraph C, a mental disorder must be 10 “serious and persistent,” meaning that: (1) there is a medically documented history of a listed 11 disorder over a period of at least two years; (2) the claimant “rel[ies,] on an ongoing basis, upon 12 medical treatment, mental health therapy, psychosocial support(s), or a highly structured 13 setting(s), to diminish the symptoms and signs of [their] mental disorder;” and (3) that the 14 claimant has “achieved only marginal adjustment.” Id. §§ 12.00.G.2.a-c; see also Craig N. v. 15 Saul, No. 19-CV-05235-TSH, 2020 WL 4284845, at *21 (N.D. Cal. July 27, 2020) (discussing 16 Paragraph C).8 With respect to the ALJ’s 12.15 listing determination, C.D. argues that the ALJ erred in 17 18 assessing the severity of his mental health conditions. Dkt. No. 15 at 9. The Court agrees that the 19 ALJ’s underlying assessments of the evidence—specifically, the opinions of C.D.’s treating 20 providers and his own subjective testimony—are not supported by substantial evidence. These 21 errors impact the ALJ’s step-three determination regarding whether C.D.’s impairments meet or 22 medically equal a listed impairment. See, e.g., T.J. v. Saul, No. 19-cv-06516-LB, 2020 WL 23 7664464, at *8 (N.D. Cal. Dec. 21, 2020). 24 25 26 27 28 8 Prior to analyzing the Paragraph B and C criteria, the ALJ must find that the claimant exhibits the medical criteria present in Paragraph A of the listing. See 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.00.A.2.a. The ALJ did not make an express finding in C.D.’s case, but the Court assumes this finding is implied by her determination that C.D. had the severe impairments of PTSD and major depressive disorder. See AR 18. 19 1 E. 2 C.D. argues that the ALJ’s RFC finding was not supported by substantial evidence in the 3 record. Dkt. No. 15 at 15-17. The Court agrees. An ALJ assesses a claimant’s RFC “based on all the relevant evidence in [the] case 4 5 record.” 20 C.F.R. § 404.1545(a)(1). The ALJ must consider both the medical evidence and 6 “descriptions and observations of [the claimant’s] limitations from [the claimant’s] impairment(s), 7 including limitations that result from [the claimant’s] symptoms, such as pain, provided by [the 8 claimant, family, friends, or other people.]” Id. § 404.1545(a)(3). Here, because the ALJ erred in assessing the opinions of Mr. Cleveland and Dr. Boriskin 9 United States District Court Northern District of California Residual Functional Capacity 10 and in assessing C.D.’s subjective testimony, her RFC finding is not supported by substantial 11 evidence in the record. While the ALJ’s RFC incorporated some limitations based on C.D.’s 12 testimony regarding his symptoms, the ALJ did not fully credit his testimony, and the RFC does 13 not reflect all of the limitations he claims to have. AR 21-24. In these circumstances, the Court 14 concludes that the ALJ erred in her assessment of C.D.’s RFC. 15 IV. 16 DISPOSITION C.D. asks the Court to remand for payment of benefits. Dkt. No. 15 at 18; Dkt. No. 18 at 17 6-7. “An automatic award of benefits in a disability benefits case is a rare and prophylactic 18 exception to the well-established ordinary remand rule.” Leon v. Berryhill, 880 F.3d 1041, 1044 19 (9th Cir. 2017) (cleaned up). The Court may remand for an immediate award of benefits only 20 where (1) the ALJ has failed to provide legally sufficient reasons for rejecting evidence, whether 21 claimant testimony or medical evidence; (2) there are no outstanding issues that must be resolved 22 before a determination of disability can be made; and (3) it is clear from the record that the ALJ 23 would be required to find the claimant disabled were such evidence credited. Id. at 1045. Even 24 when all three conditions are satisfied and the evidence in question is credited as true, it is within 25 the district court’s discretion whether to make a direct award of benefits or to remand for further 26 proceedings when the record as a whole creates serious doubt as to disability. Id. 27 This standard is not satisfied here. A final determination cannot be made absent a proper 28 assessment of the medical opinions and testimony in the record. As discussed above, on remand 20 1 the ALJ must reconsider: (1) the persuasiveness of Mr. Cleveland’s and Dr. Boriskin’s opinions; 2 (2) the credibility of C.D.’s subjective testimony; (3) whether C.D. meets or equals a listed 3 impairment; and (4) C.D.’s RFC. Additionally, the ALJ may wish to consider whether further 4 development of the record is warranted. 5 V. Based on the foregoing, C.D.’s motion for summary judgment is granted, the 6 7 Commissioner’s motion for summary judgment is denied, and this matter is remanded for further 8 proceedings consistent with this order. The Clerk shall enter judgment accordingly and close this 9 file. 10 11 United States District Court Northern District of California CONCLUSION IT IS SO ORDERED. Dated: January 3, 2024 12 13 VIRGINIA K. DEMARCHI United States Magistrate Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 21

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