Isaac Tyronne Chrishon, Jr. v. Commissioner of Social Security, No. 2:2018cv01944 - Document 27 (C.D. Cal. 2019)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Karen E. Scott. IT IS ORDERED that judgment shall be entered REVERSING the decision of the Commissioner denying benefits and REMANDING for further administrative proceedings consistent with this opinion. (See document for details.) (sbou)
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Isaac Tyronne Chrishon, Jr. v. Commissioner of Social Security Doc. 27 1 O 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 ISAAC TYRONE C., JR., 12 13 14 15 Case No. 2:18-CV-01944-KES Plaintiff, MEMORANDUM OPINION AND ORDER v. NANCY A. BERRYHILL, Acting Commissioner of Social Security,1 Defendant. 16 17 18 I. 19 ISSUES PRESENTED 20 Plaintiff Isaac Tyrone C., Jr. (“Plaintiff”) appeals the denial of his 21 application for disability insurance benefits (“DIB”) based on the Administrative 22 Record (“AR”). His appeal presents the following two issues: 23 Issue One: Whether Plaintiff’s work as laundromat attendant constitutes 24 substantial gainful activity (“SGA”) and thus “past relevant work” as defined in 20 25 C.F.R. § 404.1560(b)(1). 26 Effective November 17, 2017, Ms. Berryhill’s new title is “Deputy Commissioner for Operations, performing the duties and functions not reserved to the Commissioner of Social Security.” 27 28 1 1 Dockets.Justia.com 1 2 3 Issue Two: Whether the Appeals Council gave legally sufficient reasons for rejecting the opinions of Dr. Frederick Thomas. Joint Stipulation (“JS”) at 5, 12. 4 II. 5 SUMMARY OF ADMINISTRATIVE PROCEEDINGS 6 7 8 9 Pre-Hearing Proceedings. In August 2015, Plaintiff filed a DIB application alleging disability starting on January 2, 2014, due to high blood pressure and psoriasis. AR 35, 105. Plaintiff completed a Work History Report describing his past work as a 10 laundromat attendant.2 AR 127-29. Per that report, he was a laundromat worker 11 from 2000 to 2014. AR 127. His job duties included wiping down the machines 12 and dumping the trash. AR 129. The heaviest weight he lifted was less than 10 13 pounds. Id. He worked six hours a day, six days per week and spent the workday 14 walking or standing. AR 129. 15 The agency reviewer found that Plaintiff had no severe medically 16 determinable impairments (“MDIs”) and was therefore not disabled. AR 39-40. 17 Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). 18 19 The Hearing. ALJ David J. Agatstein conducted the hearing on June 29, 2017. AR 20-34. 20 Concerning his work at the laundromat, Plaintiff testified that he stopped working 21 because the company went out of business, after which he received unemployment 22 benefits. AR 24. He testified that he was presently unable to work due to left 23 shoulder pain and a learning disability. AR 25. 24 A medical expert (“ME”) Dr. Savage testified that Plaintiff’s MDIs were 25 26 27 28 Plaintiff did not identify any other prior work. In contrast, Plaintiff’s cousin reported that Plaintiff “has a history of painting houses for 10 years.” AR 269-70. 2 2 1 dermatitis, hypertension, left-side Sprengel’s deformity3 post successful surgical 2 repair in 1962, and “intelligence disability,” noting that Plaintiff’s IQ was 71. AR 3 26. Dr. Savage testified that none of Plaintiff’s MDIs met or equaled a listed 4 impairment, then qualified his answer regarding Plaintiff’s mental disability by 5 saying, “[T]hat’s not my field and I would defer certainly to psychologic expert 6 opinion.” Id. Dr. Savage opined concerning Plaintiff’s residual functional 7 capacity (“RFC”) that Plaintiff could generally do “light” work activity as defined 8 in 20 C.F.R. § 404.1567(b). AR 27. 9 Vocational expert (“VE”) Mr. Stock testified next. AR 27. He classified 10 Plaintiff’s laundromat work as Dictionary of Occupational Titles (“DOT”) code 11 361.685-018, which is medium work with a specific vocational preparation 12 (“SVP”) of 2. AR 28. He testified that Plaintiff had actually performed the job as 13 light work per his Work History Report. Id. VE Stock also testified that someone 14 with the RFC described by ME Savage could perform Plaintiff’s past work as he 15 actually performed it. Id. Finally, the VE testified that if someone were limited to 16 simple, repetitive tasks, that person could also do Plaintiff’s past work, because an 17 SVP rating of 2 is consistent with simple, repetitive tasks. AR 29. 18 In response to this testimony concerning Plaintiff’s past work, Plaintiff’s 19 counsel stated, “I think I was going to have his cousin4 testify that he gets a lot – he 20 got a lot of accommodations – from the laundromat. [] It was like a sheltered, it 21 was like a friend of his who let him have the job.” AR 30. 22 The ALJ then suggested that Dr. Peterson testify as a second ME with 23 expertise in mental health. Id. When the ALJ asked Dr. Peterson if a person with 24 25 26 27 28 Sprengel’s deformity is a rare congenital skeletal abnormality where a person has one shoulder blade that sits higher on the back than the other. See https://en.wikipedia.org/wiki/Sprengel%27s_deformity. 3 4 Plaintiff lives with his cousin, David Washington. AR 268-69. 3 1 a full-scale IQ score of 71 could perform simple, repetitive tasks, he responded that 2 he would like to see the IQ subtest scores and other data before answering. AR 31. 3 The ALJ then rephrased the question, asking “If you were told about a hypothetical 4 individual who … worked at an SVP 2 job for many years … and was tested at that 5 IQ, would it be any reason to think that perhaps in a normal competitive setting the 6 individual would not be able to do that work?” Id. Dr. Peterson answered, “Under 7 those circumstances, because we have some adaptive functioning history, I would 8 suggest then that it wouldn’t prevent someone from doing simple, repetitive tasks 9 given the work history.” Id. 10 The ALJ’s Decision. 11 The ALJ issued a decision awarding benefits. AR 15-19. He found that 12 Plaintiff suffered from severe MDIs consisting of scoliosis, dermatitis, 13 hypertension, residuals of left shoulder deformity and repair, and mild intellectual 14 disability. AR 17. He found that these impairments did not meet or equal any 15 listed impairments. Id. Concerning Plaintiff’s intellectual disability, he found that 16 it caused (1) “moderate” limitations on understanding and applying information 17 and maintaining concentration, persistence, or pace, (2) mild limitations on self- 18 management, and (3) no limitations on social interactions. Id. 19 Considering these MDIs, the ALJ assessed an RFC for sedentary work 20 limited to simple, repetitive tasks. Id. The ALJ found that Plaintiff could not 21 perform his past work at the laundromat, because even as he actually performed it 22 (i.e., light work), it exceeded his RFC for sedentary work. AR 18. The ALJ 23 concluded that there was no other work Plaintiff could do in the national economy. 24 Id. 25 26 Appeals Council Proceedings. On August 28, 2017, the Appeals Council sent Plaintiff a letter notifying 27 him that it had reviewed the ALJ’s decision and found it unsupported by 28 substantial evidence. AR 100. It advised, “We plan to find that you are capable of 4 1 performing your past relevant work ….” AR 101. It explained that Plaintiff’s 2 earnings from the laundromat between 2000 and 2014 were “above the 3 presumptive limit for substantial gainful activity” and that this employment had 4 lasted “long enough to learn the job.” AR 102. The Appeals Council invited 5 Plaintiff to submit additional evidence within 25 days. Id. 6 The Appeals Council issued an unfavorable decision on January 5, 2018. 7 AR 4-7. The Appeals Council noted that in response to its August 28, 2017 letter, 8 Plaintiff had submitted a “statement …regarding the claimant’s recent earnings as 9 of October 18, 2017,” which it considered. AR 4; see also AR 170 (stating that 10 Plaintiff is no longer receiving $300 “as day” [sic]). The Appeals Council did not 11 note any other new evidence that Plaintiff submitted concerning his work at the 12 laundromat. Id. 13 The Appeals Council adopted the ALJ’s findings at steps one, two, and three 14 of the sequential evaluation process. AR 4. At step four, however, the Appeals 15 Council concluded that the ALJ’s “sedentary” RFC assessment lacked support by 16 substantial evidence. AR 5. The Appeals Council discussed the evidence of 17 Plaintiff’s MDIs and why, in its view, those impairments limited him to light work, 18 not sedentary work. Id. The Appeals Council gave “significant weight” to the 19 opinions of ME Savage. Id. The Appeals Council also stated, “we adopt the 20 findings and rationale pertaining to his mental impairments and mental limitations 21 as found in the hearing decision,” apparently referring to the testimony of ME 22 Peterson. Id. 23 24 The Appeals Council next found that Plaintiff’s work at the laundromat was SGA because his earnings were above the presumptive limit.5 Based on the 25 26 27 28 See 20 C.F.R. § 404.1574(b)(2)(ii); Tables of SGA Earnings Guidelines and Effective Dates Based on Year of Work Activity, Social Security Administration Program Operation Manual System (“POMS”) § DI 10501.015(B). 5 5 1 testimony of VE Stock, the Appeals Council found that Plaintiff (as someone 2 capable of light work but limited to simple, repetitive tasks) could perform that 3 work as Plaintiff actually performed it. AR 6. 4 III. 5 STANDARD OF REVIEW 6 A district court may review the Commissioner’s decision to deny benefits. 7 The Commissioner’s findings and decision should be upheld if they are free from 8 legal error and are supported by substantial evidence based on the record as a 9 whole. 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra 10 v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial evidence means such 11 relevant evidence as a reasonable person might accept as adequate to support a 12 conclusion. Richardson, 402 U.S. at 401; Lingenfelter v. Astrue, 504 F.3d 1028, 13 1035 (9th Cir. 2007). It is more than a scintilla, but less than a preponderance. 14 Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Comm’r of SSA, 466 F.3d 880, 15 882 (9th Cir. 2006)). To determine whether substantial evidence supports a 16 finding, the reviewing court “must review the administrative record as a whole, 17 weighing both the evidence that supports and the evidence that detracts from the 18 Commissioner’s conclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 19 1998). “If the evidence can reasonably support either affirming or reversing,” the 20 reviewing court “may not substitute its judgment” for that of the Commissioner. 21 Id. at 720-21. 22 “A decision of the [Commissioner] will not be reversed for errors that are 23 harmless.” Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). Generally, an 24 error is harmless if it either “occurred during a procedure or step the 25 [Commissioner] was not required to perform,” or if it “was inconsequential to the 26 ultimate nondisability determination.” Stout v. Comm’r of SSA, 454 F.3d 1050, 27 1055 (9th Cir. 2006). 28 Within 60 days after the date of an ALJ’s decision, “the Appeals Council 6 1 may decide on its own motion to review the action that was taken.” 20 C.F.R. 2 § 404.969(a). The Appeals Council has authority to review the merits of the ALJ’s 3 determination of disability and is “not required to adopt the particular findings of 4 the ALJ even if those findings were supported by substantial evidence.” Taylor, 5 765 F.2d at 875. A decision is not final until the Appeals Council either denies 6 review or assumes jurisdiction and issues its own decision. 20 C.F.R. § 404.955. 7 Where the Appeals Council vacates the ALJ’s decision and issues its own decision, 8 the Appeals Council's decision becomes the Commissioner’s final decision. 20 9 C.F.R. §§ 404.969, 404.979. On appeal, the task of the district court is to “review 10 the decision of the Appeals Council under the substantial evidence standard, not 11 the decision of the ALJ.” Howard v. Heckler, 782 F.2d 1484, 1487 (9th Cir. 12 1986). 13 IV. 14 DISCUSSION 15 16 17 ISSUE ONE: Whether Plaintiff’s Laundromat Work Was SGA. 1. The Definitions of Past Relevant Work and SGA. At step four, claimants have the burden to show that they are no longer able 18 to perform their past relevant work. Pinto v. Massanari, 249 F.3d 840, 844 (9th 19 Cir. 2001) (citations omitted); 20 C.F.R. § 404.1520(e). The Commissioner may 20 deny benefits at step four if the claimant has the RFC to perform either a particular 21 past relevant job as “actually performed,” or the same kind of work as “generally” 22 performed in the national economy. Pinto, 249 F.3d at 844-45 (citing Social 23 Security Ruling (“SSR”) 82-61); SSR 82-62 at *3. Social Security regulations 24 define past relevant work as “work that [a claimant has] done within the past 15 25 years, that was substantial gainful activity, and that lasted long enough for [the 26 claimant] to learn it.” 20 C.F.R. §§ 404.1560(b)(1), 404.1565(a). 27 28 “Substantial gainful activity is work done for pay or profit that involves significant mental or physical activities.” Lewis v. Apfel, 236 F.3d 503, 515 (9th 7 1 Cir. 2001). The primary factor used to determine whether a claimant was engaged 2 in SGA at a particular job is the amount of earnings a claimant derived from the 3 job. Le v. Astrue, 540 F. Supp. 2d 1144, 1149 (C.D. Cal. 2008). “There is a 4 rebuttable presumption that the employee either was or was not engaged in SGA if 5 his or her average monthly earnings are above or below a certain amount 6 established by the Commissioner’s Earnings Guidelines.” Id.; Lewis, 236 F.3d at 7 515 (“Earnings can be a presumptive, but not conclusive, sign of whether a job is 8 substantial gainful activity.”). A claimant may rebut the presumption that he was 9 engaged in SGA at a prior job by presenting evidence that he was employed under 10 “special conditions” which “[took] into account [his] impairment”—for example, 11 the claimant “required and received special assistance from other employees,” the 12 claimant was “allowed to work irregular hours or take frequent rest periods,” or the 13 claimant was permitted to work despite his impairments due to a family 14 relationship. 20 C.F.R. § 404.1573(c). 15 Thus, the concept of substantial gainful activity involves the amount of 16 compensation and the substantiality and gainfulness of the activity itself. Keyes v. 17 Sullivan, 894 F.2d 1053, 1056 (9th Cir. 1990). “The mere existence of earnings 18 over the statutory minimum is not dispositive.” Id. Consistent with this, the Social 19 Security Act describes sheltered work as work “done under special conditions,” 20 including simple tasks under close and continuous supervision, or where the 21 employer pays more for the work than the value of the work that is performed, in 22 effect subsidizing the work. 20 C.F.R. §§ 404.1573, 404.1574(a)(2). “The 23 claimant may rebut a presumption based on earnings with evidence of his inability 24 to … perform the job well, without special assistance, or for only brief periods of 25 time.” Keyes, 894 F.2d at 1056. Among the factors to be considered are “how 26 well the person is able to perform the work” and “special conditions under which 27 the work is performed.” Id. The regulations provide in pertinent part: 28 We consider how well you do your work when we determine whether 8 1 or not you are doing substantial gainful activity. If you do your work 2 satisfactorily, this may show that you are working at the substantial 3 gainful activity level. If you are unable, because of your 4 impairments, to do ordinary or simple tasks satisfactorily without 5 more supervision or assistance than is usually given other people 6 doing similar work, this may show that you are not working at the 7 substantial gainful activity level. If you are doing work that involves 8 minimal duties that make little or no demands on you and that are of 9 little or no use to your employer, or to the operation of a business if 10 you are self-employed, this does not show that you are working at the 11 substantial gainful activity level. 12 20 C.F.R. § 404.1573(b). The regulations further provide that work performed 13 under special circumstances might not be considered substantial gainful activity. 14 20 C.F.R. § 404.1573(c). Among factors that may be considered in making this 15 determination are situations in which: 16 (1) You required and received special assistance from other employees 17 in performing your work; 18 (2) You were allowed to work irregular hours or take frequent rest 19 periods; 20 (3) You were provided with special equipment or were assigned work 21 especially suited to your impairment; 22 (4) You were able to work only because of specially arranged 23 circumstances, for example, other persons helped you prepare for or 24 get to and from your work; 25 (5) You were permitted to work at a lower standard of productivity or 26 efficiency than other employees; or 27 (6) You were given the opportunity to work despite your impairment 28 because of family relationship, past association with your employer, or 9 1 2 your employer's concern for your welfare. 20 C.F.R. § 404.1573(c). 2. Analysis of Claimed Error. 3 4 Per the above-cited authorities, Plaintiff’s laundromat work qualifies as past 5 relevant work if (1) it was done within the last 15 years, (2) lasted long enough for 6 the Plaintiff to learn it, and (3) was substantial gainful activity. 20 C.F.R. 7 § 404.1565. 8 Elements (1) and (2) are undisputed. Regarding element (3), Plaintiff first 9 argues that the ALJ erred by refusing to allow Plaintiff’s cousin to testify. (JS at 10 10 [“It cannot be Plaintiff’s fault that the ALJ refused to take testimony from 11 Plaintiff’s cousin, who was present and willing to testify.”] citing AR 30.) The 12 AR, however, does not support this characterization. Plaintiff’s counsel merely 13 stated, “I think I was going to have his cousin testify ….” AR 30. Plaintiff’s 14 counsel did not directly ask to call the cousin as a witness, and the ALJ never 15 refused that request (at least not on the record). Id. In any event, none of the 16 discussion at AR 30 explains why Plaintiff’s counsel did not (1) question Plaintiff 17 at the hearing about the circumstances of his prior work, or (2) submit a declaration 18 from Plaintiff or his cousin describing why the laundromat work was sheltered 19 after the Appeals Council alerted Plaintiff of its intended ruling and solicited new 20 evidence. 21 Plaintiff next argues that the record is not adequate to permit consideration 22 of the factors that inform whether a past job qualifies as SGA, requiring remand. 23 (JS at 6.) Defendant responds that since Plaintiff still bears the burden of proof at 24 step four of the sequential evaluation process, any lack of evidence that Plaintiff’s 25 laundromat work was sheltered justifies denial of benefits, not remand. (JS at 9.) 26 Defendant is correct. As described above, Plaintiff had opportunities to present 27 evidence rebutting the presumption of SGA established by his earnings, but he 28 failed to do so. 10 1 2 3 For these reasons, Plaintiff has failed to show legal error in the Appeals Council’s step four finding. ISSUE TWO: Evaluation of the Medical Evidence. 4 1. The Special Technique for Evaluating Mental Impairments. 5 To determine the severity of mental MDIs at step two in the sequential 6 evaluation process, the ALJ must consider how well the claimant functions in four 7 areas: (1) understanding, remembering, or applying information; (2) interacting 8 with others; (3) concentrating, persisting, or maintaining pace; and (4) adapting or 9 managing oneself. 20 C.F.R. § 404.1520a(c)(3). A claimant with only “none” or 10 “mild” limitations in these areas does not have a severe mental impairment. 20 11 C.F.R. § 404.1520a(d)(1). 12 If a claimant has a severe mental impairment, then the ALJ must determine 13 if it meets or is equivalent in severity to a listed mental disorder. 20 C.F.R. 14 § 404.1520a(d)(2). This is done “by comparing the medical findings about your 15 impairment(s) and the rating of the degree of functional limitation to the criteria of 16 the appropriate listed mental disorder. We will record the presence or absence of 17 the criteria and the rating of the degree of functional limitation … in the decision at 18 the administrative law judge hearing and Appeals Council levels (in cases in which 19 the Appeals Council issues a decision).” Id. 20 The regulations require that ALJs and the Appeals Council document their 21 application of this special technique in certain ways. 20 C.F.R. § 404.1520a(e). 22 Specifically, “the written decision must incorporate the pertinent findings and 23 conclusions based on the technique. The decision must show the significant 24 history, including examination and laboratory findings, and the functional 25 limitations that were considered in reaching a conclusion about the severity of the 26 mental impairment(s). The decision must include a specific finding as to the 27 degree of limitation in each of the functional areas described in paragraph (c) of 28 this section.” 20 C.F.R. § 404.1520a(e)(4). 11 1 2. Medical Evidence Regarding Plaintiff’s Mental Impairments. 2 On September 25, 2015, Dr. Frederick Thomas completed a Mental 3 Impairment Questionnaire indicating that he had started to treat Plaintiff earlier 4 that month. AR 258-61. The Questionnaire defined a “marked” limitation as one 5 that prevents an individual from “generally perform[ing] satisfactorily.” AR 258. 6 Dr. Thomas opined that Plaintiff had “marked” limitations in understanding and 7 carrying out “very short and simple instructions” and in maintaining attention and 8 concentration. Id. He also opined that Plaintiff had “moderate” or “marked” 9 limitations in all areas of social functioning. AR 259. He did not describe any 10 medical findings supporting these assessments, instead citing family members’ 11 statements that Plaintiff has “never been able to sustain gainful employment.” Id. 12 Plaintiff describes Dr. Thomas’s Questionnaire as “the only mental opinion 13 in the record.” (JS at 17-18.) In fact, in June 2016, Plaintiff underwent a 14 psychological assessment by psychologist Dr. Robert Koranda focused on his 15 potential diagnosis with intellectual disability. AR 268-73. Dr. Koranda reviewed 16 Plaintiff’s earlier medical and special education records and interviewed his 17 cousin. AR 268-69. He administered several cognitive tests, including a 18 nonverbal IQ test on which Plaintiff scored 71. AR 270. Plaintiff tested at the 19 fourth and fifth grade levels in basic academic subjects. AR 271. Dr. Koranda 20 diagnosed Plaintiff as suffering from mild intellectual disability with “significant 21 deficits in the conceptual, social, and practical domains.” AR 273. 22 23 3. Summary of Claimed Errors. As directed by 20 C.F.R. § 404.1520a, the ALJ assessed the degree of 24 functional limitation resulting from Plaintiff’s mental impairment with respect to 25 (1) understanding, remembering, or applying information (“moderate”); 26 (2) interacting with others (“none”); (3) concentrating, persisting, or maintaining 27 pace (“moderate”); and (4) adapting or managing oneself (“mild”). AR 17. 28 Consistent with these findings, he determined that Plaintiff’s intellectual disability 12 1 was a “severe” MDI. The ALJ, however, did not discuss or cite any evidence 2 (such as medical opinions or Plaintiff’s reported activities) supporting his 3 assessments of Plaintiff’s functional limitations. 4 At step three, the ALJ found that Plaintiff’s intellectual disability did not 5 meet or medically equal any impairments listed in 20 C.F.R., Part 404, Subpart P, 6 Appendix 1. AR 17. In making this finding, the ALJ did not recite any listing’s 7 criteria and then compare evidence to the criteria. 8 9 10 11 The Appeals Council adopted the ALJ’s findings at steps two and three. AR 4. Those included findings that Plaintiff’s intellectual disability was a “severe” MDI, but that it did not meet or equal a listed impairment. AR 17. At step four, the ALJ limited Plaintiff’s mental RFC to simple, repetitive 12 tasks. AR 17. The ALJ did not discuss any medical evidence supporting this RFC 13 assessment. The Appeals Council adopted this finding and its rationale. AR 5. 14 Neither the Appeals Council nor the ALJ discussed Dr. Peterson’s testimony. 15 Plaintiff argues that the ALJ’s analysis at steps two and three did not 16 adequately discuss the medical evidence of Plaintiff’s intellectual functioning, and 17 that “Plaintiff may equal Listing 12.05.” (JS at 11.) Plaintiff further argues that 18 since the Appeals Council adopted the ALJ’s findings, the ALJ’s error infects the 19 final decision by the Appeals Council. (Id.) 20 Plaintiff also argues that neither the ALJ nor the Appeals Council mentioned 21 Dr. Thomas’s Questionnaire, let alone gave “specific and legitimate” reasons for 22 rejecting it. Plaintiff argues that this affected the RFC determination (i.e., Plaintiff 23 is not capable of work requiring consistent performance of simple, repetitive tasks) 24 and caused the ALJ to pose a hypothetical question to the VE that did not contain 25 all of Plaintiff’s limitations. (JS at 14.) 26 4. Analysis. 27 It is unclear whether Plaintiff argues that the ALJ (and, by adopting the 28 ALJ’s findings, the Appeals Council) erred at step two, step three, and/or step four. 13 1 In a sense, it does not matter. No one—not the ALJ and not the Appeals 2 Council— discussed the opinions of Drs. Peterson, Koranda, or Thomas, gave 3 them relative weights, or explained what evidence supported the finding that 4 Plaintiff had the mental capacity to perform SGA if it were limited to simple, 5 repetitive tasks. This was legal error. See Andrews v. Shalala, 53 F.3d 1035, 1039 6 (9th Cir. 1995) (“The ALJ is responsible for determining credibility, resolving 7 conflicts in medical testimony, and for resolving ambiguities.”); see also Smith v. 8 Heckler, 760 F.2d 184, 187 (8th Cir. 1985) (“It is the ALJ's duty to weigh the 9 medical evidence where there is a conflict in medical opinion. The resolution of 10 conflicts in testimony are the province of the Commissioner and not the courts.”). 11 Defendant argues that the Appeals Council independently found that 12 Plaintiff could do simple, repetitive tasks by relying on the testimony of ME 13 Savage. (JS at 15.) This argument lacks support from the record. While the 14 Appeals Council did grant Dr. Savage’s opinions “significant weight,” it only 15 discussed his opinions concerning Plaintiff’s exertional RFC. Regarding 16 Plaintiff’s mental RFC, the Appeals Council stated, “we adopt the findings and 17 rational pertaining to his mental impairments and mental limitations as found in the 18 hearing decision,” referring to the ALJ’s opinion. AR 5. The ALJ, in turn, 19 apparently relied on Dr. Koranda’s report (using the same wording of “mild 20 intellectual disability” to state Plaintiff’s severe MDIs), the same report reviewed 21 by ME Savage. 22 Defendant appears to be arguing that the ALJ’s and Appeals Council’s 23 failure to discuss Drs. Thomas and Koranda was harmless error, because Plaintiff’s 24 past employment at the laundromat demonstrates he has the intellectual ability to 25 perform such work. (JS at 15.) The failure to address pertinent evidence is 26 harmless if the error did not affect the outcome of the case. See Stout, 454 F.3d at 27 1055-56. The Court cannot conclude that the error here was harmless. Dr. 28 Koranda found that Plaintiff had “significant” social deficits (AR 273), while Dr. 14 1 Thomas opined that Plaintiff had “moderate” or “marked” limitations in all areas 2 of social functioning (AR 259). The ALJ and Appeals Council may have 3 overlooked these opinions or may have discounted them as inconsistent with other 4 evidence6 or for other reasons; it is impossible to tell from the record. Had the ALJ 5 credited these opinions, however, and limited Plaintiff’s work-related social 6 interaction to some degree (e.g., only “frequent” interactions with the public), such 7 a limitation might have changed the VE’s conclusion that Plaintiff could perform 8 his past relevant work. 9 V. 10 CONCLUSION 11 For the reasons stated above, IT IS ORDERED that judgment shall be 12 entered REVERSING the decision of the Commissioner denying benefits and 13 REMANDING for further administrative proceedings consistent with this opinion. 14 15 DATED: February 20, 2019 16 ______________________________ KAREN E. SCOTT United States Magistrate Judge 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff’s cousin’s reported that Plaintiff is “extremely friendly and gets along well with others” (AR 269), and Plaintiff’s history demonstrates that he could interact with others well enough to work at the laundromat for many years. 6 15
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