Nichole Caprice Klocko v. Andrew Saul, No. 2:2019cv08783 - Document 33 (C.D. Cal. 2021)
Court Description: MEMORANDUM OPINION by Magistrate Judge Alka Sagar. The decision of the Commissioner is reversed, and the matter is remanded for further proceedings pursuant to Sentence 4 of 42 U.S.C. § 405(g). (see document for further details) (hr)
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Nichole Caprice Klocko v. Andrew Saul Doc. 33 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA – WESTERN DIVISION 10 11 NICHOLE C. K.1, 12 Plaintiff, MEMORANDUM OPINION 13 14 15 Case No. CV 19-08783-AS v. ANDREW M. SAUL, Commissioner of Social Security, Defendant. 16 17 18 For the reasons discussed below, IT IS HEREBY ORDERED that, 19 pursuant to Sentence Four of 42 U.S.C. § 405(g), this matter is 20 remanded for further administrative action consistent with this 21 Opinion. 22 23 24 25 26 27 1 Plaintiff’s name is partially redacted in accordance with Federal Rule of Civil Procedure 5.2(c)(2)(B) and the recommendation of the Committee on Court Administration and Case Management of the Judicial Conference of the United States. 28 Dockets.Justia.com 1 2 3 Proceedings On October 12, 2019, Plaintiff filed a Complaint seeking review of the denial of her application for supplemental security 4 income (“SSI”) by the Commissioner of Social Security 5 (“Commissioner” or “Agency”). (Dkt. No. 1). 7 consented the 8 Magistrate Judge. 9 Defendant filed an Answer along with the Administrative Record 6 10 11 to proceed before undersigned (Dkt. Nos. 13, 22, 23). (“AR”). (Dkt. Nos. 20, 21). (“Joint Stip.”) on The parties have United States On March 30, 2020, The parties filed a Joint Stipulation September 11, 2020, setting forth their 12 respective positions regarding Plaintiff’s claims. (Dkt. No. 32). 13 14 15 The Court has taken this matter under submission without oral argument. See C.D. Cal. C. R. 7-15. 16 17 BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION 18 19 On February 18, 2015, Plaintiff filed an application for SSI, 20 alleging a disability onset date of January 2, 2010. 21 The Commissioner denied Plaintiff’s application initially and on 22 reconsideration. 23 represented 24 Administrative Law Judge (“ALJ”) Kyle Andeer. 25 ALJ also heard testimony from Kelly Bartlett, a vocational expert 26 (“VE”). 27 denying Plaintiff’s application. by (AR 182-191). counsel, (AR 106-108). On May 7, testified at a 2018, (AR 271). Plaintiff, hearing before (AR 80-110). The On July 30, 2018, the ALJ issued a decision (AR 17-32). 28 2 1 Applying the five-step sequential process, the ALJ found at 2 step one that Plaintiff has not engaged in substantial gainful 3 activity since February 18, 2015, the application date. 4 At step two, the ALJ found that Plaintiff had the following severe 5 impairments: affective disorder and substance abuse disorder.2 6 (Id.). 7 have an impairment or combination of impairments that meet or 8 medically equal the severity of any of the listings enumerated in 9 the regulations.3 (AR 22). At step three, the ALJ determined that Plaintiff does not (AR 23-24). 10 11 The ALJ then assessed Plaintiff’s residual functional capacity 12 (“RFC”)4 and concluded that she has the capacity to perform less 13 than the full range of work at all exertional levels but with the 14 following 15 scaffolds; unskilled simple, routine, repetitive tasks; low stress 16 job environment, defined as only occasional decision making or 17 judgment required; only occasional changes in the work setting; 18 only occasional or less interaction with the public; and only 19 occasional interaction with coworkers and supervisors.” non-exertional limitations: “no ladders, ropes, or (AR 25). 20 21 22 23 24 25 26 27 28 2 The ALJ found that Plaintiff’s obesity did not significantly limit her ability to perform basic work activities and was therefore not a severe medically determinable impairment. (AR 22-23). 3 Specifically, the ALJ considered whether Plaintiff meets the criteria of Listing 12.04 (depressive and bipolar related disorders) and 12.06 (anxiety and obsessive-compulsive disorders). (AR 23). 4 A Residual Functional Capacity (“RFC”) is what a claimant can still do despite existing exertional and nonexertional limitations. See 20 C.F.R. § 404.1545(a)(1). 3 1 At step four, the ALJ found that Plaintiff does not have any 2 past relevant work. 3 education, work 4 determined at 5 significant numbers in the national economy that Plaintiff can 6 perform, including laundry worker II, night cleaner, and laborer, 7 stores. 8 has not been under a disability, as defined in the Social Security 9 Act, since February 18, 2015, the application date. (AR 30). experience, step five (AR 30-31). Based on Plaintiff’s RFC, age, and that the there VE’s are testimony, jobs that the ALJ exist in Accordingly, the ALJ found that Plaintiff (AR 31). 10 11 On June 13, 2019, the Appeals Council denied Plaintiff’s 12 request for review. 13 review of the ALJ’s decision, which stands as the final decision 14 of the Commissioner. (AR 6-10). Plaintiff now seeks judicial 42 U.S.C. §§ 405(g), 1383(c). 15 16 STANDARD OF REVIEW 17 18 This Court reviews the Administration’s decision to determine 19 if it is free of legal error and supported by substantial evidence. 20 See 21 “Substantial evidence” is more than a mere scintilla, but less than 22 a preponderance. 23 2014). 24 finding, “a court must consider the record as a whole, weighing 25 both evidence that supports and evidence that detracts from the 26 [Commissioner’s] conclusion.” Aukland v. Massanari, 257 F.3d 1033, 27 1035 (9th Cir. 2001) (internal quotation omitted). 28 “[i]f the evidence can support either affirming or reversing the Brewes To v. Comm’r, 682 F.3d 1157, 1161 (9th Cir. 2012). Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. determine whether substantial 4 evidence supports a As a result, 1 ALJ’s conclusion, [a court] may not substitute [its] judgment for 2 that of the ALJ.” 3 (9th Cir. 2006). Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 4 5 DISCUSSION 6 7 Plaintiff’s sole claim is that the ALJ improperly rejected 8 treating physician Dr. Burdick’s opinion that Plaintiff was unable 9 to perform activities within a schedule, maintain regular 10 attendance, and complete a normal workday and workweek without 11 interruptions from psychologically-based symptoms. 12 at 13, 37). 13 record as a whole, the Court finds that Plaintiff’s claim warrants 14 a remand for further consideration. (Joint Stip. After consideration of the parties’ arguments and the 15 16 A. Legal Standard for ALJ’s Assessment of Medical Opinions 17 18 An ALJ must take into account all medical opinions of record. 19 20 C.F.R. § 404.1527(b).5 20 opinion carries more weight than an examining physician’s, and an 21 examining physician’s opinion carries more weight than a reviewing “Generally, a treating physician’s 22 23 24 25 26 27 28 5 Since Plaintiff filed her application before March 27, 2017, 20 C.F.R. § 404.1527 applies. For an application filed on or after March 27, 2017, 20 C.F.R. § 404.1520c would apply. 20 C.F.R. § 404.1520c changed how the Social Security Administration considers medical opinions and prior administrative medical findings, eliminated the use of the term “treating source,” and eliminated deference to treating source medical opinions. See 20 C.F.R. § 404.1520c(a); Danny L. R. v. Saul, 2020 WL 264583, at *3 n.5 (C.D. Cal. Jan. 17, 2020); see also 81 Fed. Reg. 62560, at 62573-74 (Sept. 9, 2016). 5 1 physician’s.” 2 2001); see also Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 3 1995). 4 “controlling weight” so long as it “is well-supported by medically 5 acceptable clinical and laboratory diagnostic techniques and is 6 not 7 claimant’s] case record.” 20 C.F.R. § 404.1527(c)(2). 8 treating is 9 according Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. The medical opinion of a treating physician is given inconsistent with doctor’s to the other opinion factors such substantial not as evidence controlling, the length it of in “When a is the [the weighted treatment 10 relationship and the frequency of examination, the nature and 11 extent 12 consistency of the record.” 13 654 (9th Cir. 2017); see also 20 C.F.R. § 404.1527(c)(2)-(6). of the treatment relationship, supportability, and Revels v. Berryhill, 874 F.3d 648, 14 15 If a treating or examining doctor’s opinion is not 16 contradicted by another doctor, the ALJ can reject the opinion only 17 for “clear and convincing reasons.” 18 F.3d 1155, 1164 (9th Cir. 2008); Lester, 81 F.3d at 830. 19 treating or examining doctor’s opinion is contradicted by another 20 doctor, the ALJ must provide “specific and legitimate reasons” that 21 are supported by substantial evidence in the record for rejecting 22 the opinion. 23 Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998). 24 can meet this burden by setting out a detailed and thorough summary 25 of 26 interpretation 27 Berryhill, 871 F.3d 664, 675 (9th Cir. 2017) (citation omitted). the facts Carmickle v. Comm’r, SSA, 533 If the Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007); and conflicting thereof, and clinical making 28 6 evidence, findings.” “The ALJ stating Trevizo his v. 1 B. ALJ’s Assessment of Dr. Burdick’s Opinion 2 3 1. Dr. Burdick’s Opinion 4 5 Dr. Adam Burdick, a psychiatrist at Ventura County Behavioral 6 Health, treated Plaintiff regularly from 2014 to 2018. 7 473, 528, 531, 550, 560, 569). 8 completed a Short-Form Evaluation for Mental Disorders, where he 9 indicated that Plaintiff had been diagnosed with major depressive (See AR On August 13, 2015, Dr. Burdick 10 disorder, recurrent. (AR 351). 11 completed Status 12 examination, Dr. Burdick found that Plaintiff was disheveled, 13 appeared guarded, and avoided eye contact, but her motor activity 14 was normal. 15 was normal. 16 difficulty concentrating due to racing thoughts, depression and 17 anxiety.” (AR 352). Dr. Burdick found that Plaintiff was depressed 18 and anxious with a flat affect, and she reported feeling depressed 19 and scared. 20 and fleeting suicidal thoughts, but she denied any plan or intent. 21 (Id.). a Mental (Id.). Examination of Plaintiff. Upon Her concentration was impaired but her memory (Id.). (Id.). As part of this evaluation, he Dr. Burdick indicated that Plaintiff “has She had severely impaired judgment and passive She had not used drugs or alcohol since 2013. (Id.). 22 23 Dr. Burdick opined that Plaintiff’s prognosis was guarded and 24 unlikely to improve in 12 months. 25 her symptoms included “depressed mood, passive suicidal ideation, 26 feelings of worthlessness, anhedonia, loss of energy, restricting 27 activities and isolation, anxiety, and difficulty concentrating 28 and focusing.” (Id.). (AR 353). He indicated that He reported that since 2008, Plaintiff has 7 1 “demonstrated repeated episodes of decomposition.” 2 Burdick concluded that Plaintiff’s mental health symptoms cause 3 “significant impairments in her activities of daily living, social 4 functioning, 5 “continue to have a direct effect on her ability to acquire 6 employment and maintain housing.” focus and concentration” and (Id.). these Dr. impairments (Id.). 7 8 Finally, Dr. Burdick completed a medical source statement, 9 where he opined that Plaintiff’s ability to perform or sustain the 10 following activities was “poor”: understand, remember, and carry 11 out complex instructions; maintain concentration, attention, and 12 persistence; perform activities within a schedule and maintain 13 regular attendance; complete a normal workday and workweek without 14 interruptions 15 appropriately to changes in a work setting. 16 further opined that Plaintiff’s ability to understand, remember, 17 and carry out simple instructions was “fair.” from psychologically-based symptoms; and (Id.). respond Dr. Burdick (Id.). 18 19 2. ALJ’s Findings 20 21 The ALJ gave partial weight to Dr. Burdick’s opinion, finding 22 that 23 inconsistent 24 activities” and that “the evidence of her activities and mental 25 status findings indicate a higher level of functioning” than Dr. 26 Burdick 27 identified by the ALJ as a basis for rejecting the opinion, Dr. 28 Burdick’s assessments that Plaintiff was limited in performing “some of the with assessed. cognitive the (AR and objective 29-30). 8 adaptive findings Although limitations and not are [Plaintiff’s] specifically 1 activities within a schedule, maintaining regular attendance, and 2 completing a normal workday and workweek were contradicted by the 3 opinions of the state agency reviewing physicians and consultative 4 examiner. 5 and legitimate reasons, supported by substantial evidence, for 6 rejecting Dr. Burdick’s opinion. (See id.). Thus, the ALJ was required to state specific See Trevizo, 871 F.3d at 675. 7 8 a. Objective Medical Evidence 9 10 Plaintiff contends that the ALJ erred by finding that Dr. 11 Burdick’s opinion was inconsistent with the objective medical 12 evidence. 13 objective medical evidence is a specific and legitimate reason for 14 discounting a treating physician’s opinion. See Batson v. Comm’r 15 of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004); Tommasetti 16 v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008). 17 finding that Dr. Burdick’s opinion conflicted with the objective 18 medical evidence is not supported by substantial evidence. (Joint Stip. at 13-18). Inconsistency with the Here, the ALJ’s 19 20 As an initial matter, Plaintiff argues that the ALJ did not 21 sufficiently specify in the opinion what objective medical evidence 22 was inconsistent with Dr. Burdick’s opinion. 23 Although it is not entirely clear what objective medical evidence 24 the ALJ found conflicted with Dr. Burdick’s opinion, the ALJ 25 discussed medical evidence about Plaintiff’s affective disorder 26 elsewhere in his opinion. 27 1121 (9th Cir. 2012) (even if an ALJ explains his decision “with 28 less than ideal clarity,” a court must uphold it if the ALJ’s “path (Joint Stip. at 18). See Molina v. Astrue, 674 F.3d 1104, 9 1 may 2 acknowledged that Plaintiff complained of various symptoms in her 3 treatment 4 include normal and unremarkable mental status findings, except for 5 several occasions where she underwent inpatient psychiatric care.” 6 (AR 27). 7 for appointments with good grooming and hygiene, as well as good 8 eye 9 cooperative”; her memory was “regularly described as being intact”; be reasonably notes, discerned”) but he (citations found that her omitted). The “examinations ALJ overall He indicated that she was “regularly observed to present contact”; she was consistently observed as pleasant and 10 and she was “oriented, alert and in no distress.” 11 He further noted that she communicated concerns with her providers 12 and generally attended appointments as scheduled. (Id.). Finally, 13 he found that Plaintiff reported feeling better with treatment and 14 abstinence 15 improved upon being discharged from inpatient care. 16 support of these contentions, the ALJ cited to various treatment 17 notes and mental status examinations from 2011 to 2018. from substances, and her symptoms (AR 26-27, 30). and functioning (Id.). In (See id.). 18 19 First, the ALJ’s characterization of Plaintiff’s mental status 20 examinations as “normal” and “unremarkable” is not supported by 21 substantial evidence. 22 status examinations overall indicated she was well-groomed and 23 dressed, cooperative, alert and oriented, with linear thinking and 24 intact memory and concentration. 25 560, 569, 580). 26 she had a euthymic mood, an appropriate affect, fair insight and 27 judgment, and no suicidal ideation. 28 557, 580). As the ALJ recognized, Plaintiff’s mental (See, e.g., AR 528, 535, 550, Indeed, many mental status examinations indicated (See, e.g., AR 531, 538, 553, But these mental status examinations must be viewed in 10 1 the context of Plaintiff’s overall medical record, which also 2 contains numerous mental status examinations observing that her 3 mood was depressed, anxious, and irritable (see AR 492, 505, 529, 4 535, 541, 546, 550, 557, 560, 569, 601); her affect was depressed, 5 blunted, and mildly reactive (see AR 498, 506, 541, 550, 557, 601); 6 her insight and judgment were fair to poor (see AR 529, 531, 535, 7 538, 541, 546, 550, 553, 557, 560, 589, 601); and she had suicidal 8 ideation (see AR 505, 535).6 9 reflect that she experienced depressive moods and affect, suicidal 10 ideation, paranoia, and insomnia and poor sleep at various times 11 from 2015 to 2018. Plaintiff’s treatment notes further (See AR 531-532, 541, 550, 561, 574, 588, 591). 12 13 Thus, even though Plaintiff experienced periods with “normal” 14 mental status examinations, her cumulative medical record reflects 15 positive mental status examinations and findings that support Dr. 16 Burdick’s assessed limitations. 17 (regarding mental health issues, “[c]ycles of improvement and 18 debilitating 19 circumstances it is error for an ALJ to pick out a few isolated 20 instances of improvement over a period of months or years and to 21 treat them as a basis for concluding a claimant is capable of 22 working”); Holohan, 246 F.3d at 1205 (“[The treating physician’s] symptoms are a See Garrison, 759 F.3d at 1017 common occurrence, and in such 23 24 25 26 27 28 6 The ALJ also cited to mental status examinations prior to the relevant period, which appear to reflect that Plaintiff was largely stable and doing well. (AR 27, 369, 408, 454, 466, 488). These mental status examinations, however, are closely preceded and followed by examinations and treatment notes that observed Plaintiff with a depressed mood, a blunt or bland affect, psychotic symptoms, mood lability, and suicidal ideation. (See AR 410, 418, 442, 444, 448, 460, 470, 473). 11 1 statements must be read in context of the overall diagnostic 2 picture he draws. That a person who suffers from severe panic 3 attacks, anxiety, and depression makes some improvement does not 4 mean that the person’s impairments no longer seriously affect her 5 ability to function in a workplace.”). 6 7 Second, the ALJ’s finding that Plaintiff “reported feeling 8 better with treatment” is not supported by substantial evidence. 9 The ALJ referenced Plaintiff’s inpatient psychiatric care as an 10 example of how her symptoms resolved with treatment. 11 Plaintiff sought inpatient care for suicidal thoughts in 2012 and 12 2013, before the relevant period, after which she reported feeling 13 better. 14 control her symptoms. She continued to report depressive symptoms, 15 irritability, anxiety, and suicidal ideation from 2012 through 16 2018, even while taking medication. 17 473, 505-06, 528, 531-32, 535, 550, 592). 18 treatment notes in 2016 and 2017 where Plaintiff reported feeling 19 “fine,” “alright,” and “not really depressed” as evidence that 20 Plaintiff improved with treatment. 21 these reports lose significance when viewed in the context of the 22 entire 23 Plaintiff’s dose of Celexa for depression despite her reporting 24 that she felt “alright” in May 2017, and at the same time Plaintiff 25 reported 26 experiencing suicidal thoughts in the preceding weeks. 27 32, 538-39). (AR 422, 515-22). treatment feeling note. “fine” (AR 26-27). But inpatient care did not effectively For in (See, e.g., AR 424, 459, 470, (AR 27, 531, 538, 557). example, September 28 12 The ALJ also pointed to Dr. 2017, Burdick she also But increased reported (AR 531- 1 Rather, Plaintiff’s medical record reflects that she was 2 diagnosed with major depressive disorder, recurrent, moderate to 3 severe, which required consistent psychiatric treatment through 4 Plaintiff’s date last insured. 5 570, 581, 591, 603). 6 of improvement and stability while on medication, Dr. Burdick 7 frequently changed or increased the dose of her depression and 8 anxiety medications, including Wellbutrin, Celexa, Topamax, and 9 Abilify, due to fluctuations in her symptoms and mood throughout (See, e.g., AR 530, 536, 547, 561, Although Plaintiff experienced some periods 10 the relevant period. 11 581). 12 history is substantial evidence that contradicts Dr. Burdick’s 13 opined assessments. 14 Lambert v. Berryhill, 2017 WL 2294281, at *5-6 (C.D. Cal. May 24, 15 2017) (ALJ erred by “isolating and taking out of context a small 16 quantum 17 depression to discredit” the treating physician’s opinion). (See, e.g., AR 536, 539, 547, 551, 570, 574, Therefore, the Court cannot find that Plaintiff’s treatment of See Garrison, 759 F.3d at 1017; see also evidence of partial improvement in plaintiff’s 18 19 Finally, to the extent that the ALJ relied on Plaintiff’s 20 ability to communicate complaints to her providers, manage her 21 sobriety, and attend appointments as objective medical evidence 22 that was inconsistent with Dr. Burdick’s opinion, these reasons 23 fail. 24 providers about her mental health or trying to manage her sobriety, 25 and the ALJ does not explain how doing so had any bearing on her 26 ability to 27 regular attendance 28 without interruption from psychologically-based symptoms. Plaintiff should not be penalized for communicating with perform activities or within complete a 13 a normal schedule and maintain workday and workweek (See AR 1 26-27, 2 attending medical appointments than the ALJ indicated. 3 either did not show up entirely to appointments, showed up late, 4 or called to cancel on the same day as her appointment on several 5 occasions during the relevant period, and she did not see Dr. 6 Burdick for approximately eight months when she left the state 7 seemingly without telling her providers. 8 565, 567-68, 575). 9 treatment 10 30). Moreover, and Plaintiff had more difficulty timely Plaintiff (AR 529, 544, 560, 563, Thus, Plaintiff’s attempts to manage her appointments do not undermine Dr. Burdick’s assessments about Plaintiff’s limitations. 11 12 Accordingly, the ALJ’s finding that the objective medical 13 evidence 14 supported by substantial evidence. was inconsistent with Dr. Burdick’s opinion was not 15 16 b. Activities of Daily Living 17 18 Plaintiff further contends that the ALJ erred by finding that 19 Dr. 20 activities 21 inconsistency 22 claimant’s daily activities is a specific and legitimate reason to 23 discount the treating physician’s opinion. 24 763 F.3d 1154, 1162 (9th Cir. 2014). 25 that Plaintiff’s activities of daily living that reflect a “higher 26 level 27 remaining independent in her care, caring for her young child, 28 managing treatment, managing appointments, complying with program Burdick’s of of assessments daily were living. between functioning” a inconsistent (Joint treating than physician’s at Plaintiff’s 19-24). opinion and An a See Ghanim v. Colvin, Specifically, the ALJ found assessed 14 Stip. with by Dr. Burdick include 1 and court requirements, seeking out and obtaining employment, 2 communicating with providers and others, and participating in 3 groups and other programs. 4 she was able to manage her sobriety and seek treatment when she 5 did relapse. (AR 29-30). He also indicated that (AR 30). 6 7 Here, the ALJ erred by failing to explain anywhere in his 8 opinion how the daily activities he identified contradict Dr. 9 Burdick’s limitations 10 schedule, maintain 11 workday and workweek without interruption. 12 872 F.3d 901, 906 (9th Cir. 2017) (ALJ erred when he failed to 13 explain why the claimant’s daily activities were inconsistent with 14 the doctor’s opinion). 15 activities of daily living and the context in which they were 16 performed demonstrates that the ALJ’s finding is not supported by 17 substantial evidence. that regular Plaintiff cannot attendance, and perform complete within a a normal See Popa v. Berryhill, Nevertheless, a review of Plaintiff’s 18 19 In her Function Report, Plaintiff reported showering and 20 dressing herself and her young son daily, cleaning and doing 21 laundry, 22 transportation, and managing some of her finances while living in 23 a shelter. 24 for 25 childcare help from the shelter and her mother. 26 305-06, 538). 27 and having a difficult time getting out of bed when her depression 28 worsens. her going to the (AR 305-07). meals and store once a week, using public Plaintiff, however, relied on the shelter reminders about chores, and she received (AR 93-95, 101, Plaintiff reported spending most days in her room (AR 99-100, 304). She attended shelter classes and 15 1 worked part-time in a shelter thrift shop at certain points during 2 the relevant period, but she left the shelter where she lived when 3 she completed the Function Report because she had “difficulty with 4 the structure of the center and began to feel overwhelmed by the 5 demands of the program.” 6 78, 611). 7 worked full-time, she reported that she was fired from a job after 8 two weeks because she got into an argument with her boss and she 9 quit another job after less than two months because “she felt (AR 305, 503, 538, 550, 553, 558, 577- Although she occasionally sought out employment and 10 overwhelmed physically and mentally.” 11 531). 12 communicate with providers and generally manage her sobriety, but 13 she and required 14 reminders from the shelter about taking her medications. (AR 306, 15 529, 544, 563, 565, 567-68, 575, 600). did Finally, not as always discussed timely (AR 310, 550, 588, 590, above, attend Plaintiff appointments was able to 16 17 The fact that Plaintiff was able to perform some daily 18 activities is not necessarily inconsistent with her inability to 19 perform a work schedule and maintain regular attendance or complete 20 a normal workday and workweek without interruptions. 21 v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001) (“This court has 22 repeatedly asserted that the mere fact that a plaintiff has carried 23 on certain daily activities, such as grocery shopping, driving a 24 car, or limited walking for exercise, does not in any way detract 25 from her credibility as to her overall disability. One does not 26 need to be ‘utterly incapacitated’ in order to be disabled.”) 27 (quoting Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)). 28 is particularly the case given that Plaintiff performed many of 16 See Vertigan This 1 the daily activities identified by the ALJ while living in a shelter 2 that encouraged a routine and outside of the demands of full-time 3 work. 4 activities within a regular routine outside of the shelter, such 5 as working full-time, she reported becoming overwhelmed. 6 Bjornson v. Astrue, 671 F.3d 640, 647 (7th Cir. 2012) (“The critical 7 differences between activities of daily living and activities in a 8 full-time job are that a person has more flexibility in scheduling 9 the former than the latter, can get help from other persons . . . 10 , and is not held to a minimum standard of performance, as she 11 would be by an employer.”) (cited with approval in Garrison, 759 12 F.3d at 1016). 13 activities of daily living were inconsistent with Dr. Burdick’s 14 opined limitations was not supported by substantial evidence. (See AR 310). When Plaintiff did try to perform daily See Therefore, the ALJ’s finding that Plaintiff’s 15 16 C. Remand Is Warranted 17 18 The decision whether to remand for further proceedings or 19 order an immediate award of benefits is within the district court’s 20 discretion. 21 2000). 22 administrative proceedings, or where the record has been fully 23 developed, it is appropriate to exercise this discretion to direct 24 an immediate award of benefits. 25 whether to remand for further proceedings turns upon the likely 26 utility of such proceedings.”). 27 circumstances of the case suggest that further administrative 28 review See Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. Where could no useful remedy the purpose would be served by further Id. at 1179 (“[T]he decision of However, where, as here, the Commissioner’s 17 errors, remand is 1 appropriate. 2 2011); Harman, 211 F.3d at 1179-81. See McLeod v. Astrue, 640 F.3d 881, 888 (9th Cir. 3 4 Since the ALJ failed to properly assess Dr. Burdick’s opinion 5 as a treating source, remand is appropriate. 6 issues must be resolved before a determination of disability can 7 be made, and “when the record as a whole creates serious doubt as 8 to whether the [Plaintiff] is, in fact, disabled within the meaning 9 of the Social Security Act,” further administrative proceedings 10 would serve a useful purpose and remedy defects. Burrell v. Colvin, 11 775 F.3d 1133, 1141 (9th Cir. 2014) (citations omitted). Because outstanding 12 13 CONCLUSION 14 15 For the foregoing reasons, the decision of the Commissioner 16 is reversed, and the matter is remanded for further proceedings 17 pursuant to Sentence 4 of 42 U.S.C. § 405(g). 18 19 LET JUDGMENT BE ENTERED ACCORDINGLY. 20 21 Dated: January 14, 2021 22 ______________/s/_____________ ALKA SAGAR UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28 18
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