Lisardo Serrano v. Nancy A Berryhill, No. 5:2018cv00480 - Document 23 (C.D. Cal. 2019)
Court Description: MEMORANDUM OPINION AND ORDER REVERSING AND REMANDING DECISION OF COMMISSIONER by Magistrate Judge Alexander F. MacKinnon. IT IS THEREFORE ORDERED that Judgment be entered reversing the decision of the Commissioner of Social Security and remanding this matter for further administrative proceedings consistent with this opinion. (See document for details.) (sbou)
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Lisardo Serrano v. Nancy A Berryhill Doc. 23 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 LISARDO S.,1 11 Case No. 5:18-cv-00480-AFM Plaintiff, 12 13 v. 14 NANCY A. BERRYHILL, Acting Commissioner of Social Security, 15 16 MEMORANDUM OPINION AND ORDER REVERSING AND REMANDING DECISION OF COMMISSIONER Defendant. 17 18 19 Plaintiff filed this action seeking review of the Commissioner’s final decision 20 denying his applications for disability insurance benefits and supplemental security 21 income. In accordance with the Court’s case management order, the parties have filed 22 memorandum briefs addressing the merits of the disputed issues. The matter is now 23 ready for decision. BACKGROUND 24 On April 2, 2014, Plaintiff applied for disability insurance benefits and 25 26 27 28 Plaintiff’s name has been 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. 1 Dockets.Justia.com 1 supplemental security income, alleging disability since January 4, 2014. Plaintiff’s 2 applications were denied initially and on reconsideration. (Administrative Record 3 [“AR”] 111-118.) A hearing took place on January 10, 2017 before an Administrative 4 Law Judge (“ALJ”). Both Plaintiff, who was represented by counsel, and a vocational 5 expert (“VE”) testified at the hearing. (AR 37-85.) 6 In a decision dated April 28, 2017, the ALJ found that Plaintiff suffered from 7 the following severe impairments: obsessive compulsive disorder, anxiety disorder, 8 and depressive disorder. (AR 20.) The ALJ concluded that Plaintiff retained the 9 residual functional capacity (“RFC”) to perform a full range of work at all exertional 10 levels but restricted to work involving simple and repetitive tasks; limited public 11 contact; and a work setting that is predictable, routine, with infrequent changes and 12 not requiring more than simple decision making. (AR 23-24.) Relying upon the 13 testimony of the VE, the ALJ found that Plaintiff was capable of performing work 14 existing in significant numbers in the national economy, including the occupations 15 of laundry worker, kitchen helper, and hand packager. (AR 30-31.) Accordingly, the 16 ALJ concluded that Plaintiff was not disabled. (AR 31-32.) 17 18 The Appeals Council subsequently denied Plaintiff’s request for review (AR 1-6), rendering the ALJ’s decision the final decision of the Commissioner. DISPUTED ISSUE 19 20 Whether the ALJ properly evaluated the opinion of examining psychiatrist, 21 Denisse Joseph, M.D. 22 STANDARD OF REVIEW 23 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner’s decision to 24 determine whether the Commissioner’s findings are supported by substantial 25 evidence and whether the proper legal standards were applied. See Treichler v. 26 Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1098 (9th Cir. 2014). Substantial 27 evidence means “more than a mere scintilla” but less than a preponderance. See 28 Richardson v. Perales, 402 U.S. 389, 401 (1971); Lingenfelter v. Astrue, 504 F.3d 2 1 1028, 1035 (9th Cir. 2007). Substantial evidence is “such relevant evidence as a 2 reasonable mind might accept as adequate to support a conclusion.” Richardson, 402 3 U.S. at 401. This Court must review the record as a whole, weighing both the 4 evidence that supports and the evidence that detracts from the Commissioner’s 5 conclusion. Lingenfelter, 504 F.3d at 1035. Where evidence is susceptible of more 6 than one rational interpretation, the Commissioner’s decision must be upheld. See 7 Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). 8 DISCUSSION 9 1. Medical Record 10 Dr. Joseph 11 On July 23, 2014 and at the request of the Department of Social Services, 12 Denisse Joseph, M.D., performed a consultative psychiatric examination of Plaintiff. 13 Plaintiff informed Dr. Joseph that he had a long history of obsessive compulsive 14 disorder, especially regarding a phobia to germs. Plaintiff also complained of 15 depression, and anxiety. (AR 305.) Plaintiff told Dr. Joseph that he had been seeing 16 a psychiatrist and a therapist for six months. He had been placed on Prozac and 17 trazodone and that he currently took Zoloft and Xanax, but the medications did not 18 help. (AR 306.) 19 Under the heading “Activities of Daily Living,” Dr. Joseph noted that Plaintiff 20 was able to dress, bath, and take care of his personal hygiene, but it took him a lengthy 21 amount of time to do so. Plaintiff also was able to go out alone, drive, and pay bills. 22 According to Plaintiff, his relationships with his family were poor, and he did not 23 relate to friends. (AR 307.) 24 Per Dr. Joseph’s mental status examination, Plaintiff was “neatly and casually 25 groomed,” and made “fair eye contact and fair interpersonal contact with this 26 interviewer.” Plaintiff was cooperative and able to volunteer information 27 spontaneously. Dr. Joseph noted “some obvious psychomotor agitation, but no 28 3 1 psychomotor retardation.” Although Plaintiff appeared “genuine and truthful,” he 2 also exhibited “some exaggeration and manipulation.” (AR 308.) 3 Dr. Joseph recorded Plaintiff’s speech as “tense without dysarthria.” The rate 4 and prosody were normal, and the volume was intermittently increased. (AR 308.) 5 Plaintiff’s thoughts were logical and linear, “but not goal directed other than needing 6 financial assistance.” She noted that Plaintiff was circumstantial, disorganized, and 7 tangential. However, no loose associations, flight of ideas, mind racing, or thought 8 blocking were present. (AR 308.) Plaintiff’s thought content was generally relevant. 9 Dr. Joseph detected no bizarre or psychotic thought content, delusional material, 10 neologisms, or suicidal ideation. Plaintiff denied auditory or visual hallucinations. 11 (AR 308.) Plaintiff’s mood was anxious and depressed; his affect was irritable, angry, 12 sad, and constricted. His affect was appropriate to context and congruent with thought 13 content. (AR 308.) 14 Dr. Joseph found Plaintiff alert and oriented to person, place, time, and 15 circumstances. He was able to perform digit span forward, but not backward. Plaintiff 16 could recall three items immediately and after five minutes. He also was able to list 17 the last four United States Presidents. His fund of knowledge was normal. Plaintiff’s 18 attention, concentration, and calculations were normal. According to Dr. Joseph, 19 Plaintiff’s insight and judgment did not appear to be intact regarding his current 20 situation. As an example, Dr. Joseph noted that when asked how he would handle it 21 if he wrote a check that bounced, Plaintiff responded, “I don’t know.” (AR 309.) She 22 opined that Plaintiff’s intelligence was average. (AR 310.) 23 Dr. Joseph diagnosed Plaintiff with obsessive compulsive disorder, depressive 24 disorder, and generalized anxiety disorder. She opined that Plaintiff’s current global 25 assessment of functioning (“GAF”) score was 54. She stated that Plaintiff would 26 benefit from continued psychotherapy and active treatment including psychotropic 27 mediations. Under “Prognosis,” Dr. Joseph wrote that from a psychiatric standing, 28 Plaintiff’s condition is “fair.” (AR 310.) 4 1 Dr. Joseph included a functional assessment based upon her examination. Dr. 2 Joseph opined that Plaintiff was not impaired in his ability to perform simple and 3 repetitive tasks or his ability to maintain regular attendance. (AR 310.) However, she 4 opined that Plaintiff was moderately impaired in the following functional areas: his 5 ability to perform detailed and complex tasks; his ability to perform work activities 6 on a consistent basis; his ability to perform work activities without special or 7 additional supervision; his ability to complete a normal workday or work week 8 without interruptions resulting from psychiatric conditions; his ability to relate and 9 interact with coworkers and the public; and his ability to deal with the usual stresses 10 encountered in competitive work. (AR 310-311.) 11 Dr. Frank 12 Michael Franc, Psy.D, completed an Evaluation Form for Mental Disorders on 13 February 26, 2015. Dr. Franc indicated that he began treating Plaintiff in October 14 2013 and had weekly visits since that time. (AR 333.) Dr. Franc noted that Plaintiff 15 was pleasant and cooperative. His intellectual functioning, concentration, task 16 completion, and contact with reality were normal. (AR 334-335.) Dr. Franc opined 17 that Plaintiff was unable to adapt to normal stressors in the work environment 18 because of compulsions and anxiety about contamination. (AR 335.) He also opined 19 that Plaintiff had no useful ability to function in the following areas: maintaining 20 regular work attention and working in coordination with or proximity to others 21 without becoming distracted. Furthermore, Dr. Franc opined that Plaintiff’s mental 22 impairment rendered him unable to meet competitive standards in the following 23 areas: complete a normal workday and work week without interruptions from 24 psychologically based symptoms; perform at a consistent pace without an 25 unreasonable number and length of rest periods; respond appropriately to changes in 26 routine work setting; deal with stress of semiskilled and skilled work; and interact 27 appropriately with the public. Finally, Dr. Franc opined that Plaintiff would be absent 28 from work more than four days per month. (AR 336-339.) 5 1 Dr. Gulasekaram 2 Bala Gulasekaram, M.D., completed a Mental Disorder Questionnaire Form in 3 May 2016. Dr. Gulaskaram had treated Plaintiff since February 2008 and saw him 4 every three months. (AR 352, 356.) He diagnosed Plaintiff with depression, anxiety, 5 and obsessive compulsive behavior. He noted that Plaintiff was cooperative, but had 6 many fears – in particular, a fear of germs. Dr. Gulasekaram indicated that Plaintiff’s 7 intelligence was average, and Plaintiff had no memory impairment. (AR 352-353.) 8 He also indicated that Plaintiff was able to attend to his activities of daily living. (AR 9 354.) Dr. Gulasekaram opined that Plaintiff’s ability to adapt to work or work-like 10 situations was poor. (AR 355.) 11 State Agency physicians 12 Both State Agency physicians, Judy K. Martin, M.D., and Phaedra Caruso- 13 Radin, Psy.D., opined that Plaintiff was moderately limited in the following areas: 14 his ability to carry out detailed instructions; his ability to maintain attention and 15 concentration for extended periods; his ability to work in coordination with or in 16 proximity to others without being distracted; his ability to complete a normal 17 workday and workweek without interruptions from psychiatric symptoms and to 18 perform at a consistent pace without an unreasonable number and length of rest 19 periods; his ability to interact appropriately with the general public; his ability to get 20 along with coworkers or peers without distracting them or exhibiting behavioral 21 extremes; his ability to maintain socially appropriate behavior and to adhere to basic 22 standards of cleanliness; and his ability to respond appropriately to changes in the 23 work setting. (AR 93-95, 106-108.) 24 2. The ALJ’s Decision. 25 In assessing Plaintiff’s RFC, the ALJ discussed the foregoing medical 26 opinions. The ALJ assigned “partial weight” to the opinions of the State Agency 27 reviewing physicians. However, she specifically rejected the State Agency 28 physicians’ opinions that Plaintiff was limited to minimal social contacts. The ALJ 6 1 concluded that the social contacts limitation was inconsistent with evidence showing 2 minimal treatment and inconsistent with Dr. Joseph’s report indicating that Plaintiff 3 had “normal grooming, eye contact, interpersonal contact, cooperation, behavior, 4 logical thoughts, thought content, orientation, cognitive function, attention, 5 concentration, calculations, fund of knowledge, and intelligence.” (AR 27.) Further, 6 the ALJ found that the term “‘minimal’ social contact” was “vague and unclear.” (AR 7 27.) 8 The ALJ also assigned “partial weight” to the opinion of Dr. Joseph. However, 9 the ALJ specifically rejected Dr. Joseph’s limitations related to coworkers, additional 10 supervision, and an inability to complete a normal workday or work week. The ALJ 11 explained that “the term ‘moderate’ is not defined and does not specify [Plaintiff’s] 12 functional abilities.” (AR 27.) In addition, the ALJ found these three limitations were 13 inconsistent with Dr. Joseph’s report, which found that Plaintiff “had normal 14 grooming, eye contact, interpersonal contact, cooperation, behavior, logical thoughts, 15 thought 16 calculations, fund of knowledge and intelligence.” (AR 27.) content, orientation, cognitive function, attention, concentration, 17 The ALJ afforded little weight to the opinion of Dr. Franc, finding it 18 conclusory, inadequately supported by objective medical evidence, and inconsistent 19 with Plaintiff’s admitted activities of daily living. (AR 28.) Similarly, the ALJ gave 20 little weight to the opinion of Dr. Gulasekaram, finding it had “no probative value.” 21 The ALJ reiterated most of the same reasons he provided for rejecting Dr. Franc’s 22 opinion and added that Dr. Gulasekaram’s opinion “primarily summarized 23 [Plaintiff’s] subjective complaints….” (AR 28.) 24 As mentioned above, the ALJ concluded that Plaintiff retained the RFC to 25 perform simple, repetitive tasks; work involving limited public contact; and work in 26 settings that were predictable, routine, with infrequent changes, and did not require 27 more than simple decision making. (AR 23-24.) 28 7 1 3. Analysis. 2 A claimant’s RFC is the most he can still do despite his limitations. Smolen v. 3 Chater, 80 F.3d 1273, 1291 (9th Cir. 1996) (citing 20 C.F.R. § 404.1545(a)). In 4 determining a claimant’s RFC, an ALJ must consider all relevant evidence of record, 5 including medical opinions. Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 6 2008); Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006); see 20 C.F.R. 7 § 404.1527(b). Before rejecting the uncontradicted opinion of a treating or examining 8 physician, an ALJ must provide clear and convincing reasons for doing so. Hill v. 9 Astrue, 698 F.3d 1153, 1159-1160 (9th Cir. 2012); Carmickle v. Comm’r, Soc. Sec. 10 Admin., 533 F.3d 1155, 1164 (9th Cir. 2008). “Even if contradicted by another doctor, 11 the opinion of an examining doctor can be rejected only for specific and legitimate 12 reasons that are supported by substantial evidence in the record.” Hill, 698 F.3d at 13 1160 (quoting Regennitter v. Comm’r of the Soc. Sec. Admin., 166 F.3d 1294, 1298- 14 1299 (9th Cir. 1999)). An ALJ meets the requisite specific and legitimate standard 15 “by setting out a detailed and thorough summary of the facts and conflicting clinical 16 evidence, stating his interpretation thereof, and making findings.” Trevizo v. 17 Berryhill, 871 F.3d 664, 675 (9th Cir. 2017) (citations and internal quotation marks 18 omitted). 19 a. The ALJ rejected three of Dr. Joseph’s opinions. 20 Plaintiff contends that the ALJ impermissibly rejected Dr. Joseph’s opinions 21 without providing legally sufficient reasons for doing so. (ECF No. 18 at 4-10.) The 22 Commissioner does not directly address this contention. Instead, the Commissioner 23 argues that the ALJ properly translated Dr. Joseph’s opinions into a concrete RFC 24 assessment. (ECF No 19 at 4-9.) In making this argument, the Commissioner 25 necessarily contends that the ALJ did not actually reject Dr. Joseph’s opinions, but 26 rather “interpreted” them. 27 The Commissioner is correct that an ALJ’s RFC assessment may sufficiently 28 account for a physician’s opinion regarding limitations without using the same 8 1 language as the physician. See Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1173- 2 1174 (9th Cir. 2008). So, for example, an RFC may account for a physician’s opinion 3 that the claimant suffers from moderate difficulties in concentration and persistence 4 by assessing an RFC restricting the claimant to simple, routine, repetitive tasks. See 5 Hughes v. Colvin, 599 F. App’x 765, 766 (9th Cir. 2015); Stubbs-Danielson, 539 6 F.3d at 1171 (ALJ’s limitation to “simple, routine, repetitive” work sufficiently 7 accommodated physician’s opinion evidence that claimant had “moderate” limitation 8 in pace and “other mental limitations regarding attention, concentration, and 9 adaption”). Similarly, an RFC for independent work with no more than occasional 10 public interaction adequately accommodates a physician’s opinion that the claimant 11 is moderately limited in social functioning. Hughes, 599 F. App’x at 766. 12 Here, the ALJ acknowledged Dr. Joseph’s conclusion that Plaintiff had 13 “moderate limitations” and found these limitations “generally consistent with the 14 above residual functional capacity assessment.” (AR 27.) The ALJ assessed Plaintiff 15 with an RFC of (a) simple work; (b) limited contact with the public; (c) a predictable 16 work routine; and (d) no more than simple decisions. This RFC fairly accommodates 17 Dr. Joseph’s opinions that Plaintiff was moderately limited in (a) his ability to 18 perform detailed complex tasks, (b) relate to the public and (c) deal with stress. See, 19 e.g., Williams v. Colvin, 2016 WL 7480245, at *7-8 (C.D. Cal. Dec. 29, 2016) (ALJ 20 adequately accounted for medical opinion that plaintiff suffered moderate difficulties 21 in concentration, persistence, and pace by assessing plaintiff with the mental RFC to 22 perform “simple, repetitive tasks”). 23 However, contrary to the Commissioner’s suggestion, the ALJ did not purport 24 to accommodate all of Dr. Joseph’s opinions regarding Plaintiff’s moderate 25 limitations. The ALJ explicitly rejected Dr. Joseph’s opinions that Plaintiff is 26 moderately limited in his abilities to (a) relate to coworkers, (b) perform work without 27 special or additional supervision, and (c) complete a normal workday or workweek. 28 (AR 27.) Furthermore, these three limitations are not subsumed within the ALJ’s 9 1 RFC restricting Plaintiff to simple work, limited contact with the public, and a 2 predictable work routine with no more than simple decision making. See, e.g., 3 Raymond v. Berryhill, 2018 WL 3691842, at *6 (C.D. Cal. Aug. 2, 2018) (“Although 4 the ALJ’s restriction for unskilled work may encompass Plaintiff’s moderate 5 limitations in concentration, persistence, and pace, the RFC does not sufficiently 6 account for Plaintiff’s moderate limitations in performing routine work duties and 7 maintaining consistent attendance in the workplace.”); Atkinson v. Colvin, 2015 WL 8 5840210, at *3 (C.D. Cal. Oct. 5, 2015) (RFC restriction to non-complex tasks “may 9 encompass the concentration, persistence, and pace limitations assessed” by 10 physician, but did “not sufficiently account for Plaintiff’s moderate limitations in 11 performing activities within a schedule, maintaining regular attendance in the 12 workplace, or completing a normal workday and workweek without interruption”); 13 Hunter v. Colvin, 2015 WL 501466, at *1 (C.D. Cal. Feb. 5, 2015) (ALJ’s RFC 14 limiting claimant’s contact with the public did not account for physician’s opinion 15 that claimant was limited in ability to interact with co-workers and supervisors); 16 Jackson v. Colvin, 2014 WL 562240, at *2 (C.D. Cal. Feb. 11, 2014) (ALJ’s RFC of 17 “mild-to-moderate limitations in understanding and remembering tasks, sustaining 18 concentration and persistence, socially interacting with the general public and 19 adapting to workplace changes” did not encompass opinion that claimant was 20 moderately limited to interacting with co-workers, maintaining regular attendance, 21 and completing normal workday and workweek). Thus, the Court rejects the 22 Commissioner’s characterization of the ALJ’s decision as essentially “translating” 23 Dr. Joseph’s opinions and incorporating them into an RFC. 24 25 b. The ALJ failed to provide legally sufficient reasons for rejecting Dr. Joseph’s opinions. 26 As set forth in detail above, at least some of Dr. Joseph’s opinions regarding 27 Plaintiff’s moderate limitations were uncontroverted. In particular, both the State 28 Agency physicians and Dr. Joseph specifically concluded that Plaintiff was limited 10 1 in his ability to interact with others. No other physicians’ opinions were inconsistent 2 with this conclusion. Consequently, the ALJ arguably was required to provide clear 3 and convincing reason for rejecting at least this opinion. Nevertheless, even assuming 4 that some or all of Dr. Joseph’s opinions were controverted, the ALJ still was required 5 to provide specific and legitimate reasons supported by substantial evidence in the 6 record for rejecting them. Orn, 495 F.3d at 632. 7 The ALJ provided two reasons for rejecting Dr. Joseph’s opinions. First, the 8 ALJ stated that Dr. Joseph’s opinion was “vague and unclear” because she assessed 9 “moderate limitations” and “the term ‘moderate’ is not defined and does not specify 10 the claimant’s functional abilities.” (AR 27.) At least in the circumstances of this 11 case, merely characterizing a term that is frequently used in the social security context 12 as “vague and unclear” is not a sufficient reason to reject an examining physician’s 13 opinion. See Vasquez v. Berryhill, 2017 WL 2633413, at *7 (E.D. Cal. June 19, 2017) 14 (ALJ could not properly reject examining physician’s opinion that claimant had 15 moderate limitations by stating that the definition of the term “moderate” was “vague 16 and ambiguous”); Lockhart v. Comm’r of Soc. Sec., 2015 WL 5173049, at *9 (E.D. 17 Cal. Sept. 3, 2015) (ALJ erred by rejecting physician’s opinion regarding claimant’s 18 concentration ability as vague without seeking to develop and clarify the record), 19 report and recommendation adopted, 2015 WL 11233047 (E.D. Cal. Nov. 4, 2015); 20 Dean v. Colvin, 2015 WL 6158874, at *7 (W.D. Wash. Sept. 29, 2015) (the ALJ 21 improperly rejected physician’s opinion of functional limitations as “mild” and 22 “moderate” on ground that terms were “too vague to be useful”), report and 23 recommendation adopted, 2015 WL 6158913 (W.D. Wash. Oct. 19, 2015). 24 Second, the ALJ found that Dr. Joseph’s opinions that Plaintiff was limited in 25 his ability to relate to coworkers, work without supervision, and complete a normal 26 workday or work week were inconsistent with Dr. Joseph’s findings showing that 27 Plaintiff “had normal grooming, eye contact, interpersonal contact, cooperation, 28 11 1 behavior, logical thoughts, thought content, orientation, cognitive function, attention, 2 concentration, calculations, fund of knowledge, and intelligence.” (AR 27.) 3 As a general matter, an ALJ may reject a medical conclusion that is 4 inconsistent with the findings from the physician’s own examination. See Hernandez 5 v. Berryhill, 707 F. App’x 456, 457-458 (9th Cir. 2017) (fact that physician’s opinion 6 that was inconsistent with physician’s “own treatment notes” is a specific and 7 legitimate reason for discounting opinion); Bayliss v. Barnhart, 427 F.3d 1211, 1216 8 (9th Cir. 2005) (discrepancy between a physician’s notes and recorded observations 9 and opinions and the physician’s assessment of limitations is a clear and convincing 10 reason for rejecting the opinion). 11 Here, however, the ALJ’s conclusion that Dr. Joseph’s report was inconsistent 12 with her opinions is not supported by the record. In particular, it is not evident, and 13 the ALJ did not explain, how findings that Plaintiff had “fair eye contact and fair 14 interpersonal contact with this interviewer,” was cooperative, logical, able to perform 15 calculations and of average intelligence, were inconsistent moderate limitations in an 16 ability to interact with coworkers, work without supervision, or complete a normal 17 workday or workweek. See Anderson v. Berryhill, 2018 WL 2081848, at *4 (C.D. 18 Cal. Apr. 30, 2018) (although ALJ correctly noted physician’s report found claimant 19 was “polite and cooperative,” “oriented in all spheres,” “made good eye contact,” 20 had normal speech, and “reportedly had not abused drugs in a year,” he failed to 21 “explain how these particular aspects of the mental status examination are 22 inconsistent with the limitations assessed by Dr. El Sokkary, such as moderate 23 restrictions in the ability to understand, remember, and perform simple tasks and 24 difficulties completing a normal workday/workweek without brief interruptions from 25 psychiatric symptoms”); Deen v. Colvin, 214 F. Supp. 3d 1000, 1006 (W.D. Wash. 26 2016) (ALJ’s reason for rejecting physician opinion was not supported by substantial 27 evidence because report finding claimant cooperative during a portion of the 28 evaluation did not undermine physician’s findings concluding that claimant would 12 1 have severe social impairments in a full-time workplace); see also, Popa v. Berryhill, 2 872 F.3d 901, 906 (9th Cir. 2017) (ALJ failed to provide legally sufficient reasons 3 for rejecting examining psychologist’s opinion that claimant was “not likely to 4 maintain regular attendance [at work] due to [her] mental health” where the ALJ 5 concluded that the opinion conflicted with the claimant’s daily activities but failed to 6 explain how the ability to attend church, shop for groceries, and watch television 7 establishes the ability to maintain regular attendance at work). 8 Moreover, the ALJ did not address several of Dr. Joseph’s other findings in 9 the mental status examination. For example, the ALJ failed to consider Dr. Joseph’s 10 findings that Plaintiff’s thought process was circumstantial, disorganized, and 11 tangential; his mood was anxious and depressed; his affect was irritable, angry, sad, 12 and constricted; and his insight and judgment did not appear to be intact regarding 13 his current situation. (AR 308-310.) The ALJ’s selective reliance on only some of 14 Dr. Joseph’s findings in the mental status examination does not provide a sufficient 15 basis for rejecting her opinion. See Holohan v. Massanari, 246 F.3d 1195, 1205 (9th 16 Cir. 2001) (a treating doctor’s “statements must be read in context of the overall 17 diagnostic picture he draws”); Anderson, 2018 WL 2081848, at *4 (ALJ improperly 18 relied only on some findings to conclude physician’s report was inconsistent with 19 opinion). 20 The Commissioner points out that moderate mental limitations are defined as 21 “more than a slight limitation in this area but the individual is still able to function 22 satisfactorily.” (ECF No. 19 at 5.) While moderate limitations do not necessarily 23 indicate that Plaintiff is unable to perform all work activity, the ALJ was required to 24 either include these limitations in Plaintiff’s RFC assessment or provide legally 25 sufficient reasons for rejecting them. See Farnetti v. Comm’r of Soc. Sec., 2018 WL 26 4182493, at *4 (E.D. Cal. Aug. 29, 2018) (that “moderate limitations” do not render 27 a claimant disabled does not permit ALJ to ignore them by failing to include them in 28 RFC or properly reject them); Wiles v. Berryhill, 2017 WL 5186333, at *3 (C.D. Cal. 13 1 Nov. 8, 2017) (although moderate limitations in various areas of functioning, such as 2 in the ability to maintain regular attendance or to complete a normal workday and 3 workweek are not per se disabling, ALJ erred in assessing RFC without either 4 including the limitations or offering specific reasons for rejecting opinion). 5 Finally, an ALJ’s failure to properly evaluate a treating physician’s opinion 6 may be harmless error when a reviewing court “can confidently conclude that no 7 reasonable ALJ, when fully crediting the [opinion], could have reached a different 8 disability determination.” Marsh v. Colvin, 792 F.3d 1170, 1173 (9th Cir. 2015) 9 (quoting Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1055-1056 (9th Cir. 10 2006)). If Dr. Joseph’s opinions were credited, it would likely have affected the 11 ALJ’s RFC and, consequently, the hypothetical posed to the VE. Further, the VE did 12 not offer testimony regarding a hypothetical claimant with the limitations that the 13 ALJ failed to properly address. (See AR 77-83.) Accordingly, the Court cannot 14 conclude that the error was harmless. See Adkins v. Berryhill, 2018 WL 4735714, at 15 *4 (C.D. Cal. Sept. 28, 2018) (error was not harmless because, in failing to either 16 expressly reject or incorporate physician’s restrictions into RFC or the hypothetical 17 questions posed to the VE, the VE’s opinion regarding claimant’s ability to perform 18 work lacked evidentiary value); Devery v. Colvin, 2016 WL 3452487, at *5 (C.D. 19 Cal. June 22, 2016) (ALJ’s erroneous failure to provide reasons for rejecting 20 physician’s limitations was not harmless because VE did not testify that a 21 hypothetical person with those limitations could work). 22 REMEDY 23 Ninth Circuit case law “precludes a district court from remanding a case for an 24 award of benefits unless certain prerequisites are met.” Dominguez v. Colvin, 808 25 F.3d 403, 407 (9th Cir. 2016) (citations omitted). “The district court must first 26 determine that the ALJ made a legal error, such as failing to provide legally sufficient 27 reasons for rejecting evidence. . . . If the court finds such an error, it must next review 28 the record as a whole and determine whether it is fully developed, is free from 14 1 conflicts and ambiguities, and all essential factual issues have been resolved.” 2 Dominguez, 808 F.3d at 407 (citation and internal quotation marks omitted). 3 Although the Court has found error as discussed above, the record on the whole 4 is not fully developed, and factual issues remain outstanding. The issues concerning 5 Plaintiff’s alleged disability “should be resolved through further proceedings on an 6 open record before a proper disability determination can be made by the ALJ in the 7 first instance.” See Brown-Hunter v. Colvin, 806 F.3d 487, 496 (9th Cir. 2015); see 8 also Treichler, 775 F.3d at 1101 (remand for award of benefits is inappropriate where 9 “there is conflicting evidence, and not all essential factual issues have been 10 resolved”) (citation omitted); Strauss v. Comm’r of the Soc. Sec. Admin., 635 F.3d 11 1135, 1138 (9th Cir. 2011) (same where the record does not clearly demonstrate the 12 claimant is disabled within the meaning of the Social Security Act). Accordingly, the appropriate remedy is a remand for further administrative 13 14 proceedings pursuant to sentence four of 42 U.S.C. § 405(g).2 15 IT IS THEREFORE ORDERED that Judgment be entered reversing the 16 decision of the Commissioner of Social Security and remanding this matter for 17 further administrative proceedings consistent with this opinion. 18 19 DATED: 2/20/2019 20 ____________________________________ ALEXANDER F. MacKINNON UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28 2 It is not the Court’s intent to limit the scope of the remand. 15
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