Vargas v. Kijakazi, No. 1:2020cv04854 - Document 36 (N.D. Cal. 2022)

Court Description: AMENDED ORDER granting 15 Motion for Summary Judgment; denying 23 Motion for Summary Judgment. Accordingly, the ALJs finding of non-disability is REVERSED, and the case is REMANDED for the immediate calculation and award of appropriate benefits consistent with the findings and holdings expressed herein. Signed by Judge Robert M. Illman on 05/10/2022. (rmilc2, COURT STAFF) (Filed on 5/10/2022)
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Vargas v. Kijakazi Doc. 36 1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 EUREKA DIVISION 7 8 IRMA V.,1 Plaintiff, 9 v. 10 11 United States District Court Northern District of California Case No. 20-cv-04854-RMI KILOLO KIJAKAZI, Defendant. 12 AMENDED ORDER RE: CROSS MOTIONS FOR SUMMARY JUDGMENT Re: Dkt. Nos. 15, 23 13 Plaintiff seeks judicial review of an administrative law judge (“ALJ”) decision denying her 14 15 application for supplemental security income under Title XVI of the Social Security Act. See AR 16 at 15.2 Plaintiff’s request for review of the ALJ’s unfavorable decision was denied by the Appeals 17 Council (see id. at 1-6), thus, the ALJ’s decision is the “final decision” of the Commissioner of 18 Social Security which this court may review. See 42 U.S.C. §§ 405(g), 1383(c)(3). Both Parties 19 have consented to the jurisdiction of a magistrate judge (dkts. 6 & 9), and both parties have moved 20 for summary judgment (dkts. 15 & 23). For the reasons stated below, Plaintiff’s motion for 21 summary judgment is granted, and Defendant’s motion is denied. LEGAL STANDARDS 22 The Commissioner’s findings “as to any fact, if supported by substantial evidence, shall be 23 24 conclusive.” 42 U.S.C. § 405(g). A district court has a limited scope of review and can only set 25 26 27 28 1 Pursuant to the recommendation of the Committee on Court Administration and Case Management of the Judicial Conference of the United States, Plaintiff’s name is partially redacted. The Administrative Record (“AR”), which is independently paginated, has been filed in several parts as a number of attachments to Docket Entry #11. See (dkts. 11-1 through 11-13). 2 United States District Court Northern District of California 1 aside a denial of benefits if it is not supported by substantial evidence or if it is based on legal 2 error. Flaten v. Sec’y of Health & Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995). The phrase 3 “substantial evidence” appears throughout administrative law and directs courts in their review of 4 factual findings at the agency level. See Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019). 5 Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as 6 adequate to support a conclusion.” Id. at 1154 (quoting Consol. Edison Co. v. NLRB, 305 U.S. 7 197, 229 (1938)); see also Sandgathe v. Chater, 108 F.3d 978, 979 (9th Cir. 1997). “In 8 determining whether the Commissioner’s findings are supported by substantial evidence,” a 9 district court must review the administrative record as a whole, considering “both the evidence 10 that supports and the evidence that detracts from the Commissioner’s conclusion.” Reddick v. 11 Chater, 157 F.3d 715, 720 (9th Cir. 1998). The Commissioner’s conclusion is upheld where 12 evidence is susceptible to more than one rational interpretation. Burch v. Barnhart, 400 F.3d 676, 13 679 (9th Cir. 2005). 14 15 PROCEDURAL HISTORY On October 30, 2017, Plaintiff filed an application for Title XVI benefits, alleging an onset 16 date of March 12, 2015. See AR at 15. As set forth in detail below, the ALJ found Plaintiff not 17 disabled and denied the application on December 31, 2019. Id. at 15-30. The Appeals Council 18 denied Plaintiff’s request for review on June 5, 2020. See id. at 1-6. Thereafter, Plaintiff sought 19 review in this court on July 20, 2020 (see Compl. (dkt. 1) at 1-2) and the instant case was initiated. 20 SUMMARY OF THE RELEVANT EVIDENCE 21 Plaintiff’s life has been punctuated with a great many tragic events. By way of background, 22 Plaintiff (who is now 47 years old) was born in Guadalajara, Mexico, and – along with her family 23 – she immigrated to the United States when she was very young. See AR at 502. While her early 24 childhood was unremarkable (so far as the record reflects), Plaintiff began to experience serious 25 academic problems during high school, which eventually caused her to drop out and secure work 26 as a part-time childcare provider. Id. At around the age of 18, Plaintiff became a marijuana user, a 27 habit which soon led her to start using crack cocaine. Id. After giving birth to her first two 28 children, Plaintiff was unable to discontinue her cocaine use, which eventually resulted in both 2 1 children being removed from her custody and placed in foster care. Id. Tragedy struck when 2 Plaintiff’s second child – a two-year-old boy – died in foster care while he was unsupervised in a 3 playground sandbox, suffocating as a result of ingesting too much sand. Id. This tragedy caused 4 Plaintiff to seek help in achieving and maintaining sobriety; at which point, she developed a 5 seizure disorder for which she has been medicated, although she continues to experience seizures 6 to this day. Id. United States District Court Northern District of California 7 Tragedy struck again in 2015 or 2016 when Plaintiff became the unintended victim of a 8 drive-by shooting while standing outside of a grocery store – she was shot in the back three times 9 by errant bullets. Id. As a result of those wounds, Plaintiff continues to suffer from severe back 10 pain, numbness in the leg, and spinal damage. Id. at 502, 578 (Plaintiff spent 1 week in the 11 hospital, mostly in intensive care), 759 (the shooting left Plaintiff afflicted with migraines and 12 pain in her back and legs), 833 (bullet fragments are still lodged at various locations in Plaintiff’s 13 chest). The shooting, and its consequential spinal damage, caused Plaintiff to also suffer thereafter 14 from migraines – a condition with which she was consistently and repeatedly diagnosed. See id. at 15 908, 912, 915, 918, 960, 988, 1037. 16 Plaintiff successfully discontinued cocaine use in her early thirties, and she discontinued 17 alcohol use in about 2013. Id. at 503. In 2017, tragedy struck again when Plaintiff’s 7-year-old 18 grandchild died. See id. at 582. Plaintiff now suffers from depression, anxiety, posttraumatic stress 19 disorder (“PTSD”), a seizure disorder, intellectual disorder, diabetes mellitus, and obesity. See id. 20 at 17, 501. Plaintiff’s intellectual disability caused her to never be able to develop literacy skills 21 (see id. at 586-87) which, in combination with her other conditions, operated to keep her from 22 being able to work since she was 21 years old (see id. at 583). During her early adulthood, 23 Plaintiff went on to have two more children which she managed to support with the help of 24 various public assistance programs. Id. at 507. 25 Medical Evidence 26 Plaintiff’s treatment history and medical records are sparse and disjointed because her 27 financial situation has rendered her unable to secure frequent and thorough medical care – instead, 28 the vast majority of her medical records are either hospital records (ranging from her 3 United States District Court Northern District of California 1 hospitalization following the drive-by shooting, or emergency room visits on other occasions) or 2 the records come from various organizations dedicated to providing clinical services to the poor 3 (e.g., La Clinica de la Raza, Street Level Health Project, Bonita House / Casa Ubuntu). On many 4 occasions, Plaintiff’s various treatment providers have noted the symptoms of her major 5 depressive disorder (e.g., persistent mood swings, frequently alternating between lability and 6 tearfulness, depressed mood for most of every day, significant weight loss without dieting, 7 persistent fatigue and low-energy, persistent feelings of worthlessness, an inability to think clearly, 8 and a persistent inability to concentrate on completing tasks). See id. at 579, 584, 598, 607, 610, 9 960, 965, 981-82. 10 During her course of treatment – over many years – Plaintiff’s treatment providers have 11 noted the interconnected and intertwined nature of her impairments; for example, her clinicians 12 have noted that that her seizure disorder fuels her anxiety disorder (in that Plaintiff cannot stop 13 ruminating and worrying about her next seizure event); furthermore, her physical impairments, her 14 PTSD, and her financial condition combine to exacerbate her depression. See e.g. id. at 580, 585, 15 981 (“Her depression is also exacerbated by her chronic pain and her posttraumatic symptoms and 16 grief”). Similarly, Plaintiff’s medical records contain voluminous support for her anxiety disorder, 17 which is attended with panic attacks, chest tightness, fatigue, heart palpitations, insomnia, and 18 agoraphobia. See id. at 908-09, 917, 919, 960-61, 973, 981-82. 19 As for Plaintiff’s seizure disorder, during an office visit in June of 2019, Plaintiff’s treating 20 neurologist, Antonio Jose Silva Sayago, M.D., personally observed one of Plaintiff’s seizures in 21 the clinical setting. See id. at 1037-41. Dr. Sayago noted the following observation: 22 During this visit[,] at some point[,] she suddenly turned the head to the right and stopped responding to any external stimuli. She displayed [] what seemed to be lip smacking. After two minutes[,] she was again making eye contact and fixating with her gaze in response to my voice. She seemed confused and unaware of the event. Id. at 1039. 23 24 25 26 Dr. Sayago diagnosed her as suffering from migraines and from partial symptomatic epilepsy with 27 complex partial seizures. Id. at 1040. In line with the overarching theme of Plaintiff’s conditions 28 exacerbating one another, Dr. Sayago noted that her intellectual disorder worsens her epilepsy as 4 1 follows: “it is very difficult to obtain a reliable history as she seems to have poor abstraction and 2 limited insight . . . [which] could be congenital (development delay) . . . I suspect she is not 3 compliant with her antiepileptic drug. A reminder was set on her phone to help her improve 4 compliance with the medication.” Id. 5 Plaintiff’s black-out seizures (of which she does not retain an awareness) were also 6 observed by her clinicians at Casa Ubuntu in November of 2019. See id. at 382. On that occasion, 7 while Plaintiff was waiting for her attorneys to pick her up in order to attend the hearing before the 8 ALJ in this case, her clinician noted: 9 I saw [Plaintiff] have a seizure on November 20th, 2019, about a half hour before she was picked up to go attend her Social Security hearing. As a result of the seizure, her coffee spilled on her things. She was completely unaware that she had a seizure . . . [W]hen an episode happens, it takes her approximately 15 minutes to ‘come out of it’ and be able to resume speaking and moving. However, once she is able to speak and move, she is still often in a confused state, and totally unaware that she had a seizure. Id. 10 United States District Court Northern District of California 11 12 13 14 15 Then, less than one hour later, while Plaintiff and her attorneys were awaiting the commencement 16 of the hearing before the ALJ at the SSA’s Hearing Operations facility in Oakland, California, 17 Plaintiff had another seizure which her attorney described in the following terms: 18 While we were waiting to get called into the hearing room, [Plaintiff] suddenly became non-responsive, her head fell to the side, and she soon began groaning. I understood that she was having a seizure. I briefly stepped outside to seek assistance . . . and [then] [I] tried to engage with [Plaintiff] a few times. She continued to be unresponsive for approximately three minutes. She then began to sit up, and become more alert. [Plaintiff] suddenly stood up, smiled, and walked out of the waiting room without saying a word. After she was gone for a few minutes, [co-counsel] went out to locate her, and could not find her. I then offered to go downstairs to try to find her. As I was approaching the elevator, the elevator doors opened, and [Plaintiff] stepped out. We walked back to the waiting room, and were almost immediately called into the hearing room [and] [t]he hearing began promptly thereafter. Id. at 380. 19 20 21 22 23 24 25 26 27 Moments later, the hearing before the ALJ (which is described infra) was commenced. 28 // 5 United States District Court Northern District of California 1 Medical Opinion Evidence from Treating Sources 2 On October 3, 2019, one of Plaintiff’s treatment providers at La Clinica de la Raza (Sheila 3 Dominic FNP) completed and submitted a medical source statement regarding Plaintiff’s physical 4 impairments. See id. at 1050-57. Nurse Dominic began by noting that she had been treating 5 Plaintiff monthly for the better part of a year. Id. Plaintiff’s diagnoses were (on this form) limited 6 to her epilepsy and her migraine disorder, and Nurse Dominic noted that Plaintiff demonstrates 7 “impaired insight on mental status exams” such that she is “not able to answer simple questions 8 about [her] health.” Id. at 1051. Nurse Dominic then noted the following about Plaintiff’s physical 9 impairments and their limitations: the impairments are expected to last longer than twelve months; 10 Plaintiff cannot sit for longer than 1 hour before needing to change position (id. at 1052); 11 Plaintiff’s physical impairments will combine to render her off-task more than 30% of the time 12 even when faced with simple work tasks (id. at 1056); Plaintiff’s impairments are likely to 13 produce good and bad days (id. at 1057); and, Plaintiff should be expected to be absent from work 14 for more than four days per month (id.). Nurse Dominic then added that “[a]bove all, I feel that 15 [her] psychological / cognitive impairments will affect [her] ability for regular work [as] [Plaintiff] 16 exhibits poor insight, abstraction, [and] concentration.” Id. 17 The following day, on October 4, 2019, one of Plaintiff’s treatment providers at Bonita 18 House (Chelsea Landolin PNP) completed and submitted a mental impairment questionnaire on 19 Plaintiff’s behalf. See id. at 1059-63. In completing this questionnaire, Nurse Landolin focused on 20 Plaintiff’s major depressive disorder and its attendant symptoms and limitations – identifying the 21 following signs and symptoms: significant deficits in complex attention, executive function, 22 learning and memory, language, perceptual-motor, or social cognition functioning; decreased 23 energy, difficulty concentrating or thinking, depressed mood, and significant difficulties learning 24 and using academic skills. Id. at 1061. Nurse Landolin then opined that Plaintiff’s major 25 depressive disorder should be expected to cause her to be off-task about 20% of the time, while 26 causing her to be absent from work 2 days per month. See id. at 1062. Lastly, Nurse Landolin 27 noted that Plaintiff “is suspected to suffer from a learning disability that would have originated in 28 childhood or adolescence [as] she is not fully literate, she is trying to address this by taking 6 United States District Court Northern District of California 1 [reading] classes, but requires extensive additional support and time.” Id. at 1063 2 Consultative Examinations 3 On November 5, 2018, Plaintiff was referred for a consultative examination by Eugene 4 McMillan, M.D., a specialist in internal medicine. See id. at 692-96. Dr. McMillan’s examination 5 focused on some of Plaintiff’s physical impairments (to wit, her seizures, her migraine headaches, 6 and her gunshot wounds). Id. at 692. To this end, it appears that Dr. McMillan reviewed data from 7 Plaintiff’s bloodwork from June 8, 2017, and performed a physical examination. Id. at 694. He 8 then noted his diagnostic impressions of Plaintiff’s conditions as including seizure disorder and 9 mixed tension and migraine headaches. Id. at 695. In the end, he opined that Plaintiff could: 10 occasionally lift and carry 50 pounds; and that she could frequently lift and carry 25 pounds; that 11 she could stand, sit, and walk without limitation; that she could engage in stooping, kneeling, and 12 crouching for at least one third of a workday; that she should avoid working at heights; that she 13 could reach in all directions without limitation; that she experiences no limitations with gross or 14 fine manipulation; and, that she requires no environmental limitations for temperatures, chemicals, 15 or dust. Id. 16 Several months earlier, on August 10, 2018, Plaintiff was referred to Laura Catlin, Psy.D., 17 for a psychological consultative examination. Id. at 501-21. Dr. Catlin produced a thorough 20- 18 page report that was based on a clinical interview, records review, and a mental status 19 examination, in addition to administering the following diagnostic instruments: the Wechsler 20 Adult Intelligence Scale (“WAIS-IV”); the Repeatable Battery for the Assessment of 21 Neuropsychological Status (“RBANS”); the Beck Depression Inventory (“BDI”); and, the Burns 22 PTSD Inventory. Id. at 501. On this foundation, Dr. Catlin rendered a number of findings. See id. 23 at 501-09. Dr. Catlin found that Plaintiff’s conditions combine to render many activities of daily 24 living difficult – for example, she found that Plaintiff’s depression causes her to experience 25 difficulty dealing with people she does not know, along with difficulty maintaining her 26 friendships. Id. at 502. She also found that Plaintiff’s anxiety causes her to no longer participate in 27 pleasurable activities, opting instead to spend her time alone. Id. Additionally, Plaintiff’s cognitive 28 impairment causes her to experience “severe difficulty concentrating and remembering to do 7 1 important things without reminders . . . [such as maintaining] hygiene and basic self-care 2 activities.” Id. United States District Court Northern District of California 3 As a result of a mental status examination, Dr. Catlin observed that Plaintiff’s mood 4 appeared depressed and anxious; that her affect was labile and congruent with her mood; that 5 Plaintiff reported suicidal thoughts, but had no plans or intent in that direction; and, that Plaintiff’s 6 insight and judgment were limited. Id. 503-04. She also noted that Plaintiff sleeps a lot more than 7 usual; that she does not have enough energy to do very much; that her concentration was very 8 poor; that her immediate and delayed memory are impaired; and that Plaintiff has experienced 9 appetite disturbances (in that her appetite was greater than usual). See id. at 504. 10 Next Dr. Catlin administered the RBANS diagnostic instrument. Id. at 504-05. The 11 RBANS is a brief neurocognitive battery which measures immediate and delayed memory, 12 attention, language, and visuospatial skills. See id. at 504. The reason for administering this test 13 was “for the detection and tracking of neurocognitive deficits.” Id. Without delving too deeply into 14 the minutiae of the RBANS results – the court will note the following: (1) Plaintiff’s performance 15 in the Immediate Memory Index reflects that she functions in the extremely low range; (2) her 16 performance in the Delayed Memory Index was in the severely impaired range; (3) her 17 performance in the Visuospatial / Constructional Index was in the extremely low range; (4) her 18 performance in the two tasks that make up the language index (Semantic Fluency and Picture 19 Naming) was also situated in the extremely impaired range; and, lastly, (5) Plaintiff’s attention 20 span was also measured to occupy the severely impaired range. Id. 504-05. Plaintiff’s overall 21 score on the administering of the RBANS was in the extremely low range. Id. at 504. 22 The administering of the BDI indicated that Plaintiff suffers from symptoms congruent 23 with moderate depression. Id. at 505. In this domain, Dr. Catlin found that the signs and symptoms 24 of Plaintiff’s depression include: feeling sad most of the time, feelings of guilt and pessimism, and 25 an overall lack of pleasure in life. Id. She also found that Plaintiff is saddled with feelings of 26 disappointment in herself and that she blames herself for everything bad in her life – consequently, 27 Plaintiff cries more than she used to. Id. Additionally, Plaintiff has difficulty making decisions, 28 and has lost interest in doing much of anything. Id. at 505-06. Plaintiff also experiences a 8 1 persistent low-energy state and sleeps through most of the day and yet still feels fatigued during 2 her remaining waking hours. Id. at 506. Lastly, Plaintiff confirmed that she has had, and continues 3 to have suicidal ideations “but would not carry them out.” Id. United States District Court Northern District of California 4 As to her history of trauma, the administering of the Burns PTSD Inventory indicated that 5 Plaintiff is still experiencing many symptoms of PTSD. Id. During and after these experiences, 6 Plaintiff is generally left feeling intensely afraid, helpless, and horrified; she has been plagued 7 with persistent memories of the event (namely, being shot in the back several times outside a 8 grocery store), and she becomes very upset when thinking about that event. Id. Further, Plaintiff 9 avoids people and places that remind her of that event. Id. More generally, Plaintiff often feels 10 isolated and alienated from other people, she has trouble sleeping, she has angry outbursts 11 sometimes, she experiences difficulty with concentration, she is easily startled, and she has 12 become hyper-vigilant of her surroundings. Id. In all, as Dr. Catlin found – “[t]hese reactions to 13 the event significantly interfere with her life.” Id. 14 As for the WAIS-IV – Dr. Catlin measured Plaintiff’s full-scale IQ (“FSIQ”) score at 57, 15 placing her in the bottom 0.2% of individuals her age; or, put another way, Plaintiff’s “general 16 cognitive ability is within the extremely low range of intellectual functioning.” Id. at 514. As for 17 the subcomponents of Plaintiff’s FSIQ, those results are as follows: (1) Plaintiff’s verbal 18 comprehension score was measured at 61, which in the extreme low range, or in the bottom 0.5% 19 of individuals her age; (2) Plaintiff’s perceptual reasoning score was measured at 63, which is in 20 the extremely low range, or in the bottom 1% of individuals her age; (3) Plaintiff’s working 21 memory index was measured at 55, which is in the extreme low range, or in the bottom 0.1% of 22 individuals her age; and, (4) her processing speed was measured at 76, which is in the borderline 23 range of intellectual functioning, or in the bottom 5% of individuals her age. See id. at 514-15. The 24 upshot of this intellectual testing was that “[t]he claimant has indications of an intellectual 25 disability.” Id. at 508. Dr. Catlin also found that Plaintiff “shows adaptive functioning deficits in 26 conceptual, social, and practical domains” as follows: 27 28 She has difficulty with reasoning, problem solving, planning, abstract thinking, judgment, academic learning, and learning from experience. 9 1 2 3 4 5 6 7 8 She has failed to meet developmental and socio-cultural standard[s] for personal independence and social responsibility. Her adaptive deficits limit her functioning in such areas as communication, social participation, and independent living. In the conceptual domain [Plaintiff] has difficulties in learning academic skills that include reading, writing, arithmetic, time and money management. In the social domain the claimant is immature in social interactions. Her communication and conversation style is concrete and immature for her age. She has difficulty regulating her emotions and behaviors in an age appropriate fashion. She has a limited understanding of risk in social situations, her social judgment is immature for her age and she is at [a] high risk for being manipulated by others. In the practical domain[,] the claimant has deficits in completing daily living tasks. She requires support with grocery shopping, food preparation, transportation, and banking and money management. Id. at 508. United States District Court Northern District of California 9 10 Dr. Catlin then described the implications and attendant limitations of Plaintiff’s intellectual 11 disorder, when combined with the signs and symptoms of her other mental impairments, as such: 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Overall, the claimant will have great difficulty understanding, remembering, and/or applying information given to her. Her mental health symptoms will make interacting with others very difficult. Her anxiety and depressive symptoms primer her to be more irritable, emotionally sensitive, and unable to navigate most social interaction in an appropriate manner. Her paranoia and predisposition to believe others do not like or accept her will cause conflicts in the work setting. Her hyper-vigilance of her surroundings and exaggerated startle response will make concentrating and paying attention to [the] details of a job very difficult. Distraction from mental health symptoms will cause difficulties with keeping up [an] appropriate pace [at] [] work []. Her concentration is impaired and her ability to persist through frustrating or challenging work assignments is significantly diminished. The claimant has severe impairments organizing herself appropriately to be able to arrive on time and show up consistently for employment. The claimant’s ability to function independently, appropriately, effectively, and on a sustained basis is very limited. Because the claimant has fewer internal resources to manage stress and mental demands[,] she is vulnerable to decompensation. She has a minimal capacity to adapt to changes in the environment or to demands that are not already part of her life. Executive functions like impulse control, frustration tolerance, [and] appropriate responses to stress are all impaired for this claimant. Id. at 508-09. In the end, Dr. Catlin found that Plaintiff experiences marked limitations in very single 26 conceivable category of work-related functioning. See id. at 509-10 (opining marked limitations in 27 23 categories or work-related function ranging from the ability to perform even simple tasks, to 28 the ability to use public transportation). She also found that Plaintiff has had multiple episodes of 10 United States District Court Northern District of California 1 decompensation within a 12-month period, and that her condition is expected to last more than 12 2 months. Id. at 510. Dr. Catlin concluded by adding that Plaintiff’s “impairments will cause her to 3 be absent from work more than four days per month [and that] [a]t this time[,] the claimant is 4 unable to engage in any meaningful employment and would not be able to obtain or retain a job.” 5 Id. 6 The Medical Expert Retained by the ALJ 7 On November 20, 2019, the ALJ convened a hearing in this case and the first witness to 8 testify was the ALJ’s retained medical expert, Faren Akins, Ph.D., J.D. – a psychologist (licensed 9 in California, Arizona, and North Carolina) and an attorney (licensed in California and Arizona). 10 See id. at 56-67, 1064-67. Dr. Akins noted that the record indicated that Plaintiff had several 11 severe conditions that “would trigger consideration of listing 12.05 [intellectual disorder] or 12 possibly 12.02 [neurocognitive disorders], 12.04 [depressive or bipolar and related disorders] and 13 12.15 [trauma and stressor-related disorders].” Id. at 57. Pointing out that Plaintiff’s FSIQ score 14 shows that her “intellectual capacity is reduced,” as well as noting that the record reflects serious 15 deficits in Plaintiff’s adaptive functioning skills, Dr. Akins proposed looking at several other 16 listings, and the following exchange took place: 17 18 19 20 21 22 23 24 25 26 27 28 DR. AKINS: [N]ot sure that we have an indication that that condition dates back to age 22 . . . [a]nd [so] it may be that it makes more sense to use [Listing] 12.02 [neurocognitive disorders] because then we don’t have to deal with the issue of whether it predates age 22 or not. So with that in mind I would propose that we look at [Listing] 12.02, 12.04 and 12.15. And from that[,] given that the ‘A’ prong of each of those is met, I would offer the opinion that to a medical certainty the claimant equals the three listings based upon marked impairments in B1, B3 and B4. And I’ll go through those to - - to give you the specifics. Under B1, understand, remember or apply information the IQ scores would certainly support that there are marked difficulties there. The examination that we have [by Dr. Catlin] concludes on pages 8 and 9 that really all four - - Hello? Are we still there? ALJ: No, we’re still here. We’re listening. DR. AKINS: . . . [I]n any event, continuing on the opinion from the evaluation [of Dr. Catlin] on pages 8 and 9 were that all four of the ‘B’ prong areas were markedly impaired. Certainly I agree with that for #1. I only gave a moderate impairment for interact[ing] with others for B2 simply because I just didn’t find a lot here to indicate that somehow there were significant problems in that area. What I did find 11 1 2 3 4 5 6 7 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 is [that Nurse Landolin’s evaluation on] page 3 indicates that the claimant has significant deficits in social cognition. And, let’s see under the adaptive deficits noted [by Dr. Catlin], one of those was social functioning. But I also noted that the claimant had a significant relationship and more recently had worked as a live-in healthcare aide for an elderly person, and it seemed like there was some indication that the claimant could function at a greater level than what we would posit for a marked impairment, so I gave a moderate there. For B3, concentrate, persist or maintain pace, I gave a marked impairment there. That was based on [Nurse Landolin’s] finding that indicated that the claimant had significant deficits in complex attention. The IQ scores for working memory which would be a basis for concentration and focus and attention [were] quite low at 55. And attention was noted to be severely impaired in [Dr. Catlin’s] evaluation []. And then for B4, adapt or manage one’s self, I have a marked impairment there. [Dr. Catiln] found that the claimant’s insight and judgment were limited . . . [a]nd that [is] even for such things as personal hygiene and basic self-care, self-management if you will, that there were difficulties there . . . And I think those were the couple of items in particular [that] I was relating. The claimant does seem to have poor insight in [Nurse Dominic’s] source statement [as well]. And generally it looked like there was overall difficulties with executive functioning [as noted by Dr. Catlin]. And all of that together would certainly suggest to me that the claimant does have marked impairments in the ability to control her behavior, deal with her emotions, adapt to new environments and [the] demands of a workplace . . . [I]n any event, looking at things overall, I think that there are at least two of the ‘B’ prong areas that would be marked. I – I thought there were three and the evaluation from last year [Dr. Catlin] thought all four [were] marked. And given the [amended onset] date you asked me to consider, October 17th, 2016, I have - - I have no problem with that. Id. at 59-62. 18 Thus, as set forth above, Dr. Akins opined – “to a medical certainty” – that Plaintiff’s conditions 19 meet the requirements of Listings 12.02 (neurocognitive disorders), 12.04 (depression), and 12.15 20 (trauma and stressor-related disorders). 21 Plaintiff’s Hearing Testimony 22 As stated above, within hours (if that) of having a seizure event in front of her clinicians at 23 Casa Ubuntu, and within minutes of having another seizure event in front of her attorneys outside 24 the hearing room where the hearing would take place, Plaintiff appeared to testify before the ALJ. 25 See id. at 68-75. Through largely leading questioning, the ALJ first managed to establish that 26 Plaintiff had attained neither a G.E.D. nor a high school diploma. Id. at 68-69. At which point, the 27 following exchange took place: 28 12 1 ALJ: All right. And you haven’t had any seizures in a while, right, because you were taking the medication? 2 PLAINTIFF: No 3 ALJ: No, what does that - - no you haven’t had any seizures or no you’re wrong I have had seizures? 4 PLAINTIFF: No, I haven’t had a seizure. 5 ALJ: All right, okay, let me see, all right. 6 ATTORNEY: Your Honor, can I interject for a moment or - - 7 ALJ: Sure. 8 ATTORNEY: - - do you want me to wait until you’re - - 9 ALJ: Well, what is it? United States District Court Northern District of California 10 11 ATTORNEY: I just wanted to ask [Plaintiff] if she remembers just having a seizure in the waiting [room]. You don’t remember - - 12 PLAINTIFF: No. 13 ATTORNEY: - - what just happened? 14 PLAINTIFF: No. Id. at 70-71. 15 16 Thereafter, the ALJ attempted to determine whether Plaintiff has the ability to cook for herself, 17 and if not, why not – however, Plaintiff’s responses were largely incoherent such that the ALJ 18 abandoned that line of inquiry. See id. at 72. The ALJ’s inquiry about why Plaintiff thought she 19 was unable to work was similarly frustrated when Plaintiff was only able to respond to the 20 following effect: “The same. I stop going to my meetings, you know, was kind of hard. So I’m just 21 taking it a day at a time . . . The NA meetings and the, whatchamacallit, the other one, how do you 22 say it?” Id. at 73. Then, after a few other routine questions of little import (such as establishing 23 that Plaintiff does not live near any family), the ALJ proceeded to question the VE. See id. at 73- 24 75. 25 Vocational Expert Testimony 26 During questioning by the ALJ, the VE testified that anyone who would be off-task for 27 30% of the time would be unemployable. Id. at 77. The VE also stated that as far as absenteeism is 28 concerned, that is missing days of work – “employers alloy approximately ten to twelve days a 13 United States District Court Northern District of California 1 year . . . about one a month [o]r less.” Id. The VE later revised his testimony as to the minimum 2 amount of off-task time that might render someone unemployable as such: “[m]y professional 3 opinion is that when you look at what those percentages mean in time[,] that it’s approximately 4 10%. But I think that more than that when you consider that it’s off task for 10% or more[,] every 5 day[,] five days a week[,] 40 hours a week, you know, it becomes - - it becomes an issue with 6 maintaining productivity. It’s not just one day, it’s the consistency over time that’s going to add up 7 to be more and more [of] a problem as - - as the time goes on that one is with an employer.” Id. at 8 78. Lastly, in an effort of re-plow the same ground one more time, counsel asked the VE whether 9 someone might still be employable if, “[i]n responding to demands, adapting to changes and 10 managing psychologically-based symptoms, where ‘moderate’ is defined as performance that 11 would be expected to be precluded by 20%.” Id. at 79. The VE responded, “[n]ot in my 12 professional opinion. I think in the totality you’re - - you’re presenting a picture of someone that’s 13 going to be unable to stay productive in a work environment to the satisfaction of any employer.” 14 Id. 15 16 THE FIVE STEP SEQUENTIAL ANALYSIS FOR DETERMINING DISABILITY A person filing a claim for social security disability benefits (“the claimant”) must show 17 that she has the “inability to do any substantial gainful activity by reason of any medically 18 determinable physical or mental impairment” which has lasted or is expected to last for twelve or 19 more months. See 20 C.F.R. §§ 416.920(a)(4)(ii), 416.909. The ALJ must consider all evidence in 20 the claimant’s case record to determine disability (see id. § 416.920(a)(3)), and must use a five- 21 step sequential evaluation process to determine whether the claimant is disabled (id. § 416.920). 22 “[T]he ALJ has a special duty to fully and fairly develop the record and to assure that the 23 claimant’s interests are considered.” Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983). 24 Here, the ALJ set forth the applicable law under the required five-step sequential 25 evaluation process. AR at 16-17. At Step One, the claimant bears the burden of showing she has 26 not been engaged in “substantial gainful activity” since her alleged onset date (March 12, 2015). 27 See 20 C.F.R. § 416.920(b). If the claimant has worked and the work is found to be substantial 28 gainful activity, the claimant will be found not disabled. See id. The ALJ found that Plaintiff had 14 United States District Court Northern District of California 1 not engaged in substantial gainful activity during the relevant period. See AR at 17. At Step Two, 2 the claimant bears the burden of showing that she has a medically severe impairment or 3 combination of impairments. See 20 C.F.R. § 404.1520(c); 416.920(a)(4)(ii), (c). “An impairment 4 is not severe if it is merely ‘a slight abnormality (or combination of slight abnormalities) that has 5 no more than a minimal effect on the ability to do basic work activities.’” Webb v. Barnhart, 433 6 F.3d 683, 686 (9th Cir. 2005) (quoting S.S.R. No. 96–3(p) (1996)). At Step Two, the ALJ found 7 that Plaintiff suffered from the following severe impairments: intellectual disorder, moderate 8 depressive disorder, posttraumatic stress disorder (“PTSD”), anxiety, diabetes mellitus, history of 9 gunshot wounds, seizures, and obesity. See AR at 17-18. At Step Three, the ALJ compares the 10 claimant’s impairments to the impairments listed in appendix 1 to subpart P of part 404. See 20 11 C.F.R. § 416.920(a)(4)(iii), (d). The claimant bears the burden of showing her impairments meet 12 or equal an impairment in the listing. Id. If the claimant is successful, a disability is presumed and 13 benefits are awarded. Id. If the claimant is unsuccessful, the ALJ assesses the claimant’s residual 14 functional capacity (“RFC”) and proceeds to Step Four. See id. § 416.920(a)(4)(iv), (e). Here, the 15 ALJ found that Plaintiff did not have an impairment or combination of impairments that met or 16 medically equaled the severity of any of the listed impairments. AR at 18-22. Next, the ALJ 17 determined that Plaintiff retained the RFC to perform work at the medium level subject to subject 18 to a number of limitations and exceptions. Id. at 22-29. 19 At Step Four, the ALJ determined that Plaintiff was unable to perform her past relevant 20 work because she has no past relevant work. Id. at 29. Lastly, at Step Five, the ALJ concluded, 21 based on the RFC, Plaintiff’s age, education, and the VE’s testimony, that there are jobs that exist 22 in significant numbers which Plaintiff could perform – namely, the ALJ found that Plaintiff could 23 work as a hand packager or a kitchen helper. Id. at 29-30. Thus, the ALJ concluded that Plaintiff 24 had not been under a disability, as defined in the Social Security Act. Id. at 29. 25 26 DISCUSSION The ALJ in this case rejected the opinions of the only examining psychologist (Dr. Catlin) 27 as well as the opinions of the ALJ’s own retained medical expert (Dr. Akins), and instead 28 formulated an RFC (the mental components of which) were exclusively based on the ALJ’s 15 1 reliance on a few isolated nuggets of information from the record (that is, the notations of certain 2 intake staff that occasionally noted, for example, that Plaintiff did not appear to be in distress on a 3 particular day). As explained below, these nuggets were taken out of context, and they cannot be 4 construed to constitute substantial evidence that might justify rejecting the well-founded opinions 5 of Drs. Catlin and Akins. Similarly, the ALJ erred by relying on the opinions of two non- 6 examining state agency consultants who opined in 2018 that Plaintiff can perform simple, routine 7 tasks with limited public contact – as those opinions were arbitrary and unsupported, and also 8 because they were contradicted by the overwhelming weight of the record evidence set forth 9 above. United States District Court Northern District of California 10 Under the regulations that apply to Plaintiff’s application, ALJs are required to evaluate the 11 “persuasiveness” of all medical opinions according to factors set forth in 20 C.F.R. § 416.920c. 12 The first two factors, supportability and consistency, are considered the most important, and the 13 ALJ is required to explicitly address them in his or her decision. 20 C.F.R. § 416.920c(b)(2). The 14 ALJ “may, but [is] not required to,” explain how he or she considered the remaining three factors 15 listed in the regulations. Id. Although the regulations have eliminated the physician hierarchy, 16 deference to specific medical opinions, and assigning certain weight to any given medical opinion, 17 the ALJ must still articulate how he or she considered the medical opinions and how persuasive he 18 or she finds all of the medical opinions. See V.W. v. Comm’r of Soc. Sec., No. 18-cv-07297-JCS, 19 2020 WL 1505716, at *14 (N.D. Cal. Mar. 30, 2020); 20 C.F.R. § 416.920c(a), (b). As with all 20 other determinations made by the ALJ, the ALJ’s persuasiveness explanation must be supported 21 by substantial evidence. See 42 U.S.C. § 405(g) (“The findings of the Commissioner of Social 22 Security as to any fact, if supported by substantial evidence, shall be conclusive”). 23 The ALJ rejected Dr. Catlin’s opinions “because Dr. Catlin supported the opinion with her 24 one-time examination and the claimant’s subjective complaints, both of which were inconsistent 25 with the treatment records.” See AR at 29. The ALJ then added that “the longitudinal treatment 26 records show minimal abnormalities with many normal psychiatric and mental status 27 examinations.” Id. Similarly, the ALJ rejected the opinion of her own medical expert, Dr. Akins, 28 because of the notion that Dr. Akins simply parroted the opinions of Dr. Catlin (as well as the 16 1 opinions of Nurse Dominic and Nurse Landolin) while giving “minimal consideration [] to the 2 extensive treatment records in his testimony.” Id. at 27. United States District Court Northern District of California 3 The court finds this reasoning to be incorrect and deficient for numerous reasons. First, Dr. 4 Akins did not simply parrot the statements of others, and he specifically noted that he had 5 reviewed the entire record in this case – something which was evident in his testimony. Second, 6 the overwhelming weight of the treatment records in this case support and bolster Dr. Catlin’s 7 findings and conclusions, as well as those of Dr. Akins. Third, Dr. Catlin’s opinions did not 8 exclusively rest on Plaintiff’s subjective complaints – as described in detail above, Dr. Catlin’s 9 opinions rested in large part on the administering of a thorough mental status examination and 10 numerous diagnostic instruments such as the WAIS-IV, the RBANS, the BDI, and the Burns 11 PTSD Inventory. Fourth, it should not go without mention that the Ninth Circuit has repeatedly 12 held that, even putting aside the diagnostic instruments and Plaintiff’s results on those tests, “a 13 clinical interview and a mental status evaluation . . . are objective measures and cannot be 14 discounted as a ‘self-report.’” See Buck v. Berryhill, 869 F.3d 1040, 1049 (9th Cir. 2017); see also 15 Savannah v. Astrue, 252 F. App’x 783, 785 (9th Cir. 2007) (“Diagnosis by a medical expert 16 constitutes objective medical evidence of an impairment.”); Cox v. Apfel, 160 F.3d 1203, 1207 17 (8th Cir. 1998) (“Depression, diagnosed by a medical professional, is objective medical evidence 18 of pain to the same extent as an X-ray film.”). The court should also note that while “[p]sychiatric 19 evaluations may appear subjective, especially compared to evaluation in other medical fields,” this 20 does not change the fact that when it comes to many disorders of the mind, “[d]iagnoses will 21 always depend in part on the patient’s self-report, as well as on the clinician’s observations of the 22 patient. But such is the nature of psychiatry. Thus, the rule allowing an ALJ to reject opinions 23 based on self-reports does not apply in the same manner to opinions regarding mental illness.” 24 Buck, 869 F.3d at 1049 (citing Poulin v. Bowen, 817 F.2d 865, 873, 260 U.S. App. D.C. 142 (D.C. 25 Cir. 1987) (“[U]nlike a broken arm, a mind cannot be x-rayed.”)); see also Ferrando v. Comm’r of 26 Soc. Sec. Admin., 449 F. App’x 610, 612 (9th Cir. 2011) (“[M]ental health professionals 27 frequently rely on the combination of their observations and the patient’s reports of symptoms (as 28 do all doctors) . . . [and] [t]o allow an ALJ to discredit a mental health professional’s opinion 17 1 solely because it is based to a significant degree on a patient’s ‘subjective allegations’ is to allow 2 an end-run around our rules for evaluating medical opinions for the entire category of 3 psychological disorders.”); see also Regennitter v. Comm’r of SSA, 166 F.3d 1294, 1300 (9th Cir. 4 1999) (holding that the ALJ erred in discounting the opinion of an examining psychologist on the 5 ground that psychologist “appears to have taken [the plaintiff’s] statements at face value” because 6 there was no evidence that the plaintiff was malingering or deceptive). United States District Court Northern District of California 7 Such was the case here with the ALJ’s rejection of Dr. Catlin’s opinion – except that it was 8 even more egregious in this case because Dr. Catlin’s opinions were even more so based on her 9 administering of a number of widely-used and universally-accepted diagnostic instruments. 10 Accordingly, this is the type of conclusory and baseless reasoning that the Ninth Circuit has 11 repeatedly found to be insufficient. See e.g. Embrey v. Bowen, 849 F.2d 418, 421 (9th Cir.1988) 12 (“To say that medical opinions are not supported by sufficient objective findings . . . does not 13 achieve the level of specificity our prior cases have required, even when the objective factors are 14 listed seriatim.”); see also Regennitter, 166 F.3d at 1299. 15 Assuming that the opinions of Drs. Catlin and Akins (as well as those of Nurse Dominic 16 and Nurse Landolin) were “contradicted” by the conclusory opinions of the non-examining state 17 agency consultants who reviewed records at the outset of Plaintiff’s disability application process 18 and opined that Plaintiff could perform simple, routine tasks with limited public contact – the 19 court finds that the ALJ failed to express any acceptable explanation for rejecting those opinions. 20 In short, the court finds that the ALJ’s reasoning was not based on substantial evidence. Indeed, 21 the court expressly finds that the only body of “substantial evidence” in the record (which has 22 been set forth above) supports the opinions of Drs. Catlin and Akins. 23 Given that the definition of “substantial evidence” is “such relevant evidence as a 24 reasonable mind might accept as adequate to support a conclusion.” (see Biestek, 139 S. Ct. at 25 1154), the court concludes that the entirety of the ALJ’s decision, at least from Step Three 26 forward, is contrary to – and negated by – the totality of the evidence in the record that is before 27 this court. Thus, because the ALJ improperly rejected the opinions of Drs. Catlin and Akins (not to 28 mention the opinions of Nurse Dominic and Nurse Landolin), those opinions will now be credited 18 United States District Court Northern District of California 1 as true as a matter of law. See Lester, 81 F.3d at 834 (“[w]here the Commissioner fails to provide 2 adequate reasons for rejecting the opinion of a treating or examining physician, we credit that 3 opinion as a matter of law.”); see also Benecke, 379 F.3d at 594 (“Because the ALJ failed to 4 provide legally sufficient reasons for rejecting Benecke’s testimony and her treating physicians’ 5 opinions, we credit the evidence as true.”). 6 Nature of Remand 7 The decision whether to remand for further proceedings or for payment of benefits 8 generally turns on the likely utility of further proceedings. Carmickle v. Comm’r, SSA, 533 F.3d 9 1155, 1169 (9th Cir. 2008). A district court may “direct an award of benefits where the record has 10 been fully developed and where further administrative proceedings would serve no useful 11 purpose.” Smolen, 80 F.3d at 1292. The Court of Appeals for the Ninth Circuit has established a 12 three-part test “for determining when evidence should be credited and an immediate award of 13 benefits directed.” Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir. 2000). Remand for an 14 immediate award of benefits is appropriate when: (1) the ALJ has failed to provide legally 15 sufficient reasons for rejecting such evidence; (2) there are no outstanding issues that must be 16 resolved before a determination of disability can be made; and, (3) it is clear from the record that 17 the ALJ would be required to find the claimant disabled were such evidence credited. Id. The 18 second and third prongs of the test often merge into a single question; that is, whether the ALJ 19 would have to award benefits if the case were remanded for further proceedings. Id. at 1178 n.2; 20 see also Garrison v. Colvin, 759 F.3d 995, 1021-23 (9th Cir. 2014) (when all three conditions of 21 the credit-as-true rule are satisfied, and a careful review of the record discloses no reason to 22 seriously doubt that a claimant is, in fact, disabled, a remand for a calculation and award of 23 benefits is required). 24 In light of the above-discussed and improperly discredited medical opinion evidence, it is 25 abundantly clear to the court that Plaintiff has in fact been disabled since her alleged onset date, 26 and it is equally clear that further administrative proceedings would be useless because no further 27 record development is necessary as the ALJ would be required to find Plaintiff disabled on remand 28 based on the evidence and opinions that have been herein credited as true. Viewed through the 19 United States District Court Northern District of California 1 lens of Dr. Catlin’s opinions, Plaintiff’s host of mental impairments clearly equals (if not meets) 2 the severity of the criteria for listing-level intellectual disability (Listing 12.05(A) or (B)) given 3 the evidence of significantly sub-average intellectual functioning (i.e., Plaintiff’s FSIQ score of 4 57), as well as the significant evidence of Plaintiff’s deficits in adaptive functioning manifested by 5 her dependence on others for even the most basic personal needs, and the evidence indicating an 6 onset prior to the age of 22 (which the court sees in Plaintiff’s inability to finish school and her 7 inability to ever attain even rudimentary academic skills – such as reading, writing, and 8 arithmetic). See 20 C.F.R., Part 404, Subpt. P, Appx. 1, § 12.05 (wherein either Subpart (A) or 9 Subpart (B) must be satisfied). The court finds that on remand, once Dr. Catlin’s findings and 10 opinions are given proper effect, the ALJ would be required to find that Plaintiff’s intellectual 11 disorder at least equals, if not meets, the requirements under either Subpart A or Subpart B of 12 Listing 12.05. Alternatively, for the reasons expressed “to a medical certainty” by Dr. Akins (as 13 set forth above), which the court does not need to repeat, the court finds that on remand, the ALJ 14 would also be required to find that Plaintiff’s conditions meet or equal the requirements of 15 Listings 12.02 [neurocognitive disorders], 12.04 [depressive or bipolar and related disorders] and 16 12.15 [trauma and stressor-related disorders]. Putting aside the listings at Step Three, there is no disputing the fact that the evidence that 17 18 has herein been herein credited as true would necessitate a disability finding during the 19 formulation of the RFC as well because it is abundantly clear that Plaintiff retains no residual 20 functioning capacity to perform in the workplace at all for the reasons expressed so clearly in Dr. 21 Catlin’s report – reasons which were confirmed and corroborated by the statements of Nurses 22 Dominic and Landolin, as well as by the overwhelming bulk of the medical evidence on record, all 23 of which was further bolstered by the concurring opinion of the ALJ’s own medical expert, Dr. 24 Akins. 25 And, lastly, even if one were to put aside the listings at Step Three, as well as the ALJ’s 26 flawed formulation of the RFC, it is still equally clear that on remand the ALJ would be required 27 to find Plaintiff disabled at Step Five based on the testimony of the VE. As mentioned above, the 28 VE testified that missing more than 1 workday per month on a regular basis (see AR at 77) or 20 United States District Court Northern District of California 1 being consistently off-task as little as 10% of the time (id. at 78) would render someone 2 unemployable. Dr. Catlin found that Plaintiff would be absent from work more than four days per 3 month (see id. at 510); Nurse Dominic also opined that Plaintiff would be absent more than four 4 days per month and that when she was not absent, she would be off-task more than 30% of the 5 time (see id. at 1056-57); and, Nurse Landolin opined that Plaintiff would be absent at least 2 days 6 per month, while being off-task at least 20% of the time when not absent (see id. at 1062). 7 Consequently, under any of these opinions – let alone all of them – the ALJ would also be 8 required to find Plaintiff disabled at Step Five based on the testimony of the VE. 9 At this juncture, it should be noted that in cases where each of the credit-as-true factors is 10 met, it is generally only in “rare instances” where a review of the record as a whole gives rise to a 11 “serious doubt as to whether the claimant is actually disabled.” Revels, 874 F.3d at 668 n.8 (citing 12 Garrison, 759 F.3d at 1021). This is not one of those “rare instances,” as the record leaves no 13 room to doubt that Plaintiff has in fact been disabled since her alleged onset date, if not much 14 earlier. Needlessly remanding a disability claim for further unnecessary proceedings would only 15 delay much needed income for claimants such as Plaintiff who are unable to work and who are 16 entitled to benefits; doing so would in turn subject them to “tremendous financial difficulties while 17 awaiting the outcome of their appeals and proceedings on remand.” Varney v. Sec’y of Health & 18 Human Servs., 859 F.2d 1396, 1398 (9th Cir. 1988). The court finds that the ALJ’s unsupported 19 conclusions in this case were thoroughly negated by the overwhelming weight of the record 20 evidence which conclusively and convincingly established Plaintiff’s disability such that no 21 further inquiry is necessary. 22 // 23 // 24 // 25 // 26 // 27 // 28 // 21 CONCLUSION 1 2 Accordingly, for the reasons stated above, Plaintiff’s Motion for Summary Judgment (dkt. 3 15) is GRANTED, and Defendant’s Cross-Motion (dkt. 23) is DENIED. The ALJ’s finding of 4 non-disability is REVERSED, and the case is REMANDED for the immediate calculation and 5 award of appropriate benefits consistent with the findings and holdings expressed herein. 6 7 IT IS SO ORDERED. Dated: May 10, 2022 8 9 ROBERT M. ILLMAN United States Magistrate Judge 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 22