Pitts v. Commissioner of Social Security, No. 4:2017cv05212 - Document 18 (E.D. Wash. 2019)

Court Description: ORDER Granting 15 Plaintiff's Motion for Summary Judgment and Denying 16 Defendant's Motion for Summary Judgment. Signed by Magistrate Judge Mary K. Dimke. (MO, Courtroom Deputy)

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Pitts v. Commissioner of Social Security Doc. 18 1 2 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 3 Mar 27, 2019 4 SEAN F. MCAVOY, CLERK 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON 1 7 KARI P., No. 4:17-cv-5212-MKD Plaintiff, 8 vs. 9 10 COMMISSIONER OF SOCIAL SECURITY, 11 Defendant. 12 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ECF Nos. 15, 16 Before the Court are the parties’ cross-motions for summary judgment. ECF 13 14 Nos. 15, 16. The parties consented to proceed before a magistrate judge. ECF No. 15 7. The Court, having reviewed the administrative record and the parties’ briefing, 16 is fully informed. For the reasons discussed below, the Court grants Plaintiff’s 17 motion, ECF No. 15, and denies Defendant’s motion, ECF No. 16. 18 19 1 To protect the privacy of plaintiffs in social security cases, the undersigned 20 identifies them only by their first names and the initial of their last names. ORDER - 1 Dockets.Justia.com 1 2 JURISDICTION The Court has jurisdiction over this case pursuant to 42 U.S.C. § 405(g). 3 4 STANDARD OF REVIEW A district court’s review of a final decision of the Commissioner of Social 5 Security is governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is 6 limited; the Commissioner’s decision will be disturbed “only if it is not supported 7 by substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 8 1158 (9th Cir. 2012). “Substantial evidence” means “relevant evidence that a 9 reasonable mind might accept as adequate to support a conclusion.” Id. at 1159 10 (quotation and citation omitted). Stated differently, substantial evidence equates to 11 “more than a mere scintilla[,] but less than a preponderance.” Id. (quotation and 12 citation omitted). In determining whether the standard has been satisfied, a 13 reviewing court must consider the entire record rather than searching for 14 supporting evidence in isolation. Id. 15 In reviewing a denial of benefits, a district court may not substitute its 16 judgment for that of the Commissioner. Edlund v. Massanari, 253 F.3d 1152, 17 1156 (9th Cir. 2001). If the evidence in the record “is susceptible to more than one 18 rational interpretation, [the court] must uphold the ALJ’s findings if they are 19 supported by inferences reasonably drawn from the record.” Molina v. Astrue, 674 20 F.3d 1104, 1111 (9th Cir. 2012). Further, a district court “may not reverse an ORDER - 2 1 ALJ’s decision on account of an error that is harmless.” Id. An error is harmless 2 “where it is inconsequential to the [ALJ’s] ultimate nondisability determination.” 3 Id. at 1115 (quotation and citation omitted). The party appealing the ALJ’s 4 decision generally bears the burden of establishing that it was harmed. Shinseki v. 5 Sanders, 556 U.S. 396, 409-10 (2009). 6 7 FIVE-STEP EVALUATION PROCESS A claimant must satisfy two conditions to be considered “disabled” within 8 the meaning of the Social Security Act. First, the claimant must be “unable to 9 engage in any substantial gainful activity by reason of any medically determinable 10 physical or mental impairment which can be expected to result in death or which 11 has lasted or can be expected to last for a continuous period of not less than twelve 12 months.” 42 U.S.C. § 423(d)(1)(A). Second, the claimant’s impairment must be 13 “of such severity that [she] is not only unable to do [her] previous work[,] but 14 cannot, considering [her] age, education, and work experience, engage in any other 15 kind of substantial gainful work which exists in the national economy.” 42 U.S.C. 16 § 423(d)(2)(A). 17 The Commissioner has established a five-step sequential analysis to 18 determine whether a claimant satisfies the above criteria. 20 C.F.R. § 19 404.1520(a)(4)(i)-(v). At step one, the Commissioner considers the claimant’s 20 work activity. 20 C.F.R. § 404.1520(a)(4)(i). If the claimant is engaged in ORDER - 3 1 “substantial gainful activity,” the Commissioner must find that the claimant is not 2 disabled. 20 C.F.R. § 404.1520(b). 3 If the claimant is not engaged in substantial gainful activity, the analysis 4 proceeds to step two. At this step, the Commissioner considers the severity of the 5 claimant’s impairment. 20 C.F.R. § 404.1520(a)(4)(ii). If the claimant suffers 6 from “any impairment or combination of impairments which significantly limits 7 [her] physical or mental ability to do basic work activities,” the analysis proceeds 8 to step three. 20 C.F.R. § 404.1520(c). If the claimant’s impairment does not 9 satisfy this severity threshold, however, the Commissioner must find that the 10 claimant is not disabled. 20 C.F.R. § 404.1520(c). 11 At step three, the Commissioner compares the claimant’s impairment to 12 severe impairments recognized by the Commissioner to be so severe as to preclude 13 a person from engaging in substantial gainful activity. 20 C.F.R. § 14 404.1520(a)(4)(iii). If the impairment is as severe or more severe than one of the 15 enumerated impairments, the Commissioner must find the claimant disabled and 16 award benefits. 20 C.F.R. § 404.1520(d). 17 If the severity of the claimant’s impairment does not meet or exceed the 18 severity of the enumerated impairments, the Commissioner must pause to assess 19 the claimant’s “residual functional capacity.” Residual functional capacity (RFC), 20 defined generally as the claimant’s ability to perform physical and mental work ORDER - 4 1 activities on a sustained basis despite her limitations, 20 C.F.R. § 404.1545(a)(1), 2 is relevant to both the fourth and fifth steps of the analysis. 3 At step four, the Commissioner considers whether, in view of the claimant’s 4 RFC, the claimant can perform work that she performed in the past (past relevant 5 work). 20 C.F.R. § 404.1520(a)(4)(iv). If the claimant can perform past relevant 6 work, the Commissioner must find that the claimant is not disabled. 20 C.F.R. § 7 404.1520(f). If the claimant is incapable of performing such work, the analysis 8 proceeds to step five. 9 At step five, the Commissioner considers whether, in view of the claimant’s 10 RFC, the claimant can perform other work in the national economy. 20 C.F.R. § 11 404.1520(a)(4)(v). In making this determination, the Commissioner must also 12 consider vocational factors such as the claimant’s age, education, and past work 13 experience. 20 C.F.R. § 404.1520(a)(4)(v). If the claimant can adjust to other 14 work, the Commissioner must find that the claimant is not disabled. 20 C.F.R. § 15 404.1520(g)(1). If the claimant is not capable of adjusting to other work, analysis 16 concludes with a finding that the claimant is disabled and is therefore entitled to 17 benefits. 20 C.F.R. § 404.1520(g)(1). 18 The claimant bears the burden of proof at steps one through four above. 19 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to 20 step five, the burden shifts to the Commissioner to establish that 1) the claimant ORDER - 5 1 can perform other work; and 2) such work “exists in significant numbers in the 2 national economy.” 20 C.F.R. § 404.1560(c)(2); Beltran v. Astrue, 700 F.3d 386, 3 389 (9th Cir. 2012). 4 ALJ’S FINDINGS 5 On February 21, 2013, Plaintiff applied for Title II disability insurance 6 benefits alleging a disability onset date of October 5, 2012. Tr. 192-98. The 7 application was denied initially, Tr. 117-19, and on reconsideration, Tr. 121-22. 8 Plaintiff appeared before an administrative law judge (ALJ) on December 21, 9 2015. Tr. 50-78. On July 20, 2016, the ALJ denied Plaintiff’s claim. Tr. 21-49. 10 At step one of the sequential evaluation process, the ALJ found Plaintiff has 11 not engaged in substantial gainful activity since October 5, 2012. Tr. 26. At step 12 two, the ALJ found that Plaintiff has the following severe impairments: obesity, 13 status-post lap band surgery; degenerative changes of the lumbar spine; 14 degenerative changes of the bilateral knees; bilateral hip bursitis and arthrosis; 15 affective disorder (depressive disorder vs. bipolar disorder vs. mood disorder); 16 anxiety disorder (generalized anxiety disorder vs. posttraumatic stress disorder 17 (PTSD) vs. panic disorder); somatoform disorder; and personality disorder 18 (including maladaptive personality traits vs. schizotypal personality disorder). Tr. 19 26-27. 20 ORDER - 6 1 At step three, the ALJ found Plaintiff does not have an impairment or 2 combination of impairments that meets or medically equals the severity of a listed 3 impairment. Tr. 29. The ALJ then concluded that Plaintiff has the RFC: 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 To lift and/or carry 20 pounds occasionally and 10 pounds frequently, stand and/or walk about 6 hours in an 8-hour workday, with regular breaks, and sit about 6 hours in an 8-hour workday, with regular breaks. [Plaintiff] has unlimited ability to push or pull within those exertional limitations. [Plaintiff] can occasionally climb ramps and stairs, but never climb ladders, ropes, or scaffolds. [Plaintiff] can occasionally balance, crouch, and stoop. [Plaintiff] can never kneel or crawl. [Plaintiff] should avoid concentrated exposure to heat, humidity, vibration, and hazards. [Plaintiff] can understand, remember, and carry out simple as well as routine tasks. [Plaintiff] can have occasional contact with the general public and coworkers. [Plaintiff] is able to adapt to workplace changes within customary tolerances. Tr. 31. At step four, the ALJ found Plaintiff is unable to perform past relevant work. Tr. 40. At step five, the ALJ found that, considering Plaintiff’s age, education, work experience, RFC, and testimony from the vocational expert, there were jobs that existed in significant numbers in the national economy that Plaintiff could perform, such as, assembler II, housekeeper/cleaner, and printed product assembler. Tr. 41. Therefore, the ALJ concluded Plaintiff was not under a disability, as defined in the Social Security Act, from the alleged onset date of October 5, 2012, though the date of the decision. Tr. 41. 20 ORDER - 7 1 On November 27, 2017, the Appeals Council denied review of the ALJ’s 2 decision, Tr.1-6, making the ALJ’s decision the Commissioner’s final decision for 3 purposes of judicial review. See 42 U.S.C. § 1383(c)(3). 4 5 ISSUES Plaintiff seeks judicial review of the Commissioner’s final decision denying 6 her disability insurance benefits under Title II of the Social Security Act. Plaintiff 7 raises the following issues for review: 8 1. Whether the ALJ properly evaluated the medical opinion evidence; 9 2. Whether the ALJ properly evaluated lay witness testimony; 10 3. Whether the ALJ properly evaluated Plaintiff’s symptom claims; 11 4. Whether the ALJ conducted a proper step-two analysis; 12 5. Whether the ALJ conducted a proper step-three analysis; and 13 6. Whether the ALJ conducted a proper step-five analysis. 14 ECF No. 15 at 4-5. 15 16 17 DISCUSSION A. Medical Opinion Evidence Plaintiff contends the ALJ improperly weighed the medical opinions of 18 Daniel Quiroz, M.D.; Wing Chau, M.D.; Nora Marks, Ph.D.; Benjamin Gonzalez, 19 M.D.; Lisa Lovejoy, LMHC; and Joan Davis, M.D. ECF No. 15 at 8-12. 20 ORDER - 8 1 There are three types of physicians: “(1) those who treat the claimant 2 (treating physicians); (2) those who examine but do not treat the claimant 3 (examining physicians); and (3) those who neither examine nor treat the claimant 4 [but who review the claimant’s file] (nonexamining [or reviewing] physicians).” 5 Holohan v. Massanari, 246 F.3d 1195, 1201-02 (9th Cir. 2001) (citations omitted). 6 Generally, a treating physician’s opinion carries more weight than an examining 7 physician’s opinion, and an examining physician’s opinion carries more weight 8 than a reviewing physician’s opinion. Id. at 1202. “In addition, the regulations 9 give more weight to opinions that are explained than to those that are not, and to 10 the opinions of specialists concerning matters relating to their specialty over that of 11 nonspecialists.” Id. (citations omitted). 12 If a treating or examining physician’s opinion is uncontradicted, the ALJ 13 may reject it only by offering “clear and convincing reasons that are supported by 14 substantial evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). 15 “However, the ALJ need not accept the opinion of any physician, including a 16 treating physician, if that opinion is brief, conclusory, and inadequately supported 17 by clinical findings.” Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1228 18 (9th Cir. 2009) (internal quotation marks and brackets omitted). “If a treating or 19 examining doctor’s opinion is contradicted by another doctor’s opinion, an ALJ 20 may only reject it by providing specific and legitimate reasons that are supported ORDER - 9 1 by substantial evidence.” Bayliss, 427 F.3d at 1216 (citing Lester v. Chater, 81 2 F.3d 821, 830–31 (9th Cir. 1995)). The opinion of a nonexamining physician may 3 serve as substantial evidence if it is supported by other independent evidence in the 4 record. Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995). 5 The opinion of an acceptable medical source such as a physician or 6 psychologist is given more weight than that of an “other source.” 20 C.F.R. §§ 7 404.1527 (2012); Gomez v. Chater, 74 F.3d 967, 970-71 (9th Cir. 1996). “Other 8 sources” include nurse practitioners, physicians’ assistants, therapists, teachers, 9 social workers, spouses, and other non-medical sources. 20 C.F.R. §§ 404.1513(d) 10 (2013). However, the ALJ is required to “consider observations by non-medical 11 sources as to how an impairment affects a claimant’s ability to work.” Sprague v. 12 Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987). Non-medical testimony can never 13 establish a diagnosis or disability absent corroborating competent medical 14 evidence. Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996). An ALJ is 15 obligated to give reasons germane to “other source” testimony before discounting 16 it. Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). 17 1. Exertional Limitations: Sedentary Work 18 Although Plaintiff’s treating physician and the consultative examining 19 physician restricted Plaintiff to sedentary work, the ALJ adopted the light-duty 20 exertional limitation opined by the nonexamining physician in 2013. This lightORDER - 10 1 duty opinion was issued three years before the ALJ’s decision, did not reference 2 Plaintiff’s then-existing lumbar issues, and did not consider the subsequent medical 3 evidence relating to Plaintiff’s exertional abilities, which had declined over time. 4 As set forth infra, the ALJ erred by giving more weight to this non-examining 5 opinion than to the sedentary restriction opined by Plaintiff’s treating physician 6 and the consultative examiner—a restriction consistent with the weight of medical 7 evidence when the ALJ’s decision was rendered. 8 9 a. Dr. Quiroz Dr. Quiroz treated Plaintiff from September 2013 to November 2015. Tr. 10 867-68, 1110-1210, 1423-77. In June 2015, Dr. Quiroz completed a Medical 11 Report for Plaintiff’s Social Security disability application and diagnosed Plaintiff 12 with bilateral knee arthritis, diabetes type 2 (controlled), fibromyalgia, 13 hypercholesteremia, lumbar spondylosis, morbid obesity status post-surgery 14 bariatric banding, hip arthritis (bilateral), and hypothyroidism. Tr. 924. Dr. 15 Quiroz opined that it was “difficult to predict” how many days Plaintiff would miss 16 per month from work as it “would deppend [sic] on job.” Tr. 925. Dr. Quiroz 17 opined that Plaintiff would have no problems with a “desk job” as her diabetes, 18 cholesterol, and thyroid were well controlled, but otherwise Plaintiff would miss at 19 least two days per month. Tr. 925. 20 ORDER - 11 1 The ALJ rejected Dr. Quiroz’s opinion. Tr. 37-38. Because Dr. Quiroz’s 2 sedentary opinion was contradicted by the nonexamining opinion of Dr. Hoskins, 3 Tr. 110-11, the ALJ was required to provide specific and legitimate reasons to 4 reject it. See Bayliss, 427 F.3d at 1216. 5 First, the ALJ discounted Dr. Quiroz’s opinion because he based his opinion 6 on Plaintiff’s fibromyalgia, which the ALJ concluded was not a medically 7 determinable condition, and Plaintiff’s diabetes, hypercholesterolemia, and 8 hypothyroidism, which were non-severe conditions. Tr. 37. A medical opinion 9 may be rejected if it is unsupported by the medical findings. Bray, 554 F.3d at 10 1228; Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004); 11 Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). Here, the form requested 12 that Dr. Quiroz identify conditions for which Plaintiff was diagnosed. Tr. 924. In 13 response, Dr. Quiroz identified the following: bilateral knee arthritis, diabetes type 14 2 (controlled), fibromyalgia, hypercholesteremia, lumbar spondylosis, morbid 15 obesity status post-surgery bariatric banding, hip arthritis (bilateral), and 16 hypothyroidism. Tr. 924. The form did not request that Dr. Quiroz identify the 17 specific diagnosis supporting the opined functional limitations. Tr. 924-25. In 18 fact, here, Dr. Quiroz noted that Plaintiff’s diabetes, cholesterol, and thyroid 19 conditions were well controlled, Tr. 925, and that her physical conditions of hip 20 knee arthritis, lumbar spondylosis, and fibromyalgia were the conditions likely to ORDER - 12 1 cause pain. Tr. 924. There is no basis on the record for the ALJ to conclude that 2 the opined limitations were based on the diagnoses that had been identified as 3 controlled (diabetes, hypercholesterolemia, and hypothyroidism). See Orn v. 4 Astrue, 495 F.3d 625, 635 (9th Cir. 2007) (recognizing that it is not legitimate to 5 discount an opinion for a reason that is not responsive to the medical opinion). It is 6 apparent that Dr. Quiroz based his sedentary opinion on the limitations caused by 7 Plaintiff’s morbid obesity and orthopedic conditions, including the pain these 8 conditions caused in her lower extremities and back. Tr. 924. Given the 9 significance of Plaintiff’s orthopedic conditions and morbid obesity, the fact that 10 Dr. Quiroz also diagnosed Plaintiff with other conditions (fibromyalgia, diabetes, 11 hypercholesterolemia, and hypothyroidism) was not a legitimate and specific 12 reason to discount Dr. Quiroz’s restriction to sedentary work. 13 Second, the ALJ discounted Dr. Quiroz’s opinion because it was 14 inconsistent with the objective medical evidence. Tr. 37. Relevant factors to 15 evaluating any medical opinion include the amount of relevant evidence that 16 supports the opinion and the consistency of the medical opinion with the record. 17 Lingenfelter v. Astrue, 504 F.3d 1028, 1042 (9th Cir. 2007); Orn, 495 F.3d at 631. 18 Here, the ALJ concluded that imaging reflected that Plaintiff’s knee, low back, and 19 hip problems were mild. Tr. 37. The ALJ did not cite to the imaging she relied on; 20 however, the imaging as of the date of Dr. Quiroz’s June 2015 opinion, included: ORDER - 13 1 Tr. 810-11 (Oct. 2011: x-rays show early arthritis in the knees); Tr. 816 (Nov. 2 2012: imaging revealed degenerative disc disease with broad-based chronic3 appearing disc herniation at the L5-S1 level, and facet arthropathy at L5-S1 with 4 modic endplate changes of degenerative instability); Tr. 1250 (Oct. 2014: x-rays 5 showing symmetric degenerative arthrosis of the left and right hip joints; joint 6 space narrowing with subchondral sclerosis; and bilateral degenerative hip 7 arthrosis); Tr. 1500-03, 1537 (June 10, 2015: MRI revealed right bursitis of the 8 trochanteric area of the right hip and bilateral fairly symmetric degenerative 9 arthrosis of the right and left hip joints). The ALJ did not articulate how, and the 10 Court is not convinced, that the imaging is inconsistent with a restriction to 11 sedentary work. Moreover, Dr. Quiroz opined that Plaintiff’s osteoarthritis in her 12 hips and knees were caused by and impacted by her morbid obesity, causing pain 13 in her lower back, hips, and knees. Tr. 924. Dr. Quiroz reached this opinion after 14 observing Plaintiff on at least three occasions with abnormal gait and station, 15 bilateral lower extremity muscle weakness, and pain to palpation over bilateral 16 knees, hips, and paravertebral muscles of the lumbar spine. Tr. 1194 (Jan. 29, 17 2015); Tr. 1201 (Feb. 12, 2015); Tr. 1210 (March 18, 2015). 18 Furthermore, these observed limitations were consistent with another 19 medical provider’s observations in December 2015. See, e.g., Tr. 1522 (Dec. 14, 20 2015: patient walks with a limp). After Dr. Quiroz’s opinion, a lumbar spine MRI ORDER - 14 1 revealed that Plaintiff’s lumbar issues were worsening as disc space narrowing was 2 present at L2-L3 and L5-L1 along with modic type endplate change most 3 prominent at the lumbosacral junction and mild multilevel disc bulges. Tr. 15354 36. In December 2015, because of Plaintiff’s morbid obesity and several 5 orthopedic conditions, it was recommended that Plaintiff use durable medical 6 equipment in order to provide more stability and reduce the likelihood of further 7 injury. Tr. 1528. Dr. Quiroz’s opinion was also consistent with Dr. Chau’s 8 consultative examination opinion limiting Plaintiff to a desk job. Tr. 924-25, 857; 9 see also Tr. 89-90 (Heather Haws, SDM’s sedentary opinion). 10 The only physician to opine that Plaintiff was not limited to sedentary work 11 was nonexamining physician Dr. Hoskins, who opined in November 2013 that 12 Plaintiff could work light duty. Tr. 109-11. Dr. Hoskins’ 2013 opinion did not 13 reflect that Plaintiff had lumbar issues and it is not consistent with the recent 14 imaging and clinical observations, which reflect that Plaintiff had abnormal gait 15 and station, bilateral lower extremity muscle weakness, and hip and knee arthritis 16 impacted by Plaintiff’s morbid obesity. It was therefore error for the ALJ to give 17 significant weight to Dr. Hoskins’ opinion, while discounting Dr. Quiroz’s 18 opinion. See Andrews, 53 F.3d at 1041. On this record, it was not a legitimate and 19 specific reason to discount Dr. Quiroz’s sedentary opinion because certain imaging 20 reflected mild findings in Plaintiff’s knees, low back, and hips. ORDER - 15 1 Third, the ALJ discounted Dr. Quiroz’s sedentary restriction because it relied 2 on Plaintiff’s obesity, noting that Plaintiff had not developed any secondary 3 complications, such as chest or respiratory dysfunction, as a result of her obesity. 4 Tr. 37-38. Relevant factors to evaluating any medical opinion include the amount 5 of relevant evidence that supports the opinion and the consistency of the medical 6 opinion with the record. Lingenfelter, 504 F.3d at 1042; Orn, 495 F.3d at 631. 7 Since Dr. Quiroz did not indicate that he relied on any potential for chest or 8 respiratory dysfunction as a basis for his sedentary opinion, these undeveloped 9 complications are irrelevant to Dr. Quiroz’s opinion. See Orn, 495 F.3d at 635. 10 Dr. Quiroz did opine that Plaintiff’s obesity impacted the osteoarthritis in her lower 11 back, hips, and knees, noting that Plaintiff had “pain in [her] lower back, hips, 12 [and] knees secondary to osteoarthritis from morbid obesity,” Tr. 924, and 13 “arthritis is secondary to morbid obesity,” Tr. 1449-50. The opinion that Plaintiff’s 14 obesity and orthopedic conditions impacted her gait and lower extremity muscle 15 strength was supported by the medical records, Tr. 1194, 1201, 1210, 1522, and 16 was the reason for the orthopedic recommendation that Plaintiff use a mobility 17 device, Tr. 1528. Moreover, as discussed supra, other than Dr. Hoskins’ 2013 18 non-examining opinion, which did not reference Plaintiff’s then-existing lumbar 19 conditions and is not consistent with the weight of the recent medical evidence, Tr. 20 110-11, others have limited Plaintiff to sedentary work. Tr. 857 (Dr. Chau), Tr. ORDER - 16 1 89-90 (Ms. Haws, SDM). The ALJ’s decision to discount Dr. Quiroz’s treating 2 opinion that Plaintiff was limited to sedentary work because Plaintiff had not 3 developed chest or respiratory dysfunction is not a legitimate and specific reason to 4 discount Dr. Quiroz’s opinion and fails to appreciate that Dr. Quiroz found that 5 Plaintiff’s obesity complicated Plaintiff’s hip and knee osteoarthritis. 6 Finally, the ALJ discounted Dr. Quiroz’s opinion because it was inconsistent 7 with Dr. Quiroz’s statement that same month in his treatment notes, “I believe the 8 patient has multiple medical problems but all of them are mild in nature and 9 they’re under control.” Tr. 38 (citing Tr. 1449). Incongruity between a doctor’s 10 medical opinion and treatment records is a specific and legitimate reason to 11 discount a doctor’s opinion. Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 12 2008). A provider’s observations must be “read in the context of the overall 13 diagnostic picture” the provider draws. Holohan, 246 F.3d at 1205. Here, the ALJ 14 failed to consider Dr. Quiroz’s June 2, 2015 treatment note along with the other 15 treatment notes. Dr. Quiroz observed Plaintiff with abnormal gait and lower 16 extremity weakness. Tr. 1124, 1129, 1187, 1194, 1201, 1210, 1427, 1437, 1446, 17 1471. His treatment records, which spanned more than two years, identified that 18 Plaintiff was tender to palpation throughout her lumbar spine and experienced pain 19 in her hips and/or knees. Tr. 867-68, 1110-1113, 1117, 1131-36, 1146, 1157, 20 1162, 1169, 1173, 1176, 1194, 1197, 1427, 1432, 1441, 1463, 1476. Thus, while ORDER - 17 1 Dr. Quiroz recognized that each of Plaintiff’s medical problems were mild in 2 nature, he also recognized that Plaintiff had several orthopedic conditions (lumbar 3 spondylosis, bilateral knee osteoarthritis, and bilateral hip osteoarthritis), which 4 were impacted by Plaintiff’s morbid obesity, noting that Plaintiff had “pain in [her] 5 lower back, hips, [and] knees secondary to osteoarthritis from morbid obesity,” Tr. 6 924, and “arthritis is secondary to morbid obesity,” Tr. 1449-50. It is apparent that 7 Dr. Quiroz based his sedentary restriction on these several orthopedic conditions 8 and Plaintiff’s morbid obesity. Tr. 1449, 924-25. Based on the weight of the 9 objective medical evidence, the ALJ’s decision to discount Dr. Quiroz’s opinion 10 because it was seemingly inconsistent with a single statement made during the 11 same month as his opinion is not a legitimate and specific reason to discount Dr. 12 Quiroz’s opinion. 13 On this record, the ALJ erred by discounting Dr. Quiroz’s opinion that 14 Plaintiff was restricted to a sedentary position. 15 16 b. Dr. Chau On May 9, 2013, Dr. Chau performed a disability impairment evaluation of 17 Plaintiff’s physical abilities. Tr. 855-57. After reviewing a selection of prior 18 medical records and the more recent hand, knee, hip, and pelvic x-rays and 19 conducting an examination, Dr. Chau diagnosed Plaintiff with degenerative joint 20 ORDER - 18 1 disease, bilateral knees; morbid obesity; sleep apnea; and psychiatric disorder. Tr. 2 857. Dr. Chau stated: 3 4 5 Plaintiff was without typical exam for fibromyalgia. Her x-rays did not support diagnosis for rheumatoid arthritis. Patient is with morbid obesity and [degenerative joint disease] changes of both knees. She was without focal neurological deficits. From the functional exam, my impression is that she is capable of sedentary work full time. 6 Tr. 857. 7 The ALJ assigned this opinion little weight. Tr. 37. Because Dr. Chau’s 8 sedentary opinion was contradicted by the opinion of nonexamining physician 9 Robert Hoskins, M.D., Tr. 110-11, the ALJ was required to provide specific and 10 legitimate reasons to reject it. See Bayliss, 427 F.3d at 1216. 11 First, the ALJ discounted Dr. Chau’s opinion because Plaintiff’s sleep apnea 12 appeared controlled with the use of a C-Pap device. Tr. 37. The effectiveness of 13 treatment is a relevant factor in determining the severity of a claimant’s symptoms. 14 20 C.F.R. §§ 404.1529(c)(3) (2011); see Warre v. Comm’r of Soc. Sec. Admin., 15 439 F.3d 1001, 1006 (9th Cir. 2006). Here, as the ALJ recognized, the record 16 reflects that by September 2013 Plaintiff’s sleep apnea was controlled by a C-Pap 17 device. Tr. 27, 37 (citing Tr. 935 (“Plaintiff is currently using CPAP without 18 difficulty every night.”); Tr. 955 (reporting using CPAP without significant 19 difficulty)). The fact that one of the diagnosed conditions is controlled with 20 treatment was appropriate for the ALJ to consider in evaluating the opinion. ORDER - 19 1 However, given the nature of the limitation to sedentary work and the other 2 diagnosed conditions, including degenerative joint disease (bilateral knees) and 3 morbid obesity, the fact that Plaintiff’s sleep apnea was well controlled is not a 4 specific and legitimate reason to reject Dr. Chau’s assessed limitation to sedentary 5 work. See Orn, 495 F.3d at 635 (finding the ALJ erred by rejecting a medical 6 opinion for a reason that was not responsive to the basis of the opinion). 7 Second, the ALJ discounted Dr. Chau’s opinion because it was inconsistent 8 with the medical evidence. Tr. 37. Relevant factors to evaluating any medical 9 opinion include the amount of relevant evidence that supports the opinion and the 10 consistency of the medical opinion with the record. Lingenfelter, 504 F.3d at 11 1042; Orn, 495 F.3d at 631. An ALJ may choose to give more weight to an 12 opinion that is more consistent with the evidence in the record. 20 C.F.R. § 13 416.927(c)(4). Here, the ALJ noted that Plaintiff’s x-rays of the bilateral knees 14 showed only mild findings and x-rays of the hips, pelvis, and hands were 15 essentially negative. Tr. 37 (citing Tr. 858-60 (x-rays from May 2013)). Yet, in 16 addition to the 2013 x-rays, Dr. Chau reviewed prior medical records reflecting 17 that Plaintiff’s knee conditions were longstanding and that she had degenerative 18 disc disease of the lumbosacral (LS) spine. Tr. 856 (noting that the “Everett Clinic 19 reported . . . mild osteoarthritis of the knee with complex tear posterior horn of the 20 left knee by MRI . . . [and that Plaintiff was] with degenerative disc disease of the ORDER - 20 1 LS spine.”); see, e.g., Tr. 718 (2009 MRI revealing medial meniscus tear in setting 2 of [degenerative joint disease] and patella femoral symptoms); Tr. 816 (2012 MRI 3 showing degenerative disc disease with broad-based chronic-appearing disc 4 herniation at the L5-SI level and facet arthropathy at the L5-S1 level, with modic 5 endplate changes of degenerative instability). Moreover, as discussed supra, the 6 record demonstrates that Plaintiff’s physical condition continued to deteriorate 7 after Dr. Chau’s evaluation. For instance, in October 2014, imaging revealed 8 bilateral symmetric degenerative arthrosis of the hip joints and joint space 9 narrowing with subchondral sclerosis. Tr. 1012, 1250. A June 2015 x-ray 10 confirmed mild narrowing of the right hip joint space, which was opined to be 11 arthritis. Tr. 1502-03, 1537. Plaintiff also continued to suffer from degenerative 12 disc disease of the spine. Tr. 1505, 1516, 1528 (August 2015 x-rays: showing 13 collapsing disc at L5-S1 and a large osteophyte off the posterior inferior border of 14 the L5 vertebral body, as well as disc space narrowing at L2-L3 and L5-L1, and a 15 mild broad-based posterior disc bulge at L2-L3, L3-L4, and L4-L5 levels). In 16 2015, an abnormal gait and station and pain to palpation over the bilateral knees, 17 hips, and paravertebral muscles of the lumbar spine were observed, along with 18 bilateral lower extremity muscle weakness. Tr. 1194 (Jan. 29, 2015); Tr. 1201 19 (Feb. 12, 2015); Tr. 1210 (March 18, 2015); see also Tr. 1522 (Dec. 14, 2015: 20 patient walks with a limp); Tr. 1518 (Dec. 9, 2015: positive straight leg raise on ORDER - 21 1 left with knee and back pain; left lumbar paraspinous musculature pain on 2 palpation). Moreover, Dr. Chau’s sedentary opinion was consistent with Dr. 3 Quiroz’s opinion that Plaintiff was limited to a desk job due to Plaintiff’s lumbar 4 spondylosis and hip and knee osteoarthritis, which were impacted by Plaintiff’s 5 morbid obesity. Tr. 924-25; see also Tr. 89-90 (Heather Haws, SDM’s sedentary 6 opinion). In December 2015, a medical provider recommended that Plaintiff use 7 medical equipment to provide mobility support and stabilization to decrease the 8 risk of further injury. Tr. 1528. The only physician to opine that Plaintiff was not 9 limited to sedentary work was nonexamining physician Dr. Hoskins, who opined in 10 November 2013 that Plaintiff could work light duty. Tr. 109-11. As discussed 11 supra, Dr. Hoskins’ 2013 opinion did not reflect that Plaintiff had lumbar issues 12 and is not consistent with the recent objective medical evidence, which reflects that 13 Plaintiff has abnormal gait and station, bilateral lower extremity muscle weakness, 14 and hip and knee arthritis impacted by Plaintiff’s morbid obesity. It was therefore 15 error for the ALJ to give significant weight to Dr. Hoskins’ opinion, while 16 discounting Dr. Chau’s opinion. See Andrews, 53 F.3d at 1041. On this record, 17 the ALJ’s decision to discount Dr. Chau’s sedentary restriction on the ground that 18 it was not consistent with the objective medical evidence is not supported by 19 substantial evidence. 20 ORDER - 22 1 Third, the ALJ discounted Dr. Chau’s sedentary restriction because Dr. Chau 2 did not find evidence of either fibromyalgia or rheumatoid arthritis. Tr. 37. Since 3 Dr. Chau did not indicate he relied on any diagnosis for those conditions in 4 formulating his opinion, the fact he did not find evidence of those conditions is 5 irrelevant and not a specific and legitimate reason to discount Dr. Chau’s opinion. 6 See Orn, 495 F.3d at 635 (requiring the reason relied on by the ALJ to be 7 responsive to the grounds for the medical opinion). 8 Finally, the ALJ discounted Dr. Chau’s opinion because it was inconsistent 9 with his examination findings. Tr. 37 (citing Tr. 856). A medical opinion may be 10 rejected if it is unsupported by the physician’s treatment notes and medical 11 findings. Bray, 554 F.3d at 1228; Batson, 359 F.3d at 1195; Thomas, 278 F.3d at 12 957; Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001). Here, the ALJ 13 noted that despite Plaintiff’s obesity, Plaintiff was observed ambulating without an 14 assistive device; stood on her toes and heels; got up and down from the exam table 15 with a stool; had a good range of motion of her neck, wrists, elbows, knees, and 16 hips; performed a negative straight leg raise; and had good motor strength in all 17 joints and intact sensation in her feet. Tr. 37 (citing Tr. 855-56). Based on these 18 examination findings, the ALJ discounted Dr. Chau’s opinion. First, the Court is 19 not convinced that these examination findings are inconsistent with a sedentary 20 restriction given Plaintiff’s morbid obesity, bilateral knee conditions, and lumbar ORDER - 23 1 conditions. Moreover, as discussed supra, the recent medical evidence is 2 consistent with Dr. Quiroz’s sedentary opinion. Tr. 924-25. Therefore, on this 3 record, given the weight of the medical evidence and that the Court has rejected the 4 other three reasons provided by the ALJ for discounting Dr. Chau’s opinion, the 5 ALJ’s decision to discount Dr. Chau’s sedentary restriction because it was 6 inconsistent with Dr. Chau’s examination findings is not a specific and legitimate 7 reason standing alone to support rejecting the sedentary restriction. 8 In summary, the ALJ erred by discounting Dr. Chau’s and Dr. Quiroz’s 9 restriction to sedentary work. These errors are not harmless because the three jobs 10 the ALJ concluded that Plaintiff could perform are light-duty jobs. Tr. 41; see 11 Molina, 674 F.3d at 1111, 1115. 12 13 14 2. Nonexertional Limitations a. Dr. Marks In December 2013, Dr. Marks conducted a psychological evaluation of 15 Plaintiff. Tr. 912-19. Dr. Marks reviewed the identified counseling records, 16 interviewed Plaintiff, reviewed Plaintiff’s health questionnaire, and conducted a 17 mental health status exam, including the Zung Depression Scale, the World Health 18 Disability Assessment Schedule, and Trails Making A and B exams. Tr. 912-13. 19 Dr. Marks noted that Plaintiff’s symptomology, including her stuttering while 20 talking, appeared to be exaggerated, and that her reports of auditory hallucinations ORDER - 24 1 were atypical and may have reflected illusions or misinterpreting what she heard. 2 2 Tr. 913, 916. Dr. Marks found Plaintiff presented somewhat anxious but generally 3 comfortable, orientated, and was not experiencing hallucinations or attending to 4 internal stimuli during the evaluation. Tr. 917. Dr. Marks noted that Plaintiff’s 5 moods were exceedingly changeable and rapid. Tr. 917. Dr. Marks diagnosed 6 Plaintiff with anxiety disorder (by history); PTSD (by history); attention deficit 7 hyperactivity disorder (ADHD), combined type (by history); schizotypal 8 personality disorder; and personality disorder (not otherwise specified) with strong 9 cluster B traits. Tr. 917. 10 11 2 The ALJ noted that Dr. Marks observed Plaintiff infrequently stutter during the 12 examination, but that treatment notes usually documented normal speech during 13 appointments. Tr. 38. The ALJ failed to recognize that providers found that 14 Plaintiff’s stuttering was impacted by medication and that she experienced 15 worsening stuttering in December 2013—the same month Dr. Marks examined 16 her. Tr. 1114 (Dec. 20, 2013: reporting worsening stutter to Dr. Quiroz); Tr. 900 17 (June 2013: slight stuttering during visit with Nurse Diane Microulis, who 18 recommended discontinuing ziprasidone); Tr. 902 (July 2013: stuttering side effect 19 stopped); Tr. 1292, 1419 (Dr. Gonzalez observed some stuttering in May and June 20 2014.). ORDER - 25 1 Dr. Marks opined that 1) Plaintiff could understand and remember simple 2 directions and carryout simple instructions; 2) Plaintiff’s ability to make judgments 3 on simple work-related decisions, understand and remember complex instructions, 4 and carry out complex instructions was mildly limited; and 3) Plaintiff’s ability to 5 make judgments on complex work-related decisions was moderately impaired. Tr. 6 918. Dr. Marks also opined that, while Plaintiff’s cognitive skills were intact, her 7 demonstrated strong personality disorder traits, including schizoid and cluster B 8 and C traits, would likely interfere with her employability. Tr. 917-18. Because 9 she demonstrated difficult-to-change long-term personality traits, Dr. Marks 10 deemed Plaintiff’s prognosis as guarded. Tr. 918. 11 The ALJ gave weight to Dr. Marks’ December 2013 opinion, finding that it 12 accurately reflected the longitudinal evidence and was supported by the mental 13 status examination and Trails Making Test. Tr. 38 (citing Tr. 912-19). Plaintiff 14 contends the ALJ failed to fully incorporate Dr. Marks’ accepted opinion that 15 Plaintiff was unable to maintain regular, continuous employment due to her 16 psychiatric symptoms. ECF No. 15 at 9. “[T]he ALJ is responsible for translating 17 and incorporating clinical findings into a succinct RFC.” Rounds v. Comm’r Soc. 18 Sec. Admin., 807 F.3d 996, 1006 (9th Cir. 2015); Stubbs-Danielson v. Astrue, 539 19 F.3d 1169, 1174 (9th Cir. 2008). Tr. 31, 38. Here, the ALJ noted that she 20 incorporated Dr. Marks’ opined social limitations into the RFC by adding the ORDER - 26 1 limitation that “[Plaintiff] can have occasional contact with the general public and 2 coworkers.” Tr. 38. It is Plaintiff’s burden to establish error and Plaintiff has not 3 demonstrated how Dr. Marks’ opinion was not sufficiently incorporated into the 4 RFC. See Indep. Towers v. Washington, 350 F.3d 925, 929 (9th Cir. 2003); 5 Carmickle v. Comm’r of Soc. Sec. Admin., 533 F.3d 1155, 1161 n.2 (9th Cir. 6 2008). 7 8 b. Dr. Gonzalez From January 2014 through November 2015, Dr. Gonzalez treated Plaintiff 9 and managed her psychological medications. Tr. 1294-99, 1304, 1307-08, 131110 14, 1317-21, 1336-45, 1348-49, 1358-68, 1371-72, 1377-78, 1384-85, 1388-89, 11 1393-96, 1403-06, 1409-13, 1416-17, 1419-20. During his treatment of Plaintiff, 12 Dr. Gonzalez’s diagnoses slightly changed. Ultimately, Dr. Gonzalez diagnosed 13 Plaintiff with PTSD with psychotic features (due to past sexual trauma), possible 14 schizophrenia, ADHD (based on childhood diagnosis), and Cluster B traits (by 15 history). Tr. 1296. 16 In May 2015, on a Mental Residual Functional Capacity Assessment form 17 for social security purposes, Dr. Gonzales opined that Plaintiff was: 18 • severely limited in the workplace abilities to perform activities within 19 a schedule, maintain regular attendance, be punctual within 20 ORDER - 27 1 customary tolerances, and interact appropriately with the general 2 public; 3 • markedly limited in the workplace abilities to understand and 4 remember detailed instructions, carry out detailed instructions, 5 maintain attention and concentration for extended periods, sustain an 6 ordinary routine without special supervision, work in coordination 7 with or proximity to others without being distracted by them, 8 complete a normal workday and work without interruptions from 9 psychologically based symptoms, perform at a consistent pace 10 without an unreasonable number and length of rest periods, ask 11 simple questions or request assistance, accept instructions and 12 respond appropriately to criticism from supervisors, get along with 13 co-workers or peers without distracting them or exhibiting behavioral 14 extremes, respond appropriately to changes in the work setting, set 15 realistic goals and make plans independently of others; and 16 • moderately limited in the workplace abilities to remember locations 17 and work-like procedures, understand and remember very short and 18 simple limitations, carry out very short simple instructions, make 19 simple work-related decisions, maintain socially appropriate behavior 20 and adhere to basic standards of neatness and cleanliness, be aware of ORDER - 28 1 normal hazards and take appropriate precautions, and travel in 2 unfamiliar places or use public transportation. 3 Tr. 920-21. Regarding Criteria B, Dr. Gonzales found that Plaintiff was markedly 4 limited in her daily living activities, social functioning, and maintaining 5 concentration, persistence, or pace. Tr. 922. Dr. Gonzalez opined that Plaintiff’s 6 mental illness would cause her to decompensate if there was a minimal increase in 7 mental demands or changes in her environment. Tr. 922. Because of these 8 limitations, Dr. Gonzales opined that Plaintiff would be off-task more than thirty 9 percent of the workweek and would miss four or more days per month. Tr. 922. 10 The ALJ gave little weight to Dr. Gonzalez’s opinion. Tr. 39. Because Dr. 11 Gonzalez’s opinion was inconsistent with the opinion of the nonexamining 12 psychologist, Carla van Dam, Ph.D. Tr. 91-92, and with Dr. Marks’ opinion, Tr. 13 912-19, the ALJ was required to provide specific and legitimate reasons for 14 rejecting Dr. Gonzalez’s opinion. See Bayliss, 427 F.3d at 1216. 15 First, the ALJ gave little weight to Dr. Gonzalez’s opinion because Dr. 16 Gonzalez provided no explanation for his extreme assessment, which was 17 inconsistent with his treatment notes, including the mental status findings. Tr. 39. 18 The Social Security regulations “give more weight to opinions that are explained 19 than to those that are not.” Holohan, 246 F.3d at 1202. “[T]he ALJ need not 20 accept the opinion of any physician, including a treating physician, if that opinion ORDER - 29 1 is brief, conclusory, and inadequately supported by clinical findings.” Bray, 554 2 F.3d at 1228; Nguyen, 100 F.3d at 1464; Tommasetti, 533 F.3d at 1041. However, 3 if treatment notes are consistent with the provider’s opinion, a conclusory opinion 4 may not automatically be rejected because the provider’s opinion must be viewed 5 considering the entire treatment relationship, including the length of the treatment 6 relationship, frequency of visits, and the nature and extent of treatment received. 7 Batson, 359 F.3d at 1199; Garrison v. Colvin, 759 F.3d 995, 1014 n.17 (9th Cir. 8 2014); Trevizo v. Berryhill, 871 F.3d 664, 667, n.4 (9th Cir. 2017); 20 C.F.R. §§ 9 404.1527(c)(1-6), (f)(1). Here, Dr. Gonzalez’s mental residual functional capacity 10 assessment did not offer an explanation for the opined restrictions, but his 11 treatment notes were of record. Tr. 920-23; see, e.g., Tr. 1294-99, 1304, 1307-08, 12 1311-14, 1317-21, 1336-45, 1348-49, 1358-68, 1371-72, 1377-78, 1384-85, 138813 89, 1393-96, 1403-06, 1409-13, 1416-17, 1419-20. The ALJ found Dr. Gonzalez’s 14 treatment notes from January 2014 through November 2015 described Plaintiff as 15 “appearing in no acute distress, with cooperative behavior, restricted to bright 16 affect, normal speech, linear thought processes, intact orientation, good insight and 17 judgment, and no suicidal ideation, homicidal thoughts, or abnormal involuntary 18 movement.” Tr. 39 (citing Tr. 1290-1422). The ALJ recognized that the mental 19 status findings supported some mental restrictions, but they were not consistent 20 with Dr. Gonzalez’s extreme assessed limitations. Tr. 39. Plaintiff contends that ORDER - 30 1 the treatment notes indicate she demonstrated limited insight and judgment, 2 struggled with mood disorder and psychiatric symptoms of hallucinations and 3 PTSD symptoms. ECF No. 15 at 11. However, the ALJ rationally found the 4 mental status findings and the reflected waxing and waning did not support the 5 extreme limitations opined by Dr. Gonzalez. See Burch v. Barnhart, 400 F.3d 676, 6 679 (9th Cir. 2005) (recognizing that when the evidence is subject to more than 7 one rational interpretation, the ALJ’s conclusion will be upheld). 8 Second, the ALJ found Dr. Gonzalez’s opinion to be inconsistent with the 9 Plaintiff’s unremarkable performance on the cognitive testing conducted by Dr. 10 Davis and Dr. Marks. Tr. 39. Relevant factors to evaluating any medical opinion 11 include the amount of relevant evidence that supports the opinion, the quality of 12 the explanation provided in the opinion, and the consistency of the medical opinion 13 with the record. Lingenfelter, 504 F.3d at 1042; Orn, 495 F.3d at 631. As 14 summarized above, Dr. Marks opined that Plaintiff’s cognitive skills were intact 15 based on the Trail Making A and B tests and other cognitive questions. Tr. 91516 16, 918. During the evaluation with Dr. Davis, Plaintiff performed well on the 17 cognitive testing. Tr. 864. The ALJ reasonably concluded that Dr. Gonzalez’s 18 extreme impairments were inconsistent with Plaintiff’s cognitive functioning. 19 Third, the ALJ discounted Dr. Gonzalez’s opinion because it relied on 20 Plaintiff’s reported hallucinations, which the ALJ found Plaintiff inconsistently ORDER - 31 1 reported to medical providers. An ALJ may discount a claimant’s claimed 2 symptoms if not reported to treatment providers. See, e.g., Greger v. Barnhart, 3 464 F.3d 968, 972-73 (9th Cir. 2006). Here, the ALJ found Plaintiff’s reported 4 hallucinations incredible, or if credible were not as limiting as Plaintiff claimed, 5 because 1) Plaintiff did not disclose to medical providers that she experienced 6 hallucinations until May 2013; 2) Plaintiff provided inconsistent statements about 7 the nature and frequency of her hallucinations; 3) Plaintiff’s hallucinations did not 8 prevent her from engaging in substantial gainful activity for many years; 4) Dr. 9 Marks did not observe Plaintiff responding to internal stimuli; and 5) Plaintiff told 10 Dr. Gonzalez that she missed her auditory and visual hallucinations because she 11 had had them since childhood. Tr. 39, Tr. 34-35. While a different finding could 12 be made on this record, particularly since no treating provider questioned 13 Plaintiff’s reported non-command hallucinations, see, e.g., Tr. 897, 899, 904-05, 14 1098, 1294, there is evidence in the record supporting the ALJ’s decision to 15 discount Dr. Gonzalez’s opinion because Plaintiff did not report hallucinations 16 until May 2013 and she intermittently and inconsistently reported hallucinations. 17 Finally, the ALJ discounted Dr. Gonzalez’s opinion because it was 18 inconsistent with Plaintiff’s found moderate restrictions with activities of daily 19 living, social functioning, and concentration, persistence, and pace. Tr. 39, 30. 20 Factors to evaluating a medical opinion include the amount of relevant evidence ORDER - 32 1 that supports the opinion and the consistency of the medical opinion with the 2 record. Lingenfelter, 504 F.3d at 1042; Orn, 495 F.3d at 631. Here, while 3 Plaintiff’s mental-health symptoms waxed and waned, the ALJ’s finding that 4 Plaintiff had moderate restrictions with activities of daily living, social functioning, 5 and concentration, persistence, and pace is supported by substantial evidence. Tr. 6 30 (citing Tr. 864, 889, 892, 896, 916, 1088, 1090, 1093, 1096, 1106). Therefore, 7 the ALJ’s decision to discount Dr. Gonzalez’s opinion because it was inconsistent 8 with the ALJ’s moderate mental-health findings at step three is rational. 9 In summary, the ALJ offered specific and legitimate reasons to discount Dr. 10 Gonzalez’s extreme opinion. 11 c. Ms. Lovejoy 12 From January to November 2015, licensed mental health counselor Ms. 13 Lovejoy treated Plaintiff. Tr. 1080-1109. Plaintiff had thirty-two therapy sessions 14 with Ms. Lovejoy; each lasting about an hour. Tr. 1080-1109. In June 2015, Ms. 15 Lovejoy completed a Mental Residual Functional Capacity Assessment, 3 Ms. 16 Lovejoy opined that Plaintiff was: 17 18 3 Dr. Gonzalez also signed the assessment form, but the form contained a note that 19 the opinion was Ms. Lovejoy’s opinion. Tr. 926-29 (“Just [licensed mental health 20 counselor’s opinion] on this form”). ORDER - 33 1 • not significantly limited in the ability to carry out very short simple 2 instructions; 3 • mildly limited in the abilities to ask simple questions or request 4 assistance, and be aware of normal hazards and take appropriate 5 precautions; 6 • moderately limited in the abilities to remember locations and work- 7 like procedures, understand and remember very short and simple 8 instructions, carry out detailed instructions, sustain an ordinary 9 routine without special supervision, make simple work-related 10 decisions, and respond appropriately to changes in the work setting; 11 • markedly limited in the abilities to understand and remember detailed 12 instructions, perform activities within a schedule, maintain regular 13 attendance, be punctual within customary tolerances, work in 14 coordination with or proximity to others without being distracted by 15 them, interact appropriately with the general public, accept 16 instructions and respond appropriately to criticism from supervisors, 17 get along with co-workers or peers without distracting them or 18 exhibiting behavioral extremes, maintain socially appropriate 19 behavior and adhere to basic standards of neatness and cleanliness, 20 ORDER - 34 1 travel in unfamiliar places or use public transportation, and set 2 realistic goals and make plans independently of others; and 3 • severely limited in the abilities to maintain attention and 4 concentration for extended periods, complete a normal work day and 5 workweek without interruptions from psychologically based 6 symptoms, and to perform at a consistent pace without an 7 unreasonable number and length of rest periods. 8 Tr. 926-27. Ms. Lovejoy also opined as to “B” Criteria that Plaintiff was markedly 9 restricted in her activities of daily living and had extreme difficulties maintaining 10 social functioning, concentration, persistence, and pace. Tr. 928. As to “C” 11 Criteria, Ms. Lovejoy opined that even a minimal increase in mental demands or 12 change in environment would cause Plaintiff to decompensate. Tr. 928. Finally, 13 Ms. Lovejoy opined that Plaintiff would be off-task over thirty percent of the work 14 week and would miss four or more days per month. Tr. 928. 15 The ALJ assigned this opinion little weight. Tr. 39. Because Ms. Lovejoy is 16 considered an “other source,” the ALJ was required to provide a germane reason 17 for discounting Ms. Lovejoy’s opinion. See Bayliss, 427 F.3d at 1216. 18 First, the ALJ discounted Ms. Lovejoy’s opinion because she provided no 19 explanation for her extreme assessment. Tr. 39. The Social Security regulations 20 “give more weight to opinions that are explained than to those that are not.” ORDER - 35 1 Holohan, 246 F.3d at 1202. “[T]he ALJ need not accept the opinion of any 2 physician, including a treating physician, if that opinion is brief, conclusory, and 3 inadequately supported by clinical findings.” Bray, 554 F.3d at 1228. But if 4 treatment notes are consistent with the provider’s opinion, a conclusory opinion 5 may not automatically be rejected because the provider’s opinion must be viewed 6 considering the entire treatment relationship, including the length of the treatment 7 relationship, frequency of visits, and the nature and extent of treatment received. 8 Batson, 359 F.3d at 1199; Garrison, 759 F.3d at 1014 n.17; Trevizo, 871 F.3d at 9 667, n.4; 20 C.F.R. §§ 404.1527(c)(1-6), (f)(1). Here, Ms. Lovejoy’s mental 10 residual functional capacity assessment did not offer an explanation for the opined 11 restrictions. Tr. 926-29. As of the date of her assessment on June 2, 2015, Ms. 12 Lovejoy conducted fifteen therapy sessions with Plaintiff, Tr. 1097, and her 13 treatment notes were of record, Tr. 1080-1109. The ALJ found that despite 14 Plaintiff reporting varying mood and anxiety Ms. Lovejoy still noted that Plaintiff 15 appeared well-groomed, with cooperative attitude, normal range of affect, normal 16 behavior, full orientation, logical thought processes, appropriate thought content, 17 and no hallucinations. Tr. 39. Although comprehensive review of Ms. Lovejoy’s 18 progress notes reflect that Plaintiff’s psychological symptoms waxed and waned, 19 the ALJ reasonably concluded that the treatment notes did not support the extreme 20 limitations opined by Ms. Lovejoy. See Burch, 400 F.3d at 679. ORDER - 36 1 Second, the ALJ discounted Ms. Lovejoy’s opinion because it was 2 inconsistent with Plaintiff’s unremarkable performance on cognitive testing 3 conducted by Dr. Davis and Dr. Marks. Relevant factors to evaluating any medical 4 opinion include the amount of relevant evidence that supports the opinion and the 5 consistency of the medical opinion with the record. Lingenfelter, 504 F.3d at 6 1042; Orn, 495 F.3d at 631. As discussed supra and infra, both Dr. Marks, Tr. 7 918, and Dr. Davis, Tr. 865, found that Plaintiff’s cognitive abilities were normal 8 based on the conducted testing. The ALJ reasonably concluded that Ms. Lovejoy’s 9 opinion was inconsistent with Plaintiff’s cognitive functioning. 10 Finally, the ALJ discounted Ms. Lovejoy’s opinion because it was 11 inconsistent with Plaintiff’s found moderate restrictions with activities of daily 12 living, social functioning, and concentration, persistence, and pace. Tr. 39, 30. 13 Factors to evaluating a medical opinion include the amount of relevant evidence 14 that supports the opinion and the consistency of the medical opinion with the 15 record. Lingenfelter, 504 F.3d at 1042; Orn, 495 F.3d at 631. Here, while 16 Plaintiff’s mental-health symptoms waxed and waned, the ALJ’s finding that 17 Plaintiff had moderate restrictions with activities of daily living, social functioning, 18 and concentration, persistence, and pace is supported by substantial evidence. Tr. 19 30 (citing Tr. 864, 889, 892, 896, 916, 1088, 1090, 1093, 1096, 1106). Therefore, 20 ORDER - 37 1 the ALJ’s decision to discount Ms. Lovejoy’s opinion because it was inconsistent 2 with the ALJ’s moderate mental-health findings at step three is rational. 3 In summary, the ALJ offered germane reasons to discount Ms. Lovejoy’s 4 extreme opinion. 5 6 d. Dr. Davis In May 2013, Dr. Davis examined Plaintiff and diagnosed Plaintiff with 7 bipolar disorder (by history), PTSD (by history); generalized anxiety disorder (by 8 history); and ADHD (by history). Tr. 862-65. Dr. Davis opined that Plaintiff 9 could perform simple and repetitive tasks, may have slight difficulty with detailed 10 and complex tasks due to slight memory deficiency; could interact with coworkers 11 and the public; could accept instructions from supervisors; could perform work 12 consistently; and could potentially have difficulty maintaining regular workplace 13 attendance as well as dealing with usual workplace stressors secondary to her Axis 14 I disorders. Tr. 865. 15 The ALJ gave some weight to Dr. Davis’ opinion that Plaintiff could 16 perform simple and repetitive tasks, interact with coworkers and the public, 17 perform work consistently, and perform some detailed and complex tasks. Tr. 38. 18 The ALJ rejected Dr. Davis’ opinion that Plaintiff could potentially have difficulty 19 maintaining regular workplace attendance and dealing with usual workplace 20 stressors. Tr. 38. Because Dr. Davis’ opinion was inconsistent with the opinion of ORDER - 38 1 the nonexamining psychologist, Carla van Dam, Ph.D. Tr. 91-92, the ALJ was 2 required to provide specific and legitimate reasons for rejecting Dr. Davis’ opinion. 3 See Bayliss, 427 F.3d at 1216. 4 As an initial matter, Plaintiff’s entire argument consists of the following: 5 “[t]he ALJ erred in rejecting the opinion, again failing to provide specific and 6 legitimate reasons for doing so.” ECF No. 15 at 12. Plaintiff failed to articulate 7 how the reasons identified by the ALJ did not meet the specific and legitimate 8 standard. The Court ordinarily will not consider matters on appeal that are not 9 specifically and distinctly argued in an appellant’s opening brief. See Carmickle, 10 533 F.3d at 1161 n.2. The Ninth Circuit “has repeatedly admonished that [it] 11 cannot ‘manufacture arguments for an appellant.’” Indep. Towers, 350 F.3d at 929 12 (quoting Greenwood v. Fed. Aviation Admin., 28 F.3d 971, 977 (9th Cir.1994)). 13 Rather, the Court will “review only issues which are argued specifically and 14 distinctly.” Indep. Towers, 350 F.3d at 929. When a claim of error is not argued 15 and explained, the argument is waived. Id. at 929-30 (holding that party’s 16 argument was waived because the party made only a “bold assertion” of error, with 17 “little if any analysis to assist the court in evaluating its legal challenge”); see also 18 Hibbs v. Dep’t of Human Res., 273 F.3d 844, 873 n.34 (9th Cir.2001) (finding an 19 allegation of error was “too undeveloped to be capable of assessment”). Here, 20 however, see infra, the ALJ discounted Dr. Davis’ opinion for reasons that the ORDER - 39 1 Court has otherwise found were impacted by an erroneous evaluation of the 2 medical evidence—reliance on Plaintiff’s self-reports and lay witness statements. 3 Therefore, given the impact of this erroneous evaluation of the evidence, the ALJ 4 must reassess Dr. Davis’ opinion on remand. 5 First, as mentioned, the ALJ discounted Dr. Davis’ opinion about Plaintiff’s 6 ability to maintain attendance and deal with workplace stressors because it 7 appeared to rely largely on Plaintiff’s self-reports. Tr. 38. A physician’s opinion 8 may be rejected if it is based on a claimant’s subjective complaints, which were 9 properly discounted. Tonapetyan, 242 F.3d at 1149; Morgan v. Comm’r of Soc. 10 Sec. Admin., 169 F.3d 595, 602 (9th Cir. 1999). Here, the Court is remanding for 11 reconsidering of Plaintiff’s symptom testimony. Therefore, the ALJ is to also 12 reassess on remand whether Dr. Davis’ opinion is consistent with Plaintiff’s 13 reported symptoms and/or whether it relies too heavily on Plaintiff’s self-reports. 14 Second, the ALJ discounted Dr. Davis’ opinion on the grounds that it relied 15 on Denise Spanbauer’s regurgitatart note predated the alleged onset date is not a legitimate and 14 specific reason on this record to discount Dr. Davis’ opinion, particularly since Dr. 15 Davis did not identify that she based her opinion on Nurse Siefken’s chart note. 16 See Orn, 495 F.3d at 635 (requiring the reason relied on by the ALJ to be 17 responsive to the grounds for the medical opinion). 18 The ALJ provided additional reasons for discounting Dr. Davis’ opinion. 19 Given the errors that occurred in the evaluation of the opinion and the fact that this 20 ORDER - 41 1 case is being remanded on other grounds, the ALJ is directed to reassess Dr. Davis’ 2 opinion on remand. 3 Moreover, because the Court is remanding for further proceedings, including 4 for reconsideration of Plaintiff’s symptom claims and the lay witness testimony, 5 the Court concludes that reevaluation of the medical opinions related to both the 6 physical and mental health impairments is appropriate. 7 8 B. Lay Witness Testimony Plaintiff faults the ALJ for discounting the lay witness statements of Denise 9 Spanbauer and Lonna Aldridge. ECF No. 15 at 14-16. 10 An ALJ must consider the testimony of lay witnesses in determining 11 whether a claimant is disabled. Stout v. Comm’r of Soc. Sec. Admin., 454 F.3d 12 1050, 1053 (9th Cir. 2006). Lay witness testimony cannot establish the existence 13 of medically determinable impairments, but lay witness testimony is “competent 14 evidence” as to “how an impairment affects [a claimant's] ability to work.” Id.; 20 15 C.F.R. § 416.913; see also Dodrill, 12 F.3d at 918-19 (“[F]riends and family 16 members in a position to observe a claimant's symptoms and daily activities are 17 competent to testify as to her condition.”). If lay testimony is rejected, the ALJ 18 “must give reasons that are germane to each witness.” Nguyen, 100 F.3d at 1467. 19 Here, the ALJ rejected the lay testimony largely because of the ALJ’s rejection of 20 ORDER - 42 1 the medical evidence. Because the ALJ erred in assessing the medical evidence, 2 the ALJ is to reassess the lay testimony on remand. 3 4 C. Plaintiff’s Symptom Complaints Plaintiff faults the ALJ for failing to rely on reasons that were clear and 5 convincing in discrediting her subjective symptom claims. ECF No. 15 at 16-19. 6 An ALJ engages in a two-step analysis to determine whether to discount a 7 claimant’s testimony regarding subjective symptoms. SSR 16-3p, 2016 WL 8 1119029, at *2. “First, the ALJ must determine whether there is objective medical 9 evidence of an underlying impairment which could reasonably be expected to 10 produce the pain or other symptoms alleged.” Molina, 674 F.3d at 1112 (quotation 11 marks omitted). “The claimant is not required to show that her impairment could 12 reasonably be expected to cause the severity of the symptom she has alleged; she 13 need only show that it could reasonably have caused some degree of the 14 symptom.” Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). 15 Second, “[i]f the claimant meets the first test and there is no evidence of 16 malingering, the ALJ can only reject the claimant’s testimony about the severity of 17 the symptoms if [the ALJ] gives ‘specific, clear and convincing reasons’ for the 18 rejection.” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (citations 19 omitted). General findings are insufficient; rather, the ALJ must identify what 20 symptom claims are being discounted and what evidence undermines these claims. ORDER - 43 1 Id. (quoting Lester, 81 F.3d at 834); Thomas, 278 F.3d at 958 (requiring the ALJ to 2 sufficiently explain why he discounted claimant’s symptom claims). “The clear 3 and convincing [evidence] standard is the most demanding required in Social 4 Security cases.” Garrison, 759 F.3d at 1015 (quoting Moore v. Comm’r of Soc. 5 Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002)). 6 Factors to be considered in evaluating the intensity, persistence, and limiting 7 effects of an individual’s symptoms include: 1) daily activities; 2) the location, 8 duration, frequency, and intensity of pain or other symptoms; 3) factors that 9 precipitate and aggravate the symptoms; 4) the type, dosage, effectiveness, and 10 side effects of any medication an individual takes or has taken to alleviate pain or 11 other symptoms; 5) treatment, other than medication, an individual receives or has 12 received for relief of pain or other symptoms; 6) any measures other than treatment 13 an individual uses or has used to relieve pain or other symptoms; and 7) any other 14 factors concerning an individual’s functional limitations and restrictions due to 15 pain or other symptoms. SSR 16-3p, 2016 WL 1119029, at *7; 20 C.F.R. § 16 416.929(c)(1)-(3) (2011). The ALJ is instructed to “consider all of the evidence in 17 an individual’s record,” “to determine how symptoms limit ability to perform 18 work-related activities.” SSR 16-3p, 2016 WL 1119029, at *2. 19 The ALJ found that Plaintiff’s medically determinable impairments could 20 reasonably be expected to cause the alleged symptoms, but that Plaintiff’s ORDER - 44 1 statements concerning the intensity, persistence, and limiting effects of her 2 symptoms were not entirely consistent with the medical evidence and other 3 evidence of record. Tr. 32. In reaching this conclusion, the ALJ relied in large 4 part on the ALJ’s evaluation of the medical evidence. Tr. 33-37. Because the ALJ 5 erred in assessing the medical evidence, the ALJ is to reassess Plaintiff’s symptom 6 claims on remand. 7 8 D. Step Two Plaintiff contends the ALJ erred at step two by failing to identify her 9 fibromyalgia, sleep apnea, ADHD/learning disorder and cognitive impairment, 10 diabetes II, uncontrolled hypercholesterolemia, chronic migraine/tension headache, 11 diastolic dysfunction, GERD, lumbar radiculopathy, IBS and fatty infiltration of 12 the liver, and hypothyroidism conditions as severe impairments. ECF No. 15 at 13 13-14. At step two of the sequential process, the ALJ must determine whether 14 claimant suffers from a “severe” impairment, i.e., one that significantly limits her 15 physical or mental ability to do basic work activities. 20 C.F.R. §§ 404.1520(c); 16 416.920(c). To show a severe impairment, the claimant must first prove the 17 existence of a physical or mental impairment by providing medical evidence 18 consisting of signs, symptoms, and laboratory findings; the claimant’s own 19 20 ORDER - 45 1 statement of symptoms alone will not suffice. 20 C.F.R. §§ 404.1508; 416.908 2 (2010).4 3 An impairment may be found to be not severe when “medical evidence 4 establishes only a slight abnormality or a combination of slight abnormalities 5 which would have no more than a minimal effect on an individual’s ability to 6 work….” Social Security Ruling (SSR) 85-28 at *3. Similarly, an impairment is 7 not severe if it does not significantly limit a claimant’s physical or mental ability to 8 do basic work activities; which include walking, standing, sitting, lifting, pushing, 9 pulling, reaching, carrying, or handling; seeing, hearing, and speaking; 10 understanding, carrying out and remembering simple instructions; responding 11 appropriately to supervision, coworkers and usual work situations; and dealing 12 with changes in a routine work setting. 20 C.F.R. § 416.921(a) (2010); 5 SSR 8513 28.6 14 15 4 As of March 2017, 20 C.F.R. § 416.908 was reserved and 20 C.F.R. § 416.921 16 was revised. The version in effect at the time of the ALJ’s decision is applied. 17 5 As of March 2017, 20 C.F.R. §§ 416.921 and 416.922 were amended. The 18 version in effect at the time of the ALJ’s decision is applied. 6 The Supreme Court upheld the validity of the Commissioner’s severity 19 regulation, as clarified in SSR 85-28. Bowen v. Yuckert, 482 U.S. 137, 153-54 20 (1987). ORDER - 46 1 Step two is “a de minimus screening device [used] to dispose of groundless 2 claims.” Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). “Thus, applying 3 our normal standard of review to the requirements of step two, [the Court] must 4 determine whether the ALJ had substantial evidence to find that the medical 5 evidence clearly established that [Plaintiff] did not have a medically severe 6 impairment or combination of impairments.” Webb v. Barnhart, 433 F.3d 683, 687 7 (9th Cir. 2005). 8 Based on the present record, there is no step-two error. Plaintiff’s entire 9 argument consists of the following: “[t]he ALJ erred in rejecting these impairments 10 as non-severe at step two. This resulted in harmful error, because the limitations 11 emanating from these impairments, in combination with her other severe 12 impairments preclude [Plaintiff] from maintaining competitive employment.” ECF 13 No. 15 at 13. Plaintiff failed to identify what functional impairments resulting 14 from these conditions were not incorporated into the RFC. See Indep. Towers, 350 15 F.3d at 929. Nonetheless, because this matter is being remanded back on other 16 grounds, the ALJ is to reassess the medical evidence and engage in a new step-two 17 analysis. 18 19 E. Step Three Plaintiff contends that the ALJ erred by finding that Plaintiff’s mental-health 20 impairments did not meet a listing, either equally or in combination. ECF No. 15 ORDER - 47 1 at 14. At step three, the ALJ must determine if a claimant’s impairments meet or 2 equal a listed impairment. 20 C.F.R. § 416.920(a)(4)(iii). The Listing of 3 Impairments “describes each of the major body systems impairments [which are 4 considered] severe enough to prevent an individual from doing any gainful 5 activity, regardless of his or her age, education or work experience.” 20 C.F.R. 6 § 416.925. To meet a listed impairment, a claimant must establish that he meets 7 each characteristic of a listed impairment relevant to her claim. 20 C.F.R. § 8 416.925(d). If a claimant meets the listed criteria for disability, she will be found 9 to be disabled. 20 C.F.R. § 416.920(a)(4)(iii). The claimant bears the burden of 10 establishing she meets a listing. Burch, 400 F.3d at 683. 11 Here, the ALJ found that Plaintiff’s impairments and combination of 12 impairments did not meet or equal any listings, including Listings 1.04A (disorders 13 of the spine), 12.04 (depressive, bipolar, and related disorders), 12.06 (anxiety and 14 obsessive-compulsive disorders), 12.07 (somatic symptom and related disorders), 15 and 12.08 (personality and impulsive-control disorders). Tr. 30-31. Plaintiff faults 16 the ALJ for failing to find that Plaintiff’s mental-health disorders did not meet one 17 of these listings. However, Plaintiff’s entire argument consists of the following: 18 “Proper consideration of Dr. Gonzalez’s opinion, above, warrants a finding of 19 disabled as meeting or equaling, in combination, Listings 12.04, 12.06, 12.07, and 20 12.08. (Tr. 920-922). [Plaintiff] also asserts that she meets Listing 1.04A. (Tr. ORDER - 48 1 1500-1538).” ECF No. 15 at 14. Here, Plaintiff failed to identify both the at-issue 2 listing requirements and the medical evidence supporting the at-issue listings. See 3 Indep. Towers, 350 F.3d at 929. Moreover, because the ALJ properly discounted 4 Dr. Gonzalez’s (and Ms. Lovejoy’s) opinions, the ALJ’s decision that Plaintiff did 5 not meet at step-three listing was supported. Nonetheless, because this matter is 6 being remanded back on other grounds, the ALJ is to reassess the medical evidence 7 and engage in a new step-three analysis. 8 9 F. Remedy Plaintiff urges the Court to remand for an immediate award of benefits. ECF 10 No. 15 at 20. “The decision whether to remand a case for additional evidence, or 11 simply to award benefits is within the discretion of the court.” Sprague, 812 F.2d 12 at 1232 (citing Stone v. Heckler, 761 F.2d 530 (9th Cir. 1985)). When the court 13 reverses an ALJ’s decision for error, the court “ordinarily must remand to the 14 agency for further proceedings.” Leon v. Berryhill, 880 F.3d 1041, 1045 (9th Cir. 15 2017); Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1099 (9th Cir. 16 2014). However, the Ninth Circuit has “stated or implied that it would be an abuse 17 of discretion for a district court not to remand for an award of benefits” when three 18 conditions are met. Garrison, 759 F.3d at 1020. Under the credit-as-true rule, 19 where 1) the ALJ has failed to provide legally sufficient reasons for rejecting 20 evidence, whether claimant testimony or medical opinion; 2) the record has been ORDER - 49 1 fully developed and further administrative proceedings would serve no useful 2 purpose; and 3) if the improperly discredited evidence were credited as true, the 3 ALJ would be required to find the claimant disabled on remand, the court will 4 remand for an award of benefits. Revels v. Berryhill, 874 F.3d 648, 668 (9th Cir. 5 2017). Even where the three prongs have been satisfied, the court will not remand 6 for immediate payment of benefits if “the record as a whole creates serious doubt 7 that a claimant is, in fact, disabled.” Garrison, 759 F.3d at 1021. 8 The Court finds further administrative proceedings are necessary. First, the 9 ALJ must reweigh the medical evidence as to Plaintiff’s exertional limitations 10 because 1) both her treating physician and the consulting physician recognized 11 Plaintiff’s need for a sedentary position and 2) her mobility and balance challenges 12 continued after the bariatric surgery. Moreover, if Plaintiff is limited to a 13 sedentary exertional limitation, then the ALJ must determine the impact that this 14 sedentary restriction has on Plaintiff’s disability status. Because the record 15 contains no discussion as to whether Plaintiff is able to perform sedentary jobs if 16 she was “approaching advanced age,” i.e., 50-54 years of age, the ALJ must make 17 a factual finding as to whether Plaintiff’s job skills are transferable. Med. 18 Vocational Guidelines, 20 C.F.R. Part 404, Subpt. P, App. 2, 200.00(a), 201.00(g), 19 201.14, 201.15. The ALJ—not the Court—must first make this transferability 20 finding. See Bray, 554 F.3d at 1226 (remanding to permit the ALJ—not the ORDER - 50 1 court—to determine if the claimant’s skills were transferable); Chavez v. Bowen, 2 844 F.2d 691, 694 (9th Cir. 1988) (recognizing the ALJ must make a specific 3 finding regarding transferability). 4 Second, further administrative proceedings are necessary because the ALJ 5 must reweigh the medical evidence and reassess Plaintiff’s self-reports and the lay 6 testimony. On remand, the ALJ is directed to seek the testimony of medical 7 experts both as to Plaintiff’s physical and mental impairments. The ALJ must 8 renew the sequential analysis and, if Plaintiff does not meet a listing at step three, 9 incorporate each of the supported functional limitations, reassess the RFC, and 10 complete the sequential analysis. 11 12 CONCLUSION Having reviewed the record and the ALJ’s findings, the Court concludes the 13 ALJ’s decision is neither supported by substantial evidence nor free of harmful 14 legal error. Accordingly, IT IS HEREBY ORDERED: 15 1. Plaintiff’s Motion for Summary Judgment, ECF No. 15, is GRANTED. 16 2. Defendant’s Motion for Summary Judgment, ECF No. 16, is DENIED. 17 18 19 20 ORDER - 51 1 3. The Clerk’s Office shall enter JUDGMENT in favor of Plaintiff 2 REVERSING and REMANDING the matter to the Commissioner of Social 3 Security for further proceedings consistent with this recommendation pursuant to 4 sentence four of 42 U.S.C. § 405(g). 5 The District Court Executive is directed to file this Order, provide copies to 6 counsel, and CLOSE THE FILE. 7 DATED March 27, 2019. 8 s/Mary K. Dimke MARY K. DIMKE UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 ORDER - 52

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