Berry v. Commissioner of Social Security, No. 4:2018cv05168 - Document 20 (E.D. Wash. 2019)

Court Description: ORDER GRANTING 14 PLAINTIFFS MOTION FOR SUMMARY JUDGMENT AND DENYING 17 DEFENDANTS MOTION FOR SUMMARY JUDGMENT. The Court enter JUDGMENT in favor of Plaintiff REVERSING and REMANDING the matter to the Commissioner of Social Security for immediate calculation and award of benefits. FILE CLOSED. Signed by Magistrate Judge Mary K. Dimke. (TR, Case Administrator)

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Berry v. Commissioner of Social Security Doc. 20 1 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 2 Jul 31, 2019 3 SEAN F. MCAVOY, CLERK 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON 7 RICHARD B.,1 8 Plaintiff, vs. 9 ANDREW M. SAUL, 10 COMMISSIONER OF SOCIAL SECURITY,2 11 Defendant. No. 4:18-cv-05168-MKD ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ECF Nos. 14, 17 12 13 Before the Court are the parties’ cross-motions for summary judgment. ECF 14 Nos. 14, 17. The parties consented to proceed before a magistrate judge. ECF No. 15 16 1 To protect the privacy of plaintiffs in social security cases, the undersigned 17 identifies them only by their first names and the initial of their last names. 18 2 Andrew M. Saul is now the Commissioner of the Social Security Administration. 19 Accordingly, the Court substitutes Andrew M. Saul as the Defendant and directs 20 the Clerk to update the docket sheet. See Fed. R. Civ. P. 25(d). 2 ORDER - 1 Dockets.Justia.com 1 7. The Court, having reviewed the administrative record and the parties’ briefing, 2 is fully informed. For the reasons discussed below, the Court grants Plaintiff’s 3 Motion, ECF No. 14, and denies Defendant’s Motion, ECF No. 17. 4 5 JURISDICTION The Court has jurisdiction over this case pursuant to 42 U.S.C. §§ 405(g); 6 1383(c)(3). 7 8 STANDARD OF REVIEW A district court’s review of a final decision of the Commissioner of Social 9 Security is governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is 10 limited; the Commissioner’s decision will be disturbed “only if it is not supported 11 by substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 12 1158 (9th Cir. 2012). “Substantial evidence” means “relevant evidence that a 13 reasonable mind might accept as adequate to support a conclusion.” Id. at 1159 14 (quotation and citation omitted). Stated differently, substantial evidence equates to 15 “more than a mere scintilla[,] but less than a preponderance.” Id. (quotation and 16 citation omitted). In determining whether the standard has been satisfied, a 17 reviewing court must consider the entire record as a whole rather than searching 18 for supporting evidence in isolation. Id. 19 In reviewing a denial of benefits, a district court may not substitute its 20 judgment for that of the Commissioner. Edlund v. Massanari, 253 F.3d 1152, 2 ORDER - 2 1 1156 (9th Cir. 2001). If the evidence in the record “is susceptible to more than one 2 rational interpretation, [the court] must uphold the ALJ’s findings if they are 3 supported by inferences reasonably drawn from the record.” Molina v. Astrue, 674 4 F.3d 1104, 1111 (9th Cir. 2012). Further, a district court “may not reverse an 5 ALJ’s decision on account of an error that is harmless.” Id. An error is harmless 6 “where it is inconsequential to the [ALJ’s] ultimate nondisability determination.” 7 Id. at 1115 (quotation and citation omitted). The party appealing the ALJ’s 8 decision generally bears the burden of establishing that it was harmed. Shinseki v. 9 Sanders, 556 U.S. 396, 409-10 (2009). 10 11 FIVE-STEP EVALUATION PROCESS A claimant must satisfy two conditions to be considered “disabled” within 12 the meaning of the Social Security Act. First, the claimant must be “unable to 13 engage in any substantial gainful activity by reason of any medically determinable 14 physical or mental impairment which can be expected to result in death or which 15 has lasted or can be expected to last for a continuous period of not less than twelve 16 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). Second, the claimant’s 17 impairment must be “of such severity that he is not only unable to do his previous 18 work[,] but cannot, considering his age, education, and work experience, engage in 19 any other kind of substantial gainful work which exists in the national economy.” 20 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B). 2 ORDER - 3 1 The Commissioner has established a five-step sequential analysis to 2 determine whether a claimant satisfies the above criteria. See 20 C.F.R. §§ 3 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v). At step one, the Commissioner 4 considers the claimant’s work activity. 20 C.F.R. §§ 404.1520(a)(4)(i), 5 416.920(a)(4)(i). If the claimant is engaged in “substantial gainful activity,” the 6 Commissioner must find that the claimant is not disabled. 20 C.F.R. §§ 7 404.1520(b), 416.920(b). 8 If the claimant is not engaged in substantial gainful activity, the analysis 9 proceeds to step two. At this step, the Commissioner considers the severity of the 10 claimant’s impairment. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the 11 claimant suffers from “any impairment or combination of impairments which 12 significantly limits [his or her] physical or mental ability to do basic work 13 activities,” the analysis proceeds to step three. 20 C.F.R. §§ 404.1520(c), 14 416.920(c). If the claimant’s impairment does not satisfy this severity threshold, 15 however, the Commissioner must find that the claimant is not disabled. 20 C.F.R. 16 §§ 404.1520(c), 416.920(c). 17 At step three, the Commissioner compares the claimant’s impairment to 18 severe impairments recognized by the Commissioner to be so severe as to preclude 19 a person from engaging in substantial gainful activity. 20 C.F.R. §§ 20 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the impairment is as severe or more 2 ORDER - 4 1 severe than one of the enumerated impairments, the Commissioner must find the 2 claimant disabled and award benefits. 20 C.F.R. §§ 404.1520(d), 416.920(d). 3 If the severity of the claimant’s impairment does not meet or exceed the 4 severity of the enumerated impairments, the Commissioner must pause to assess 5 the claimant’s “residual functional capacity.” Residual functional capacity (RFC), 6 defined generally as the claimant’s ability to perform physical and mental work 7 activities on a sustained basis despite his or her limitations, 20 C.F.R. §§ 8 404.1545(a)(1), 416.945(a)(1), is relevant to both the fourth and fifth steps of the 9 analysis. 10 At step four, the Commissioner considers whether, in view of the claimant’s 11 RFC, the claimant is capable of performing work that he or she has performed in 12 the past (past relevant work). 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). 13 If the claimant is capable of performing past relevant work, the Commissioner 14 must find that the claimant is not disabled. 20 C.F.R. §§ 404.1520(f), 416.920(f). 15 If the claimant is incapable of performing such work, the analysis proceeds to step 16 five. 17 At step five, the Commissioner considers whether, in view of the claimant’s 18 RFC, the claimant is capable of performing other work in the national economy. 19 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). In making this determination, 20 the Commissioner must also consider vocational factors such as the claimant’s age, 2 ORDER - 5 1 education, and past work experience. 20 C.F.R. §§ 404.1520(a)(4)(v), 2 416.920(a)(4)(v). If the claimant is capable of adjusting to other work, the 3 Commissioner must find that the claimant is not disabled. 20 C.F.R. §§ 4 404.1520(g)(1), 416.920(g)(1). If the claimant is not capable of adjusting to other 5 work, analysis concludes with a finding that the claimant is disabled and is 6 therefore entitled to benefits. 20 C.F.R. §§ 404.1520(g)(1), 416.920(g)(1). 7 The claimant bears the burden of proof at steps one through four above. 8 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to 9 step five, the burden shifts to the Commissioner to establish that 1) the claimant is 10 capable of performing other work; and 2) such work “exists in significant numbers 11 in the national economy.” 20 C.F.R. §§ 404.1560(c)(2), 416.960(c)(2); Beltran v. 12 Astrue, 700 F.3d 386, 389 (9th Cir. 2012). 13 14 ALJ’S FINDINGS On September 25, 2012, Plaintiff protectively filed applications for Title II 15 disability insurance benefits and Title XVI supplemental security income benefits, 16 alleging a disability onset date of December 28, 2011. Tr. 191-202. The 17 applications were denied initially, Tr. 139-46, and on reconsideration, Tr. 148-52. 18 Plaintiff appeared at a hearing before an administrative law judge on October 29, 19 2014. Tr. 36-85. On December 22, 2014, the ALJ denied Plaintiff’s claims. Tr. 20 16-35. On appeal, this Court remanded the case to the Social Security 2 ORDER - 6 1 Administration and instructed it to supplement the record with any outstanding 2 evidence, and take testimony from psychological, medical, and vocational experts, 3 reassess whether Plaintiff met Listing 12.05C, reassess Plaintiff’s symptom 4 reports, reweigh the medical opinions in the file, and form a new RFC 5 determination considering the new evidence in the record, reassess. Tr. 753-71. 6 On June 22, 2018, Plaintiff appeared before an ALJ for a second hearing. 7 Tr. 660-719. On August 16, 2018, the ALJ denied Plaintiff’s claims. Tr. 628-59. 8 At step one, the ALJ found Plaintiff had engaged in substantial gainful activity 9 from November 2015 to January 2017, but that there had been a continuous 1210 month period during which Plaintiff did not engage in substantial gainful activity. 11 Tr. 634. At step two, the ALJ found Plaintiff had the following severe 12 impairments: major depressive disorder, generalized anxiety disorder, borderline 13 intellectual functioning, intermittent explosive disorder, unspecified personality 14 disorder, and polysubstance use disorder. Tr. 634. At step three, the ALJ found 15 Plaintiff did not have an impairment or combination of impairments that met or 16 medically equaled the severity of a listed impairment. Tr. 637. The ALJ then 17 concluded that Plaintiff had the RFC to perform a full range of work at all 18 exertional levels with the following limitations: 19 20 2 [Plaintiff] would be limited to simple, routine, and repetitive tasks requiring a reasoning level of 2 or less; he would need “hands-on” demonstration to learn tasks; he would need to work in a single location with no assembly-line pace or other fast-paced work; he should have no contact with the public or ORDER - 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 2 more than occasional, superficial contact with co-workers or supervisors, except that he would require up to frequent supervision during the normal training period to help him learn new tasks; and he would need to work independently without collaborative tasks. Tr. 643. At step four, the ALJ found Plaintiff was capable of performing his past relevant work as a hand packager. Tr. 650. Although the ALJ found Plaintiff capable of performing past relevant work, the ALJ continued to step five and determined that, considering Plaintiff’s age, education, work experience, RFC, and testimony from a vocational expert, there were other jobs that existed in significant numbers in the national economy that Plaintiff could perform, such as industrial cleaner, kitchen helper, and laundry worker II. Tr. 650-51. The ALJ concluded Plaintiff was not under a disability, as defined in the Social Security Act, from December 28, 2011, the alleged onset date, through the date of the ALJ’s decision. Tr. 651-52. The Appeals Council did not assume jurisdiction of the case, making the ALJ’s decision the Commissioner’s final decision for purposes of judicial review. See 42 U.S.C. § 1383(c)(3); 20 C.F.R. §§ 404.984, 416.1484. ISSUES Plaintiff seeks judicial review of the Commissioner’s final decision denying him disability income benefits under Title II and supplemental security income ORDER - 8 1 benefits under Title XVI of the Social Security Act. Plaintiff raises the following 2 issues for this Court’s review: 3 1. Whether the ALJ properly considered Plaintiff’s substantial gainful 4 activity at step one; 5 2. Whether the ALJ properly weighed the medical opinion evidence; 6 3. Whether the ALJ properly assessed Listing 12.05 at step three; 7 4. Whether the ALJ properly considered Plaintiff’s symptom claims; 8 5. Whether the ALJ properly considered lay witness statements; and 9 6. Whether the ALJ properly formulated the RFC. 10 ECF No. 14 at 2. 11 12 13 DISCUSSION A. Substantial Gainful Activity Plaintiff claims the ALJ erred at step one by improperly considering his 14 work as a security guard as substantial gainful activity. ECF No. 14 at 3-5. 15 Plaintiff worked as a security guard at Moon Security from November 2015 to 16 May 2016 and at Securitas from May 2016 to January 2017. Tr. 693-95. Plaintiff 17 argues that the ALJ erred by relying on Plaintiff’s testimony, rather than his 18 earnings record, in finding that this work activity constituted substantial gainful 19 20 2 ORDER - 9 1 activity. ECF No. 14 at 4. Plaintiff also argues that these jobs were unsuccessful 2 work attempts (UWAs). ECF No. 14 at 4-5. 3 1. Unsuccessful Work Attempt 4 At step one of the sequential evaluation process, the ALJ considers the 5 claimant’s work activity. 20 C.F.R. §§ 404.1520(a)(4)(i); 416.920(a)(4)(i). If the 6 claimant is engaged in “substantial gainful activity,” the ALJ must find that the 7 claimant is not disabled. 20 C.F.R. §§ 404.1520(b); 416.920(b). Substantial 8 gainful activity is work activity that “involves doing significant physical or mental 9 activities” on a full-or part-time basis, and “is the kind of work usually done for 10 pay or profit.” 20 C.F.R. §§ 404.1572, 416.972. In some instances, short-term 11 work may be considered an unsuccessful work attempt instead of substantial 12 gainful activity. See Gatliff v. Comm’r of Soc. Sec. Admin., 172 F.3d 690, 694 (9th 13 Cir. 1999). The concept was designed as an equitable means of disregarding work 14 that does not demonstrate sustained substantial gainful employment. Id.; see also 15 Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998) (“Several courts, including 16 this one, have recognized that disability claimants should not be penalized for 17 attempting to lead normal lives in the face of their limitations.”). 18 A UWA is defined by regulation as “work that [the claimant is] forced to 19 stop or to reduce below the substantial gainful activity level after a short time 20 because of [his] impairment.” 20 C.F.R. § 404.1574(a)(1) (eff. Nov. 15, 2016); 20 2 ORDER - 10 1 C.F.R. § 416.974(a)(1); see also Social Security Ruling (SSR) 84–25; SSR 05-02. 2 Under the regulations in effect at the time of the ALJ’s decision, the requirements 3 to qualify for the UWA exclusion were: (1) the claimant must have a significant 4 break in the continuity of his or her work before the work attempt; and (2) the 5 work must end or be reduced below the substantial gainful activity earnings level 6 within six months because of the impairment or because of the removal of special 7 conditions which took into account the impairment. 20 C.F.R. §§ 404.1574(c), 8 416.974(c). 9 Here, the ALJ concluded that Plaintiff’s two jobs with Moon Security and 10 Securitas were not UWAs, but rather, constituted substantial gainful activity during 11 the relevant period. Tr. 634. Plaintiff argues the ALJ erred by basing the finding 12 of SGA on presumptions of Plaintiff’s income, rather than his earnings record. 13 ECF No. 14 at 4. The SSA regulations state, “[W]e will generally consider other 14 information in addition to [the claimant’s] earnings if there is evidence indicating 15 that [the claimant] may be engaging in substantial gainful activity…” 20 C.F.R. §§ 16 404.1574(b)(3)(ii); 416.974(b)(3)(ii). Plaintiff asserts that the earnings record 17 shows his SGA-level work lasted for six months, which, along with the work 18 ending due to his impairments, would qualify as UWAs. ECF No. 14 at 4 (citing 19 Tr. 1417). The ALJ acknowledged that he considered Plaintiff’s earnings record in 20 evidence which showed Plaintiff’s reported income only exceeded SGA-level 2 ORDER - 11 1 amounts in the third and fourth quarters of 2016. Tr. 634 (citing Tr. 928-30). 2 However, the ALJ stated that he relied on Plaintiff’s testimony that he worked full3 time between November 2015 and January 2017 with only a weeklong break, and 4 that he earned $9.50 per hour working full-time at Moon Security and $10.50 per 5 hour working full-time at Securitas. Tr. 634, 693-96. The ALJ determined that, 6 based on Plaintiff’s testimony, he worked above SGA-levels for more than one 7 year. Tr. 634. Substantial evidence supports the ALJ’s conclusion that Plaintiff’s 8 work between November 2015 and January 2017 constituted substantial gainful 9 activity. 10 2. Trial Work Period 11 Plaintiff asserts that even if his work activity constituted SGA, it was done 12 under a trial work period. ECF No. 14 at 4 (citing 20 C.F.R. § 404.1592(a)). An 13 individual who is entitled to disability insurance benefits is entitled to a trial work 14 period. 20 C.F.R. § 404.1592(d). “The trial work period is a period during which 15 [a claimant] may test [their] ability to work and still be considered disabled.” 20 16 C.F.R. § 404.1592(a). The trial work period may last up to nine months. Id. The 17 Commissioner may not consider work performed during the trial work period in 18 determining whether disability has ended. Id. The trial work period begins with 19 the month in which a claimant becomes entitled to benefits. 20 C.F.R. § 20 404.1592(e). 2 ORDER - 12 1 The question of whether an individual is entitled to a trial work period 2 before the Commissioner has adjudged the individual to be entitled to benefits has 3 not been addressed by the Ninth Circuit. However, several other circuits have 4 concluded that the trial work period is only available to claimants who have 5 already been adjudicated disabled and are receiving benefits at the time of the trial 6 work period. See Cieutat v. Bowen, 824 F.2d 348, 358-59 (5th Cir. 1987); Mullis 7 v. Bowen, 861 F.2d 991, 993 (6th Cir. 1988)3; Wyatt v. Barnhart, 349 F.3d 983, 8 985-96 (7th Cir. 2003); see also Conley v. Bowen, 859 F.2d 261, 262 (2d Cir. 9 1988). This interpretation is consistent with the regulation itself, which excludes 10 the trial work period from the consideration of whether a disability has ended, 11 rather than the initial consideration of whether a claimant is disabled. 20 C.F.R. § 12 404.1592(a). Furthermore, the regulation that establishes the trial work period is 13 contained within the subheading “Continuing or Stopping Disability.” 20 C.F.R. 14 §404, Subpart P. In light of the text and context of the regulation, the Court finds 15 Plaintiff is eligible for a trial work period only after becoming entitled to benefits 16 by being adjudged disabled within the meaning of the Social Security Act. Here, 17 because Plaintiff was not adjudged disabled and thus was not entitled to benefits at 18 19 3 But see Parish v. Califano, 42 F.2d 188, 193 (6th Cir. 1981) (recognizing trial 20 work period eligibility upon filing for benefits in cases of degenerative disease). 2 ORDER - 13 1 the time of his employment as a security guard for both Moon Security and 2 Securitas, Plaintiff is unable to characterize his employment as a trial work period. 3 4 B. Medical Opinion Evidence Plaintiff challenges the ALJ’s evaluation of the medical opinions of Lynn M. 5 Orr, Ph.D., James Opara, M.D., Chad Longaker M.Ed., Laurie Zimmerman, M.D., 6 and N.K. Marks, Ph.D. ECF No. 14 at 12-21. 7 There are three types of physicians: “(1) those who treat the claimant 8 (treating physicians); (2) those who examine but do not treat the claimant 9 (examining physicians); and (3) those who neither examine nor treat the claimant 10 [but who review the claimant’s file] (nonexamining [or reviewing] physicians).” 11 Holohan v. Massanari, 246 F.3d 1195, 1201-02 (9th Cir. 2001) (citations omitted). 12 Generally, a treating physician’s opinion carries more weight than an examining 13 physician’s opinion, and an examining physician’s opinion carries more weight 14 than a reviewing physician’s opinion. Id. at 1202. “In addition, the regulations 15 give more weight to opinions that are explained than to those that are not, and to 16 the opinions of specialists concerning matters relating to their specialty over that of 17 nonspecialists.” Id. (citations omitted). 18 If a treating or examining physician’s opinion is uncontradicted, the ALJ 19 may reject it only by offering “clear and convincing reasons that are supported by 20 substantial evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). 2 ORDER - 14 1 “However, the ALJ need not accept the opinion of any physician, including a 2 treating physician, if that opinion is brief, conclusory, and inadequately supported 3 by clinical findings.” Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1228 4 (9th Cir. 2011) (internal quotation marks and brackets omitted). “If a treating or 5 examining doctor’s opinion is contradicted by another doctor’s opinion, an ALJ 6 may only reject it by providing specific and legitimate reasons that are supported 7 by substantial evidence.” Bayliss, 427 F.3d at 1216 (citing Lester v. Chater, 81 8 F.3d 821, 830–31 (9th Cir. 1995)). The opinion of a nonexamining physician may 9 serve as substantial evidence if it is supported by other independent evidence in the 10 record. Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995). 11 “Only physicians and certain other qualified specialists are considered 12 ‘[a]cceptable medical sources.’ ” Ghanim v. Colvin, 763 F.3d 1154, 1161 (9th Cir. 13 2014) (alteration in original); see 20 C.F.R. §§ 404.1513, 416.913 (2013).4 14 However, an ALJ is required to consider evidence from non-acceptable medical 15 sources. Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987); 20 C.F.R. §§ 16 17 4 For cases filed prior to March 27, 2017, the definition of an acceptable medical 18 source, as well as the requirement that an ALJ consider evidence from non19 acceptable medical sources, are located at 20 C.F.R. §§ 404.1513(d), 416.913(d) 20 (2013). 2 ORDER - 15 1 404.1513(d), 416.913(d) (2013). “Other sources” include nurse practitioners, 2 physicians’ assistants, therapists, teachers, social workers, spouses and other non3 medical sources. 20 C.F.R. § 20 C.F.R. § 416.913(d) (2013). An ALJ may reject 4 the opinion of a non-acceptable medical source by giving reasons germane to the 5 opinion. Ghanim, 763 F.3d at 1161. 6 1. Dr. Orr 7 On November 20, 2012, Lynn M. Orr, Ph.D., clinical psychologist, 8 conducted a psychological evaluation of Plaintiff. Tr. 372. Plaintiff reported to 9 Dr. Orr that he was unable to work due to back pain resulting from an accident and 10 some difficulty with his right eye following cataract surgery. Tr. 372. Dr. Orr 11 noted Plaintiff had no counseling other than treatment for chemical dependency, he 12 denied having ever been hospitalized for emotional problems, and he denied any 13 serious incidents of anxiety or depression. Tr. 372-73. Dr. Orr reported there was 14 no indication that Plaintiff experienced psychotic symptoms or suicidal or 15 homicidal thoughts, although he did note that Plaintiff reported he was suicidal 16 when he and his fiancé broke up in February 2012. Tr. 372-73. Dr. Orr indicated 17 that Plaintiff described his mood as “[g]ood, always relaxed, always happy.” Tr. 18 373. Plaintiff’s clinical exam and testing showed low average processing speed 19 and working memory, and borderline verbal comprehension and perceptual 20 reasoning. Tr. 375. Testing showed Plaintiff had a verbal IQ of 70 and a full-scale 2 ORDER - 16 1 IQ of 73, though his working memory and processing speed scores were 2 considerably higher at 89 and 81. Tr. 375. Dr. Orr diagnosed cannabis and 3 amphetamine dependence in remission, alcohol dependence in partial remission, 4 intermittent explosive disorder, and borderline intellectual functioning. Tr. 375. 5 Dr. Orr opined that Plaintiff would need to do “simple redundant tasks” with 6 “instructions and other information repeated.” Tr. 376. He opined that Plaintiff 7 would have a slow learning curve and should “not be placed in a position where 8 quick judgments are necessary to avoid safety hazards.” Tr. 376. The ALJ found 9 that Dr. Orr’s “opinion support[ed] a restriction to frequent supervision during the 10 training period and a need for 25 percent more time than the average worker to 11 adapt to changes in the work environment.” Tr. 645. 12 The ALJ gave great weight to Dr. Orr’s opinion that Plaintiff needed 25 13 percent more time than the average worker to adapt to changes in the work 14 environment. Tr. 645. Because Dr. Orr’s assessment regarding Plaintiff’s need for 15 25 percent more time was contradicted by the nonexamining opinion of Michael 16 Lace, Ph.D., Tr. 681-82, the ALJ was required to provide specific and legitimate 17 reasons for discounting Dr. Orr’s opinion as to this limitation.5 Bayliss, 427 F.3d 18 19 5 Dr. Lace testified that Plaintiff would be able to function without extra 20 supervision to learn new tasks, but that Plaintiff would “do better with a little bit of 2 ORDER - 17 1 at 1216. Instead, the ALJ fully credited Dr. Orr’s medical opinion as to Plaintiff’s 2 limitations, including this specific limitation. Tr. 645. 3 However, in fashioning the RFC, the ALJ did not include a limitation 4 addressing Plaintiff’s need for 25 percent more time than the average worker to 5 adapt to changes in the work environment. Tr. 643, 645. The ALJ is required to 6 set forth the reasoning behind his or her decisions in a way that allows for 7 meaningful review. Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015) 8 (finding a clear statement of the agency’s reasoning is necessary because the Court 9 can affirm the ALJ’s decision to deny benefits only on the grounds invoked by the 10 ALJ). “Although the ALJ’s analysis need not be extensive, the ALJ must provide 11 some reasoning in order for us to meaningfully determine whether the ALJ’s 12 conclusions were supported by substantial evidence.” Treichler v. Comm’r of Soc. 13 Sec. Admin., 775 F.3d 1090, 1103 (9th Cir. 2014). Plaintiff argues that the record 14 does not support the ALJ’s RFC, as Dr. Orr’s opinion about Plaintiff’s need for 15 additional time to adapt to changes in the work environment was repeated in other 16 locations in the record. ECF No. 19 at 8; see, e.g., Tr. 1328 (Dr. Marks found 17 18 extra time and a little bit of extra supervision.” Tr. 681-82. Dr. Lace also testified 19 that, in terms of how Plaintiff presented, there was no support for marked or 20 extreme limitations. Tr. 671. 2 ORDER - 18 1 marked impairments in relevant work functions); Tr. 681-82 (Dr. Lace agreed with 2 Dr. Orr that Plaintiff would benefit from “overlearning” opportunities with extra 3 time and supervision). Defendant argues that the ALJ relied on Dr. Orr’s opinion 4 in restricting Plaintiff to “simple, routine and repetitive tasks requiring a reasoning 5 level of [two] or less,” and that the ALJ found Dr. Orr assessed no additional 6 limitations. ECF No. 17 at 9 (citing Tr. 638, 645). Defendant’s argument is not 7 persuasive. Limiting Plaintiff to simple, routine and repetitive tasks requiring a 8 reasoning level of two or less does not address Plaintiff’s need for 25 percent more 9 time than the average worker to adapt to changes in the work environment. In the 10 decision, the ALJ indicated that he relied on Dr. Orr’s opinion in part in finding 11 Plaintiff would be limited to simple, routine, and repetitive tasks requiring a 12 reasoning level of two or less, and he also separately found that Dr. Orr’s opinion 13 supported a need for 25 percent more time than the average worker to adapt to 14 changes in the work environment. Tr. 645. The ALJ’s rationale for formulating 15 Plaintiff’s RFC without addressing a need for 25 percent more time for Plaintiff to 16 adapt is absent, and therefore unsupported in this case. The Court finds that the 17 ALJ committed reversible error by failing to include this credited limitation in the 18 RFC. 19 This error is not harmless. The harmless error analysis may be applied 20 where even a treating source’s opinion is disregarded without comment. Marsh v. 2 ORDER - 19 1 Colvin, 792 F.3d 1170, 1173 (9th Cir. 2015). An error is harmful unless the 2 reviewing court “can confidently conclude that no reasonable ALJ, when fully 3 crediting the [evidence], could have reached a different disability determination.” 4 Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1056 (9th Cir. 2006). The ALJ 5 posed a hypothetical question to the vocational expert which included Dr. Orr’s 6 limitation that Plaintiff would need 25 percent more time than the average worker 7 to adapt to changes in the work environment. Tr. 710-13. The vocational expert 8 testified that such a limitation would preclude competitive employment. Tr. 7119 12. The vocational expert confirmed her testimony was consistent with the 10 Dictionary of Occupational Titles (DOT), and her professional experience and 11 understanding of how jobs were performed per the DOT description formed the 12 basis for her testimony on issues in the ALJ’s hypotheticals that were not 13 specifically addressed in the DOT. Tr. 715. Based on this record, the Court cannot 14 confidently conclude that the disability determination would remain the same were 15 the RFC to properly incorporate the entirety of Dr. Orr’s fully credited opinion. 16 2. Dr. Opara 17 On November 17, 2012, James Opara, M.D., conducted a physical 18 examination of Plaintiff. Tr. 365-68. He diagnosed dorsolumbar strain and 19 cataract issues and did not assess Plaintiff with any physical limitations. Tr. 368. 20 On October 12, 2013, Plaintiff had another physical examination with Dr. Opara. 2 ORDER - 20 1 Tr. 389-92. Dr. Opara observed tenderness and limited motion of Plaintiff’s 2 lumbar spine, but his examination otherwise showed results similar to the 3 November 2012 examination. Tr. 391. Dr. Opara diagnosed Plaintiff with a 4 lumbar strain and opined that he could lift up to 50 pounds frequently and 100 5 pounds occasionally, stand and/or walk for six hours in an eight-hour day using the 6 remainder of the time to rest and change positions, and frequently stoop, crouch, 7 and crawl.6 Tr. 391. 8 The ALJ gave great weight to Dr. Opara’s opinion. Tr. 635-36. Because Dr. 9 Opara’s assessment regarding Plaintiff’s physical restrictions was contradicted by 10 the nonexamining opinion of James McKenna, M.D., Tr. 684-93, the ALJ was 11 required to provide specific and legitimate reasons for discounting Dr. Opara’s 12 opinion as to Plaintiff’s physical limitations.7 Bayliss, 427 F.3d at 1216. Instead, 13 the ALJ fully credited Dr. Opara’s medical opinion as to Plaintiff’s limitations. 14 15 6 The ALJ found that Dr. Opara limited Plaintiff to standing and/or walking for six 16 hours with position changes every two hours. Tr. 635. Rather, Dr. Opara limited 17 Plaintiff to standing and/or walking for six hours in an eight-hour day and noted 18 that Plaintiff “will use the rest of the time to rest and to change positions.” Tr. 391. 19 7 Dr. McKenna testified as to Plaintiff’s physical impairments and did not assign 20 any functional limitations. Tr. 684-93. 2 ORDER - 21 1 However, in fashioning the RFC, the ALJ did not include any physical 2 limitations. Tr. 643. The ALJ is required to set forth the reasoning behind his or 3 her decisions in a way that allows for meaningful review. Brown-Hunter, 806 F.3d 4 at 492 (finding a clear statement of the agency’s reasoning is necessary because the 5 Court can affirm the ALJ’s decision to deny benefits only on the grounds invoked 6 by the ALJ). “Although the ALJ’s analysis need not be extensive, the ALJ must 7 provide some reasoning in order for us to meaningfully determine whether the 8 ALJ’s conclusions were supported by substantial evidence.” Treichler, 775 F.3d at 9 1103. Plaintiff contends that Dr. Opara limited Plaintiff to a medium RFC. ECF 10 No. 19 at 6. Defendant asserts that although the ALJ gave Dr. Opara’s opinion 11 great weight, the ALJ also found that Plaintiff’s treating physicians and Plaintiff’s 12 own testimony showed that his back impairment did not cause more than minimal 13 limitation. ECF No. 17 at 11 (citing Tr. 636). However, the ALJ explained that he 14 assigned Dr. Opara’s opinion great weight because he “provided the most thorough 15 physical examination in the record, his opinion [was] consistent with his 16 examination findings and the longitudinal record, and he [had] Social Security 17 program knowledge.” Tr. 636. The ALJ’s rationale for formulating an RFC 18 without addressing any of Dr. Opara’s opined exertional limitations is absent, and 19 therefore unsupported in this case. The Court finds that the ALJ erred by failing to 20 include these credited limitations in the RFC. 2 ORDER - 22 1 This error is not harmless. The harmless error analysis may be applied 2 where even a treating source’s opinion is disregarded without comment. Marsh, 3 792 F.3d at 1173. An error is harmful unless the reviewing court “can confidently 4 conclude that no reasonable ALJ, when fully crediting the [evidence], could have 5 reached a different disability determination.” Stout, 454 F.3d at 1056. Here, Dr. 6 Opara, examining physician, opined that Plaintiff had a physical limitation that 7 restricted him to lifting up to 50 pounds frequently and 100 pounds occasionally, 8 standing and/or walking for six hours in an eight-hour day with the remainder of 9 the time to rest and change positions, and frequently stooping, crouching, and 10 crawling. Tr. 391. The ALJ did not pose any hypotheticals to the vocational 11 expert that included Dr. Opara’s opined limitations on standing and/or walking for 12 six hours in an eight-hour day with the remainder of the time to rest and change 13 positions. In response to a hypothetical with no exertional limitations, the 14 vocational expert testified that Plaintiff could perform his past relevant work as a 15 hand packager, as well as other jobs existing in the national economy such as 16 industrial cleaner, kitchen helper, and laundry worker II. Tr. 713. Although these 17 are medium exertion level jobs, the DOT listings for these jobs do not specify any 18 standing and/or walking requirements. See DOT (4th ed. 1991) (hand packager, 19 920.587-018, available at 1991 WL 687916; industrial cleaner, 381.687-018, 20 available at 1991 WL 673258; kitchen helper, 318.687-010, available at 1991 WL 2 ORDER - 23 1 672755; laundry worker II, 361.685-018, available at 1991 WL 672987). In 2 response to a hypothetical with a limitation to light exertion level work, the 3 vocational expert testified that Plaintiff could perform other jobs existing in the 4 national economy such as bakery worker (conveyor line), cleaner (housekeeping), 5 and marker II. Tr. 714. Although these are light exertion level jobs, the DOT 6 listings for these jobs do not specify any standing and/or walking requirements. 7 See DOT (4th ed. 1991) (bakery worker, 524.687-022, available at 1991 WL 8 674401; cleaner, housekeeping, 323.687-014, available at 1991 WL 672783; 9 marker II, 209.587-034, available at 1991 WL 671802). Based on this record, the 10 Court cannot confidently conclude that the disability determination would remain 11 the same were the RFC to properly incorporate the entirety of Dr. Opara’s fully 12 credited opinion. 13 3. Mr. Longaker 14 On July 17, 2014, treating therapist Chad Longaker M.Ed. completed a 15 mental source statement for Plaintiff. Tr. 514-16. Mr. Longaker opined that 16 Plaintiff 1) was severely limited in the ability to work in coordination with or 17 proximity to others without being distracted by them, complete a normal workday 18 and workweek without interruptions from psychologically based symptoms, 19 perform at a consistent pace without an unreasonable number and length of rest 20 periods, interact appropriately with the general public, accept instructions and 2 ORDER - 24 1 respond appropriately to criticism from supervisors, get along with coworkers or 2 peers without distracting them or exhibiting behavioral extremes, and maintain 3 socially appropriate behavior and adhere to basic standards of neatness and 4 cleanliness; and 2) was markedly limited in the ability to maintain attention and 5 concentration for extended periods, and to respond appropriately to changes in the 6 work setting. Tr. 514-15. Mr. Longaker opined Plaintiff would likely be off task 7 up to 30 percent of the work week and would miss three days of work per month. 8 Tr. 516. The ALJ gave Mr. Longaker’s opinion little weight. Tr. 646. Because 9 Mr. Longaker was an “other source,” the ALJ was required to provide germane 10 reasons to discount his opinion.8 Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 11 1993). 12 a. 13 “Other Source” Opinion In discrediting his opinion, the ALJ noted that Mr. Longaker was not an 14 acceptable medical source. Tr. 646. An ALJ must consider the testimony of lay 15 witnesses in determining whether a claimant is disabled. Stout, 454 F.3d at 1053. 16 Lay witness testimony cannot establish the existence of medically determinable 17 18 19 20 2 8 As a therapist, Mr. Longaker is considered an “other source” under 20 C.F.R. §§ 404.1513(d)(1), 416.913(d)(1) (2013). ORDER - 25 1 impairments, but lay witness testimony is “competent evidence” as to “how an 2 impairment affects [a claimant’s] ability to work.” Id.; 20 C.F.R. § 416.913; see 3 also Dodrill, 12 F.3d at 918-19 (“[F]riends and family members in a position to 4 observe a claimant’s symptoms and daily activities are competent to testify as to 5 her condition.”). If lay testimony is rejected, the ALJ “‘must give reasons that are 6 germane to each witness.’” Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996) 7 (citing Dodrill, 12 F.3d at 919). The fact that Mr. Longaker was an “other source” 8 was not a germane reason to reject his opinion. 9 Plaintiff asserts that Mr. Longaker was part of a treatment team at Tri-Cities 10 Community Health and therefore, his opinion should be considered as an 11 acceptable medical source opinion. ECF No. 14 at 17. However, Gomez v. Chater 12 is no longer good law regarding whether the opinion of an “other source,” who is 13 part of an interdisciplinary team, is to be given controlling weight. Gomez v. 14 Chater, 74 F.3d 967 (9th Cir. 1996). Instead, because the Social Security 15 regulations do not provide for the opinion of an “other source” to be given 16 controlling weight even if the other source is supervised by a physician or acts as 17 part of an interdisciplinary team, Mr. Longaker’s opinion is still considered an 18 “other source” opinion. See Vega v. Colvin, No. 14cv1485-LAB (DHB), 2015 WL 19 7769663 (S.D. Cal. Nov. 12, 2015); Olney v. Colvin, No. 12-CV-0547-TOR, 2013 20 WL 4525402, at *4 (E.D. Wash. Aug. 27, 2013). Therefore, because Mr. 2 ORDER - 26 1 Longaker was an “other source” under 20 C.F.R. §§ 404.1513(d), 416.913(d), the 2 ALJ need only have provided germane reasons for rejecting Mr. Longaker’s 3 findings. See Molina, 674 F.3d at 1111. 4 5 b. Inadequate Explanation The ALJ found that Mr. Longaker provided little explanation for his “check- 6 box” ratings. Tr. 519-22, 646. A medical opinion may be rejected by the ALJ if it 7 is conclusory or inadequately supported. Bray, 554 F.3d at 1228; Thomas v. 8 Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). However, if treatment notes are 9 consistent with the opinion, a conclusory opinion, such as a check-the-box form, 10 may not automatically be rejected. Garrison v. Colvin, 759 F.3d 995, 1014, n.17 11 (9th Cir. 2014); Trevizo v. Berryhill, 871 F.3d 664, 677 n.4 (9th Cir. 2017) 12 (“[T]here is no authority that a ‘check-the-box’ form is any less reliable than any 13 other type of form”). The ALJ noted Mr. Longaker reported in his treatment notes 14 that Plaintiff contributed to his own issues. Tr. 647; see, e.g., Tr. 1568 (February 15 2016: Mr. Longaker’s treatment notes indicate that Plaintiff continued to ignore his 16 own involvement in his behaviors and focused solely on others’ responsibilities to 17 keep him from becoming angry); Tr. 1385 (September 2014: Mr. Longaker cited in 18 his treatment notes Plaintiff’s alcohol use and its effects on his anger, stating that 19 he became unable to cope with anger when drinking excessively, “which appears 20 to be quite frequently”): Tr. 1568 (February 2016: Mr. Longaker reported in his 2 ORDER - 27 1 treatment notes that Plaintiff appeared to ignore his counseling). In August 2017, 2 Plaintiff reported to Mr. Longaker that he wanted to continue his search for full3 time work and commented that his current job could transfer into a full-time job. 4 Tr. 1469. A review of Mr. Longaker’s treatment notes reveal that they are not 5 consistent with the numerous marked and severe limitations opined by Dr. 6 Longaker in his mental source statement. Thus, the ALJ’s finding that Mr. 7 Longaker provided little explanation for his check-box ratings was a germane 8 reason to discount Mr. Longaker’s opinion. 9 10 c. Inconsistent with the Record as a Whole The ALJ found Mr. Longaker’s opinion was inconsistent with the 11 longitudinal record. Tr. 646. Relevant factors to evaluating any medical opinion 12 include the amount of relevant evidence that supports the opinion, the quality of 13 the explanation provided in the opinion, and the consistency of the medical opinion 14 with the record as a whole. Lingenfelter v. Astrue, 504 F.3d 1028, 1042 (9th Cir. 15 2007); Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007). Mr. Longaker opined that 16 Plaintiff had two severe limitations and one marked limitation in categories 17 requiring concentration and persistence, four severe limitations in social 18 interaction, and one marked limitation in adaptation. Tr. 514-15. However, as 19 noted by the ALJ, the record showed that Mr. Longaker’s marked and severe 20 ratings were inconsistent with Plaintiff’s self-reported activity around the home, 2 ORDER - 28 1 his participation in the Special Olympics, and his ability to sustain substantial 2 gainful activity for over a year during the relevant period. Tr. 639, 646. Plaintiff 3 argues that the ALJ’s reasoning only addressed one of Mr. Longaker’s multiple 4 ratings expressed on the check-box form, ECF No. 14 at 16 (citing Tr. 646), and 5 the ALJ failed to show how Mr. Longaker’s opinions in other functional areas 6 were not supported by the longitudinal record. ECF No. 14 at 16. However, as 7 discussed supra, the ALJ found that Plaintiff worked full-time as a security guard 8 from November 2015 until January 2017. Tr. 634. The ALJ reasonably 9 determined that this SGA-level work was inconsistent with Mr. Longaker’s 10 multiple marked and severe ratings. Tr. 646. While a different interpretation of 11 the medical evidence could be made, the ALJ reasonably concluded that Mr. 12 Longaker’s assessment of marked and severe limitations was inconsistent with the 13 record as a whole. This was a germane reason to discount Mr. Longaker’s opinion. 14 15 d. Impact of Alcohol Use The ALJ discounted Mr. Longaker’s opinion because he did not address the 16 impact of Plaintiff’s alcohol use on how he rated Plaintiff’s functioning in the 17 mental source statement. Tr. 646. While an ALJ may discount a medical opinion 18 that does not consider a claimant’s ongoing substance abuse, Cothrell v. Berryhill, 19 742 Fed. App’x 232, 236 (9th Cir. July 18, 2018) (unpublished opinion); Chavez v. 20 Colvin, No. 3:14-cv-01178-JE, 2016 WL 8731796, at *8 (D. Or. July 25, 2016) 2 ORDER - 29 1 (unpublished opinion), here, Mr. Longaker’s mental source statement explicitly 2 stated, “Please exclude from this assessment any limitations due to current alcohol 3 or drug use,” and “[t]he limitations noted do not include limitations from current 4 alcohol or drug use.” Tr. 514, 516. Defendant argues that the ALJ relied on Mr. 5 Longaker’s treatment notes, finding that they showed Plaintiff’s excessive drinking 6 appeared to contribute to his anger management issues. ECF No. 17 at 12-13 7 (citing Tr. 638, 647, 1385, 1558, 1568). However, the explicit language on the 8 mental source statement form shows that Mr. Longaker assessed marked and 9 severe functional limitations even without alcohol or drug use. Tr. 514, 516. The 10 ALJ erred by discounting this opinion on the grounds that Mr. Longaker did not 11 address in the mental source statement the impact of Plaintiff’s alcohol use on how 12 he rated Plaintiff’s functioning. See Brown-Hunter, 806 F.3d at 492 (demanding 13 that the ALJ set forth its reasoning in a way that allows for meaningful review); 14 Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1998). This is not a germane 15 reason to discount Mr. Longaker’s opinion. However, because the ALJ provided 16 other germane reasons to discount Mr. Longaker’s opinion, as discussed supra, the 17 ALJ’s error is harmless. See Molina, 674 F.3d at 1111. 18 4. Dr. Zimmerman 19 On June 11, 2018, Plaintiff’s treating physician, Laurie Zimmerman, M.D., 20 completed a mental source statement for Plaintiff. Tr. 1647-50. Dr. Zimmerman 2 ORDER - 30 1 reported that Plaintiff had an “explosive temper” and did not get along well with 2 others. Tr. 1650. Dr. Zimmerman opined that Plaintiff was markedly limited in 3 the ability to understand and remember detailed instructions, carry out detailed 4 instructions, work in coordination with or proximity to others without being 5 distracted by them, interact appropriately with the general public, accept 6 instructions and respond appropriately to criticism from supervisors, get along with 7 coworkers or peers without distracting them or exhibiting behavioral extremes, 8 interact with others, and adapt or manage himself. Tr. 1647-49. She also opined 9 that Plaintiff would be off-task over 30 percent of the time. Tr. 1649. 10 The ALJ gave Dr. Zimmerman’s opinion little weight. Tr. 649. Because Dr. 11 Zimmerman’s opinion was contradicted by the nonexamining opinion of Dr. Lace, 12 Tr. 668-84, the ALJ was required to provide specific and legitimate reasons for 13 discounting Dr. Zimmerman’s opinion.9 Bayliss, 427 F.3d at 1216. 14 a. 15 Inadequate Explanation/Inconsistency with Treatment Notes The ALJ found that Dr. Zimmerman provided a limited explanation for her 16 opinion and there were inconsistencies with her treatment notes. Tr. 649. A 17 medical opinion may be rejected by the ALJ if it is conclusory or inadequately 18 19 9 Dr. Lace testified that, in terms of how Plaintiff presented, there was no support 20 for marked or extreme limitations. Tr. 671. 2 ORDER - 31 1 supported. Bray, 554 F.3d at 1228; Thomas, 278 F.3d at 957. However, if 2 treatment notes are consistent with the opinion, a conclusory opinion, such as a 3 check-the-box form, may not automatically be rejected. Garrison, 759 F.3d at 4 1014, n.17; Trevizo, 871 F.3d at 677 n.4 (“[T]here is no authority that a ‘check-the5 box’ form is any less reliable than any other type of form”). A physician’s opinion 6 may also be rejected if it is unsupported by treatment notes and findings. Bray, 7 554 F.3d at 1228; Connett v. Barnhart, 340 F.3d 871, 875 (9th Cir. 2003). 8 Here, while Dr. Zimmerman opined that Plaintiff had an “explosive temper” 9 and did not get along well with others, she failed to provide objective reasons 10 explaining why Plaintiff’s mental impairments caused him to be markedly limited 11 in eight functional areas. Tr. 1647-50. Despite opining that Plaintiff was markedly 12 limited his ability to understand and remember detailed instructions, carryout 13 detailed instructions, work in coordination with or proximity to others without 14 being distracted by them, interact appropriately with the general public, accept 15 instructions and respond appropriately to criticism from supervisors, get along with 16 coworkers or peers without distracting them or exhibiting behavioral extremes, 17 interact with others, and adapt and manage himself, Tr. 1647-49, the ALJ found 18 that Plaintiff’s reports to Dr. Zimmerman were “rather unremarkable.” Tr. 649; 19 see, e.g., Tr. 1421 (October 2016: Plaintiff reported to Dr. Zimmerman that his 20 mood had been good); Tr. 1409 (January 2018: Dr. Zimmerman noted that Plaintiff 2 ORDER - 32 1 had a euthymic mood and full affect). Dr. Zimmerman’s mental status 2 examination revealed that she found Plaintiff had good eye contact, appropriate 3 affect, fair insight and judgment, and appeared to be of average intelligence. Tr. 4 1403-04. Dr. Zimmerman also found Plaintiff’s recent and remote memory to be 5 grossly intact, and determined that Plaintiff was oriented to person, place, time, 6 and circumstance. Tr. 1403-04. While Dr. Zimmerman also noted that Plaintiff 7 had a depressed and irritable mood, she reported that there was no current suicidal 8 or homicidal ideation and he had not been treated for depression in the past. Tr. 9 1403. Substantial evidence supports the ALJ’s finding that there were 10 inconsistencies between Dr. Zimmerman’s opinion and her own treatment notes. 11 This was a specific and legitimate reason to discredit Dr. Zimmerman’s opinion. 12 Due to the inconsistencies between her treatment notes and her opinion, the ALJ’s 13 finding that Dr. Zimmerman provided little explanation for her check-box ratings 14 was also a specific and legitimate reason to discount her opinion. 15 16 b. Inconsistent with the Record as a Whole The ALJ found Dr. Zimmerman’s opinion was inconsistent with the 17 longitudinal record. Tr. 649. Relevant factors to evaluating any medical opinion 18 include the amount of relevant evidence that supports the opinion, the quality of 19 the explanation provided in the opinion, and the consistency of the medical opinion 20 with the record as a whole. Lingenfelter, 504 F.3d at 1042; Orn, 495 F.3d at 631. 2 ORDER - 33 1 Dr. Zimmerman opined that Plaintiff had eight marked limitations in categories 2 requiring understanding and memory, sustained concentration and persistence, 3 social interaction, and the ability to adapt or manage himself. Tr. 1647-49. 4 However, as discussed supra, the record demonstrates that Dr. Zimmerman’s 5 marked ratings are inconsistent with the longitudinal record, as the ALJ noted 6 Plaintiff’s self-reported activity around the home and in the Special Olympics, his 7 ability to sustain SGA-level work during the relevant period, and the inconsistency 8 with the opinion of Dr. Lace, to whom the ALJ assigned great weight. Tr. 637, 9 639, 646, 649. Plaintiff argues that the opinions of Dr. Marks, Mr. Longaker, and 10 Dr. Orr are all largely consistent with the conclusions found by Dr. Zimmerman. 11 ECF No. 14 at 18-19. While a different interpretation of the medical evidence 12 could be made, the ALJ’s interpretation of the longitudinal record—that Dr. 13 Zimmerman’s opinion was inconsistent with the record as a whole—is a rational 14 interpretation supported by substantial evidence. See Batson v. Comm’r of Soc. 15 Sec. Admin., 359 F.3d 1190, 1198 (9th Cir. 2004) (recognizing that when the 16 evidence in the record is subject to more than one rational interpretation, the court 17 defers to the ALJ’s finding). This was a specific and legitimate reason to discount 18 Dr. Zimmerman’s opinion. 19 20 2 ORDER - 34 1 5. Dr. Marks 2 Examining psychologist N.K. Marks, Ph.D. conducted a psychological 3 evaluation of Plaintiff for the Department of Social and Health Services (DSHS). 4 Tr. 1325-1331. Dr. Marks diagnosed Plaintiff with antisocial personality disorder, 5 major depressive disorder, generalized anxiety disorder, cannabis use disorder, 6 alcohol use disorder “in self-stated remission,” and amphetamine-type substance 7 use disorder “in self-stated remission.” Tr. 1328. Plaintiff reported that he used 8 marijuana daily and was “high” the morning of the evaluation. Tr. 1326-27. Dr. 9 Marks noted that Plaintiff’s “[o]verall problem solving and judgment appear[ed] to 10 be intact,” but that “background history suggest[ed] that in actual life situations, 11 judgment is poor and problem solving is weak.” Tr. 1331. Dr. Marks opined that 12 Plaintiff 1) was severely limited in the ability to communicate and perform 13 effectively in a work setting, maintain appropriate behavior in a work setting, and 14 set realistic goals and plan independently; and 2) was markedly limited in the 15 ability to perform activities within a schedule, maintain regular attendance, and be 16 punctual within customary tolerances without special supervision, perform routine 17 tasks without special supervision, adapt to changes in a routine work setting, make 18 simple work-related decisions, ask simple questions or request assistance, and 19 20 2 ORDER - 35 1 complete a normal work day and work week without interruptions from 2 psychologically based symptoms. Tr. 1328. 3 The ALJ gave Dr. Marks’ opinion little weight. Tr. 647-48. Because Dr. 4 Marks’ opinion was contradicted by the nonexamining opinion of Dr. Lace, Tr. 5 668-84, the ALJ was required to provide specific and legitimate reasons for 6 discounting Dr. Marks’ opinion.10 Bayliss, 427 F.3d at 1216. 7 a. 8 Based on State Agency Rules The ALJ assigned little weight to Dr. Marks’ opinion because she conducted 9 her evaluation using regulations for DSHS that differ from those under the Social 10 Security Administration. Tr. 647-48. The regulations provide that the amount of 11 an acceptable source’s knowledge of Social Security disability programs and their 12 evidentiary requirements may be considered in evaluating an opinion, regardless of 13 the source of that understanding. 20 C.F.R. §§ 404.1527(c)(6), 416.927(c)(6). The 14 regulations also require that every medical opinion will be evaluated, regardless of 15 its source. 20 C.F.R. §§ 404.1527(c), 416.927(c). Although state agency disability 16 rules may differ from Social Security rules regarding disability, it is not always 17 18 19 20 2 10 Dr. Lace testified that, in terms of how Plaintiff presented, there was no support for marked or extreme limitations. Tr. 671. ORDER - 36 1 apparent that the differences in rules affect a particular physician’s report without 2 further analysis by the ALJ. Here, the DSHS form defines marked as “a very 3 significant limitation on the ability to perform one or more basic work activit[ies].” 4 Tr. 1328. As noted in Steinmetz v. Colvin, 2016 WL 697141 at *5 (E.D. Wa., Feb. 5 19, 2016), further analysis by an ALJ may be needed where a DSHS form does not 6 define terms. Here, the terms are defined. This was not a specific and legitimate 7 reason to discount Dr. Marks’ opinion. 8 9 b. Inadequate Explanation/Internal Inconsistencies/Self-Reports The ALJ asserted that Dr. Marks provided little explanation for her opinion, 10 her ratings were “somewhat inconsistent” with her own findings, and therefore her 11 opinion appeared to be based on subjective rather than objective evidence. Tr. 12 647-48, 1325-31. Relevant factors to evaluating any medical opinion include the 13 amount of relevant evidence that supports the opinion, the quality of the 14 explanation provided in the opinion, and the consistency of the medical opinion 15 with the record as a whole. Lingenfelter, 504 F.3d at 1042; Orn, 495 F.3d at 631. 16 A medical opinion may be rejected by the ALJ if it is conclusory or inadequately 17 supported. Bray, 554 F.3d at 1228; Thomas, 278 F.3d at 957. Further, a 18 physician’s opinion may be rejected if it is based on a claimant’s subjective 19 complaints, which were properly discounted. Tonapetyan v. Halter, 242 F.3d 20 1144, 1149 (9th Cir. 2001); Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 2 ORDER - 37 1 602 (9th Cir. 1999); Fair v. Bowen, 885 F.2d 597, 604 (9th Cir. 1989). However, 2 when an opinion is not more heavily based on a patient’s self-reports than on 3 clinical observations, there is no evidentiary basis for rejecting the opinion. 4 Ghanim, 763 F.3d at 1162; Ryan v. Comm’r of Soc. Sec. Admin., 528 F.3d 1194, 5 1199-1200 (9th Cir. 2008). Some reliance on self-reports is appropriate, as 6 psychiatric diagnoses “will always depend in part on the patient’s self-report, as 7 well as on the clinician’s observations of the patient.” Buck v. Berryhill, 869 F.3d 8 1040, 1049 (9th Cir. 2017). 9 Here, the ALJ failed to support the assertion that Dr. Marks’ opinion was 10 inconsistent with her findings and thus likely based more heavily on Plaintiff’s 11 self-reports. Dr. Marks’ mental status examination showed that Plaintiff was 12 poorly groomed, anxious and confused, and he exhibited poorly organized speech 13 and minimal eye contact. Tr. 1329. The mental status examination results for 14 Plaintiff’s thought process and content, orientation, perception, and memory were 15 all within normal limits. Tr. 1330. However, the results for Plaintiff’s fund of 16 knowledge and concentration were not within normal limits. Tr. 1330. The ALJ 17 failed to provide any explanation for his conclusion that Dr. Marks’ opinion was 18 inconsistent with her findings. This was not a specific and legitimate reason to 19 discount her opinion. 20 2 ORDER - 38 1 2 c. Inconsistent with Dr. Lace’s Opinion Finally, the ALJ relied on the opinion of testifying psychologist Dr. Lace as 3 another reason to assign less weight to Dr. Marks’ opinion. Tr. 648-49. Generally, 4 an ALJ should accord more weight to the opinion of an examining physician than 5 to that of a nonexamining physician. See Andrews, 53 F.3d at 1040–41. However, 6 the opinion of a nonexamining physician may serve as substantial evidence if it is 7 “supported by other evidence in the record and [is] consistent with it.” Id. at 1041. 8 Other cases have upheld the rejection of an examining or treating physician based 9 in part on the testimony of a nonexamining medical advisor when other reasons to 10 reject the opinions of examining and treating physicians exist independent of the 11 nonexamining doctor’s opinion. Lester, 81 F.3d at 831 (citing Magallanes v. 12 Bowen, 881 F.2d 747, 751-55 (9th Cir. 1989) (reliance on laboratory test results, 13 contrary reports from examining physicians and testimony from claimant that 14 conflicted with treating physician’s opinion)); Roberts v. Shalala, 66 F.3d 179, 184 15 (9th Cir. 1995) (rejection of examining psychologist’s functional assessment which 16 conflicted with his own written report and test results). Thus, case law requires not 17 only an opinion from the consulting physician but also substantial evidence (more 18 than a mere scintilla but less than a preponderance), independent of that opinion 19 20 2 ORDER - 39 1 which supports the rejection of contrary conclusions by examining or treating 2 physicians. Andrews, 53 F.3d at 1039. 3 Here, Dr. Lace reviewed the record and disagreed with Dr. Marks’ opinion 4 that Plaintiff had any marked limitations in functioning. Tr. 649, 671. The ALJ 5 credited Dr. Lace’s opinion that Dr. Marks’ ratings were more severe than what the 6 record supported. Tr. 648. The ALJ found that Dr. Lace had the opportunity to 7 review all of the evidence of record, except for Dr. Zimmerman’s medical source 8 statement, Dr. Lace reviewed more evidence than any other treating or examining 9 psychologist, he was familiar with Social Security regulations, and he provided 10 thorough and persuasive testimony regarding his opinions. Tr. 649. However, as 11 discussed supra, the ALJ failed to provide any legally sufficient reasons to reject 12 the opinion of Dr. Marks independent of Dr. Lace’s opinion. Because this case is 13 remanded on other grounds, the Court declines to engage in harmless error analysis 14 here. 15 16 C. Step Three Plaintiff contends the ALJ erred by finding that Plaintiff’s impairments did 17 not meet Listing 12.05. ECF No. 14 at 5-8. At step three, the ALJ must determine 18 if a claimant’s impairments meet or equal a listed impairment. 20 C.F.R. §§ 19 404.1520(a)(4)(iii), 416.920(a)(4)(iii). The Listing of Impairments “describes each 20 of the major body systems impairments [which are considered] severe enough to 2 ORDER - 40 1 prevent an individual from doing any gainful activity, regardless of his or her age, 2 education or work experience.” 20 C.F.R. §§ 404.1525, 416.925. To meet a listed 3 impairment, a claimant must establish that he meets each characteristic of a listed 4 impairment relevant to his claim. 20 C.F.R. §§ 404.1525(d), 416.925(d). If a 5 claimant meets the listed criteria for disability, he will be found to be disabled. 20 6 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). The claimant bears the burden of 7 establishing he meets a listing. Burch v. Barnhart, 400 F.3d 676, 683 (9th Cir. 8 2005). The ALJ must receive into evidence during the administrative hearing the 9 opinion of the testifying medical examiner on the issue of Listing equivalence and 10 give appropriate weight to that opinion. SSR 96-6p (eff. July 2, 1996, to March 11 27, 2017). 12 Here, the ALJ found that Plaintiff’s impairments and combinations of 13 impairments did not meet or equal any listings, including Listings 12.04, 12.05, 14 12.06, 12.08, and 12.11. Tr. 637. On January 17, 2017, new 12.00 listings took 15 effect. The Social Security Administration has directed that if a court reversed a 16 decision and remanded the case for further administrative proceedings after 17 January 17, 2017, SSA would apply the current mental disorder rules to the entire 18 period at issue in the decision made after the court’s remand. See Revised Medical 19 Criteria for Evaluating Mental Disorders, 81 Fed. Reg. 66138, 66160–62 (Sept. 26, 20 2016); see also Tr. 641. Because the Court remanded this case after January 17, 2 ORDER - 41 1 2017, the ALJ applied the current mental listings to the entire period at issue in this 2 decision. Tr. 641. 3 On remand, this Court directed the ALJ to make a new determination as to 4 whether Plaintiff met or medically equaled listing 12.05C, which does not exist in 5 the current listings. Tr. 641. Under the prior listings, three criteria were required 6 to satisfy Listing 12.05: a valid verbal, performance, or full-scale IQ of 60 through 7 70; a physical or other mental impairment imposing additional and significant 8 work-related limitation of function; and subaverage intellectual functioning with 9 deficits in adaptive functioning initially manifested before age 22. Tr. 641. This 10 Court determined that the prior ALJ made no finding on the latter criterion. Tr. 11 641. The second ALJ determined that the most analogous criteria in the current 12 listings are 12.05A3 and 12.05B3. Tr. 641. 13 Listing 12.05 describes symptoms a claimant must establish to be considered 14 intellectually disabled. Listing 12.05 now requires satisfaction of an “A” or “B” 15 criteria. ECF No. 17 at 17 (citing 20 C.F.R. Subpt. P, App. 1 §§ 12.00C 16 (describing § 12.05 criteria); 12.05). The ALJ separately addressed Listing 12.05A 17 and 12.05B. Tr. 641-43. 18 19 20 2 ORDER - 42 1 1. Listing 12.05A 2 Listing 12.05A is met when the claimant can demonstrate: 3 (1) Significantly subaverage general intellectual functioning evident in your cognitive inability to function at a level required to participate in standardized testing of intellectual functioning; and 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 2 (2) Significant deficits in adaptive functioning currently manifested by your dependence upon others for personal needs (for example, toileting, eating, dressing, or bathing); and (3) The evidence about your current intellectual and adaptive functioning and about the history of your disorder demonstrates or supports the conclusion that the disorder began before your attainment of age 22. 20 C.F.R. Subpt. P, App. 1 §12.05(A)(1-3) (2017). The ALJ determined that Plaintiff did not meet the requirements of Listing 12.05A. Tr. 642. First, he determined Plaintiff was able to participate in standardized testing of intellectual functioning, and his test scores did not show “significantly subaverage” functioning, as Dr. Orr only diagnosed Plaintiff with borderline intellectual functioning. Tr. 641. Next, the ALJ found Plaintiff failed to demonstrate that he depends on others for his personal needs, as Plaintiff reported that he had no problems performing personal care. Tr. 641 (citing Tr. 250). Finally, the ALJ found that the evidence of record failed to support the conclusion that Plaintiff’s borderline intellectual functioning began before he reached age 22. Tr. 641. The ALJ noted that the earliest objective finding of Plaintiff’s intellectual deficits in the record was from November 2012, when Plaintiff was 49 years old. Tr. 641-42. The ALJ found the only evidence of earlier intellectual dysfunction ORDER - 43 1 was a high school grade report from 1978 to 1981, showing that Plaintiff’s grade 2 point average was below 2.0. Tr. 642 (citing Tr. 305). The ALJ determined that 3 this one grade report was insufficient to prove the existence of adaptive and 4 intellectual deficits before age 22. Tr. 645. Further, Dr. Lace testified that 5 Plaintiff’s current challenges likely would have been present in high school, but he 6 also noted that Plaintiff’s low grades in high school could be explained by reasons 7 other than intellectual dysfunction. Tr. 680. The ALJ also noted that Plaintiff 8 reported he was in special education from fifth grade until he dropped out of 9 school in eleventh grade, but the ALJ determined that Plaintiff’s statements to an 10 examiner 20 years later were insufficient to prove adaptive deficits before age 22. 11 Tr. 645. The academic record documents Plaintiff’s classes and corresponding 12 grades, but does not document special education services, any assessment of 13 developmental disability, or any attribution of Plaintiff’s poor academic 14 performance to intellectual disability. Tr. 305. Further, the ALJ noted that 15 Plaintiff was able to successfully obtain his GED after dropping out of school and 16 was able to work SGA-level jobs both before and during the relevant period. Tr. 17 645. In contrast, Plaintiff cites Dr. Lace’s testimony that his experience showed it 18 was possible, and probably even likely, that Plaintiff’s adaptive functioning 19 challenges would have been present in high school. ECF No. 14 at 6 (citing Tr. 20 681, 683). However, the question for this Court is whether substantial evidence 2 ORDER - 44 1 supports the ALJ’s finding. Hill, 698 F.3d at 1158. The Court finds that it does. 2 The evidence offered by Plaintiff showing low academic achievement does not 3 undermine the ALJ’s conclusion. To the extent the evidence could be interpreted 4 differently, it is the role of the ALJ to resolve conflicts and ambiguity in the 5 evidence. See Morgan, 169 F.3d at 599-600; see also Sprague, 812 F.2d at 12296 30. 7 2. Listing 12.05B 8 Listing 12.05B is met when the claimant can demonstrate: 9 (1) Significantly subaverage general intellectual functioning evidenced by a or b: 10 11 12 13 14 15 16 17 18 a. A full scale (or comparable) IQ score of 70 or below on an individually administered standardized test of general intelligence; or b. A full scale (or comparable) IQ score of 71-75 accompanied by a verbal or performance IQ score (or comparable part score) of 70 or below on an individually administered standardized test of general intelligence; and (2) Significant deficits in adaptive functioning currently manifested by extreme limitation of one, or marked limitation of two, of the following areas of mental functioning: a. Understand, remember, or apply information; or b. Interact with others; or c. Concentrate, persist, or maintain pace; or d. Adapt or manage oneself; and 19 20 2 ORDER - 45 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 2 (3) The evidence that the claimant’s current intellectual and adaptive functioning and about the history of the claimant’s disorder demonstrates or supports the conclusion that the disorder began prior to age 22. 20 C.F.R. Subpt. P, App. 1 §12.05(B)(1-3) (2017). The ALJ determined that Plaintiff did not meet the requirements of Listing 12.05B. Tr. 643. While the ALJ acknowledged that Plaintiff had a full-scale IQ score between 71 and 75 with a score of 70 on his verbal comprehension index, as discussed supra, the ALJ found the evidence of record failed to support the conclusion that Plaintiff’s borderline intellectual functioning began before age 22. Tr. 643. The ALJ also determined that Plaintiff did not have an extreme limitation of one, or marked limitation of two, of the identified areas of mental functioning. Tr. 643. Instead, he found that Plaintiff had only moderate limitations in understanding, remembering, or applying information, Tr. 637, concentrating, persisting, or maintaining pace, Tr. 639, and adapting or managing himself, Tr. 640. The ALJ determined that Plaintiff had a moderate-marked limitation in the ability to interact with others. Tr. 638. These findings do not satisfy the requirements of Listing 12.05B. Plaintiff asserts that Dr. Zimmerman’s impairment ratings should have compelled the ALJ to find that Plaintiff met the requirements of Listing 12.05B. ECF No. 14 at 6 (citing Tr. 1649). Dr. Zimmerman opined that Plaintiff had marked limitations in the ability to interact with others and to adapt or manage ORDER - 46 1 himself. Tr. 1649. Plaintiff’s argument rests of the assumption that the ALJ erred 2 in discrediting Dr. Zimmerman’s opinion. However, as discussed supra, the ALJ 3 provided specific and legitimate reasons to discount Dr. Zimmerman’s opinion. 4 Moreover, Dr. Lace testified that Plaintiff was moderately limited in his ability to 5 interact with others to adapt or manage himself. Tr.673. The ALJ assigned great 6 weight to the opinion of Dr. Lace, who testified at the hearing, was available for 7 cross-examination, and the ALJ found substantial evidence in the record supported 8 his opinion. Tr. 649. The ALJ reasonably relied on Dr. Lace’s testimony and 9 other evidence in the record to discredit Dr. Zimmerman’s ratings. Plaintiff does 10 not establish that his impairment met or medically equaled the severity of Listing 11 12.05B. 12 Plaintiff contends that the ALJ ambiguously found that Plaintiff had a 13 “moderate-marked” limitation in interacting with others. ECF No. 14 at 6 (citing 14 Tr. 638-39). Any error in not assigning a clear limitation to Plaintiff’s ability to 15 interact with others is harmless error, as Listing 12.05B requires a claimant to have 16 an extreme limitation of one, or marked limitation of two, of the specified areas of 17 mental functioning. 20 C.F.R. § 404, Appendix 1 to Subpt. P. The ALJ found that 18 Plaintiff was moderately limited in three of the four areas. Because Plaintiff’s 19 mental impairments do not cause at least two marked limitations or one extreme 20 2 ORDER - 47 1 limitation, Plaintiff has not met his burden to establish that he satisfied the 2 requirements of Listing 12.05B. 3 3. Listing 12.05C 4 On remand, this Court directed the ALJ to make a new determination as to 5 whether Plaintiff met or medically equaled Listing 12.05C, which has been 6 rescinded under the new regulations. Tr. 641. Under the prior listings, a claimant 7 had to establish the following three prongs to prove he met Listing 12.05C: (1) 8 subaverage intellectual functioning with deficits in adaptive functioning initially 9 manifested before age 22; (2) an IQ score of 60 through 70; and (3) a physical or 10 other mental impairment causing an additional and significant work-related 11 limitation. Kennedy v. Colvin, 738 F.3d 1172, 1175-76 (9th Cir. 2013). This Court 12 determined that the prior ALJ made no finding on the issue of whether or not 13 Plaintiff was able to establish the existence of subaverage general intellectual 14 functioning prior to age 22. Tr. 641. In his decision after this case was remanded, 15 the ALJ determined that the most analogous criteria in the current listings are 16 12.05A3 and 12.05B3. Tr. 641. As discussed supra, Plaintiff has failed to satisfy 17 his burden to show that he meets or equals Listing 12.05A or 12.05B. 18 Although Listings 12.04, 12.06, 12.08, and 12.11 continue the “paragraph 19 C” criteria under the current regulations, Plaintiff does not challenge the ALJ’s 20 analysis of other mental health listings with any specificity, and thus waives any 2 ORDER - 48 1 argument as to listings other than Listing 12.05. See Carmickle v. Comm’r of Soc. 2 Sec. Admin., 533 F.3d 1155, 1161 n.2 (9th Cir. 2008) (determining Court may 3 decline to address on the merits issues not argued with specificity); Kim v. Kang, 4 154 F.3d 996, 1000 (9th Cir. 1998) (the Court may not consider on appeal issues 5 not “specifically and distinctly argued” in the party’s opening brief). 6 7 D. Plaintiff’s Symptom Claims Plaintiff faults the ALJ for failing to rely on clear and convincing reasons in 8 discrediting his symptom claims. ECF No. 14 at 8-12. An ALJ engages in a two9 step analysis to determine whether to discount a claimant’s testimony regarding 10 subjective symptoms. SSR 16–3p, 2016 WL 1119029, at *2. “First, the ALJ must 11 determine whether there is objective medical evidence of an underlying 12 impairment which could reasonably be expected to produce the pain or other 13 symptoms alleged.” Molina, 674 F.3d at 1112 (quotation marks omitted). “The 14 claimant is not required to show that [the claimant’s] impairment could reasonably 15 be expected to cause the severity of the symptom [the claimant] has alleged; [the 16 claimant] need only show that it could reasonably have caused some degree of the 17 symptom.” Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). 18 Second, “[i]f the claimant meets the first test and there is no evidence of 19 malingering, the ALJ can only reject the claimant’s testimony about the severity of 20 the symptoms if [the ALJ] gives ‘specific, clear and convincing reasons’ for the 2 ORDER - 49 1 rejection.” Ghanim, 763 F.3d at 1163 (citations omitted). General findings are 2 insufficient; rather, the ALJ must identify what symptom claims are being 3 discounted and what evidence undermines these claims. Id. (quoting Lester, 81 4 F.3d at 834; Thomas, 278 F.3d at 958 (requiring the ALJ to sufficiently explain 5 why it discounted claimant’s symptom claims)). “The clear and convincing 6 [evidence] standard is the most demanding required in Social Security cases.” 7 Garrison, 759 F.3d at 1015 (quoting Moore v. Comm’r of Soc. Sec. Admin., 278 8 F.3d 920, 924 (9th Cir. 2002)). 9 Factors to be considered in evaluating the intensity, persistence, and limiting 10 effects of a claimant’s symptoms include: 1) daily activities; 2) the location, 11 duration, frequency, and intensity of pain or other symptoms; 3) factors that 12 precipitate and aggravate the symptoms; 4) the type, dosage, effectiveness, and 13 side effects of any medication an individual takes or has taken to alleviate pain or 14 other symptoms; 5) treatment, other than medication, an individual receives or has 15 received for relief of pain or other symptoms; 6) any measures other than treatment 16 an individual uses or has used to relieve pain or other symptoms; and 7) any other 17 factors concerning an individual’s functional limitations and restrictions due to 18 pain or other symptoms. SSR 16-3p, 2016 WL 1119029, at *7; 20 C.F.R. § 19 404.1529(c). The ALJ is instructed to “consider all of the evidence in an 20 2 ORDER - 50 1 individual’s record,” “to determine how symptoms limit ability to perform work2 related activities.” SSR 16-3p, 2016 WL 1119029, at *2. 3 The ALJ found that Plaintiff’s medically determinable impairments could 4 reasonably be expected to cause some of the alleged symptoms, but that Plaintiff’s 5 statements concerning the intensity, persistence, and limiting effects of his 6 symptoms were not entirely consistent with the evidence. Tr. 644. 7 1. Inconsistent with Objective Medical Evidence 8 The ALJ found the severity of Plaintiff’s symptom complaints was 9 unsupported by the objective medical evidence. Tr. 644-45. An ALJ may not 10 discredit a claimant’s symptom testimony and deny benefits solely because the 11 degree of the symptoms alleged is not supported by objective medical evidence. 12 Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001); Bunnell v. Sullivan, 947 13 F.2d 341, 346-47 (9th Cir. 1991); Fair, 885 F.2d at 601. However, the medical 14 evidence is a relevant factor in determining the severity of a claimant’s pain and its 15 disabling effects. Rollins, 261 F.3d at 857; 20 C.F.R. §§ 404.1529(c)(2), 16 416.929(c)(2) (2011). Minimal objective evidence is a factor which may be relied 17 upon to discount a claimant’s testimony, although it may not be the only factor. 18 Burch, 400 F.3d at 680. 19 The ALJ noted that Plaintiff’s statements about the intensity, persistence, 20 and limiting effects of his symptoms were inconsistent with the objective medical 2 ORDER - 51 1 evidence. Tr. 644. However, the ALJ failed to identify what in Plaintiff’s 2 symptom testimony and reports was inconsistent with the evidence or to explain 3 how the evidence was inconsistent. Rather, the ALJ merely summarized Plaintiff’s 4 reported symptoms, Tr. 643-44, and summarized the medical evidence, Tr. 644-50. 5 The ALJ’s reasoning is unclear and the ALJ failed to sufficiently explain why the 6 claims were discredited. Thomas, 278 F.3d at 958. This reason is not supported by 7 substantial evidence. 8 2. Noncompliance with Treatment 9 The ALJ found Plaintiff’s symptom reporting was undermined by his 10 noncompliance with treatment. Tr. 644. It is well-established that unexplained or 11 inadequately explained noncompliance with treatment reflects on a claimant’s 12 credibility. See Molina, 674 F.3d at 1113-14; Tommasetti v. Astrue, 533 F.3d 13 1035, 1039 (9th Cir. 2008); see also Smolen v. Chater, 80 F.3d 1273, 1284 (9th 14 Cir. 1996) (an ALJ may consider a claimant’s unexplained or inadequately 15 explained failure to follow a prescribed course of treatment when assessing a 16 claimant’s credibility). Here, the ALJ found that the evidence showed Plaintiff 17 delayed taking anger management classes and he testified at the hearing that he 18 would not have the same anger issues today if he were working because he had 19 worked on anger management with his therapist. Tr. 644 (citing Tr. 1305). The 20 ALJ also found that Plaintiff’s apparent intermittent compliance with prescription 2 ORDER - 52 1 medication detracted from his alleged inability to control his anger. Tr. 644. The 2 ALJ relied on this evidence to conclude that Plaintiff’s mental impairments were 3 not as severe as alleged. Tr. 644. 4 Although the record does demonstrate that Plaintiff had been out of his 5 medication before picking up refills on more than one occasion and that he had a 6 gap in counseling attendance, the evidence also indicates that other factors, such as 7 homelessness, contributed to Plaintiff’s noncompliance. See Tr. 1413 (September 8 11, 2017: Plaintiff had been out of his medication for a week, but at the same 9 appointment he told his treating physician that his wife was in the hospital due to 10 an overdose, he had slept in the park for a week, and was staying with a friend who 11 was giving him rides to see his mother in a rehab facility due to a stroke); see also 12 Tr. 1456 (January 9, 2018: Plaintiff reported to treating therapist that although he 13 had not presented for a therapy appointment since September 2017, he had been 14 “homeless for the entire duration of his absence”); see also Tr. 1409 (January 22, 15 2018: Plaintiff’s treating physician noted that Plaintiff should have been out of 16 medication toward the end of the prior month, however this visit was less than two 17 weeks after Plaintiff reported to his therapist that he had recently been homeless). 18 The ALJ is required to consider Plaintiff’s reasons for noncompliance. Here, the 19 ALJ’s discussion of Plaintiff’s noncompliance did not consider whether Plaintiff’s 20 2 ORDER - 53 1 noncompliance was sufficiently explained. Tr. 644; see Molina, 674 F.3d at 11132 14. This reason is not supported by substantial evidence. 3 3. Inconsistent with Plaintiff’s Employment Activities 4 The ALJ discounted Plaintiff’s reports that his symptoms were disabling 5 because such allegations were inconsistent with Plaintiff’s employment activity 6 during the relevant period. Tr. 644, 647. An ALJ may consider a claimant’s 7 activities that undermine reported symptoms. Rollins, 261 F.3d at 857. Working 8 with an impairment supports a conclusion that the impairment is not disabling. 9 Drouin v. Sullivan, 966 F.2d 1255, 1258 (9th Cir. 1992); Bray, 554 F.3d at 1227 10 (seeking work despite impairment supports inference that impairment is not 11 disabling). Here, the ALJ found that Plaintiff was able to maintain employment for 12 over a year during the relevant period. Tr. 644. The ALJ noted that Plaintiff told 13 his treating physician he lost his job due to an anger outburst, but he also denied 14 the accusation. Tr. 647 (citing Tr. 1305). Plaintiff contends that most of his work 15 was not substantial gainful activity, but as discussed supra, the ALJ relied on 16 Plaintiff’s testimony that he worked full-time from November 2015 through 17 January 2017, earning income above the SGA-level, in finding that Plaintiff did 18 perform SGA-level work for over a year during the relevant period. ECF No. 14 at 19 12. The ALJ’s conclusion—that Plaintiff’s employment during the relevant time 20 period was inconsistent with his reported disabling symptoms—is rational and 2 ORDER - 54 1 supported by substantial evidence. See Burch, 400 F.3d at 679; Hill, 698 F.3d at 2 1158. This was a clear and convincing reason to discount Plaintiff’s reported 3 disabling symptoms. 4 4. Childcare Activities 5 The ALJ discounted Plaintiff’s symptom claims as inconsistent with 6 babysitting for his toddler granddaughter. Tr. 648. A claimant’s reported activities 7 can be evaluated for consistency with reported symptoms. SSR 16-3p, 2016 WL 8 1119029, at *7; Orn, 495 F.3d at 639. “While a claimant need not vegetate in a 9 dark room in order to be eligible for benefits, the ALJ may discredit a claimant’s 10 testimony when the claimant reports participation in . . . [activities that] contradict 11 claims of a totally debilitating impairment.” Molina, 674 F.3d at 1112-13 (internal 12 citations omitted). The ability to care for others without help has been considered 13 an activity that may undermine claims of totally disabling pain. Rollins, 261 F.3d 14 at 857. For care activities to serve as a basis for the ALJ to discredit a claimant’s 15 symptom claims, the record must identify the nature, scope, and duration of the 16 care involved, showing that the care is “hands on” rather than a “one-off” care 17 activity. Trevizo, 871 F.3d at 675-76. Here, the ALJ noted that Plaintiff had his 18 toddler granddaughter with him at an appointment with his treating physician in 19 January 2018, and that Plaintiff reported to the same physician in April 2018 that 20 he had “been doing a lot of babysitting.” Tr. 648 (citing Tr. 1405-09). The ALJ 2 ORDER - 55 1 did not further detail these activities nor does the cited record provide any 2 additional details. While care activities may rebut a claimant’s symptom claims, 3 the record lacks substantial evidence to support the ALJ’s decision that Plaintiff’s 4 care-taking activities are inconsistent with his symptom claims. This reason is not 5 supported by substantial evidence. 6 The Court has found that three of the four reasons identified by the ALJ for 7 discounting Plaintiff’s symptom complaints are not supported by substantial 8 evidence. Given the fact that the Court is remanding this case on other grounds, 9 the Court finds it unnecessary to engage in a harmless error analysis here. 10 11 E. Lay Opinion Evidence Plaintiff challenges the ALJ’s rejection of the lay statements of his wife, his 12 daughter, his stepson, his friend, and his wife’s friend. ECF No. 14 at 21. An ALJ 13 must consider the testimony of lay witnesses in determining whether a claimant is 14 disabled. Stout, 454 F.3d at 1053. Lay witness testimony regarding a claimant’s 15 symptoms or how an impairment affects ability to work is competent evidence and 16 must be considered by the ALJ. If lay testimony is rejected, the ALJ “‘must give 17 reasons that are germane to each witness.’” Nguyen, 100 F.3d at 1467 (citing 18 Dodrill, 12 F.3d at 919). 19 The ALJ considered the lay opinion evidence and determined that the 20 statements were not entirely credible. Tr. 644-45. In discounting the lay witness 2 ORDER - 56 1 statements, the ALJ relied on the same reasons that he articulated in discounting 2 Plaintiff’s symptom complaints. The Court has found numerous errors in the 3 ALJ’s analysis of Plaintiff’s symptom complaints and the ALJ’s analysis of the lay 4 witness statements suffers the same defects. Given the fact that the Court is 5 remanding this case on other grounds, the Court finds it unnecessary to engage in a 6 harmless error analysis here. 7 8 F. RFC Plaintiff asserts that the ALJ’s RFC was fundamentally flawed because it 9 contained contradictory limitations regarding the amount of supervision that 10 Plaintiff would require, and the maximum amount of supervision that he could 11 tolerate. ECF No. 14 at 13-14; ECF No. 19 at 11. “[T]he ALJ is responsible for 12 translating and incorporating clinical findings into a succinct RFC.” Rounds v. 13 Comm’r of Soc. Sec. Admin., 807 F.3d 996, 1006 (9th Cir. 2015). To the extent the 14 evidence could be interpreted differently, it is the role of the ALJ to resolve 15 conflicts and ambiguity in the evidence. Morgan, 169 F.3d at 599-600. Plaintiff 16 argues that the ALJ’s RCF included incompatible limitations, as the ALJ 17 determined that Plaintiff should not interact more than occasionally and 18 superficially with supervisors and coworkers, yet also found that Plaintiff would 19 require up to frequent supervision during the normal training period. Tr. 643. 20 Plaintiff asserts that he would be unable to complete a training period without 2 ORDER - 57 1 exceeding his own RFC by interacting more than occasionally with his supervisors. 2 ECF No. 14 at 14. Plaintiff’s argument is without merit, as the ALJ specifically 3 included in the RFC an exception to the occasional interaction requirement for the 4 normal training period. Tr. 643 (“[Plaintiff] should have no…more than 5 occasional, superficial contact with co-workers or supervisors, except that he 6 would require up to frequent supervision during the normal training period to help 7 him learn new tasks”) (emphasis added). This issue was also addressed during the 8 administrative hearing, when Plaintiff’s counsel asked the vocational expert if the 9 jobs she testified that Plaintiff could perform would still exist if he required 10 frequent supervision for the training period and occasional supervision for the 11 regular work period. Tr. 717. The vocational expert testified that those jobs would 12 still exist under such circumstances. Tr. 717. It is the ALJ’s responsibility to 13 translate and incorporate clinical findings into a succinct RFC. Rounds, 807 F.3d 14 at 1006. The ALJ did not err in this aspect of translating the clinical findings and 15 formulating the RFC. 16 17 G. Remedy Plaintiff urges the Court to remand for an immediate award of benefits. ECF 18 No. 19 at 11. 19 “The decision whether to remand a case for additional evidence, or simply to 20 award benefits is within the discretion of the court.” Sprague, 812 F.2d at 1232 2 ORDER - 58 1 (citing Stone v. Heckler, 761 F.2d 530 (9th Cir. 1985)). When the court reverses 2 an ALJ’s decision for error, the court “ordinarily must remand to the agency for 3 further proceedings.” Leon v. Berryhill, 880 F.3d 1041, 1045 (9th Cir. 2017); 4 Treichler, 775 F.3d at 1099. However, the Ninth Circuit has “stated or implied 5 that it would be an abuse of discretion for a district court not to remand for an 6 award of benefits” when three conditions are met. Garrison, 759 F.3d at 1020. 7 Under the credit-as-true rule, where 1) the record has been fully developed and 8 further administrative proceedings would serve no useful purpose; 2) the ALJ has 9 failed to provide legally sufficient reasons for rejecting evidence, whether claimant 10 testimony or medical opinion; and 3) if the improperly discredited evidence were 11 credited as true, the ALJ would be required to find the claimant disabled on 12 remand, the court will remand for an award of benefits. Revels v. Berryhill, 874 13 F.3d 648, 668 (9th Cir. 2017). Even where the three prongs have been satisfied, 14 the court will not remand for immediate payment of benefits if “the record as a 15 whole creates serious doubt that a claimant is, in fact, disabled.” Garrison, 759 16 F.3d at 1021. 17 1. Completeness of the Record 18 As to the first element, administrative proceedings are generally useful 19 where the record “has [not] been fully developed,” Garrison, 759 F.3d at 1020, 20 there is a need to resolve conflicts and ambiguities, Andrews, 53 F.3d at 1039, or 2 ORDER - 59 1 the “presentation of further evidence ... may well prove enlightening” in light of 2 the passage of time, I.N.S. v Ventura, 537 U.S. 12, 18 (2002). Cf. Nguyen, 100 3 F.3d at 1466–67 (remanding for ALJ to apply correct legal standard, to hear any 4 additional evidence, and resolve any remaining conflicts); Byrnes v. Shalala, 60 5 F.3d 639, 642 (9th Cir. 1995) (same); Dodrill, 12 F.3d at 918-19 (same); Bunnell, 6 947 F.2d at 348 (same). Here, the record has been fully developed and contains 7 several years’ worth of treatment records, including notes from treating and 8 examining specialists, opinion evidence from treating and examining specialists, 9 Plaintiff, and several of his friends and family members. Two administrative 10 hearings have been held and medical experts have testified at both hearings after 11 reviewing the longitudinal record. Further proceedings are not necessary. 12 2. ALJ Error 13 As discussed supra, the ALJ failed to provide legally sufficient reasons, 14 supported by substantial evidence, for rejecting Plaintiff’s need for 25 percent 15 more time than the average worker to adapt to changes in the work environment, 16 which the ALJ found to be supported by Dr. Orr’s opinion. Therefore, the second 17 prong of the credit-as-true rule is met. 18 19 3. Crediting as True Demonstrates Disability The third prong of the credit-as-true rule is satisfied because if Dr. Orr’s 20 opinion, as interpreted by the ALJ, was credited as true, the ALJ would be required 2 ORDER - 60 1 to find Plaintiff disabled. Specifically, the ALJ found that Dr. Orr’s opinion 2 supported a need for Plaintiff to have 25 percent more time than the average 3 worker to adapt to changes in the work environment. Tr. 645. The vocational 4 expert testified that an individual with that specific limitation would not be able to 5 maintain competitive employment. Tr. 710-12. Therefore, if the ALJ had fully 6 credited Dr. Orr’s opinion, the ALJ would be required to find Plaintiff disabled. 7 4. Serious Doubt 8 Finally, the record does not leave serious doubt as to whether Plaintiff is 9 disabled. Garrison, 759 F.3d at 1021. The ALJ assigned great weight to an 10 examining psychologist who opined disabling limitations and improperly rejected 11 the opinion of another examining psychologist who also opined disabling 12 limitations. Moreover, the credit-as-true rule is a “prophylactic measure” designed 13 to motivate the Commissioner to ensure that the record will be carefully assessed 14 and to justify “equitable concerns” about the length of time which has elapsed 15 since a claimant has filed their application. Treichler, 775 F.3d at 1100 (internal 16 citations omitted). In Vasquez, the Ninth Circuit exercised its discretion and 17 applied the “credit as true” doctrine because of the claimant’s advanced age and 18 “severe delay” of seven years in her application. Vasquez, 572 F.3d at 593-94. 19 Here, the delay of nearly seven years from the date of the applications make it 20 2 ORDER - 61 1 appropriate for this Court to use its discretion and apply the “credit as true” 2 doctrine pursuant to Ninth Circuit precedent. 3 The Court therefore reverses and remands to the ALJ for the calculation and 4 award of benefits. 5 6 CONCLUSION Having reviewed the record and the ALJ’s findings, this Court concludes the 7 ALJ’s decision is not supported by substantial evidence and free of harmful legal 8 error. Accordingly, IT IS HEREBY ORDERED: 9 10 1. 1. The District Court Executive is directed to substitute Andrew M. Saul as the Defendant and update the docket sheet. 11 2. Plaintiff’s Motion for Summary Judgment, ECF No. 14, is GRANTED. 12 3. Defendant’s Motion for Summary Judgment, ECF No. 17, is DENIED. 13 4. The Court enter JUDGMENT in favor of Plaintiff REVERSING and 14 REMANDING the matter to the Commissioner of Social Security for immediate 15 calculation and award of benefits. 16 The District Court Executive is directed to file this Order, provide copies to 17 counsel, and CLOSE THE FILE. 18 DATED July 31, 2019. 19 s/Mary K. Dimke MARY K. DIMKE UNITED STATES MAGISTRATE JUDGE 20 2 ORDER - 62

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