an ALJ cannot 26 selectively rely on some entries in plaintiff's records while ignoring others
How later courts described this case
- an ALJ cannot 26 selectively rely on some entries in plaintiff's records while ignoring others
- reviewing court is 27 constrained to reviewing the reasons the ALJ asserts
- “When evidence reasonably supports either confirming or reversing the ALJ’s 3 decision, [the court] may not substitute [its] judgment for that of the ALJ.”
- same 24 where the record does not clearly demonstrate the claimant is disabled within the 25 meaning of the Social Security Act
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA
10
11 BRYANT H. H.,1 Case No. 2:18-cv-10571-AFM
12 Plaintiff,
13 v. MEMORANDUM OPINION AND
ORDER REVERSING AND
14 ANDREW M. SAUL, REMANDING DECISION OF THE
Commissioner of Social Security, COMMISSIONER
15
Defendant.
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18 Plaintiff seeks review of the Commissioner’s final decision denying his
19 application for supplemental security income benefits. In accordance with the Court’s
20 case management order, the parties have filed memorandum briefs addressing the
21 merits of the disputed issues. This matter is now ready for decision.
22 BACKGROUND
23 Plaintiff applied for supplemental security income in January 2015, alleging
24 he was unable to work due to bipolar disorder, manic depression, epilepsy, and
25 hepatitis C. Plaintiff’s application was denied initially and on reconsideration.
26 (Administrative Record [“AR”] 58-71, 74-89.) A hearing was held before an
27 1 Plaintiff’s name has been partially redacted in accordance with Federal Rule of Civil Procedure
5.2(c)(2)(B) and the recommendation of the Committee on Court Administration and Case
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1 Administrative Law Judge (“ALJ”) on August 2, 2017, at which Plaintiff, his
2 attorney, and vocational expert (“VE”) were present. (AR 33-57.) The ALJ issued a
3 decision on February 7, 2018, finding that Plaintiff suffered from the following
4 severe impairments: depression, substance abuse and seizure disorder. (AR 17.) The
5 ALJ determined that Plaintiff retained the residual functional capacity (“RFC”) to
6 perform a restricted range of mediumwork. As relevant here, the ALJ concluded that
7 Plaintiff is able to understand and remember simple instructions, complete simple
8 repetitive tasks, “works better with things than people,” and should have no public
9 contact. (AR 19.) Relying on the testimony of the VE, the ALJ concluded that
10 Plaintiff could perform work that exists in significant numbers in the national
11 economy. (AR 24-25.) Accordingly, the ALJ determined that Plaintiff was not
12 disabled from January 29, 2015 through the date of her decision. (AR 25.) The
13 Appeals Council denied review, thereby rendering the ALJ’s decision the final
14 decision of the Commissioner. (AR 1-6.)
15 DISPUTED ISSUE
16 Whether the ALJ provided legally sufficient reasons for discounting the
17 opinions of Plaintiff’s treating physicians.
18 STANDARD OF REVIEW
19 Under 42 U.S.C. § 405(g), the Court reviews the Commissioner’s decision to
20 determine whether the Commissioner’s findings are supported by substantial
21 evidence and whether the proper legal standards were applied. See Treichler v.
22 Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1098 (9th Cir. 2014). Substantial
23 evidence means “more than a mere scintilla” but less than a preponderance. See
24 Richardson v. Perales, 402 U.S. 389, 401 (1971); Lingenfelter v. Astrue, 504 F.3d
25 1028, 1035 (9th Cir. 2007). Substantial evidence is “such relevant evidence as a
26 reasonable mind might accept as adequate to support a conclusion.” Richardson, 402
27 U.S. at 401. Where evidence is susceptible of more than one rational interpretation,
28 the Commissioner’s decision must be upheld. See Orn v. Astrue, 495 F.3d 625, 630
1 (9th Cir. 2007); Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1196 (9th Cir.
2 2004) (“When evidence reasonably supports either confirming or reversing the ALJ’s
3 decision, [the court] may not substitute [its] judgment for that of the ALJ.”).
4 DISCUSSION
5 A. Relevant Evidence2
6 The ALJ discussed the following evidence related to Plaintiff’s mental
7 impairments. First, the ALJ noted the May 13, 2015 medical source statement
8 completed by Plaintiff’s treating physician, Edward Cavanagh, M.D. Dr. Cavanagh
9 indicated that he treated Plaintiff from January 1996 through February 4, 2015. (AR
10 337.) He diagnosed Plaintiff with adjustment disorder with depressed mood and
11 polysubstance dependence. On Axis IV, Dr. Cavanagh diagnosed Plaintiff as
12 suffering from “problems with: primary support group, social environment,
13 educational, occupational, housing, economics, access to health care, and interaction
14 with the legal system.” He assessed Plaintiff with a GAF of 51. (AR 336.)
15 In Dr. Cavanagh’s opinion, Plaintiff was moderately limited in his activities of
16 daily living, indicating that reminders and/or prompts are often needed, and Plaintiff
17 required additional support with “more sophisticated tasks.” In addition,
18 Dr. Cavanagh noted that Plaintiff had a limited capacity to learn and retain new
19 information regarding activities of daily living. (AR 335.) With regard to social
20 functioning, Dr. Cavanagh opined that Plaintiff demonstrated limitations with
21 communication and language skills which led to negative impacts with peer and
22 family relationships. In addition, he noted that Plaintiff had a limited ability to
23 interpret social cues, resulting in “impaired functioning in all settings” which had
24 historically led to “to instability in relationships across all settings.” (AR 335.) In
25 Dr. Cavanagh’s opinion, Plaintiff is able to understand simple instructions, but a
26 limited ability to process multi-step instructions. Further, he opined that Plaintiff’s
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2 The issue raised by Plaintiff involves only the evidence regarding his mental impairments.
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1 impairments with attention and concentration necessitate support and/or re-direction
2 for tasks completion, and Plaintiff is able to complete only limited tasks
3 independently. (AR 336.) According to Dr. Cavanagh, Plaintiff’s impairments limit
4 his ability to function in a work setting because his “inabilities with self-regulation
5 and social functioning create instabilities in settings normed for the general
6 population.” (AR 336.) Finally, Dr. Cavanagh opined that changes in Plaintiff’s
7 functional abilities were likely to be limited. (AR 336.)
8 Next, the ALJ discussed the May 2015 opinion of State agency psychologist
9 R. Phillips, Ph.D. Dr. Phillips reviewed the record and assessed Plaintiff with
10 moderate limitations in numerous functional abilities, among them, the ability to
11 carry out short and simple instructions; perform activities within a schedule; maintain
12 regular attendance; sustain an ordinary routine without special supervision; work in
13 coordination with or proximity to others; accept instructions and respond
14 appropriately to criticism from supervisors; respond to changes in the work setting;
15 travel in unfamiliar places or use public transportation, among others. Dr. Phillips
16 assessed marked limitations in Plaintiff’s ability to maintain attention and
17 concentration for extended periods and ability to interact appropriately with the
18 general public. (AR 68-70.)
19 The ALJ considered the October 30, 2015 opinion of State agency
20 psychologist P. Kresser, Ph.D. After reviewing the record, Dr. Kresser assessed
21 limitations similar to those assessed by Dr. Phillips. (AR 85-86.)
22 Finally, the ALJ discussed the July 7, 2017 “Mental Disorder Questionnaire
23 Form” completed by Plaintiff’s treating physician, Jason Yang, M.D. According to
24 Dr. Yang, he treated Plaintiff from August 2014 to May 2017. (AR 612.) He
25 diagnosed Plaintiff with Persistent Depressive Disorder (Dysthymia) and Severe
26 Opioid Use Disorder. Dr. Yang observed that Plaintiff presented as restless with
27 unimpaired speech, normal eye contact, concentration impaired by rumination and
28 average grooming/hygiene. The form asked about Plaintiff’s complaints and
1 symptoms, including verbatim quotes about how Plaintiff described his symptoms.
2 Dr. Yang responded that Plaintiff’ reported symptoms associated with Dysthymic
3 Disorder, including difficulty concentrating, low energy, tearfulness, difficulties
4 managing impulsive behavior and mood regulation that impacts his daily activities
5 and interactions with others. (AR 608.) Dr. Yang’s mental status examination
6 revealed that Plaintiff’s cognitive functioning appeared to be intact, he had no
7 apparent disturbance in thought content or process, and good insight as to how mental
8 illness has impacted his functioning.3 (AR 609.) Dr. Yang noted that Plaintiff
9 demonstrated appropriate interactions with peers and staff but poor impulse control
10 and ability to regulate emotions. He opined that due to symptoms of dysthymia,
11 Plaintiff has trouble concentrating and regulating mood, and his “insight and
12 judgments are impaired due to rumination and history of trauma related to
13 prostitution, family, incarcerations, and sexual orientation.” (AR 609-610.) In
14 Dr. Yang’s opinion, Plaintiff has diminished capacity to maintain concentration and
15 work independently when depressed. In addition, Plaintiff has “difficulty with
16 emotional regulation and impulse control resulting in difficulty staying focused on
17 single tasks and making decisions.” (AR 611.) Dr. Yang’s prognosis indicates that
18 Plaintiff has a “greatly diminished capacity to maintain concentration, and manage
19 symptoms related to depression.” (AR 612.)
20 B. Law
21 In determining a claimant’s RFC, an ALJ must consider all relevant evidence
22 of record, including medical opinions. Tommasetti v. Astrue, 533 F.3d 1035, 1041
23 (9th Cir. 2008); Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006).
24 “There are three types of medical opinions in social security cases: those from
25 treating physicians, examining physicians, and non-examining physicians.”
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3The Court notes thatsome of the records refer to Plaintiff as “she,” and there is evidence indicating
27 that Plaintiff has or is undergoing a transgender transition. (See AR 609, 1388.) Plaintiff’s
memorandum refersto Plaintiff using the masculine pronoun (see, ECF No. 10 at 1), and the Court
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1 Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 692 (9th Cir. 2009). The
2 medical opinion of a claimant’s treating physician is entitled to controlling weight so
3 long as it is supported by medically acceptable clinical and laboratory diagnostic
4 techniques and is not inconsistent with other substantial evidence in the record.
5 Trevizo v. Berryhill, 871 F.3d 664, 675 (9th Cir. 2017) (quoting 20 C.F.R.
6 § 404.1527(c)(2)). If a treating physician’s medical opinion is uncontradicted, the
7 ALJ may only reject it based on clear and convincing reasons. Trevizo, 871 F.3d at
8 675; Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008). If a treating
9 physician’s opinion is contradicted, the ALJ must provide specific and legitimate
10 reasons supported by substantial evidence in the record before rejecting it. Trevizo,
11 871 F.3d at 675; Ghanim v. Colvin, 763 F.3d 1154, 1160-1061 (9th Cir. 2014). Even
12 when a treating physician’s opinion is not controlling, the ALJ should weigh it
13 according to factors such as the nature, extent, and length of the physician-patient
14 working relationship, the frequency of examinations, whether the physician’s opinion
15 is supported by and consistent with the record, and the specialization of the physician.
16 Trevizo, 871 F.3d at 676; see 20 C.F.R. § 404.1527(c)(2)-(6). The ALJ can meet the
17 requisite specific and legitimate standard “by setting out a detailed and thorough
18 summary of the facts and conflicting clinical evidence, stating his interpretation
19 thereof, and making findings.” Trevizo, 871 F.3d at 675 (citations and internal
20 quotation marks omitted).
21 C. Analysis
22 Because the opinions of Drs. Cavanagh and Yang were, in part, contradicted
23 by the opinions of the State Agency physicians, the ALJ was required to provide
24 specific and legitimate reasons supported by substantial evidence in the record for
25 rejecting them. Trevizo, 871 F.3d at 675.
26 In rejecting the opinions of Drs. Cavanagh and Yang, the ALJ’s decision
27 explains as follows:
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1 In sum, the above residual functional capacity assessment is supported
2 by finding unpersuasive, the findings and opinions from [Plaintiff]’s
3 treating physicians, Drs. Yang and Cavanagh (Ex. 12F-13F) finding the
4 opinions are not supported by symptoms outlined in any medical record.
5 The opinions are not consistent with the evidence, as noted in this
6 decision, and appear to be based on [Plaintiff]’s subjective complaints
7 versus any objective findings.
8 (AR 24.) Thus, the ALJ provided two reasons for rejecting the opinions of Drs. Yang
9 and Cavanagh – (1) they were inconsistent with or not supported by the medical
10 evidence and (2) they were based upon Plaintiff’s subjective complaints.
11 1. Opinions Inconsistent with the Medical Record
12 Generally, a finding that the treating physician’s opinion is unsupported by the
13 record is a legitimate basis for discounting that opinion. See Tommasetti, 533 F.3d at
14 1041 (ALJ may reject a treating physician’s opinion that is inconsistent with other
15 medical evidence, including the physician’s own treatment notes); Batson, 359 F.3d
16 at 1195 (ALJ may discredit treating physician’s opinion where it is unsupported by
17 the record as a whole or by objective medical findings).
18 Here, however, the ALJ failed to identify any specific inconsistencies between
19 the medical evidence and any particular opinion of either Dr. Cavanagh or Dr. Yang.
20 Instead, the ALJ summarily concluded that “the opinions” were unsupported and
21 inconsistent with “the evidence, as noted in this decision.” (AR 24.) Merely invoking
22 the boilerplate language that the multiple (and varied) opinions of two separate
23 treating physicians was inconsistent with undefined portions of the record does not
24 amount to a sufficient and specific reason for rejecting them. See Garrison v. Colvin,
25 759 F.3d 995, 1012-1013 (9th Cir. 2014) (“an ALJ errs when he rejects a medical
26 opinion or assigns it little weight while doing nothing more than ignoring it, asserting
27 without explanation that another medical opinion is more persuasive, or criticizing it
28 with boilerplate language that fails to offer a substantive basis for his conclusion”);
1 Kinzer v. Colvin, 567 F. App’x 529, 530 (9th Cir. 2014) (ALJ’s decision that treating
2 physician’s opinion was “not well-supported by the ... other objective findings in the
3 case record,” and “contrast[ed] sharply with the other evidence of record” were
4 “insufficient to dispose of the treating doctor's opinions”); Embrey v. Bowen, 849
5 F.2d 418, 421 (9th Cir. 1988) (“To say that medical opinions are not supported by
6 sufficient objective findings or are contrary to the preponderant conclusions
7 mandated by the objective findings does not achieve the level of specificity our prior
8 cases have required....”); Carbajal v. Berryhill, 2018 WL 1517161, at *3 (C.D. Cal.
9 Mar. 27, 2018) (“Merely invoking the boilerplate language that Dr. Park’s opinion
10 lacked objective support or was inconsistent with undefined portions of the record
11 reflecting moderate findings does not amount to a sufficient and specific reason for
12 rejecting the opinion.”).
13 In arguing that the ALJ’s reason was specific and legitimate, the
14 Commissioner points to the following evidence cited by the ALJ:
15 (1) In support of her conclusion that Plaintiff’s limitations in understanding,
16 remembering, or applying information were mild to moderate, theALJ citedevidence
17 that Plaintiff was able to understand and remember instructions for treatment of
18 administering medication for a bout of acute femoral deep venous thrombosis. (AR
19 18, citing AR 465, 468, 471.) The records relied upon by the ALJ reveal that after
20 Plaintiff obtained medical treatment for deep venous thrombosis, he was instructed
21 on medication injection. According to the treatment notes, Plaintiff was able to
22 “clearly express instructions on how to inject Lovenox,” and “verbalized
23 understanding re: taking med (Lovenox) as prescribed.” (AR 465, 468, 471.)
24 (2) In concluding that Plaintiff’s limitations in interacting with others were
25 moderate, the ALJ cited treatment notes reflecting that in February 2015, “sources at
26 Star Clinic observed [Plaintiff] to be conversant, goal directed and appropriate,” and
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1 in January 2016, the same sources observed Plaintiff “to be animated, pleasant and
2 appropriate.” (AR 18, citing AR 326, 190, 450.)4
3 (3)Inconcluding that, contrary tothe opinion of“a treating source,”Plaintiff’s
4 ability to adapt or manage himself was mild to moderately limited, the ALJ cited a
5 record from Star Clinic reflectingthat Plaintiff lived alone and knew how to get home
6 by taking public transportation. (AR 19, citing AR 516.) The ALJ found it significant
7 that before being discharged, Plaintiff asked hospital staff if it was safe for him to
8 take the bus home, which sheinterpreted as demonstrating that Plaintiff was “mindful
9 about his care and safety.” (AR 19, citing 517.)
10 As an initial matter, the Court notes that it is debatable whether the foregoing
11 evidence supports the inferences drawn by the ALJ. For example, evidence that on
12 one occasion, Plaintiff verbally indicated that he understood how to inject himself
13 with medication does not necessarily undermine Dr. Cavanagh’s opinion that
14 Plaintiff would be able to learn and retain new information regarding activities of
15 daily living “within a limited capacity.” Similarly, it is not clear that evidence that
16 Plaintiff lived alone, knew how to take the bus home, and was coherent enough to
17 ask hospital staff whether taking the bus was safe necessarily undermined
18 Dr. Cavanagh’s opinion that Plaintiff often needed reminders or prompts to complete
19 tasks.
20 More importantly, even assuming that these records are reasonably interpreted
21 as inconsistent with the treating physicians’ opinions, the ALJ’s decision improperly
22 relies upon isolated portions of the medical record while failing to consider the
23 evidence as a whole. An ALJ must consider all of the relevant evidence in the record
24 and may not point to only those portions of the records that bolster her findings. See
25 Holohan v. Massanari, 246 F.3d 1195, 1207-1208 (9th Cir. 2001) (an ALJ cannot
26 selectively rely on some entries in plaintiff's records while ignoring others).
27
4 The complete observation by the treatment source states, “Pt conversant, goal directed and
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1 Moreover, this sort of selective reading of the record is particularly
2 troublesome with regard to mental impairments such as Plaintiff’s. As the Ninth
3 Circuit has explained,symptoms of mental impairments “wax and wane in the course
4 of treatment.” Garrison, 759 F.3d at 1017. “Cycles of improvement and debilitating
5 symptoms are a common occurrence, and in such circumstances it is error for an ALJ
6 to pick out a few isolated instances of improvement over a period of months or years
7 and to treat them as a basis for concluding a claimant is capable of working.”
8 Garrison, 759 F.3d at 1017 (citing Holohan, 246 F.3d at 1205 (“[The treating
9 physician’s] statements must be read in context of the overall diagnostic picture he
10 draws. That a person who suffers from severe panic attacks, anxiety, and depression
11 makes some improvement does not mean that the person’s impairments no longer
12 seriously affect [his] ability to function in a workplace.”)).
13 Plaintiff’s mental health treatment at Project 180 commenced in August 2014,
14 and he received treatment continuously to the date of the hearing. Not only was
15 Plaintiff treated by both Dr. Cavanagh and Dr. Yang, as well as Stephen Field, M.D.,
16 but he underwent extensive individual and group therapy sessions. These mental
17 health records take up hundreds of pages of the administrative record. (See Exhibits
18 14F & 17F at AR 628-1055, 1265-1422.) Yet, the ALJ’s decision makes no mention
19 of any of these treatment records. While the Court’s independent review reveals that
20 some treatment notes maysupport the ALJ’s conclusion, many of the treatment notes
21 arguably support the opinions of Plaintiff’s treating physicians. At a minimum, the
22 records indicate that Plaintiff’s mental condition fluctuated. For example, the record
23 includes treatment notes revealing that at various times, Plaintiff was withdrawn,
24 showed poor concentration, required continuance redirection, failed to comply
25 despite multiple interventions, had poor eye contact, was unresponsive, had blunted
26 affect, had problems following directions, exhibited poor impulse control and
27 rumination, and his speech was slurred, soft or unclear. (See, e.g., AR 628, 645, 941,
28 945-946, 985, 1004, 1266, 1302, 1389, 1390, 1409, 1411, 1413.)
1 In sum, the ALJ’s decision is conclusory and fails to identify which opinions
2 of which treating physician are inconsistent with what portions of the record. In
3 addition, to the extent that the ALJ does identify specific evidence she found
4 inconsistent with the treating physicians’ opinions, she improperly singled out
5 records undermining the treating physicians’ opinions while ignoring portions of the
6 record that arguably support those opinions.
7 2. Opinions Based upon Subjective Complaints
8 The ALJ also found that the opinions of Drs. Cavanagh and Yang “appear to
9 be based upon [Plaintiff]’s subjective complaints versus any objective findings.” (AR
10 24.)
11 Generally, a physician’s opinion “premised to a large extent upon the
12 claimant’s own accounts of his symptoms and limitations may be disregarded where
13 those complaints have been properly discounted.” Buck v. Berryhill, 869 F.3d 1040,
14 1049 (9th Cir. 2017) (quoting Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595,
15 602 (9th Cir. 1999) (internal quotation marks and citation omitted)). The
16 Commissioner points out that Plaintiff does not contest the ALJ’s credibility
17 determination and, therefore, argues that the ALJ properly rejected the treating
18 physicians’ opinions on the ground that they were based upon Plaintiff’s subjective
19 complaints. (ECF No. 25 at 6.)
20 In the circumstances presented here, the Commissioner’s argument is
21 unpersuasive. To begin with, as with the ALJ’s first reason for rejecting the treating
22 physicians’ opinions, the ALJ’s reasoning in this regard is essentially conclusory.
23 The ALJ fails to differentiate among the numerous opinions by the two different
24 physicians. That is, the decision does not identify which opinions by which of
25 Plaintiff’s treating physicians the ALJ considered to be based solely upon Plaintiff’s
26 subjective complaints. Moreover, because the ALJ failed to acknowledge the
27 treatment notes from either of the treating physicians or any of the other treating
28 sources at Project 180 (upon which the treating physicians presumably relied) and
1 because at least some of those treatment notes include what appear to be objective
2 findings, the ALJ’s conclusion is not supported by substantial evidence.
3 More importantly, the ALJ’s blanket rejection of the treating physicians’
4 opinions on this ground was improper. As the Ninth Circuit has explained,
5 Psychiatric evaluations may appear subjective, especially compared to
6 evaluation in other medical fields. Diagnoses will always depend in part
7 on the patient’s self-report, as well as on the clinician’s observations of
8 the patient. But such is the nature of psychiatry. See Poulin [v. Bowen,
9 817 F.2d 865, 873 (D.C. Cir. 1987)] (“[U]nlike a broken arm, a mind
10 cannot be x-rayed.”).Thus, the rule allowing an ALJ to reject opinions
11 based on self-reports does not apply in the same manner to opinions
12 regarding mental illness. In the context of this case, [the treating
13 physician’s] partial reliance on Buck's self-reported symptoms is thus
14 not a reason to reject his opinion.
15 Buck, 869 F.3d at 1049; see also Blankenship v. Bowen, 874 F.2d 1116, 1121 (6th
16 Cir. 1989) (“The report of a psychiatrist should not be rejected simply because of the
17 relative imprecision of the psychiatric methodology....”) (quoting Poulin, 817 F.2d
18 at 873–874).
19 3. Additional Reason Suggested by the Commissioner
20 With regard to Dr. Yang, the Commissioner argues that his “opinion of
21 diminished capacity was inconsistent with his observations of Plaintiff’s intact
22 cognitive functioning,” which was a proper reason for the ALJ to discount his
23 opinion. (ECF No. 25 at 4.) The ALJ, however, did not purport to rely upon an
24 internal inconsistency as a basis for rejecting Dr. Yang’s opinion, and the Court
25 cannot affirm the ALJ’s decision on a ground that the ALJ did not specifically invoke.
26 See Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015) (reviewing court is
27 constrained to reviewing the reasons the ALJ asserts); Molina v. Astrue, 674 F.3d
28 1104, 1121 (9th Cir. 2012) (“we may not uphold an agency’s decision on a ground
1 || not actually relied on by the agency’); Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d
2 |} 1219, 1225 (9th Cir. 2009) (“Long-standing principles of administrative law require
3 || [the Court] to review the ALJ’s decision based on the reasoning and actual findings
4 || offered by the ALJ — not post hoc rationalizations that attempt to intuit what the
5 || adjudicator may have been thinking.”).
6 Accordingly, the ALJ failed to provide legally sufficient reasons for rejecting
7 || the opinions of Drs. Cavanagh and Yang.
8 D. Harmless Error
9 The Commissioner argues that any error was harmless because Plaintiff has
10 || failed to show that the ALJ’s RFC did not “properly capture” the limitations opined
11 || by either Dr. Cavanagh or Dr. Yang. According to the Commissioner, limiting
12 || Plaintiff to occupations involving simple repetitive tasks with no public contact “fully
13 || accommodated” the opinions of both treating physicians. (ECF No. 25 at 4, 6-7.)
14 The Commissioner is correct that an ALJ’s RFC assessment may sufficiently
15 || account for a physician’s opinion regarding limitations without using the same
16 || language as the physician. See Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1173-
17 || 1174 (9th Cir. 2008). So, for example, an RFC may account for a physician’s opinion
18 || that the claimant suffers from moderate difficulties in concentration and persistence
19 || by assessing an RFC restricting the claimant to simple, routine, repetitive tasks. See
20 || Hughes v. Colvin, 599 F, App’x 765, 766 (9th Cir. 2015); Stubbs-Danielson, 539
21 || F.3d at 1171. Similarly, an RFC for work without public interaction adequately
22 || accommodates a physician’s opinion that the claimant is moderately limited in social
23 || functioning. Hughes, 599 F. App’x at 766.
24 Here, the ALJ assessed Plaintiff with an RFC limiting him to simple, repetitive
25 || tasks and no contact with the public. This RFC may fairly accommodate some of the
26 || treating physicians’ opinions. However, contrary to the Commissioner’s suggestion,
27 || the ALJ did not accommodate all of the opinions of Drs. Cavanagh and Yang
28 || regarding Plaintiff’s limitations. In fact, as set forth above, the ALJ unequivocally
13
1 and explicitly rejected both physicians’ opinions in total. (AR 24.) The ALJ also
2 specifically rejected Dr. Cavanagh’s opinions that Plaintiff was limited in his ability
3 to learn and retain new information, was unable to self-regulate thereby creating
4 instability in settings “normed for the general population,” and often needed
5 reminders or prompts to complete tasks. (See AR 18-19.) The ALJ’s decision also
6 implicitly rejected Dr. Cavanagh’s opinion that Plaintiff’s impairments with attention
7 and concentration necessitate support and/or re-direction for tasks completion, and
8 that Plaintiff is able to complete only limited tasks independently
9 Notwithstanding the Commissioner’s invitation, the Court cannot conclude
10 that all of these opinions are subsumed within the ALJ’s RFC restricting Plaintiff to
11 simple, repetitive tasks and no contact with the public. See, e.g., Lisardo S. v.
12 Berryhill, 2019 WL 773686, at *5 (C.D. Cal. Feb. 20, 2019)(RFC restricting plaintiff
13 to simple work, limited contact with the public, and a predictable routine did not
14 necessarily accommodate physician’s opinion that plaintiff was limited in abilities to
15 (a) relate to coworkers, (b) perform work without special or additional supervision,
16 and (c) complete a normal workday or workweek); Raymond v. Berryhill, 2018 WL
17 3691842, at *6 (C.D. Cal. Aug. 2, 2018) (“Although the ALJ’s restriction for
18 unskilled work may encompass Plaintiff's moderate limitations in concentration,
19 persistence, and pace, the RFC does not sufficiently account for Plaintiff’s moderate
20 limitations in performing routine work duties and maintaining consistent attendance
21 in the workplace.”); Atkinson v. Colvin, 2015 WL 5840210, at *3 (C.D. Cal. Oct. 5,
22 2015) (RFC restriction to non-complex tasks “may encompass the concentration,
23 persistence, and pace limitations assessed” by physician, but did “not sufficiently
24 account for Plaintiff’s moderate limitations in performing activities within a
25 schedule, maintaining regular attendance in the workplace, or completing a normal
26 workday and workweek without interruption”); Hunter v. Colvin, 2015 WL 501466,
27 at *1 (C.D. Cal. Feb. 5, 2015) (ALJ’s RFC limiting claimant’s contact with the public
28
1 did not account for physician’s opinion that claimant was limited in ability to interact
2 with co-workers and supervisors).
3 Crediting some or all of the opinions of either Dr. Cavanagh or Dr. Yangwould
4 likely have affected the ALJ’s RFC and, consequently, the hypothetical posed to the
5 VE. See Ghanim, 763 F.3d at 1166. Accordingly, the Court cannot conclude that the
6 ALJ’s error was harmless.
7 REMEDY
8 Ninth Circuit case law “precludes a district court from remanding a case for an
9 award of benefits unless certain prerequisites are met.” Dominguez v. Colvin, 808
10 F.3d 403, 407 (9th Cir. 2016) (citations omitted). “The district court must first
11 determine that the ALJ made a legal error, such as failing to provide legally sufficient
12 reasons for rejecting evidence. . . .If the court finds such an error, it must next review
13 the record as a whole and determine whether it is fully developed, is free from
14 conflicts and ambiguities, and all essential factual issues have been resolved.”
15 Dominguez, 808 F.3d at 407 (citation and internal quotation marks omitted).
16 Although the Court has found error as discussed above, the record on the whole
17 is not fully developed, and factual issues remain outstanding. The issues concerning
18 Plaintiff’s alleged disability “should be resolved through further proceedings on an
19 open record before a proper disability determination can be made by the ALJ in the
20 first instance.” See Brown-Hunter, 806 F.3d at 496; see also Treichler, 775 F.3d at
21 1101 (remand for award of benefits is inappropriate where “there is conflicting
22 evidence, and not all essential factual issues have been resolved”) (citation omitted);
23 Strauss v. Comm’rof the Soc.Sec.Admin., 635 F.3d 1135, 1138 (9th Cir. 2011) (same
24 where the record does not clearly demonstrate the claimant is disabled within the
25 meaning of the Social Security Act).
26 Accordingly, the appropriate remedy is a remand for further administrative
27 proceedings pursuant to sentence four of 42 U.S.C. § 405(g).5
28
1 IT IS ORDERED that Judgment be entered reversing the decision of the
2 | Commissioner of Social Security and remanding this matter for further
3 || administrative proceedings consistent with this opinion.
4
5 | DATED: 11/25/2019 (Wy Ye é □
——— a
' □ ALEXANDER F. MacKINNON
8 UNITED STATES MAGISTRATE JUDGE
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