# Mary Elizabeth Clevenger v. Nancy A. Berryhill

> District Court, C.D. California · May 18, 2020

URL: https://www.frixlaw.com/law-library/cases/10037956

## Case

- **Court:** District Court, C.D. California
- **Decided:** May 18, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10037956

## How later opinions describe it (automated extraction)

- recognizing that an ALJ must 25 “provide specific, germane reasons for discounting lay witness testimony”
- holding that an ALJ errs where he “does not 10 . . . set forth specific, legitimate reasons for crediting one medical opinion over another” or 11 when he simply “ignor[es the opinion], asserting without explanation that another medical 12 opinion is more persuasive”
- holding that 21 treating physicians are at the top of the hierarchy of medical opinion evidence, i.e., opinions 22 from treating, examining, and non-examining physicians
- holding that daily activities inconsistent with claimant’s 17 self-described level of pain is a valid reason for an adverse credibility finding

## Opinion text

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8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA

10
MARY ELIZABETH C.,1 ) NO. CV 19-3723-KS
11
Plaintiff, )

12 v. )
MEMORANDUM OPINION AND ORDER
)
13 )
ANDREW M. SAUL,2 Commissioner
14 )
of Social Security, )
15 Defendant. )
16 _________________________________ )

17
INTRODUCTION
18
19 Mary Elizabeth C. (“Plaintiff”) filed a Complaint on May 1, 2019, seeking review of the
20 denial of her application for Supplemental Security Insurance (“SSI”). (Dkt. No. 1.) On May
21 31, 2019, the parties consented, pursuant to 28 U.S.C. § 636(c), to proceed before the
22 undersigned United States Magistrate Judge. (Dkt. Nos. 11-13.) On March 26, 2020, the
23 parties filed an Amended Joint Stipulation (“Joint Stip.”).3 (Dkt. No. 28.) Plaintiff seeks an
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1 Partially redacted in compliance with Federal Rule of Civil Procedure 5.2(c)(B) and the recommendation of the
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Committee on Court Administration and Case Management of the Judicial Conference of the United States.
2 The Court notes that Andrew M. Saul is now the Commissioner of the Social Security Administration.
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Accordingly, pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, the Court orders that the caption be amended
to substitute Andrew M. Saul for Nancy A. Berryhill as the defendant in this action.
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3 The parties filed the Joint Stipulation on March 19, 2020, but it was not signed by defense counsel. (See Dkt. No.
25-26.) Accordingly, the parties were ordered to file an amended Joint Stipulation correcting the error. (Dkt. Nos. 27.)
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The two versions of the Joint Stipulation are substantively identical.
1 order reversing and remanding for further administrative proceedings. (Joint Stip. at 41-42.)
2 The Commissioner requests that the ALJ’s decision be affirmed. (Id. at 42.) The Court has
3 taken the matter under submission without oral argument.
4
5 SUMMARY OF PRIOR PROCEEDINGS
6
7 On November 24, 2014, Plaintiff, who was born June 21, 1968, filed an application for
8 SSI.4 (See Administrative Record (“AR”) 185-94.) Plaintiff alleged disability commencing
9 July 27, 2013 due to bipolar disorder, schizophrenia, panic attacks, diabetes, asthma, obesity,
10 sleep apnea, foot pain, and migraines. (AR 88-89, 185.) She previously worked as a teacher’s
11 aide (DOT5 249.367-074) and an amusement park worker (DOT 349.664-010). (AR 22.)
12 After the Commissioner initially denied Plaintiff’s application and reconsideration (AR 88-99,
13 101-15), she requested a hearing (AR 141-43). Administrative Law Judge Loranzo Fleming
14 (the “ALJ”) held a hearing on October 16, 2017. (AR 29.) Plaintiff and a vocational expert
15 testified. (AR 36-86.) On March 22, 2018, the ALJ issued an unfavorable decision. (AR 15-
16 24.) On February 26, 2019, the Appeals Council denied Plaintiff’s review. (AR 1-3.)
17
18 SUMMARY OF ADMINISTRATIVE DECISION
19
20 The ALJ found that Plaintiff had not engaged in substantial gainful activity since the
21 date she applied for SSI. (AR 17.) He determined that Plaintiff had the following severe
22 impairments: obesity, diabetes, asthma, schizoaffective disorder, and panic disorder with
23 agoraphobia. (Id.) After specifically considering listings 3.03, 12.04, and 12.06, the ALJ
24 concluded that Plaintiff did not have an impairment or combination of impairments that met
25 or medically equaled the severity of an impairment listed in 20 C.F.R. part 404, subpart P,
26

27
4 Plaintiff was 45 years old on the alleged onset date, and 46 on the date of the SSI application; she thus met the
agency’s definition of a “younger person.” See 20 C.F.R. §§ 404.1563(c), 416.963(c).
28
5 “DOT” refers to the Dictionary of Occupational Titles.
1 appendix 1 (20 C.F.R. §§ 416.920(d), 416.925, 416.926). (AR 17-18.) He determined that
2 Plaintiff had the residual functional capacity (“RFC”) to perform medium work, with the
3 following limitations: “no more than frequently climbing ramps and stairs, balancing,
4 stooping, kneeling, crouching, or crawling; must avoid environmental irritants, dangerous
5 machinery, and working at heights; capable of performing simple routine tasks; making simple
6 work related decisions; no more than occasionally interacting and responding appropriately
7 with supervisors, coworkers, and the public; and can tolerate few changes in a routine work
8 setting.” (AR 18.)
9
10 The ALJ found that Plaintiff could not perform her past relevant work. (AR 22.) He
11 determined that, considering Plaintiff’s age, education, work experience, and RFC, there were
12 jobs that existed in significant number in the national economy that Plaintiff could perform,
13 including the jobs of laborer (DOT 922.687-058); cleaner, lab equipment (DOT 381.687-022);
14 conveyor feeder (DOT 921.686-014); addresser (DOT 209.587-010); stuffer (DOT 731.685-
15 014); and table worker (DOT 739.687-182). (AR 22-23.) Accordingly, the ALJ determined
16 that Plaintiff had not been under a disability, as defined in the Social Security Act, since the
17 date she filed for benefits. (AR 23.)
18
19 STANDARD OF REVIEW
20
21 This Court reviews the Commissioner’s decision to determine whether it is free from
22 legal error and supported by substantial evidence in the record as a whole. 42 U.S.C. § 405(g);
23 Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). “Substantial evidence is ‘more than a mere
24 scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might
25 accept as adequate to support a conclusion.’” Gutierrez v. Comm’r of Soc. Sec., 740 F.3d 519,
26 522-23 (9th Cir. 2014) (citation omitted). “Even when the evidence is susceptible to more
27 than one rational interpretation, [the Court] must uphold the ALJ’s findings if they are
28
1 supported by inferences reasonably drawn from the record.” Molina v. Astrue, 674 F.3d 1104,
2 1110 (9th Cir. 2012).
3
4 Although this Court cannot substitute its discretion for the Commissioner’s, the Court
5 nonetheless must review the record as a whole, “weighing both the evidence that supports and
6 the evidence that detracts from the Commissioner’s conclusion.” Reddick v. Chater, 157 F.3d
7 715, 720 (9th Cir. 1988). “The ALJ is responsible for determining credibility, resolving
8 conflicts in medical testimony, and for resolving ambiguities.” Andrews v. Shalala, 53 F.3d
9 1035, 1039 (9th Cir. 1995). The Court will uphold the Commissioner’s decision when the
10 evidence is susceptible to more than one rational interpretation. Burch v. Barnhart, 400 F.3d
11 676, 679 (9th Cir. 2005). However, the Court may review only the reasons stated by the ALJ
12 in her decision “and may not affirm the ALJ on a ground upon which [s]he did not rely.” Orn,
13 495 F.3d at 630. The Court will not reverse the Commissioner’s decision if it is based on
14 harmless error, which exists if the error is “‘inconsequential to the ultimate nondisability
15 determination,’ or if despite the legal error, ‘the agency’s path may reasonably be discerned.’”
16 Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015) (citations omitted).
17
18 DISCUSSION
19
20 Plaintiff raises four issues: whether the ALJ (1) properly evaluated the opinion
21 evidence; (2) properly evaluated Plaintiff’s subjective statements; (3) properly evaluated lay
22 witness statements; and (4) erred in determining Plaintiff’s RFC. (Joint Stip. at 3.) For the
23 reasons discussed below, the Court concludes that remand is warranted because the ALJ erred
24 in his evaluation of two of Plaintiff’s physicians and by formulating an RFC that failed to
25 properly account for Plaintiff’s obesity.
26 //
27 //
28 //
1 I. The ALJ’s Evaluation of Plaintiff’s Treating Physicians
2
3 A. Legal Standard
4
5 “The ALJ is responsible for translating and incorporating clinical findings into a
6 succinct RFC.” Rounds v. Comm’r Soc. Sec. Admin., 807 F.3d 996, 1006 (9th Cir. 2015). In
7 doing so, the ALJ must articulate a “substantive basis” for rejecting a medical opinion or
8 crediting one medical opinion over another. Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir.
9 2014). “Where an ALJ does not explicitly reject a medical opinion or set forth specific,
10 legitimate reasons for crediting one medical opinion over another, he errs. In other words, an
11 ALJ errs when he rejects a medical opinion or assigns it little weight while doing nothing more
12 than ignoring it, asserting without explanation that another medical opinion is more
13 persuasive, or criticizing it with boilerplate language that fails to offer a substantive basis for
14 his conclusion.” Id. at 1012-13; see also Marsh v. Colvin, 792 F.3d 1170, 1172-73 (9th Cir.
15 2015) (“[A]n ALJ cannot in its decision totally ignore a treating doctor and his or her notes,
16 without even mentioning them.”). However, an ALJ’s failure to mention a treating source
17 may not warrant remand if the error was harmless. See Marsh, 792 F.3d at 1173.
18
19 The opinion of a treating source is generally entitled to greater weight than the opinion
20 of a non-treating doctor because a treating source is “most able to provide a detailed,
21 longitudinal picture” of a claimant’s medical impairments and bring a perspective to the
22 medical evidence that cannot be obtained from objective medical findings alone. See
23 Garrison, 759 F.3d at 1012; 20 C.F.R. § 404.1527(c)(2) (governing claims filed before March
24 27, 2017). Likewise, the opinions of examining sources are given more weight than non-
25 examining source opinions. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). To reject an
26 uncontradicted opinion of a treating or examining source, the ALJ must provide “clear and
27 convincing reasons that are supported by substantial evidence.” Trevizo v. Berryhill, 871 F.3d
28 664, 675 (9th Cir. 2017). The ALJ need not accept a treating source’s opinion if it is “brief,
1 conclusory, and inadequately supported by clinical findings” or “by the record as a whole.”
2 See Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004). Alternatively,
3 “[i]f a treating or examining doctor’s opinion is contradicted by another doctor’s opinion, an
4 ALJ may only reject it by providing specific and legitimate reasons that are supported by
5 substantial evidence.” Trevizo, 871 F.3d at 675. “The ALJ can meet this burden by setting
6 out a detailed and thorough summary of the facts and conflicting clinical evidence, stating
7 [her] interpretation thereof, and making findings.” Id. (quoting Magallanes v. Bowen, 881
8 F.2d 747, 751 (9th Cir. 1989)).
9
10 B. Plaintiff’s Physical Impairments
11
12 i. The Opinion Evidence
13
14 In April 2015, Plaintiff’s record was evaluated by state agency consultant, A. Dipsia,
15 M.D., in connection with her initial disability determination. (AR 91-96.) He reviewed
16 Plaintiff’s records between November 2013 and March 2015, and noted there was no opinion
17 evidence predating his opinion. (AR 91-92, 95.) He found that Plaintiff had extreme obesity
18 with a body mass index (“BMI”) of 50-59.9, asthma, and diabetic neuropathy. (AR 92.) He
19 assessed that Plaintiff’s medically determinable impairments could reasonably be expected to
20 produce Plaintiff’s symptoms, but that her statements about the intensity, persistence, and
21 functionally limiting effects of her symptoms were not substantiated by the objective evidence
22 alone. (AR 94.) Dr. Dipsia found Plaintiff partially credible as to her allegations and the
23 severity of her symptoms. (AR 95.) He assessed the following RFC: she could lift and/or
24 carry 20 pounds occasionally, and 10 pounds frequently; she could stand, walk, and sit for 6
25 hours in an 8-hour workday; she had no limitations in pushing or pulling; because of her
26 extreme obesity, she had postural limitations, i.e., she could occasionally climb ramps/stairs,
27 balance, stoop, kneel, crouch, and crawl; she could never climb ladders/ropes/scaffolds; she
28 had no manipulative, visual, communicative, or environmental limitations; she had to avoid
1 concentrated exposure to fumes, odors, dusts, gases, and poor ventilation; and she could
2 tolerate extreme cold and heat, wetness, humidity, noise, vibrations, and hazards. (AR 95-96.)
3
4 In September 2015, Plaintiff’s record was evaluated by state agency consultant, S.
5 Clancey, M.D., in connection with her disability determination on reconsideration. (AR 109-
6 11.) He found that because of her morbid obesity and foot pain, Plaintiff had the following
7 exertional limitations: she could lift and/or carry 20 pounds occasionally and 10 pounds
8 frequently; she could stand and/or walk with normal breaks for 2 hours and sit for 2 hours in
9 a normal workday; and she had no other restriction in her ability to lift and/or carry. (AR 109-
10 10.) Due to extreme obesity, Plaintiff had the following postural limitations: she could
11 occasionally climb ramps/stairs, balance, stoop, kneel, crouch, and crawl; and she could never
12 climb ladders/ropes/scaffolds. (AR 110.) Plaintiff had no manipulative, visual, or
13 communicative limitations. (Id.) She also had environmental limitations due to her asthma
14 and obesity: she had to avoid concentrated exposure to fumes, odors, dusts, gases, poor
15 ventilation, and hazards; but she could tolerate extreme cold and heat, wetness, humidity,
16 noise, and vibration. (AR 110-11.) Dr. Clancey concluded by partially adopting Dr. Dipsia’s
17 April 2015 determination, but finding that due to Plaintiff’s “massive morbid obesity (BMI
18 over 50),” a limitation to sedentary work with additional limits was appropriate and consistent
19 with Plaintiff’s medical history. (AR 111.)
20
21 In August 2017, Plaintiff was evaluated by internal medicine consultative examiner,
22 Sohail Afra, M.D. (AR 477-83.) He did not review Plaintiff’s prior records, but Plaintiff
23 described her medical history to him, which he summarized in his report. (AR 477-79.) His
24 physical examination showed that Plaintiff with morbidly obese with a BMI of 35.8, but
25 findings were in the normal range in her head, neck, chest, cardiovascular system, abdomen,
26 extremities, and in her musculoskeletal and neurological regions. (AR 479-81.) Plaintiff had
27 mild reproducible pain but with full range of motion in her ankle joints and feet, and she could
28 walk without difficulty. (AR 481-82.) Based on the foregoing, Dr. Afra assessed the
1 following functional limitations: she could push, pull, lift, and carry 50 pounds occasionally
2 and 25 pounds frequently; walk and stand 6 hours out of an 8-hour day; sit without restrictions;
3 bend, kneel, stoop, crawl, and crouch frequently; walk on uneven terrain, climb ladders, and
4 work with heights frequently; and hear and see without restrictions. (AR 482-83.)
5
6 Dr. Afra also completed a Medical Source Statement of Ability To Do Work-Related
7 Activities (Physical) (AR 484-89). He assessed as follows. Plaintiff could lift and carry 11 to
8 20 pounds frequently and 21 to 50 pounds occasionally. (AR 484.) Without interruption, she
9 could sit for 2 hours, stand for 45 minutes, and walk for 45 minutes; and over the course of an
10 8-hour workday, she could sit for 8 hours, and stand and walk for 6 hours. (AR 485.) She
11 could continuously reach, handle, finger, feel, push, and pull with both hands. (AR 486.) She
12 could operate foot controls continuously with her right foot, and frequently with her left foot.
13 (Id.) She could frequently climb stairs and ramps, climb ladders and scaffolds, balance, stoop,
14 kneel, crouch, and crawl. (AR 487.) She could tolerate exposure to vibrations continuously;
15 to unprotected heights, moving mechanical parts, and operating a motor vehicle frequently;
16 and to dust, odor, fumes, pulmonary irritants, extreme cold, and extreme heat occasionally.
17 (AR 488.) She could shop, travel without assistance, ambulate without an assistive device,
18 walk a block at a reasonable pace on uneven surfaces, use public transportation, climb a few
19 steps at a reasonable pace with use of a single handrail, prepare a simple meal and feed herself,
20 care for her personal hygiene, and sort/hand/use paper and files. (AR 489.)
21
22 ii. Analysis
23
24 In his decision, the ALJ noted that Dr. Dipsia had opined that Plaintiff could perform a
25 limited range of light work, but was limited to standing and/or walking two hours out of an
26 eight-hour workday. (AR 21 (citing initial disability determination).) He then gave “greater
27 weight” to the Dr. Afra’s opinion, reasoning that he had the opportunity to examine Plaintiff
28
1 in the clinical context and his findings provided a greater longitudinal perspective of the
2 medical record. (Id.) The ALJ did not discuss Dr. Clancey’s opinion.
3
4 Plaintiff contends that the ALJ erred in evaluating opinion evidence of Plaintiff’s
5 physical impairments.6 First, despite giving great weight to Dr. Afra’s opinion, the ALJ erred
6 by ignoring portions of his opinion showing that Plaintiff had greater limitations. (Joint Stip.
7 at 4, 12-13.) Second, Plaintiff argues, the ALJ did not explain why he was rejecting Dr.
8 Dipsia’s opinion. (Id. at 4.) Third, Plaintiff argues that the ALJ did not address the RFC for
9 sedentary work opined by Dr. Clancey and did not provide a reason for apparently rejecting
10 this opinion. (Id. at 4, 13.)
11
12 1. Dr. Afra
13
14 The ALJ did not err in evaluating Dr. Afra’s opinion. The regulations provide that a
15 treating physician’s assessment should be given more weight than that of other physicians’
16 opinions “since these sources are likely to be the medical professionals most able to provide a
17 detailed, longitudinal picture of your medical impairment(s)[.]” 20 C.F.R. § 404.1527(c)(2).
18 The record contains no opinion evidence about Plaintiff’s physical impairments from a treating
19 physician. Thus, Dr. Afra’s opinion, i.e., the opinion of an examining physician, sits highest
20 in the hierarchy of opinion evidence in this case. See Garrison, 759 F.3d at 1012 (holding that
21 treating physicians are at the top of the hierarchy of medical opinion evidence, i.e., opinions
22 from treating, examining, and non-examining physicians). An examining physician’s
23 assessment, while less likely to provide a comprehensive picture of a claimant’s condition than
24 a treating physician, is more likely to provide such a picture than a non-examining physician’s
25

26
6 Plaintiff also contends that the ALJ erred by failing to discuss the impact of Plaintiff’s obesity on her functionality.
(Joint Stip. at 12-13.) However, this argument does not pertain to the ALJ’s evaluation of the opinion evidence and
27
Plaintiff substantively repeats the argument in the fourth issue she raises, whether the ALJ’s RFC assessment is supported
by substantial evidence. (See id. at 36-39.) Thus, the Court will address Plaintiff’s argument concerning the evaluation
28
of her obesity during its discussion of the fourth issue raised by Plaintiff, infra.
1 assessment. The ALJ found that Dr. Afra was best equipped to provide a longitudinal view of
2 Plaintiff’s condition over time and the Court agrees. This reason is also supported by
3 substantial evidence; although Dr. Afra did not review Plaintiff’s medical record, she
4 thoroughly described her medical history to him, which he summarized in his evaluation. (AR
5 477-79.) Based on his ability to compare Plaintiff’s medical history to his own examination
6 findings, Dr. Afra was well-positioned to evaluate Plaintiff’s condition, properly accounting
7 for the evolution of her impairments.
8
9 Plaintiff’s argument that that the ALJ failed to consider more restrictive limitations in
10 Dr. Afra’s opinion is without merit. Plaintiff takes issue with Dr. Afra’s opinion that Plaintiff
11 was limited to standing and walking each for 45 minutes at a time, and sitting for 2 hours at a
12 time; but the regulations do not require that, to perform medium work, a claimant be able to
13 stand and walk continuously for more than 45 minutes, or sit continuously for more than two
14 hours. They simply state that medium work involves “standing or walking, off and on, for a
15 total of 6 hours in an 8-hour workday” with “sitting [that] may occur intermittently during the
16 remaining time.” Social Security Ruling (“SSR”) 83-10, 1983 WL 31251, at *6 (S.S.A. 1983)
17 (emphasis added). All aspects of Dr. Afra’s opinion comport with this definition. He did not
18 state that Plaintiff would need to take breaks of any duration or change from standing/walking
19 to sitting, or vice versa, after doing one activity for a significant period of time. Thus, the ALJ
20 did not err in his evaluation of Dr. Afra’s opinion and remand on this basis is not warranted.
21
22 2. Dr. Dipsia
23
24 Plaintiff contends that the ALJ erred in his evaluation of Dr. Dipsia’s opinion because
25 he gave no weight to that opinion. (Joint Stip. at 4.) Although the ALJ did not explicitly give
26 any weight to Dr. Dipsia’s opinion, that omission is not necessarily fatal where the import of
27 the opinion to the ALJ can be discerned by his decision. See Dixon v. Saul, 411 F. Supp. 3d
28 837, 848 n.3 (N.D. Cal. 2019) (“The ALJ did not specifically assign weight to [the doctor’s]
1 medical opinion, though his heavy reliance on that opinion suggests great weight was assigned
2 it.”). The ALJ did not ignore Dr. Dipsia’s opinion. Instead, he described it and immediately
3 thereafter discussed and gave “greater weight” to Dr. Afra’s opinion. (AR 21.) Thus, it is
4 apparent that Dr. Dipsia’s opinion was given less weight than the opinion of Dr. Afra. As
5 discussed, standing alone, Dr. Afra’s ability to provide a longitudinal view of Plaintiff’s
6 condition was a legitimate basis for crediting that decision. And viewing Dr. Afra’s opinion
7 in the context of the ALJ’s discussion of the relationship between Drs. Afra’s and Dipsia’s
8 opinions, the ALJ’s stated reason was also a legitimate basis to credit Dr. Afra’s opinion over
9 Dr. Dipsia’s. Cf. Garrison, 759 F.3d at 1012-13 (holding that an ALJ errs where he “does not
10 . . . set forth specific, legitimate reasons for crediting one medical opinion over another” or
11 when he simply “ignor[es the opinion], asserting without explanation that another medical
12 opinion is more persuasive”). Moreover, this reason is supported by substantial evidence
13 because Dr. Dipsia reviewed Plaintiff’s case only a few months after the alleged onset date
14 and more than two years before Dr. Afra; he did not consider any medical records after March
15 2015; and he never examined Plaintiff. In sum, Dr. Afra had a better sense of Plaintiff’s
16 condition over time and could formulate an opinion in line with that longitudinal view. Thus,
17 the Court finds no legal error in the ALJ’s implicit assessment of Dr. Dipsia’s opinion.
18
19 3. Dr. Clancey
20
21 Turning to the opinion of Dr. Clancey, Plaintiff contends that the ALJ did not address
22 the RFC for sedentary work assessed by Dr. Clancey or explain why he was rejecting this
23 opinion. (Joint Stip. at 4, 13.) Plaintiff is correct. The ALJ’s decision does not mention Dr.
24 Clancey’s opinion that Plaintiff could perform only sedentary work. Accordingly, the ALJ
25 erred by completely ignoring Dr. Clancey’s opinion. See Garrison, 759 F.3d at 1012-13;
26 Marsh, 792 F.3d at 1172-73. The ALJ’s error is not harmless because it cannot be said that
27 “no reasonable ALJ, when fully crediting [Dr. Clancey’s opinion], could have reached a
28 different disability determination.” Stout v. Comm’r of Soc. Sec., 454 F.3d 1050, 1056 (9th
1 Cir. 2006). The question here is whether any reasonable ALJ, having considered Dr.
2 Clancey’s opinion, could have limited Plaintiff to sedentary work. “If so, then the error cannot
3 be considered harmless and must be corrected by the agency.” Raymond v. Comm’r of Soc.
4 Sec., 2014 WL 5797346, at *4 (E.D. Cal. Nov. 6, 2014). The Court must answer this question
5 in the affirmative.
6
7 Dr. Clancey found that Plaintiff should be limited to sedentary work because she was
8 morbidly obese, with a BMI of 50+. (AR 111.) It is reasonable that an ALJ, having considered
9 opinion evidence discussing the impact of Plaintiff’s obesity on her RFC, could have limited
10 Plaintiff to sedentary work. See, e.g., Barnes v. Berryhill, 895 F.3d 702, 703-04 (9th Cir.
11 2018) (noting that ALJ found morbid obesity to be severe impairment and assessed RFC
12 limiting plaintiff to sedentary work with restrictions); Wedge v. Astrue, 624 F. Supp. 2d 1127,
13 1132 (C.D. Cal. 2008) (stating that plaintiff’s treating physician limited plaintiff to sedentary-
14 to-light work due to his scoliosis and obesity); Hubbard v. Astrue, 2009 WL 723027, at *6
15 (W.D. Wash. Mar. 16, 2009) (affirming ALJ’s evaluation of medical evidence based, in part,
16 on two doctors’ opinions limiting plaintiff to sedentary work in part due to obesity).
17 Accordingly, the ALJ’s failure to properly consider Dr. Clancey’s opinion potentially
18 undermines the ALJ’s RFC determination. Remand for reconsideration of this opinion is
19 warranted.
20
21 C. Plaintiff’s Mental Impairments
22
23 i. The Opinion Evidence
24
25 In April 2015, Kevin Gregg, M.D. reviewed Plaintiff’s mental impairments in
26 connection with the initial disability determination. (AR 93-94.) He found that Plaintiff had:
27 medically determinable impairments in the form of affective disorders; no restriction in
28 activities of daily living; mild difficulties in maintaining social functioning; mild difficulties
1 in maintaining concentration, persistence, or pace; and no repeated episodes of
2 decompensation. (AR 93.) He noted that Plaintiff’s only prescriptions were Celexa and Zoloft
3 for mild depression, which was inconsistent with her allegations of bipolar disorder and
4 schizophrenia and there was no other objective evidence of those conditions. (AR 94.) He
5 concluded that Plaintiff did not have a severe psychiatric impairment. (Id.)
6
7 In October 2015, Philip Kanof, M.D., a board certified psychiatrist, evaluated Plaintiff.
8 (AR 469-72.) No medical records were available for his review. (AR 470.) Dr. Kanof
9 observed that Plaintiff “appeared to be a reliable though somewhat histrionic historian.” (AR
10 469.) He discussed her psychiatric medical history, as relayed to him by her, including that
11 she suffered from mood swings resulting from a diagnosis on the bipolar spectrum; she
12 experienced weeks-long “highs” during which she had elevated moods, could not concentrate,
13 spoke rapidly, and barely slept; followed by months-long “lows,” characterized by depressed
14 mood, and persistent tiredness. (Id.) She endorsed having psychotic symptoms present even
15 during periods between mood swings, including visual and auditory hallucinations. (AR 469-
16 70.) At the time of the evaluation, Plaintiff described experiencing extreme anxiety around
17 people, sometimes resulting in panic attacks precluding her from working. (AR 470.) Her
18 psychotropic medication included Iloperidone, Sertraline, and Trazodone; and she had
19 previously taken other medications for mood stabilization, including lithium and valproic acid.
20 (Id.) In 1992, she was hospitalized for suicidal ideation, and had four prior suicide attempts,
21 most recently in 2003. (Id.) She stated she could dress and bathe herself, but spent most of
22 the day inside where she felt “safe.” (AR 471.) She took care of her service dog, read, watched
23 television, shopped and cooked, paid her own bills, engaged in conversation with her
24 roommates, and spent time with her grandchildren. (Id.)
25
26 Plaintiff’s mental status examination revealed as follows. She was cooperative and
27 maintained good eye contact; she was alert and fully conscious, as well as oriented to person
28 and date; her mood appeared moderately anxious, but she displayed a fair range of affect; and
1 she experienced visual hallucinations much of the time and auditory hallucinations several
2 times a day, with voices telling her to commit suicide. (Id.) Her thoughts appeared to concern
3 her daily activities and her difficulties with anxiety associated with being around others; there
4 was no evidence of delusional thinking; her thought processes were linear; and her insight and
5 judgment were fair. (Id.) Dr. Kanof diagnosed Plaintiff with, inter alia, panic disorder with
6 agoraphobia. (AR 472.) He assessed that she suffered from cyclic mood disturbance,
7 characterized by periods of hypomania and sustained depression on the bipolar spectrum. (Id.)
8 Her mood swings were somewhat stabilized by her medication, but she had persistent
9 psychotic symptoms occurring outside the context of her mood syndrome, likely deriving from
10 a schizoaffective disorder. (Id.) Most of her psychiatric disability came from a concurrent
11 diagnosis of panic disorder with agoraphobia, limiting her ability to interact with others. (Id.)
12 Her ability to understand, remember, and perform instructions was not impaired; to maintain
13 focus and concentration was mildly impaired; to comply with job rules, such as safety and
14 attendance, was moderately impaired; and to respond to work pressure in a usual work setting,
15 and to interact with the public, coworkers, and supervisors were severely impaired. (Id.) Dr.
16 Kanof concluded that Plaintiff’s schizoaffective disorder was reasonably well-controlled, but
17 she had marked symptoms of a panic disorder with agoraphobia. (Id.) He opined that given
18 Plaintiff’s mood disorder with psychotic symptoms and it was likely that she would remain
19 functionally impaired for the foreseeable future. (Id.)
20
21 In November 2015, Plaintiff’s file was reviewed by Alan L. Berkowitz, M.D. in
22 connection with her disability determination on reconsideration. (AR 111-13.) He concluded
23 that she had no limitation in understanding or memory. (AR 111.) He then found that she had
24 some limitation in concentration and persistence, including a moderate limitation in
25 maintaining attention and concentration. (AR 112.) But he found no significant limitation in
26 her ability to carry out short and simple as well as detailed instructions; to perform activities
27 within a schedule, maintain regular attendance, and be punctual within customary tolerances;
28 to sustain an ordinary routine without special supervision; to work in coordination with or in
1 proximity to others without being distracted by them; to make simple work-related decisions;
2 and to complete a normal workday and week without interruptions from psychological
3 symptoms and to perform at a consistent pace without an unreasonable number and length of
4 rest periods. (Id.) Dr. Berkowitz explained that Plaintiff had a significant mood disorder that
5 mildly limited her ability to tolerate work pressure and to maintain concentration throughout
6 the workday and week. (Id.) He then found that Plaintiff had limitations in social interaction
7 due to her panic disorder with agoraphobia—specifically, a moderate limitation in her ability
8 to appropriately interact with the general public; but no significant limitation in her ability to
9 ask simple questions or request assistance, to accept instructions and respond appropriately to
10 criticism from supervisors, to get along with coworkers or peers without distracting them or
11 exhibiting behavioral extremes, or to maintain socially appropriate behavior and to adhere to
12 basic standards to basic standards of neatness and cleanliness. (Id.) Dr. Berkowitz concluded
13 that despite Plaintiff’s allegations of worsening symptoms, her examination revealed only mild
14 impact on concentration and she was capable of non-public work. (AR 113.)
15
16 ii. The ALJ’s Decision
17
18 The ALJ gave little weight to Dr. Kanof’s opinion. (Id.) He reasoned that Dr. Kanof
19 had not reviewed Plaintiff’s mental health records, and it was reasonable to conclude that his
20 assessment was based solely on Plaintiff’s one-time presentation and subjective symptoms.
21 (Id.) The ALJ further reasoned that Plaintiff’s treatment records post-dating Dr. Kanof’s
22 assessment showed that her symptoms were controlled with medication without side effects.
23 (Id.) The ALJ then found that Dr. Berkowitz’s “findings are generally consistent with the
24 available medical record”; however, the ALJ gave Plaintiff “the benefit of doubt that she has
25 moderate limitations related to concentration, persistence, and pace as well.” (AR 21-22.)
26 //
27 //
28 //
1 iii. Analysis
2
3 1. Dr. Kanof
4
5 The ALJ erred in his evaluation of Dr. Kanof’s opinion. He gave three reasons for
6 discounting Dr. Kanof’s opinion: (1) he did not review Plaintiff’s medical records; (2) his
7 evaluation was based on a single examination of Plaintiff and her subjective statements; and
8 (3) the record following Dr. Kanof’s evaluation showed that Plaintiff’s condition was well-
9 managed with medication. As detailed below, these reasons are not legally sufficient and
10 remand for reevaluation of Dr. Kanof’s opinion is warranted.
11
12 a. Failure to Review Record
13
14 As to the ALJ’s first reason—that Dr. Kanof failed to review Plaintiff’s medical
15 records—the Agency does not cite, and the Court is not aware of, any authority holding that
16 an examining physician’s failure to review the existing medical record or to supplement his
17 own examination and observations with additional records is, alone, a specific and legitimate
18 reason to assign less weight to the opinion. See Tania R. v. Comm’r of Soc. Sec., 2020 WL
19 1969989, at *7 (W.D. Wash. Apr. 24, 2020). Accordingly, the Court finds that, absent
20 additional specific and legitimate reasons provided by the ALJ for discounting Dr. Kanof’s
21 opinion, the Court cannot uphold the ALJ’s decision as to that opinion.
22
23 b. Opinion Based on One Examination and Subjective Statements
24
25 As to the ALJ’s second reason, his evaluation of Dr. Kanof’s opinion cannot be upheld
26 on the basis that the opinion was based on a single examination. By definition, an examining
27 doctor such as Dr. Kanof does not have a treating relationship with a claimant and usually only
28 examines the claimant once. 20 C.F.R. § 404.1527. “When considering an examining
1 physician’s opinion . . . it is the quality, not the quantity of the examination that is important.
2 Discrediting an opinion because the examining doctor only saw [Plaintiff] one time would
3 effectively discredit most, if not all, examining doctor opinions.” Yeakey v. Colvin, 2014 WL
4 3767410, at *6 (W.D. Wash. July 31, 2014). Therefore, the ALJ improperly discounted Dr.
5 Kanof’s opinion on the basis that his evaluation was based on a single examination.
6
7 Likewise, the fact that Dr. Kanof’s opinion was based on Plaintiff’s subjective
8 complaints is not a legitimate reason to discount his opinion. An ALJ may reject a physician’s
9 opinion “if it is based ‘to a large extent’ on a claimant’s self-reports that have been properly
10 discounted as incredible.” Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) (quoting
11 Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 602 (9th Cir. 1999)). This situation is
12 distinguishable from one in which the doctor provides his own observations in support of his
13 assessments and opinions. See Ryan v. Comm’r of Soc. Sec. Admin., 528 F.3d 1194, 1199-
14 1200 (9th Cir. 2008). “[W]hen an opinion is not more heavily based on a patient’s self-reports
15 than on clinical observations, there is no evidentiary basis for rejecting the opinion.” Ghanim
16 v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014) (citing Ryan).
17
18 Here, the ALJ has not explained how Dr. Kanof’s opinion is based “to a large extent”
19 on Plaintiff’s subjective complaints. Although Dr. Kanof noted that Plaintiff was a reliable
20 historian (AR 469), he performed a comprehensive mental status examination and assessed
21 findings consistent with Plaintiff’s behavior (AR 471-72). Thus, his opinion appears to be
22 based largely on his own examination findings. Additionally, the Ninth Circuit has noted that
23 “[p]sychiatric evaluations may appear subjective, especially compared to evaluation in other
24 medical fields.” Buck v. Berryhill, 869 F.3d 1040, 1049. “Diagnoses will always depend in
25 part on the patient’s self-report, as well as on the clinician’s observations of the patient. But
26 such is the nature of psychiatry. Thus, the rule allowing an ALJ to reject opinions based on
27 self-reports does not apply in the same manner to opinions regarding mental illness.” Id.
28
1 (internal citations omitted). Therefore, the ALJ’s second reason for discounting Dr. Kanof’s
2 opinion is not specific and legitimate, or supported by substantial evidence.
3
4 c. Plaintiff’s Condition Managed with Medication
5
6 The ALJ’s final reason for assigning little weight to Dr. Kanof’s opinion was that record
7 evidence post-dating that opinion, i.e., after October 2015, shows that Plaintiff’s condition
8 was well-managed with medication without side effects. (AR 21.) Plaintiff argues that the
9 record evidence of her treatment for mental impairments does not support the conclusion that
10 her symptoms were adequately controlled with medication; she further contends that Dr.
11 Kanof’s opinion was consistent with and supported by records from Plaintiff’s treating
12 psychiatrist. (Joint Stip. at 5, 8, 20; see id. at 6-8 (summarizing treating psychiatrist records).)
13
14 The record shows that in May 2013, Plaintiff presented to psychiatrist George
15 Sabounjian, M.D. with a long history of bipolar disorder and present symptoms of months-
16 long depression, including feelings of hopelessness, tearfulness, and anxiety; tiredness;
17 paranoia; and decreased focus and concentration. (AR 337.) She took, inter alia, Celexa and
18 Abilify “on and off,” which somewhat helped, especially when very stressed. (AR 338.)
19 Based on a mental status examination, Dr. Sabounjian diagnosed Plaintiff with bipolar I
20 disorder, with a recent episode of depression with psychotic features. (AR 341.) In January
21 and May 2014, Dr. Sabounjian noted that Plaintiff was taking Celexa and Fanapt; medication
22 adherence resulted in improvement and control of symptoms, with mild physical side effects.
23 (AR 344-46.) However, in September 2014, Plaintiff presented with panic attacks and
24 agoraphobia, which prevented her from leaving the house. (AR 343.) She reported that Celexa
25 was not helping, but Fanapt seemed to help with paranoia and auditory hallucinations. (Id.)
26 Dr. Sabounjian noted good adherence to medications, but her mental status was anxious, tense,
27 apprehensive, and a bit paranoid. (Id.) He prescribed Plaintiff Zoloft, took her off Celexa,
28 and maintained the Fanapt. (Id.)
1 In December 2014, Plaintiff reported some relief with Zoloft for anxiety and panic; but
2 because she ran out of Fanapt, she experienced paranoia, avoidant behavior, feelings of
3 withdrawal, and poor sleep. (AR 342.) Dr. Sabounjian noted good medication adherence and
4 her mental status was anxious and guarded. (Id.) In March 2015, Plaintiff’s condition was
5 stable on Fanapt, but because she had difficulty obtaining it, she still experienced some
6 auditory hallucinations. (AR 446.) Dr. Sabounjian noted that Plaintiff’s medication adherence
7 was good, but her mental status included delusions and hallucinations. (Id.) He switched
8 Plaintiff from Fanapt to Invega. (Id.) One week later, Plaintiff presented with paranoia,
9 hallucinations, poor sleep, and nightmares. (AR 444.) Dr. Sabounjian found good medication
10 adherence and her mental status was anxious, tense, and hypervigilant; he increased her dosage
11 of Invega. (Id.) In April 2015, Plaintiff resumed Fanapt, which caused subsiding
12 hallucinations and nightmares, but she still struggled with sleep. (AR 442.) Dr. Sabounjian
13 noted good medication adherence, but her mental status was anxious with some paranoia. (Id.)
14 He increased her Fanapt dosage. (Id.) In July 2015, three weeks after witnessing a traumatic
15 event, Plaintiff experienced exacerbating symptoms, including anxiety, fearfulness, terror,
16 hypervigilance, avoidance, and lack of sleep. (AR 441.) Dr. Sabounjian noted that she was
17 socially isolative and could not appropriately function in public. (Id.) Her adherence to
18 medication was good; Dr. Sabounjian prescribed Trazodone, an antidepressant. (Id.)
19
20 In October 2015, the month of Dr. Kanof’s evaluation, Plaintiff reported that she stopped
21 taking Fanapt for a few days because she was ill; consequently, she experienced intensified
22 fear, paranoia, and anxiety. (AR 490.) Once she resumed her medication, her symptoms
23 subsided, but she mostly stayed home and only left the house with her service dog. (Id.) Dr.
24 Sabounjian noted that her medication adherence was good, but her mental status was anxious,
25 tense, and hypervigilant. (Id.) He refilled her prescriptions. (Id.) In March 2016, Plaintiff
26 noted that because she had run out of Fanapt, her auditory hallucinations returned, she was
27 anxious, irritable, restless, and emotional. (Id.) Adherence to medication was fair; her mental
28 status was anxious and tense; and Dr. Sabounjian refilled her medications. (Id.) By July 2016,
1 Plaintiff’s adherence to medication was again good, but she reported more anxiety and panic
2 with poor sleep, persistent paranoia, fear, hypervigilance, and occasional hallucinations. (AR
3 491.) Her mental status was anxious, tense, and paranoid; and Dr. Sabounjian increased her
4 dosages of Zoloft and Trazodone. (Id.) In October 2016, despite good medication adherence,
5 Plaintiff still had episodes of fear, anxiety, and “feeling of jumping out of her skins,” but her
6 hallucinations were “infrequent.” (AR 492.) Her mental status was paranoid, anxious, and
7 tense. (Id.) Dr. Sabounjian switched her from Fanapt to Rexulti. (Id.) Two weeks later,
8 Plaintiff experienced improvement in her symptoms, including more energy, less paranoia,
9 greater desire to be social when outside, and decreased feeling of being sedated. (AR 493.)
10 Dr. Sabounjian decreased her Zoloft dosage, but increased Rexulti. (Id.)
11
12 In November 2016, Dr. Sabounjian slightly adjusted Plaintiff’s medications and noted
13 that her adherence to medication and mental status were good. (AR 493-94.) In addition to
14 her existing medication regimen, she was prescribed Topamax for weight loss. (AR 494.) In
15 February 2017, Plaintiff’s condition remained stable, with no significant adverse symptoms.
16 (Id.) However, in May 2017, Plaintiff experienced external stressors and requested an increase
17 in the dosage of her medication. (AR 496.) Dr. Sabounjian noted that her mental status was
18 depressed, sad, and tearful at times; and her adherence to medication was good. (Id.) He
19 increased her dosages of Zoloft and Topamax. (Id.) In August 2017, Dr. Sabounjian noted
20 that “although [Plaintiff] derive[d] benefits from her med[ication]s, she is increasingly more
21 isolated” due to the life stressors. (AR 498.) He noted that her adherence to medication was
22 good, her mental status was sad and tearful, and he continued her medications. (Id.)
23
24 Based on the foregoing record evidence, the Court concludes that the record does not
25 support the conclusion that Plaintiff’s symptoms were well-managed by medication. In the
26 period following Dr. Kanof’s opinion, Dr. Sabounjian consistently noted that despite good
27 medication adherence, Plaintiff had persistent adverse symptoms. (See, e.g., AR 490 (October
28 2015 feelings of anxiety, tension, and hypervigilance), 491 (July 2016 increased anxiety and
1 panic, poor sleep, persistent paranoia, fear, hypervigilance, and hallucinations), 492 (October
2 2016 episodes of fear, anxiety, restlessness, paranoia, tension), 496 (May 2017 depression,
3 sad, tearful affect), 498 (August 2017 feelings of isolation, tearfulness).) During this period,
4 Plaintiff also experienced periods of symptoms stability and improvement. (AR 493-94.) But
5 the record clearly shows that Plaintiff’s mental impairments manifested in fluctuating periods
6 of severity, such that her symptoms were well-controlled at times, but poorly controlled at
7 other times. Zeitler v. Berryhill, 2017 WL 4150978, at *6 (N.D. Cal. Sept. 19, 2017). Despite
8 periodic improvement in response to medication, the fact that Plaintiff continued to experience
9 adverse symptoms, often requiring changes to her medication regimen, indicates a pattern that
10 does not support the ALJ’s characterization of Plaintiff’s condition as well-controlled by
11 medications. See La Paz v. Colvin, 2016 WL 4943810, at *7 n.15 (E.D. Cal. Sept. 16, 2016).
12 Accordingly, the ALJ’s assessment is not supported by substantial record evidence and remand
13 is appropriate for reevaluation of Dr. Kanof’s opinion.

14
2. Dr. Berkowitz
15

16
The ALJ credited the opinion of Dr. Berkowitz, finding it generally consistent with the
17
medical record; but he gave Plaintiff “the benefit of doubt that she ha[d] moderate limitations
18
related to concentration, persistence, and pace as well.” (AR 21-22.) Plaintiff contends the
19
ALJ erred in crediting Dr. Berkowitz’s opinion because Dr. Sabounjian’s progress notes
20
“document ongoing significant symptoms of anxiety, agoraphobia, and symptoms relating to
21
difficulty interaction appropriately with others which are consistent with and supportive of the
22
more restrictive findings of Dr. Kanof.” (Joint Stip. at 10-11.) The Court concludes that the
23
ALJ did not err in this regard. Dr. Sabounjian’s records do not reveal symptoms that were
24
more indicative of seriously disabling mental impairment than Dr. Berkowitz’s opinion. True,
25
Dr. Sabounjian consistently noted that Plaintiff had symptoms of anxiety, agoraphobia, and
26
limitations in social interaction. But Dr. Berkowitz also opined that Plaintiff had limitations
27
in her social interaction due to a panic disorder and agoraphobia and it was reasonable for the
28
1 ALJ to conclude that the limitations Dr. Berkowitz opined were consistent with a record
2 documenting Plaintiff’s history of anxiety. The two doctors’ findings do not appear
3 inconsistent and to the extent Plaintiff disagrees with this conclusion, the ALJ is the final
4 arbiter with respect to resolving ambiguities in the record. See Andrews, 53 F.2d at 1039-40.
5 Accordingly, the ALJ’s did not err in evaluating Dr. Berkowitz’s opinion.
6
7 In sum, the ALJ erred in his evaluations of the opinions of Drs. Clancey and Kanof, and
8 remand is warranted for reevaluation of those opinions. On remand, the ALJ shall not be
9 precluded from reexamining all of the relevant opinion evidence in this case.
10
11 II. The ALJ’s Evaluation of Plaintiff’s Subjective Statements
12
13 A. Legal Standard
14
15 An ALJ must make two findings before discounting a claimant’s statements regarding
16 the severity and persistence of her symptoms. See Treichler v. Comm’r of Soc. Sec., 775 F.3d
17 1090, 1102 (9th Cir. 2014). “First, the ALJ must determine whether the claimant has presented
18 objective medical evidence of an underlying impairment which could reasonably be expected
19 to produce the pain or other symptoms alleged.” Id. (quotation omitted). “Second, if the
20 claimant has produced that evidence, and the ALJ has not determined that the claimant is
21 malingering, the ALJ must provide specific, clear and convincing reasons for rejecting the
22 claimant’s testimony regarding the severity of the claimant’s symptoms” and those reasons
23 must be supported by substantial evidence in the record. Id.; Carmickle v. Commissioner, 533
24 F.3d 1155, 1161 (9th Cir. 2008) (providing that court must determine “whether the ALJ’s
25 adverse credibility finding . . . is supported by substantial evidence under the clear and
26 convincing standard”).
27 //
28 //
1 In March 2016, the Commissioner promulgated SSR 16-3p, which “makes clear what
2 [Ninth Circuit] precedent already required: that assessments of an individual’s testimony by
3 an ALJ are designed to ‘evaluate the intensity and persistence of symptoms’ . . . and not to
4 delve into wide ranging scrutiny of the claimant’s character and apparent truthfulness.”
5 Trevizo, 871 F.3d at 678 n.5. Under SSR 16-3p, the ALJ shall determine whether to credit a
6 claimant’s statements about her pain and limitations by referring to the factors set forth in 20
7 C.F.R. § 404.1529(c)(3), which include: the claimant’s daily activities; the factors that
8 precipitate and aggravate the symptoms; the type, dosage, effectiveness, and side effects of
9 any medication taken to alleviate the symptoms; the claimant’s treatment, other than
10 medication, for the symptoms; any other measure that the individual uses to relieve pain or
11 other symptoms; and, finally, “any other factors concerning an individual’s functional
12 imitations and restrictions.” SSR 16-3p. However, longstanding Ninth Circuit precedent
13 prohibits the Commissioner from rejecting subjective pain statements on the sole ground that
14 they are not fully corroborated by objective medical evidence. Rollins v. Massanari, 261 F.3d
15 853, 857 (9th Cir. 2001).
16
17 B. Plaintiff’s Subjective Statements
18
19 In August 2015, Plaintiff completed an Adult Function Report. (AR 229-35.) She
20 described her daily activities as waking up, feeding her dog, using the bathroom, laying down,
21 getting up when her roommate came home, eating dinner, and going to bed. (AR 229.) She
22 took care of, and played and watched movies with her grandchildren. (Id.) She also walked
23 and cared for her dog. (Id.) Her roommate and another friend assist her with these activities.
24 (Id.) Plaintiff used to be able to tolerate people, keep a job, and focus for longer than three
25 minutes. (Id.) She needed reminders to bathe, to care for her hair, with personal grooming,
26 and to take her medicine; assistance cleaning herself after using the bathroom; and someone
27 nearby while she showered in case she lost her balance. (AR 229-30.) She prepared meals
28
1 for herself every other day with some assistance, as long as she was not depressed. (AR 230.)
2 She cleaned and did laundry weekly with assistance and reminders. (Id.)
3
4 She feared going outside alone and hyperventilated when she did so. (AR 231.) She
5 drove and shopped in stores for groceries and personal items. (Id.) She went to the store once
6 per month for up to two hours and occasionally got lost in the store. (Id.) She could pay bills,
7 count change, and use money orders, but could not handle a savings account. (Id.) Her
8 hobbies included watching television, crocheting, and being with her grandchildren and dog.
9 (AR 232.) She could watch television and shop with other people. (Id.) She needed reminders
10 to go to the grocery store and to doctors’ appointments, and could not go unaccompanied. (Id.)
11 She had trouble getting along with her son and limited her social interaction in order to feel
12 safe. (AR 233.) She could only walk a few blocks without stopping, stand still for up to 20
13 minutes, and could not climb stairs without taking a break. (Id.) She could pay attention for
14 five minutes. (Id.) She could follow written instructions. (Id.) She did not have issues getting
15 along with authority figures. (AR 234.) She was once terminated from a job because she lost
16 her temper with a customer, and she poorly handled stress and changes in routine. (Id.) She
17 experienced facial twitches and sometimes talked to herself or to people who were not there.
18 (Id.) She used a cane to ambulate. (Id.)
19
20 In October 2017, Plaintiff testified at the hearing before the ALJ. She explained that
21 she could not work because she got nervous around people, hyperventilated, and became “sick
22 to [her] stomach”; although, she could handle being around small groups (AR 43.) She
23 experienced manic episodes, during which she could not focus for days or complete tasks.
24 (AR 43-44.) She also experienced frequent “extreme lows,” when she could not get out of
25 bed all day for one to two weeks per month. (AR 45-46.) On these days, she was bedridden
26 all day (including the day before the hearing) and would either eat too much or not eat due to
27 anxiety. (AR 46, 55-56, 62.) She had good days and bad days. (AR 46, 61-62.) She took
28
1 various medications to treat her mental symptoms, which were “sometimes” effective, but she
2 experienced side effects, including diarrhea. (AR 50-52, 62-63.)
3
4 Plaintiff had a roommate who assisted her; she used to have another roommate, who
5 moved out because she could not handle Plaintiff’s mood swings. (AR 44, 59-60.) Plaintiff
6 needed reminders to maintain her personal hygiene and shower. (AR 55, 65.) She microwaved
7 meals to feed herself. (Id.) On good days, she brushed her teeth, fed and walked her dog a
8 quarter of a block, straightened piles in her room, watched television, napped, microwaved
9 food, and read. (AR 56-58.) She generally did not require assistance managing her finances,
10 but sometimes she needed a reminder to pay her phone bill. (AR 65.) She spent time with her
11 grandchildren at home while accompanied by another person, and she did not take them
12 elsewhere. (AR 60-61.) She had trouble getting along with her son. (AR 66.) She had trouble
13 following instructions, and simple instructions had to be read to her. (Id.) She once lost a job
14 because she lost her temper with a customer; additionally, she did not socialize well and
15 became irritable. (AR 67-68.)
16
17 As to her physical limitations, she could not stand for a long time (more than 30
18 minutes) or walk long distances (more than a half a block). (AR 46-47, 52-53.) She walked
19 at the grocery store aided by a cart, but did not go to large stores because there were too many
20 people. (AR 53, 64-65.) She experienced pain in her feet, which she described as “stabbing,”
21 and ranked an 8 out of 10 as to its severity, going up to 10 if she stood for a long time. (AR
22 47.) She used a cane to keep balance and often had balance issues due to foot problems. (AR
23 48, 69-70.) She experienced difficulty bending, stooping, and squatting, but could tie her
24 shoes, reach under a cabinet, open doors, and open jars. (AR 53-54.) She went to doctors
25 every three months. (AR 49.) She used an inhaler for asthma, along with a CPAP machine
26 while she slept. (AR 51-52, 70.) She could lift a 10 pound bag, but had trouble with heavier
27 items. (AR 54.) She had no limitations sitting. (Id.) She had problems ascending and
28 descending stairs and became short of breath when she climbed stairs. (AR 70-71.)
1 C. The ALJ’s Assessment of Plaintiff’s Subjective Statements
2
3 Applying the two-step procedure, the ALJ found that Plaintiff’s medically determinable
4 impairments could reasonably be expected to cause her alleged symptoms. (AR 19.) The ALJ
5 then found that Plaintiff’s statements concerning the intensity, persistence, and limiting effects
6 of the alleged symptoms were not entirely consistent with the medical evidence and other
7 record evidence, reasoning as follows. (Id.) First, Dr. Afra’s findings concerning Plaintiff’s
8 physical impairments did not support the degree of limitation she alleged or suggest the
9 presence of any impairment more limiting than discussed by the ALJ. (AR 20.) Additionally,
10 Plaintiff’s allegation that she was bedridden for half of each month was not substantiated by
11 any record evidence. (Id.) Second, the record showed that Plaintiff’s symptoms were mostly
12 controlled with medication compliance. (AR 20-21.) Third, Plaintiff’s daily activities were
13 not limited to the extent one with expect considering Plaintiff’s subjective complaints of
14 disabling symptoms. (AR 21.)
15
16 D. Analysis
17
18 Plaintiff argues that the ALJ failed to provide specific, clear, and convincing reasons
19 supported by substantial evidence for rejecting Plaintiff’s subjective statements. Specifically,
20 the ALJ was not permitted to discount her statements about being bedridden solely based on
21 those statements’ lack of substantiation by the objective medical evidence; he failed to
22 articulate how Plaintiff’s daily activities translated to her ability to perform basic work
23 activities; and his conclusion that Plaintiff’s symptoms were well-controlled with medication
24 is inconsistent with Dr. Sabounjian’s records documenting persistent symptoms despite
25 medication adherence. (Joint Stip. at 26-27, 32-33.)
26
27 Plaintiff’s first two arguments are meritless. Plaintiff is correct that in evaluating a
28 claimant’s credibility “after a claimant produces objective medical evidence of an underlying
1 impairment, an ALJ may not reject a claimant’s subjective complaints based solely on a lack
2 of medical evidence to fully corroborate the alleged severity” of the alleged symptoms. Burch,
3 400 F.3d at 680; Rollins, 261 F.3d at 857; see 20 C.F.R. § 1529(c)(2) (“[W]e will not reject
4 your statements about the intensity and persistence of your pain or other symptoms or about
5 the effect your symptoms have on your ability to work solely because the available objective
6 medical evidence does not substantiate your statements.”). Here though, the ALJ did not reject
7 Plaintiff’s testimony only because her statements were not substantiated by objective evidence.
8 He also rejected Plaintiff’s subjective statements (including the statements about being
9 bedridden) as inconsistent with Plaintiff’s activities of daily living. (AR 21.) These are
10 specific and legitimate reasons for discrediting a claimant’s subjective statements. See 20
11 C.F.R. § 404.1529(c)(2) (“Objective medical evidence . . . is a useful indicator to assist us in
12 making reasonable conclusions about the intensity and persistence of your symptoms.”);
13 Rollins, 261 F.3d at 857 (“While subjective pain testimony cannot be rejected on the sole
14 ground that it is not fully corroborated by objective medical evidence, the medical evidence is
15 still a relevant factor in determining the severity of the claimant’s pain and its disabling
16 effects.”); Reddick, 157 F.3d at 722 (holding that daily activities inconsistent with claimant’s
17 self-described level of pain is a valid reason for an adverse credibility finding).
18
19 The ALJ’s conclusion that Plaintiff’s statements about being bedridden are inconsistent
20 with objective evidence is also supported by substantial evidence. The record contains no
21 objective evidence supporting the inference that Plaintiff’s condition necessitated or resulted
22 in confinement to her bed for any duration, much less the duration to which she testified. The
23 ALJ’s conclusion that Plaintiff’s activities of daily living were inconsistent with statements
24 about her symptoms is also supported by substantial evidence. Plaintiff’s daily activities bear
25 on her credibility if the level of activity is inconsistent with her claimed limitations. See
26 Reddick, 157 F.3d at 722. Thus, an ALJ may rely on a plaintiff’s daily activities to support an
27 adverse credibility determination only when those activities either “contradict [the plaintiff’s]
28 other testimony,” or “meet the threshold for transferable work skills”; i.e., where she “is able
1 to spend a substantial part of . . . her day performing household chores or other activities that
2 are transferable to a work setting.” Orn, 495 F.3d at 639; Smolen v. Chater, 80 F.3d 1273,
3 1284 n. 7 (9th Cir. 1996). However, a claimant need not be “utterly incapacitated to be eligible
4 for benefits, and many home activities may not be easily transferable to a work environment
5 where it might be impossible to rest periodically or take medication.” Id.; see Fair v. Bowen,
6 885 F.2d 597, 603 (9th Cir. 1989). The Ninth Circuit has “repeatedly asserted that the mere
7 fact that a plaintiff has carried on certain daily activities, such as grocery shopping, driving a
8 car, or limited walking for exercise, does not in any way detract from her credibility as to her
9 overall disability.” Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001).
10
11 Contrary to Plaintiff’s contention, the ALJ need not articulate how Plaintiff’s activities
12 of daily living are transferable to a work setting so long as those activities contradict Plaintiff’s
13 other testimony. Orn, 495 F.3d at 639. Here, the ALJ specified which of Plaintiff’s daily
14 activities were inconsistent with the degree of limitation she alleged; specifically, Plaintiff
15 described to Dr. Kanof that she could dress and bathe herself, take care of her dog, do her own
16 shopping and cooking, pay her own bills, socialize with two roommates, and spend time with
17 her grandchildren. (AR 21 (citing AR 471).) The ALJ also noted that Plaintiff had attended
18 college through 2013, which undermined her allegations of anxiety around others and
19 difficulties concentrating. (Id. (citing AR 334-50).) The ALJ properly identified these
20 activities as inconsistent with Plaintiff’s assertions about the severity of her limitations.
21 Plaintiff also regularly went to doctors’ appointments, shopped for groceries, and took her dog
22 outside several times a day—all activities that are inconsistent with her statements about being
23 bedridden. In addition, her daily activities are inconsistent with statements about her inability
24 to focus. Although Plaintiff stated that she could not focus for long time and had trouble
25 completing tasks (see, e.g., AR 43-44, 229), she testified that she periodically went into the
26 community to shop for groceries and personal items, activities that require a greater degree of
27 focus than what she has alleged. In order to effectively shop for groceries, Plaintiff must have
28 the ability to identify what items she needs, go to a store, remember the items she needed,
1 locate them among hundreds of other products, purchase them using currency or electronic
2 payment means and bring them home. Accordingly, the ALJ properly determined that, to the
3 extent Plaintiff alleged that she experienced disabling symptoms, her self-reported activities
4 of daily living render her allegations less than fully credible.7
5
6 As to Plaintiff’s third argument, the Court agrees that the final reason provided by the
7 ALJ for discounting Plaintiff’s testimony—that her condition was adequately controlled with
8 medication—is not supported by substantial evidence. As discussed supra, Dr. Sabounjian’s
9 notes reveal that Plaintiff experienced persistent adverse symptoms despite good adherence to
10 her medication regimen. (See, e.g., AR 490-92, 496, 498.) However, because the ALJ
11 provided additional legitimate reasons for his adverse credibility determination, remand for
12 reconsideration of Plaintiff’s subjective statements is not warranted.
13
14 III. The ALJ’s Evaluation of Lay Witness Statements
15
16 A. Legal Standard
17
18 “In determining whether a claimant is disabled, an ALJ must consider lay witness
19 testimony concerning a claimant’s ability to work.” Stout, 454 F.3d at 1053. Indeed, an ALJ
20 is “required to consider and comment upon competent lay testimony, as it concern[s] how [a
21 claimant’s] impairments impact his ability to work.” Bruce v. Astrue, 557 F.3d 1113, 1115-
22 16 (9th Cir. 2009). Such testimony “cannot be disregarded without comment.” Nguyen v.
23 Chater, 100 F.3d 1462, 1467 (9th Cir. 1996) (emphasis omitted); see also Taylor v. Comm’r
24 of Soc. Sec. Admin., 659 F.3d 1228, 1234 (9th Cir. 2011) (recognizing that an ALJ must
25 “provide specific, germane reasons for discounting lay witness testimony”).
26
7 Even if the ALJ erred by discounting Plaintiff’s statements about her ability to focus and concentrate based on
27
those statements’ inconsistency with Plaintiff’s activities of daily living, any such error is harmless because, in his RFC
assessment, the ALJ gave Plaintiff “the benefit of doubt that she has moderate limitations related to concentration,
28
persistence, and pace as well.” (AR 21-22.)
1 B. The Lay Witness Statement
2
3 In October 2015, Victoria Elmer, Plaintiff’s roommate of 10 years completed a Third
4 Party Function report in connection with Plaintiff’s SSI application, stating as follows. (AR
5 238-45.) Plaintiff could not go outside by herself, be in large crowds, or walk far distances on
6 her own. (AR 238.) Her daily activities included waking up, using the restroom, getting
7 dressed, resting until someone came home, having dinner, and going to bed. (AR 239.) She
8 played with, watched television and movies with, and bathed her grandchildren. (Id.) She
9 took her dog to the restroom with her, fed him, and gave him water; she received assistance
10 from Elmer and another friend with taking the dog outside, grooming, and bathing him. (Id.)
11 Before Plaintiff’s illnesses, she was able to walk in large groups of people without anxiety,
12 and she had a job. (Id.) She had trouble breathing while she slept and needed to use a CPAP
13 machine for assistance. (Id.)
14
15 Elmer testified that Plaintiff required assistance keeping balance while bathing, and
16 cleaning herself after using the restroom. (Id.) She needed reminders to take care of her
17 grooming and personal needs, and to take her medicine. (AR 240.) She prepared her own
18 meals every other day. (Id.) She cleaned and did laundry, each of which took a few hours,
19 and needed encouragement to do those chores. (Id.) She went outside almost every day with
20 her dog. (AR 241.) She could not go outside alone because she had anxiety attacks around
21 other people and crowds. (Id.) She could drive and shop in stores for groceries and household
22 products on a monthly basis, but needed a reminder to go grocery shopping. (AR 241-42.) In
23 general, she could manage her finances, but she could not handle a savings account. (AR 241.)
24
25 Plaintiff enjoyed watching television and movies, crocheting, and spending time with
26 her dog and grandchildren. (AR 242.) She had trouble getting along with her son, and could
27 not handle crowds or new people without feeling anxiety. (AR 243.) She could not stand for
28 more than 20 minutes or walk for a few blocks before resting. (Id.) She needed reminders to
1 complete tasks and was told things multiple times; she could pay attention for 5 to 10 minutes.
2 (Id.) She could finish tasks, but could not follow written instructions very well, and needed
3 reminders relating to oral instructions. (Id.) She got along “fine” with authority figures. (AR
4 244.) She had lost her temper with a customer at her prior job. (Id.) She could not handle
5 stress or changes in routine. (Id.) She sometimes experienced facial and body twitches, and
6 talked to herself or someone who was not there. (Id.) She used a cane to ambulate. (Id.)
7
8 C. The ALJ’s Decision
9
10 The ALJ stated that he considered Elmer’s statements, including the nature and extent
11 of the relationship, whether the statement was consistent with other evidence, and other factors
12 that tended to support or refute the evidence. (AR 22.) He noted that while Elmer was not an
13 acceptable medical source, he still considered her statement to help determine the severity of
14 Plaintiff’s impairments and their effects on Plaintiff’s abilities. (Id.) He gave Elmer’s
15 statement little weight and found it unpersuasive because it was a lay opinion based on casual
16 observation, rather than objective medical evidence; and it was potentially influenced by
17 loyalties of friendship, and was not outweighed by the accumulated medical evidence
18 regarding the extent to which Plaintiff’s impairments limit her functional ability. (Id.)
19
20 D. Analysis
21
22 Plaintiff contends that the ALJ failed to consider or provide reasons germane to Elmer
23 for discounting her statements. (Joint Stip. at 33-34.) The Court disagrees. At the very least,
24 the ALJ’s discussion makes clear that he did consider Elmer’s statements. (AR 22.)
25 Additionally, he provided at least one reason germane to her for doubting her credibility. See
26 Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 1993) (holding that an ALJ must consider lay
27 witness testimony, but may discount that testimony by providing “reasons that are germane to
28 each witness”). The first reason the ALJ provided for discounting Elmer’s statement is not
1 germane to her, as every lay witness statement is, by definition, a lay opinion based on casual
2 observation rather than medical evidence. However, the second reason provided by the ALJ
3 is germane to Elmer. An ALJ may discount lay witness statements where the witness and the
4 claimant had a “close relationship” such that the witness “was possibly influenced by her
5 desire to help” the claimant. Greger v. Barnhart, 464 F.3d 968, 972 (9th Cir. 2006). Here, it
6 is undisputed that Plaintiff and Elmer were roommates for ten years, they had a close
7 relationship, and Elmer assisted Plaintiff with her daily activities. Thus, it is entirely plausible
8 that Elmer’s statements may have been influenced by her desire to help Plaintiff.
9
10 Because the Court finds that the ALJ provided at least one reason germane to Elmer for
11 discounting her lay witness opinion, the Court need not determine whether the final reason
12 provided by the ALJ for discounting that opinion, i.e., the fact that it was not outweighed by
13 the accumulated medical evidence about Plaintiff’s functional ability, is also germane to her.
14 Remand for reevaluation of Elmer’s statements is not warranted.
15
16 IV. The ALJ’s RFC Assessment (and Consideration of Plaintiff’s Obesity)
17
18 A claimant’s RFC represents the most a claimant can do despite his or her limitations.
19 20 C.F.R. § 416.945(a)(1); Reddick, 157 F.3d at 724; Smolen, 80 F.3d at 1291. The ALJ’s
20 RFC determination “must set out all the limitations and restrictions of the particular claimant.”
21 Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009) (emphasis in
22 original). The ALJ is responsible for determining credibility and resolving conflicts in medical
23 testimony. Reddick, 157 F.3d at 722. An ALJ can satisfy the specific and legitimate reasons
24 standard by “setting out a detailed and thorough summary of the facts and conflicting clinical
25 evidence, stating his interpretations thereof, and making findings.” Orn, 495 F.3d at 632; see
26 20 C.F.R. § 416.945(a)(3) (stating that Commissioner will assess RFC “based on all of the
27 relevant medical and other evidence”). In evaluating the impact of obesity on a claimant’s
28 RFC, the ALJ’s assessment “must consider an individual’s maximum remaining ability to do
1 sustained work activities in an ordinary work setting on a regular and continuing basis.”
2 Burch, 400 F.3d at 683. As with other impairments, the ALJ should explain how he
3 determined whether obesity caused any physical or mental impairments. See SSR 02-1p, 2002
4 WL 34686281 (S.S.A. 2002).
5
6 Plaintiff argues that the ALJ erred in formulating an RFC that was not supported by the
7 record as a whole for two reasons. First, Plaintiff reiterates that the ALJ erred in his evaluation
8 of most of the opinion evidence. (Joint Stip. at 36, 38, 40-41.) For the reasons described in
9 section I, supra, the ALJ did not err in evaluating most of the opinion evidence, with the
10 exception of the opinions of Drs. Kanof and Clancey. Accordingly, as discussed above,
11 remand for reconsideration of those opinions is warranted.
12
13 Plaintiff’s second argument is that the ALJ erred by failing to consider the combined
14 effect of Plaintiff’s impairments, including her obesity, in formulating the RFC assessment.
15 (Id. at 36-39.) Here, the Court agrees that the ALJ erred by failing to discuss the impact of
16 Plaintiff’s obesity in the RFC assessment. At the hearing, Plaintiff testified that she was obese
17 and her attorney confirmed that her physical impairments were exacerbated by her weight.
18 (AR 32-33, 38.) Plaintiff’s obesity is also well-documented in the record. (See, e.g., AR 88,
19 101, 206 (noting she was 5’3” and 310 pounds); 292-93, 296, 299, 302, 304, 306, 311, 314,
20 320, 354, 359, 363, 369, 372, 379, 381, 384 (noting she was morbidly obese with BMI between
21 50 and 59.9); 308, 374, 379, 413, 425, 444 (noting she was between 278 and 290 pounds); 479
22 (noting that Plaintiff was 5’2.5” and 305 pounds, with a BMI of 35.8).)
23
24 The ALJ found obesity to be a severe impairment and noted that “the combined effects
25 of obesity with another impairment, particularly a musculoskeletal, cardiac, or respiratory
26 impairment, can be greater than the effects of each of the impairments considered separately
27 (SSR 02-01p). [Plaintiff’s] obesity therefore is considered in conjunction with the other severe
28 impairments.” (AR 17.) The ALJ also noted that some of Plaintiff’s doctors found that she
1 was obese. (See AR 19.) However, those statements are not accompanied by meaningful
2 analysis. The ALJ does not explain how Plaintiff’s obesity impacts her other impairments or
3 why he does not factor Plaintiff’s obesity in her RFC assessment.8 See Celaya v. Halter, 332
4 F.3d 1177, 1182 (9th Cir. 2003) (holding that the ALJ erred in not considering obesity in
5 sequential analysis when obesity “was a condition that could exacerbate her reported illness”);
6 Ramirez v. Berryhill, Case No. SACV 17-417-KS, 2018 WL 2392155, at *11 (C.D. Cal. May
7 25, 2018); see also SSR 02-1p.
8
9 Given the well-established correlation between obesity and diabetes and asthma (from
10 which Plaintiff suffers), “the ALJ’s failure to address obesity as a severe impairment in
11 combination with Plaintiff’s other impairments is legal error that is not harmless.” Ramirez,
12 2018 WL 2392155, at *11. Accordingly, remand is warranted on this issue. The Court’s
13 determination that the ALJ erred is not a finding that the ALJ must necessarily so find on
14 remand, only that the ALJ must evaluate the record more closely with respect to Plaintiff’s
15 obesity and if the ALJ elects to disregard obesity in the sequential evaluation, must articulate
16 legally sufficient reasons supported by substantial evidence for doing so. See id.
17
18 V. Remand For Further Administrative Proceedings Is Warranted
19
20 In light of the foregoing, the Court finds that ALJ erred in his: (1) evaluation of the
21 opinions of Drs. Kanof and Clancey; and (2) failure to properly consider the impact of
22 Plaintiff’s obesity on the RFC assessment. The decision whether to remand for further
23 proceedings or order an immediate award of benefits is within the district court’s discretion.
24 Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000). A district court may remand for an
25
8 The Court notes that the ALJ’s failure cannot be explained by the fact that the record does not support the
26
conclusion that no doctor placed limitations on Plaintiff solely due to her obesity, because Dr. Clancey limited Plaintiff to
sedentary work due to her obesity. (AR 111.) But even if the ALJ’s failure can be explained ex post by the fact that there
27
is no record evidence that any doctor placed limitations or restrictions on Plaintiff’s activities based solely on her obesity,
this is insufficient. See Ramirez, 2018 WL 2392155, at *11. The Court may only review the reasons stated by the ALJ in
28
his decision “and may not affirm the ALJ on a ground upon which he did not rely.” Orn, F.3d at 630.
1 award of benefits when the following three conditions are satisfied: “(1) the record has been
2 fully developed and further administrative proceedings would serve no useful purpose; (2) the
3 ALJ has failed to provide legally sufficient reasons for rejecting evidence, whether claimant
4 testimony or medical opinion; and (3) if the improperly discredited evidence were credited as
5 true, the ALJ would be required to find the claimant disabled on remand.” Garrison, 759 F.3d
6 at 1020. The third of these conditions “incorporates . . . a distinct requirement of the credit-
7 as-true rule, namely that there are no outstanding issues that must be resolved before a
8 determination of disability can be made.” Id. at 1020, n.26. However, even if those three
9 requirements are met, the Court retains “flexibility” to determine the appropriate remedy and
10 may remand for further proceedings “when the record as a whole creates serious doubt as to
11 whether the claimant is, in fact, disabled within the meaning of the Social Security Act.”
12 Burrell v. Colvin, 775 F.3d 1133, 1141 (9th Cir. 2014) (quoting Garrison, 759 F.3d at 1021).
13
14 Here, the Court cannot say that further administrative proceedings would serve no useful
15 purpose and, if the improperly discredited evidence were credited as true, the ALJ would be
16 required to find Plaintiff disabled on remand. See Garrison, 759 F.3d at 1020. This case,
17 then, is not the “rare exception” in which the credit as true rule should be applied and the
18 matter remanded for the calculation and award of benefits. See Leon v. Berryhill, 880 F.3d
19 1141, 1145 (9th Cir. 2017). Therefore, the Court remands for further administrative
20 proceedings consistent with this Order. Upon remand, the ALJ is not precluded from
21 reassessing any evidence.
22
23 CONCLUSION
24
25 Accordingly, for the reasons stated above, IT IS ORDERED that the decision of the
26 Commissioner is REVERSED AND REMANDED for further administrative proceedings
27 consistent with this Memorandum Opinion and Order.
28 //
1 IT IS FURTHER ORDERED that the Clerk of the Court shall serve copies of this
2 || Memorandum Opinion and Order and the Judgment on counsel for Plaintiff and counsel for
3 || Defendant.
4
5 LET JUDGMENT BE ENTERED ACCORDINGLY.
6
7 || DATE: May 18, 2020 Ky min L- Rens
8 __ _
9 KAREN L. STEVENSON
10 UNITED STATES MAGISTRATE JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10037956. Public record. Not legal advice.